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EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of April 10, 1997
by and among
UNITED COMPANIES FINANCIAL CORPORATION,
as Borrower,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Agent,
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 General . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.3 Other Definitions and Provisions . . . . . . . . . 16
ARTICLE II
REVOLVING CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.1 Revolving Credit Loans . . . . . . . . . . . . . . 17
SECTION 2.2 Swingline Loans. . . . . . . . . . . . . . . . . . 17
SECTION 2.3 Procedure for Advances of Revolving Credit
Loans and Swingline Loans. . . . . . . . . . . . . 19
SECTION 2.4 Competitive Bid Facility. . . . . . . . . . . . . . 20
SECTION 2.5 Repayment of Loans. . . . . . . . . . . . . . . . . 22
SECTION 2.6 Notes . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.7 Separate Interest Rate Agreements . . . . . . . . . 24
SECTION 2.8 Permanent Reduction of the Aggregate Commitment . . 24
SECTION 2.9 Termination of Credit Facility. . . . . . . . . . . 25
SECTION 2.10 Increase in Aggregate Commitment . . . . . . . . . 25
SECTION 2.11 Use of Proceeds . . . . . . . . . . . . . . . . . . 26
ARTICLE III
LETTER OF CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.1 L/C Commitment . . . . . . . . . . . . . . . . . . 26
SECTION 3.2 Procedure for Issuance of Letters of Credit . . . . 27
SECTION 3.3 Commissions and Other Charges . . . . . . . . . . . 28
SECTION 3.4 L/C Participations . . . . . . . . . . . . . . . . 28
SECTION 3.5 Reimbursement Obligation of the Borrower . . . . . 30
SECTION 3.6 Obligations Absolute . . . . . . . . . . . . . . . 30
SECTION 3.7 Effect of Application . . . . . . . . . . . . . . . 31
ARTICLE IV
GENERAL LOAN PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.1 Interest . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.2 Notice and Manner of Conversion or
Continuation of Loans . . . . . . . . . . . . . . . 34
SECTION 4.3 Facility, Agent's and Other Fees . . . . . . . . . 35
SECTION 4.4 Manner of Payment . . . . . . . . . . . . . . . . . 36
SECTION 4.5 Crediting of Payments and Proceeds . . . . . . . . 36
SECTION 4.6 Adjustments . . . . . . . . . . . . . . . . . . . . 37
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SECTION 4.7 Nature of Obligations of Lenders Regarding
Extensions of Credit; Assumption by the Agent . . . 37
SECTION 4.8 Changed Circumstances . . . . . . . . . . . . . . . 38
SECTION 4.9 Indemnity . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.10 Capital Requirements . . . . . . . . . . . . . . . 41
SECTION 4.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.12 Change of Lending Office . . . . . . . . . . . . . 44
SECTION 4.13 Affected Lenders . . . . . . . . . . . . . . . . . 44
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING . . . . . . . . . . . 45
SECTION 5.1 Closing . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.2 Conditions to Closing and Initial
Extensions of Credit . . . . . . . . . . . . . . . 45
SECTION 5.3 Conditions to All Loans and Letters of Credit . . . 48
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER . . . . . . . . . . 48
SECTION 6.1 Representations and Warranties . . . . . . . . . . 49
SECTION 6.2 Survival of Representations and Warranties, Etc. . 55
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES . . . . . . . . . . . . . . . . . 55
SECTION 7.1 Financial Statements and Projections . . . . . . . 55
SECTION 7.2 Officer's Compliance Certificate . . . . . . . . . 56
SECTION 7.3 Accountants' Certificate . . . . . . . . . . . . . 57
SECTION 7.4 Other Reports . . . . . . . . . . . . . . . . . . . 57
SECTION 7.5 Notice of Litigation and Other Matters . . . . . . 57
SECTION 7.6 Accuracy of Information . . . . . . . . . . . . . . 59
ARTICLE VIII
AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.1 Preservation of Corporate Existence
and Related Matters . . . . . . . . . . . . . . . . 59
SECTION 8.2 Maintenance of Property . . . . . . . . . . . . . . 59
SECTION 8.3 Insurance . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.4 Accounting Methods and Financial Records . . . . . 59
SECTION 8.5 Payment and Performance of Obligations . . . . . . 60
SECTION 8.6 Compliance With Laws and Approvals . . . . . . . . 60
SECTION 8.7 Environmental Laws . . . . . . . . . . . . . . . . 60
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SECTION 8.8 Compliance with ERISA . . . . . . . . . . . . . . . 61
SECTION 8.9 Compliance With Agreements . . . . . . . . . . . . 61
SECTION 8.10 Conduct of Business . . . . . . . . . . . . . . . . 61
SECTION 8.11 Visits and Inspections . . . . . . . . . . . . . . 62
SECTION 8.12 Additional Guarantors. . . . . . . . . . . . . . . 62
SECTION 8.13 Further Assurances . . . . . . . . . . . . . . . . 62
ARTICLE IX
FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.1 Debt to Net Worth Ratio . . . . . . . . . . . . . . 62
SECTION 9.2 Minimum Net Worth . . . . . . . . . . . . . . . . . 63
SECTION 9.3 Fixed Charges Ratio . . . . . . . . . . . . . . . . 63
SECTION 9.4 Unencumbered Eligible Asset Ratio . . . . . . . . . 63
SECTION 9.5 Liquid Asset Ratio . . . . . . . . . . . . . . . . 63
ARTICLE X
NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.1 Limitations on Secured Debt . . . . . . . . . . . . 64
SECTION 10.2 Limitations on Liens . . . . . . . . . . . . . . . 64
SECTION 10.3 Limitations on Investments and Acquisitions . . . . 65
SECTION 10.4 Limitations on Mergers and Liquidation . . . . . . 67
SECTION 10.5 Limitations on Sale of Assets . . . . . . . . . . . 67
SECTION 10.6 Transactions with Affiliates . . . . . . . . . . . 68
SECTION 10.7 Certain Accounting Changes . . . . . . . . . . . . 68
SECTION 10.8 Restrictive Agreements . . . . . . . . . . . . . . 68
SECTION 10.9 Letters of Credit . . . . . . . . . . . . . . . . . 69
SECTION 10.10 Underwriting Standards . . . . . . . . . . . . . . 69
ARTICLE XI
DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.1 Events of Default . . . . . . . . . . . . . . . . . 69
SECTION 11.2 Remedies . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. . 73
ARTICLE XII
THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 12.1 Appointment . . . . . . . . . . . . . . . . . . . . 74
SECTION 12.2 Delegation of Duties . . . . . . . . . . . . . . . 74
SECTION 12.3 Exculpatory Provisions . . . . . . . . . . . . . . 74
SECTION 12.4 Reliance by the Agent . . . . . . . . . . . . . . . 74
SECTION 12.5 Notice of Default . . . . . . . . . . . . . . . . . 75
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SECTION 12.6 Non-Reliance on the Agent and Other Lenders . . . . 75
SECTION 12.7 Indemnification . . . . . . . . . . . . . . . . . . 76
SECTION 12.8 The Agent in Its Individual Capacity . . . . . . . 76
SECTION 12.9 Resignation of the Agent; Successor Agent . . . . . 77
SECTION 12.10 Documentation Agent . . . . . . . . . . . . . . . . 77
ARTICLE XIII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 13.1 Notices . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 13.2 Expenses; Indemnity . . . . . . . . . . . . . . . . 79
SECTION 13.3 Set-off . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 13.4 Governing Law . . . . . . . . . . . . . . . . . . . 80
SECTION 13.5 Consent to Jurisdiction . . . . . . . . . . . . . . 80
SECTION 13.6 Waiver of Jury Trial . . . . . . . . . . . . . . . 81
SECTION 13.7 Reversal of Payments . . . . . . . . . . . . . . . 81
SECTION 13.8 Injunctive Relief; Punitive Damages . . . . . . . . 81
SECTION 13.9 Accounting Matters . . . . . . . . . . . . . . . . 81
SECTION 13.10 Successors and Assigns; Participations . . . . . . 82
SECTION 13.11 Amendments, Waivers and Consents . . . . . . . . . 85
SECTION 13.12 Performance of Duties . . . . . . . . . . . . . . . 85
SECTION 13.13 All Powers Coupled with Interest . . . . . . . . . 86
SECTION 13.14 Survival of Indemnities . . . . . . . . . . . . . . 86
SECTION 13.15 Titles and Captions . . . . . . . . . . . . . . . . 86
SECTION 13.16 Severability of Provisions . . . . . . . . . . . . 86
SECTION 13.17 Counterparts . . . . . . . . . . . . . . . . . . . 86
SECTION 13.18 Confidentiality . . . . . . . . . . . . . . . . . . 86
SECTION 13.19 Term of Agreement . . . . . . . . . . . . . . . . . 87
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EXHIBITS
Exhibit A-1-Form of Revolving Credit Note
Exhibit A-2-Form of Swingline Note
Exhibit A-3-Form of Competitive Bid Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Notice of Account Designation
Exhibit F - Form of Officer's Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Guaranty Agreement
Exhibit I - Form of Loan Production Report
Exhibit J - Form of Servicing Quality Report
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Material Subsidiaries
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(q) - Debt and Unfunded Liabilities
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CREDIT AGREEMENT, dated as of the 10th day of April, 1997, by and among
UNITED COMPANIES FINANCIAL CORPORATION, a corporation organized under the laws
of Louisiana (the "Borrower"), the Lenders who are or may become a party to
this Agreement, FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Agent for the
Lenders and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent.
STATEMENT OF PURPOSE
The Borrower has requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrower on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Adjusted Average Debt" means, as of the last day of each fiscal quarter
of any Person, the daily average outstanding amount of Debt of such Person
during such quarter.
"Affiliate" means, with respect to the Borrower, any Person (other than
a Subsidiary) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Borrower or
any of its Subsidiaries. The term "control" means (a) the power to vote five
percent (5%) or more of the securities or other equity interests of a Person
having ordinary voting power, or (b) the possession, directly or indirectly, of
any other power to direct or cause the direction of the management and policies
of a Person, whether through ownership of voting securities, by contract or
otherwise.
"Agent" means First Union in its capacity as Agent hereunder, and any
successor thereto appointed pursuant to Section 12.9.
"Agent's Office" means the office of the Agent specified in or
determined in accordance with the provisions of Section 13.1.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced, increased or modified at
any time or from time to time pursuant to the terms hereof. On the Closing
Date, the Aggregate Commitment shall be EIGHT HUNDRED MILLION DOLLARS
($800,000,000).
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"Agreement" means this Credit Agreement, as amended, amended and
restated, modified or otherwise supplemented from time to time.
"Applicable Law" means all applicable provisions of constitutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Application" means an application, in the form specified by the Issuing
Lender from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Asset-Backed Security" means a security that is primarily serviced by
the cashflows of a discrete pool of Receivables or other financial assets,
either fixed or revolving, that by their terms convert into cash within a
finite time period plus any rights or other assets designed to assure the
servicing or timely distribution of proceeds to the security holders.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10.
"Available Commitment" means, as to any Lender at any time, an amount
equal to the excess, if any, of (a) such Lender's Commitment over (b) such
Lender's Extensions of Credit.
"Base Rate" means, the rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) representing the daily effective federal funds
rate as quoted by the Agent and confirmed in Federal Reserve Board Statistical
Release H.15 (519) or any successor or substitute publication selected by the
Agent. If, for any reason, such rate is not available, then "Federal Funds
Rate" shall mean a daily rate which is determined, in the opinion of the Agent,
to be the rate at which federal funds are being offered for sale in the
national federal funds market at 9:00 a.m. (Charlotte time). Rates for
weekends or holidays shall be the same as the rate for the most immediate
preceding Business Day. Each change in the Base Rate shall be effective as of
the opening of business on the day such change in the Base Rate occurs.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 4.1(a).
"Borrower" means United Companies Financial Corporation, in its capacity
as borrower hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New
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York, New York, are open for the conduct of their commercial banking business,
and (b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any LIBOR Rate Loan, any day that is a
Business Day described in clause (a) and that is also a day for trading by and
between banks in Dollar deposits in the London interbank market.
"Capital Lease" means, with respect to the Borrower and its
Subsidiaries, any lease of any property that should, in accordance with GAAP,
be classified and accounted for as a capital lease on a Consolidated balance
sheet of the Borrower and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(g).
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to and issue or participate in Letters of Credit issued for the
account of the Borrower hereunder in an aggregate principal or face amount at
any time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 1 hereto, as the same may be reduced or modified at any time
or from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment.
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
Loan pursuant to Section 2.4.
"Competitive Bid Loan" means any competitive bid loan made by any Lender
to the Borrower pursuant to Section 2.4.
"Competitive Bid Notes" means the separate Competitive Bid Notes made by
the Borrower payable to the order of each of the Lenders, substantially in the
form of Exhibit A-3 hereto, evidencing the Competitive Bid Loans, and any
amendments and supplements thereto, any substitutes therefor, and any
replacements, restatements, renewals or extensions thereof, in whole or in
part.
"Competitive Bid Request" shall have the meaning assigned thereto in
Section 2.4(b).
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrower and its
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Subsidiaries, such statements or items on a consolidated basis in accordance
with applicable principles of consolidation under GAAP.
"Credit Facility" means the collective reference to the Revolving Credit
Facility and the L/C Facility.
"Debt" of any Person means all items of indebtedness which, in
accordance with GAAP and practices thereof, would be included in determining
liabilities as shown on the liability side of a balance sheet of such Person as
of the date as of which indebtedness is to be determined.
"Default" means any of the events specified in Section 11.1 =which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Documentation Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
in its capacity as documentation agent hereunder.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBIT" means with respect to any Person, for any period of computation,
the sum of, without duplication, (a) Net Income of such Person for such period,
plus (b) interest expense accrued during such period on all Debt of such
Person, plus (c) taxes on income accrued during such period, all determined in
accordance with GAAP.
"Eligible Assets" means the sum of (a) the aggregate net value, as
determined in accordance with GAAP of all assets contained in each asset class
listed below (as such value is reflected with respect to each asset class, on
the most recent Consolidated financial statements of the Borrower and its
Subsidiaries delivered to the Agent pursuant to Section 7.1, or if determined
during a fiscal quarter, as such value is reasonably determined by the
Borrower) of the Borrower and its Subsidiaries which are not subject to any
Liens (other than, in each case, those specified in Section 10.2 (a) - (e)
inclusive) in favor of any Person, multiplied by (b) in each case, the asset
multiple listed below corresponding to such asset class:
Asset Class Asset Multiple
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Cash and cash equivalents 1.00
Loans in inventory (net)* 1.00
Loans held for investment
(net)* 0.90
Accrued interest receivable
and other receivables 0.65
Temporary investments and
subordinated securities related to
Receivables securitizations 0.65
Capitalized excess servicing
income (interest only and residual
interests)** 0.65
Capitalized mortgage servicing
rights 0.65
Other assets, including PP&E,
(up to 35% of Net Worth)* 0.50
Intangible assets 0.00
Other assets, including PP&E,
(in excess of 35% of
Net Worth)* 0.00
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* "Loans in inventory" shall include all "Receivables" owned by such
Person, provided that:
(i) "Receivables" owned by a Person for more than 180 days shall be
classified as "Loans held for investment";
(ii) the portion of "Receivables" which (A) are owned by a Person for
more than 365 days and (B) exceed $20 million in the aggregate
shall be classified as "Other assets"; and
(iii) all "Receivables" (A) which are 60 days or more delinquent, (B)
which are in the process of foreclosure, or (C) which constitute
REO property (real estate owned) shall be classified as "Other
assets".
** Capitalized excess servicing income will be computed net of gains and
losses on Hedging Agreements specifically related to this asset class.
For purposes of calculating Other assets, PP&E is defined as including
land, buildings, and other fixed assets, less accumulated depreciation.
"Eligible Assignee" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) already a Lender hereunder (whether as an original party to
this Agreement or as the assignee of another Lender) or an Affiliate of a
Lender, (c) the successor (whether by transfer of assets, merger or otherwise)
to all or substantially all of the commercial lending business of the assigning
Lender, or (d) any other Person that has been approved in writing as an
Eligible Assignee by the Borrower and the Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any current or
former ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing,
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distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"Equity Issuance" means any issuance of common or preferred stock, or of
any options or warrants to purchase, or other rights exercisable or
exchangeable for, common or preferred stock, of the Borrower, excluding any
such issuance pursuant to any stock based compensation plan or bonus program
with employees, management or directors.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or emergency
reserves) in respect of Eurocurrency liabilities or any similar category of
liabilities for a member bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 11.1;
provided, that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding and (b) such Lender's Commitment
Percentage of the L/C Obligations then outstanding.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"First Union" means First Union National Bank of North Carolina, a
national banking association, and its successors.
"Fiscal Year" means the fiscal year of the Borrower and its Subsidiaries
ending on December 31.
"Fixed Charge Ratio" means with respect to any Person for each period of
four (4) consecutive fiscal quarters immediately preceding the date of
computation (or, if the date of computation
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is the last day of a fiscal quarter, the period of four (4) fiscal quarters
ending on such date of computation), the ratio of (a) EBIT for such period to
(b) the sum of (i) interest expense accrued during such period on all Debt of
such Person, determined in accordance with GAAP, plus (ii) the amount of any
cash dividends paid by such Person to any third party on such Person's
preferred stock, as determined in accordance with GAAP.
"Funded Debt" means, with respect to any Person, the difference between
(a) Total Unsecured Liabilities, minus (b) the sum of "Taxes payable,"
"Allowance for loan losses" and "Other liabilities," all as reflected on the
most recent Consolidated balance sheet delivered to the Agent pursuant to
Section 7.1 herein.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board.
"Gestation Facility" means any credit facility constituting Debt made
available by an investment bank or an affiliate thereof which is secured only
by Receivables which are intended to be included in a pool or pools which will
support publicly or privately issued Asset-Backed Securities to be underwritten
by the related investment bank.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantors" means each of the Material Subsidiaries of the Borrower, as
joint and several guarantors pursuant to the Guaranty Agreement. On the
Closing Date, the Guarantors shall be United Companies Lending Group, Inc.,
United Companies Lending Corporation, Pelican Mortgage Company, Inc., Adobe,
Inc., GINGER MAE, Inc., UNICOR MORTGAGE, Inc., Southern Mortgage Acquisition,
Inc., United Companies Funding, Inc., Gopher Funding, Inc., United Credit Card,
Inc. and Adobe Financial, Inc. I.
"Guaranty Agreement" means the Unconditional Guaranty Agreement of even
date executed by each of the Guarantors in favor of the Agent, for the ratable
benefit of itself, the Lenders and the Issuing Lender, substantially in the
form of Exhibit H hereto, as amended, amended and restated, modified or
otherwise supplemented from time to time.
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"Hazardous Materials" means any substances or materials (a) which are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release
of which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance, a
trespass or pose a health or safety hazard to persons or neighboring
properties, (f) which are materials consisting of underground or aboveground
storage tanks, whether empty, filled or partially filled with any substance, or
(g) which contain, without limitation, asbestos, polychlorinated biphenyls,
urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure of the Borrower or any of
its Subsidiaries (other than Securitization SPVs), and any confirming letter
executed pursuant to such hedging agreement, all as amended, amended and
restated, modified or otherwise supplemented from time to time.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Investment" means any advance, loan or extension of credit, or any
commitment to advance, lend or extend credit, or any capital contribution to,
or any purchase of stocks, bonds, mutual funds, partnership interests, limited
liability company interests, joint venture interests, syndicate interests,
notes, debentures or other securities of, or any other investment in, any
Person (other than Securitization SPVs), excluding, however, any Receivables
originated or purchased (or commitments therefor) or servicing advances in the
ordinary course of business.
"Issuing Lender" means First Union, in its capacity as issuer of any
Letter of Credit, or any successor thereto or such other issuer as otherwise
agreed by the Borrower and First Union.
"L/C Commitment" means One Hundred Million Dollars ($100,000,000).
"L/C Facility" means the letter of credit facility established pursuant
to Article III hereof.
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"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1(a).
