CREDIT AGREEMENT Dated as of April 21, 2010 among AGFS FUNDING COMPANY, as Borrower, AMERICAN GENERAL FINANCE CORPORATION, THE SUBSIDIARY GUARANTORS PARTY HERETO, BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent, DEUTSCHE BANK...
EXHIBIT
10.1
EXECUTION
VERSION
Dated as
of April 21, 2010
among
AGFS
FUNDING COMPANY,
as
Borrower,
AMERICAN
GENERAL FINANCE CORPORATION,
THE
SUBSIDIARY GUARANTORS PARTY HERETO,
BANK OF
AMERICA, N.A.,
as
Administrative Agent and Collateral Agent,
DEUTSCHE
BANK SECURITIES INC.,
as
Syndication Agent,
and
BARCLAYS
BANK PLC,
BNP
PARIBAS,
HSBC
SECURITIES (USA) INC.,
RBC
CAPITAL MARKETS,
▇▇▇▇▇
FARGO SECURITIES, LLC,
as
Co-Documentation Agents,
and
The Other
Lenders Party Hereto
BANC OF
AMERICA SECURITIES LLC,
as Sole
Lead Arranger and Sole Bookrunning Manager
TABLE
OF CONTENTS
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Section
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Page
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ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
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1.01.
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Defined
Terms
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1
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1.02.
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Other
Interpretive Provisions
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17
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1.03.
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Accounting
Terms
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18
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1.04.
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Times
of Day
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18
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1.05.
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Currency
Equivalents Generally
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18
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1.06.
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Classification
of Eligible Loan Receivables
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18
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ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
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2.01.
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The
Loans
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19
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2.02.
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Borrowings,
Conversions and Continuations of Loans
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19
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2.03.
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Prepayments
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20
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2.04.
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Termination
of Commitments
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21
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2.05.
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Repayment
of Loans
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21
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2.06.
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Interest
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21
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2.07.
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Fees
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21
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2.08.
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Computation
of Interest and Fees
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21
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2.09.
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Evidence
of Debt
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22
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2.10.
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Payments
Generally; Administrative Agent’s Clawback
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22
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2.11.
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Sharing
of Payments by Lenders
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23
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2.12.
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Defaulting
Lenders
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24
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ARTICLE
III
TAXES,
YIELD PROTECTION AND ILLEGALITY
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3.01.
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Taxes
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24
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3.02.
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Illegality
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26
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3.03.
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Inability
to Determine Rates
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27
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3.04.
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Increased
Costs
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27
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3.05.
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Compensation
for Losses
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28
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3.06.
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Mitigation
Obligations; Replacement of Lenders
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28
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3.07.
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Survival
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29
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ARTICLE
IV
CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS
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4.01.
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Conditions
of Borrowing
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29
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ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
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5.01.
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Existence,
Qualification and Power
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31
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5.02.
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Authorization;
No Contravention
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31
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5.03.
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Governmental
Authorization; Other Consents
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31
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5.04.
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Binding
Effect
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32
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-i-
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Page
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5.05.
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Financial
Statements; No Material Adverse Effect
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32
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5.06.
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Litigation
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32
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5.07.
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No
Breach or Default
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32
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5.08.
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Ownership
of Property; Liens; Investments
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32
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5.09.
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ERISA
Matters
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32
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5.10.
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Subsidiaries;
Equity Interests; Loan Parties
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33
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5.11.
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Margin
Regulations; Investment Company Act
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33
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5.12.
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Disclosure
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33
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5.13.
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Compliance
with Laws
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34
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5.14.
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Solvency
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34
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5.15.
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Collateral
Documents
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34
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5.16.
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Pari
Passu Status
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34
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5.17.
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Specified
Subsidiaries
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34
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ARTICLE
VI
AFFIRMATIVE
COVENANTS
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6.01.
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Financial
Statements
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34
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6.02.
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Borrowing
Base Certificates; Other Information
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35
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6.03.
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Notices
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37
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6.04.
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Payment
of Obligations
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37
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6.05.
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Preservation
of Existence, Etc.
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37
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6.06.
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Compliance
with Laws
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37
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6.07.
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Books
and Records
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37
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6.08.
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Borrowing
Base Audit Rights
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37
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6.09.
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Use
of Proceeds
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38
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6.10.
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Covenant
to Guarantee Obligations
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38
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6.11.
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Conduct
of Business
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38
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6.12.
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Cash
Management
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38
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6.13.
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ERISA
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39
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6.14.
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Further
Assurances
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39
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ARTICLE
VII
NEGATIVE
COVENANTS
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7.01.
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Negative
Covenants Applicable to AGFC and Its Subsidiaries
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39
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7.02.
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Negative
Covenants Applicable to the Borrower and the Subsidiary
Guarantors
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41
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7.03.
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Amendments
of Documents
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45
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7.04.
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Special
Purpose Entity
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45
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7.05.
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Alternate
and Subsequent Transactions
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45
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ARTICLE
VIII
EVENTS
OF DEFAULT AND REMEDIES
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8.01.
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Events
of Default
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45
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8.02.
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Remedies
upon Event of Default
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47
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8.03.
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Application
of Funds
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47
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ARTICLE
IX
ADMINISTRATIVE
AGENT
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9.01.
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Appointment
and Authority
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48
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9.02.
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Rights
as a Lender
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48
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9.03.
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Exculpatory
Provisions
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48
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9.04.
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Reliance
by Administrative Agent
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49
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-ii-
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Page
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9.05.
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Delegation
of Duties
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49
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9.06.
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Resignation
of Administrative Agent
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50
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9.07.
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Non-Reliance
on Administrative Agent and Other Lenders
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50
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9.08.
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No
Other Duties, Etc.
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50
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9.09.
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Administrative
Agent May File Proofs of Claim
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50
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9.10.
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Collateral
and Guaranty Matters
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51
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9.11
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Withholding
Tax
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51
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ARTICLE
X
CONTINUING
GUARANTY
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10.01.
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Guaranty
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52
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10.02.
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Rights
of Lenders
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52
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10.03.
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Certain
Waivers
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52
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10.04.
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Obligations
Independent
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53
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10.05.
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Subrogation
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53
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10.06.
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Termination;
Reinstatement
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53
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10.07.
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Subordination
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53
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10.08.
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Stay
of Acceleration
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53
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10.09.
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Condition
of Borrower
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53
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10.10.
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Release
of Subsidiary Guarantors
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54
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10.11.
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Right
of Contribution
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54
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ARTICLE
XI
MISCELLANEOUS
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11.01.
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Amendments,
Etc.
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54
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11.02.
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Notices;
Effectiveness; Electronic Communications
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55
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11.03.
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No
Waiver; Cumulative Remedies; Enforcement
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57
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11.04.
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Expenses;
Indemnity; Damage Waiver
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57
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11.05.
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Payments
Set Aside
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59
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11.06.
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Successors
and Assigns
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59
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11.07.
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Treatment
of Certain Information; Confidentiality
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62
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11.08.
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Right
of Setoff
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63
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11.09.
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Interest
Rate Limitation
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63
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11.10.
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Counterparts;
Integration; Effectiveness
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63
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11.11.
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Survival
of Representations and Warranties
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63
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11.12.
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Severability
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63
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11.13.
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Replacement
of Lenders
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64
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11.14.
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Governing
Law; Jurisdiction; Etc.
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64
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11.15.
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WAIVER
OF JURY TRIAL
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65
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11.16.
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No
Advisory or Fiduciary Responsibility
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65
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11.17.
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Electronic
Execution of Assignments and Certain Other Documents
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65
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11.18.
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USA
PATRIOT Act
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66
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-iii-
SCHEDULES
1.01(a) Subsidiary
Guarantors
1.01(b)
Qualifying Subsidiary Guarantors
1.01(c) Non-Guarantor
Subsidiaries
2.01 Commitments
11.02 Administrative
Agent’s Office, Certain Addresses for Notices
EXHIBITS
A Form
of Committed Loan Notice
B Form
of Note
C-1 Form
of Assignment and Assumption
C-2 Form
of Administrative Questionnaire
D
Subordination Terms
E Form
of Pledge Agreement
F
Form of Intercompany Secured Loan Agreement
G
Form of Intercompany Security Agreement
H
Required Legal Opinions
I Form
of Borrowing Base Certificate
J
Forms of Tax Status Certificate
-iv-
This
CREDIT AGREEMENT is entered into as of April 21, 2010, among AGFS FUNDING
COMPANY, a Delaware
corporation (the “Borrower”), AMERICAN
GENERAL FINANCE CORPORATION, an Indiana corporation (“AGFC”), as a
Guarantor, the Subsidiary Guarantors (as defined below), each lender from time
to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), and BANK OF
AMERICA, N.A., as Administrative Agent and Collateral Agent.
