EXHIBIT 10.80
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF NOVEMBER 15, 2000
AMONG
F.I.R.C., INC.
AS BORROWER
AND
THE FINANCIAL INSTITUTIONS NOW OR HEREAFTER PARTIES HERETO
AS BANKS
AND
BANK OF AMERICA, N.A.
AS AGENT
TABLE OF CONTENTS
PAGE
ARTICLE IDEFINITIONS AND ACCOUNTING TERMS
Section 1.01. CERTAIN DEFINED TERMS.................................. 1
Section 1.02. COMPUTATION OF TIME PERIODS............................ 16
Section 1.03. ACCOUNTING TERMS....................................... 16
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. THE ADVANCES........................................... 16
Section 2.02. MAKING THE ADVANCES.................................... 17
Section 2.03. FEES................................................... 18
Section 2.04. REDUCTION OF THE COMMITMENTS........................... 18
Section 2.05. [RESERVED]............................................. 18
Section 2.06. INTEREST............................................... 18
Section 2.07. ADDITIONAL INTEREST ON ADVANCES BASED ON THE LIBOR RATE 19
Section 2.08. INTEREST RATE DETERMINATION AND PROTECTION............. 20
Section 2.09. VOLUNTARY INTEREST CONVERSION OF ADVANCES.............. 21
Section 2.10. FUNDING LOSSES RELATING TO FIXED RATE ADVANCES......... 21
ARTICLE III INCREASED COSTS, TAXES, PAYMENTS AND PREPAYMENTS
Section 3.01. INCREASED COSTS; CAPITAL ADEQUACY...................... 22
Section 3.02. PAYMENTS AND COMPUTATIONS.............................. 23
Section 3.03. TAXES.................................................. 23
Section 3.04. SHARING OF PAYMENTS, ETC............................... 24
Section 3.05. VOLUNTARY PREPAYMENTS.................................. 24
Section 3.06. MANDATORY PREPAYMENTS.................................. 24
Section 3.07. BANK COLLATERAL AGENT AS BORROWER'S PAYING AGENT....... 25
Section 3.08. SUBSTITUTION OF BANK................................... 25
ARTICLE IV CONDITIONS OF LENDING
Section 4.01. CONDITIONS PRECEDENT TO INITIAL ADVANCES............... 25
Section 4.02. CONDITIONS PRECEDENT TO EACH BORROWING (INCLUDING THE
INITIAL BORROWING)..................................... 27
ARTICLE V REPRESENTATIONS AND WARRANTIES
Section 5.01. EXISTENCE.............................................. 28
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Section 5.02. POWER AND AUTHORIZATION................................ 28
Section 5.03. NO CONFLICT OR RESULTANT LIEN.......................... 28
Section 5.04. RECEIVABLES............................................ 28
Section 5.05. NO CONSENT............................................. 28
Section 5.06. BINDING OBLIGATIONS.................................... 28
Section 5.07. FINANCIAL CONDITION.................................... 29
Section 5.08. LITIGATION............................................. 29
Section 5.09. USE OF PROCEEDS; MARGIN STOCK.......................... 29
Section 5.10. TAXES; GOVERNMENTAL CHARGES............................ 29
Section 5.11. FULL DISCLOSURE........................................ 29
Section 5.12. INVESTMENT COMPANY ACT................................. 30
Section 5.13. ENVIRONMENTAL MATTERS.................................. 30
Section 5.14. CAPITAL STRUCTURE...................................... 30
Section 5.15. COMPLIANCE WITH LAW.................................... 30
Section 5.16. ERISA.................................................. 30
Section 5.17. NO DEFAULT OR EVENT OF DEFAULT......................... 30
Section 5.18. PERMITS AND LICENSES................................... 30
Section 5.19. SURVIVAL OF REPRESENTATIONS AND WARRANTIES............. 30
ARTICLE VI AFFIRMATIVE COVENANTS OF THE BORROWER
Section 6.01. COMPLIANCE WITH LAWS, ETC.............................. 31
Section 6.02. REPORTING AND NOTICE REQUIREMENTS...................... 31
Section 6.03. TAXES AND LIENS........................................ 34
Section 6.04. MAINTENANCE OF PROPERTY................................ 34
Section 6.05. RIGHT OF INSPECTION.................................... 34
Section 6.06. PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND
CREDIT INSURANCE....................................... 34
Section 6.07. FURTHER ASSURANCES..................................... 35
ARTICLE VII NEGATIVE COVENANTS
Section 7.01. LIENS, ETC............................................. 35
Section 7.02. DEBT................................................... 35
Section 7.03. RESTRICTED PAYMENTS.................................... 36
Section 7.04. MERGERS; CONSOLIDATIONS................................ 36
Section 7.05. INVESTMENTS, LOANS, AND ADVANCES....................... 36
Section 7.06. SALE OR OTHER DISPOSITION OF ASSETS.................... 36
Section 7.07. USE OF PROCEEDS........................................ 36
Section 7.08. TRANSACTIONS WITH AFFILIATES........................... 36
Section 7.09. OTHER BUSINESS......................................... 37
Section 7.10. ISSUANCE OF SHARES..................................... 37
Section 7.11. ERISA.................................................. 37
Section 7.12. ACQUISITIONS........................................... 38
Section 7.13. CERTAIN FINANCIAL TESTS................................ 38
Section 7.14. EXTENSION OR AMENDMENT OF RECEIVABLES AND OTHER
DOCUMENTS.............................................. 38
Section 7.15. LETTER OF GUARANTY..................................... 38
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ARTICLE VIII EVENTS OF DEFAULT
Section 8.01. EVENTS OF DEFAULT...................................... 38
ARTICLE IX THE AGENT
Section 9.01. AUTHORIZATION AND ACTION............................... 41
Section 9.02. AGENT'S RELIANCE, ETC.................................. 42
Section 9.03. BANK OF AMERICA AND AFFILIATES......................... 42
Section 9.04. BANK CREDIT DECISION................................... 42
Section 9.05. INDEMNIFICATION........................................ 43
Section 9.06. SUCCESSOR AGENT........................................ 43
Section 9.07. AGENT'S RELIANCE....................................... 43
Section 9.08. DEFAULTS............................................... 44
ARTICLE X MISCELLANEOUS
Section 10.01. AMENDMENTS, ETC........................................ 44
Section 10.02. NOTICES, ETC........................................... 44
Section 10.03. NO WAIVER; REMEDIES.................................... 45
Section 10.04. COSTS, EXPENSES AND TAXES.............................. 45
Section 10.05. RIGHT OF SET-OFF....................................... 45
Section 10.06. BINDING EFFECT......................................... 45
Section 10.07. ASSIGNMENTS AND PARTICIPATIONS......................... 45
Section 10.08. LIMITATION ON AGREEMENTS............................... 47
Section 10.09. SEVERABILITY........................................... 48
Section 10.10. GOVERNING LAW.......................................... 48
Section 10.11. SUBMISSION TO JURISDICTION; WAIVERS.................... 48
Section 10.12. WAIVER OF JURY TRIAL................................... 49
Section 10.13. EXECUTION IN COUNTERPARTS.............................. 49
Section 10.14. NO INSOLVENCY PETITION AGAINST BORROWER................ 49
Section 10.15. INDEMNIFICATION........................................ 49
Section 10.16. SERVICING.............................................. 50
Section 10.17. FINAL AGREEMENT........................................ 50
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PAGE
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EXHIBITS: PAGE
Exhibit A - Form of ALPI Insurance Policy
Exhibit B - Form of Compliance Certificate
Exhibit C - [RESERVED]
Exhibit D - Form of GAP and VSI Insurance Policy
Exhibit E - Form of Notice of Borrowing
Exhibit F - Form of Facility Note
Exhibit G - Form of Opinion of Counsel for the Borrower
Exhibit H - Form of Bank Collateral Agent's Disbursement Statement
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 15, 2000
(as the same may be amended, modified, renewed or extended from time to time,
this "AGREEMENT") is made by and among F.I.R.C., Inc., a Delaware corporation
(the "BORROWER"), the financial institutions listed on the signature pages
hereof and any other financial institution that may hereafter become a party
hereto pursuant to the provisions hereof (each individually a "BANK" and
collectively, the "BANKS"), and Bank of America, N.A. (in its individual
capacity, "BANK OF AMERICA"), as agent for the Banks (in such capacity, the
"AGENT").
WITNESSETH:
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WHEREAS, the Borrower, the Banks, and the Agent desire hereby to amend and
restate that certain Amended and Restated Credit Agreement, dated as of October
30, 1996, as amended prior to the date hereof (the "Original Credit Agreement");
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein set forth and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Borrower, the Banks,
and the Agent hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACTUAL CREDIT LOSSES" means, for any Collection Period, losses of
principal under the Receivables after taking into account any Liquidation
Proceeds received.
"ADVANCE" means any advance provided for under Section 2.01 hereof.
"AFFILIATE" means any Person which, directly or indirectly, controls
or is controlled by or is under common control with another Person. For
purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as
used with respect to any Person, means the power to direct or cause the
direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities or by
contract or otherwise.
"AGREED RATE" means, for any Interest Period for each Agreed Rate
Advance, a fixed interest rate per annum mutually agreed upon among the
Borrower and the Banks.
"AGREED RATE ADVANCE" means an Advance which bears interest at the
interest rate as provided in Section 2.06(c).
"ALPI INSURANCE" means the policy or policies of insurance covering
each of the underlying installment sales contracts, installment notes or
other written evidence of any Obligor's obligation arising out of the
purchase of a Financed Vehicle held by the Borrower issued by National
Union Fire Insurance Company of Pittsburgh, PA in the form attached hereto
as EXHIBIT A and the policy of insurance issued by Agricultural Excess and
Surplus Insurance Co. issued October 6, 1992 or such other insurance as is
satisfactory in form and substance to the Banks.
"APPLICABLE LENDING OFFICE" means, with respect to each Bank, such
Bank's Domestic Lending Office in the case of a Base Rate Advance or an
Agreed Rate Advance or such Bank's LIBOR Lending Office in the case of a
LIBOR Rate Advance.
"ANNUAL PERCENTAGE RATE" or "APR" has the meaning set forth in the
Purchase Agreement.
"ASSIGNEE" has the meaning specified in subsection 10.07(a) hereof.
"ASSIGNMENT AND ACCEPTANCE" has the meaning specified in Section
10.07(a) hereof.
"AVAILABLE AMOUNT" means, at any time, an amount equal to the excess
of (a) the lesser of (i) the Commitments at such time or (ii) the
Borrowing Base OVER (b) the aggregate principal amount of all Advances
then outstanding.
"BANK COLLATERAL AGENT" means ▇▇▇▇▇ Fargo Bank Minnesota, National
Association (f/k/a to Norwest Bank Minnesota, National Association) and
any successor thereto appointed pursuant to Section 19 of the Security
Agreement.
"BANK OF AMERICA" means Bank of America, N.A.
"BASE RATE" means, for any period, a fluctuating interest rate per
annum (rounded upwards to the nearest 1/16 of 1%) as shall be in effect
from time to time which rate per annum shall at all times be equal to the
higher of:
(a) the Prime Rate, or
(b) the Federal Funds Rate plus 1/2 of 1% per annum.
"BASE RATE ADVANCE" means an Advance which bears interest at the
interest rate as provided in Section 2.06(a).
"BORROWING" means a borrowing consisting of Advances of the same
Type made on the same day by the Banks.
"BORROWING BASE" means, at any time, an amount equal to the lesser
of (i) 100% of Eligible Receivables and (ii) the policy life aggregate
limit of liability of the ALPI Insurance as it may adjust from time to
time.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in Dallas, Texas and, if the applicable
Business Day relates to any LIBOR Rate Advances, on which dealings are
carried on in the London interbank market.
"CAPITAL LEASE" means a lease which should, in accordance with GAAP,
be recorded as a capital lease on the balance sheet of the lessee.
"CLOSING DATE" means the date the Agreement becomes effective in
accordance with Article IV.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time and any successor statute.
"COLLATERAL" has the meaning set forth in the Security Agreement.
"COLLATERAL ACCOUNT" means that certain trust account established
pursuant to Section 2 of the Security Agreement.
"COLLECTION PERIOD" means, with respect to any Distribution Date,
the calendar month immediately preceding such Distribution Date.
"COMMITMENT" means, as to any Bank, each Bank's Loan Percentage of
$65,000,000, as such amount may be reduced and increased from time to time
pursuant to the terms and provisions hereof, and "COMMITMENTS" means,
collectively, all Banks' Commitments ; PROVIDED, HOWEVER, that the
Commitment of ▇▇▇▇▇ Fargo Bank Texas, National Association shall
terminate, and all obligations due to such Bank (including all principal,
interest, commitment fees and other amounts) shall be due and payable on
December 31, 2000, at which time (upon payment of such obligations) ▇▇▇▇▇
Fargo Bank, National Association shall cease to be a Bank hereunder and
the aggregate Commitments hereunder shall be reduced to $50,000,000,
subject to reduction as aforesaid; PROVIDED, FURTHER, however that in the
event that, after ▇▇▇▇▇ Fargo Bank Texas, National Association is paid in
full as aforesaid, the Borrower is able to identify one or more new
lenders willing to commit to act as a Bank or Banks hereunder with a
Commitment or aggregate Commitments up to $15,000,000 and such new Bank or
Banks are acceptable to the Agent in its absolute discretion, such new
lenders may join into this Agreement as Banks (without the consent of any
other Banks other than the Agent) pursuant to documentation acceptable to
the Agent (and the other Banks as provided in SECTION 10.01 if such
documentation purports to amend, modify or waive any provision of this
Agreement) and the aggregate Commitment shall be increased (but not in
excess of $65,000,000) accordingly.
"COMPLIANCE CERTIFICATE" means a certificate, duly executed by a
Responsible Officer, appropriately completed and in substantially the form
of EXHIBIT B hereto.
"CREDIT GUIDELINES" has the meaning set forth in the Purchase
Agreement.
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"CREDIT INSURANCE" means the ALPI Insurance, GAP Insurance and VSI
Insurance covering the Receivables issued in the name of the Borrower with
the Agent named as an additional insured for the ratable benefit of the
Banks.
"CREDIT LOSS PERCENTAGE" means, as of any Determination Date, a
fraction (expressed as a percentage) the numerator of which shall be a
number equal to Actual Credit Losses for the four (4) immediately
preceding Collection Periods TIMES three and the denominator of which
shall be the average of the Receivables Portfolio Balance for the four (4)
immediately preceding Collection Periods.
"DEBT" means (without duplication), for any Person, (a) indebtedness
of such Person for borrowed money or arising out of any extension of
credit to or for the account of such Person (including, without
limitation, extensions of credit in the form of reimbursement or payment
obligations of such Person relating to letters of credit issued for the
account of such Person) or for the deferred purchase price of property or
services; (b) indebtedness of the kind described in clause (a) of this
definition which is secured by (or for which the holder of such Debt has
any existing right, contingent or otherwise, to be secured by) any Lien
upon or in Property (including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such indebtedness or obligations; (c) all
obligations as lessee under any Capital Lease, (d) all contingent
liabilities and obligations under direct or indirect guarantees in respect
of, and obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in clauses
(a) through (c) above, including, without limitation, (i) any endorsement
not for collection in the ordinary course of business or discount with
recourse or undertaking substantially equivalent to or having economic
effect similar to a guaranty in respect of any such Debt; (ii) any
agreement (A) to purchase, or to advance or supply funds for the payment
or purchase of, any such Debt, (B) to purchase, sell, or lease property,
products, materials, supplies, transportation, or services, in order to
enable such Person to pay any such Debt or to assure the owner thereof
against loss regardless of the delivery or nondelivery of the property,
products, materials, supplies, transportation, or services, or (C) to make
any loan, advance, or capital contribution to, or other investment in, or
to otherwise provide funds to or for, such other Person in order to enable
such Person to satisfy any obligation (including any liability for a
dividend, stock liquidation payment or similar expense) or to assure a
minimum equity, working capital, or other balance sheet condition in
respect of any such obligation; and (iii) obligations under surety,
appeal, or custom bonds; (e) any obligation of a Person under or in
connection with a sale-leaseback or similar arrangement, including,
without limitation, any arrangement with any other party providing for the
leasing by such Person (as lessee) from such other party of any Property
which has been, or is to be, sold or transferred by such Person to such
other party or to any other Person to whom funds have been, or are to be,
advanced on the security of such Property or rental obligations of such
Person and (f) any and all obligations of such Person under any interest
rate swap, interest rate cap or other exchange or rate protection
agreement now existing or hereafter entered into by such Person and Bank
of America or any Affiliate of Bank of America.
"DEFAULT" means any event which, with the lapse of time or giving of
notice, or both, would constitute an Event of Default.
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"DELINQUENT RECEIVABLES" means, at any time, those Receivables on
which the stated monthly payment has not been made in full (or within
$10.00 thereof) for at least thirty (30) days as reflected on the
Servicer's reports delivered pursuant to Section 6.02(g) hereof.
"DETERMINATION DATE" means the last day of each Collection Period.