"LIBOR" means the rate for deposits in Dollars for a period equal to the
Interest Period selected which appears on the Telerate Page 3750 at
approximately 11:00 a.m. London time, two (2) Business Days prior to the
commencement of the applicable Interest Period (rounded upwards, if necessary,
to the next higher 1/100th of 1%). If, for any reason, such rate is not
available, then "LIBOR" shall mean the rate per annum at which, as determined
by the Agent, Dollars in the amount of $5,000,000 are being offered to leading
banks at approximately 11:00 a.m. London time, two (2) Business Days prior to
the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for
a period equal to the Interest Period selected (rounded upwards, if necessary,
to the next higher 1/100th of 1%).
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Agent pursuant to the
following formula:
LIBOR Rate = LIBOR
----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(excluding, to the extent encompassed by such definition, the subordination
features of such asset (including without limitation the subordination of the
cash flows to which such asset is entitled in favor of other Persons), restric-
tions on
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the right to receive cash flows attributable to such assets, and any priority
order of claim on Receivables, reserve accounts and other deposits created in
connection with the sale of Receivables or participations therein to third
parties where such assets are pledged as security for or escrowed against
credit losses which may occur with respect to such Receivables sold with
recourse). For the purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Liquid Assets" means the sum of the following asset classes multiplied
by the applicable asset multiple provided under the definition of Eligible
Assets: all "Cash and cash equivalents," "Loans in inventory (net)," "Loans
held for investment (net)," and "Temporary investments and subordinated
securities related to Receivables securitizations", in each case as set forth
on the most recent Consolidated financial statements delivered to the Agent
pursuant to Section 7.1, and in each case which are not subject to any Lien in
favor of any Person (other than those specified in Section 10.2 (a) - (e),
inclusive).
"Loans" means the collective reference to the Revolving Credit Loans,
the Swingline Loans and the Competitive Bid Loans and "Loan" means any of such
Loans.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Guaranty Agreement, the Applications, and each other document, instrument and
agreement executed and delivered by the Borrower or its Subsidiaries in
connection with this Agreement or otherwise referred to herein or contemplated
hereby, all as may be amended, amended and restated, modified or otherwise
supplemented from time to time.
"Loan Production Report" means a report covering certain aspects
relating to Mortgage Loan production of the Borrower and its Subsidiaries
substantially in the form of Exhibit I attached hereto and prepared for each
fiscal quarter.
"Material Adverse Effect" means, with respect to the Borrower and its
Material Subsidiaries, taken as a whole, a material adverse effect on the
properties, business, operations or condition (financial or otherwise) of such
Person.
"Material Subsidiary" means each direct or indirect Subsidiary of the
Borrower designated by the Borrower as a "Material Subsidiary" from time to
time; provided, that notwithstanding the foregoing, the Subsidiaries of the
Borrower which comprise "Material Subsidiaries" shall at all times have (a)
Total Assets equal to or greater than ninety-five percent (95%) of the Consol-
idated Total Assets of the Borrower and its Subsidiaries and
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(b) EBIT equal to or greater than ninety-five percent (95%) of the Consolidated
EBIT of the Borrower and its Subsidiaries; provided further, that this
definition (including each of the calculations pursuant hereto) shall exclude
all Securitization SPVs.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"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
is accruing an obligation to make, contributions within the preceding six
years.
"Net Income" means, with respect to any Person for any period, any net
earnings (or net loss) of such Person, determined in accordance with GAAP.
"Net Worth", as to the Borrower, means, as of the date of determination,
the excess of Consolidated Total Assets of the Borrower and its Subsidiaries
over Total Liabilities, each as determined in accordance with GAAP.
"Notes" means the collective reference to the Revolving Credit Notes,
the Swingline Notes and the Competitive Bid Notes and "Note" means any of such
Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 5.2(e)(i).
"Notice of Borrowing" shall have the meaning assigned thereto in Section
2.3(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.5(c).
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing
after the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, and (c) all other fees and commissions (including reasonable
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Borrower to the
Lenders or the Agent under or in respect of this Agreement, any Note, any
Letter of Credit or any of the other Loan Documents, of every kind, nature and
description, direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note, and whether or not for the payment of money.
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"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Other Taxes" shall have the meaning assigned thereto in Section
4.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding
six years been maintained for the employees of the Borrower or any of their
current or former ERISA Affiliates.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust, business trust, joint venture, joint
stock company, pool, syndicate, sole proprietorship, unincorporated
organization, Governmental Authority or any other form of entity or group
thereof.
"Pooling and Servicing Agreements" means the agreements executed from
time to time by and among a Securitization SPV, a trustee and United Companies
Lending Corporation pursuant to which Receivables are transferred to a trust
which issues Asset-Backed Securities backed by such Receivables.
"Property" means, to the extent applicable, the real property, including
the improvements thereon, and/or the personal property (tangible and
intangible) which are encumbered pursuant to a Receivable.
"Receivable" means a mortgage loan, installment loan or sale contract or
other consumer loan receivable, including, without limitation the following
related items, to the extent applicable: (a) promissory note, any reformation
thereof and related deed of trust, mortgage or security agreement; (b) all
guaranties and insurance policies, including, without limitation, all mortgage
and title insurance policies and all fire and extended coverage insurance
policies and rights of the mortgagee, secured party or beneficiary to return
premiums or payments with respect thereto; and (c) all right, title and
interest of the mortgagee, secured party or beneficiary in the Property covered
by said deed of trust, mortgage or security agreement.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
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"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Repurchase Agreement" means any agreement whereby the Borrower or one
of its Subsidiaries sells Receivables or other financial assets to another
Person (other than any other Subsidiary) and the Borrower or such Subsidiary is
unconditionally obligated to repurchase or replace such Receivables or other
financial assets at a future specified date. It is expressly agreed and
understood that an obligation to repurchase a Receivable because of an
inaccurate representation relating to such Receivable or a default by the
obligor under such Receivable is excluded from the definition of Repurchase
Agreement.
"Required Lenders" means, at any date, any combination of holders of at
least fifty percent (50%) of the aggregate unpaid principal amount of the
Revolving Credit Notes, or if no amounts are outstanding under the Revolving
Credit Notes, any combination of Lenders whose Commitment Percentages aggregate
greater than fifty percent (50%).
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II hereof.
"Revolving Credit Loan" means any revolving loan made to the Borrower
pursuant to Section 2.1.
"Revolving Credit Notes" means the separate Revolving Credit Notes made
by the Borrower payable to the order of each Lender, substantially in the form
of Exhibit A-1 hereto, evidencing the Revolving Credit Facility, and any
amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part;
"Note" means any of such Notes.
"Revolving Termination Date" means the earliest of the dates referred to
in Section 2.9.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
"Securitization SPV" means a Subsidiary (which, for the purposes of this
definition only, shall include any corporation, partnership or other entity
which issues Asset-Backed Securities of which more than fifty percent (50%) of
the outstanding capital stock or other ownership interest of such corporation,
partnership or other entity is owned or controlled by the Borrower or any of
its Subsidiaries) of the Borrower which is a bankruptcy-remote special purpose
entity formed for the sole purpose of securitizing Receivables and other
financial assets of the Borrower and its other Subsidiaries and matters
incidental thereto (including
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without limitation through the issuance of pass through or debt securities
backed by Receivables and other financial assets), so long as such entity does
not itself originate Receivables or other financial assets, but rather acquires
such assets from the Borrower and/or its other Subsidiaries.
"Servicing Quality Report" means a report covering certain servicing
matters of the Borrower and its Subsidiaries in the form attached hereto as
Exhibit J and prepared for each fiscal quarter.
"Solvent" means, as to the Borrower and its Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business
and transactions and all business and transactions in which it is about to
engage and is able to pay its debts as they mature, (b) owns property having a
value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"Subordinated Debt" means Debt of the Borrower or any Subsidiary
subordinated in right of time of payment to the Obligations on terms reasonably
satisfactory to the Agent (including, without limitation, a maturity date later
than the Revolving Termination Date).
"Subsidiary" means, as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation, part-
nership or other entity is at the time, directly or indirectly, owned by or the
management is otherwise controlled by such Person (irrespective of whether, at
the time, capital 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).
Unless otherwise qualified references to "Subsidiary" or "Subsidiaries" herein
shall refer to those of the Borrower.
"Swingline Commitment" means Fifty Million Dollars ($50,000,000).
"Swingline Lender" means First Union in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the Borrower pursuant to Section 2.2.
"Swingline Note" means the Swingline Note made by the Borrower payable
to the order of the Swingline Lender, substantially in the form of Exhibit A-2
hereto, evidencing the Swingline Loans, and any
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amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.
"Swingline Termination Date" means the earlier to occur of (a) the
resignation of First Union as Agent in accordance with Section 12.9 and (b) the
Revolving Termination Date.
"Taxes" shall have the meaning assigned thereto in Section =4.11(a).
"Termination Event" means: (a) a "Reportable Event" described in Section
4043 of ERISA, or (b) the withdrawal of the Borrower or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (d) the institution of proceedings to terminate, or the appointment
of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other
event or condition which would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan, or (f) the partial or complete withdrawal of the Borrower or
any ERISA Affiliate from a Multiemployer Plan, or (g) the imposition of a Lien
pursuant to Section 412 of the Code or Section 302 of ERISA, or (h) any event
or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or
condition which results in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA.
"Total Assets" means, with respect to any Person, total assets as shown
on the balance sheet of such Person applicable to the date of determination
thereof prepared in accordance with GAAP.
"Total Liabilities" means total liabilities of the Borrower and its
Subsidiaries as shown on the Consolidated balance sheet of the Borrower
applicable to the date of determination thereof prepared in accordance with
GAAP.
"Total Unsecured Liabilities" means, with respect to any Person, the sum
of the following not subject to a Lien (other than those specified in Section
10.2 (a) - (e) inclusive) in favor of any Person, without duplication: (a) all
liabilities which would be included in Total Liabilities of such Person plus
(b) all Unfunded Liabilities of such Person, plus (c) thirty-five percent (35%)
of the amount outstanding of all Letters of Credit issued on behalf of such
Person to the extent such Person has a reimbursement obligation with respect
thereto, each calculated in accordance with GAAP.
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"UCC" means the Uniform Commercial Code as in effect in the State of New
York.
"Unencumbered Eligible Assets Ratio" shall have the meaning assigned
thereto in Section 9.4.
"Unfunded Liabilities" means, with respect to any Person, without
duplication, any contingent obligation of such Person relating to (i) standby
letters of credit issued on its behalf or on behalf of its Subsidiaries to the
extent such Person or any Subsidiary has a reimbursement obligation with
respect thereto other than Letters of Credit, (ii) guarantees by such Person of
the Debt of any other Person, (iii) obligations of such Person arising under
Repurchase Agreements (constituting Debt as opposed to a sale) and (iv)
guarantees by such Person (excluding guarantees by Adobe, Inc. or Pelican
Mortgage Company, Inc.) of Asset-Backed Securities or in favor of insurers of
such Asset-Backed Securities; provided, that, for purposes of Sections 9.4 and
9.5 only, with respect to such guarantees which do not exceed 35% of Net Worth
in the aggregate, such guarantees shall be valued at 50% of the underlying
obligations guaranteed thereby (without regard to current but unpaid interest)
calculated as of the date of determination thereof, each as determined in
accordance with GAAP.
"Uniform Customs" the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests (excluding director
qualifying shares) of which are, directly or indirectly, owned or controlled by
the Borrower and/or one or more of its Wholly-Owned Subsidiaries.
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either
the singular or plural shall include the singular and plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter. Any reference herein to "Charlotte time" shall
refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings
when used in this Agreement, the Notes and the
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other Loan Documents or any certificate, report or other document made or
delivered pursuant to this Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make Revolving
Credit Loans to the Borrower from time to time from the Closing Date through
the Revolving Termination Date as requested by the Borrower in accordance with
the terms of Section 2.3; provided, that (a) the aggregate principal amount of
all outstanding Revolving Credit Loans (after giving effect to any amount
requested) shall not exceed the Aggregate Commitment less the sum of all
outstanding Swingline Loans, Competitive Bid Loans and the L/C Obligations and
(b) the principal amount of outstanding Revolving Credit Loans from any Lender
to the Borrower shall not at any time exceed such Lender's Commitment less the
sum of such Lender's Commitment Percentage of all outstanding Swingline Loans
and such Lender's Commitment Percentage of the L/C Obligations. Each Revolving
Credit Loan shall be advanced pro rata by the Lenders in accordance with the
provisions hereof. Each Revolving Credit Loan by a Lender shall be in a
principal amount equal to such Lender's Commitment Percentage of the aggregate
principal amount of Revolving Credit Loans requested on such occasion. Subject
to the terms and conditions hereof, the Borrower may borrow, repay and reborrow
Revolving Credit Loans hereunder until the Revolving Termination Date.
SECTION 2.2 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower
from time to time from the Closing Date through the Swingline Termination Date;
provided, that the aggregate principal amount of all outstanding Swingline
Loans (after giving effect to any amount requested), shall not exceed the
lesser of (i) the Aggregate Commitment less the sum of all outstanding
Revolving Credit Loans, Competitive Bid Loans and the L/C Obligations and (ii)
the Swingline Commitment.
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(b) Refunding.
(i) Swingline Loans (except with respect to any Swingline Loan
extended after the occurrence and during the continuance of a Default or an
Event of Default of which the Agent is deemed to have knowledge pursuant to
Section 12.5, which Default or Event of Default has not been waived by the
Required Lenders or the Lenders, as applicable) shall be refunded by the
Lenders on demand by the Swingline Lender (but no less frequently than weekly).
Such refundings shall be made by the Lenders in accordance with their
respective Commitment Percentages and shall thereafter be reflected as
Revolving Credit Loans of the Lenders on the books and records of the Agent,
which Revolving Credit Loans shall be Base Rate Loans. Each Lender shall fund
its respective Commitment Percentage of Revolving Credit Loans as required to
repay Swingline Loans outstanding to the Swingline Lender upon demand by the
Swingline Lender but in no event later than 2:00 p.m. (Charlotte time) on the
next succeeding Business Day after such demand is made. No Lender's obligation
to fund its respective Commitment Percentage of a Swingline Loan shall be
affected by any other Lender's failure to fund its Commitment Percentage of a
Swingline Loan, nor shall any Lender's Commitment Percentage be increased as a
result of any such failure of any other Lender to fund its Commitment
Percentage.
(ii) The Borrower shall pay to the Swingline Lender on demand
the amount of such Swingline Loans to the extent amounts received from the
Lenders are not sufficient to repay in full the outstanding Swingline Loans
requested or required to be refunded.
(iii) Each Lender acknowledges and agrees that its obligation to
refund Swingline Loans (except with respect to any Swingline Loan extended
after the occurrence and during the continuance of a Default or an Event of
Default of which the Agent is deemed to have knowledge pursuant to Section
12.5, which Default or Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable) in accordance with the terms of this
Section 2.2 is absolute and unconditional and shall not be affected by any
circumstance whatsoever (including, without limitation, repayment of such
Swingline Loan by the Borrower pursuant to clause (ii) above); provided, that
if prior to the refunding of any outstanding Swingline Loans pursuant to this
Section 2.2, one of the events described in Section 11.1(h) or (i) shall have
occurred, each Lender will, on the date the applicable Revolving Credit Loan
would have been made, purchase an undivided participating interest in the
Swingline Loan to be refunded in an amount equal to its Commitment Percentage
of the aggregate amount of such Swingline Loan. Each Lender will immediately
transfer to the Swingline Lender, in immediately available funds, the amount of
its participation and upon receipt thereof the Swingline Lender will deliver to
such Lender a certificate evidencing such participation dated the date of
receipt of such funds and for such amount.
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Whenever, at any time after the Swingline Lender has received from any Lender
such Lender's participating interest in a Swingline Loan, the Swingline Lender
receives any payment on account thereof, the Swingline Lender will distribute
to such Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's participating interest was outstanding and funded).
SECTION 2.3 Procedure for Advances of Revolving Credit Loans and
Swingline Loans.
(a) Requests for Borrowing. The Borrower shall give the Agent
irrevocable prior written notice in the form attached hereto as Exhibit B (a
"Notice of Borrowing") not later than 3:00 p.m. (Charlotte time) in the case of
Swingline Loans and 11:00 a.m. (Charlotte time) in the case of Base Rate Loans
and LIBOR Rate Loans (i) on the same Business Day as each Swingline Loan, (ii)
at least one Business Day before each Base Rate Loan (other than Swingline
Loans) and (iii) at least three (3) Business Days before each LIBOR Rate Loan,
of its intention to borrow, specifying (A) the date of such borrowing, which
shall be a Business Day, (B) the amount of such borrowing, which shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $100,000 in
excess thereof with respect to LIBOR Rate Loans and $1,000,000 or a whole
multiple of $100,000 in excess thereof with respect to Base Rate Loans, (C)
whether the Loans are to be LIBOR Rate Loans or Base Rate Loans and (D) in the
case of a LIBOR Rate Loan, the duration of the Interest Period applicable
thereto. Notices received after 3:00 p.m. or 11:00 a.m. (Charlotte time), as
applicable, shall be deemed received on the next Business Day. The Agent shall
promptly notify the Lenders of each Notice of Borrowing.
(b) Disbursement of Revolving Credit and Swingline Loans. (i) Not
later than 2:00 p.m. (Charlotte time) on the proposed borrowing date, each
Lender will make available to the Agent, for the account of the Borrower, at
the office of the Agent in funds immediately available to the Agent, such
Lender's Commitment Percentage of the Revolving Credit Loans to be made on such
borrowing date and (ii) not later than 5:00 p.m. (Charlotte time) on the
proposed borrowing date the Swingline Lender will make available to the Agent,
for the account of the Borrower, at the office of the Agent in funds
immediately available to the Agent, the Swingline Loans to be made to the
Borrower on such borrowing date. The Borrower hereby irrevocably authorizes
the Agent to disburse the proceeds of each borrowing requested pursuant to this
Section 2.3 in immediately available funds by crediting such proceeds to a
deposit account of the Borrower maintained with the Agent or by wire transfer
to such account as may be agreed upon by the Borrower and the Agent from time
to time. Subject to Section 4.7 hereof, the Agent shall not be obligated to
disburse the proceeds of any Revolving Credit Loan requested pursuant to this
Section 2.3 to the extent that any
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Lender has not made available to the Agent its Commitment Percentage of such
Revolving Credit Loan. Revolving Credit Loans to be made for the purpose of
refunding Swingline Loans shall be made by the Lenders as provided in Section
2.2(b) hereof.
SECTION 2.4 Competitive Bid Facility.
(a) Competitive Bid Loans. On the terms and subject to the
conditions set forth herein, any Lender may from time to time prior to the
Revolving Termination Date, in its sole and absolute discretion, offer to make
Competitive Bid Loans to the Borrower in such amounts, at such interest rates
and for such terms as such Lender and the Borrower may agree; provided, that
(a) the aggregate principal amount of all outstanding Competitive Bid Loans
(after giving effect to any amount to be extended hereunder) shall not exceed
the Aggregate Commitment less the sum of all outstanding Revolving Credit
Loans, Swingline Loans and the L/C Obligations.
(b) Requests for Competitive Bid Loans. Whenever the Borrower
desires to receive Competitive Bid Loans, it shall deliver by facsimile to the
Agent a written request therefor (a "Competitive Bid Request") not later than
11:30 a.m. (Charlotte time) on the date which is two (2) Business Days before
the proposed borrowing date of such Competitive Bid Loans. Each Competitive
Bid Request shall specify the principal amount of the Competitive Bid Loans to
be made (which amount cannot be less than $5,000,000 and if in excess of
$5,000,000, must be in whole multiples of $1,000,000 in excess thereof), the
proposed date of such Competitive Bid Loans (which shall be a Business Day),
and the proposed Interest Period for which such Competitive Bid Loans are
requested.
(c) Submission of Bids. By 1:00 p.m. (Charlotte time) on the date
the Agent receives the Competitive Bid Request, it will transmit a copy thereof
to each Lender via facsimile. By 2:00 p.m. (Charlotte time) on the Business
Day preceding the proposed borrowing date, the Agent shall submit its bid for a
Competitive Bid Loan by facsimile to the Borrower if it desires to make a
Competitive Bid Loan. Each Lender may submit by facsimile to the Borrower no
later than 9:00 a.m. (Charlotte time) on the proposed borrowing date, a bid for
a Competitive Bid Loan in response to a Competitive Bid Request. Such bid
shall be evidenced by a writing which shall (A) identify the Lender making such
bid, (B) specify the fixed rate of interest per annum (computed on the basis of
a 360-day year and for the actual number of days elapsed and expressed in
decimals to 1/1,000 of 1%) that such Lender is willing to offer for such
Competitive Bid Loan, (C) the principal amount which such Lender wishes to
advance at such rate and (D) any prepayment premiums which may be applicable.