PRELIMINARY
STATEMENTS:
The
Borrower has requested that the Lenders provide a term loan facility, and the
Lenders have indicated their willingness to lend on the terms and subject to the
conditions set forth herein.
In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
1.01. Defined Terms. As used
in this Agreement, the following terms shall have the meanings set forth
below:
“Account” has the
meaning specified in the UCC.
“Act” has the meaning
specified in Section
11.18.
“Administrative Agent”
means Bank of America in its capacity as administrative agent under any of the
Loan Documents, or any successor administrative agent.
“Administrative Agent
Fee
Letter” means the letter agreement, dated April 21, 2010, between the
Borrower and the Administrative Agent, as amended, supplemented, amended and
restated or otherwise modified from time to time.
“Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 11.02, or
such other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit
C-2 or any other form approved by the Administrative Agent.
“Affiliate” means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified except, in any case, for any Governmental
Authority.
“AGF CashCo” has the
meaning specified in Section
6.12.
“AGFC” has the meaning
specified in the introductory paragraph hereto.
“AGFC Credit Facility”
means the Amended and Restated Credit Agreement, dated as of July 14, 2005,
between AGFC, as borrower and Bank of America, N.A., as administrative
agent.
“Aggregate
Commitments” means the Commitments of all the Lenders.
“Agreement” means this
Credit Agreement.
“AIG” means American
International Group, Inc.
“Alternate
Transaction” has the meaning specified in Section
7.05.
“Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Facility represented by (i) on
or prior to the Closing Date, such Lender’s Commitment at such time, subject to
adjustment as provided in Section 2.12, and
(ii) thereafter, the principal amount of such Lender’s Loans at such time,
subject to adjustment as provided in Section
2.12.
“Applicable Rate”
means 4.50% per annum for Base Rate Loans and 5.50% per annum for Eurodollar
Rate Loans.
“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.
“Arranger” means Banc
of America Securities LLC, in its capacity as sole lead arranger and sole
bookrunning manager.
“Assignee Group” means
two or more Eligible Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section
11.06(b)), and accepted by the Administrative Agent, in substantially the
form of Exhibit
C-1 or any other form approved by the Administrative Agent.
“Attributable
Indebtedness” means, on any date, (a) in respect of any Capitalized Lease
of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease or similar payments under the relevant lease or other applicable
agreement or instrument that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease or other
agreement or instrument were accounted for as a Capitalized Lease and (c) all
Synthetic Debt of such Person.
“Audited Financial
Statements” means the audited consolidated balance sheet of AGFC and its
Subsidiaries for the three fiscal years ended December 31, 2009 and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year of AGFC and its Subsidiaries, including the notes
thereto.
“Bank of America”
means Bank of America, N.A. and its successors.
“Base Rate” means for
any day a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate plus
1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime
rate.” The “prime rate” is a rate
set by Bank of America based upon various factors including Bank of America’s
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such prime rate announced
by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change. Notwithstanding
the foregoing, in no event shall the Base Rate at any time be less than 2.75%
per annum.
“Base Rate Loan” means
a Loan that bears interest based on the Base Rate.
“Borrower” has the
meaning specified in the introductory paragraph hereto.
“Borrower Materials”
has the meaning specified in Section
6.02.
2
“Borrowing” means a
borrowing consisting of simultaneous Loans of the same Type and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section
2.01.
“Borrowing Base”
means, as of any date of determination, the sum of:
(a) 50%
of Eligible Loan Receivables that arise out of Tier 1 Real Estate Loans; plus
(b) 45%
of Eligible Loan Receivables that arise out of Tier 2 Real Estate Loans; plus
(c) 40%
of Eligible Loan Receivables that arise out of Tier 3 Real Estate Loans; plus
(d) 33.3%
of Eligible Loan Receivables that arise out of Eligible Secured Non-Real Estate
Loans; plus
(e) 30%
of Eligible Loan Receivables that arise out of Eligible Other Loans; plus
(f) 100%
of the amount of Unrestricted Cash held by the Borrower; provided that amounts
added to the Borrowing Base pursuant to this clause (f) shall not exceed
$250,000,000;
provided, further that at least
65% of the Required Borrowing Base shall consist of amounts added thereto
pursuant to clauses (a), (b), (c) and (f).
“Borrowing Base
Certificate” means a certificate substantially in the form of Exhibit I and
executed by a Responsible Financial Officer, as the form of such certificate may
be modified by the Borrower and the Administrative Agent from time to time to
reflect the terms hereof, the Intercompany Secured Loans and the Intercompany
Security Documents.
“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the State of
New York, and if such day relates to any Eurodollar Rate Loan, means any such
day that is also a London Banking Day.
“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.
“Cash Equivalents”
means any of the following types of Investments, to the extent owned by the
Borrower or any of its Subsidiaries free and clear of all Liens (other than
Liens permitted hereunder):
(a) readily
marketable obligations issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of acquisition thereof; provided that the
full faith and credit of the United States of America is pledged in support
thereof;
(b) time
deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws
of the United States of America, any state thereof or the District of Columbia
or is the principal banking subsidiary of a bank holding company organized under
the laws of the United States of America, any state thereof or the District of
Columbia, and is a member of the Federal Reserve System, (ii) issues (or the
parent of which issues) commercial paper rated as described in clause (c) of
this definition and (iii) has combined capital and surplus of at least
$1,000,000,000, in each case with maturities of not more than 180 days from the
date of acquisition thereof;
(c) commercial
paper issued by any Person organized under the laws of any state of the United
States of America and rated at least “Prime-1” (or the then
equivalent grade) by ▇▇▇▇▇’▇ or at least “A-1” (or the then
equivalent grade) by S&P, in each case with maturities of not more than 180
days from the date of acquisition thereof;
3
(d) Investments,
classified in accordance with GAAP as current assets of the Borrower or any of
its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions
rated at least “Prime-1” (or the then
equivalent grade) by ▇▇▇▇▇’▇ or at least “A-1” (or the then
equivalent grade) by S&P, and the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses (a), (b)
and (c) of this definition; and
(e) loans
to American International Group, Inc. for cash management purposes, which are
payable by AIG on demand of the Borrower.
“Change in Law” means
the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental
Authority.
“Closing Date” means
the first date all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section
11.01.
“Closing Fee” has the
meaning specified in Section
2.01.
“Code” means the
Internal Revenue Code of 1986.
“Collateral Agent”
means Bank of America in its capacity as collateral agent under any of the Loan
Documents, or any successor collateral agent.
“Commitment” means, as
to each Lender, its obligation to make Loans to the Borrower pursuant to Section 2.01 in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 under
the caption “Commitment” or
opposite such caption in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement. The aggregate
amount of the Lenders’ Commitments is $3,000,000,000.
“Committed Loan
Notice” means a notice of (a) Borrowing, (b) a conversion of Loans from
one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant
to Section
2.02(a), which, if in writing, shall be substantially in the form of
Exhibit
A.
“Consolidated Net Worth
Basket” has the meaning specified in Section
9.10(b).
“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is
bound.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled”
have meanings correlative thereto.
“Controlled Group”
means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together
with the Borrower or any of its Subsidiaries, are treated as a single employer
under Section 414 of the Code.
“Debtor Relief Laws”
means the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.
4
“Default” means any
event or condition that constitutes an Event of Default or that, with the giving
of any notice, the passage of time, or both, would be an Event of
Default.
“Default Rate” means
an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per
annum; provided, however, that with
respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Rate) otherwise applicable
to such Loan plus 2% per
annum.
“Defaulting Lender”
means, subject to Section 2.12(b),
any Lender that, as determined by the Administrative Agent, has (i) become the
subject of a proceeding under any Debtor Relief Law, (ii) had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or a
custodian appointed for it, or (iii) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or
appointment; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or indirect
parent company thereof by a Governmental Authority.
“Disclosure Letter”
means disclosure letter, dated the Closing Date, delivered by AGFC and the
Borrower and made available to the Lenders.
“Disposition” or
“Dispose” means
the sale, transfer, license, lease or other disposition of any property by any
Person (or the granting of any option or other right to do any of the
foregoing), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
“Dollar” and “$” mean lawful money
of the United States.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii),
(v) and (vi) (subject to such
consents, if any, as may be required under Section
11.06(b)(iii)); provided that any
Person whose primary business competes with that of AGFC and the Subsidiary
Guarantors shall not be an Eligible Assignee.
“Eligible Loan
Receivables” means those Loan Receivables owing to Qualifying Subsidiary
Guarantors in the ordinary course of their business that are (i) owned,
beneficially and of record, by a Qualifying Subsidiary Guarantor, free and clear
of any Liens of any kind (other than liens in favor of the Borrower pursuant to
the Intercompany Security Documents), (ii) pledged to the Borrower pursuant to
the Intercompany Security Documents and over which the Borrower has a perfected
first priority Lien and (iii) are used to compute the Borrowing
Base.