"DISTRIBUTION DATE" means the date on which Distributions are to be
made, and which shall be the 20th day of each month, or if such day is not
a Business Day, the next following Business Day, commencing with November
20, 2000.
"DISTRIBUTIONS" means those amounts distributed by the Bank
Collateral Agent with respect to the Receivables pursuant to Section 5 of
the Security Agreement.
"DOMESTIC LENDING OFFICE" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite
its name on the signature pages hereto, or such other office of such Bank
as such Bank may from time to time specify to the Borrower and the Agent.
"EARNINGS BEFORE INTEREST, FEES AND DISTRIBUTIONS" means, for any
period, Net Income PLUS (to the extent deducted in arriving at Net Income)
any distributions or payments made to the Borrower's shareholders PLUS
Loan Interest Expense PLUS Fee Expense.
"ELIGIBLE RECEIVABLES" means, as at any date of determination
thereof, the Principal Balance portion of each Receivable which, as of
such determination date, complies with the following requirements:
(a) it and the sale of the Financed Vehicle complies with all
requirements of applicable federal, state, and local laws, and
regulations thereunder, including, without limitation, usury laws,
the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Reporting Act, the Fair Debt Collection Practices
Act, the Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty
Act, the Federal Reserve Board's Regulations B and Z, the Texas
Consumer Credit Code and other state adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and other
consumer credit laws and equal credit opportunity and disclosure
laws;
(b) it represents the genuine, legal, valid, and binding
payment obligation in writing of the Obligor, enforceable by the
holder thereof in accordance with its terms;
(c) it is not due from the United States of America or any
state or from any agency, department or instrumentality of the
United States of America or any state;
(d) it is secured by a validly perfected first priority
security interest in the Financed Vehicle in favor of First
Investors as secured party;
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(e) it has not been amended, nor have any of its provisions
been waived, other than as allowed under Section 4.02 of the
Servicing Agreement;
(f) no liens or claims shall have been filed for work, labor,
or materials relating to a Financed Vehicle that shall be liens
prior to, or equal or coordinate with, the security interest in the
Financed Vehicle granted by it;
(g) it is not currently the subject of any sale, transfer,
assignment, or pledge by First Investors or the Borrower to any
Person (including Enterprise) other than the Bank Collateral Agent;
(h) it has not been originated in, nor is it subject to the
laws of, any jurisdiction under which the sale, transfer, and
assignment of such Receivable under the Purchase Agreement or the
Security Agreement would be unlawful, void or voidable;
(i) there is only one executed original of it, which
throughout the term of this Agreement is in the possession of the
Bank Collateral Agent or the Servicer as agent for the Borrower and
custodian for the Bank Collateral Agent, the Agent and the Banks;
(j) it has been originated in the United States of America,
has been fully and properly executed by the parties thereto, is
payable in United States dollars, contains customary and enforceable
provisions such that the rights and remedies of the holder thereof
shall be adequate for realization against the collateral of the
benefits of the security and constitutes an "Eligible Loan" as
defined in the ALPI Insurance;
(k) it has not been satisfied, subordinated, or rescinded, and
the Financed Vehicle relating thereto has not been released in whole
or in part;
(l) no right of rescission, cancellation, setoff, claim,
counterclaim or defense has been asserted or threatened with respect
to it;
(m) prior to its sale under the Purchase Agreement, First
Investors, in accordance with its customary procedures, shall have
determined that the Obligor obtained or agreed to obtain physical
damage insurance covering the Financed Vehicle;
(n) it has an original maturity of not greater than sixty-six
(66) months;
(o) the Confirmation of Insurance with respect to such
Receivable has not been voided pursuant to Paragraph 18 of the ALPI
Insurance;
(p) it is not subject to (i) any loss which is not covered by
Credit Insurance or (ii) any loss which would be covered by Credit
Insurance but for which an insurance claim has been outstanding for
more than 30 days past the maximum contractual payment date as
specified in the applicable Credit Insurance, PROVIDED that, if such
claim is subsequently paid, the Receivable shall again constitute an
Eligible Receivable;
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(q) it has been assigned to the Borrower, is subject to the
Security Agreement and the first priority security interest of the
Bank Collateral Agent in the Receivable has been properly perfected;
(r) (i) it would constitute an "Eligible Receivable" under the
Enterprise Agreement (excluding, however, clauses (c), (e), (g),
(h), (x) and (aa) of the definition of Eligible Receivable as set
forth in such agreement) and (ii) conforms to the representations
made by FIARC in Section 3.1 of Article III of the Enterprise
Agreement.
(s) the Principal Balance of such Receivable shall not exceed
the lesser of (x) 120% of the Manufacturer's Suggested Retail Price
with respect to the subject unused Financed Vehicles or (y) 120% of
the retail value of such Financed Vehicles as published in the
National Automobile Dealers Association Used Car Guide or the ▇▇▇▇▇
Blue Book with respect to the subject used or pre-owned Financed
Vehicles;
(t) it shall not have been the subject of more than two
extensions of monthly payments with respect thereto during any
12-month period nor shall the total extensions of monthly payments
granted over the term of such Receivable exceed a number which is
equivalent to one such extension for every 12 months in the stated
term of such Receivable;
(u) it shall not have been the subject of any extension of a
monthly payment unless the Obligor thereon has made the first six
consecutive scheduled payments with respect to such Receivable;
(v) at the time of origination, the Obligor on which has
provided, as its most recent billing address, an address located in
the United States;
(w) which has been created substantially in accordance with,
or under standards no less stringent than, the Credit Guidelines;
(x) as to which at the time such Receivable first became part
of the Collateral, to the best of the Borrower's knowledge, a bona
fide down payment has been made;
(y) which provides for level monthly payments (PROVIDED that
the payment in the first and last month of the Receivable may be
minimally different from the level payment) that fully amortize the
amount financed by maturity and yield interest at the stated Annual
Percentage Rate;
(z) which provides for, in the event that such Receivable is
prepaid by the Obligor, a prepayment that fully pays the principal
balance of such Receivable and any interest accrued through the date
of prepayment;
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(aa) the Obligor of which has not previously defaulted on an
automobile installment sales contract or an installment note
purchased by First Investors at the time such Receivable becomes a
part of the Collateral;
(ab) which was originated by an Originator approved by First
Investors and which Originator is subject to an Originator Agreement
providing for bona fide sale of such Receivable in the ordinary
course of such Originator's business and which if acquired by First
Investors pursuant to a "bulk purchase" from another Originator has
been approved by the Bank Collateral Agent, acting upon written
instruction of the Agent;
(ac) which has a clear right of repossession on the Financed
Vehicle securing such Receivable;
(ad) which has an APR of at least 13.0%;
(ae) the Obligor of which is required to make payments to a
lockbox under the control of the Processor;
(af) as to which neither First Investors, FIARC nor the
Borrower has done anything at the time such Receivable first became
part of the Collateral, to impair the rights of the Bank Collateral
Agent therein; and
(ag) the Obligor of which does not have any other automotive
receivable owing to First Investors which is more than 60 days
contractually delinquent from the due date or defaulted at the time
such Receivable becomes a part of the Collateral.
"ENTERPRISE" means Enterprise Funding Corporation, a Delaware
corporation.
"ENTERPRISE AGREEMENT" means that certain Security Agreement dated
as of October 22, 1996, by and among FIARC, Enterprise, ▇▇▇▇▇ Fargo Bank
Minnesota, National Association (successor to Texas Commerce Bank National
Association, as Collateral Agent thereunder), MBIA Insurance Corporation,
Bank of America, N.A. (formerly NationsBank, N.A.) and First Investors,
and any amendments, modifications, renewals or extensions thereof approved
in accordance with Section 7.14 hereof.
"ENVIRONMENTAL PROTECTION STATUTE" means (a) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.A.
ss. 9601 ET SEQ.), as amended from time to time, and any and all rules and
regulations issued or promulgated thereunder ("CERCLA"); (b) the Resource
Conservation and Recovery Act (as amended by the Hazardous and Solid Waste
Amendment of 1984, 42 U.S.C.A. ss. 6901 ET SEQ.), as amended from time to
time, and any and all rules and regulations promulgated thereunder
("RCRA"); (c) the Clean Air Act, 42 U.S.C.A. ss. 7401 ET SEQ., as amended
from time to time, and any and all rules and regulations promulgated
thereunder; (d) the Clean Water Act of 1977, 33 U.S.C.A. ss. 1251 ET SEQ.,
as amended from time to time, and any and all rules and regulations
promulgated thereunder; (e) the Toxic Substances
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Control Act, 15 U.S.C.A. ss. 2601 ET SEQ., as amended from time to time,
and any and all rules and regulations promulgated thereunder; or (f) any
other federal or state law, statute, rule, or regulation enacted in
connection with or relating to the protection or regulation of the
environment (including, without limitation, those laws, statutes, rules,
and regulations regulating the disposal, removal, production, storing,
refining, handling, transferring, processing, or transporting of Hazardous
Materials) and any rules and regulations issued or promulgated in
connection with any of the foregoing by any Governmental Authority, and
"ENVIRONMENTAL PROTECTION STATUTES" means, collectively, each of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any subsidiary or trade or business (whether
or not incorporated) which is a member of a group of which the Borrower is
a member and which is under common control within the meaning of Section
414 of the Code and the rules and regulations thereunder.
"ERISA EVENT" means any of the following events: (a) a "Reportable
Event" described in Section 4043 of ERISA and the regulations issued
thereunder (other than a "Reportable Event" not subject to the provision
for the 30-day notice to the Pension Benefit Guaranty Corporation, under
such regulations) or an event described in Section 4068(f) of ERISA which
may result in a material liability of the Borrower or any ERISA Affiliate,
(b) the withdrawal of the Borrower or any ERISA Affiliate from a Plan
during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or the incurrence of liability by the Borrower
or any ERISA Affiliate under Section 4064 of ERISA, (c) the distribution
of a notice of intent to terminate a Plan pursuant to Section 4041(a)(2)
of ERISA or the treatment of a Plan amendment as a termination under
Section 4041 of ERISA, (d) the institution of proceedings to terminate a
Plan by the Pension Benefit Guaranty Corporation, or (e) any other event
or condition which might constitute grounds under ERISA or the Code for
the termination of, or the appointment of a trustee to administer, any
Plan or for the imposition of a lien on the assets of the Borrower or any
ERISA Affiliate in respect of any Plan or Multiemployer Plan which is not
corrected within 30 days.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EVENTS OF DEFAULT" has the meaning specified in Section 8.01.
"FACILITY" means the revolving credit facility created hereunder,
and the terms and conditions thereof.
"FACILITY NOTE" has the meaning specified in Section 2.02(d) hereof
and includes any amendments, modifications, renewals or extensions
thereof.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds
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transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"FEE EXPENSE" means, for any period, the aggregate amount paid or
accrued by the Borrower in respect of the fee due under Section 2.03(a)
hereof.
"FIARC" means First Investors Auto Receivables Corporation, a
Delaware corporation.
"FINANCED VEHICLE" means an automobile or light-duty truck, together
with all accessions thereto, securing an Obligor's indebtedness under the
respective Receivable.
"FIRST INVESTORS" means First Investors Financial Services, Inc., a
Texas corporation.
"FIS GROUP" means First Investors Financial Services Group, Inc., a
Texas corporation.
"FIXED RATE" means the LIBOR Rate or the Agreed Rate.
"FIXED RATE ADVANCE" means a LIBOR Rate Advance or an Agreed Rate
Advance.
"FUTURE PLAN" has the meaning specified in Section 6.02(h) hereof.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants, and statements and
pronouncements of the Financial Accounting Standards Board.
"GAP INSURANCE" means the policy or policies of insurance issued by
Agricultural Excess and Surplus Insurance Company in the form attached
hereto as EXHIBIT D or such other insurance as satisfactory in form and
substance to the Banks.
"GOVERNMENTAL AUTHORITY" means any (domestic or foreign) federal,
state, county, municipal, parish, provincial, or other government, or any
department, commission, board, court, agency (including, without
limitation, the Environmental Protection Agency), or any other
instrumentality of any of them or any other political subdivision thereof,
and any entity exercising executive, legislative, judicial, regulatory, or
administrative functions of, or pertaining to, government, including,
without limitation, any arbitration panel, any court, or any commission.
"GOVERNMENTAL REQUIREMENT" means any order, permit, law, statute
(including, without limitation, any Environmental Protection Statute),
code, ordinance, rule, regulation, certificate, or other direction or
requirement of any Governmental Authority.
"HAZARDOUS MATERIALS" means (a) any "hazardous waste" as defined by
RCRA; (b) any "hazardous substance" as defined by CERCLA; (c) asbestos;
(d) polychlorinated biphenyls; (e)
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any substance the presence of which on any of the Borrower's Properties is
prohibited by any Governmental Authority; (f) petroleum, including crude
oil and any fraction thereof, natural gas liquids, liquified natural gas,
and synthetic gas useable for fuel (or mixtures of natural gas and such
synthetic gas); (g) drilling fluids, produced waters and other wastes
associated with the exploration, development, or production of crude oil,
natural gas, or geothermal energy; and (h) any other substance which,
pursuant to any Governmental Requirement, requires special handling in its
collection, storage, treatment, or disposal.
"HIGHEST LAWFUL RATE" means, with respect to each Bank, the maximum
nonusurious interest rate, if any, that at any time or from time to time
may be contracted for, taken, reserved, charged, or received with respect
to any Note or on other amounts, if any, due to such Bank pursuant to this
Agreement or any other Loan Document under laws applicable to such Bank
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
"INTEREST PERIOD" means, for each LIBOR Rate Advance or Agreed Rate
Advance comprising part of the same Borrowing, the period commencing on
the date of such Advance or the date of the conversion of any Advance into
such an Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be (a) in the case of a LIBOR Rate Advance, one, two, or
three months, and (b) in the case of an Agreed Rate Advance, 1 to (and
including) 30 days, as the Borrower may, upon notice received by the
Agent, select in accordance with Section 2.02 or 2.09; PROVIDED, HOWEVER,
that:
(i) the duration of any Interest Period which commences before
the Termination Date and otherwise ends after such date shall end on
the Termination Date; and
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, PROVIDED that, in the case of a LIBOR Rate
Advance or an Agreed Rate Advance based on the LIBOR Rate, if such
extension would cause the last day of such Interest Period to occur
in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day.
"INVESTMENT" of any Person means any investment so classified under
GAAP, and, whether or not so classified, includes (a) any direct or
indirect loan or advance made by it to any other Person, whether by means
of stock purchase, loan, advance or otherwise; (b) any capital
contribution to any other Person; and (c) any ownership or similar
interest in any other Person.
"LIBOR LENDING OFFICE" means, with respect to any Bank, the office
of such Bank specified as its "LIBOR Lending Office" opposite its name on
the signature pages hereto (or, if
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no such office is specified, its Domestic Lending Office), or such other
office of such Bank as such Bank may from time to time specify to the
Borrower and the Agent.
"LIBOR RATE" means, for any Interest Period for each LIBOR Rate
Advance, an interest rate per annum equal to the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum) of the rate per
annum at which deposits in U.S. dollars are offered to the Agent, or at
the Agent's option, an Affiliate of the Agent by prime banks in the London
interbank market at 11:00 A M. (London time) three Business Days before
the first day of such Interest Period in an amount substantially equal to
such LIBOR Rate Advance and for a period equal to such Interest Period.
"LIBOR RATE ADVANCE" means an Advance which bears interest at the
interest rate as provided in Section 2.06(b).
"LIBOR RATE MARGIN" means l/2 of 1% per annum.
"LIBOR RATE RESERVE PERCENTAGE" of any Bank for any Interest Period
for any LIBOR Rate Advance means the reserve percentage, if any, actually
incurred during such Interest Period (or if more than one such percentage
shall be incurred, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be incurred)
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Bank with
respect to liabilities or assets consisting of or including eurocurrency
liabilities having a term equal to such Interest Period.
"LIEN" means any claim, mortgage, deed of trust, pledge, security
interest, encumbrance, lien, or charge of any kind (including, without
limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, or any lease in the nature
thereof), or the interest of the lessor under any Capital Lease.
"LIQUIDATED RECEIVABLE" means any Receivable liquidated by the
Servicer through sale of the Financed Vehicle or otherwise.
"LIQUIDATION PROCEEDS" means the monies collected from whatever
source, during the respective Collection Period, on a Liquidated
Receivable (including, without limitation, all proceeds from any insurance
held by the Obligor with respect thereto but excluding any proceeds from
the ALPI Insurance, the VSI Insurance and the GAP Insurance).
"LOAN DOCUMENTS" means this Agreement, the Notes, the Security
Agreement, the Pledge Agreement, the Purchase Agreement, the Servicing
Agreement, and any document or instrument executed in connection with the
foregoing.
"LOAN INTEREST EXPENSE" means, for any period, the aggregate amount
of interest paid or accrued during such period on the Advances (net of any
costs or amounts received by the
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Borrower under any interest rate protection agreements with respect
thereto in accordance with GAAP).
"LOAN PERCENTAGE" means as to any Bank that continues to be a party
hereto, a fraction (expressed as a percentage) the numerator of which
shall be the aggregate original principal amount of such Bank's Commitment
and the denominator of which shall be the aggregate amount of all the
Commitments then in effect.