No such bid may contain qualifying, conditional or similar language or contain
proposed terms other than those specified in this Section 2.4(c), and each such
bid shall be irrevocable and may not be modified
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except to correct a manifest error therein. Each Lender shall have absolute
and sole discretion whether to submit any such bid and is not under any
obligation to do so.
(d) Acceptance of Bids. Not later than 11:00 a.m. (Charlotte time)
on the proposed date of such Competitive Bid Loans, the Borrower shall notify
the Agent via facsimile of the bid(s), if any, with respect to such Competitive
Bid Loans that the Borrower is accepting, and the Agent shall simultaneously
notify the Lender(s) whose bid(s) is or are being accepted via facsimile. Each
bid not accepted by the Borrower through notification of the Agent by the time
set forth above shall be deemed to have been rejected. The Borrower is under
no obligation to accept any bids. However, if the Borrower does elect to
accept bids, it shall accept the lowest bid for such Competitive Bid Loans. If
more than one Lender makes the same lowest bid, then the Competitive Bid Loans
will be allocated among such lowest bidding Lenders in accordance with the
following:
(i) If only one Lender makes such bid for all of the Competitive
Bid Loans being requested, that Lender will be allocated all of the Competitive
Bid Loans.
(ii) If more than one Lender makes such bid for all of the
Competitive Bid Loans being requested, then each such Lender will be allocated
Competitive Bid Loans on a per capita basis (e.g., if 3 Lenders qualify, each
will be allocated 1/3 of the Competitive Bid Loans regardless of their
respective Commitment Percentages).
(iii) If no Lender makes such bid for all of the Competitive Bid
Loans being requested, then each Lender making the lowest bid will be allocated
the amount it bid; provided, that if such allocation would result in
Competitive Bid Loans exceeding the amount requested, then the amounts
allocated to each Lender will be reduced to the extent necessary so that the
Competitive Bid Loans allocated to each Lender will be in the same ratio as the
Competitive Bid Loans bid by all such lowest bidding Lenders (e.g., if
$1,000,000 in Competitive Bid Loans were requested and Lenders A and B were
lowest bidding Lenders with Lender A bidding $700,000 and Lender B bidding
$500,000, Lender A would be allocated 7/12 of the Competitive Bid Loans and
Lender B would be allocated 5/12 of the Competitive Bid Loans).
(e) Commitment to Lend not Reduced. The agreement of a Lender to
make a Competitive Bid Loan hereunder shall not to any extent reduce such
Lender's obligation to fund other Loans to the extent of such Lender's
Commitment, it being expressly acknowledged and agreed that the agreement to
make Competitive Bid Loans is optional on the part of such Lender and in
addition to its Commitment.
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(f) Limits on Competitive Bid Loans. Notwithstanding any provision
hereof to the contrary, in no event can the Borrower submit more than ten (10)
Competitive Bid Requests during any calendar month, and the Borrower may not
submit a Competitive Bid Request if, at the time of such request there are
twenty (20) Competitive Bid Loans then outstanding (and, if there are fewer
than twenty (20) Competitive Bid Loans then outstanding, the number of
Competitive Bid Loans accepted cannot exceed the difference between 20 and the
number of Competitive Bid Loans then outstanding). For purposes of computing
the foregoing limitation, if bids from more than one Lender are accepted in
response to a Competitive Bid Request, then each Lender's Competitive Bid Loan
will be counted separately.
(g) Direct Solicitation of Competitive Bid Loans. The Borrower may
elect to send the Competitive Bid Requests and the notices of acceptance
directly to each Lender rather than to the Agent. In such event, all time
deadlines shall remain the same except that the Agent shall have until 9:00
a.m. (Charlotte time) on the next Business Day to submit its bid to the
Borrower.
(h) Funding of Competitive Bid Loans. All Competitive Bid Loans will
be advanced in immediately available funds by crediting such proceeds to a
deposit account of the Borrower maintained with the Agent or by wire transfer
to such account as may be agreed upon by the Borrower and the Agent from time
to time no later than 2:00 p.m. (Charlotte time) on the Business Day the
Borrower accepts the bids under Section 2.4(d) above.
SECTION 2.5 Repayment of Loans.
(a) Repayment. The Borrower shall repay the outstanding principal
amount of (i) all Revolving Credit Loans on the Revolving Termination Date, if
not sooner repaid, (ii) all Competitive Bid Loans on the last day of the
Interest Period with respect thereto and (iii) all Swingline Loans in
accordance with Section 2.2(b) (ii), together, in each such case (other than
with respect to Swingline Loans), with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Excess Loans. If at any time the
outstanding principal amount of all Loans plus the L/C Obligations exceeds the
Aggregate Commitment, the Borrower shall repay immediately upon notice from the
Agent, by payment to the Agent for the account of the Lenders, Loans and L/C
Obligations in an amount equal to such excess with each such repayment applied
first to the principal amount of outstanding Swingline Loans (except with
respect to any Swingline Loan extended after the occurrence and during the
continuance of a Default or an Event of Default of which the Agent is deemed to
have knowledge pursuant to Section 12.5, which Default or Event of Default has
not been waived by the Required Lenders or the Lenders, as applicable), second
to the principal amount of outstanding Revolving Credit Loans, third, with
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respect to any Letters of Credit then outstanding, a payment of cash collateral
into a cash collateral account opened by the Borrower with the Agent for the
benefit of the Lenders (such cash collateral to be applied in accordance with
Section 11.2(b)), fourth, to the principal amount of outstanding Competitive
Bid Loans, in the inverse order of maturity of such Competitive Bid Loans and
fifth, to the principal amount of outstanding Swingline Loans not repaid in the
first clause above. Each such repayment shall be accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
(c) Optional Repayments. The Borrower may at any time and from time
to time repay the Revolving Credit Loans, in whole or in part, upon at least
three (3) Business Days' irrevocable notice to the Agent with respect to LIBOR
Rate Loans and one (1) Business Day's irrevocable notice with respect to Base
Rate Loans, in the form attached hereto as Exhibit C (a "Notice of Prepayment")
specifying the date and amount of repayment and whether the repayment is of
LIBOR Rate Loans, Base Rate Loans, or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of such
notice, the Agent shall promptly notify each Lender. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
set forth in such notice. Partial repayments shall be in an aggregate amount
of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each such
repayment shall be accompanied by any amount required to be paid pursuant to
Section 4.9 hereof.
(d) Limitation on Repayment of LIBOR Rate Loans and Competitive Bid
Loans. The Borrower may not repay any LIBOR Rate Loan or Competitive Bid Loan
on any day other than on the last day of the Interest Period applicable thereto
unless such repayment is accompanied by any amount required to be paid pursuant
to Section 4.9 hereof.
SECTION 2.6 Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit Loans and
the obligation of the Borrower to repay such Revolving Credit Loans shall be
evidenced by a Revolving Credit Note executed by the Borrower payable to the
order of such Lender representing the Borrower's obligation to pay such
Lender's Commitment or, if less, the aggregate unpaid principal amount of all
Revolving Credit Loans made and to be made by such Lender to the Borrower
hereunder, plus interest and all other fees, charges and other amounts due
thereon. Each Revolving Credit Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 4.1.
(b) Swingline Notes. The Swingline Loans and the obligation of the
Borrower to repay such Swingline Loans shall be evidenced by a Swingline Note
executed by the Borrower payable to the order of
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the Swingline Lender representing the Borrower's obligation to pay the
Swingline Lender's Swingline Commitment or, if less, the aggregate unpaid
principal amount of all Swingline Loans made by the Swingline Lender to the
Borrower hereunder, plus interest on such principal amounts and all other fees,
charges and other amounts due thereon. The Swingline Note shall be dated the
date hereof and shall bear interest on the unpaid principal amount thereof at
the applicable interest rate per annum specified in Section 4.1.
(c) Competitive Bid Notes. Each Lender's Competitive Bid Loans and
the obligation of the Borrower to repay such Competitive Bid Loans shall be
evidenced by a Competitive Bid Note executed by the Borrower payable to the
order of such Lender representing the Borrower's obligation to pay such
Lender's Competitive Bid Loans in a principal amount up to the Aggregate
Commitment or, if less, the aggregate unpaid principal amount of all
Competitive Bid Loans made by such Lender to the Borrower hereunder, plus
interest on such principal amounts and all other fees, charges and other
amounts due thereon. Each Competitive Bid Note shall be dated the Closing Date
and shall bear interest on the unpaid principal amount thereof at the
applicable interest rate per annum specified in Section 4.1.
SECTION 2.7 Separate Interest Rate Agreements. Notwithstanding
anything contained in this Agreement to the contrary, each of the Lenders shall
have the option, upon the request of the Borrower, of entering into separate
letter agreements from time to time with the Borrower whereunder each such
Lender may establish an interest rate for Loans made by such Lender hereunder
different than the interest rate otherwise provided by this Agreement. If any
Lender and the Borrower shall enter into such agreements, such Lender and
Borrower shall calculate the net difference between the interest due hereunder
and the interest due under such agreement and shall settle such difference
between themselves accordingly.
SECTION 2.8 Permanent Reduction of the Aggregate Commitment. The
Borrower shall have the right at any time and from time to time, upon at least
five (5) Business Days prior written notice to the Agent, to permanently
reduce, in whole at any time or in part from time to time, without premium or
penalty, the Aggregate Commitment in an aggregate principal amount not less
than $10,000,000 or any whole multiple of $1,000,000 in excess thereof. Upon
receipt of such notice, the Agent shall promptly notify each Lender. Each
permanent reduction permitted or required pursuant to this Section 2.8 shall be
accompanied by a payment of principal, if necessary, sufficient to reduce the
aggregate outstanding Loans and L/C Obligations of the Lenders after such
reduction to an amount no greater than the Aggregate Commitment as so reduced.
Any reduction of the Aggregate Commitment to zero shall be accompanied by
payment of all outstanding Obligations (and furnishing of cash collateral
satisfactory to the Agent for all L/C Obligations) and, if such
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reduction is permanent, termination of the Commitments and Credit Facility.
Such cash collateral shall be applied in accordance with Section 11.2(b). If
the reduction of the Aggregate Commitment requires the repayment of any LIBOR
Rate Loan, such reduction may be made only on the last day of the then current
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
SECTION 2.9 Termination of Credit Facility.
(a) The Credit Facility (subject to Section 2.2(a) with respect to
Swingline Loans) shall terminate on the earliest of (a) ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇)
the date of termination by the Borrower pursuant to Section 2.8, and (c) the
date of termination by the Agent on behalf of the Lenders pursuant to Section
11.2(a); provided, that not earlier than the ninetieth (90th) day and not later
than the thirtieth (30th) day prior to each anniversary of the Closing Date
(each, an "Extension Date"), the Borrower may, by written notice (an "Extension
Request") given to the Agent, request that the date set forth in clause (a)
above be extended in each such instance to a date that is one (1) year after
such date then in effect. The Agent shall promptly advise each Lender of its
receipt of any Extension Request and furnish each Lender with a copy thereof.
Each Lender may, in its sole discretion, consent to a requested extension by
giving written notice thereof to the Agent not later than the Business Day (the
"Extension Confirmation Date") immediately preceding the date which is twenty
(20) days after receipt of the Extension Request. No Lender shall be under any
obligation or commitment to extend such date and no such obligation or
commitment on the part of any Lender shall be inferred from the provisions of
this Section 2.9. Failure on the part of any Lender to respond to an Extension
Request by the applicable Extension Confirmation Date shall be deemed to be a
denial of such request by such Lender. The requested extension shall not be
granted unless 100% of the Lenders shall have consented in writing to such
extension.
SECTION 2.10 Increase in Aggregate Commitment. So long as no Default
or Event of Default shall have occurred and be continuing, the Borrower shall
have the right from time to time upon not less than thirty (30) days prior
written notice to the Agent to increase the Aggregate Commitment; provided,
that in no event shall the Aggregate Commitment be increased to an amount
greater than $1,000,000,000; provided, further, that:
(a) Any increase in the Aggregate Commitment which is accomplished by
increasing the Commitment of any Lender or Lenders who are at the time of such
increase party to this Agreement (which Lender or Lenders shall consent to such
increase in their sole and absolute discretion) shall be accomplished as
follows: (i) this Agreement will be amended by the Borrower, the Agent and
those Lender(s) whose Commitment(s) is or are being increased to reflect
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the revised Commitment amounts of each of the Lenders, (ii) the Agent will
deliver an updated Schedule 1 to the Borrower, the Issuing Lender and each of
the Lenders reflecting the revised Commitment amounts and Commitment
Percentages of each of the Lenders, (iii) the outstanding Revolving Credit
Loans, Commitment Percentages of Swingline Loans and Commitment Percentages of
L/C Obligations will be reallocated on the effective date of such increase
among the Lenders in accordance with their revised Commitment Percentages (and
the Borrower shall pay any and all costs required pursuant to Section 4.9 in
connection with such reallocation as if such reallocation were a prepayment)
and (iv) the Borrower will deliver new Revolving Credit Note(s) to the Lender
or Lenders whose Commitment(s) is or are being increased reflecting the revised
Commitment amount of such Lender(s).
(b) Any increase in the Aggregate Commitment which is accomplished by
addition of a new Lender under the Agreement shall be accomplished as follows:
(i) such new Lender shall be an Eligible Assignee and shall be subject to the
consent of the Agent, which consent shall not be unreasonably withheld, (ii)
this Agreement will be amended by the Borrower, the Agent and by the party
becoming an additional Lender hereunder to reflect the addition of such party
as a Lender hereunder, (iii) the Agent will deliver an updated Schedule 1 to
the Borrower, the Issuing Lender and each of the Lenders reflecting the revised
Commitment amounts and Commitment Percentages of each of the Lenders, (iv) the
outstanding Revolving Credit Loans, Commitment Percentages of Swingline Loans
and Commitment Percentages of L/C Obligations will be reallocated on the
effective date of such increase among the Lenders in accordance with their
revised Commitment Percentages (and the Borrower shall pay any and all costs
required pursuant to Section 4.9 in connection with such reallocation as if
such reallocation were a prepayment) and (v) the Borrower will deliver a
Revolving Credit Note and Competitive Bid Note to such party.
SECTION 2.11 Use of Proceeds. The Borrower shall use the proceeds of
the Loans (a) to refinance existing Debt and (b) for working capital and
general corporate requirements of the Borrower and its Subsidiaries, including
the payment of certain fees and expenses incurred in connection with the
transactions contemplated herein.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue standby letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day from
the Closing Date through but not including the Revolving Termination Date in
such
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form as may be approved from time to time by the Issuing Lender; provided, that
the Issuing Lender shall have no obligation to and shall not issue any Letter
of Credit if, after giving effect to such issuance, (a) the L/C Obligations
would exceed the L/C Commitment, (b) the aggregate principal amount of all
outstanding Revolving Credit Loans, Swingline Loans, Competitive Bid Loans and
the L/C Obligations would exceed the Aggregate Commitment or (c) the Available
Commitment of any Lender would be less than zero. Each Letter of Credit shall
(i) be denominated in Dollars in a minimum amount of $1,000,000, (ii) be an
irrevocable standby letter of credit issued for the purpose of providing
support in lieu of loss reserves established for the Borrower's securitization,
(iii) expire on a date satisfactory to the Issuing Lender, which date shall be
no later than the Revolving Termination Date and (iv) be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York. The Issuing Lender shall not at any time be obligated to and, to the
extent the Issuing Lender has received notice of such conflict from the
applicable L/C Participant, shall not, issue any Letter of Credit hereunder if
such issuance would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed by, any Applicable Law. References
herein to "issue" and derivations thereof with respect to Letters of Credit
shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at the Agent's Office an Application
therefor, completed to the satisfaction of the Issuing Lender, and such other
certificates, documents and other papers and information as the Issuing Lender
may request. Upon receipt of any Application, the Issuing Lender shall process
such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall, subject to Section 3.1 and Article V hereof,
promptly issue the Letter of Credit requested thereby (but in no event shall
the Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish to the Borrower a copy of such Letter of Credit and
furnish to each Lender a copy of such Letter of Credit and the amount of each
Lender's participation therein, all promptly following the issuance of such
Letter of Credit.
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SECTION 3.3 Commissions and Other Charges.
(a) The Borrower shall pay to the Agent, for the account of the
Issuing Lender and the L/C Participants, a letter of credit fee with respect to
each Letter of Credit in an amount equal to the product of (i) a fee equal to
the Applicable Margin in effect with respect to LIBOR Rate Loans as set forth
in Section 4.1(c) multiplied by (ii) the average daily face amount of such
Letter of Credit multiplied by (iii) a fraction the numerator of which is the
number of days during such period that such Letter of Credit was issued and
outstanding and the denominator of which is 360. Such fee shall be payable
quarterly in arrears on the last Business Day of each fiscal quarter of the
Borrower and on the Revolving Termination Date. The Agent shall, promptly
following its receipt thereof, distribute to the Issuing Lender and L/C
Participants all commissions received by the Agent in accordance with their
respective Commitment Percentages.
(b) The Borrower shall pay to the Issuing Lender a fronting fee with
respect to each Letter of Credit in an amount equal to the product of (i)
0.125% multiplied by (ii) the average daily face amount of such Letter of
Credit multiplied by (iii) a fraction the numerator of which is the number of
days during such period that such Letter of Credit was issued and outstanding
and the denominator of which is 360. Such fee shall be payable quarterly in
arrears on the last Business Day of each fiscal quarter of the Borrower and on
the Revolving Termination Date.
(c) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit. Upon the
Borrower's request for any Letter of Credit, the Issuing Lender shall estimate
the amount of such fees and provide the Borrower with such estimation as soon
as practicable; provided that the Issuing Lender shall incur no liability nor
shall the Borrower be released from any of its obligations in the event the
Issuing Lender fails to do so.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on the terms
and conditions hereinafter stated, for such L/C Participant's own account and
risk an undivided interest equal to such L/C Participant's Commitment
Percentage in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
the Issuing Lender
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that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms
of this Agreement, such L/C Participant shall pay to the Issuing Lender upon
demand at the Issuing Lender's address for notices specified herein an amount
equal to such L/C Participant's Commitment Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed.
(b) To the extent the Issuing Lender is not reimbursed by the
Borrower pursuant to Section 3.5 or cannot be reimbursed by the Lenders through
the issuance of Revolving Credit Loans pursuant to Section 3.5 for any reason,
the Issuing Lender shall notify each L/C Participant of the amount and due date
of such L/C Participant's portion of such unreimbursed payment and such L/C
Participant shall pay to the Issuing Lender the amount specified on the
applicable due date. If any such amount is paid to the Issuing Lender after
the date such payment is due, such L/C Participant shall pay to the Issuing
Lender on demand, in addition to such amount, the product of (i) such amount,
times (ii) the daily average Base Rate as determined by the Agent during the
period from and including the date such payment is due to the date on which
such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of the Issuing
Lender with respect to any amounts owing under this Section shall be conclusive
in the absence of manifest error. With respect to payment to the Issuing
Lender of the unreimbursed amounts described in this Section 3.4(b), if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m.