“Eligible Other Loans”
means, as of any date, loans which are:
(i)
either (A) secured on a second
lien basis by a single-family residence as of such date, (B) secured on a first
lien basis by real estate other than a single-family residence as of such date,
(C) secured on a first lien basis by a single family residence as of such date
but (x) are TDRs and/or (y) had an original principal amount equal to or greater
than 95.5% of the appraised value of such single family residence at the time
such loan was made, (D) secured on a first lien basis by personal property which
was not designated as “hard” collateral in
accordance with AGFC’s standard origination procedures as such procedures were
in effect as of December 31, 2009, (E) not secured as of such date or
(F) Retail Loans;
(ii)as of such date, fixed rate for the
remaining term of such loan;
(iii)not interest-only unless the
interest-only period with respect to such loan has ended as of such
date;
(iv)Fully Documented; and
5
(v)as of such date, current with respect
to all payments due on such loan within 29 days, in accordance with the relevant
Subsidiary Guarantor’s standard reporting practices.
“Eligible Real Estate
Loans” means, as of any date, loans which:
(i)are secured by real estate as of such
date;
(ii)are secured by first lien mortgages
as of such date;
(iii)are fixed rate for the remaining term
of such loan as of such date;
(iv)are not interest-only unless the
interest-only period with respect to such loan has ended as of such
date;
(v)are Fully Documented;
(vi)are secured as of such date by
properties which are single-family residences;
(vii)were made in reliance on such
residence being owner-occupied;
(viii)did not have an original principal
amount equal to or greater than 95.5% of the appraised value of such residence
at the time such loan was made;
(ix)are not TDRs as of such date;
and
(x)as of such date, are current with
respect to all payments due on such loan within 29 days, in accordance with the
relevant Subsidiary Guarantor’s standard reporting practices.
“Eligible Secured Non-Real
Estate Loans” means, as of any date, loans which:
(i)are secured by personal property as
of such date;
(ii)are secured by “hard” collateral in
accordance with AGFC’s standard origination procedures as such procedures were
in effect as of December 31, 2009;
(iii)are secured on a first lien basis as
of such date;
(iv)are fixed rate for the remaining term
of such loan as of such date;
(v)are not interest-only unless the
interest-only period with respect to such loan has ended as of such
date;
(vi)are Fully Documented;
and
(vii)as of such date, are current with
respect to all payments due on such loan within 29 days, in accordance with the
relevant Subsidiary Guarantor’s standard reporting practices.
“Engagement Letter”
means the letter agreement, dated March 29, 2010, between AGFC and the Arranger,
as amended, supplemented, amended and restated or otherwise modified from time
to time.
“Engagement/Fee
Letter” means the letter agreement, dated April 21, 2010, among AGFC and
Deutsche Bank Securities Inc., Barclays Capital, the investment banking division
of Barclays Bank PLC, BNP Paribas, HSBC Securities (USA) Inc., RBC Capital
Markets and ▇▇▇▇▇ Fargo Securities, LLC, as amended, supplemented, amended and
restated or otherwise modified from time to time.
6
“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of
determination.
“ERISA” means the
Employee Retirement Income Security Act of 1974.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
“ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, or the
treatment of an amendment as a termination under Section 4041(c) or 4041A of
ERISA of a Pension Plan; (e) the institution by the PBGC of proceedings to
terminate a Pension Plan; (f) any event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (g) the determination that any Pension
Plan is considered an at-risk plan or a plan in endangered or critical status
within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Borrower or any ERISA Affiliate or (i) with respect to a
Pension Plan, the failure to satisfy the minimum funding required standard of
Section 412 of the Code and Section 302 of ERISA, whether or not waived, or the
failure to make any contribution to a Multiemployer Plan.
“Eurodollar Base Rate”
has the meaning specified in the definition of “Eurodollar
Rate.”
“Eurodollar Rate”
means for any Interest Period with respect to a Eurodollar Rate Loan, a rate per
annum determined by the Administrative Agent pursuant to the following
formula:
|
Eurodollar
Rate =
|
Eurodollar
Base Rate
|
|
|
1.00
– Eurodollar Reserve Percentage
|
Where
“Eurodollar Base
Rate” means, for such Interest Period, the rate per annum equal to the
British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two London Banking Days
prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for
any reason, then the “Eurodollar Base Rate”
for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London
time) two London Banking Days prior to the commencement of such Interest Period;
provided that
the Eurodollar Rate shall never be deemed to be less than 1.75% per
annum.
“Eurodollar Rate Loan”
means a Loan that bears interest at a rate based on the Eurodollar
Rate.
7
“Eurodollar Reserve
Percentage” means, for any day during any Interest Period, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding
Eurodollar Rate Loan shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
“Event of Default” has
the meaning specified in Section
8.01.
“Excluded Subsidiary”
means any Subsidiary (i) that would require an approval from a Governmental
Authority in order to Guarantee the Obligations, (ii) whose primary business is
the business of insurance, (iii) that does not conduct any activities or own
property with a fair market value of more than $500,000 in the aggregate or
(iv) that is the issuer or borrower of Indebtedness under one of AGFC’s
asset securitizations, including, without limitation, each Subsidiary listed on
Schedule
1.01(c) hereto.
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of any
Loan Party hereunder or under any other Loan Document (a) taxes imposed on or
measured by its net income (however denominated), and franchise taxes imposed on
it (in lieu of net income taxes), by any jurisdiction as a result of such
recipient being organized or having its principal office in, or, in the case of
any Lender, having its applicable Lending Office in, such jurisdiction or as a
result of any other present or former connection of such recipient with such
jurisdiction (other than any connection deemed to arise solely from such Person
having executed, delivered, become a party to, performed its obligations or
received payments under, or enforced and/or engaged in any other activities
contemplated with respect to, this Agreement or any other Loan Document), (b)
any Tax in the nature of the branch profits tax under Section 884(a) of the Code
imposed by any jurisdiction described in clause (a) above, (c) any withholding
tax that is attributable to such recipient’s failure to comply with Section 3.01(e), (d)
in the case of a Foreign Lender (other than an assignee pursuant to a request by
either Borrower under Section 10.13), any
United States federal withholding tax
imposed on any amounts payable to such Foreign Lender pursuant to the Laws in
force at the time such Lender becomes a party hereto (or designates a new
Lending Office), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a) and
(e) United States federal withholding taxes that would not have been imposed but
for a failure by a Lender (or any financial institution through which any
payment is made to such Lender) to comply with the procedures, certifications,
information reporting, disclosure, or other related requirements of newly
enacted Sections 1471-1474 of the Code.
“Existing Indenture”
means that certain indenture, dated as of May 1, 1999, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
the terms thereof between AGFC and Wilmington Trust Company (successor to
Citibank, N.A.), as trustee.
“Facility” means, at
any time, (a) on or prior to the Closing Date, the aggregate amount of the
Commitments at such time and (b) thereafter, the aggregate principal amount of
the Loans of all Lenders outstanding at such time.
“FASB ASC” means the
Accounting Standards Codification of the Financial Accounting Standards
Board.
“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions as
reasonably determined by the Administrative Agent.
8
“FICO
Score” means, with respect to any borrower under any Eligible
Real Estate Loan, the FICO® Score (as assigned by Fair
▇▇▇▇▇ Corporation) of such borrower on or about the date such Eligible Real
Estate Loan is made, as obtained from any of the national credit reporting
agencies (and as refreshed and updated on a quarterly basis; it being understood
that if FICO® Scores are
no longer used to determine credit risk of individuals, then the Borrower and
Required Lenders shall negotiate in good faith to determine a suitable
replacement for such measurement).
“Foreign Lender” means
any Lender that is organized under the Laws of a jurisdiction other than that in
which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
“Foreign Subsidiary”
means any Subsidiary (i) that is a controlled foreign corporation within the
meaning of Section 957(a) of the Code or (ii)(x) that is treated as an entity
that is disregarded as separate from its sole owner for federal income tax
purposes and (y) that owns no material assets other than equity in a Subsidiary
described in clause (i) above.
“FRB” means the Board
of Governors of the Federal Reserve System of the United States.
“Fully Documented”
means, with respect to any Eligible Other Loan, Eligible Real Estate Loan or
Eligible Secured Non-Real Estate Loan, that the originator or lenders with
respect thereto have verified, based on written and/or reliable evidence, (x)
the current employment status of the borrower under such Eligible Other Loan,
Eligible Real Estate Loan or Eligible Secured Non-Real Estate Loan and (y) the
past and current income of such borrower for up to the two (2) years preceding
the making of such loan.
“Fund” means any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.