"MAJORITY BANKS" means (a) at any time during the term of this
Agreement when Bank of America is the only Bank or when there is only one
Bank in addition to Bank of America, all of such Banks and (b) at any time
during the term of this Agreement when there are two or more Banks in
addition to Bank of America, Banks holding at least 66-2/3% of the
aggregate unpaid principal amount of the Notes held by Banks, or, if no
such principal amount is then outstanding, Banks having at least 66-2/3%
of the Commitments.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation G, T, U and X.
"MATERIAL ADVERSE EFFECT" means any material adverse effect on (a)
the financial condition, business, properties or operations of the
Borrower or (b) the ability of the Borrower to perform its respective
obligations under this Agreement, any Note or any other Loan Document to
which it is a party, or under the Purchase Agreement or the Servicing
Agreement, on a timely basis.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate
is making or accruing or has made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Borrower or an ERISA Affiliate and at least one entity other than the
Borrower or an ERISA Affiliate or (ii) was so maintained and in respect of
which the Borrower or an ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes determined on a cash basis.
"NOTE" or "NOTES" means the Facility Notes.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF INTEREST CONVERSION" has the meaning specified in Section
2.09.
"OBLIGOR" means the purchaser or co-purchasers of a Financed Vehicle
or any other Person who owes payments under the Receivables.
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"ORIGINATOR" shall mean a bank, finance company, car rental company
or factory authorized dealer or its affiliates which has entered into an
Originator Agreement, including, but not limited to, Farragut Financial
Corporation, a wholly-owned subsidiary of First Investors.
"ORIGINATOR AGREEMENT" shall mean the agreement between First
Investors and an Originator relating to the purchase of a Receivable
resulting from a financed or refinanced loan.
"OTHER TAXES" has the meaning specified in subsection 3.03(b) hereof
"PBGC PLAN" means any plan subject to Title IV of ERISA or Section
412 of the Code.
"PERMITTED DEBT" has the meaning specified in Section 7.02.
"PERMITTED LIENS" means non-consensual Liens imposed by operation of
law including, without limitation, landlord Liens for rent not yet due and
payable, and Liens for materialmen, mechanics, warehousemen, carriers,
employees, workmen, repairmen, current wages, or accounts payable not yet
delinquent and arising in the ordinary course of business; PROVIDED,
HOWEVER, that any right to seizure, levy, attachment, sequestration,
foreclosure, or garnishment with respect to Property of the Borrower by
reason of such Lien has not matured, or has been, and continues to be,
effectively enjoined or stayed.
"PERSON" means an individual, partnership, estate, corporation
(including a business trust), association, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means any employee benefit plan within the meaning of Section
3(3) of ERISA, other than a Multiemployer Plan, maintained by the Borrower
or any ERISA Affiliate.
"PLEDGE AGREEMENT" means the Pledge Agreement dated as of November
15, 2000, between First Investors and the Agent, and any amendments,
modifications, renewals or extensions thereof.
"PRIME RATE" means the rate of interest most recently announced
publicly by Bank of America, N.A. in Dallas, Texas, from time to time, as
its prime rate, which rate shall fluctuate, with each such change to be
effective as of the date of such change in such rate; PROVIDED that the
prime rate is a reference rate and does not necessarily represent the
lowest rate charged to any customer.
"PRINCIPAL BALANCE" means, at any time and with respect to a
Receivable, the outstanding principal balance of the Receivable as shown
on the Servicer's reports delivered pursuant to Section 6.02(g) hereof and
based on the recalculation of interest by the Servicer under the simple
interest method pursuant to Section 2.02(c) of the Servicing Agreement.
"PROCESSOR" means First Union National Bank or any substitute
financial institution maintaining a lockbox into which the proceeds of
Receivables are deposited and from which the proceeds thereof are
distributed on a daily basis to the Bank Collateral Agent.
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"PROPERTY" means any interest or right in any kind of property or
asset, whether real, personal, or mixed, owned or leased, tangible or
intangible, and whether now held or hereafter acquired.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of
October 30, 1996, between the Borrower and First Investors, as the same
has been and may be amended, restated, modified, renewed or extended from
time to time, including, without limitation, through the Fourth Amendment
thereto dated as of November 15, 2000 (subject to Section 7.14 hereof).
"PURCHASE AMOUNT" means, at any time, the Principal Balance at which
the Receivable is carried in the Borrowing Base plus any earned interest
thereon. In the event a Receivable is repurchased, the Purchase Amount
shall include any out-of-pocket expenses which are reimbursable under the
Servicing Agreement.
"PURCHASED RECEIVABLE" has the meaning set forth in the Security
Agreement.
"RECEIVABLE PORTFOLIO BALANCE" means, for any Collection Period, the
aggregate Principal Balance of the Receivables on the Determination Date
at the end of such Collection Period.
"RECEIVABLES" has the meaning set forth in the Purchase Agreement.
"RECEIVABLES DOCUMENTS" means the Purchase Agreement and the
Servicing Agreement.
"REGISTER" has the meaning specified in subsection 10.07(c) hereof.
"REGULATION T", "REGULATION U", "REGULATION X" or "REGULATION G, T,
U OR X" means Regulation T, U or X, as the case may be, of the Board of
Governors of the Federal Reserve System, or any successor or other
regulation hereafter promulgated by said Board to replace the prior
Regulation T, U or X and having substantially the same function.
"RESPONSIBLE OFFICER" means and includes the individual who is the
president of both the Borrower and First Investors and the individual who
is the chief financial officer of the Borrower.
"REVOLVING LOAN TERMINATION DATE" means November 14, 2001 or the
earlier date of termination in whole of the Commitments pursuant to
Section 2.04 or 8.01.
"SECURITY AGREEMENT" means the Amended and Restated Collateral
Security Agreement dated as of November 15, 2000, among the Borrower, the
Agent, the Banks, and the Bank Collateral Agent, as the same may be
amended, restated, modified, renewed or extended from time to time.
"SERVICER" means First Investors Servicing Corporation, a Delaware
corporation, each Back-up Servicer and each successor to any thereof as
provided in the Servicing Agreement (and shall include, as appropriate,
any "Subservicer" acting on behalf of the Servicer or Back-up Servicer in
accordance with Section 2.01(g) of the Servicing Agreement).
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"SERVICING AGREEMENT" MEANS THE SERVICING AGREEMENT, DATED AS OF
JUNE 25, 1999, AMONG THE BORROWER, THE SERVICER, AND THE BANK COLLATERAL
AGENT, IN SUCH CAPACITY AND AS BACK-UP SERVICER, AS THE SAME HAS BEEN AND
MAY BE AMENDED, RESTATED, MODIFIED, RENEWED OR EXTENDED FROM TIME TO TIME,
INCLUDING, WITHOUT LIMITATION, BY THE FIRST AMENDMENT THERETO DATED AS OF
NOVEMBER 15, 2000 (SUBJECT TO SECTION 7.14 HEREOF).
"SPECIFIED COLLATERAL ACCOUNT BALANCE" shall have the meaning set
forth in Section 1 of the Security Agreement.
"SUBSIDIARY" means any corporation of which any Person, either
directly or indirectly, owns at the time more than 50% of the outstanding
capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (whether or not at the time stock
of any other class or classes of such corporation shall have, or might
have, voting power by reason of the happening of any contingency), and
shall include any such corporation which shall become a Subsidiary after
the date hereof.
"TAXES" has the meaning specified in subsection 3.03(a) hereof.
"TERMINATION DATE" means May 13, 2002 or the earlier date that the
Notes Mature pursuant to Section 8.01.
"TYPE" refers to the determination whether an Advance is a Base Rate
Advance, an Agreed Rate Advance, or a LIBOR Rate Advance (or a Borrowing
comprised of such Advances).
"UCC" has the meaning set forth in the Security Agreement.
"UNINSURED CREDIT LOSSES" means (a) losses on the Receivables which
are not covered by Credit Insurance and (b) losses on the Receivables
which are covered by Credit Insurance and for which insurance claims have
been filed by the Servicer and have been outstanding for more than 30 days
past the maximum contractual payment date as specified in the applicable
Credit Insurance, PROVIDED that, if such claim is subsequently paid, it
shall no longer constitute an Uninsured Credit Loss.
"VSI INSURANCE" means the policy or policies of insurance
underwritten by Agricultural Excess and Surplus Insurance Company in the
form attached hereto as EXHIBIT D or such other insurance as is
satisfactory in form and substance to the Bank.
Section 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
unless otherwise specified herein the word "from" means "from and including" and
the words "to" and "until" each means "to but excluding."
Section 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the financial statements referred to in Section
5.07.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. THE ADVANCES. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make Advances to the Borrower from time to
time on any Business Day during the period from the date hereof until the
Revolving Loan Termination Date, in an aggregate amount not to exceed an amount
equal to such Bank's Loan Percentage of the Available Amount. Each Borrowing
shall consist of Advances of the same Type made on the same day by the Banks
ratably according to their respective Loan Percentage of the Available Amount.
All Borrowings shall be in an aggregate amount not less than $250,000 or an
integral multiple of $10,000 in excess thereof. Within the limits of each Bank's
Loan Percentage of the Available Amount, the Borrower may borrow, prepay
pursuant to Sections 3.05 and 3.06 and reborrow under this Section 2.01. The
principal amount outstanding on the Advances as of the Termination Date shall
mature and, together with accrued and unpaid interest thereon, shall be due and
payable on the Termination Date.
Section 2.02. MAKING THE ADVANCES. (a) Each Borrowing shall be made on the
Borrower's oral notice, or on written notice in the form attached hereto as
EXHIBIT E ("NOTICE OF BORROWING") given by the Borrower to the Agent not later
than 11:00 A.M. (Dallas time) (i) on the second Business Day prior to the date
of the proposed Borrowing in the case of a LIBOR Rate Advance, (ii) on the
Business Day prior to the date of the proposed Borrowing in the case of an
Agreed Rate Advance and (iii) on the same Business Day of the proposed Borrowing
in the case of a Base Rate Advance. With respect to any oral notice, the
Borrower shall promptly thereafter confirm such notice by delivering a Notice of
Borrowing. Each Notice of Borrowing shall specify therein the requested (i) date
of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii)
aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
comprised of LIBOR Rate Advances or Agreed Rate Advances, the initial Interest
Period for each such Advance. The Agent shall promptly deliver a copy of each
Notice of Borrowing to each Bank and, in the case of any Agreed Rate Borrowing,
shall, after conferring with the Borrower and the Banks, and with the consent of
all Banks notify the Borrower not later than 2:00 p.m. (Dallas time) on the
Business Day prior to the Borrowing, of the Agreed Rate with respect to such
Borrowing. Each Bank shall, before 12:00 noon (Dallas time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at its address referred to in Section 10.02, in immediately available
funds, such Bank's ratable portion of such Borrowing. After the Agent's receipt
of such funds and upon fulfillment of the applicable conditions set forth in
Article IV, the Agent will transfer such funds to or at the direction of the
Borrower. Each Notice of Borrowing with respect to LIBOR Rate or Base Rate
Advances shall be irrevocable and binding on the Borrower. In no event shall
more than five Borrowings be outstanding at any time.
(b) Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the Agent such
Bank's Loan Percentage of such Borrowing, the Agent may assume that such Bank
has made such portion available to the Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such Loan Percentage available to the Agent, such Bank and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the
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case of such Bank, the lesser of (A) the Federal Funds Rate or (B) the Highest
Lawful Rate. If such Bank shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Bank's Advance as part of such
Borrowing for purposes of this Agreement.
(c) The failure of any Bank to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Bank of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the Advance to be made
by such other Bank on the date of any Borrowing.
(d) The Borrower shall execute and deliver to the Agent for each Bank to
evidence the Advances made by such Bank pursuant to Section 2.01 hereof, a
revolving credit note (each such note a "FACILITY NOTE" and more than one
Facility Note, the "FACILITY NOTES") in the amount of such Bank's Commitment.
Each Note shall be substantially in the form of EXHIBIT F with the blanks
appropriately filled, and shall mature on the Termination Date.
Section 2.03. FEES. (a) The Borrower agrees to pay to the Agent for the
account of each Bank a commitment fee on the daily average unused amount of each
such Bank's Commitment from the date hereof until the Revolving Loan Termination
Date, at the rate of 1/4 of 1% per annum, payable on November 20, 2000 for the
period from the Closing Date until such Distribution Date, and thereafter, for
each Collection Period on each Distribution Date and continuing until the
Revolving Loan Termination Date. The fees payable under this Section 2.03(a)
shall be calculated by the Agent on the basis of a 360-day year, for the actual
days (including the first day but excluding the last day) occurring in the
period for which such fee is payable. Each such determination by the Agent shall
be conclusive and binding for all purposes, absent manifest error.
(b) From time to time, the Borrower shall pay or cause First Investors to
pay the Agent an administrative agency fee in accordance with the terms of a
letter agreement, dated as of July 31, 1995, between the Agent and First
Investors.
Section 2.04. REDUCTION OF THE COMMITMENTS. The Borrower shall have the
right, upon at least three Business Days' notice to the Agent, to terminate in
whole or reduce ratably in part the unused portions of the respective
Commitments of the Banks, PROVIDED that each partial reduction shall be in the
aggregate amount of $1,000,000 or an integral multiple thereafter of $500,000.
Section 2.05. [RESERVED]
Section 2.06. INTEREST. The Borrower shall pay interest on the unpaid
principal amount of each Advance made by each Bank from the date of such Advance
until such principal amount shall be paid in full, at the times and at the rates
per annum set forth below:
(a) BASE RATE ADVANCES. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the lesser of (i) the Base Rate
in effect from time to time or (ii) the Highest Lawful Rate, payable on each
Distribution Date and on the Termination Date, PROVIDED that any amount of
principal which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable
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on demand, at a rate per annum equal at all times to the lesser of (i) two
percent (2%) per annum above the Base Rate in effect from time to time or (ii)
the Highest Lawful Rate.
(b) LIBOR RATE ADVANCES. During such periods as such Advance is a LIBOR
Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the lesser of (i) the sum of the LIBOR Rate for such
Interest Period for such Advance plus the LIBOR Rate Margin or (ii) the Highest
Lawful Rate, payable, together with additional interest due under Section 2.07
hereof, on the last day of such Interest Period and on the Termination Date;
PROVIDED that any amount of principal which is not paid when due (whether at
stated maturity, by acceleration or otherwise) shall bear interest, from the
date on which such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to the lesser of (i) two percent
(2%) per annum above the Base Rate in effect from time to time or (ii) the
Highest Lawful Rate.
(c) AGREED RATE ADVANCE. During such periods as such Advance is an Agreed
Rate Advance, a rate per annum equal at all times during such Interest Period
for such Advance to the lesser of (i) the Agreed Rate for such Interest Period
for such Advance or (ii) the Highest Lawful Rate, payable on the last day of
such Interest Period and on the Termination Date; PROVIDED that any amount of
principal which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to the lesser of (i) two percent (2%) above the
Base Rate in effect from time to time or (ii) the Highest Lawful Rate.
(d) INTEREST COMPUTATION. Computations of interest pursuant to this
Article II shall be made by the Agent with respect to Base Rate Advances or
Agreed Rate Advances based on the Prime Rate, on the basis of a year of 365 or
366 days, as the case may be, and with respect to Advances of any other type
(including Base Rate Advances based on the Federal Funds Rate), on the basis of
a year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest is payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
Section 2.07. ADDITIONAL INTEREST ON ADVANCES BASED ON THE LIBOR RATE.
Subject to Section 10.08 hereof, the Borrower shall pay to each Bank, so long as
such Bank shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities, additional interest
on the unpaid principal amount of each Advance of such Bank during such periods
as such Advance is a LIBOR Rate Advance or an Agreed Rate Advance based on the
LIBOR Rate, from the date of such Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the LIBOR Rate for such Interest Period for such Advance from
(ii) the rate obtained by dividing such LIBOR Rate by a percentage equal to 100%
minus the LIBOR Rate Reserve Percentage of such Bank actually incurred for such
Interest Period, payable on each date on which interest is payable on such
Advance pursuant to Section 2.06 hereof. A certificate as to amounts required to
be paid under this Section 2.07 submitted to the Borrower and the Agent by such
Bank and setting forth in reasonable detail the amount or amounts to be paid to
it hereunder shall be conclusive absent manifest error.
Section 2.08. INTEREST RATE DETERMINATION AND PROTECTION. (a) The rate of
interest for (i) each LIBOR Rate Advance specified in a Notice of Borrowing or a
Notice of Interest Conversion, shall be
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determined by the Agent two (2) Business Days before the first day of the
Interest Period applicable for such Advance and (ii) for each Agreed Rate
Advance specified in a Notice of Borrowing or a Notice of Interest Conversion
shall be determined by the Agent, the Banks and the Borrower as set forth in
Section 2.02(a) hereof. The Agent shall give prompt notice to the Borrower and
the Banks of the applicable interest rate determined by the Agent for purposes
of Section 2.06(a), (b) or (c) hereof, and each such determination by the Agent
shall be conclusive, absent manifest error.