(Charlotte time) on any Business Day, such payment shall be due that Business
Day, and (B) after 1:00 p.m. (Charlotte time) on any Business Day, such payment
shall be due on the following Business Day. No L/C Participant's obligation to
fund its respective Commitment Percentage of any unreimbursed portion of any
payment made by the Issuing Lender under any Letter of Credit shall be affected
by any other L/C Participant's failure to fund its Commitment Percentage of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, nor shall any Lender's Commitment Percentage be increased as a
result of any such failure of any other Lender to fund its Commitment
Percentage. Notwithstanding anything herein to the contrary, no payments shall
be made hereunder to reimburse the Issuing Lender for any Letter of Credit
issued after the occurrence and during the continuance of a Default or an Event
of Default of which the Agent is deemed to have knowledge pursuant to Section
12.5, which Default or Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Commitment Percentage of such payment in accordance with this Section 3.4, the
Issuing Lender receives any payment
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related to such Letter of Credit (whether directly from the Borrower or
otherwise), or any payment of interest on account thereof, the Issuing Lender
will distribute to such L/C Participant its pro rata share thereof; provided,
that in the event that any such payment received by the Issuing Lender shall be
required to be returned by the Issuing Lender, such L/C Participant shall
return to the Issuing Lender the portion thereof previously distributed by the
Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft paid under any Letter
of Credit for the amount of (a) such draft so paid and (b) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in connection
with such payment. Each such payment shall be made to the Issuing Lender at
its address for notices specified herein in lawful money of the United States
and in immediately available funds. Interest shall be payable on any and all
amounts remaining unpaid by the Borrower under this Article III from the date
such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding Base Rate Loans which were then overdue. If the Borrower fails to
timely reimburse the Issuing Lender on the date the Borrower receives the
notice referred to in this Section 3.5, the Borrower shall be deemed to have
timely given a Notice of Borrowing hereunder to the Agent requesting the
Lenders to make a Base Rate Loan on such date in an amount equal to the amount
of such drawing and, subject to the satisfaction or waiver of the conditions
precedent specified in Article V, the Lenders shall make Base Rate Loans in
such amount, the proceeds of which shall be applied to reimburse the Issuing
Lender for the amount of the related drawing and costs and expenses.
Notwithstanding anything herein to the contrary, no such Base Rate Loans shall
be extended to reimburse the Issuing Lender for any Letter of Credit issued
after the occurrence and during the continuance of a Default or an Event of
Default of which the Agent is deemed to have knowledge pursuant to Section
12.5, which Default or Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under this
Article III (including without limitation the Reimbursement Obligation) shall
be absolute and unconditional under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which the Borrower may have
or have had against the Issuing Lender or any beneficiary of a Letter of
Credit. The Borrower also agrees with the Issuing Lender that the Issuing
Lender and the L/C Participants shall not be responsible for, and the
Borrower's Reimbursement Obligation under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
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invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of a Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Lender's gross negligence or willful
misconduct. The Borrower agrees that any action taken or omitted by the
Issuing Lender or any L/C Participant under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in the Uniform Customs and, to the extent not inconsistent therewith,
the UCC shall be binding on the Borrower and shall not result in any liability
of the Issuing Lender or any L/C Participant to the Borrower. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
SECTION 3.7 Effect of Application. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
4.1, at the election of the Borrower, the aggregate principal balance of the
Revolving Credit Notes or any portion thereof shall bear interest at the Base
Rate or the LIBOR Rate plus, in each case, the Applicable Margin as set forth
below; provided, that the LIBOR Rate shall not be available until three (3)
Business Days after the Closing Date. The Borrower shall select the rate of
interest and Interest Period, if any, applicable to any Revolving Credit Loan
at the time a Notice of Borrowing is given pursuant to Section 2.2 or at the
time a Notice of Conversion/Continuation is given pursuant to Section 4.2.
Each Loan or portion thereof bearing interest based on the Base Rate shall be a
"Base Rate Loan" and each Loan or portion thereof bearing interest based on the
LIBOR Rate shall be a "LIBOR Rate Loan". Any Swingline Loan shall bear
interest at the Base Rate. Any Loan or any portion thereof as to which the
Borrower has not
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duly specified an interest rate as provided herein shall be deemed a Base Rate
Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan and
Competitive Bid Loan, the Borrower, by giving notice at the times described in
Section 4.1(a) or 2.4, respectively, shall elect an interest period (each, an
"Interest Period") to be applicable to such Loan, which Interest Period shall:
(i) with respect to each LIBOR Rate Loan, be a period of one
(1), two (2), three (3), or six (6) months; provided, that:
(A) the Interest Period shall commence on the date of advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall
commence on the date on which the next preceding Interest Period
expires;
(B) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, that if any Interest Period
would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(C) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the relevant calendar
month at the end of such Interest Period;
(D) no Interest Period shall extend beyond the Revolving
Termination Date; and
(E) there shall be no more than ten (10) Interest Periods
outstanding at any time; and
(ii) with respect to each Competitive Bid Loan, be a period of
less than thirty (30) days as requested pursuant to Section 2.4(b); provided,
that no such Interest Period shall extend beyond the Revolving Termination
Date.
(c) Applicable Margin. The Applicable Margin provided for in Section
4.1(a) with respect to the Revolving Credit Loans and
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Swingline Loans (the "Applicable Margin") shall be based on the Borrower's
unsecured long-term debt ratings as follows:
================================================================================
Tier I Tier II Tier III Tier IV
--------------------------------------------------------------------------------
At least At least At least Not rated or
BBB+ or BBB or BBB- or not rated at
Baa1* Baa2* Baa3* least BBB-
or Baa3
--------------------------------------------------------------------------------
Applicable Margin for 45 bps 52.5 bps 62.5 bps 87.5 bps
Base Rate Loans
--------------------------------------------------------------------------------
Applicable Margin for 32.5 bps 40 bps 50 bps 75 bps
LIBOR Rate Loans
================================================================================
* In order to qualify for the Applicable Margins under Tier I, Tier II or
Tier III above, the Borrower must obtain unsecured senior long-term debt
ratings from two nationally recognized rating agencies, one of which
must be either S&P or ▇▇▇▇▇'▇. If the Borrower's debt rating from the
two agencies, which are to be selected by the Borrower, differs, then
the lower rating will be utilized for purposes of establishing interest
rates, facility fees and letter of credit issuance fees.
Adjustments, if any, in the Applicable Margin shall be effective as of the
Business Day any change in the Borrower's unsecured long-term debt ratings
becomes effective.
(d) Default Rate. Upon the occurrence and during the continuance of
an Event of Default, (i) the Borrower shall no longer have the option to
request LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall bear
interest at a rate per annum two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans until the end of the applicable Interest Period
and thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans, and (iii) all outstanding Base Rate Loans shall
bear interest at a rate per annum equal to two percent (2%) in excess of the
rate then applicable to Base Rate Loans. Interest shall continue to accrue on
the Notes after the filing by or against the Borrower of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation.
(i) Interest on each Base Rate Loan shall be payable quarterly
in arrears on the fifth (5th) Business Day following the last day of each
calendar quarter commencing with the calendar quarter ending June 30, 1997 and
on the Revolving Termination Date
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and interest on each LIBOR Rate Loan and Competitive Bid Loan shall be payable
on the last day of each Interest Period applicable thereto, and if such
Interest Period extends over three (3) months, at the end of each three (3)
month interval during such Interest Period. All interest rates, fees and
commissions provided hereunder shall be computed on the basis of a 360-day year
and assessed for the actual number of days elapsed.
(ii) The Agent shall (A) in the case of the Base Rate Loans, on
or before the third Business Day of each calendar quarter, and (B) in the case
of LIBOR Rate Loans, on or before the day preceding the last day of the
applicable Interest Period, deliver to the Borrower an interest billing for the
immediately preceding calendar quarter or Interest Period, as the case may be,
which billing shall set forth interest accrued and payable on Loans for such
period to be collected by the Agent and which billing shall be payable no later
than the fifth Business Day of such calendar quarter (or on the last day of the
applicable Interest Period, in the case of LIBOR Loans).
(iii) On or before the third Business Day of each calendar
quarter, the Agent shall deliver to the Borrower a fee billing for the
immediately preceding calendar quarter which billing shall set forth fees
payable under Section 4.3 hereof for such period (and a supporting schedule
showing in reasonable detail the manner of computation thereof), which billing
shall be payable no later than the fifth Business Day of such calendar quarter.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the
maximum rate permitted by Applicable Law and the Lenders shall at the Agent's
option promptly refund to the Borrower any interest received by Lenders in
excess of the maximum lawful rate or shall apply such excess to the principal
balance of the Obligations. It is the intent hereof that the Borrower not pay
or contract to pay, and that neither the Agent nor any Lender receive or
contract to receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may be paid by the Borrower under Applicable Law.
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Event of Default has occurred and is then continuing, the
Borrower shall have the option to (a) (i) convert at any time all or any
portion of its outstanding Base Rate Loans (other than Swingline Loans) in a
principal amount equal to
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$5,000,000 or any whole multiple of $100,000 in excess thereof into one or more
LIBOR Rate Loans or (b) upon the expiration of any Interest Period, (i) convert
all or any part of its outstanding LIBOR Rate Loans in a principal amount equal
to $1,000,000 or a whole multiple of $100,000 in excess thereof into Base Rate
Loans or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the
Borrower desires to convert or continue Loans as provided above, the Borrower
shall give the Agent irrevocable prior written notice in the form attached as
Exhibit D (a "Notice of Conversion/ Continuation") not later than 11:00 a.m.
(Charlotte time) three (3) Business Days before the day on which a proposed
conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to
be converted or continued, the last day of the Interest Period thereof, (B) the
effective date of such conversion or continuation (which shall be a Business
Day), (C) the principal amount of such Loans to be converted or continued, and
(D) the Interest Period to be applicable to such LIBOR Rate Loan resulting from
such conversion or continuation. The Agent shall promptly notify the Lenders
of such Notice of Conversion/Continuation.
SECTION 4.3 Facility, Agent's and Other Fees.
(a) Facility Fee. Commencing on the Closing Date, the Borrower shall
pay to the Agent, for the account of the Lenders, a non-refundable facility fee
on the Aggregate Commitment at a rate per annum equal to the rate set forth
below based on the Borrower's unsecured long-term debt ratings:
================================================================================
Tier I Tier II Tier III Tier IV
--------------------------------------------------------------------------------
At least At least At least Not rated or not
BBB+ or BBB or BBB- or rated at least
Baa1* Baa2* Baa3* BBB- or Baa3
--------------------------------------------------------------------------------
Facility Fee 17.5 bps 20 bps 25 bps 30 bps
================================================================================
* In order to qualify for the fees under Tier I, Tier II or Tier III
above, the Borrower must obtain unsecured senior long-term debt ratings
from two nationally recognized rating agencies, one of which must be
either S&P or ▇▇▇▇▇'▇. If the Borrower's debt rating from the two
agencies, which are to be selected by the Borrower, differs, then the
lower rating will be utilized for purposes of establishing the fees.
Adjustments, if any, in the facility fee shall be effective as of the Business
Day any change in the Borrower's unsecured long-term debt ratings becomes
effective. The facility fee shall be payable quarterly in arrears on the fifth
(5th) Business Day following the
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last day of each calendar quarter, commencing with the calendar quarter ending
June 30, 1997.
(b) Agent's and Other Fees. In order to compensate the Agent for
structuring, syndicating and arranging the Loans and each of the Lenders for
their Commitments hereunder, the Borrower agrees to pay to the Agent, for the
account of itself and the Lenders, the fees set forth in the separate fee
letter agreement executed by the Borrower and the Agent dated November 20, 1996
(including the upfront fees payable to each of the Lenders set forth therein).
SECTION 4.4 Manner of Payment. Each payment by the Borrower on account
of the principal of or interest on the Loans or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement or any Note shall be made not later than 2:00 p.m. (Charlotte
time) on the date specified for payment under this Agreement (or, with respect
to Swingline Loans, 5:00 p.m.; provided, that the Borrower shall have provided
the Agent with prior written notice of its intention to make such payment no
later than 4:00 p.m. (Charlotte time)) to the Agent at the Agent's Office for
the account of the Lenders (other than as set forth below) pro rata in
accordance with their respective Commitment Percentages, in Dollars, in
immediately available funds and shall be made without any set-off, counterclaim
or deduction whatsoever. Any payment received after such time but before 5:00
p.m. (Charlotte time) on such day shall be deemed a payment on such date for
the purposes of Section 11.1, but for all other purposes shall be deemed to
have been made on the next succeeding Business Day. Any payment received after
5:00 p.m. (Charlotte time) shall be deemed to have been made on the next
succeeding Business Day for all purposes. Upon receipt by the Agent of each
such payment, the Agent shall promptly distribute to each Lender at its address
for notices set forth herein its pro rata share of such payment in accordance
with such Lender's Commitment Percentage and shall wire advice of the amount of
such credit to each Lender. Each payment to the Agent of the Issuing Lender's
fees or L/C Participants' commissions shall be made in like manner, but for the
account of the Issuing Lender or the L/C Participants, as the case may be.
Each payment to the Agent of amounts due with respect to any Competitive Bid
Loan shall be made in like manner, but for the account of the applicable
Lender. Each payment to the Agent of Agent's fees or expenses shall be made
for the account of the Agent and any amount payable to any Lender under
Sections 4.8, 4.9, 4.10, 4.11 or 13.2 shall be paid to the Agent for the
account of the applicable Lender.
SECTION 4.5 Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, then during the continuance of
any such Event of Default all payments received by the Agent or any Lender upon
the Notes and the other Obligations and all net proceeds from the
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43
enforcement of the Obligations shall be applied first to all reasonable
expenses then due and payable by the Borrower hereunder, then to all indemnity
obligations then due and payable by the Borrower hereunder, then to all Agent's
fees then due and payable, then to all facility and other fees and commissions
then due and payable, then to accrued and unpaid interest on the Swingline Note
to the Swingline Lender, then to the principal amount outstanding under the
Swingline Note to the Swingline Lender (in each case, except with respect to
any Swingline Loan extended after the occurrence and during the continuance of
a Default or an Event of Default of which the Agent is deemed to have knowledge
pursuant to Section 12.5, which Default or Event of Default has not been waived
by the Required Lenders or the Lenders, as applicable), then to accrued and
unpaid interest on the Revolving Credit Notes and the Reimbursement Obligation
(pro rata in accordance with all such amounts due), then to the principal
amount outstanding under the Revolving Credit Notes, then to the cash
collateral account described in Section 11.2(b) hereof to the extent of any L/C
Obligations then outstanding, then to accrued and unpaid interest on the
Competitive Bid Notes, then to the principal amount outstanding under the
Competitive Bid Notes, then to accrued and unpaid interest on the Swingline
Note to the Swingline Lender not repaid above, then to the principal amount
outstanding under the Swingline Note to the Swingline Lender not repaid above,
in that order.
SECTION 4.6 Adjustments. If any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of its Extensions of Credit, or
interest thereon, or if any Lender shall at any time receive any collateral in
respect to its Extensions of Credit (whether voluntarily or involuntarily, by
set-off or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of such other
Lender's Extensions of Credit, or interest thereon, such Benefitted Lender
shall purchase for cash from the other Lenders such portion of each such other
Lender's Extensions of Credit, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender's Extensions of Credit may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion.
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Agent. The obligations of
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the Lenders under this Agreement to make the Loans and issue or participate in
Letters of Credit are several and are not joint or joint and several. Unless
the Agent shall have received notice from a Lender prior to a proposed
borrowing date that such Lender will not make available to the Agent such
Lender's ratable portion of the amount to be borrowed on such date (which
notice shall not release such Lender of its obligations hereunder), the Agent
may assume that such Lender has made such portion available to the Agent on the
proposed borrowing date in accordance with Section 2.3(b) and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Agent on a date
after such borrowing date, such Lender shall pay to the Agent on demand an
amount, until paid, equal to the product of (a) the amount of such Lender's
Commitment Percentage of such borrowing, times (b) the daily average Base Rate
during such period as determined by the Agent, times (c) a fraction the
numerator of which is the number of days that elapse from and including such
borrowing date to the date on which such Lender's Commitment Percentage of such
borrowing shall have become immediately available to the Agent and the
denominator of which is 360. A certificate of the Agent with respect to any
amounts owing under this Section shall be conclusive, absent manifest error.
If such Lender's Commitment Percentage of such borrowing is not made available
to the Agent by such Lender within three (3) Business Days of such borrowing
date, the Agent shall be entitled to recover such amount made available by the
Agent with interest thereon at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the Borrower. The failure of any Lender to make its
Commitment Percentage of any Loan available shall not relieve it or any other
Lender of its obligation, if any, hereunder to make its Commitment Percentage
of such Loan available on such borrowing date, but no Lender shall be respon-
sible for the failure of any other Lender to make its Commitment Percentage of
such Loan available on the borrowing date.
SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect
to any Interest Period the Agent or any Lender (after consultation with Agent)
shall determine that, by reason of circumstances affecting the foreign exchange
and interbank markets generally, deposits in eurodollars, in the applicable
amounts are not being quoted via Telerate Page 3750 or offered to the Agent or
such Lender for such Interest Period, then the Agent shall forthwith give
notice thereof to the Borrower. Thereafter, until the Agent notifies the
Borrower that such circumstances no longer exist, the obligation of the Lenders
to make LIBOR Rate Loans and the right of the Borrower to convert any Revolving
Credit Loan to or continue any Revolving Credit Loan as a LIBOR Rate Loan shall
be suspended, and the Borrower shall repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such LIBOR Rate Loans
together with accrued interest thereon, on the
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45
last day of the then current Interest Period applicable to such LIBOR Rate Loan
or convert the then outstanding principal amount of each such LIBOR Rate Loan
to a Base Rate Loan as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any of its respective
Lending Offices) with any request or directive (whether or not having the force
of law) of any such Governmental Authority, central bank or comparable agency,
shall make it unlawful or impossible for any of the Lenders (or any of their
respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Agent and the Agent shall promptly give notice to the Borrower and the
other Lenders. Thereafter, until the Agent notifies the Borrower that such
circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR
Rate Loans and the right of the Borrower to convert any Loan or continue any
Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrower may
select only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current
Interest Period applicable thereto as a LIBOR Rate Loan, the applicable LIBOR
Rate Loan shall immediately be converted to a Base Rate Loan for the remainder
of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of,
or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Lenders (or any of their respective Lending Offices)
with any request or directive (whether or not having the force of law) of such
Governmental Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their respective
Lending Offices) to any tax, duty or other charge with respect to any Note,
Letter of Credit or Application or shall change the basis of taxation of
payments to any of the Lenders (or any of their respective Lending Offices) of
the principal of or interest on any Note, Letter of Credit or Application or
any other amounts due under this Agreement in respect thereof (except for
changes in the rate of tax on the overall net income of any of the Lenders or
any of their respective Lending Offices imposed by the jurisdiction in which
such Lender is organized or is or should be qualified to do business or such
Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of
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46
Governors of the Federal Reserve System but excluding any reserve included in
the definition of Reserve Percentage), special deposit, insurance or capital or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any of the Lenders (or any of their respective Lending
Offices) or shall impose on any of the Lenders (or any of their respective
Lending Offices) or the foreign exchange and interbank markets any other
condition affecting any Note or Letter of Credit (or any participation
therein);
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Agent, and the Agent shall promptly notify the
Borrower of such fact and demand compensation therefor and, within fifteen (15)
days after such notice by the Agent, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or Lenders for such
increased cost or reduction which has occurred prior thereto. Each Lender
agrees to notify the Borrower of any event occurring after the Closing Date
entitling such Lender to compensation under any of the preceding subsections of
this Section as promptly as practicable; provided, that except as otherwise
limited by the next sentence, the failure of any Lender to give such notice
shall not result in any liability to such Lender or release the Borrower from
any of its obligations hereunder. A Lender shall only be entitled to
compensation under any of the preceding subsections of this Section for
increased costs occurring during the one hundred twenty (120) day period ending
on the date the Borrower receives the notice described in the immediately
preceding sentence; provided, that from and after such notice, such Lender
shall be entitled to compensation for increased costs occurring after such
notice until such time as such increased costs cease to exist. The amount of
such compensation shall be determined, in the applicable Lender's reasonable
discretion, based upon the assumption that such Lender funded its Commitment
Percentage of the LIBOR Rate Loans in the London interbank market and using any
reasonable attribution or averaging methods which such Lender deems appropriate
and practical. A certificate of such Lender setting forth the basis for
determining such amount or amounts necessary to compensate such Lender shall be
forwarded to the Borrower through the Agent and shall be conclusively presumed
to be correct save for manifest error.
SECTION 4.9 Indemnity. The Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other funds acquired
to effect, fund or maintain any Loan (a) as a consequence of any failure by the
Borrower to make any payment when due of any amount due hereunder
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47
in connection with a LIBOR Rate Loan or Competitive Bid Loan, (b) due to any
failure of the Borrower to borrow, continue or convert on a date specified
therefor in a Notice of Borrowing, Notice of Continuation/Conversion or
Competitive Bid Request or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan or Competitive Bid Loan on a date other than the last day
of the Interest Period therefor. Each Lender agrees to notify the Borrower of
any event occurring after the Closing Date entitling such Lender to
compensation under this Section as promptly as practicable; provided, that
except as otherwise limited by the next sentence, the failure of any Lender to
give such notice shall not result in any liability to such Lender or release
the Borrower from any of its obligations hereunder. A Lender shall only be
entitled to compensation under this Section for losses and expenses occurring
during the one hundred twenty (120) day period ending on the date the Borrower
receives the notice described in the immediately preceding sentence; provided,
that from and after such notice, such Lender shall be entitled to compensation
for losses and expenses occurring after such notice until such time as such
losses and expenses cease to exist. The amount of such loss or expense shall
be determined, in the applicable Lender's reasonable discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrower through the Agent and shall be conclusively presumed to be correct
save for manifest error.