“GAAP” means generally
accepted accounting principles in the United States set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or such other principles as may be approved
by a significant segment of the accounting profession in the United States, that
are applicable to the circumstances as of the date of determination,
consistently applied.
“Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
supra-national bodies such as the European Union or the European Central
Bank).
“Guarantee” means, as
to any Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation payable or performable by another Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), or (b) any Lien on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such Indebtedness or
other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such
Lien). The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not
9
stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term
“Guarantee” as a verb has a corresponding meaning.
“Guarantors” means,
collectively, AGFC and the Subsidiary
Guarantors.
“Guaranty” means,
collectively, the Guaranty made by AGFC and the Subsidiary Guarantors under
Article X in
favor of the Secured Parties, together with each other guaranty and guaranty
supplement delivered pursuant to Section 6.10.
“Indebtedness” means,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) the
maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business
and not past due for more than 60 days after the date on which such trade
account was created);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(f) all
Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person and all Synthetic Debt of such Person;
(g) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other
Person or any warrant, right or option to acquire such Equity Interest, valued,
in the case of a redeemable preferred interest, at the greater of its voluntary
or involuntary liquidation preference plus accrued and
unpaid dividends; and
(h) all
Guarantees of such Person in respect of any of the foregoing.
For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.
“Indemnified
Taxes” means
Taxes other than Excluded Taxes and Other Taxes.
“Indemnitees” has the
meaning specified in Section
11.04(b).
“Information” has the
meaning specified in Section
11.07.
“Intercompany Secured
Loan” means a loan made by the Borrower to any Subsidiary Guarantor (x)
on the Closing Date with the net proceeds of the Loans and other cash of the
Borrower or (y) pursuant to Section 2.03(b);
provided that,
in each case, such loan shall (i) be secured by the Eligible Loan Receivables
pursuant to the Intercompany
10
Security
Documents, (ii) be evidenced by an agreement in the form of Exhibit F,
(iii) be on economic terms (including as to amount and timing of interest and
principal payments) that are at least as favorable to the Borrower as the terms
of the Facility are to the Lenders, (iv) not be transferable by Borrower to any
other Person and (v) be subject to default at any time an Event of Default is
continuing hereunder, and shall automatically accelerate upon the occurrence of
an Event of Default with respect to the Borrower under Section 8.01(e) and any
acceleration of the Loans pursuant to Section 8.02.
“Intercompany Secured Loan
Agreement” means an agreement between the Borrower and a
Subsidiary documenting an Intercompany Secured Loan.
“Intercompany Security
Documents” means a security agreement substantially in the form of Exhibit H,
together with all other agreements and documents necessary to perfect the
Borrower’s security interest in the Eligible Loan Receivables.
“Interest Payment
Date” means (a) as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any
Interest Period for a Eurodollar Rate Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last
Business Day of each March, June, September and December and the Maturity
Date.
“Interest Period”
means, as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar
Rate Loan and ending on the date one, two, three, six (or to the extent
available to all Lenders, nine or twelve) months thereafter, as selected by the
Borrower in their Committed Loan Notice; provided
that:
(a) any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
(b) 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
calendar month at the end of such Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date.
“Investment” means, as
to any Person, any direct or indirect acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan (other than investments in or to a Subsidiary
Guarantor in the conduct of the Loan Business), advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or interest in, another Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit or all or a substantial part of
the business of such Person. For purposes of covenant compliance from
time to time, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value
of such Investment except, in the case of loans, advances and capital
contributions, where the amount of such Investment shall be the amount actually
invested net of subsequent increases or decreases as a result of repayments or
distributions, in each case, to a Subsidiary Guarantor.
“IRS” means the United
States Internal Revenue Service.
“Laws” means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“Lender” has the
meaning specified in the introductory paragraph hereto.
11
“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices
as a Lender may from time to time notify the Borrower and the Administrative
Agent.
“Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of any
kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to
real property, and any financing lease having substantially the same economic
effect as any of the foregoing).
“Loan” has the meaning
ascribed to it in Section 2.01.
“Loan Business” means
the business of the Subsidiary Guarantors in engaging in the consumer finance
business and any activities that are ancillary or reasonably related
thereto.
“Loan Documents”
means, collectively, (a) this Agreement, (b) the Notes, (c) the Pledge
Agreement, (d) the Engagement Letter, (e) the Engagement/Fee Letter and (f) the
Administrative Agent Fee Letter.
“Loan Parties” means,
collectively, AGFC, the Borrower and each Subsidiary Guarantor.
“Loan Receivables”
means, as to any Person, such Person’s (a) Accounts and Payment Intangibles and
(b) all General Intangibles, Instruments and Supporting Obligations (as each
such term is defined in the UCC) evidencing the items in clause (a) of this
definition.
“London Banking Day”
means any day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank eurodollar market.
“Material Adverse
Effect” means (a) a material adverse effect upon the operations,
business, properties or condition (financial or otherwise) of AGFC and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and
remedies of the Administrative Agent or any Lender under any Loan Document, or
of the ability of the Loan Parties taken as a whole to perform their obligations
under the Loan Documents, the Intercompany Secured Loan Agreements or the
Intercompany Security Documents to which they are a party; (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party or (d) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Intercompany Secured Loan Agreement
or Intercompany Security Document to which it is a party.
“Maturity Date” means
the fifth anniversary of the Closing Date; provided, however, that, if
such date is not a Business Day, the Maturity Date shall be the immediately
preceding Business Day.
“Moody’s” means
▇▇▇▇▇’▇ Investors Service, Inc. and any successor thereto.
“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3)
of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
“Multiple Employer
Plan” means a Plan which has two or more contributing sponsors (including
the Borrower or any ERISA Affiliate) at least two of whom are not under common
control, as such a plan is described in Section 4064 of ERISA.
“Note” means a
promissory note made by the Borrower in favor of a Lender, evidencing Loans made
by such Lender, substantially in the form of Exhibit B.
“Obligations” means
all advances to, and debts, liabilities, obligations, covenants and duties of,
any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, in each case whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter
12
arising
and including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such
proceeding.
“Organization
Documents” means (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
“Other Taxes” means
all present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement or any other Loan
Document.
“Participant” has the
meaning specified in Section
11.06(d).
“Participant Register”
has the meaning specified in Section
11.06(d).
“Payment Intangibles”
has the meaning specified in the UCC.
“PBGC” means the
Pension Benefit Guaranty Corporation.
“Pension Act” means
the Pension Protection Act of 2006.
“Pension Funding
Rules” means the rules of the Code and ERISA regarding minimum required
contributions (including any installment payment thereof) to Pension Plans and
set forth in, with respect to plan years ending prior to the effective date of
the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in
effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and
436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means
any employee pension benefit plan (excluding any Multiemployer Plan) that is
maintained or is contributed to by the Borrower and any ERISA Affiliate and is
either covered by Title IV of ERISA as is subject to the minimum funding
standards under Section 412 of the Code.
“Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan” means any
employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), but excluding any Multiemployer Plan maintained for
employees of the Borrower or any ERISA Affiliate or any such Plan to which the
Borrower or any ERISA Affiliate is required to contribute on behalf of any of
its employees.
“Platform” has the
meaning specified in Section
6.02.
“Pledge Agreement” has
the meaning specified in Section
4.01(a)(iii).
“Pledged Equity” has
the meaning specified in the Pledge Agreement.
“Public Lender” has
the meaning specified in Section
6.02.
13
“Qualifying Subsidiary
Guarantor” means a Subsidiary Guarantor, designated by the Borrower by
listing such Subsidiary Guarantor on Schedule 1.01(b) or
by written notice to the Administrative Agent at least 10 Business Days prior to
the date any Loan Receivable referred to below is included in a Borrowing Base
Certificate, and (i) that owns and services Eligible Loan Receivables, (ii)
whose Eligible Loan Receivables are not then subject to any Lien (other than
Liens in favor of the Borrower pursuant to the Intercompany Security Documents)
and (iii) that maintains a separate independent existence from the
Borrower. As of the Closing Date, each of the Qualifying Subsidiary
Guarantors are set forth on Schedule
1.01(b).
“Refinancing
Indebtedness” means with respect to any Indebtedness (the “Subject
Indebtedness”), any other Indebtedness which refinances, refunds, renews
or extends the Subject Indebtedness, so long as (A) the amount of such other
Indebtedness is not greater than the Subject Indebtedness, except by an amount
equal to premiums or other fees and expenses incurred in connection with such
refinancing, refunding, renewal or extension and by an amount equal to any
existing commitments unutilized thereunder and the direct or any contingent
obligor with respect thereto is not changed, as a result of or in connection
with such refinancing, refunding, renewal or extension (except Subject
Indebtedness of a Subsidiary Guarantor may be refinanced, refunded, renewed or
extended by such other Indebtedness of any other Subsidiary Guarantor) and (B)
the material terms, taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material
respect to the Lenders than the terms of any agreement or instrument governing
the Subject Indebtedness.