(b) If, with respect to any LIBOR Rate Advances, the Majority Banks notify
the Agent that the LIBOR Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Majority Banks of making, funding or
maintaining their respective LIBOR Rate Advances for such Interest Period, the
Agent shall forthwith so notify the Borrower and the Banks, whereupon
(i) each LIBOR Rate Advance which has been effected will
automatically, on the last day of the then existing Interest Period
therefor, convert into a Base Rate Advance, and
(ii) the obligation of the Banks to make, or to convert
Advances into, LIBOR Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Banks that the circumstances
causing such suspension no longer exist.
(c) If the Borrower shall fail to deliver to the Agent a Notice of
Interest Conversion in accordance with Section 2.09 hereof, to select the
duration of any Interest Period for the principal amount outstanding under any
LIBOR Rate Advance or Agreed Rate Advance prior to the last day of the Interest
Period applicable to such Advance, the Agent will forthwith so notify the
Borrower and the Banks and such Advances will automatically, on the last day of
the then existing Interest Period therefor, convert into Base Rate Advances.
(d) Notwithstanding any other provision of this Agreement, if any Bank
shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for any Bank or its
LIBOR Lending Office to perform its obligations hereunder to make LIBOR Rate
Advances or Agreed Rate Advances based on the LIBOR Rate or to fund or maintain
LIBOR Rate Advances or Agreed Rate Advances based on the LIBOR Rate hereunder,
(i) the obligation of the Banks to make, or to convert Advances into, LIBOR Rate
Advances or Agreed Rate Advances based on the LIBOR Rate shall be suspended
until the Agent shall notify the Borrower and the Banks that the circumstances
causing such suspension no longer exist and (ii) the Borrower shall forthwith
prepay in full all LIBOR Rate Advances or Agreed Rate Advances based on the
LIBOR Rate of all Banks then outstanding, together with interest accrued
thereon, unless the Borrower, within three Business Days of notice from the
Agent, converts all LIBOR Rate Advances or Agreed Rate Advances based on the
LIBOR Rate of all Banks then outstanding into Base Rate Advances in accordance
with Section 2.09.
Section 2.09. VOLUNTARY INTEREST CONVERSION OF ADVANCES. The Borrower may
on any Business Day, upon the Borrower's oral or written notice ("NOTICE OF
INTEREST CONVERSION") given by the Borrower to the Agent not later than 11:00 A
M. (Dallas time) on the second Business Day prior to the date of the proposed
interest conversion in the case of LIBOR Rate or Agreed Rate Advances, (i)
convert all Advances of one Type into Advances of another Type, (ii) convert all
LIBOR Rate Advances for a
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specified Interest Period into LIBOR Rate Advances for a different Interest
Period or (iii) convert all Agreed Rate Advances for a specified Interest Period
into Agreed Rate Advances for a different Interest Period; PROVIDED, HOWEVER,
with respect to any oral Notice of Interest Conversion, the Borrower shall
promptly confirm such notice in writing; PROVIDED FURTHER that, any conversion
of any LIBOR Rate Advances into LIBOR Rate Advances for a different Interest
Period, or into Base Rate Advances, or of Agreed Rate Advances into Agreed Rate
Advances for a different Interest Period, or into Base Rate Advances shall be
made on, and only on, the last day of an Interest Period for such LIBOR Rate
Advances or Agreed Rate Advances, as the case may be; PROVIDED FURTHER that no
conversion into a LIBOR Rate Advance or an Agreed Rate Advance will be permitted
if at the time of receipt by the Agent of the Notice of Interest Conversion, a
Default or Event of Default shall have occurred and be continuing. Each such
Notice of Interest Conversion shall specify therein the requested (i) date of
such interest conversion, (ii) the Advances to be converted, and (iii) if such
interest conversion is into Advances constituting LIBOR Rate Advances or Agreed
Rate Advances, as the case may be, the duration of the Interest Period for each
such Advance. The Agent shall promptly deliver a copy of each Notice of Interest
Conversion to each Bank. Each Notice of Interest Conversion shall be irrevocable
and binding on the Borrower. In no event shall more than five (5) Interest
Periods be in effect at any time with respect to LIBOR Rate Advances.
Section 2.10. FUNDING LOSSES RELATING TO FIXED RATE ADVANCES. (a) If any
payment of principal of, or interest conversion of, any Fixed Rate Advance is
made other than on the last day of an Interest Period relating to such Advance,
as a result of a payment or conversion pursuant to Section 2.08 or Section 2.09,
or acceleration of the maturity of any Note in accordance with the terms hereof,
or for any other reason, the Borrower shall, upon demand by the Agent or any
Bank (with a copy of such demand to the Agent), pay to the Agent for the account
of such Bank any amounts required to compensate such Bank for any additional
losses, costs, or expenses which it may reasonably incur as a result of such
payment or interest conversion, including, without limitation, any loss, cost,
or expense incurred by reason of the liquidation or reemployment of the amounts
so prepaid or of deposits or other funds acquired by such Bank to fund or
maintain such Advance, as determined in accordance with Section 2.10(c).
(b) In the case of any Borrowing, the Borrower shall indemnify each Bank
against any loss, cost, or expense incurred by such Bank as a result of any
failure to fulfill on or before the date specified in a Notice of Borrowing the
applicable conditions set forth in Article IV, including, without limitation,
any loss, cost, or expense incurred by reason of the liquidation or reemployment
of the amounts so prepaid or of deposits or other funds acquired by such Bank to
fund the Advance to be made by such Bank as part of such Borrowing when such
Advance, as a result of such failure, is not made on such date, as determined in
accordance with Section 2.10(c).
(c) The losses, costs and expenses reasonably incurred by any Bank and
covered under Sections 2.10(a) and (b) hereof shall include, without limitation,
an amount equal to the excess, if any, as reasonably determined by each Bank of
(i) its cost of obtaining the funds for the Advance being paid, prepaid or
converted or not borrowed (based on the Fixed Rate applicable thereto) for the
period from the date of such payment, prepayment or conversion or failure to
borrow to the last day of the Interest Period for such Advance (or, in the case
of a failure to borrow, the Interest Period for the Advance which would have
commenced on the date of such failure to borrow) over (ii) the amount of
interest (as determined by the Bank in its sole judgment) that would be realized
by such Bank in reemploying the funds so paid, prepaid or converted or not
borrowed for such period or Interest Period, as the case may
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be, PROVIDED that each Bank will use its best efforts to reemploy such funds in
investments of similar quality.
(d) Any Bank demanding payment under this Section 2.10 shall deliver to
the Borrower and the Agent a statement reasonably setting forth the amount and
manner of determining such loss, cost, or expense, which statement shall be
conclusive and binding for all purposes, absent manifest error. Any demand for
compensation pursuant to this Section 2.10 must be made on or before 90 days
after a Bank incurs the expense, cost or economic loss referred to or such Bank
shall be deemed to have waived the right to such compensation.
ARTICLE III
INCREASED COSTS, TAXES, PAYMENTS AND PREPAYMENTS
Section 3.01. INCREASED COSTS; CAPITAL ADEQUACY. (a) If, due to either (i)
the introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of LIBOR Rate Advances or Agreed
Rate Advances based on the LIBOR Rate, included in the LIBOR Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Bank of agreeing to make or making, funding or
maintaining Fixed Rate Advances, then the Borrower shall from time to time, upon
demand by such Bank (with a copy of such demand to the Agent), pay to the Agent
for the account of such Bank additional amounts sufficient to compensate such
Bank for such increased cost.
(b) If any Bank determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank and that the amount of such capital is increased by or
based upon the existence of such Bank's Commitments to lend hereunder and other
commitments of this type, then, upon demand by such Bank (with a copy of such
demand to the Agent), the Borrower shall immediately pay to the Agent for the
account of such Bank, from time to time as specified by such Bank, additional
amounts sufficient to compensate such Bank or such corporation in the light of
such circumstances, to the extent that such Bank reasonably determines such
increase in capital to be allocable to the existence of such Bank's Commitment
to lend hereunder.
(c) A certificate as to amounts required to be paid under this Section
3.01 submitted to the Borrower and the Agent by such Bank and setting forth in
reasonable detail the amount or amounts to be paid to it hereunder shall be
conclusive and binding for all purposes, absent manifest error.
Section 3.02. PAYMENTS AND COMPUTATIONS. (a) The Borrower shall make each
payment hereunder and under the Notes not later than 11:00 a.m. (Dallas time) on
the day when due in U.S. dollars to the Agent at its address referred to in
Section 10.02 in immediately available funds (each such payment received after
such time on such due date to be deemed to have been made on the next succeeding
Business Day). The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or fees (to the extent
received by the Agent) ratably to the Banks for the
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account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Bank (to the extent received
by the Agent) to such Bank for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement;
PROVIDED, HOWEVER, that, if the Banks have not been notified in writing prior to
December 31, 2000 by the Borrower or the Agent of a Default or Event of Default,
then the payments of amounts due on December 31, 2000 to ▇▇▇▇▇ Fargo Bank Texas,
National Association as provided in the first proviso to the definition of
"Commitment" hereunder shall be for such Bank's own account and shall not be
paid ratably to any other Bank.
(b) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
PROVIDED HOWEVER, if such extension would cause payment of interest on or
principal of LIBOR Rate Advances or Agreed Rate Advances based on the LIBOR Rate
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
(c) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent the
Borrower shall not have so made such payment in full to the Agent, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the lesser of (i) the Federal Funds Rate or (ii) the Highest Lawful
Rate.
Section 3.03. TAXES. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 3.02, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Bank or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Bank or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.03) such Bank or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made
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hereunder or under the Notes or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or the Notes (hereinafter referred
to as "OTHER TAXES").
(c) The Borrower will indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
3.03) paid by such Bank or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Amounts payable pursuant to this indemnification shall be paid within
thirty (30) days from the date such Bank or the Agent (as the case may be) makes
written demand therefor.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 3.03 shall survive the payment in full of principal and interest
hereunder and under the Notes.
Section 3.04. SHARING OF PAYMENTS, ETC.. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of any Advance made by it (other than pursuant
to Sections 2.07, 2.10, 3.01 or 3.03) in excess of its ratable share of payments
on account of the Advances, such Bank shall forthwith purchase from the other
Banks such participations in the Advances made by them as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them, PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the purchase
price to the extent of such recovery together with an amount equal to such
Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 3.04 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation; and PROVIDED, FURTHER, that, if the Banks
have not been notified in writing prior to December 31, 2000 by the Borrower or
the Agent of a Default or Event of Default, then the payments of amounts due on
December 31, 2000 to ▇▇▇▇▇ Fargo Bank Texas, National Association as provided in
the first proviso to the definition of "Commitment" hereunder shall be for such
Bank's own account and shall not be paid ratably to any other Bank.
Section 3.05. VOLUNTARY PREPAYMENTS. The Borrower may at any time and from
time to time, prepay an Advance, in whole or in part, (a) in the case of a LIBOR
Rate Advance or an Agreed Rate Advance, upon at least two Business Days' written
notice, provided that in the event Borrower prepays Fixed Rate Advances in whole
or in part on a day which is not the last day of the Interest Period applicable
thereto, the provisions of Section 2.10 shall apply and (b) in the case of a
Base Rate Advance, upon same Business Day written notice; PROVIDED, HOWEVER,
that all such prepayments shall be made together with accrued interest to the
date of such prepayment on the principal amount prepaid without premium or
penalty thereon. Each notice of prepayment shall specify the prepayment date and
the principal amount of each Advance(s) (or portion thereof) to be prepaid, and
shall be irrevocable and the payment amount specified in such notice shall be
due and payable on the prepayment date described in such notice, together with
accrued and unpaid interest on the amount prepaid. Partial prepayments with
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respect to any Advance shall be in an aggregate principal amount of $500,000 or
greater integral multiples of $10,000.
Section 3.06. MANDATORY PREPAYMENTS. (a) If at any time the aggregate
outstanding principal balance of the Advances exceeds an amount equal to the
lesser of the Borrowing Base or the Commitments at such time, then the Borrower
shall immediately pay to the Agent for the ratable account of the Banks the
amount of such excess, together with accrued and unpaid interest thereon.
(b) Promptly after the receipt thereof, the Borrower will pay to the Agent
100% of the proceeds received by the Borrower from any transfer or assignment of
Receivables to First Investors under the Purchase Agreement, and upon receipt
thereof the Agent shall cause the Bank Collateral Agent to release the lien
covering such collateral created in its favor pursuant to the Security
Agreement.
(c) Promptly after the receipt thereof, the Borrower will pay to the
Agent, for the ratable benefit of the Banks, 100% of the net proceeds received
by the Borrower from any transfer or assignment of any Property other than
Receivables to the extent that such net proceeds exceeds $1,000,000 during any
calendar year.
Section 3.07. BANK COLLATERAL AGENT AS BORROWER'S PAYING AGENT. The Agent
and the Banks acknowledge that the Borrower has appointed the Bank Collateral
Agent as its paying agent under the Security Agreement and that all payments
required to be made by the Borrower under Sections 2.03, 2.06 or 2.07 or Article
III or any other section hereof shall be deemed to have been made by the
Borrower if such payments are made by the Bank Collateral Agent.
Section 3.08. SUBSTITUTION OF BANK. In the event the Borrower is required
to pay any material amounts to any Bank pursuant to Section 2.10, Section
3.01(a) or (b), or Section 3.03 hereof, the Borrower may give at least
forty-five (45) days prior notice to such Bank (with copies to the Agent) that
it wishes to seek one or more Assignees (which may be one or more of the Banks)
to assume the Commitments of such Bank and to purchase its outstanding Advances
and Notes and the Agent will use its best efforts to assist Borrower in
obtaining an Assignee, PROVIDED, HOWEVER, that if more than one Bank requests
that Borrower pay substantially and proportionately equal additional amounts
under any such sections and Borrower elects to seek an Assignee(s) to assume the
Commitments of any one of such affected Banks, Borrower must seek Assignee(s) to
assume the Commitments of all of such affected Banks. Each Bank requesting
compensation pursuant to Section 2.10, Section 3.01, or Section 3.03 hereof
agrees to sell its Commitments, Advances, Notes and interest in this Agreement
in accordance with Section 10.07 to any such Assignee for an amount equal to the
sum of the outstanding unpaid principal of and accrued interest on such Advances
and Notes PLUS all other fees and amounts (including, without limitation, any
compensation claimed by such Bank under any such sections) due such Bank
hereunder calculated, in each case, to the date such Commitments, Advances,
Notes and interest are purchased. Upon such sale or prepayment, said Bank shall
have no further Commitment or other obligation to Borrower hereunder or under
any Note.
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ARTICLE IV
CONDITIONS OF LENDING
Section 4.01. CONDITIONS PRECEDENT TO INITIAL ADVANCES. The obligation of
each Bank to make its initial Advance is subject to the condition precedent that
the Agent shall have received on or before the day of the initial Borrowing the
following, each dated such day, in form and substance satisfactory to the Agent
and (except for the Notes) in sufficient copies for each Bank:
(a) The Notes, duly executed by the Borrower and payable to the order of
each Bank.
(b) This Agreement, duly executed by the Borrower.
(c) The Security Agreement, duly executed by the Borrower, the Agent, the
Banks and the Bank Collateral Agent.
(d) The Pledge Agreement, duly executed by First Investors and the Agent.
(e) A copy of the Servicing Agreement, in form and substance acceptable to
the Agent and duly executed by the Borrower and the Servicer.
(f) A copy of the Purchase Agreement, duly executed by the parties
thereto.
(g) A certificate of the Secretary of each of the Borrower and First
Investors, certifying (1) the names and true signatures of its officers
authorized to sign each Loan Document and Receivables Document to which it is a
party and the notices and other documents to be delivered by it pursuant to any
such Loan Document or Receivables Document; (2) its By-laws and Articles or
Certificate of Incorporation as in effect on the date of such certification; and
(3) the resolutions of its Board of Directors approving and authorizing the
execution, delivery, and performance by it of each Loan Document and Receivables
Document to which it is a party, the notices and other documents to be delivered
by it pursuant to any such Loan Document or Receivables Document, and the
transactions contemplated thereunder.
(h) Certificates of appropriate officials as to the existence and good
standing of (i) the Borrower in its jurisdiction of incorporation and any and
all other jurisdictions where the Property owned or the business transacted by
the Borrower requires the Borrower to be qualified therein and where the failure
to be so qualified would have a Material Adverse Effect and (ii) each of FIARC
and First Investors in its jurisdiction of incorporation.
(i) A favorable opinion of ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., counsel for the
Borrower, FIARC and First Investors, substantially in the form of EXHIBIT G
hereto and as to such other matters as any Bank through the Agent may reasonably
request.
(j) Acknowledgment copies of proper Financing Statements (Form UCC-1),
duly filed on or before the Closing Date, naming the Borrower as the debtor and
the Bank Collateral Agent as the secured party, or other, similar instruments or
documents, as may be necessary or, in the opinion of the Agent, desirable under
the UCC of all appropriate jurisdictions or any comparable law to perfect the
Agent's and the Banks' security interests in all Receivables and related
security and the Collateral Account in which an interest may be assigned under
the Security Agreement.