SECTION 4.10 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of
law), has or would have the effect of reducing the rate of return on the
capital of, or has affected or would affect the amount of capital required to
be maintained by, any Lender or any corporation controlling such Lender as a
consequence of, or with reference to the Commitments and other commitments of
this type, below the rate which such Lender or such other corporation could
have achieved but for such introduction, change or compliance, then within five
(5) Business Days after written demand by any such Lender, the Borrower shall
pay to such Lender from time to time as specified by such Lender additional
amounts sufficient to compensate such Lender or other corporation for such
reduction. Each Lender agrees to notify the Borrower of any event occurring
after the Closing Date entitling such Lender to compensation under this Section
as promptly as practicable; provided, that except as otherwise limited by the
next sentence, the failure of any Lender to give such notice shall not result
in any liability to such Lender or release the Borrower from any of its obliga-
tions hereunder. A Lender shall only be entitled
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to compensation under this Section for reductions occurring during the one
hundred twenty (120) day period ending on the date the Borrower receives the
notice described in the immediately preceding sentence; provided, that from and
after such notice, such Lender shall be entitled to compensation for reductions
occurring after such notice until such time as such reductions cease to exist.
A certificate as to such amounts submitted to the Borrower and the Agent by
such Lender, shall, in the absence of manifest error, be presumed to be correct
and binding for all purposes.
SECTION 4.11 Taxes.
(a) Payments Free and Clear. Any and all payments by the
Borrower hereunder or under the Notes or in respect of the Letters of Credit
shall be made free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or withholding, and all
liabilities with respect thereto excluding, (i) in the case of each Lender and
the Agent, income and franchise taxes imposed by the jurisdiction under the
laws of which such Lender or the Agent (as the case may be) is organized or is
or should be qualified to do business or any political subdivision thereof and
(ii) in the case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's 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 or in respect of any Letter of Credit
to any Lender or the Agent, (A) 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 4.11) such Lender or
the Agent (as the case may be) receives an amount equal to the amount such
party would have received had no such deductions been made, (B) the Borrower
shall make such deductions, (C) the Borrower shall pay the full amount deducted
to the relevant taxing authority or other authority in accordance with
applicable law, and (D) the Borrower shall deliver to the Agent evidence of
such payment to the relevant taxing authority or other authority in the manner
provided in Section 4.11(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall
pay any present or future stamp, registration, recordation or documentary taxes
or any other similar fees or charges or excise or property taxes, levies of the
United States or any state or political subdivision thereof or any applicable
foreign jurisdiction which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the Loans, the Letters of Credit, the other Loan Documents, or the
perfection of any rights or security interest in respect thereof (hereinafter
referred to as "Other Taxes").
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(c) Indemnity. The Borrower shall indemnify each Lender and
the Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 4.11) paid by such Lender 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. Such indemnification shall be made within
thirty (30) days from the date such Lender or the Agent (as the case may be)
makes written demand therefor. Each Lender and the Agent agree to notify the
Borrower of any event occurring after the Closing Date entitling such Lender or
the Agent to indemnification under this Section as promptly as practicable;
provided, that except as otherwise limited by the next sentence, the failure of
any Lender or the Agent to give such notice shall not result in any liability
to such Lender or the Agent or release the Borrower from any of its obligations
hereunder. A Lender or the Agent shall only be entitled to indemnification
under this Section for Taxes and Other Taxes paid during the one hundred twenty
(120) day period ending on the date the Borrower receives the notice described
in the immediately preceding sentence; provided, that from and after such
notice, such Lender shall be entitled to compensation for Taxes and Other Taxes
occurring after such notice until such time as such Taxes and Other Taxes cease
to exist.
(d) Evidence of Payment. Within thirty (30) days after the
date of any payment of Taxes or Other Taxes, the Borrower shall furnish to the
Agent, at its address referred to in Section 13.1, the original or a certified
copy of a receipt evidencing payment thereof or other evidence of payment
satisfactory to the Agent.
(e) Delivery of Tax Forms. Each Lender organized under the
laws of a jurisdiction other than the United States or any state thereof shall
deliver to the Borrower, with a copy to the Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
1001, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) if applicable, an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding taxes. Each such Lender further agrees to deliver to
the Borrower, with a copy to the Agent, a Form 1001 or 4224 and Form W-8 or W-
9, or successor applicable forms or manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, certifying in the case of a Form
1001 or 4224 that such Lender is entitled to receive payments under
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this Agreement without deduction or withholding of any United States federal
income taxes (unless in any such case an event (including without limitation
any change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders such forms
inapplicable or the exemption to which such forms relate unavailable and such
Lender notifies the Borrower and the Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income
taxes) and, in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax.
(f) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 4.11 shall survive the payment in full of
the Obligations and the termination of the Commitments; provided, that the
Agent and Lenders shall only be entitled to claim the indemnities hereunder to
the extent a claim is submitted to the Borrower not later than one year after
the termination of this Agreement and the payment of all outstanding
Obligations hereunder.
SECTION 4.12 Change of Lending Office. If any Lender requests
compensation pursuant to Section 4.8(c), 4.10 or 4.11, or the obligation of the
Lenders to make LIBOR Rate Loans or to continue, or to convert Base Rate Loans
into, LIBOR Rate Loans shall be suspended pursuant to Section 4.8(a) or (b) due
to an event affecting any Lender, then such Lender shall use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
file any certificate or document requested by the Borrower or to change the
jurisdiction of its Lending Office if the making of such filing or change would
avoid the need for or reduce the amount of any such additional amounts which
may thereafter accrue or would avoid the circumstances set forth in Section
4.8(a) or (b) and would not, in the judgment of such Lender, be disadvantageous
to such Lender.
SECTION 4.13 Affected Lenders. In addition to the obligations set
forth in Section 4.12 above, if any Lender requests compensation pursuant to
Section 4.8(c), 4.10 or 4.11, or the obligation of the Lenders to make LIBOR
Rate Loans or to continue, or to convert Base Rate Loans into, LIBOR Rate Loans
shall be suspended pursuant to Section 4.8(a) or (b) due to an event affecting
any Lender, then, so long as there does not then exist any Default or Event of
Default, the Borrower may either (a) demand that such Lender (the "Affected
Lender"), and upon such demand the Affected Lender shall promptly, assign its
Commitment to another financial institution subject to and in accordance with
the provisions of Section 13.10(b) for a purchase price equal to the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued
but unpaid interest thereon, accrued but unpaid fees and any other amounts
owing to the Affected Lender
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hereunder, or (b) pay to the Affected Lender the aggregate principal balance of
Loans then owing to the Affected Lender plus any accrued but unpaid interest
thereon, accrued but unpaid fees and any other amounts owing to the Affected
Lender hereunder, whereupon the Affected Lender shall no longer be a party
hereto or have any rights or obligations hereunder or under any of the other
Loan Documents and the Aggregate Commitment shall immediately and permanently
be reduced by an amount equal to the amount of the Affected Lender's
Commitment. The Agent shall cooperate in effectuating the replacement of an
Affected Lender under this Section, but at no time shall the Agent be obligated
in any way whatsoever to initiate any such replacement. The exercise by the
Borrower of its rights under this Section shall be at the Borrower's sole cost
and expense (including with respect to the assignment fee required pursuant to
Section 13.10(b)(v)), and at no cost or expense to the Agent, the Affected
Lender or any of the other Lenders.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 Closing. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. on April 10, 1997, or at
such other place or on such other date as the parties hereto shall mutually
agree.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit.
The obligation of the Lenders to close this Agreement and to make the initial
Loan or issue the initial Letter of Credit is subject to the satisfaction of
each of the following conditions:
(a) Executed Loan Documents. This Agreement, the Notes and
the Guaranty Agreement shall have been duly authorized, executed and delivered
to the Agent by the parties thereto, shall be in full force and effect and no
default shall exist thereunder, and the Borrower shall have delivered original
counterparts thereof to the Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrower. The Agent
shall have received a certificate from the chief executive officer or chief
financial officer of the Borrower, in form and substance satisfactory to the
Agent, to the effect that to the best knowledge of such officer all
representations and warranties of the Borrower and each Guarantor contained in
this Agreement and the other Loan Documents are true, correct and complete;
that the Borrower is not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the
transactions contemplated by this Agreement, no
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Default or Event of Default has occurred and is continuing; and that the
Borrower has satisfied each of the closing conditions.
(ii) Certificate of Secretary of the Borrower and each
Guarantor. The Agent shall have received a certificate of the secretary or
assistant secretary of the Borrower and each Guarantor certifying that attached
thereto is a true and complete copy of the articles of incorporation or the
certificate of incorporation of the Borrower or such Guarantor, as applicable,
and all amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation; that attached
thereto is a true and complete copy of the bylaws of the Borrower or such
Guarantor, as applicable, as in effect on the date of such certification; that
attached thereto is a true and complete copy of resolutions duly adopted by the
Executive Committee of the Board of Directors of the Borrower or the Board of
Directors of such Guarantor, as applicable, authorizing the borrowings and
other extensions of credit contemplated hereunder (with respect to the
Borrower) and the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party; and as to the incumbency and
genuineness of the signature of each officer of the Borrower or such Guarantor,
as applicable, executing Loan Documents to which it is a party.
(iii) Certificates of Good Standing. The Agent shall have
received certificates as of a recent date of the good standing or existence, as
the case may be, of the Borrower and each Guarantor under the laws of its
jurisdiction of organization.
(iv) Opinions of Counsel. The Agent shall have received
favorable opinions of counsel to the Borrower and the Guarantors addressed to
the Agent and the Lenders with respect to the Borrower and the Guarantors, the
Loan Documents and such other matters as the Lenders shall request.
(v) Tax Forms. The Agent shall have received copies of
the United States Internal Revenue Service forms required by Section 4.11(e)
hereof.
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. All
approvals, authorizations and consents necessary for the Borrower or any of the
Guarantors to execute, deliver and perform the Obligations under this
Agreement, if any be required, of any Person and of all Governmental
Authorities and courts having jurisdiction with respect to the transactions
contemplated by this Agreement and the other Loan Documents shall have been
obtained.
(ii) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to
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enjoin, restrain, or prohibit, or to obtain substantial damages in respect of,
or which is related to or arises out of this Agreement or the other Loan
Documents or the consummation of the transactions contemplated hereby or
thereby, or which, in the Agent's discretion, would make it inadvisable to
consummate the transactions contemplated by this Agreement and such other Loan
Documents.
(iii) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Agent shall have received
the most recent audited Consolidated financial statements of the Borrower and
its Subsidiaries, all in form and substance satisfactory to the Agent and
prepared in accordance with GAAP. Without limitation of the foregoing, the
Agent and each Lender shall have received audited financial statements for the
Fiscal Year ended December 31, 1996.
(ii) Financial Condition Certificate. The Borrower shall
have delivered to the Agent a certificate, in form and substance satisfactory
to the Agent, and certified as accurate by the chief executive officer or chief
financial officer of the Borrower, that to the best knowledge of such officer
(A) the Borrower and each of its Material Subsidiaries are each Solvent, (B)
the Borrower's payables are current and not past due and (C) attached thereto
is a pro forma balance sheet of the Borrower and its Subsidiaries setting forth
on a pro forma basis the financial condition of the Borrower and its
Subsidiaries on a Consolidated basis as of December 31, 1996, reflecting on a
pro forma basis the effect of the transactions contemplated herein and
evidencing compliance on a pro forma basis with the covenants contained in
Article IX hereof.
(iii) Payment at Closing. There shall have been paid by
the Borrower to the Agent and the Lenders the fees set forth or referenced in
Section 4.3(b) and any other accrued and unpaid fees or commissions due
hereunder.
(iv) Applicable Margin Certificate. The Borrower shall
have delivered to the Agent a certificate executed by the chief financial
officer or treasurer of the Borrower setting forth the Applicable Margin
pursuant to Section 4.1(c).
(e) Miscellaneous.
(i) Notice of Borrowing. The Agent shall have received a
Notice of Borrowing from the Borrower in accordance with Section 2.3(a), and a
written notice in the form attached hereto as Exhibit E (a "Notice of Account
Designation") specifying the
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account or accounts to which the proceeds of any Loans made after the Closing
Date are to be disbursed.
(ii) Refinanced Facilities. The obligations of United
Companies Lending Corporation, United Companies Mortgage of Tennessee, Inc. and
Southern Mortgage Acquisition, Inc. (the "Existing Borrowers") evidenced by the
Credit Agreement, dated May 23, 1995, as amended, executed by and among the
Existing Borrowers, the lenders party thereto and First Union National Bank of
North Carolina, as agent, shall have been fully paid, satisfied and discharged
with proceeds of the initial Loans and the commitments thereunder terminated
and (B) any liens, encumbrances, mortgages or restrictions in respect of any
such obligations shall have been terminated.
(iii) Proceedings and Documents. All opinions,
certificates and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Lenders. The Lenders shall have received copies of all other
instruments and other evidence as the Lender may reasonably request, in form
and substance satisfactory to the Lenders, with respect to the transactions
contemplated by this Agreement and the taking of all actions in connection
therewith.
(iv) Due Diligence and Other Documents. The Borrower
shall have delivered to the Agent such other documents, and certificates as the
Agent reasonably requests, certified by a secretary or assistant secretary of
the Borrower as a true and correct copy thereof.
SECTION 5.3 Conditions to All Loans and Letters of Credit. The
obligations of the Lenders to make any Loan and the obligation of the Issuing
Lender to issue any Letter of Credit are subject to the satisfaction of the
following conditions precedent on the relevant borrowing or issue date, as
applicable:
(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VI shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such date.
(b) No Existing Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing hereunder (i) on the
borrowing date with respect to such Loan or after giving effect to the Loans to
be made on such date or (ii) on the issue date with respect to such Letter of
Credit or after giving affect to such Letters of Credit on such date.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 Representations and Warranties. To induce the Agent to
enter into this Agreement and the Lenders to make the Loans or issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Agent and Lenders that:
(a) Organization; Power; Qualification. Each of the Borrower
and its Material Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
has the power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization, except where the failure to so qualify is not reasonably
expected to have a Material Adverse Effect. The jurisdictions in which the
Borrower and its Material Subsidiaries are organized and qualified to do
business as of the Closing Date are described on Schedule 6.1(a).
(b) Ownership. As of the Closing Date, each Material
Subsidiary of the Borrower is listed on Schedule 6.1(b) and each is a Wholly-
Owned Subsidiary of the Borrower. All outstanding shares of the Borrower and
each Material Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable.
(c) Authorization of Agreement, Loan Documents and Borrowing.
Each of the Borrower and its Material Subsidiaries has the right, power and
authority and has taken all necessary corporate and other action to authorize
the execution, delivery and performance of this Agreement and each of the other
Loan Documents to which it is a party in accordance with their respective terms
and the borrowings and other extensions of credit contemplated hereby. This
Agreement and each of the other Loan Documents have been duly executed and
delivered by the duly authorized officers of the Borrower and each of its
Material Subsidiaries party thereto, and each such document constitutes the
legal, valid and binding obligation of the Borrower or its Material Subsidiary
party thereto, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by the Borrower and its
Material Subsidiaries of the Loan Documents
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to which each such Person is a party, in accordance with their respective
terms, the borrowings and other extensions of credit hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Borrower or any of its Material
Subsidiaries the result of which is reasonably expected to have a Material
Adverse Effect, (ii) (A) conflict with, result in a breach of or constitute a
default under the articles of incorporation or certificate of incorporation, as
applicable, bylaws or other organizational documents of the Borrower or any of
its Material Subsidiaries or (B) any indenture, agreement or other instrument
to which such Person is a party or by which any of its properties may be bound
or any Governmental Approval relating to such Person, the result of which is
reasonably expected to have a Material Adverse Effect, or (iii) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person other than Liens
arising under the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of the
Borrower and its Material Subsidiaries (i) has all Governmental Approvals
required by any Applicable Law for it to conduct its business, each of which is
in full force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of its knowledge, threatened
attack by direct or collateral proceeding, and (ii) is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Laws relating to it or any of its respective properties, except
where the failure to so have or so comply is not reasonably expected to have a
Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrower and its
Material Subsidiaries has duly filed or caused to be filed all federal, state,
local and other tax returns required by Applicable Law to be filed, and has
paid, or made adequate provision for the payment of, all federal, state, local
and other taxes, assessments and governmental charges or levies upon it and its
property, income, profits and assets which are due and payable, except for
those being contested in good faith by appropriate proceedings and for which
adequate reserves are maintained in accordance with GAAP and except where the
failure to so file or pay is not reasonably expected to have a Material Adverse
Effect. No Governmental Authority has asserted any Lien or other claim against
the Borrower or any Material Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved except for those being contested in
good faith by appropriate proceedings and for which adequate reserves are
maintained in accordance with GAAP and except for those which are not
reasonably expected to have a Material Adverse Effect.
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(g) Intellectual Property Matters. Each of the Borrower and
its Material Subsidiaries owns or possesses rights to use all franchises,
licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, service marks, service ▇▇▇▇ rights, trademarks,
trademark rights, trade names, trade name rights, copyrights and rights with
respect to the foregoing which are required to conduct its business, except
where the failure to so own or possess such rights is not reasonably expected
to have a Material Adverse Effect. No event has occurred which permits, or
after notice or lapse of time or both would permit, the revocation or
termination of any such rights, and neither the Borrower nor any Material
Subsidiary thereof is liable to any Person for infringement under Applicable
Law with respect to any such rights as a result of its business operations, the
result of which is reasonably expected to have a Material Adverse Effect.
(h) Environmental Matters. In the ordinary course of its
business, the officers of the Borrower consider the effect of Environmental
Laws on the business of the Borrower and its Material Subsidiaries, in the
course of which they identify and evaluate potential risks and liabilities
accruing to the Borrower due to Environmental Laws. On the basis of this
consideration, the Borrower has reasonably concluded that Environmental Laws
are not reasonably expected to have a Material Adverse Effect. Neither the
Borrower nor any Material Subsidiary has received any notice to the effect that
its operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any Hazardous Materials into the environment, which non-compliance
or remedial action is reasonably expected to have a Material Adverse Effect.
(i) ERISA. Except for those matters the result of which is
not reasonably expected to have a Material Adverse Effect:
(i) As of the Closing Date, neither the Borrower nor any
ERISA Affiliate maintains or contributes to, or has any obligation under, any
Employee Benefit Plans other than those identified on Schedule 6.1(i);
(ii) the Borrower and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of the Code
has been determined by the Internal Revenue Service to be so qualified, and
each trust related to such plan has been determined to be exempt under Section
501(a) of the Code. No liability has been incurred by the Borrower or any
ERISA Affiliate which remains
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unsatisfied for any taxes or penalties with respect to any Employee Benefit
Plan or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code) been
incurred (without regard to any waiver granted under Section 412 of the Code),
nor has any funding waiver from the Internal Revenue Service been received or
requested with respect to any Pension Plan, nor has the Borrower or any ERISA
Affiliate failed to make any contributions or to pay any amounts due and owing
as required by Section 412 of the Code, Section 302 of ERISA or the terms of
any Pension Plan prior to the due dates of such contributions under Section 412
of the Code or Section 302 of ERISA, nor has there been any event requiring any
disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any
Pension Plan;
(iv) Neither the Borrower nor any ERISA Affiliate has:
(A) engaged in a nonexempt prohibited transaction described in Section 406 of
the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC
which remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid, (C) failed to make a required
contribution or payment to a Multiemployer Plan, or (D) failed to make a
required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of the Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by the
Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any Material
Subsidiary thereof is engaged principally or as one of its activities in the
business of extending credit for the purpose of "purchasing" or "carrying" any
"margin stock" (as each such term is defined or used in Regulations G and U of
the Board of Governors of the Federal Reserve System). No part of the proceeds
of any of the Loans or Letters of Credit will be used for purchasing or
carrying margin stock or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation G, T, U or X of such Board of
Governors.