“Register” has the
meaning specified in Section
11.06(c).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents, trustees and advisors of such Person and
of such Person’s Affiliates.
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other than events
for which the 30 day notice period has been waived.
“Required Borrowing
Base” means, at any time, an amount equal to an amount of Loan
Receivables that would qualify as Eligible Loan Receivables under clauses (i)
and (ii) of the definition thereof and are the type of Loan Receivables
specified in clauses (a) through (e) of the definition of Borrowing Base, and
which, after applying the percentage discounts in the definition of Borrowing
Base at such time plus Unrestricted Cash held by the Borrower not to exceed
$250,000,000, would not be less than the aggregate principal amount of Loans
outstanding; provided that the
amount of the Eligible Loan Receivables (after giving effect to the applicable
advance rates) that are included in the Required Borrowing Base for each
Subsidiary Guarantor shall not exceed the outstanding balance of the
Intercompany Secured Loan owed to the Borrower by such Subsidiary Guarantor at
such time.
“Required Lenders”
means, as of any date of determination, Lenders holding more than 50% of the Facility on such
date; provided
that the portion of the Facility held by any Defaulting Lender shall be excluded
for purposes of making a determination of Required Lenders.
“Responsible Financial
Officer” means the chief executive officer, chief financial officer,
treasurer or controller of AGFC or the Borrower, as the case may be, or such
other officer of AGFC or the Borrower with knowledge of the financial affairs of
the Borrower.
“Responsible Officer”
means the chief executive officer, president, chief financial officer, member,
manager, treasurer, assistant treasurer or controller of a Loan Party, and
solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the
secretary or any assistant secretary of a Loan Party and any other officer or
employee of the applicable Loan Party so designated by any of the foregoing
officers in a notice to the Administrative Agent. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, limited liability company, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
14
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other Equity Interest of any
Person or any of its Subsidiaries, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of
any return of capital to any Person’s stockholders, partners or members (or the
equivalent of any thereof), or any option, warrant or other right to acquire any
such dividend or other distribution or payment.
“Retail Loan” means a
loan arising from a retail sale of consumer goods in a purchase transaction by a
retail merchant.
“S&P” means
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and any successor thereto.
“SEC” means the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any of its principal functions.
“Secured Parties”
means, collectively, the Administrative Agent, the Collateral Agent, the
Lenders, each co-agent or sub-agent appointed by the Administrative Agent from
time to time pursuant to Section 9.05,
and the other Persons the Obligations owing to which are or are purported to be
secured by the Pledge Agreement.
“Single Employer Plan”
means a Plan subject to Title IV of ERISA maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group, other than a Multiemployer Plan.
“Single Purpose
Entity” means, with respect to the Borrower, a corporation, which at all
times since the date of this Agreement and thereafter:
(i) does
not engage in any business activities other than the ownership of its
Subsidiaries, the performance of its obligations under the Loan, the
Intercompany Secured Loan and the Intercompany Security Documents and holding
demand notes referred to in clauses (c) and (e) of the definition of “Cash Equivalents” and
other activities incidental thereto;
(ii) shall
preserve its existence as an entity duly organized, validly existing and in good
standing (if applicable) under the laws of the jurisdiction of its formation as
well as in each jurisdiction where the conduct of its business so
requires;
(iii) shall
not merge or consolidate with any other Person;
(iv) shall
not (a) take any action to dissolve, wind-up, terminate or liquidate in
whole or in part; (b) sell, transfer or otherwise Dispose of all or
substantially all of its assets; (c) take any action to change its legal
structure; (d) transfer or permit the direct or indirect transfer of any
Equity Interests in any of its Subsidiaries; (e) issue additional Equity
Interests other than to its immediate holding company; or (f) seek to
accomplish any of the foregoing;
(vi) shall
not commingle its assets with the assets of any other Person, except as
permitted pursuant to Section 6.12;
and
(vii) shall
hold itself out to the public as a legal entity separate and distinct from any
other Person and conduct its business solely in its own name and shall correct
any known misunderstanding regarding its separate identity.
“Solvent” and “Solvency” mean that
as of December 31, 2009, after giving pro forma effect to the Transaction and
any material liabilities incurred since December 31, 2009, the Borrower and the
Subsidiary Guarantors taken as a whole on a consolidated basis have total
shareholders’ equity that is greater than zero; provided that
Solvency
15
shall be
determined excluding any intercompany debt owing among the Borrower and the
Subsidiary Guarantors.
“Subordinated
Indebtedness” means, Indebtedness of the Borrower that is subordinated in
right of payment to the Obligations of Borrower at least to the extent set forth
in Exhibit
D.
“Subordination
Agreement” has the meaning specified in Section
4.01(a)(xi).
“Subsidiary” of a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors or
other governing body (other than securities or interests having such power only
by reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of AGFC.
“Subsidiary
Guarantors” means (i) the Subsidiaries of AGFC listed on Schedule 1.01(a) and
(ii) any Subsidiary of AGFC that is required to become a Subsidiary Guarantor
pursuant to Section
6.10.
“Swap Contract” means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to
such Swap Contracts, (a) for any date on or after the date such Swap Contracts
have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the ▇▇▇▇-to-market
value(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
“Synthetic Debt”
means, with respect to any Person as of any date of determination thereof, all
obligations of such Person in respect of transactions entered into by such
Person that are intended to function primarily as a borrowing of funds
(including any minority interest transactions that function primarily as a
borrowing) but are not otherwise included in the definition of “Indebtedness” or as a
liability on the consolidated balance sheet of such Person and its Subsidiaries
in accordance with GAAP.
“Synthetic Lease
Obligations” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease or (b) an
agreement for the use or possession of property (including sale and leaseback
transactions), in each case, creating obligations that do not appear on the
balance sheet of such Person but which, upon the application of any Debtor
Relief Laws to such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
“Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
16
“TDR” means, with
respect to any loan as of any date, any loan that is accounted for as a “troubled debt
restructuring” in accordance with FASB ASC 310-40 as of such
date.
“Tier 1 Real Estate
Loans” means Eligible Real Estate Loans to borrowers with refreshed FICO
Scores of 660 or higher.
“Tier 2 Real Estate
Loans” means Eligible Real Estate Loans to borrowers with refreshed FICO
Scores of 620 or higher but less than 660.
“Tier 3 Real Estate
Loans” means Eligible Real Estate Loans to borrowers with refreshed FICO
Scores of less than 620.
“Transaction” means,
collectively, (a) the entering into by the Loan Parties and their applicable
Subsidiaries of the Loan Documents to which they are or are intended to be a
party, (b) the making of the Intercompany Secured Loans to the Subsidiary
Guarantors and the entry into the Intercompany Security Documents and (c) the
payment of the fees and expenses incurred in connection with the consummation of
the foregoing.
“Type” means, with
respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate
Loan.
“UCC” means the
Uniform Commercial Code as in effect in the State of New York; provided that, if
perfection or the effect of perfection or non-perfection or the priority of any
security interest in any collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, “UCC” means the
Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.
“Unfunded Liabilities”
means the amount (if any) by which the present value of all vested and unvested
accrued benefits under a Single Employer Plan exceeds the fair market value of
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plans using the PBGC actuarial assumptions utilized for
purposes of determining the current liability for purposes of such
valuation.
“United States” and
“U.S.” mean the
United States of America.
“Unrestricted Cash”
means cash that is not subject to any Lien other than any Lien in favor of the
Borrower imposed by the Intercompany Security Documents.
“Wholly Owned
Subsidiary” of a Person means a Subsidiary 100% of whose Equity Interests
(other than directors’ qualifying shares) are at the time owned by the Borrower
directly or indirectly through other Persons 100% of whose Equity Interests are
at the time owned, directly or indirectly, by the Borrower.
1.02. Other Interpretive
Provisions. With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without
limitation.” The word “will” shall be
construed to have the same meaning and effect as the word “shall.” Unless
the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words
“hereto,”
“herein,”
“hereof” and
“hereunder,”
and words of similar import when used in any Loan Document, shall be construed
to refer to such Loan Document in its entirety and not to any particular
provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Preliminary Statements, Exhibits and Schedules shall be construed to refer to
Articles
17
and
Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights and (vii) only if the term “Borrower”
is capitalized in any Loan Document shall it refer to AGFS Funding
Company.
(b) In the
computation of periods of time from a specified date to a later specified date,
the word “from”
means “from and
including”; the words “to” and “until” each mean
“to but
excluding”; and the word “through” means “to and
including.”
(c) Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.
1.03. Accounting
Terms
.