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(k) Certified copies of Requests for Information or Copies (Form UCC-11)
(or a similar search report certified by a party acceptable to the Agent), dated
on or before the Closing Date, listing all effective financing statements which
name the Borrower, FIARC or First Investors (under its present name and any
previous name) as debtor and which are filed in the jurisdictions in which
filings were made pursuant to subsection (o) of this Section 4.01, together with
copies of such financing statements.
(l) The ALPI Insurance, the GAP Insurance, and the VSI Insurance are in
form and substance satisfactory to the Agent and the Agent shall have been named
as an additional insured with respect thereto.
(m) A copy of each of the Enterprise Agreement and the other documents
contemplated thereby, duly executed and delivered by the parties thereto, in
form and substance satisfactory to the Banks.
(n) There shall not have occurred a material adverse change since April
30, 2000 in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole or in the facts and information regarding such
entities as represented to date.
(o) The absence of any action, suit, investigation or proceeding pending
in any court or before any arbitrator or governmental authority that purports to
affect any transaction contemplated hereby, or that could have a material
adverse effect on the Borrower or its Subsidiaries or any transaction
contemplated hereby or on the ability of the Borrower and its Subsidiaries to
perform their obligations under the documents to be executed in connection with
the Facility.
(p) The absence of any material disruption of or a material adverse change
in conditions in the financial, banking or capital markets which the Agent and
Banc of America Securities LLC, in their sole discretion, deem material in
connection with the syndication of the Facility.
(q) Except as otherwise disclosed and consented to by the Banks, the
Borrower and its Subsidiaries shall be in compliance with all existing material
financial obligations.
(r) Payment of compensation due to the Banks, the Agent, and Banc of
America Securities LLC.
(s) Such other documents and instruments with respect to the transactions
contemplated hereby as the Agent may reasonably request.
Section 4.02. CONDITIONS PRECEDENT TO EACH BORROWING (INCLUDING THE
INITIAL BORROWING). The obligation of each Bank to make an Advance on the
occasion of each Borrowing (including the initial Borrowing) shall be subject to
the further conditions precedent that on the date of such Borrowing:
(a) the Agent shall have received a Notice of Borrowing in accordance with
the terms of this Agreement;
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(b) Credit Insurance is in full force and effect for all Receivables and
for the Receivables to be purchased with the proceeds of the Advance, and the
Agent shall not have received a notice of cancellation of the Credit Insurance
from any of the providers thereof;
(c) both before and after giving effect to the Borrowing, the aggregate
amount of outstanding Advances shall not exceed an amount equal to the lesser of
the Borrowing Base or the Commitments at such time;
(d) no Default or Event of Default shall exist hereunder; and
(e) the Agent shall have received such other approvals, information,
opinions or documents as any Bank through the Agent may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement, the Borrower
represents and warrants to the Banks (which representations and warranties will
survive the delivery of any Note and the making of any Advance) that:
Section 5.01. EXISTENCE. The Borrower is a corporation duly organized,
validly existing, and in good standing under the laws of Delaware and is duly
qualified or licensed to do business in all jurisdictions where the Property
owned or the business transacted by it makes such qualification necessary and
where the failure to be so qualified would have a Material Adverse Effect.
Section 5.02. POWER AND AUTHORIZATION. The Borrower is duly authorized and
empowered to execute, deliver, and perform its obligations under each Loan
Document and the Receivables Documents, and all corporate or other action on the
Borrower's part requisite for the due execution, delivery, and performance of
each Loan Document and the Receivables Documents, has been duly and effectively
taken. The Borrower is duly authorized and empowered to borrow under this
Agreement and all corporate action on the Borrower's part requisite for
borrowing by the Borrower hereunder has been duly and effectively taken.
Section 5.03. NO CONFLICT OR RESULTANT LIEN. The execution, delivery, and
performance by the Borrower of each Loan Document and the Receivables Documents,
the Borrowings hereunder by the Borrower as contemplated herein, and the
effectuation of the transactions contemplated by any Loan Document and the
Receivables Documents, do not and will not violate any provision of, or result
in a default under, the Borrower's Certificate of Incorporation or other charter
documents or By-laws or any material agreement to which the Borrower is a party,
or Governmental Requirement to which the Borrower is subject, or result in the
creation or imposition of any Lien upon any Property of the Borrower, and no
transaction contemplated by the Receivables Documents requires compliance with
any bulk sales act or similar law. No Default or Event of Default has occurred
and is continuing.
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Section 5.04. RECEIVABLES. The transfer and assignment contemplated under
the Purchase Agreement constitutes a sale of the Receivables from First
Investors to the Borrower and the beneficial interest in and title to the
Receivables shall not be part of the debtor's estate in the event of the filing
of a bankruptcy petition by or against First Investors under any bankruptcy law.
Immediately prior to the transfer and assignment contemplated under the Purchase
Agreement, First Investors had good and marketable title to each Receivable free
and clear of all Liens, encumbrances, security interests, and rights of others
and, immediately upon the transfer thereof, the Borrower shall have good and
marketable title to each Receivable, free and clear of all Liens, encumbrances,
security interests, and rights of others; and the transfer has been perfected
under the UCC.
Section 5.05. NO CONSENT. No authorization or approval or other action by,
and no notice to or filing with, any Person or any Governmental Authority is
required for the due execution, delivery, and performance by the Borrower of
this Agreement or any other Loan Document or the Receivables Documents, the
Borrowings hereunder as contemplated herein, or the effectuation of the
transactions contemplated under any Loan Document or Receivables Document.
Section 5.06. BINDING OBLIGATIONS. Each Loan Document and Receivable
Document constitutes the legal, valid and binding obligation of the Borrower
enforceable against it in accordance with its respective terms, except as such
enforceability may be (a) limited by the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditor's rights generally, and (b) subject to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding at equity or at law).
Section 5.07. FINANCIAL CONDITION. The certified consolidated audited
balance sheet of FIS Group and its Subsidiaries as at April 30, 2000, and the
related certified consolidated statements of income and stockholder's equity and
cash flow statements of FIS Group and its Subsidiaries for the Borrower's annual
fiscal period ending April 30, 2000 and the unaudited consolidated balance sheet
of FIS Group and its Subsidiaries as at July 31, 2000 and the related unaudited
consolidated statements of income and changes in stockholders' equity and cash
flow statements for the fiscal quarter then ended, certified by an officer of
FIS Group, copies of which have been furnished to each Bank, have been prepared
in accordance with GAAP and in accordance with FIS Group's and each Subsidiary's
accounting practices consistently applied, and certified by a Responsible
Officer as presenting fairly the consolidated financial condition of FIS Group
and its Subsidiaries as at such date and the results of the operations of FIS
Group and its Subsidiaries for the period ended on such date, all in accordance
with GAAP, and that, in the case of FIS Group and its Subsidiaries on a
consolidated basis, since April 30, 2000, and in the case of the Borrower, since
April 30, 2000, there has been no material adverse change in its financial
condition, business, Properties or operations. The Borrower has no obligations,
liabilities, or Debts (including, without limitation, contingent and indirect
liabilities and obligations) except for Permitted Debt.
Section 5.08. LITIGATION. There are no actions, suits, or proceedings
pending or, to the knowledge of the Borrower, threatened against or affecting
the Borrower, FIARC or First Investors, or the Properties of the Borrower, FIARC
or First Investors, which could, individually or in the aggregate, reasonably be
determined to have a Material Adverse Effect.
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Section 5.09. USE OF PROCEEDS; MARGIN STOCK. The proceeds of each Advance
will be used by the Borrower to purchase Receivables from First Investors. The
Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock, and no proceeds of any Advance will be used
(A) to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock; (B) to reduce or retire any
Debt which was originally incurred to purchase or carry any such Margin Stock;
(C) for any other purpose which might constitute this transaction a "purpose
credit" within the meaning of Regulation T, U or X; or (D) to acquire any
security of any Person who is subject to Sections 13 and 14 of the Securities
Exchange Act. Neither the Borrower, nor any Person acting on behalf of the
Borrower, has taken or will take any action which might cause any Loan Document
or Receivables Document to violate Regulation T, U or X or any other regulation
of the Board of Governors of the Federal Reserve System.
Section 5.10. TAXES; GOVERNMENTAL CHARGES. The Borrower has filed or
caused to be filed all federal, state, and foreign income tax returns which are
required to be filed, and has paid or caused to be paid all taxes as shown on
such returns or on any assessment received by it to the extent that such taxes
have become due.
Section 5.11. FULL DISCLOSURE. All information heretofore or
contemporaneously furnished by or on behalf of the Borrower or First Investors
in writing to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such
information hereafter furnished by or on behalf of the Borrower or First
Investors in writing to the Agent or any Bank will be, (i) true and accurate in
all material respects on the date as of which such information is dated or
certified and (ii) not incomplete by omitting to state any material fact
necessary to make such information not misleading in light of the circumstances
under which such information was provided. There is no fact known to the
Borrower or First Investors which is reasonably likely to have a Material
Adverse Effect, which has not been disclosed herein or in such other written
documents, information or certificates furnished to the Agent and the Banks for
use in connection with the transactions contemplated hereby.
Section 5.12. INVESTMENT COMPANY ACT. Neither First Investors nor the
Borrower is an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended.
Section 5.13. ENVIRONMENTAL MATTERS. Each of the Borrower and First
Investors is in compliance with all Environmental Protection Statutes.
Section 5.14. CAPITAL STRUCTURE. The Borrower has no Subsidiaries. All of
the issued and outstanding shares of capital stock of the Borrower are fully
paid and nonassessable and are owned beneficially and of record by First
Investors. The Borrower has not granted or issued, or agreed to grant or issue,
any options, warrants or similar rights to any Person to acquire any shares of,
or other securities convertible into, the Borrower's capital stock.
Section 5.15. COMPLIANCE WITH LAW. The business and operations of the
Borrower as conducted at all times have been and are in compliance in all
material respects with all applicable Governmental Requirements.
Section 5.16. ERISA. Neither the Borrower nor any ERISA Affiliate has ever
established, maintained, contributed to or been obligated to contribute to, and
neither the Borrower nor any ERISA
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Affiliate has any liability or obligation with respect to any PBGC Plan,
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any ERISA
Affiliate has any present intention to establish a PBGC Plan, a Multiemployer
Plan or a Multiple Employer Plan. Neither the Borrower nor any ERISA Affiliate
has ever established, maintained, contributed to or been obligated to contribute
to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) which
provides benefits to retired employees (other than as required by Section 601 of
ERISA). The Borrower and any ERISA Affiliate are in compliance in all material
respects with all applicable provisions of ERISA and the Code with respect to
each Plan, including the fiduciary provisions thereof, and each Plan is, and has
been, maintained in compliance with ERISA and, where applicable, the Code. Full
payment when due has been made of all amounts which the Borrower or any ERISA
Affiliate is required under the terms of each Plan or applicable law to have
paid as contributions to such Plan as of the date hereof.
Section 5.17. NO DEFAULT OR EVENT OF DEFAULT. No event has occurred or is
continuing which constitutes a Default or Event of Default hereunder.
Section 5.18. PERMITS AND LICENSES. All material permits, licenses and
other governmental authorizations necessary for the Borrower to carry on its
business have been obtained and are in full force and effect and the Borrower is
not in material breach of the foregoing. The Borrower owns or possesses adequate
licenses or other valid rights to use United States trademarks, trade names,
service marks, copyrights, patents and applications therefore which are material
to the conduct of the business, operations or financial condition of the
Borrower.
Section 5.19. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of the Borrower in each Loan Document and the
Receivables Documents shall survive the delivery of the Notes and the making of
any Advance, and shall continue after the repayment of the Notes and the
termination of the Commitments, and any investigation at any time made by or on
behalf of the Agent or any Bank shall not diminish any Bank's right to rely
thereon.
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, the Borrower agrees, unless the Majority Banks shall
otherwise consent in writing, as follows:
Section 6.01. COMPLIANCE WITH LAWS, ETC. The Borrower will comply in all
material respects with all applicable laws (including, without limitation, all
Environmental Protection Statutes), rules, regulations and orders of any
Governmental Authority.
Section 6.02. REPORTING AND NOTICE REQUIREMENTS. The Borrower will furnish
or cause to be furnished to the Agent for delivery to the Banks:
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within forty-five (45) days after the end of each fiscal quarter of
FIS Group (including the last quarter), consolidating balance sheets of
FIS Group and its Subsidiaries as of the end of such quarter and
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consolidating statements of income and stockholder's equity and cash flow
statements of FIS Group and its Subsidiaries for the period commencing at
the end of the previous fiscal year of FIS Group and ending with the end
of such fiscal quarter, setting forth in each case in comparative form
corresponding consolidating figures for the corresponding period in the
immediately preceding fiscal year of FIS Group, all in reasonable detail
and certified by a Responsible Officer as presenting fairly the
consolidating and consolidated financial position of FIS Group and its
Subsidiaries as of the date indicated and the results of their operations
for the period indicated in conformity with GAAP, consistently applied,
subject to changes resulting from year-end adjustments.
(b) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within one hundred twenty (120) days after the end of each fiscal
year of FIS Group, audited consolidated statements of income and
stockholder's equity and cash flow statements of FIS Group and its
Subsidiaries for such fiscal year, and audited consolidated balance sheets
of FIS Group and its Subsidiaries as of the end of such fiscal year,
setting forth in each case in comparative form corresponding consolidated
figures from the immediately preceding audit, together with unaudited
consolidating schedules to such financial statements, all in reasonable
detail and satisfactory in form, substance, and scope to the Agent,
together with the unqualified opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or such
other independent certified public accountants of recognized national
standing as are selected by FIS Group and satisfactory to the Agent,
stating that such financial statements fairly present the consolidated
financial position of FIS Group and its Subsidiaries as of the date
indicated and the consolidated results of their operations and changes in
financial position for the period indicated in conformity with GAAP,
consistently applied (except for such inconsistencies which may be
disclosed in such report), and that the audit by such accountants in
connection with such consolidated financial statements has been made in
accordance with GAAP.
(c) NOTICE OF DEFAULT. Immediately after any officer of the Borrower
knows or has reason to know that any Default or Event of Default has
occurred, a written statement of such officer of the Borrower setting
forth the details of such Default or Event of Default and the action which
the Borrower has taken or proposes to take with respect thereto.
(d) NOTICE OF LITIGATION. Promptly after any officer of the Borrower
obtaining knowledge of the commencement thereof, notice of any litigation,
legal, administrative, or arbitral proceeding, investigation, or other
action of any nature against FIS Group or the Borrower which could
reasonably be expected to have a Material Adverse Effect, and upon request
by the Agent or any Bank, details regarding such litigation which are
satisfactory to the Agent or such Bank.
(e) SECURITIES FILINGS. Promptly after the sending or filing thereof
and in any event within fifteen (15) days thereof, copies of all reports
which FIS Group sends to any of its security holders, and copies of all
reports (including each regular and periodic report) and each registration
statement or prospectus which FIS Group or the Borrower files with the
Securities and Exchange Commission or any national securities exchange.
(f) ERISA NOTICES. Promptly after the filing or receiving thereof,
copies of all reports and notices which the Borrower files under ERISA
with the Internal Revenue Service or
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the Pension Benefit Guaranty Corporation or the U.S. Department of Labor
or which the Borrower receives from such Governmental Authorities or
Pension Benefit Guaranty Corporation.
(g) COMPLIANCE CERTIFICATE. On or before the fifteenth day of each
calendar month during the term of this Agreement, a Compliance Certificate
of the Servicer and the Borrower substantially in the form of the Debtor's
Report and Servicer Certificate contemplated by Section 2.02(c) of the
Servicing Agreement (a copy of which shall also be delivered to the Bank
Collateral Agent) which shall demonstrate compliance with the financial
covenants set forth in Section 7.13 as of the end of the preceding
Collection Period and for the three immediately preceding Collection
Periods, shall set forth the Borrowing Base and Uninsured Credit Losses,
each determined as of the end of the preceding Collection Period, together
with a certification of such amounts by a Responsible Officer of the
Borrower, and shall state that no Default or Event of Default has occurred
or is continuing, or if any such condition or event exists, specifying the
nature and period of existence thereof and what action the Borrower has
taken or is taking with respect thereto.
(h) ERISA NOTICES, INFORMATION AND COMPLIANCE.