(k) Government Regulation. Neither the Borrower nor any
Material Subsidiary thereof is an "investment company" or a company
"controlled" by an "investment company" (as each such term is defined or used
in the Investment Company Act of 1940, as amended)
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and neither the Borrower nor any Material Subsidiary thereof is, or after
giving effect to any Extension of Credit will be, subject to regulation under
the Public Utility Holding Company Act of 1935 or the Interstate Commerce Act,
each as amended, or any other Applicable Law which limits its ability to incur
or consummate the transactions contemplated hereby.
(l) Financial Statements. The Consolidated balance sheets of
the Borrower and its Subsidiaries as of December 31, 1996 and the related
statements of income, retained earnings and cash flows for the Fiscal Year then
ended, copies of which have been furnished to the Agent and each Lender, are
complete and correct in all material respects and fairly present the assets,
liabilities and financial position of the Borrower and its Subsidiaries as at
such dates, and the results of the operations and changes of financial position
for the periods then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with
GAAP. The Borrower and its Material Subsidiaries have no Debt, obligation or
other unusual forward or long-term commitment which is not fairly reflected in
the foregoing financial statements or in the notes thereto.
(m) No Material Adverse Change. Since December 31, 1996, no
event has occurred or condition arisen that is reasonably expected to have a
Material Adverse Effect.
(n) Solvency. As of the Closing Date and after giving effect
to each extension of credit made hereunder, the Borrower and each of its
Material Subsidiaries will be Solvent.
(o) Titles to Properties. Each of the Borrower and its
Material Subsidiaries has such title to the real property owned by it as is
necessary or desirable to the conduct of its business and valid and legal title
to all of its personal property and assets, including, but not limited to,
those reflected on the balance sheets of the Borrower and its Material
Subsidiaries delivered pursuant to Section 6.1(l), except those which have been
disposed of by the Borrower or its Material Subsidiaries subsequent to such
date which dispositions have been in the ordinary course of business or as
otherwise expressly permitted hereunder.
(p) Liens. None of the properties and assets of the Borrower
or any Material Subsidiary thereof is subject to any Lien, except Liens
permitted pursuant to Section 10.2. No financing statement under the Uniform
Commercial Code of any state which names the Borrower or any Material
Subsidiary thereof or any of their respective trade names or divisions as
debtor and which has not been terminated, has been filed in any state or other
jurisdiction and neither the Borrower nor any Material Subsidiary thereof has
signed any such financing statement or any security agreement authorizing any
secured party thereunder to file any such
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financing statement, except to perfect those Liens permitted by Section 10.2
hereof.
(q) Debt. Schedule 6.1(q) is a complete and correct listing
of all Debt and Unfunded Liabilities of the Borrower and its Material
Subsidiaries in excess of $5,000,000 as of the Closing Date. The Borrower and
its Material Subsidiaries have performed and are in compliance with all of the
terms of such Debt and Unfunded Liabilities and all instruments and agreements
relating thereto (provided that they have not been canceled or otherwise
terminated), and no default or event of default, or event or condition which
with notice or lapse of time or both would constitute such a default or event
of default on the part of the Borrower or its Material Subsidiaries exists with
respect to any such Debt or Unfunded Liabilities.
(r) Litigation. Except for the matters set forth in the
Borrower's 10K filing under the Securities Exchange Act of 1934, as amended,
for the Fiscal Year ended December 31, 1996, there are no actions, suits or
proceedings pending nor, to the knowledge of the Borrower, threatened against
or in any other way relating adversely to or affecting the Borrower or any
Material Subsidiary thereof or any of their respective properties in any court
or before any arbitrator of any kind or before or by any Governmental
Authority, (i) the result of which is reasonably expected to have a Material
Adverse Effect or (ii) which calls into question the validity or binding effect
of this Agreement or any other Loan Document.
(s) Absence of Defaults. No event has occurred or is
continuing which (i) constitutes a Default or an Event of Default, or (ii)
which constitutes, or which with the passage of time or giving of notice or
both would constitute, a default or event of default by the Borrower or any
Material Subsidiary thereof under any material contract or judgment, decree or
order to which the Borrower or its Material Subsidiaries is a party or by which
the Borrower or its Material Subsidiaries or any of their respective properties
may be bound or which would require the Borrower or its Material Subsidiaries
to make any payment thereunder prior to the scheduled maturity date therefor,
the result of which (with respect to clause (ii) only) is reasonably expected
to have a Material Adverse Effect.
(t) Accuracy and Completeness of Information. None of the
reports, financial statements, certificates or other information furnished by
or on behalf of the Borrower to the Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to
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projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time; and provided further that with respect to information
about Persons other than the Borrower and its Subsidiaries, the Borrower
represents only that it has no actual knowledge that such information is
inaccurate or misleading.
(u) Complementary Lines of Business. The Borrower and each of
the Guarantors are separate legal entities which engage in complementary lines
of business and, therefore, each extension of credit made hereunder to the
Borrower will benefit the Borrower and each of the Guarantors.
(v) Guarantors. Each of the Borrower's Material Subsidiaries
has executed the Guaranty Agreement and each other document and instrument
required pursuant to Section 8.12 hereof.
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the
other Loan Documents (including but not limited to any such representation or
warranty made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date, shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any investigation made
by or on behalf of the Lenders or any extension of credit hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrower will
furnish or cause to be furnished to the Agent at the Agent's Office at the
address set forth in Section 13.1 hereof and to the Lenders at their respective
addresses as set forth on Schedule 1.1, or such other office as may be
designated by the Agent and Lenders from time to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable
and in any event within sixty (60) days after the end of each of the first
three fiscal quarters, (i) an unaudited Consolidated balance sheet of the
Borrower and its Subsidiaries as of the close of such fiscal quarter and
unaudited Consolidated statements of income and cash flows for the fiscal
quarter then ended and that portion of the Fiscal Year then ended, including
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updates to the notes to the prior annual audited financial statements, all in
reasonable detail setting forth in comparative form the corresponding figures,
with respect to the balance sheet, as of the end of the preceding Fiscal Year
and, with respect to the statements of income for the corresponding period for
the preceding Fiscal Year and prepared by the Borrower in accordance with GAAP
and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of
accounting principles and practices during the period, and certified by the
chief financial officer of the Borrower to present fairly in all material re-
spects the financial condition of the Borrower and its Subsidiaries as of their
respective dates and the results of operations of the Borrower and its
Subsidiaries for the respective periods then ended, subject to normal year end
adjustments; and (ii) an unaudited consolidating balance sheet of the Borrower
and its Subsidiaries as of the close of each such fiscal quarter and unaudited
consolidating statements of income, retained earnings and cash flows for that
portion of the Fiscal Year then ended, all in accordance with GAAP.
(b) Annual Financial Statements. As soon as practicable and
in any event within one hundred twenty (120) days after the end of each Fiscal
Year, an audited Consolidated and unaudited consolidating balance sheet of the
Borrower and its Subsidiaries as of the close of such Fiscal Year and audited
Consolidated and unaudited consolidating statements of income, retained
earnings and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the preceding Fiscal Year and
prepared by the Borrower in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operation of
any change in the application of accounting principles and practices during the
year, and accompanied by a report thereon by an independent certified public
accounting firm of nationally recognized standing that is not qualified with
respect to going concern limitations, scope limitations imposed by the Borrower
or any of its Subsidiaries or with respect to accounting principles followed by
the Borrower or any of its Subsidiaries not in accordance with GAAP.
SECTION 7.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1 (a) or (b) and at such other
times as the Agent shall reasonably request, a certificate of the chief
financial officer or the treasurer of the Borrower in the form of Exhibit F
attached hereto (an "Officer's Compliance Certificate"):
(a) stating that such officer has reviewed such financial
statements and, to the best of his knowledge, such statements fairly present
the financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and cash flows for the periods
indicated;
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(b) stating that to such officer's knowledge, based on a
reasonable examination, each of the "Material Subsidiaries" has executed the
Guaranty Agreement and each other document or instrument required hereunder, no
Default or Event of Default exists, or, if such is not the case, specifying
such Default or Event of Default and its nature, when it occurred, whether it
is continuing and the steps being taken by the Borrower with respect to such
Default or Event of Default; and
(c) setting forth as at the end of such fiscal quarter or
Fiscal Year, as the case may be, the calculations required to establish whether
or not the Borrower and its Subsidiaries were in compliance with the financial
covenants set forth in Article IX hereof as at the end of each respective
period, the Applicable Margin pursuant to Section 4.1(c) as at the end of each
respective period.
SECTION 7.3 Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 7.1(b), a certificate of the
independent public accountants certifying such financial statements, addressed
to the Agent, for the benefit of the Lenders, stating that in making the
examination necessary for the certification of such financial statements, they
obtained no knowledge of any Default or Event of Default or, if such is not the
case, specifying such Default or Event of Default and its nature and period of
existence.
SECTION 7.4 Other Reports.
(a) Within sixty (60) days after the last day of each fiscal
quarter, a Loan Production Report for such fiscal quarter;
(b) Within sixty (60) days after the last day of each fiscal
quarter, a Servicing Quality Report for such fiscal quarter;
(c) Promptly, and in any event within the earlier of the time
period provided under Section 7.1(a) and (b) or thirty (30) Business Days after
received, sent or filed by the Borrower, copies of any and all Forms 10-Q, 10-K
and any registration statement filed by such Person with the Securities and
Exchange Commission;
(d) Promptly upon receipt thereof, copies of all reports, if
any, submitted to the Borrower or its Board of Directors by its independent
public accountants in connection with their auditing function, including,
without limitation, any management report and any management responses thereto;
and
(e) Such other information regarding the operations, business
affairs and financial condition of the Borrower or any of its Subsidiaries as
the Agent or any Lender may reasonably request.
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SECTION 7.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after the Chief Financial Officer, the Chief
Executive Officer or President of the Borrower obtains knowledge thereof)
telephonic and written notice of:
(a) the commencement of all proceedings and investigations by
or before any Governmental Authority and all actions and proceedings in any
court or before any arbitrator against or involving the Borrower or any
Subsidiary thereof or any of their respective properties, assets or businesses,
which (i) individually or in the aggregate is reasonably expected to have a
Material Adverse Effect or (ii) which calls into question the validity or
binding effect of this Agreement or any other Loan Document;
(b) any notice of any violation received by the Borrower or
any Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws, which individually
or in the aggregate is reasonably expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens
to result in, a strike or other work action against the Borrower or any
Subsidiary thereof, the result of which is reasonably expected to have a
Material Adverse Effect;
(d) any attachment, judgment, lien, levy or order exceeding
$5,000,000 that is assessed against the Borrower or any Material Subsidiary
thereof;
(e) any Default or Event of Default;
(f) any event which constitutes an event of default under any
material contract to which the Borrower or any of its Subsidiaries is a party
or by which the Borrower or any Subsidiary thereof or any of their respective
properties may be bound, the result of which is reasonably expected to have a
Material Adverse Effect;
(g) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof), (ii) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by the Borrower or any ERISA Affiliate
from a Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA and (iv) the Borrower
obtaining knowledge or reason to know that the Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within
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the meaning of Section 4041(c) of ERISA, the result of any of which is
reasonably expected to have a Material Adverse Effect;
(h) Any changes in the following senior management positions of
the Borrower: Chief Financial Officer, Chief Executive Officer or President;
(i) Any change in Borrower's unsecured long-term debt ratings;
and
(j) any event which makes any of the representations set forth
in Section 6.1 inaccurate in any respect.
SECTION 7.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to the Agent or any Lender (other than financial forecasts) whether pursuant to
this Article VII or any other provision of this Agreement, or any of the other
Loan Documents, shall be, at the time the same is so furnished, complete and
correct in all material respects to the extent necessary to give the Agent or
any Lender complete, true and accurate knowledge of the subject matter based on
the Borrower's knowledge thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 13.11, the Borrower will, and
will cause each of its Material Subsidiaries to:
SECTION 8.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 10.4, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction, except
where the failure to so qualify is not reasonably expected to have a Material
Adverse Effect.
SECTION 8.2 Maintenance of Property. Keep all properties useful and
necessary to its business, in good working order and condition.
SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts and with
such deductibles and with such self insurance provisions as are customarily
maintained by similar businesses and as may be required by Applicable Law.
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SECTION 8.4 Accounting Methods and Financial Records . Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP and in compliance with the regulations of any Governmental Authority
having jurisdiction over it or any of its properties.
SECTION 8.5 Payment and Performance of Obligations. Pay and perform
all Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all valid and legal taxes, assessments and other governmental
charges that may be levied or assessed upon it or any of its property, and (b)
all other valid and legal indebtedness, obligations and liabilities in
accordance with customary trade practices; provided, that the Borrower or such
Material Subsidiary may contest any item described in clauses (a) and (b) of
this Section 8.5 in good faith by appropriate proceedings so long as adequate
reserves are maintained with respect thereto in accordance with GAAP.
SECTION 8.6 Compliance With Laws and Approvals. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business,
except where the failure to comply with which or maintain is not reasonably
expected to have a Material Adverse Effect.
SECTION 8.7 Environmental Laws. In addition to and without limiting
the generality of Section 8.6, (a) comply with, and use best efforts to ensure
such compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use best
efforts to ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except where the failure to
do so is not reasonably expected to have a Material Adverse Effect, (b) conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws, except where the failure to do so is
not reasonably expected to have a Material Adverse Effect, and (c) defend,
indemnify and hold harmless the Agent and the Lenders, and their respective
parents, Subsidiaries, affiliates, employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of the Borrower or such Material Subsidiary, or
any orders, requirements or demands of Governmental Authorities related
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thereto, including, without limitation, reasonable attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking
indemnification therefor. The Agent and each Lender hereby agree that they
will promptly notify the Borrower of any claim, action or suit asserted or
commenced against the Agent or any Lender and that the Borrower may assume the
defense thereof with counsel reasonably satisfactory to the Required Lenders at
the Borrower's sole expense, that the Agent and the Lenders will cooperate with
the Borrower on such defense, and that the Agent and the Lenders will not
settle any such claim, action or suit without the consent of the Borrower;
provided, that in the event the Required Lenders are not reasonably satisfied
with such defense or reasonably determine that there is one or more defenses
available to them which are not available to the Borrower, the Agent may, after
reasonable notice to the Borrower, assume such defense with counsel
satisfactory to the Agent and the Required Lenders and the Borrower shall be
responsible for the reasonable expense thereof; provided further, that the
Borrower's obligation with respect to the expenses hereunder shall be limited
to the reasonable fees and expenses of one counsel for the Agent and the
Lenders collectively.
SECTION 8.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 8.6, (a) comply with all applicable provisions of
ERISA and the regulations and published interpretations thereunder with respect
to all Employee Benefit Plans, (b) not take any action or fail to take action
the result of which could be a liability to the PBGC or to a Multiemployer
Plan, (c) not participate in any prohibited transaction that could result in
any civil penalty under ERISA or tax under the Code, (d) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (e) furnish to the Agent upon the
Agent's request such additional information about any Employee Benefit Plan as
may be reasonably requested by the Agent, except where the failure to comply
with clauses (a) through (d) is not reasonably expected to have a Material
Adverse Effect.
SECTION 8.9 Compliance With Agreements. Comply in all respects with
each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any material contract, the failure to comply with which is
reasonably expected to have a Material Adverse Effect; provided, that the
Borrower or such Material Subsidiary may contest any such lease, agreement or
other instrument in good faith through appropriate proceedings so long as
adequate reserves are maintained in accordance with GAAP.
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SECTION 8.10 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date.
SECTION 8.11 Visits and Inspections. Permit representatives of the
Agent or any Lender, from time to time, upon reasonable prior notice and during
normal business hours, to visit and inspect its properties; inspect, audit and
make extracts from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss with its
principal officers, and its independent accountants, its business, assets,
liabilities, financial condition, results of operations and business prospects.
SECTION 8.12 Additional Guarantors. Upon the creation or acquisition
of any Material Subsidiary permitted by this Agreement, cause to be executed
and delivered to the Agent within ten (10) Business Days after the creation or
acquisition of such Subsidiary, (a) a supplement substantially in the form of
the Supplement attached to the Guaranty Agreement executed by such new Material
Subsidiary, (b) the closing documents and certificates required of each of the
Guarantors pursuant to Section 5.2(b) hereof with respect to such new Material
Subsidiary and (c) such other documents reasonably requested by the Agent in
order that such Material Subsidiary shall become bound by and entitled to the
benefits of all of the terms, covenants and agreements contained in the
Guaranty Agreement. Upon satisfaction of the conditions set forth in this
Section 8.12, such Material Subsidiary shall become a Guarantor under the
Guaranty Agreement, as of such date, as if an original signatory thereto. In
the event that any Subsidiary which is party to the Guaranty Agreement ceases
to be a Material Subsidiary, such Subsidiary shall be released from the
Guaranty Agreement and the Agent shall, and is hereby expressly authorized by
the Lenders to, execute all documents and instruments reasonably required to
evidence such release.
SECTION 8.13 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Agent or any
Lender may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure the Agent and the
Lenders their respective rights under this Agreement, the Notes, the Letters of
Credit and the other Loan Documents.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set
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forth in Section 13.11 hereof, the Borrower and its Subsidiaries on a
Consolidated basis will not:
SECTION 9.1 Debt to Net Worth Ratio.
(a) As of the last day of any fiscal quarter, permit
the ratio of (i) the sum of (A) Adjusted Average Debt of the Borrower
and its Subsidiaries, on a Consolidated basis, plus (B) all Unfunded
Liabilities of the Borrower and its Subsidiaries, on a Consolidated
basis, plus (C) the amount outstanding of all Letters of Credit issued
on behalf of the Borrower or any of its Subsidiaries to (ii) Net Worth,
to be more than 4.0:1.0.
(b) At any time, permit the ratio of (i) the sum of (A)
the outstanding principal amount of Debt of the Borrower and its
Subsidiaries, on a Consolidated basis, plus (B) all Unfunded Liabilities
of the Borrower and its Subsidiaries, on a Consolidated basis, plus (C)
the amount outstanding of all Letters of Credit issued on behalf of the
Borrower or any of its Subsidiaries to (ii) Net Worth, to be more than
6.0:1.0.
SECTION 9.2 Minimum Net Worth. As of the last day of any fiscal
quarter, permit the Net Worth to be less than the sum of (a) Three Hundred
Thirty-Six Million Dollars ($336,000,000), plus (b) fifty percent (50%) of the
Net Income (if positive) of the Borrower and its Subsidiaries, on a
Consolidated basis, for each fiscal quarter ending during the period commencing
on January 1, 1997 and continuing through the date of determination, plus (c)
eighty percent (80%) of the net GAAP increase resulting from any Equity
Issuance by the Borrower, for the period commencing on January 1, 1997 through
the date of determination.
SECTION 9.3 Fixed Charges Ratio. As of the last day of any fiscal
quarter, permit the Fixed Charge Ratio of the Borrower and its Subsidiaries, on
a Consolidated basis, to be less than 1.75:1.0; provided, however, that the
Borrower shall not be required to report such calculation or comply with such
covenant if, at the date of determination thereof, any senior unsecured long-
term debt of the Borrower is rated both "BBB-" or higher by S&P, and "Baa3" or
higher by ▇▇▇▇▇'▇.
SECTION 9.4 Unencumbered Eligible Asset Ratio. At any time, permit the
ratio of (a) Eligible Assets of the Borrower and its Subsidiaries to (b) Total
Unsecured Liabilities of the Borrower and its Subsidiaries (excluding
Subordinated Debt), each determined on a Consolidated basis in accordance with
GAAP (the "Unencumbered Eligible Assets Ratio"), to be less than 1.0:1.0.