(a) Generally. All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein. Notwithstanding the foregoing, for
purposes of determining compliance with any covenant (including the computation
of any financial covenant) contained herein, Indebtedness of the AGFC and its
Subsidiaries shall be deemed to be carried at 100% of the outstanding principal
amount thereof, and the effects of FASB ASC 825 on financial liabilities shall
be disregarded.
(b) Changes in
GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower (or
AGFC, as applicable) shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
1.04. Times of
Day. Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
1.05. Currency Equivalents
Generally. Any
amount specified in this Agreement (other than in Articles II,
IX and X) or any of the
other Loan Documents to be in Dollars shall also include the equivalent of such
amount in any currency other than Dollars, such equivalent amount thereof in the
applicable currency to be determined by the Administrative Agent at such time on
the basis of the Spot Rate (as defined below) for the purchase of such currency
with Dollars. For purposes of this Section 1.05,
the “Spot Rate”
for a currency means the rate reasonably determined by the Administrative Agent
to be the rate quoted by the Person acting in such capacity as the spot rate for
the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the
date two Business Days prior to the date of such determination; provided that the
Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency.
1.06. Classification of Eligible
Loan Receivables. Notwithstanding
any other provisions of this Agreement, for the avoidance of doubt,
classification of Eligible Loan Receivables (e.g., as arising out
of Tier 1 Real Estate
18
Loans,
Tier 2 Real Estate Loans or Tier 3 Real Estate Loans) will not depend on whether
such assets were originated as “branch” assets or “centralized”
assets.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01. The Loans. Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make a single term loan (each, a “Loan”) to the
Borrower on the Closing Date in an amount not to exceed such
Lender’s Commitment. The Borrowing shall consist of Loans made
simultaneously by the Lenders in accordance with their respective Applicable
Percentage of the Facility. Amounts borrowed under this Section 2.01 and
repaid or prepaid may not be reborrowed. Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein. The Borrower
agrees to pay on the Closing Date to each Lender party to this Agreement on the
Closing Date, as compensation for the funding of such Lender’s Loan, a closing
fee (the “Closing
Fee”) in an amount equal to 1.50% of the principal amount of such
Lender’s Loan made on the Closing Date. Such Closing Fee will be in
all respects fully earned, due and payable on the Closing Date and
non-refundable and non-creditable thereafter.
2.02. Borrowings, Conversions and
Continuations of Loans.
(a) Each
Borrowing and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on
the requested date of any Borrowing of Base Rate Loans; provided, however, that if the
Borrower wishes to request Eurodollar Rate Loans having an Interest Period other
than one, two, three or six months in duration as provided in the definition of
“Interest
Period,” the applicable notice must be received by the Administrative
Agent not later than 11:00 a.m. four Business Days prior to the requested date
of such Borrowing, conversion or continuation, whereupon the Administrative
Agent shall give prompt notice to the Lenders of such request and determine
whether the requested Interest Period is acceptable to all of
them. Not later than 11:00 a.m., three Business Days before the
requested date of such Borrowing, conversion or continuation, the Administrative
Agent shall notify the Borrower (which notice may be by telephone) whether or
not the requested Interest Period has been consented to by all the
Lenders. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether
the Borrower is requesting a Borrowing or a continuation of Eurodollar Rate
Loans, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Loans shall continue to be the same Type of
Loan. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the Loans,
and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans described in Section
2.02(a). Each Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction
of the applicable conditions set forth in Section 4.01, the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the
19
Borrower
on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the
Borrower.
(c) Except as
otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate
Loan. During the existence of a Default, no Loans may be converted to
or continued as Eurodollar Rate Loans without the consent of the Required
Lenders.
(d) The Administrative Agent shall
promptly notify the Borrower and the Lenders of the interest rate applicable to
any Interest Period for Eurodollar Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Bank of America’s prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After
giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more
than three (3) Interest Periods in effect in respect of the
Facility.
2.03. Prepayments.
(a) Optional. The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Loans in whole or in part without premium or penalty;
provided that
(A) such notice must be received by the Administrative Agent (i) in the case of
prepayment of Base Rate Loans, not later than 11:00 a.m., New York City time, on
the date of prepayment and (ii) in the case of prepayment of Eurodollar Rate
Loans, not later than 11:00 am, New York City time, three Business Days before
the date of prepayment and (B) any prepayment of Base Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of
such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s ratable portion of such
prepayment (based on such Lender’s Applicable Percentage). If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Each prepayment of the outstanding Loans pursuant
to this Section
2.03(a) shall be paid to the Lenders in accordance with their respective
Applicable Percentages. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued and unpaid interest on the principal repaid
together with any additional amounts required pursuant to Section
3.05. Notwithstanding the foregoing, each prepayment of Loans
pursuant to this Section 2.03(a) that
is made on or prior to the first anniversary of the Closing Date shall be
accompanied by a premium payable by the Borrower to the ratable account of the
Lenders equal to 1.00% of the principal amount of the Loans so
prepaid.
(b) Mandatory. (i) If
at any time the aggregate outstanding Loans exceed the Borrowing Base as
reflected in the Borrowing Base Certificate most recently delivered pursuant to
Section
6.02(e), within 10 Business Days after delivery of such Borrowing Base
Certificate, the Borrower shall either (x) make additional Intercompany Secured
Loans to Subsidiary Guarantors, and the Subsidiary Guarantors shall pledge
additional Loan Receivables to the Borrower as collateral, in an amount
sufficient to increase the Borrowing Base to an amount not less than the amount
of then outstanding Loans or (y) permanently repay outstanding Loans in an
aggregate amount equal to such excess. Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued and unpaid interest on the
principal repaid together with any additional amounts required pursuant to Section
3.05.
(ii) Promptly
following (A) the repayment of any Intercompany Secured Loan, if as a result of
such repayment the aggregate outstanding Loans exceed the Borrowing Base as
reflected in the Borrowing Base Certificate most recently delivered pursuant to
Section 6.02(e)
or (B) any time at which the aggregate outstanding Loans exceed the then
outstanding aggregate amount of Intercompany Secured Loans plus Unrestricted
Cash held by the Borrower (in an amount not to exceed $250.0 million) then,
within 10 Business Days after such repayment the Borrower shall either (x)
make additional Intercompany Secured Loans to Subsidiary Guarantors with the
proceeds of such repayment, and the Subsidiary Guarantors shall pledge
additional Loan Receivables to the Borrower as collateral,
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in an
amount sufficient to increase the Borrowing Base to an amount not less than the
amount of then outstanding Loans; or (y) to the extent such proceeds are
not utilized in accordance with the foregoing clause (x), permanently repay
outstanding Loans in an aggregate amount equal to such excess. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued and
unpaid interest on the principal repaid together with any additional amounts
required pursuant to Section 3.05. Notwithstanding the foregoing,
each prepayment of Loans pursuant to this Section 2.03(b)(ii) that is made on or
prior to the first anniversary of the Closing Date shall be accompanied by a
premium payable by the Borrower to the ratable account of the Lenders equal to
1.00% of the principal amount of the Loans so prepaid.
2.04. Termination of
Commitments. The
aggregate Commitments shall be automatically and permanently reduced to zero on
the Closing Date immediately following the Borrowing made on the Closing
Date.
2.05. Repayment of
Loans. The
Borrower shall repay to the Lenders the aggregate principal amount of all
outstanding Loans on the Maturity Date.
2.06. Interest.
(a)
Subject
to the provisions of Section 2.06(b), (i)
each Eurodollar Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable
Rate and (ii) each Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable
Rate.
(b)
At the
election of the Administrative Agent or Required Lenders, if there shall occur
any Default under Section 8.01(a) or
any Event of Default all principal of the Loans shall thereafter bear interest
at a fluctuating interest rate per annum at all times equal to the Default Rate
to the fullest extent permitted by applicable Law and such interest shall be due
and payable on demand.
(c)
Accrued
and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(d)
Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified
herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.07.
Fees.
(a)
The
Borrower shall pay to (i) the Arranger for its own account the fees on the
Closing Date in the amounts and at the times specified in the Engagement Letter
and (ii) the Administrative Agent for its own account the fees in the amounts
and at the times specified in the Administrative Agent Fee
Letter. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
(b)
The Borrower shall pay to
the Lenders such fees, if any, as shall have been separately agreed upon in
writing in the amounts and at the times so specified. Such fees shall
be fully earned when paid and shall not be refundable for any reason
whatsoever.
2.08. Computation of Interest and
Fees. All
computations of interest for Base Rate Loans shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees
or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on
which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, provided that any
Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear
interest for one day. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be prima facie evidence of the
matters so determined.
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2.09.
Evidence of Debt. The
Borrowings made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be prima facie evidence of the
amount of the Borrowings made by the Lenders to the Borrower and the interest
and payments thereon. Any failure to so record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, which shall evidence such
Lender’s Loans in addition to such accounts or records. Each Lender
may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect
thereto.