(i) As soon as possible and in any event within ten days after
the Borrower or any of its ERISA Affiliates knows of the occurrence
of any of the following, a certificate of the chief financial
officer of the Borrower (or, if applicable, of the ERISA Affiliate)
setting forth the details as to such occurrence and the action, if
any, which the Borrower or ERISA Affiliate is required or proposes
to take, together with any notices required or proposed to be given
or filed with or by the Borrower, an ERISA Affiliate, the Pension
Benefit Guaranty Corporation, or plan administrator with respect
thereto:
(A) the establishment or adoption of any PBGC Plan,
Multiemployer Plan or Multiple Employer Plan by the Borrower
or any ERISA Affiliate on or after the date hereof (a "FUTURE
PLAN");
(B) the occurrence of an ERISA Event with respect to any
Future Plan;
(C) the existence of an accumulated funding deficiency
with respect to any Future Plan;
(D) the making of an application to the Secretary of the
Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or
extension of any amortization period under Section 412 of the
Code with respect to any Future Plan;
(E) the institution of a proceeding pursuant to Section
515 of ERISA to collect delinquent contributions from the
Borrower or an ERISA Affiliate with respect to a Future Plan;
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(F) the occurrence of any "prohibited transaction" as
described in Section 406 of ERISA or in Section 4975 of the
Code, in connection with any Plan or any trust created
thereunder; or
(G) the failure to pay when due all amounts that the
Borrower or any ERISA Affiliate is required under the terms of
each Plan or applicable law to have paid as a contribution to
such Plan; and
(ii) As soon as possible and in any event within ten days from
receipt or, if applicable, filing, a complete copy of the annual
report (Form 5500) of each Plan required to be filed with the
Internal Revenue Service, copies of any other reports or notices
which the Borrower or an ERISA Affiliate files with the Internal
Revenue Service, Pension Benefit Guaranty Corporation or the United
States Department of Labor or which the Borrower or an ERISA
Affiliate receives from such Governmental Authority, and copies of
any notice, complaint or other documentation of any pending or
threatened lawsuit or claim relating in any respect to any Plan
established or maintained by the Borrower or an ERISA Affiliate or
to which the Borrower or an ERISA Affiliate contributes which may
have a Material Adverse Effect on the Borrower or an ERISA
Affiliate.
(i) DELIVERY OF NOTICES FROM SERVICER. Promptly after the receipt
thereof, a copy of any notice received by the Borrower from the Servicer
under the Servicing Agreement with respect to a termination or proposed
termination thereof or a default thereunder.
(j) DELIVERY OF ENTERPRISE NOTICES. A copy of (i) any notice
received by FIARC from Enterprise or any other Person under the Enterprise
Agreement promptly upon receipt thereof and (ii) any notice FIARC delivers
pursuant to Section 3.2(l) of the Enterprise Agreement promptly upon the
delivery or sending thereof.
(k) HEDGE POSITION REPORTING. Within thirty (30) days after the end
of each fiscal quarter of the Borrower (including the last quarter), a
report of the Borrower's hedge position identifying all hedge agreements
to which the Borrower is a party.
(l) NOTICE WITH RESPECT TO CERTAIN ENTERPRISE EVENTS. Promptly upon
occurrence, notice of any modification or amendment to the Enterprise
Agreement, any Potential Termination Event under the Enterprise Agreement
and notice of First Investor's being required to accept re-assignment of
Enterprise's interest in any uncollected Receivables previously sold,
transferred and assigned to Enterprise in an aggregate amount of $500,000
or more within any 60 day period.
(m) OTHER INFORMATION. Such other information respecting the
condition or operations, financial or otherwise, of the Borrower as any
Bank through the Agent may from time to time reasonably request.
(n) NOTICE OF NONINSURANCE. The Borrower shall at all times maintain
Credit Insurance with respect to all Obligors and shall notify Agent
promptly in the event that the Borrower does not receive a certificate
verifying insurance with respect to any Receivable from each of the
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providers of the Credit Insurance on or before forty-five (45) days after
the date that the Servicer enters the Receivable into its tracking system.
Section 6.03. TAXES AND LIENS. The Borrower will pay and discharge, or
will cause to be paid and discharged, promptly all taxes, assessments, and
governmental charges or levies imposed upon the Borrower or upon the income of
any Property of the Borrower as well as all claims of any kind (including,
without limitation, claims for labor, materials, supplies, and rent) when due.
Section 6.04. MAINTENANCE OF PROPERTY. The Borrower will at all times
maintain, preserve, protect, and keep, or cause to be maintained, preserved,
protected, and kept, its Property in good repair, working order, and condition
(ordinary wear and tear excepted) and, from time to time, will make, or cause to
be made, all repairs, renewals, replacements, extensions, additions,
betterments, and improvements to its Property as are appropriate, so that (a)
the Borrower maintains its current line of business, and (b) the business
carried on in connection therewith may be conducted properly and efficiently at
all times.
Section 6.05. RIGHT OF INSPECTION. The Borrower will permit any officer,
or employee of, or agent designated by, the Agent or any Bank to visit and
inspect any of the Properties of the Borrower, examine the Borrower's corporate
books or the Borrower's or First Investor's financial records, take copies and
extracts therefrom, and discuss the affairs, finances, and accounts of the
Borrower and First Investors with the Borrower's officers or certified public
accountants, all at such reasonable times and as often as the Agent or any Bank
may reasonably desire.
Section 6.06. PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CREDIT
INSURANCE. The Borrower will, at its expense, timely and fully perform and
comply with, or cause to be timely and fully performed and complied with, all
material provisions, covenants and other promises required to be observed by it
under the Receivables, the Receivables Documents and the Credit Insurance.
Section 6.07. FURTHER ASSURANCES. The Borrower shall deliver to the Agent
within 90 days after the beginning of each calendar year, beginning with the
calendar year 2000, an opinion of independent counsel of the Borrower dated as
of a date during such 90-day period, either (a) stating that, in the opinion of
such counsel, (1) such action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and re-filing of financing
statements, continuation statements or other instruments or documents as is
necessary to preserve and protect the interest of the Agent and the Banks in and
to the Receivables and reciting the details of such action or referring to prior
opinions of counsel in which such details are given, and (2) all financing
statements, continuation statements and any other necessary documents have been
executed and filed that are necessary fully to preserve and protect the
perfected interest of the Agent and the Banks in and to the Receivables, and
reciting the details of such filings or referring to prior opinions of counsel
in which such details are given, or (b) stating that, in the opinion of such
counsel, no such action is necessary to preserve and protect such interest.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, the Borrower agrees, without the written consent of the
Majority Banks, as follows:
Section 7.01. LIENS, ETC. The Borrower will not grant, permit, create or
suffer to exist any Lien, upon or with respect to any of its Properties,
including, without limitation, the Receivables, whether now owned or hereafter
acquired, other than Permitted Liens and Liens created under the Security
Agreement; PROVIDED that, anything in the foregoing or elsewhere in any Loan
Document to the contrary notwithstanding, the Borrower will not enter into any
agreement that (i) prohibits the creation or assumption of any Lien upon any
Property of the Borrower in favor of any Person, including without limitation
the Banks or (ii) requires any obligation of the Borrower to be secured if any
obligation of the Borrower to the Banks is secured in favor of another Person,
including without limitation the Banks.
Section 7.02. DEBT. The Borrower will not create or suffer to exist any
Debt except as set forth below, all of which shall be "PERMITTED DEBT":
(a) Debt of the Borrower to the Agent and the Banks and to the Bank
Collateral Agent evidenced by any Loan Document (including any increase thereof
contemplated by the second proviso to the definition of the term "Commitment"
contained in this Agreement);
(b) Debt of the Borrower for fees payable to the Servicer under the
Receivables Documents;
(c) Debt represented by the Distributions on the terms and conditions set
forth in the Security Agreement; and
(d) Debt of the Borrower under any interest rate swap or other exchange
agreement entered into with Bank of America in a notional amount up to
$100,000,000 and which ▇▇▇▇▇▇ interest payable under this Facility; PROVIDED,
that any portion of such notional amount in excess of the notional amount of
this Facility shall be assigned to and assumed by First Investors.
(e) Intercompany obligations to First Investors for Borrower's reasonable
net rent allocation, reasonable management fees and dividends declared.
Section 7.03. RESTRICTED PAYMENTS. If a Default or Event of Default has
occurred and is continuing, or would exist after the making of any payments
pursuant to this Section 7.03, the Borrower will not declare or make any
dividend payment or other distribution of Properties, cash, rights, obligations,
or securities on account of any shares of any class of capital stock of the
Borrower, or purchase, redeem, retire, or otherwise acquire for value any shares
of any class of capital stock of the Borrower or any warrants, rights, or
options to acquire any such shares, now or hereafter outstanding.
Section 7.04. MERGERS; CONSOLIDATIONS. The Borrower will not merge or
consolidate with or into, or convey, transfer, lease, or otherwise dispose of
(whether in one transaction or in a series of transactions) any of its assets
(whether now owned or hereafter acquired) other than (i) to pay expenses
incurred in the ordinary course of business, (ii) in respect of the
Distributions, or (iii) the transfer and assignment of Receivables to First
Investors upon payment on the principal balance outstanding on the Notes of an
amount equal to the Purchase Amount.
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Section 7.05. INVESTMENTS, LOANS, AND ADVANCES. Except as provided under
the other Loan Documents and the Receivables Documents, the Borrower will not
make or permit to remain outstanding any Investment, endorse, or otherwise be or
become contingently liable directly or indirectly, in connection with the
obligations, stock, or dividends of, or own, purchase or acquire any stock,
obligations, or securities of, or any other interest in, or make any capital
contribution to, any Person, or otherwise make, incur, create, assume, or suffer
to exist any contingent liability or any Investment of the Borrower to purchase
or acquire any assets.
Section 7.06. SALE OR OTHER DISPOSITION OF ASSETS. The Borrower will not
sell, assign, lease, transfer or otherwise dispose of (whether in one
transaction or in a series of transactions) any part of its Property (whether
now owned or hereafter acquired) to any Person other than (i) to pay expenses
incurred in the ordinary course of business, (ii) in respect of the
Distributions, or (iii) the transfer and assignment of Receivables to First
Investors upon payment on the principal balance outstanding on the Notes of an
amount equal to the Purchase Amount.
Section 7.07. USE OF PROCEEDS. The Borrower will not use, nor permit the
use of, all or any portion of any Advance for any purpose except as described in
Section 5.09 hereof.
Section 7.08. TRANSACTIONS WITH AFFILIATES. Except as provided under the
Loan Documents and the Receivables Documents and except in respect of any
management fee to be paid by the Borrower to First Investors, the Borrower will
not directly or indirectly enter into any transaction with any Affiliate
(including, without limitation, any transaction involving the payment of
management fees or directors' fees to any Affiliate), except for transactions
(including any loans or advances by or to any Affiliate otherwise in compliance
under the Agreement) in good faith, the terms of which are fair and reasonable
to the Borrower, and are at least as favorable as the terms which could be
obtained by the Borrower in a comparable transaction made on an arm's-length
basis between unaffiliated parties.
Section 7.09. OTHER BUSINESS. The Borrower will not engage in any business
or enterprise or enter into any material transaction other than as contemplated
by the Loan Documents and the Receivables Documents.
Section 7.10. ISSUANCE OF SHARES. The Borrower will not issue, sell, or
otherwise dispose of any shares of its capital stock or other equity securities,
or rights, warrants, or options to purchase or acquire any shares or equity
securities, other than as otherwise expressly permitted by other Sections of
this Agreement.
Section 7.11. ERISA. The Borrower shall not and shall not permit any ERISA
Affiliate to:
(a) do any of the following, which in the aggregate would reasonably
be expected to have a Material Adverse Effect:
(i) engage in any transaction which it knows or has reason to
know could result in a civil penalty assessed pursuant to Section
502(i) of ERISA or a tax imposed by Section 4975 of the Code;
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(ii) fail to make any payments when due to any Multiemployer
Plan that the Borrower or an ERISA Affiliate may be required to make
under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto;
(iii) incur withdrawal liability under ERISA to a
Multiemployer Plan;
(iv) voluntarily terminate or, in the case of a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, withdraw from
any Plan if such termination or withdrawal could result in the
imposition of a Lien on the Borrower or an ERISA Affiliate under
Section 4068 of ERISA;
(v) fail to make any required contribution when due to any
Plan subject to Section 412(n) of the Code that with the passage of
time would likely result in a Lien upon the properties or assets of
the Borrower or an ERISA Affiliate;
(vi) adopt any amendment to a Plan the effect of which is to
increase the "current liability" under the Plan as defined in
Section 302(d)(7) of ERISA;
(vii) act or fail to act, and, as a result thereof, an event
similar to any of those referred to in clauses (i) to (vi) would
likely occur under the applicable laws of a foreign country; or
(b) permit the present value of all benefits (irrespective of
whether vested) under all Plans that have assets less than benefits
(irrespective of whether vested), to exceed the "current value" as defined
in Section 3(26) of ERISA of the assets of such Plans by an aggregate
amount of ten thousand dollars ($10,000.00); or
(c) permit the adoption, implementation or amendment of any unfunded
deferred compensation agreement or other arrangement of a similar nature
irrespective of whether subject to the funding requirements of ERISA which
could reasonably be expected to have a Material Adverse Effect.
Section 7.12. ACQUISITIONS. Except as provided under the Receivables
Documents, the Borrower will not acquire by purchase, lease (including, without
limitation, assumption of any lease) or merger any of the assets, Property,
capital stock or other equity interests of any other Person.
Section 7.13. CERTAIN FINANCIAL TESTS.
(a) The Borrower will not permit the ratio of Earnings Before Interest,
Fees and Distributions to the sum of Loan Interest Expense PLUS Fee Expense, as
determined as of each Determination Date for the immediately preceding three
Collection Periods, to be less than 1.40 to 1.00.
(b) The Borrower will not permit the Credit Loss Percentage, as determined
as of each Determination Date, to exceed 5.0%.
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(c) The Borrower will not permit the number of Delinquent Receivables to
exceed 8.5% of the average number of Receivables as determined as of each
Determination Date for the immediately preceding three Collection Periods.
Section 7.14. EXTENSION OR AMENDMENT OF RECEIVABLES AND OTHER DOCUMENTS.
The Borrower will not, and will not permit the Servicer to, (a) extend, amend or
otherwise modify the terms of (i) any Receivable (PROVIDED that an extension,
amendment or modification permitted under Section 4.02 of the Servicing
Agreement shall not be prohibited by this Section 7.14), (ii) the Credit
Insurance, (iii) the Receivables Documents, or (iv) the Borrower's Certificate
of Incorporation or Bylaws.