SECTION 9.5 Liquid Asset Ratio. As of the last day of any fiscal
quarter, permit the ratio of (a) Liquid Assets of the Borrower and its
Subsidiaries to (b) Funded Debt of the Borrower
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and its Subsidiaries (excluding Subordinated Debt), each determined on a
Consolidated basis in accordance with GAAP, to be less than 0.5:1.0.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrower will not
and will not permit any of its Material Subsidiaries to:
SECTION 10.1 Limitations on Secured Debt. Create, incur, assume or
suffer to exist any Debt secured by a Lien, except:
(a) Gestation Facilities;
(b) Debt secured solely by loan inventory and related
collateral and payable to United Companies Life Insurance Company (or any
successor thereto) in an aggregate principal amount at any time outstanding not
to exceed $150,000,000;
(c) Debt secured solely by pledges of real property owned or
leased by the Borrower or any of its Subsidiaries, improvements located
thereon, fixtures related thereto and any other assets incidental thereto;
(d) Capital Leases;
(e) ESOP loans in the principal amount outstanding of up to
$25,000,000 secured by purchased stock and a guaranty of the Borrower;
(f) "Investment lines of credit", the proceeds of which are
used to acquire securities which are then pledged to the lender extending such
"investment line of credit" and on which the Borrower earns a positive
arbitrage; and
(g) Debt not otherwise permitted above in an aggregate
principal amount at any time outstanding not to exceed three percent (3%) of
Net Worth.
SECTION 10.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including without limitation shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
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(a) Liens for taxes, assessments and other governmental
charges or levies (excluding any Lien imposed pursuant to any of the provisions
of ERISA or Environmental Laws) not yet due or as to which the period of grace
(not to exceed thirty (30) days) , if any, related thereto has not expired or
which are being contested in good faith and by appropriate proceedings if ▇▇▇-
▇▇▇▇▇ reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers,
warehousemen, processors or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, (i) which are not overdue for a
period of more than thirty (30) days or (ii) which are being contested in good
faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the
ordinary course of business in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance or similar
legislation or obligations;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do
not, in any case, detract from the value of such property or impair the use
thereof in the ordinary conduct of business;
(e) Liens of the Agent for the benefit of the Agent and the
Lenders;
(f) Liens created pursuant to Section 13.3; and
(g) Liens securing Debt permitted pursuant to Section 10.1
above.
SECTION 10.3 Limitations on Investments and Acquisitions. Make or
suffer to exist any Investments or any commitments therefor, except:
(a) Investments by the Borrower or any of its Subsidiaries in
any Subsidiary of the Borrower or Investments by any Subsidiary of the Borrower
in the Borrower;
(b) investments in direct obligations of the United States of
America or any agency thereof, or repurchase agreements for such obligations
with a duration not exceeding 365 days with any bank or trust company organized
under the laws of the United States or any state thereof having both (i)
capital, surplus and undivided profits aggregating at least $100,000,000 and
(ii) outstanding short-term debt rated A-1 or better by S&P or P-1 or better by
▇▇▇▇▇'▇;
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(c) investments in federal funds, certificates of deposit,
time deposits and banker's acceptances, in each case having original maturities
of not more than 365 days and issued by a bank or trust company organized under
the laws of the United States or any state hereof which either (i) have both
(A) capital, surplus and undivided profits aggregating at least $100,000,000
and (B) outstanding short-term debt rated A-1 or better by S&P or P-1 or better
by ▇▇▇▇▇'▇ or (ii) were purchased by the Borrower or one of its Subsidiaries
from a bank or trust company which had acquired Receivables from the Borrower
or such Subsidiary with the purchase of such instruments acting as a form of
credit enhancement with respect to such Receivables sale;
(d) investments in debt instruments of any state or political
subdivision thereof rated AA- or better by S&P or Aa3 or better by ▇▇▇▇▇'▇ and
maturing not more than one year from the date of acquisition thereof;
(e) investments in commercial paper (having original
maturities of not more than 365 days) rated A-1 or better by S&P or P-1 or
better by ▇▇▇▇▇'▇;
(f) investments in corporate debt obligations rated AA- or
better by S&P or Aa3 or better by ▇▇▇▇▇'▇ and maturing not more than one year
from the date of acquisition thereof;
(g) investments in money market funds the assets of which are
invested solely in the instruments described in clauses (b)-(f) above;
(h) loans in an aggregate principal amount at any time
outstanding not to exceed $15,000,000 to all employee stock option plans
instituted by the Borrower and its Subsidiaries;
(i) Investments by the Borrower or any Subsidiary in the form
of acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of capital stock, assets or any
combination thereof) of any other Person if each such acquisition meets all of
the following requirements: (i) the Person to be acquired shall engage in a
business or the assets being acquired are used in a business described in
Section 8.10, (ii) the Borrower or a Subsidiary shall be the surviving Person
and no Change of Control nor material adverse change in the financial condition
of said Person shall have been effected thereby and (iii) no Default or Event
of Default shall have occurred and be continuing both before and after giving
effect to the acquisition;
(j) the Borrower or any Guarantor may enter into the formation
of a partnership, a joint venture or a syndicate; provided, that such Person
owns greater than fifty percent (50%) of the economic interest and voting
interest of such partnership, joint venture or syndicate;
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(k) Investments existing as of the Closing Date by the
Borrower or any of its Subsidiaries in ▇▇▇▇▇▇-United Partnership;
(l) loans in the ordinary course of business of the Borrower
and its Subsidiaries;
(m) repurchases of loans or participations therein sold by the
Borrower or its Subsidiaries to third parties in accordance with the terms of
such sale;
(n) settlement accounts between the Borrower and its
Subsidiaries or its Subsidiaries and other Subsidiaries;
(o) property and buildings either (i) necessary to the
operations of the Borrower and its Subsidiaries or (ii) located in the United
Companies office park;
(p) investment securities and other assets acquired upon the
disposition of the Borrower's life insurance subsidiary, United Companies Life
Insurance Company, on July 24, 1996;
(q) the redemption, purchase, retirement or other acquisition
of any shares of any class of stock of the Borrower;
(r) investments permitted as of the Closing Date pursuant to
Pooling and Servicing Agreements, and any investments hereafter permitted
pursuant to such Pooling and Servicing Agreements, as approved by the Agent;
(s) Investments in the form of the acquisition of non-recourse
servicing in the ordinary course of business; and
(t) Investments not otherwise permitted above; provided, that,
the aggregate amount (at original cost) of all such Investments of the Borrower
and all of its Subsidiaries at any time outstanding shall be less than 25% of
Net Worth.
For the purposes of this Section 10.3, any Person which becomes a
Subsidiary of the Borrower after the date hereof shall be deemed to have made,
at the time it becomes a Subsidiary, all Investments of such Person existing
immediately after it becomes a Subsidiary.
SECTION 10.4 Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person,
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:
(a) any Person may merge with any Guarantor or the Borrower;
provided, that such Guarantor or the Borrower is the surviving Person; and
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(b) any Wholly-Owned Subsidiary of the Borrower may wind-up
into the Borrower or any Guarantor.
SECTION 10.5 Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, the sale of any receivables and
leasehold interests and any sale-leaseback or similar transaction), whether now
owned or hereafter acquired except:
(a) the sale or other disposition of assets in the ordinary
course of business and at fair market value (it being expressly understood and
agreed that the sale or other disposition of Asset-Backed Securities and
Receivables with or without servicing rights and of servicing rights is in the
ordinary course of business);
(b) the sale of obsolete assets no longer used or usable in
the business of the Borrower or any of its Subsidiaries;
(c) the transfer of assets to the Borrower or any Guarantor
pursuant to Section 10.4(b); and
(d) the sale or discount without recourse of Receivables
arising in the ordinary course of business in connection with the compromise or
collection thereof.
SECTION 10.6 Transactions with Affiliates. Except for transactions
between the Borrower and any Subsidiary or between a Subsidiary and any other
Subsidiary, directly or indirectly: (a) make any loan or advance to, or
purchase or assume any note or other obligation to or from, any of its
officers, directors, shareholders or other Affiliates, or to or from any member
of the immediate family of any of its officers, directors, shareholders or
other Affiliates, or subcontract any operations to any of its Affiliates, or
(b) enter into, or be a party to, any transaction with any of its Affiliates,
except, in each case, pursuant to the reasonable requirements of its business
and upon fair and reasonable terms that are no less favorable to it than it
would obtain in a comparable arm's length transaction with a Person not its
Affiliate.
SECTION 10.7 Certain Accounting Changes. Change its Fiscal Year end,
or make any change in its accounting treatment and reporting practices except
as required by GAAP.
SECTION 10.8 Restrictive Agreements. Other than this Agreement, enter
into any Debt which contains (a) any covenants more restrictive on the Borrower
and its Subsidiaries on a Consolidated basis than the provisions of Article IX
hereof (unless the Borrower notifies the Agent of the terms of such Debt prior
to its incurrence and, thereafter, the Agent and the Required Lenders
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shall have the right to amend the terms of this Agreement; provided, that in
the event that such Debt is repaid or canceled or such covenants are amended or
revised to be less restrictive, the Agent and the Required Lenders shall amend
the terms of this Agreement upon terms and conditions reasonably satisfactory
to the Borrower, the Agent and the Required Lenders to reflect such revisions),
or (b) any negative pledge on assets or restriction or limitation on its
ability to incur Liens on or with respect to any of its assets or properties
other than the assets or properties securing such Debt (other than a negative
pledge or restriction or limitation on Liens which requires pari passu security
in the event any such Lien is created); provided further, that notwithstanding
the foregoing, nothing in this Section shall be deemed to prohibit the Borrower
or any of its Subsidiaries from pledging assets to secure Debt permitted
pursuant to Section 10.1 hereof.
SECTION 10.9 Letters of Credit. Permit the face amount of all letters
of credit (to the extent the Borrower or any Subsidiary has a reimbursement
obligation with respect thereto) issued on behalf of the Borrower or any of its
Subsidiaries (including without limitation all Letters of Credit) used in lieu
of "Temporary investments" (as defined and set forth in the definition of
"Eligible Assets") to exceed the lesser of (a) 50% of the sum of (i) the face
amount of all such letters of credit and (ii) the value of such "Temporary
investments", as determined in accordance with GAAP or (b) $100,000,000.
SECTION 10.10 Underwriting Standards. Permit any change to its
underwriting standards, as in effect on the Closing Date, for the origination
or purchase of Receivables or implement new underwriting standards for
additional consumer loan products that would constitute Receivables, if such
change or implementation could reasonably be expected to have a Material
Adverse Effect.
SECTION 10.11. Payments, Prepayments and Amendments of Subordinated
Debt. Directly or indirectly (a) make any payment or prepayment on any
Subordinated Debt (other than Subordinated Debt by and between the Borrower and
any of its Subsidiaries or between the Subsidiaries) other than payments as are
expressly required thereunder or redeem or otherwise acquire for value any
Subordinated Debt or (b) amend or supplement any of the subordination terms or
provisions of any Subordinated Debt (other than Subordinated Debt by and
between the Borrower and any of its Subsidiaries or between the Subsidiaries).
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by
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operation of law or pursuant to any judgment or order of any court or any
order, rule or regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrower shall default in any payment of principal of any
Loan, Note or Reimbursement Obligation when and as due (whether at maturity, by
reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the
payment when and as due (whether at maturity, by reason of acceleration or
otherwise) of interest on any Loan, Note or Reimbursement Obligation or the
payment of any other Obligation, and such default shall continue unremedied for
seven (7) Business Days.
(c) Misrepresentation. Any representation or warranty made or
deemed to be made by the Borrower or any of its Material Subsidiaries under
this Agreement, any other Loan Document or any amendment hereto or thereto,
shall at any time prove to have been incorrect or misleading in any material
respect when made or deemed made.
(d) Default in Performance of Certain Covenants. The Borrower
shall default in the performance or observance of any covenant or agreement
contained in Section 7.5(e) or Articles IX or X of this Agreement and such
default shall continue for a period of thirty (30) days; provided, that in the
event that a default under Article IX arises (A) solely from an adjustment
required under Rule 125 ("FASB 125") of the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants (and such
adjustment results in an adjustment to the "Capitalized excess servicing
income" account, as defined and set forth in the definition of Eligible
Assets), and (B) the degree by which a default exists does not exceed 10% of
the value of such Capitalized excess servicing income account immediately prior
to such FASB 125 adjustment, such default shall not be an Event of Default
hereunder until such failure has continued for a period of two (2) consecutive
fiscal quarters of the Borrower; provided further, that if irrespective of the
additional grace period set forth in the preceding proviso, the Unencumbered
Eligible Assets Ratio of the Borrower set forth in Section 9.4 would be less
than 1.0:1.0, the Borrower shall pay an additional fee to the Agent, for the
benefit of itself and the Lenders, in an amount equal to the product of (i) the
Dollar amount by which the Total Unsecured Liabilities of the Borrower and its
Subsidiaries on a Consolidated basis exceeds the Eligible Assets of the
Borrower and its Subsidiaries on a Consolidated basis multiplied by (ii) 0.25%
multiplied by (iii) a fraction the numerator of which is the number of days
Total Unsecured Liabilities exceeds Eligible Assets and the denominator of
which is 360.
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(e) Default in Performance of Other Covenants and Conditions.
The Borrower or any Material Subsidiary thereof shall default in the
performance or observance of any term, covenant, condition or agreement
contained in this Agreement (other than as specifically provided for otherwise
in this Section 11.1) or any other Loan Document and such default shall
continue for a period of thirty (30) days after written notice thereof has been
given to the Borrower by the Agent.
(f) Debt Cross-Default. The Borrower or any of its Material
Subsidiaries shall (i) default in the payment of any Debt (other than the Notes
or any Reimbursement Obligation) the aggregate outstanding amount of which Debt
is in excess of $5,000,000 beyond the period of grace if any, provided in the
instrument or agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition relating to
any Debt (other than the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $5,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such Debt
(or a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, any such Debt to become due prior to its stated
maturity (any applicable grace period having expired).
(g) Change in Control. Any person or group of persons (within
the meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended) (excluding the management of the Borrower and any Employee Benefit
Plan) shall obtain ownership or control in one or more series of transactions
of more than twenty-five percent (25%) of the common stock or twenty-five
percent (25%) of the voting power of the Borrower entitled to vote in the
election of members of the board of directors of the Borrower or there shall
have occurred under any indenture or other instrument evidencing any Debt in
excess of $5,000,000 any "change in control" (as defined in such indenture or
other evidence of Debt) obligating the Borrower to repurchase, redeem or repay
all or any part of the Debt or capital stock provided for therein (any such
event, a "Change in Control").
(h) Voluntary Bankruptcy Proceeding. The Borrower or any
Material Subsidiary thereof shall (i) commence a voluntary case under the
federal bankruptcy laws (as now or hereafter in effect), (ii) file a petition
seeking to take advantage of any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or composition or adjustment
of debts, (iii) consent to or fail to contest in a timely and appropriate
manner any petition filed against it in an involuntary case under such
bankruptcy laws or other laws, (iv) apply for or consent to, or fail to contest
in a timely and appropriate manner, the appointment
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of, or the taking of possession by, a receiver, custodian, trustee, or
liquidator of itself or of a substantial part of its property, domestic or
foreign, (v) admit in writing its inability to pay its debts as they become
due, (vi) make a general assignment for the benefit of creditors, or (vii) take
any corporate action for the purpose of authorizing any of the foregoing.
(i) Involuntary Bankruptcy Proceeding. A case or other
proceeding shall be commenced against the Borrower or any Material Subsidiary
thereof in any court of competent jurisdiction seeking (i) relief under the
federal bankruptcy laws (as now or hereafter in effect) or under any other
laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts, or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like for the Borrower or any Subsidiary
thereof or for all or any substantial part of their respective assets, domestic
or foreign, and such case or proceeding shall continue without dismissal or
stay for a period of sixty (60) consecutive days, or an order granting the
relief requested in such case or proceeding (including, but not limited to, an
order for relief under such federal bankruptcy laws) shall be entered.
(j) Failure of Agreements. Any provision of any Loan Document
(other than this Agreement) shall for any reason cease to be valid and binding
on the Borrower or Material Subsidiary party thereto or any such Person shall
so state in writing.
(k) Termination Event. The occurrence of any of the following
events: (i) the Borrower or any ERISA Affiliate fails to make full payment when
due of all amounts which, under the provisions of any Pension Plan or Section
412 of the Code, the Borrower or any ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in excess of
$5,000,000 occurs or exists, whether or not waived, with respect to any Pension
Plan, (iii) a Termination Event or (iv) the Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plans makes a complete or partial
withdrawal from any such Multiemployer Plans and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$5,000,000.
(l) Judgment. A judgment or order for the payment of money
which causes the aggregate amount of all such judgments to exceed $5,000,000 in
any Fiscal Year shall be entered against the Borrower or any of its Material
Subsidiaries by any court and such judgment or order shall continue without
being vacated, satisfied, discharged, stayed or bonded pending appeal for a
period of sixty (60) days.
SECTION 11.2 Remedies. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Agent may,
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or upon the request of the Required Lenders, the Agent shall, by notice to the
Borrower:
(a) Acceleration; Termination of Facilities. Declare the
principal of and interest on the Loans, the Notes and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the Lenders
and to the Agent under this Agreement or any of the other Loan Documents
(including, without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) and all other Obligations, to be forthwith
due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the other Loan Documents to
the contrary notwithstanding, and terminate the Credit Facility and any right
of the Borrower to request borrowings or Letters of Credit thereunder;
provided, that upon the occurrence of an Event of Default specified in Section
11.1(h) or (i), the Credit Facility shall be automatically terminated and all
Obligations shall automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
an acceleration pursuant to the preceding paragraph, require the Borrower at
such time to deposit in a cash collateral account opened by the Agent an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be applied by the
Agent to the payment of drafts drawn under such Letters of Credit, and the
unused portion thereof after all such Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay the other Obligations.
After all such Letters of Credit shall have expired or been fully drawn upon,
the Reimbursement Obligation shall have been satisfied and all other
Obligations shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders
all of its other rights and remedies under this Agreement, the other Loan
Documents and Applicable Law, in order to satisfy all of the Borrower's
Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Agent and the Lenders set forth
in this Agreement is not intended to be exhaustive and the exercise by the
Agent and the Lenders of any right or remedy shall not preclude the exercise of
any other rights or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder or under the Loan
Documents or that may now or hereafter exist in law or in
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equity or by suit or otherwise. No delay or failure to take action on the part
of the Agent or any Lender in exercising any right, power or privilege shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude other or further exercise thereof or
the exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between the Borrower,
the Agent and the Lenders or their respective agents or employees shall be
effective to change, modify or discharge any provision of this Agreement or any
of the other Loan Documents or to constitute a waiver of any Event of Default.
ARTICLE XII
THE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Agent of such Lender under this
Agreement and the other Loan Documents and each Lender irrevocably authorizes
First Union, as Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the Agent by
the terms of this Agreement and such other Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or such other Loan
Documents, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or the other Loan
Documents or otherwise exist against the Agent.
SECTION 12.2 Delegation of Duties. The Agent may execute any of its
respective duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by the Agent with reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or the
other Loan Documents (except for actions occasioned solely by its or such
Person's own gross negligence or willful misconduct), or (b) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Borrower or any of its Subsidiaries or any officer
thereof contained in this Agreement or
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the other Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or the other Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents or for any failure of the Borrower or any
of its Subsidiaries to perform its obligations hereunder or thereunder. The
Agent shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement, or to inspect the properties, books or
records of the Borrower or any of its Subsidiaries.
SECTION 12.4 Reliance by the Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless such Note shall have been transferred in accordance with
Section 13.10 hereof. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement and the other Loan Documents
unless it shall first receive such advice or concurrence of the Required
Lenders (or, when expressly required hereby or by the relevant other Loan
Document, all the Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action except for its own gross negligence or willful misconduct.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the Notes in accordance with a request of
the Required Lenders (or, when expressly required hereby, all the Lenders), and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
SECTION 12.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Agent receives
such a notice, it shall promptly give notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, when expressly
required hereby, all the Lenders); provided, that unless and until the Agent
shall have received such
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directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
SECTION 12.6 Non-Reliance on the Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
affiliates has made any representations or warranties to it and that no act by
the Agent hereafter taken, including any review of the affairs of the Borrower
or any of its Subsidiaries, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Each Lender represents to the Agent that
it has, independently and without reliance upon the Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and its
Subsidiaries and made its own decision to make its Loans and issue or
participate in Letters of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder or by the other
Loan Documents, the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Borrower or any of its Subsidiaries which may come into the possession of the
Agent or any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or affiliates.
SECTION 12.7 Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
the respective amounts of their Commitment Percentages, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Notes or any Reimbursement Obligation) be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of this
Agreement or the other Loan Documents, or any documents contemplated by or
referred to herein or therein or the transactions contemplated
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hereby or thereby or any action taken or omitted by the Agent under or in
connection with any of the foregoing; provided, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's bad faith, gross negligence or willful misconduct,
to the extent caused by such bad faith, gross negligence or willful misconduct.