2.10. Payments Generally;
Administrative Agent’s Clawback.
(a)
General. All
payments to be made by the Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute
to each Lender its Applicable Percentage in respect of the Loans (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments
received by the Administrative Agent after 2:00 p.m. shall be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by the Borrower shall
come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected on
computing interest or fees, as the case may be.
(b)
(i) Funding by Lenders;
Presumption by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base
Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender
will not make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in
the case of a Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.02) and
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the applicable Borrowing to
the Administrative Agent, then the amount so paid shall constitute such Lender’s
Loan included in such Borrowing. Any payment by the Borrower shall be
without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.
(ii)
Payments by Borrower;
Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
time at which any payment is due to the Administrative Agent for the account of
the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders, the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders,
severally agrees to repay to the Administrative Agent forthwith on
22
demand
the amount so distributed to such Lender, in immediately available funds with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
A notice
of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (b) shall be prima facie evidence of the
matters stated therein.
(c) Failure to Satisfy
Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in
the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Borrowing set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d)
Obligations of Lenders
Several. The obligations of the Lenders hereunder to make
Loans and to make payments pursuant to Section 11.04(c) are
several and not joint. The failure of any Lender to make any Loan, to
fund any such participation or to make any payment under Section 11.04(c) on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to purchase
its participation or to make its payment under Section
11.04(c).
(e)
Funding
Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
(f)
Insufficient
Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, toward
payment of principal Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal Borrowings then due
to such parties.
2.11.
Sharing of
Payments by
Lenders. If
any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of (a) Obligations due and payable to such
Lender hereunder and under the other Loan Documents at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate
amount of the Obligations due and payable to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations due
and payable to all Lenders hereunder and under the other Loan Documents at such
time obtained by all the Lenders at such time or (b) Obligations owing (but not
due and payable) to such Lender hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing (but not due and payable) to such Lender at
such time to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lenders hereunder and under the other Loan Documents at such
time) of payment on account of the Obligations owing (but not due and payable)
to all Lenders hereunder and under the other Loan Documents at such time
obtained by all of the Lenders at such time then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans, or make such
other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of Obligations then due and payable to the Lenders or owing (but not due
and payable) to the Lenders, as the case may be, provided
that:
(i) if any
such participations or subparticipations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and
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(ii) the
provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than an assignment to the Borrower
or any Affiliate thereof (as to which the provisions of this Section shall
apply).
Each Loan
Party consents to the foregoing and agrees, to the extent it may effectively do
so under applicable Law, that any Lender acquiring a participation pursuant to
the foregoing arrangements may exercise against such Loan Party rights of setoff
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Loan Party in the amount of such
participation.
2.12.
Defaulting
Lenders.
(a)
Waivers and
Amendments. Notwithstanding anything to the contrary contained
in this Agreement, if any Lender becomes a Defaulting Lender, then, until such
time as that Lender is no longer a Defaulting Lender, to the extent permitted by
applicable Law, such Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted
as set forth in Section
11.01.
(b)
Defaulting Lender
Cure. If the Borrower and the Administrative Agent agree in
writing in their sole discretion that a Defaulting Lender should no longer be
deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto.
ARTICLE
III
TAXES,
YIELD PROTECTION AND ILLEGALITY
3.01. Taxes.
(a) Payments Free of Taxes;
Obligation to Withhold; Payments on Account of Taxes. (i) Any
and all payments by or on account of any obligation of any Loan Party hereunder
or under any other Loan Document shall, to the extent permitted by applicable
Laws, be made free and clear of and without deduction or withholding of any
Taxes. If, however, applicable Laws require the applicable
withholding agent to withhold or deduct any Tax (as determined in the good faith
discretion of the applicable withholding agent), such Tax shall be withheld or
deducted in accordance with such Laws.
(ii) If the
applicable withholding agent shall be required to withhold or deduct any Taxes
from any payment, then (A) the applicable withholding agent shall withhold or
make such deductions as are required, (B) the applicable withholding agent shall
timely pay the full amount withheld or deducted to the relevant Governmental
Authority in accordance with applicable Laws and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes,
the sum payable by the applicable Loan Party shall be increased as necessary so
that after any required withholding and deductions have been made (including
withholding and deductions applicable to additional sums payable under this
Section 3.01),
the applicable Lender, as the case may be, receives an amount equal to the sum
it would have received had no such withholding or deduction been
made.
(b)
Payment of Other Taxes by
the Borrower and AGFC. Without limiting the provisions of
subsection (a) above, the Borrower and AGFC shall timely pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable
Laws.
(c)
Indemnification. Without
limiting the provisions of subsection (a) or (b) above, the Borrower and AGFC
shall, jointly and severally, indemnify the Administrative Agent and each
Lender, and shall make payment in respect thereof within 10 days after a written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 3.01) payable
by the Administrative Agent or such Lender, as the case may be, and any
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate
setting forth the amount of any such payment or liability and the reasons for
such payment or liability in reasonable detail delivered
24
to the
Borrower and AGFC by a Lender (with a copy to the Administrative Agent), or by
the Administrative Agent on its own behalf or on behalf of a Lender, shall be
prima facie evidence of the matters set forth therein.
(d)
Evidence of Payments.
As soon as
practicable after any payment of any Indemnified Taxes or Other Taxes by any
Loan Party to a Governmental Authority as provided in this Section 3.01, the
Borrower and AGFC shall each deliver to the Administrative Agent the original or
a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by applicable Laws to report such
payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Status of Lenders; Tax
Documentation. (i) Each Lender shall deliver to the
Borrower, to AGFC and to the Administrative Agent, whenever reasonably requested
by the Borrower, AGFC or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws and such other reasonably
requested information as will permit the Borrower, AGFC or the Administrative
Agent, as the case may be, (A) to determine whether or not payments made
hereunder or under any other Loan Document are subject to Taxes, (B) to
determine, if applicable, the required rate of withholding or deduction, and (C)
to establish such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of any payments to be made to such
Lender by the Borrower or AGFC, as the case may be, pursuant to any Loan
Document or otherwise to establish such Lender’s status for withholding tax
purposes in an applicable jurisdiction.
(ii)
Without
limiting the generality of the foregoing,
(A) any
Lender that is a “United States person”
within the meaning of Section 7701(a)(30) of the Code shall deliver to the
Borrower, AGFC and the Administrative Agent executed originals of IRS Form W-9
or such other documentation or information prescribed by applicable Laws or
reasonably requested by the Borrower, AGFC or the Administrative Agent as will
enable the Borrower, AGFC or the Administrative
Agent, as the case may be, to determine whether or not such Lender is subject to
backup withholding or information reporting requirements; and
(B) each
Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of U.S. federal withholding tax with respect to any
payments hereunder or under any other Loan Document shall deliver to the
Borrower, AGFC and
the Administrative Agent (in such number of signed originals as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter (1) if
any documentation previously delivered has expired or become obsolete, invalid
or incorrect, or (2) upon the request of the Borrower, AGFC or the
Administrative Agent), whichever of the following is applicable:
(I) IRS Form
W-8BEN (or any successor thereto) claiming eligibility for benefits of an income
tax treaty to which the United States is a party,
(II)
IRS Form
W-8ECI (or any successor thereto),
(III) in the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Sections 881(c) or 871(h) of the Code (the “Portfolio Interest
Exemption”), (x) a certificate substantially in the form of Exhibit J-1 , Exhibit J-2, Exhibit J-3 or Exhibit J-4, as
applicable (a “Tax
Status Certificate”), to the effect that such Foreign Lender is not (A) a
“bank” within
the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Borrower or AGFC within the meaning of Section
881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code, and that no
interest to be received is effectively connected with a U.S. trade or business
and (y) duly completed and executed original copies of IRS Form W-8BEN (or any
successor thereto),
(IV) where
such Lender is a partnership (for U.S. federal income tax purposes) or otherwise
not a beneficial owner (e.g. where such Lender has sold a typical
participation), IRS Form W-8IMY (or any successor thereto) and all required
supporting documentation (including, where one or more of the underlying
beneficial owner(s) is claiming the benefits of the Portfolio
Interest
25
Exemption,
a Tax Status Certificate of such beneficial owner(s) (provided that, if the
Foreign Lender is a partnership and not a participating Lender, the Tax Status
Certificate from the beneficial owner(s) may be provided by the Foreign Lender
on the beneficial owner’s behalf)), or
(V) any other
form prescribed by applicable Laws as a basis for claiming exemption from or a
reduction in United States federal withholding tax together with such
supplementary documentation as may be prescribed by applicable Laws to permit
the Borrower, AGFC or the Administrative
Agent to determine the withholding or deduction required to be
made.
Each
Lender shall promptly notify the Borrower, AGFC and the Administrative Agent of
any change in circumstances which would modify or render invalid any
documentation previously provided and provide any appropriate updated
documentation.