Section 7.15. LETTER OF GUARANTY. The Borrower will not permit the
aggregate Principal Balance of the Receivables with respect to which the
Borrower has accepted a guaranty of delivery of the certificate of title from an
Originator to exceed $250,000 at any one time.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. EVENTS OF DEFAULT. If any of the following events (each an
"EVENT OF DEFAULT") shall occur:
(a) The Borrower shall fail to pay any principal of any Note when
the same becomes due and payable; or
(b) The Borrower shall fail to pay interest on any Note or fees or
other amounts due under the Note or this Agreement or any other Loan
Document, or First Investors shall fail to pay any amounts due under the
Pledge Agreement, when the same becomes due and payable and such failure
shall remain unremedied for three days; or
(c) Any representation or warranty made by the Borrower (or any of
its officers) under or in connection with any Loan Document or the
Receivables Documents, or by First Investors (or any of its officers)
under or in connection with the Pledge Agreement, shall prove to have been
incorrect in any material respect when made; or
(d) The Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 6.02 or in Article VII; or
(e) The Borrower shall fail to perform or observe any term, covenant
or agreement contained in any Loan Document (other than those set forth in
(a), (b), (c) and (d) above) or the Receivables Documents on its part to
be performed or observed, or First Investors shall fail to perform or
observe any term, covenant, or agreement contained in the Pledge Agreement
on its part to be performed or observed, if such failure shall remain
unremedied for thirty (30) days after the occurrence of such event; or
(f) The Borrower shall fail to pay any principal of or premium or
interest on any Debt which is outstanding in a principal amount of at
least $10,000 in the aggregate when the
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same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event
constituting a default (however defined) shall occur or condition shall
exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in
such agreement or instrument; or
(g) The Borrower shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 30 days, or any of
the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower shall take
any corporate action to authorize any of the actions set forth above in
this subsection (g); or
(h) Any final judgment or order for the payment of money which,
individually or in the aggregate, shall be in excess of $10,000 at any
time, shall be rendered against the Borrower and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment
or order or (ii) there shall be any period of thirty (30) consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(i) The balance in the Collateral Account for any two consecutive
Distribution Dates (after making any Distributions therefrom) shall be
less than the Specified Collateral Account Balance; or
(j) The credit quality of any of the providers of the ALPI
Insurance, the GAP Insurance, or the VSI Insurance shall at any time be
rated as less than "A-" by A. M. Best Company; or
(k) Uninsured Credit Losses determined as of the last day of each
month during this Agreement for the twelve-month period ending on such
date shall exceed $200,000; PROVIDED that if First Investors shall have
repurchased any Receivable for the amount equal to the outstanding
Purchase Amount, such Receivable shall not be included as an Uninsured
Credit Loss for purposes of this calculation; or
(l) A material breach (i) by the Servicer of its obligations under
the Servicing Agreement, (ii) by First Investors of its obligations under
(A) the Purchase Agreement, (B) any interest rate swap or other exchange
agreement which ▇▇▇▇▇▇ interest payable under the
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Enterprise Agreement, or (C) any interest rate cap on the interest rate
payable by FIARC under the Enterprise Agreement which offsets a counter
position of FIARC under such interest rate position, (iii) by the Bank
Collateral Agent of its obligations under the Loan Documents, or (iv) by
the provider of the ALPI Insurance, the GAP Insurance or the VSI Insurance
under such Credit Insurance shall occur and be continuing; or
(m) First Investors shall cease to own a majority of the issued and
outstanding stock of the Borrower; or
(n) With respect to any Future Plan (as such term is defined in
Section 6.02(h) hereof), other than a Multiemployer Plan within the
meaning of Section 4001(a)(3) of ERISA, (1) such Future Plan shall fail to
satisfy the minimum funding standard or a waiver of such standard or
extension of any amortization period is sought under Section 412 of the
Code; (2) such Future Plan is or is proposed to be terminated and as a
result thereof liability in excess of $1,000,000 can be asserted under
Title IV of ERISA as against the Borrower or ERISA Affiliate; (3) such
Future Plan shall have an unfunded current liability in excess of
$1,000,000; or (4) there has been a withdrawal from any such Future Plan
and as a result liability in excess of $1,000,000 can be asserted under
Section 4062(e) or 4063 of ERISA against the Borrower or any ERISA
Affiliate; or, with respect to any Future Plan that is a Multiemployer
Plan under Section 4001(a)(3) of ERISA, such Future Plan is insolvent or
in reorganization or the Borrower or an ERISA Affiliate has withdrawn, or
proposes to withdraw, either totally or partially, from such Future Plan
and, in any case, in the opinion of the Agent, the Borrower or its ERISA
Affiliate might reasonably be anticipated to incur a liability which would
have a Material Adverse Effect on the business, operations, conditions
(financial or otherwise) or prospects of the Borrower or ERISA Affiliates;
or with respect to any Plan other than a Future Plan, the Borrower or its
ERISA Affiliate could reasonably be anticipated to incur a liability which
would have a Material Adverse Effect on the business, operations or
conditions (financial or otherwise) or prospects of the Borrower or its
ERISA Affiliates; or
(o) The Agent shall have received notice of cancellation of any of
the Credit Insurance and such Credit Insurance has not been reinstated or
replaced in form and substance satisfactory to the Agent within a period
of 30 days after receipt of such notice; or
(p) (i) The Servicer's obligations shall have been terminated
pursuant to Section 5.02 of the Servicing Agreement and a successor
servicer shall not have been appointed and accepted such appointment
within 45 days of the Servicer's receipt of notice of termination, (ii)
the Servicer shall have terminated its obligations pursuant to Section
5.08 of the Servicing Agreement, or (iii) the Servicer's obligation to
accept new Receivables shall have terminated pursuant to Article VI of the
Servicing Agreement and Receivables shall have terminated pursuant to
Article VI of the Servicing Agreement and a successor servicer
satisfactory to the Agent shall not have been appointed and accepted such
appointment prior to the effective date of such termination; or
(q) Aggregate claims submitted under the VSI Insurance and GAP
Insurance determined as of the last day of each month during this
Agreement for the twelve-month period ending on such date shall exceed
$750,000; or
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(r) the occurrence of a "Termination Event", other than with respect
to the events specified in Section 6.1(f), (j), (t), or (u) of the
Enterprise Agreement;
then, and in any such event, the Agent (i) shall send notice of the occurrence
of such Default or Event of Default to the Borrower and the Bank Collateral
Agent, (ii) shall at the request, or may with the consent, of the Majority
Banks, by notice to the Borrower, declare the obligation of each Bank to make
Advances to be terminated, whereupon the same shall forthwith terminate, and
(iii) shall at the request, or may with the consent, of the Majority Banks, by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; PROVIDED,
HOWEVER, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the United States Bankruptcy Code, (A) the
obligation of each Bank to make Advances shall automatically be terminated and
(B) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE IX
THE AGENT
Section 9.01. AUTHORIZATION AND ACTION. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Banks, and such
instructions shall be binding upon all Banks and all holders of Notes; PROVIDED,
HOWEVER, that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to this Agreement or
applicable law. The Agent agrees to give to each Bank prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
Section 9.02. AGENT'S RELIANCE, ETC.. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
payee of any Note as the holder thereof until the Agent receives written notice
of the assignment or transfer thereof signed by such payee and including the
agreement of the assignee or transferee to be bound hereby as it would have been
if it had been an original Bank party hereto, in form satisfactory to the Agent;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Bank and shall not be responsible to any
Bank for any statements, warranties or
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representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Bank for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
Section 9.03. BANK OF AMERICA AND AFFILIATES. With respect to its
Commitment, the Advances made by it and the Note issued to it, Bank of America
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include Bank of America in
its individual capacity. Bank of America and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower and any Person who may do business with
or own securities of the Borrower, all as if Bank of America were not the Agent
and without any duty to account therefor to the Banks.
Section 9.04. BANK CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the financial statements referred to in Sections 5.07 and 6.02 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon the Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under each Loan Document. The Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower of any Loan
Document or to inspect the Properties or books of the Borrower. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Banks by the Agent hereunder, the Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition, or business of the Borrower.
Section 9.05. INDEMNIFICATION. Notwithstanding anything to the contrary
herein contained, the Agent shall be fully justified in failing or refusing to
take any action hereunder unless it shall first be indemnified to its
satisfaction by the Banks against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of its
taking or continuing to take any action. Each Bank agrees to indemnify the Agent
(to the extent not reimbursed by the Borrower), according to such Bank's
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of any
Loan Document or any action taken or omitted by the Agent under any Loan
Document; PROVIDED that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Person being indemnified; and PROVIDED FURTHER that it is the
intention of each Bank to indemnify the Agent against the consequences of the
Agent's own negligence, whether such negligence be sole, joint, or concurrent,
active or passive.
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Without limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including attorneys' fees) incurred by the Agent in connection with the
preparation, administration, or enforcement of, or legal advice in respect of
rights or responsibilities under, any Loan Document, to the extent that the
Agent is not reimbursed for such expenses by the Borrower.
Section 9.06. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Banks and the Borrower and may be removed at any
time with cause by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Banks, and shall
have accepted such appointment, within thirty (30) days after the retiring
Agent's giving of notice of resignation or the Majority Banks' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any state thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article IX
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
Section 9.07. AGENT'S RELIANCE. The Borrower shall notify the Agent in
writing of the names of its officers and employees authorized to request an
Advance on behalf of the Borrower and shall provide the Agent with a specimen
signature of each such officer or employee. The Agent shall be entitled to rely
conclusively on such officer's or employee's authority to request an Advance on
behalf of the Borrower until the Agent receives written notice from the Borrower
to the contrary. The Agent shall have no duty to verify the authenticity of the
signature appearing on any Notice of Borrowing, and, with respect to any oral
request for an Advance, the Agent shall have no duty to verify the identity of
any Person representing himself as one of the officers or employees authorized
to make such request on behalf of the Borrower. Neither the Agent nor any Bank
shall incur any liability to the Borrower in acting upon any telephonic notice
referred to above which the Agent or such Bank believes in good faith to have
been given by a duly authorized officer or other Person authorized to borrow on
behalf of the Borrower or for otherwise acting in good faith.
Section 9.08. DEFAULTS. The Agent shall not be deemed to have knowledge of
the occurrence of a Default (other than the nonpayment of principal of or
interest hereunder or of any fees payable hereunder) unless the Agent has
received notice from a Bank or the Borrower specifying such Default. In the
event that the Agent receives such a notice of the occurrence of a Default, the
Agent shall give prompt notice thereof to the Banks (and shall give each Bank
prompt notice of each such nonpayment). The Agent shall (subject to Section
8.01) take such action with respect to such Default, PROVIDED that, unless and
until the Agent shall have received the directions referred to in Section 8.01,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable and
in the best interest of the Banks.
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ARTICLE X
MISCELLANEOUS
Section 10.01. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instances and for the specific purpose for which
given; PROVIDED, HOWEVER, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following: (a) waive or amend
any of the conditions specified in Sections 4.01 and 4.02, (b) change the
definition of "Commitment", increase the Commitments of the Banks or subject the
Banks to any additional obligations, (c) reduce the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, (d) postpone or
extend the Revolving Credit Termination Date or the Termination Date or any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, (e) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the number of Banks,
which shall be required for the Banks or any of them to take any action
hereunder, (f) change the requirements hereunder to exercise any waiver of a
payment default or payment amount, (g) release any Collateral, except with
respect to sales as permitted by the Security Agreement and for repurchases by
First Investors pursuant to the terms of the Purchase Agreement or (h) amend
this Section 10.01; and PROVIDED FURTHER that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Banks
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note; PROVIDED, FURTHER, however that one or more
new Banks may be added to this Facility as contemplated by the second proviso to
the definition of "Commitment" contained herein without the consent of any other
Bank (except as contemplated in such proviso) other than the Agent.
Section 10.02. NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing (including by telex or facsimile transmission)
and shall be effective when actually delivered, or in the case of telex notice,
when sent, answerback received, or in the case of facsimile transmission, when
received and telephonically confirmed, addressed as follows: if to the Borrower,
at its address at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
President, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; if to any Bank,
at its Domestic Lending Office as specified opposite its name on the signature
page hereof; and if to the Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; PROVIDED, HOWEVER, that any Notices of Borrowing or
Notices of Interest Conversion shall be sent to the Agent at its address at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; with copies to
the Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇; or, as to the Borrower, any Bank or the Agent, at such other address
as shall be designated by such party in a written notice to the other parties.
Section 10.03. NO WAIVER; REMEDIES. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
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Section 10.04. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents and
the other documents to be delivered under the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under the Loan Documents. The Borrower further
agrees to pay on demand all costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
the Loan Documents and the other documents to be delivered under the Loan
Documents, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 10.04.
Section 10.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 8.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 8.01,
each Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under any Loan Document, whether or not such Bank shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank, PROVIDED that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Bank may have.
Section 10.06. BINDING EFFECT. This Agreement shall become effective when
it shall have been executed by the Borrower and the Agent and when the Agent
shall have been notified by each Bank that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Bank and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Banks.
Section 10.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Subject to the prior
written consent of the Agent and the Borrower, such consent not to be
unreasonably withheld, each Bank may assign to any financial institution (the
"ASSIGNEE") all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments and the Note
held by it); PROVIDED, HOWEVER, that the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance Agreement in form and substance
satisfactory to the Agent (the "ASSIGNMENT AND ACCEPTANCE"), together with any
Note subject to such assignment and a processing fee of $2,500; and FURTHER
PROVIDED HOWEVER, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all of the assigning Bank's rights and obligations
under this Agreement, and (ii) the amount of the Commitments so assigned shall
equal or exceed the lesser of (x) $10,000,000, or (y) the remaining Commitments
held by the assigning Bank. Upon such execution, delivery, acceptance, and
recordation by the Agent of such Assignment and Acceptance, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be the date on which such Assignment and Acceptance is accepted by the
Agent, (A)
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the Assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Bank under the Loan
Documents, and (B) the Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations under
the Loan Documents (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Bank's rights and obligations under
the Loan Documents, such Bank shall cease to be a party thereto).
(b) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the Assignee (by execution and delivery of the
Assignment and Acceptance pursuant to this Section 10.07) confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties, or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency, or value of any Loan Document or any other instrument or document
furnished pursuant thereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
respective obligations under any Loan Document or any other instrument or
document furnished pursuant thereto; (iii) such Assignee confirms that it has
received a copy of the Loan Documents, together with copies of the financial
statements referred to in Section 5.07 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such Assignee, independently and
without reliance upon the Agent, such assigning Bank, or any Bank and based on
such documents and information as it shall deem appropriate at the time, will
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such Assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under any Loan
Document as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vi) such Assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of any Loan Document are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in Section 10.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Banks and the
Commitment of, and principal amount of the Borrowings owing to, each Bank from
time to time (the "REGISTER"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Agent, and the Banks may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of the Loan Documents. The
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank, together with any Note subject to such assignment and a
processing fee of $2,500, the Agent, if such Assignment and Acceptance has been
completed shall (i) accept such Assignment and Acceptance; (ii) record the
information contained therein in the Register; and (iii) give prompt notice
thereof to the Borrower. Simultaneously upon its receipt of such notice, the
Borrower at its own expense, shall execute and deliver to the Agent in exchange
for each surrendered Note a new Note payable to the order of such Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
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Acceptance and, if the assigning Bank has retained Commitments hereunder, new
Notes payable to the order of the assigning Bank in an amount equal to the
Commitments retained by it hereunder. The new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of the surrendered
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of EXHIBIT F. Upon receipt by the
Agent of each such new Note conforming to the requirements set forth in the
preceding sentences, the Agent shall return to the Borrower each such
surrendered Note marked to show that each such surrendered Note has been
replaced, renewed, and extended by such new Note.
(e) Each Bank may sell participations to one or more financial
institutions in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments
and the Notes held by it), PROVIDED, HOWEVER, that an agreement in respect of a
participation hereunder may not restrict such Bank's voting rights hereunder,
other than in respect of a change in the principal of and interest on a Note,
the Collateral securing the Note and the maturity date of each such Note. A
participant holding an interest in a Note shall be entitled to the benefits of
Sections 2.07, 2.10, 3.01 and 3.03 of this Agreement; PROVIDED, FURTHER, that no
participant shall be entitled to recover under the aforedescribed provisions an
amount in excess of the proportionate share which such participant holds of the
original aggregate principal amount hereunder to which the selling Bank would
otherwise have been entitled.
Section 10.08. LIMITATION ON AGREEMENTS. (a) All agreements between the
Borrower, the Agent, or any Bank, whether now existing or hereafter arising and
whether written or oral, are hereby expressly limited so that in no contingency
or event whatsoever, whether by reason of demand being made in respect of an
amount due under any Loan Document or otherwise, shall the amount paid, or
agreed to be paid, to the Agent or any Bank for the use, forbearance, or
detention of the money to be loaned under this Agreement, the Notes or any other
Loan Document or otherwise or for the payment or performance of any covenant or
obligation contained herein or in any other Loan Document exceed the Highest
Lawful Rate. If, as a result of any circumstances whatsoever, fulfillment of any
provision hereof or of any of such documents, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by applicable usury law, then, IPSO FACTO, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if, from any such
circumstance, the Agent or any Bank shall ever receive interest or anything
which might be deemed interest under applicable law which would exceed the
Highest Lawful Rate, such amount which would be excessive interest shall be
applied to the reduction of the principal amount owing on account of such Bank's
Note or the amounts owing on other obligations of the Borrower to the Agent or
any Bank under any Loan Document and not to the payment of interest, or if such
excessive interest exceeds the unpaid principal balance of any Note and the
amounts owing on other obligations of the Borrower to the Agent or any Bank
under any Loan Document, as the case may be, such excess shall be refunded to
the Borrower. All sums paid or agreed to be paid to the Agent or any Bank for
the use, forbearance, or detention of the indebtedness of the Borrower to the
Agent or any Bank shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full term of such
indebtedness until payment in full of the principal (including the period of any
renewal or extension thereof) so that the interest on account of such
indebtedness shall not exceed the Highest Lawful Rate. Notwithstanding anything
to the contrary contained in any Loan Document, it is understood and agreed that
if at any time the rate of interest which accrues on the outstanding principal
balance of any Note shall exceed the Highest Lawful Rate, the rate of interest
which accrues on the outstanding principal balance of any Note shall be limited
to the Highest Lawful Rate, but any
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subsequent reductions in the rate of interest which accrues on the outstanding
principal balance of any Note shall not reduce the rate of interest which
accrues on the outstanding principal balance of any Note below the Highest
Lawful Rate until the total amount of interest accrued on the outstanding
principal balance of any Note equals the amount of interest which would have
accrued if such interest rate had at all times been in effect. The terms and
provisions of this Section 10.08 shall control and supersede every other
provision of all Loan Documents.
(b) The Agent, the Banks and the Borrower agree that (i) if Article
5069-1.04 of the Texas Revised Civil Statutes Annotated, as amended, is
applicable to the determination of the Highest Lawful Rate, the indicated rate
ceiling computed from time to time pursuant to Section (a) of such Article shall
apply, PROVIDED that, to the extent permitted by such Article, the Agent may
from time to time by notice to the Borrower revise the election of such interest
rate ceiling as such ceiling affects the then current or future balances of the
Advances; and (ii) the provisions of Chapter 15 of Title 79 of the Texas Revised
Civil Statutes Annotated, as amended, shall not apply to this Agreement or any
Note.
Section 10.09. SEVERABILITY. In case any one or more of the provisions
contained in any Loan Document or in any instrument contemplated thereby, or any
application thereof, shall be invalid, illegal, or unenforceable in any respect,
the validity, legality, and enforceability of the remaining provisions contained
therein, and any other application thereof, shall not in any way be affected or
impaired thereby. Each covenant contained in any Loan Document shall be
construed (absent an express contrary provision herein) as being independent of
each other covenant contained therein, and compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
Section 10.10. GOVERNING LAW. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of Texas.
Section 10.11. SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND APPELLATE COURTS FROM
ANY THEREOF;
(b) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH LEGAL ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING OF A COPY THEREOF (BY REGISTERED OR CERTIFIED MAIL OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL POSTAGE PREPAID) TO THE BORROWER AT THE
ADDRESS SPECIFIED IN SECTION 10.02 OR AT SUCH OTHER
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ADDRESS OF WHICH THE AGENT OR ANY BANK SHALL HAVE BEEN NOTIFIED IN WRITING
PURSUANT TO SECTION 10.02.