The agreements in this Section 12.7 shall survive the payment of the Notes, any
Reimbursement Obligation and all other amounts payable hereunder and the
termination of this Agreement.
SECTION 12.8 The Agent in Its Individual Capacity. The Agent and its
respective Subsidiaries and affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Agent were not an Agent hereunder. With respect to any Loans made or renewed
by it and any Note issued to it and with respect to any Letter of Credit issued
by it or participated in by it, the Agent shall have the same rights and powers
under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
SECTION 12.9 Resignation of the Agent; Successor Agent. Subject to the
appointment and acceptance of a successor as provided below, the Agent may
resign at any time by giving ninety (90) days prior written notice thereof to
the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Agent reasonably satisfactory to
the Borrower (after prior consultation with the Borrower), which successor
shall have minimum capital and surplus of at least $1,000,000,000. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within ninety (90) days after the Agent's giving
of notice of resignation, then the Agent may, on behalf of the Lenders, appoint
a successor Agent reasonably satisfactory to the Borrower (after prior
consultation with the Borrower), which successor shall have minimum capital and
surplus of at least $1,000,000,000. 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 rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 12.9 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
SECTION 12.10 Documentation Agent. The Documentation Agent, in its
capacity as documentation agent, shall have no duties or responsibilities and
no liabilities under this Agreement or any other Loan Document.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in
this Agreement, all notices and communications hereunder shall be in writing,
or by telephone subsequently confirmed in writing. Any notice shall be
effective if delivered by hand delivery or sent via telecopy, recognized
overnight courier service or certified mail, return receipt requested, and
shall be presumed to be received by a party hereto (i) on the date of delivery
if delivered by hand or sent by telecopy, (ii) on the next Business Day if sent
by recognized overnight courier service and (iii) on the third Business Day
following the date sent by certified mail, return receipt requested. A
telephonic notice to the Agent as understood by the Agent will be deemed to be
the controlling and proper notice in the event of a discrepancy with or failure
to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent
to it at the following addresses, or any other address as to which all the
other parties are notified in writing.
If to the Borrower
or any Guarantor: United Companies Financial Corporation
One United Plaza - MS910
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Ext. 2710
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Kantrow, Spaht, ▇▇▇▇▇▇ & Blitzer
(A Professional Law Corporation)
Suite 300, City Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to First Union as
Agent: First Union National Bank of
North Carolina
One First ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Specialty Financing
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With copies to: First Union National Bank of
North Carolina
One First ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ Israel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: To the Address set forth on
Schedule 1 hereto
(c) Agent's Office. The Agent hereby designates its office
located at the address set forth above, or any subsequent office which shall
have been specified for such purpose by written notice to the Borrower and
Lenders, as the Agent's Office referred to herein, to which payments due are to
be made and at which Loans will be disbursed and Letters of Credit issued.
SECTION 13.2 Expenses; Indemnity. The Borrower will (a) pay all out-
of-pocket expenses of the Agent in connection with: (i) the preparation,
execution and delivery of this Agreement and each other Loan Document, whenever
the same shall be executed and delivered, including without limitation all out-
of-pocket syndication and due diligence expenses and reasonable fees and dis-
bursements of counsel for the Agent and (ii) the preparation, execution and
delivery of any waiver, amendment or consent by the Agent or the Lenders
relating to this Agreement or any other Loan Document, including without
limitation reasonable fees and disbursements of counsel for the Agent, (b) pay
all out-of-pocket expenses of the Agent and each Lender in connection with the
administration and enforcement of any rights and remedies of the Agent and
Lenders under the Credit Facility, including consulting with appraisers,
accountants, engineers, attorneys (either inside counsel or outside counsel)
and other Persons concerning the nature, scope or value of any right or remedy
of the Agent or any Lender hereunder or under any other Loan Document or any
factual matters in connection therewith, which expenses shall include without
limitation the reasonable fees and disbursements of such Persons, and (c)
defend, indemnify and hold harmless the Agent and the Lenders, and their
respective parents, Subsidiaries, affiliates, employees, agents, officers and
directors, from and against any losses, penalties, fines, liabilities,
settlements, damages, costs and expenses, suffered by any such Person in
connection with any claim, investigation, litigation or other proceeding
(whether or not the Agent or any Lender is a party thereto) and the prosecution
and defense thereof, arising out of or in any way connected with this
Agreement, any other Loan Document or the Loans, including without limitation
reasonable attorney's and consultant's fees, except to the extent that any of
the
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foregoing directly result from the gross negligence or willful misconduct of
the party seeking indemnification therefor. The Agent and each Lender hereby
agree that they will promptly notify the Borrower of any claim, action or suit
asserted or commenced against the Agent or any Lender and that the Borrower may
assume the defense thereof with counsel reasonably satisfactory to the Required
Lenders at the Borrower's sole expense, that the Agent and the Lenders will
cooperate with the Borrower on such defense, and that the Agent and the Lenders
will not settle any such claim, action or suit without the consent of the
Borrower; provided, that in the event the Required Lenders are not reasonably
satisfied with such defense or reasonably determine that there is one or more
defenses available to them which are not available to the Borrower, the Agent
may, after reasonable notice to the Borrower, assume such defense with counsel
satisfactory to the Agent and the Required Lenders and the Borrower shall be
responsible for the reasonable expense thereof; provided further, that the
Borrower's obligation with respect to the expenses hereunder shall be limited
to the reasonable fees and expenses of one counsel for the Agent and the
Lenders collectively).
SECTION 13.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the
continuance thereof, the Lenders and any assignee or participant of a Lender in
accordance with Section 13.10 are hereby authorized by the Borrower at any time
or from time to time, without notice to the Borrower or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate
and to apply any and all deposits (general or special, time or demand,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time
held or owing by the Lenders, or any such assignee or participant to or for the
credit or the account of the Borrower (excluding, however, any escrow deposits
or escrow accounts and any other deposits and accounts used by Borrower in a
custodial capacity) against and on account of the Obligations irrespective of
whether or not (a) the Lenders shall have made any demand under this Agreement
or any of the other Loan Documents or (b) the Agent shall have declared any or
all of the Obligations to be due and payable as permitted by Section 11.2 and
although such Obligations shall be contingent or unmatured.
SECTION 13.4 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of New
York, without reference to the conflicts or choice of law principles thereof.
SECTION 13.5 Consent to Jurisdiction. The Borrower hereby irrevocably
consents to the personal jurisdiction of the state and
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federal courts located in Mecklenburg County, North Carolina and New York
County, New York, in any action, claim or other proceeding arising out of any
dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrower hereby irrevocably
consents to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Agent or any Lender in connection
with this Agreement, the Notes or the other Loan Documents, any rights or
obligations hereunder or thereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner specified in
Section 13.1. Nothing in this Section 13.5 shall affect the right of the Agent
or any Lender to serve legal process in any other manner permitted by
Applicable Law or affect the right of the Agent or any Lender to bring any
action or proceeding against the Borrower or its properties in the courts of
any other jurisdictions.
SECTION 13.6 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE AGENT, EACH LENDER AND THE BORROWER HEREBY IRREVOCABLY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 13.7 Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Agent for the ratable benefit of the Lenders or the
Agent receives any payment or proceeds of the collateral which payments or
proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of such payment or
proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or
proceeds had not been received by the Agent.
SECTION 13.8 Injunctive Relief; Punitive Damages.
(a) The Borrower recognizes that, in the event the Borrower
fails to perform, observe or discharge any of its obligations or liabilities
under this Agreement, any remedy of law may prove to be inadequate relief to
the Lenders. Therefore, the Borrower agrees that the Lenders, at the Lenders'
option, shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
(b) The Agent, Lenders and Borrower (on behalf of itself and
its Subsidiaries) hereby agree that no such Person shall have a remedy of
punitive or exemplary damages against any other party
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to a Loan Document and each such Person hereby waives any right or claim to
punitive or exemplary damages that they may now have or may arise in the future
in connection with any dispute, whether such dispute is resolved through
arbitration or judicially.
SECTION 13.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Agent to the contrary
agreed to by the Borrower, be performed in accordance with GAAP. Except as
otherwise provided herein, if any changes in accounting principles from those
used as of the Closing Date are hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and are adopted by the Borrower
with the agreement of its independent certified public accounts and such
changes result in a change in the method of calculation of any of the financial
covenants, standards or terms found in Section IX or in the related definitions
or terms used therein, the parties hereto agree to enter into good faith
negotiations in order to amend such provisions so as to reflect equitably such
changes with the desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such changes as if such changes had
not been made; provided, that no change in GAAP that would affect the method of
calculation of any of the financial covenants, standards or terms shall be
given effect in such calculations until such provisions are amended, in a
manner satisfactory to the Borrower, the Agent and the Required Lenders, so as
to reflect such change in accounting principles.
SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Agent and the Lenders, all
future holders of the Notes, and their respective successors and assigns,
except that the Borrower shall not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Assignment by Lenders. Each Lender may, with the consent
of the Agent and, so long as no Default or Event of Default shall have occurred
and be continuing, the Borrower, which consents shall not be unreasonably
withheld or delayed, assign to one or more Eligible Assignees (or, without the
consent of the Agent or the Borrower, to one or more of its Affiliates) all or
a portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of the Extensions
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of Credit at the time owing to it and the Notes held by it); provided, that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations under
this Agreement;
(ii) if less than all of the assigning Lender's Commitment
is to be assigned, the Commitment so assigned shall not be less than
$10,000,000 and the Commitment so retained by the assigning Lender shall not be
less than $15,000,000;
(iii) 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 in the form of Exhibit G attached hereto (an
"Assignment and Acceptance"), together with any Note or Notes subject to such
assignment;
(iv) such assignment shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the
Notes under the blue sky laws of any state; and
(v) the assigning Lender shall pay to the Agent an
assignment fee of $3,000 upon the execution by such Lender of the Assignment
and Acceptance; provided, that no such fee shall be payable upon any assignment
by a Lender to an affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof, (A)
the assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (B) the Lender thereunder shall, to the extent provided in such
assignment, be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and
the assignee thereunder confirm to and agree with each other and the other
parties hereto as set forth in such Assignment and Acceptance.
(d) Register. The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Lenders may treat each person whose name is
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recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment
and Acceptance executed by an assigning Lender and an Eligible Assignee
together with any Note or Notes subject to such assignment and the written
consent to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed and is substantially in the form of Exhibit G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and
the Borrower; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Agent, in exchange for the surrendered Note or
Notes, (A) a Competitive Bid Note payable to the order of such Eligible
Assignee in an amount equal to the Aggregate Commitment and (B) a new Revolving
Credit Note in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and a new Revolving Credit Note to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated
the effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes delivered to the assigning Lender.
Each surrendered Note or Notes shall be canceled and returned to the Borrower.
(f) Participations. Each Lender may sell participations to
one or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Extensions of Credit and the Notes held by it); provided, that:
(i) each such participation shall be in an amount
not less than $5,000,000;
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged;
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(iii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held
by it for all purposes of this Agreement;
(v) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the
right to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate on any
Loan or Reimbursement Obligation, extend the term or increase the amount of the
Commitment, reduce the amount of any fees to which such participant is
entitled, extend any scheduled payment date for principal of any Loan or
release any Guarantor (other than as a result of such Guarantor ceasing to be
deemed a "Material Subsidiary" or as specifically permitted in this Agreement
or the applicable Loan Document); and
(vii) any such disposition shall not, without the consent
of the Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the Notes
under the blue sky law of any state.
(g) Certain Pledges or Assignments. Nothing herein shall
prohibit any Lender from pledging or assigning any Note to any Federal Reserve
Bank in accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or
consent is in writing signed by the Required Lenders (or by the Agent with the
consent of the Required Lenders) and delivered to the Agent and, in the case of
an amendment, signed by the Borrower; provided, that no amendment, waiver or
consent shall (a) increase the amount or extend the time of the obligation of
the Lenders to make Loans or issue or participate in Letters of Credit
(including without limitation pursuant to Section 2.9), (b) extend the
originally scheduled time or times of payment of the principal of any Loan or
Reimbursement Obligation or the time or times of payment of interest on any
Loan or Reimbursement Obligation, (c) reduce the rate of interest payable on
any Loan or Reimbursement Obligation or any fees due hereunder, (d) permit any
subordination of the principal or interest on any Loan or Reimbursement
Obligation, (e) release any Guarantor (other than as a result of such Guarantor
ceasing to be
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deemed a "Material Subsidiary" or as specifically permitted in this Agreement
or the applicable Loan Document) or (f) amend the provisions of this Section
13.11, the definition of Required Lenders or any provision hereof which
specifically requires the approval of all of the Lenders, without the prior
written consent of each Lender. In addition, no amendment, waiver or consent
to the provisions of (a) Article XII shall be made without the written consent
of the Agent and (b) Article III without the written consent of the Issuing
Lender. Notwithstanding the foregoing, an amendment may be executed by the
Agent, the Borrower and the applicable Lender or Person becoming a Lender
pursuant to Section 2.10 (without the consent of the Required Lenders or
Lenders) only to reflect the increased Commitment of such Lender or new
Commitment of such Person becoming a Lender and to substitute a revised
Schedule 1.1.
SECTION 13.12 Performance of Duties. The Borrower's obligations under
this Agreement and each of the other Loan Documents shall be performed by the
Borrower at its sole cost and expense.
SECTION 13.13 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Agent and any Persons
designated by the Agent or any Lender pursuant to any provisions of this
Agreement or any of the other Loan Documents shall be deemed coupled with an
interest and shall be irrevocable so long as any of the Obligations remain
unpaid or unsatisfied or the Credit Facility has not been terminated.
SECTION 13.14 Survival of Indemnities. Subject to the limitations set
forth herein, notwithstanding any termination of this Agreement, the
indemnities to which the Agent and the Lenders are entitled under the
provisions of this Article XIII and any other provision of this Agreement and
the other Loan Documents shall continue in full force and effect and shall
protect the Agent and the Lenders against events arising after such termination
as well as before; provided, that the Agent and Lenders shall only be entitled
to claim such indemnities hereunder to the extent a claim is submitted to the
Borrower not later than one year after the termination of this Agreement and
the payment of all outstanding Obligations hereunder.
SECTION 13.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
SECTION 13.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision
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or the remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 13.17 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 shall be binding upon all parties, their successors and assigns, and all of
which taken together shall constitute one and the same agreement.
SECTION 13.18 Confidentiality. The Agent and the Lenders agree to
maintain the confidentiality of all proprietary and non-public information
obtained by them from or furnished to them by the Borrower pursuant to this
Agreement or the other Loan Documents, not to disclose any such information and
to use such information only in connection with the transactions contemplated
by this Agreement and the other Loan Documents, except that the foregoing shall
not be construed to, now or in the future, apply to any information reflected
in any publicly recorded document, any information obtained from sources other
than the Borrower which are not to the Agent's or such Lender's knowledge bound
by confidentiality agreements or which information is in the public domain at
the time of such disclosure by the Agent or such Lender, nor shall it be
construed to prevent (a) the Agent or any Lender from making any disclosure of
any information (i) if required to do so by any applicable law or regulation,
(ii) to any governmental agency or regulatory body having authority over the
Agent or such Lender pursuant to a request by such agency or body, (iii)
pursuant to and to the extent required by a subpoena or other legal process
believed by the Agent or such Lender, in good faith, to be legally issued and
valid, (iv) to the extent necessary for the Agent or such Lender after an Event
of Default and during the continuance thereof to enforce any remedy provided
for in the Loan Documents or otherwise available by law, (b) the Agent from
making such disclosure as it reasonably deems necessary or appropriate to any
bank or other financial institution, and counsel thereto, which bank or other
financial institution is a prospective lender under the Loan Documents or any
Lender from making such disclosures as it reasonably deems necessary or
appropriate to any bank or other financial institution, and counsel thereto, to
which such Lender in good faith desires to sell an interest in its Extensions
of Credit or its Commitment; provided, that in the case of this clause (b),
prior to making any disclosure contemplated hereby, the Agent or such Lender
shall notify the Borrower and shall require any such prospective recipient to
agree to abide by the confidentiality provisions of this Section 13.18 prior to
providing any such proprietary or non-public information to such recipient or
(c) the Agent or any Lender from making, on a confidential basis, such
disclosures as it deems necessary or appropriate to its Affiliates, legal
counsel or accountants (including outside auditors); provided, that in the case
of this clause (c), prior to making any
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disclosure contemplated hereby, the Agent or such Lender will advise the
prospective recipient of the provisions of this Section 13.18. The provisions
of this Section 13.18 shall survive the termination or expiration of the Loan
Documents.
SECTION 13.19 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
[CORPORATE SEAL] UNITED COMPANIES FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Treasurer
---------------------------------------
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Agent, Issuing Lender and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Vice President
---------------------------------------
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
----------------------------------------
Title: Associate
---------------------------------------
BANK ONE, LOUISIANA, NA, as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
FLEET BANK, N.A., as Lender and a Co-Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
REGIONS BANK OF LOUISIANA, as Lender
By: /s/ BRIGG ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: Brigg ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President
---------------------------------------
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GUARANTY FEDERAL BANK, F.S.B.,
as Lender
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Assistant Vice President
---------------------------------------
THE BANK OF NEW YORK, as Lender and a
Managing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: First Vice President
---------------------------------------
CIBC, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
---------------------------------------
CREDIT SUISSE FIRST BOSTON, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: Director
---------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH, as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
90
97
NATIONAL CITY BANK OF KENTUCKY,
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
THE FUJI BANK, LIMITED-HOUSTON
AGENCY, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
----------------------------------------
Title: Vice President & Manager
---------------------------------------
COMERICA BANK, as Lender
By: /s/ VON ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: Von ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
PNC BANK, KENTUCKY, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
FIRST BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Vice President
---------------------------------------
BANK OF AMERICA NT & SA, as Lender and a
Co-Agent
By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
SOUTHTRUST BANK OF ALABAMA, N.A.,
as Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
91
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as Lender
By: /s/ F.C.H. ▇▇▇▇▇
------------------------------------------
Name: F.C.H. ▇▇▇▇▇
----------------------------------------
Title: Senior Manager Loan Operations
---------------------------------------
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH, as Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
----------------------------------------
Title: S.V.P. and Manager
---------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Assistant Vice President
---------------------------------------
HIBERNIA NATIONAL BANK, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ RACK
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Rack
----------------------------------------
Title: Vice President
---------------------------------------
DEPOSIT GUARANTY NATIONAL BANK,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
92
99
SCHEDULE 1: LENDERS AND COMMITMENTS
COMMITMENT
AND COMMITMENT
LENDER PERCENTAGE
------ ----------
First Union National Bank $75,000,000
of North Carolina 9.375%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ Israel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust Company of New York $65,000,000
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 8.125%
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Seija Hurksinan
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America NT & SA $60,000,000
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ 7.500%
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York $60,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ 7.500%
Mortgage Banking Division
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet Bank, N.A. $60,000,000
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇%
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Bank One, Louisiana, NA $45,000,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇.▇▇▇%
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
93
100
First Bank National Association $45,000,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 5.625%
MPFP0801
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
The First National Bank of Chicago $45,000,000
One First National Plaza 5.625%
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No:(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
Guaranty Federal Bank, F.S.B $45,000,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇.▇▇▇%
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Nova Scotia $25,000,000
Atlanta Agency 3.125%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse First Boston $25,000,000
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 3.125%
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
CIBC, Inc. $25,000,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,, ▇▇▇ ▇▇▇▇▇ 3.125%
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
94
101
Comerica Bank $25,000,000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇ ▇▇▇▇ 3.125%
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Von ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DG Bank Deutsche GenossenschaftsBank, $25,000,000
Cayman Island Branch 3.125%
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Fuji Bank, Limited, Houston Agency $25,000,000
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ 3.125%
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ Fort
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Hibernia National Bank $25,000,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 3.125%
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ Rack
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
National City Bank of Kentucky $25,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 3.125%
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
PNC Bank, Kentucky, Inc. $25,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 3.125%
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
SouthTrust Bank of Alabama, N.A. $25,000,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 3.125%
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
95
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ Branch $25,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇%
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Deposit Guaranty National Bank $15,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1.875%
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Regions Bank of Louisiana $10,000,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 1.250%
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Brigg ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
96