(d) NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL IN ANY WAY AFFECT
THE RIGHT OF THE AGENT OR ANY BANK OR THE BORROWER TO BRING ANY ACTION ARISING
OUT OF OR RELATING TO THE NOTES OR THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN
ANY COMPETENT COURT ELSEWHERE HAVING JURISDICTION OVER THE BORROWER, THE AGENT
OR ANY BANK, AS THE CASE MAY BE, OR ITS PROPERTY.
Section 10.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND
THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.13. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 10.14. NO INSOLVENCY PETITION AGAINST BORROWER. Each of the Agent
and the Banks hereby covenants and agrees that, prior to the date which is one
year and one day after the payment in full of the Notes and termination of the
Commitments, it will not institute against, or join any other Person in
instituting against, the Borrower any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
state bankruptcy or similar law. This Section 10.14 shall survive the
termination of this Agreement.
Section 10.15. INDEMNIFICATION. The Borrower shall indemnify the Agent,
the Banks and each affiliate thereof and their respective directors,
stockholders, officers, partners, employees, agents, attorneys, consultants,
representatives, successors, transferees and assignees from, and hold each of
them harmless against, any and all losses, liabilities, claims or damages to
which any of them may become subject, as a result of the existence, performance
or enforcement of this Agreement, the other Loan Documents and the transactions
contemplated thereby, the Receivables Documents, the Commitments or the
Advances, including without limitation such losses, liabilities, claims or
damages arising out of or resulting from any actual or proposed use by the
Borrower of the proceeds of any extension of credit by any Bank hereunder or
breach by the Borrower of this Agreement or any other Loan Document or breach by
First Investors of the Pledge Agreement or breach by the Servicer of the
Servicing Agreement or from any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing, and the Borrower shall reimburse the Agent, and each Bank, and each
Affiliate thereof and their respective directors, stockholders, officers,
partners, employees, agents, attorneys, consultants, representatives,
successors, transferees and assignees, upon demand for any reasonable expenses
(including reasonable legal fees) incurred in connection with any such
investigation or proceeding, regardless of whether resulting from the sole,
concurrent or comparative negligence of the indemnified Person, but excluding
any such losses, liabilities, claims damages or expenses incurred by such Person
by reason of the gross negligence or willful misconduct of such Person, PROVIDED
that it is
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the intention of the Borrower to indemnify the indemnified Person against the
consequences of its own negligence.
Section 10.16. SERVICING. In the event of a Servicer Termination Event (as
defined in the Servicing Agreement) pursuant to Section 5.01 of the Servicing
Agreement, the Borrower shall upon the written direction of the Agent, or may
with the consent of the Agent, exercise the Borrower's rights of termination
thereunder. The Agent shall also have the right to remove the Servicer for
cause, which shall include the material breach of any obligation or covenant
under the Servicing Agreement. Upon termination of the Servicer pursuant to
Section 5.02 of the Servicing Agreement, the Borrower, acting upon the written
direction of the Agent, shall appoint a successor Servicer and enter into a
servicing agreement in form and substance acceptable to the Agent, with such
successor Servicer acceptable to the Agent at such time.
Section 10.17. FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE NOTES AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
Section 10.18 AMENDMENT AND RESTATEMENT. This Agreement shall constitute
an amendment and restatement in its entirety of the Original Credit Agreement.
From and after the Closing Date, all indebtedness, liabilities, obligations,
security interests and liens arising under the Original Credit Agreement or any
Loan Documents referred to therein are hereby deemed to be renewed and
continued, and not novated, extinguished, discharged or satisfied, and are
hereafter evidenced by and governed in accordance with this Agreement and the
other Loan Documents. All references in the Loan Documents referred to in the
Original Credit Agreement to the Original Credit Agreement shall be deemed to
mean this Agreement, as an amendment and restatement of the Original Credit
Agreement.
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IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized,
have executed this Agreement as of the date first above written.
F.I.R.C., INC., a Delaware corporation
By:___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
President
Note Face Principal BANK OF AMERICA, N.A., in its
Amount: $30,000,000 individual capacity as a Bank and as Agent
Domestic Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ By:___________________________________
LIBOR Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Note Face Principal FIRST UNION NATIONAL BANK
Amount: $20,000,000
Domestic Lending Office:
____________________
____________________ By:___________________________________
LIBOR Lending Office:
____________________
____________________
Note Face Principal ▇▇▇▇▇ FARGO BANK TEXAS,
Amount: $15,000,000 NATIONAL ASSOCIATION
Domestic Lending Office:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ By:___________________________________
LIBOR Lending Office:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
[Signature Page - Amended and Restated Credit Agreement - Page 1 of 1]
EXHIBIT A
ALPI INSURANCE
Attached.
B-1
EXHIBIT B
FORM OF
COMPLIANCE CERTIFICATE
Pursuant to the Second Amended and Restated Credit Agreement dated as of
November 15, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Agreement", the terms defined therein being used herein as therein
defined) by and among F.I.R.C., Inc. (the "Borrower"), Bank of America, N.A., as
Agent (the "Agent"), and certain financial institutions now or hereafter a party
thereto (the "Banks"), I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. do hereby certify to the Agent and
each of the Banks that I am the duly elected, qualified and acting President of
the Borrower, and do hereby further certify to the Agent and each of the Banks
as follows:
1. The Borrower has fulfilled its obligations under the Agreement and all
representations and warranties made in the Loan Documents continue to be
true and correct, except to the extent that such representations and
warranties relate solely to an earlier date.
2. No Default or Event of Default has occurred or is continuing with respect
to the terms and conditions of the Agreement or any other Loan Document.
3. The aggregate outstanding principal balance of the Advances (both before
and after giving effect to the Distributions to be made on the next
Distribution Date) does not and will not exceed the Available Amount.
4. The following calculations of the following covenants are true and correct
as of ____________, 199__, [INSERT PRECEDING DETERMINATION DATE] and are
based upon the terms and conditions contained in the Agreement.
5. SECTION 7.13(A) EARNINGS COVERAGE RATIO
MONTH ENDED
TOTAL
[____, 200_] [____,200_] [____, 200_] 3 MOS.
(A) Interest collected __________ __________ __________ __________
(B) Late Fees __________ __________ __________ __________
(C) Other Cash Income __________ __________ __________ __________
(D) Subtotal
((A)+(B)+(C)) __________
(E) Servicer fees
(F) Bank Collateral
Agent Fees __________ __________ __________ __________
(G) Costs of
repossession __________ __________ __________ __________
(H) Other expenses __________ __________ __________ __________
B-2
MONTH ENDED
TOTAL
[____, 200_] [____,200_] [____, 200_] 3 MOS.
(I) Subtotal
((E)+(F)+(G)+(H)) __________
(J) Earnings before
Interest and
Distributions (D)-(I) __________
(K) Loan Interest
Expense __________ __________ __________ __________
Ratio of Earnings before
Interest and
Distributions to
Loan Interest Expense
(J)/(K) __________
Minimum Required Ratio: 1.40
Compliance: Yes/No
6. SECTION 7.13(B) CREDIT LOSS PERCENTAGE AND INCREMENTAL RESERVE
MONTH ENDED
TOTAL
[__, 200_] [__, 200_][__, 200_] [__, 200_] 4 MOS. X 3
(A) Actual Credit Losses: ________ ________ ________ ________ __________
4 MOS.
AVERAGE
(B) Receivable Portfolio
Balance: ________ ________ ________ ________ __________
(C) Credit Loss
Percentage
(A)/(B): __________
Maximum Credit Loss
Percentage: 5.0%
Compliance: Yes/No
Incremental Reserve
Percentage ((C)-3.0%): ________
B-3
7. SECTION 7.13(C) DELINQUENT RECEIVABLES
MONTH ENDED 3 MOS.
[____, 200__] [____, 200__] [____, 200__] AVERAGE
(A) Number of Delinquent
Receivables __________ __________ __________ __________
(B) Number of Receivables __________ __________ __________ __________
Ratio of Average
Delinquent
Receivables to Average
Number of Receivables
((A)/(B)): __________
Maximum ratio of
Delinquent Receivables: 8.5%
Compliance: Yes/No
8. SECTIONS 7.01-7.12, 7.14, 7.15: [REPORT ANY NON-COMPLIANCE]
9. SECTION 8.01(K): UNINSURED CREDIT LOSSES
Aggregate Uninsured Credit
Losses for prior 12 months: _______________
Maximum Uninsured Credit
Losses for prior 12 months: $50,000
Compliance: Yes/No
10. BORROWING BASE COMPUTATION AS OF __________, 200__:
Receivable Portfolio Balance: _______________
Less: Ineligible Receivables:_______________
(A) Eligible Receivables: _______________
(B) Loans in Transit: _______________
Total Borrowing Base
((A) + (B)): ===============
B-4
Available Amount (lesser of
Commitment or Total
Borrowing Base):
Aggregate outstanding principal
balance of the Advances: _______________
Less: Distributions to be
applied to Principal: _______________
Aggregate outstanding principal
balance of the Advances after
Distributions:
===============
Available Amount Compliance
after Distributions: Yes/No
IN WITNESS WHEREOF, I have executed this Compliance Certificate in the name and
on behalf of Borrower this _____ day of ____________, 200__.
F.I.R.C., INC.
By:
Name:
Title:
B-5
EXHIBIT C
[RESERVED]
C-1
EXHIBIT E
FORM OF
NOTICE OF BORROWING
_______________, 20___
Bank of America, N.A.,
as Agent for the Banks
party to the Credit Agreement defined below
Attention:______________________
Ladies and Gentlemen:
The undersigned, F.I.R.C., Inc., a Delaware corporation (the "Borrower"),
refers to that certain Second Amended and Restated Credit Agreement dated as of
November 15, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the Borrower, certain financial institutions now or
hereafter party thereto (the "Banks"), and Bank of America, N.A., as Agent (the
"Agent") and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Credit Agreement that the Borrower hereby requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________, 20__.
(ii) The Type of Loan(s) comprising the Proposed Borrowing is: [BASE
RATE][LIBOR RATE][AGREED RATE].
(iii) The aggregate amount of the Proposed Borrowing is $______________.
[(IV) THE INITIAL INTEREST PERIOD FOR EACH [LIBOR RATE][AGREED RATE]
ADVANCE COMPRISING THIS PROPOSED BORROWING IS: __________________________.]
The Borrower hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) The representations and warranties contained in Article V of the
Credit Agreement are true and correct before, and will be true and correct after
giving effect to, the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date;
(B) No Default or Event of Default has occurred and is continuing, or
would result from such Proposed Borrowing or from the application of the
proceeds therefrom;
E-1
(C) Credit Insurance is in full force and effect for all Receivables and
for the Receivables to be purchased with the proceeds of the Proposed Borrowing;
(D) The aggregate outstanding principal amount of the Advances after
giving effect to the Proposed Borrowing does not exceed the Available Amount;
and
(E) All Receivables to be purchased with the proceeds of the Proposed
Borrowing constitute Eligible Receivables.
F.I.R.C., INC., a Delaware corporation
By:
Name:
Title:
E-2
EXHIBIT F
FORM OF
AMENDED AND RESTATED
FACILITY NOTE
$ Houston, Texas _____________________, 20___
FOR VALUE RECEIVED, F.I.R.C., INC., a Delaware corporation (together
with its successors, the "Borrower"), hereby promises to pay to the order of
__________________ (the "Bank"), at the office of _____________________________,
the principal sum of ____________ DOLLARS ($_____________) (or such lesser
amount as shall equal the aggregate unpaid principal amount of Advances made by
the Bank to the Borrower under the Credit Agreement referred to below), in
lawful money of the United States of America and in immediately available funds,
on the date(s) and in the principal amount(s) provided in the Credit Agreement
(as defined below) and to pay interest on the unpaid principal amount of each
such Advance, at such office, in like money and funds, for the period commencing
on the date of such Advance until such Advance shall be paid in full, at the
rates per annum and on the dates provided in the Credit Agreement. This Note is
one of the Notes referred to in the Credit Agreement, and, to the extent and
subject to the conditions set forth in the Credit Agreement, the Advances
evidenced by this Note may be borrowed, repaid and reborrowed.
The Bank is hereby authorized by the Borrower to endorse on the
schedule (or a continuation thereof) attached to this Note, the amount and date
of each Advance made by the Bank to the Borrower under the Credit Agreement, and
the amount and date of each payment or prepayment of principal of such Advance
received by the Bank, PROVIDED that any failure by the Bank to make any such
endorsement shall not affect the obligations of the Borrower under the Credit
Agreement or under this Note in respect of such Advances.
This Note is one of the Notes referred to in the Second Amended and
Restated Credit Agreement dated as of November 15, 2000 (as may be further
amended, restated, modified and supplemented and in effect from time to time,
the "CREDIT AGREEMENT"; capitalized terms used in this Note and not otherwise
defined have the respective meanings assigned to them in the Credit Agreement)
among the Borrower, the financial institutions named therein (including the
Bank) and Bank of America, N.A. as Agent, and evidences the Advances made by the
Bank thereunder and is issued in replacement of that certain Facility Note dated
October 30, 1996, executed by Maker and made payable to the Bank (the "PRIOR
Note"). Nothing herein contained shall be construed (a) to be a novation of the
Prior Note or (b) to release, cancel, terminate or otherwise impair the status
or priority of the liens or security for the Prior Note. Further, the Borrower
acknowledges and agrees that this Note shall not be considered a new contract,
and that all rights, titles, powers, liens, security interests and estates
created by or under any security document or other agreement executed in
connection with the Credit Agreement or securing the Prior Note shall continue
without interruption in full force and effect.] This Note is secured by the
Security Agreement and the Pledge Agreement.
F-1
The Credit Agreement, among other things, provides for the
acceleration of the maturity of this Note upon the occurrence of certain events
and for prepayments of Advances upon the terms and conditions specified therein.
This Note shall be governed by and construed in accordance with the
laws of the State of Texas (without regard to conflicts of law principles).
F.I.R.C., INC., a Delaware corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
F-2
SCHEDULE
This Note evidences Advances made under the within described Credit Agreement to
the Borrower in the principal amounts set forth below, which Advances were made
on the dates set forth below, subject to the payments and prepayments of
principal set forth below:
PRINCIPAL AMOUNT DATE OF PAYMENT AMOUNT PAID BALANCE
DATE MADE OF ADVANCE OR PREPAYMENT OR PREPAID OUTSTANDING
-----------------------------------------------------------------------------
F-3
EXHIBIT H
FORM OF
F.I.R.C., INC.
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS BANK COLLATERAL AGENT FOR
THE LOAN AGENT AND THE BANKS
DISBURSEMENT STATEMENT
Collection Period:
Distribution Date:
DEPOSITS TO COLLATERAL ACCOUNT
1. Payments on contracts (net chargebacks) ______
2. Liquidation proceeds ______
3. Amount of Purchased Receivables ______
4. Servicing Fee (______)
5. Amounts reimbursed to Servicer (______)
Total Deposits to Collateral Account ______
DISBURSEMENTS FROM COLLATERAL ACCOUNT
1. Servicing Fee and reimbursements (to extent not retained in
Item 4. above) ______
2. Bank Collateral Agent Fee ______
3. Interest on Advances due to Loan Agent ______
4. Principal proceeds due to Loan Agent ______
5. Payment of interest rate swap due to Bank of America ______
6. Other amounts due to Loan Agent ______
Total Disbursements from Collateral Account ______
REMAINDER (RESERVE FUND DRAW) ______
+ Excess Over (Amount to Restore) Specified Collateral
Account Balance (SEE CALCULATION BELOW) ______
- Transfer excess amount deposited in Collateral Account to Grantor ______
+ Amounts deposited in Collateral Account per Section 5.1(a)(xi) of
Enterprise Agreement ______
TOTAL DUE TO GRANTOR
======
SPECIFIED COLLATERAL ACCOUNT BALANCE CALCULATION
Base Level Collateral Account Balance ______
Incremental Reserve Amount ______
Specified Collateral Account Balance ______
Current Collateral Account Balance (PRIOR TO DISTRIBUTION) ______
(Excess Over) Amount to Restore Specified Collateral
Account Balance ======
H-1
DOCUMENTS ATTACHED:
1. Servicer Certificate
2. Grantor Compliance Certificate
3. Loan Agent Loan Calculation
H-2
FORM OF
ATTACHMENT 1
TO
BANK COLLATERAL AGENT'S DISBURSEMENT STATEMENT
Servicer's Certificate - Bank of America
Reporting Month - _______________, 20___
Determination Date - _______________, 20___
*****SCHEDULED BASIS*****
Principal Portion of Amount Collected $
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Interest Portion of Amount Collected
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Other Portion of Amount Collected
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Late Charges Collected
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Liquidation Proceeds
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Total Amount Received and Processed
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Less: Service Fees
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Less: Reimbursable Expenses
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AMOUNT OF REMITTANCE TO BANK COLLATERAL AGENT $
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Aggregate Principal Balance of Receivables as of Determination Date$
Signed:
Accounting Specialist
H-3