Notwithstanding
anything to the contrary in this Section 3.01(e), no
Lender shall be required to deliver any documentation that it is not legally
eligible to deliver.
(f) Treatment of Certain
Refunds. If the Administrative Agent or any Lender determines,
in its good faith sole discretion, that it has received a refund of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by any Loan
Party or with respect to which any Loan Party has paid additional amounts
pursuant to this Section 3.01, it
shall pay to the Borrower or AGFC, as the case may be, an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by such Loan Party under this Section 3.01 with
respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses (including Taxes) incurred by the Administrative
Agent or such Lender, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that the
Borrower or AGFC, as the case may be, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to any Loan Party
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, or such Lender, in the
event the Administrative Agent or such Lender is required to repay such amount
to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower, AGFC or any other
Person. Notwithstanding anything to the contrary, in no event will
any Lender be required to pay any amount to any Loan Party the payment of which
would place such Lender in a less favorable net after Tax position than such
Lender would have been in if the indemnification payments or additional amounts
giving rise to such refund of any Indemnified Taxes or Other Taxes had never
been paid.
(g)
Payment by Administrative
Agent. For purposes of this Section 3.01, any
payment made by the Administrative Agent to a Lender shall be deemed to be a
payment made by the Borrower or AGFC, as applicable, to such
Lender.
3.02.
Illegality. If
any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Loans whose interest is
determined by reference to the Eurodollar Rate, or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the London interbank market, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
(i) any obligation of such Lender to continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if
such notice asserts the illegality of such Lender making or maintaining Base
Rate Loans the interest rate on which is determined by reference to the
Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate
Loans of such Lender shall, if necessary to avoid such illegality, be determined
by the Administrative Agent without reference to the Eurodollar Rate component
of the Base Rate, in each case until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, (x) the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans (the interest rate on which Base Rate Loans of such Lender shall, if
necessary to avoid such illegality, be determined by the Administrative Agent
without reference to the Eurodollar Rate component of the Base Rate), either on
the last day of the Interest
26
Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Rate Loans and (y) if such notice asserts the
illegality of such Lender determining or charging interest rates based upon the
Eurodollar Rate, the Administrative Agent shall during the period of such
suspension compute the Base Rate applicable to such Lender without reference to
the Eurodollar Rate component thereof until the Administrative Agent is advised
in writing by such Lender that it is no longer illegal for such
Lender to determine or charge interest rates based upon the Eurodollar
Rate. Upon any such prepayment or conversion, the Borrower shall also
pay accrued interest on the amount so prepaid or converted.
3.03.
Inability to Determine
Rates. If
the Required Lenders determine that for any reason in connection with any
request for a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and Interest Period of such
Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan or in connection with an existing or proposed
Base Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent
will promptly so notify the Borrower and each Lender. Thereafter, (x)
the obligation of the Lenders to maintain Eurodollar Rate Loans shall be
suspended, and (y) in the event of a determination described in the preceding
sentence with respect to the Eurodollar Rate component of the Base Rate, the
utilization of the Eurodollar Rate component in determining the Base Rate shall
be suspended, in each case until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.
3.04.
Increased
Costs.
(a)
Increased Costs
Generally. If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender;
or
(ii) impose on
any Lender or the London interbank market any other condition, cost or expense
affecting this Agreement or Eurodollar Rate Loans made by such
Lender;
and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Loan the interest on which is determined by reference
to the Eurodollar Rate (or of maintaining its obligation to make any such Loan),
or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender, the Borrower will pay to such Lender, as the case may
be, such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered. Notwithstanding the
foregoing, Section
3.04(a) shall not apply to any Tax related matter.
(b)
Capital
Requirements. If any Lender determines that any Change in Law
affecting such Lender or any Lending Office of such Lender or such Lender’s
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s capital or on the capital
of such Lender’s holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by such Lender, to a level
below that which such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender’s holding company for any such reduction suffered.
(c)
Certificates for
Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as
the case may be, as specified in subsection (a)
27
or (b) of
this Section and delivered to the Borrower shall be prima facie evidence of the
matters set forth therein. The Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d)
Delay in
Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender’s right to demand such compensation, provided that the
Borrower shall not be required to compensate a Lender pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s intention to claim compensation therefor (except that, if
the Change in Law giving rise to such increased costs or reductions is
retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
3.05.
Compensation for
Losses. Upon
demand of any Lender (with a copy to the Administrative Agent) from time to
time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrower; or
(c) any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to
Section
11.13;
including
any loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.
For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it
at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06.
Mitigation Obligations;
Replacement of Lenders.
(a)
Designation of a Different
Lending Office. If any Lender requests compensation under
Section 3.04,
or the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then
such Lender shall, as applicable, use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may
be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender, as the case
may be, to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b)
Replacement of
Lenders. If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Borrower may replace such Lender in accordance with Section
11.13.
28
3.07.
Survival. All
of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments, repayment of all other
Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE
IV
CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS
4.01.
Conditions of
Borrowing. The
obligation of each Lender to make its Loan hereunder is subject to satisfaction
of the following conditions precedent:
(a) The
Administrative Agent’s receipt of the following, each of which shall be
originals or electronic copies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance reasonably satisfactory to the Administrative Agent:
(i) that
number of executed counterparts of this Agreement as may be reasonably requested
by the Administrative Agent;
(ii) a Note
executed by the Borrower in favor of each Lender requesting a Note;
(iii) a
pledge agreement,
in substantially the form of Exhibit E (as
amended, the “Pledge
Agreement”), duly executed by each Loan Party, together
with:
(A) a
certificate representing all of the Equity Interests in the Borrower,
accompanied by an undated stock power executed in blank, subject to the
limitation on the pledge of such Equity Interests set out in the Pledge
Agreement;
(B) proper
UCC financing statements naming AGFC as debtor in form appropriate for filing
under the Uniform Commercial Code in the State of Indiana; and
(C) certified
copies of UCC searches and state-level tax searches or equivalent reports or
searches, each of a recent date listing all effective financing statements, lien
notices or comparable documents that name any Loan Party as debtor and that are
filed in those states in which any Loan Party is organized, none of which
encumber the Pledged Equity or the Eligible Loan Receivables;
(iv) (x) executed
copies of the Intercompany Secured Loan Agreements and the Intercompany Security
Documents, each of which shall be in full force and effect; and (y) copies
of UCC financing statements evidencing the perfection of the Borrower’s security
interest in the Eligible Loan Receivables securing the Intercompany Secured
Loans pursuant to the Intercompany Security Documents;
(v) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party or is to be a party;
(vi) such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and that each Loan
Party is validly existing, in good standing and qualified to engage in business
in each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect;
29
(vii) a
favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters set
forth in Exhibit
H;
(viii) a
certificate signed by a Responsible Officer of AGFC certifying (A) that the
conditions specified in Sections 4.01(g) and
(h) have been
satisfied and (B) that, except as set forth on Schedule
4.01(a)(viii) of the Disclosure Letter, (x) the Existing Indenture has
not been amended or modified and that the compliance with the provisions thereof
has not been waived since May 1, 1999 and (y) the AGFC Credit Facility has not
been amended or modified and that the compliance with the provisions thereof has
not been waived since July 14, 2005;
(ix) the
Lenders and the Administrative Agent shall have timely received the information
related to the Act under Section 11.18 as
shall have been reasonably requested by the Administrative Agent and the
Lenders;
(x) a
Borrowing Base Certificate duly certified by a Responsible Financial Officer
showing a calculation of the Borrowing Base, which shall be computed on the
basis of Eligible Loan Receivables as of February 28, 2010;
(xi) evidence
that all Indebtedness owing by any Subsidiary Guarantor to AGFC and American
General Finance, Inc. shall be subordinated to the Obligations pursuant to a
subordination agreement (the “Subordination
Agreement”); and
(xii) evidence
that the Borrower’s certificate of incorporation shall contain such terms that
are reasonably satisfactory to the Administrative Agent; and
(xiii) a copy of
the Disclosure Letter executed by a Responsible Officer of AGFC.
(b) The
Subsidiary Guarantors shall have no Indebtedness individually in excess of
$100,000,000 other than (i) as set forth on Schedule 7.02(b)(ii)
of the Disclosure Letter, (ii) in respect of the Obligations, (iii) in
respect of intercompany Indebtedness among the Subsidiary Guarantors, and (iv)
in respect of the Intercompany Secured Loans;
(c) The
Borrower shall have no other Indebtedness other than the Loans;
(d) AGFC
shall have no other Indebtedness individually in excess of $100,000,000 other
than (i) as set forth on Schedule 7.02(b)(iii)
of the Disclosure Letter and (ii) in respect of the
Obligations;
(e) (i) All
fees required to be paid to the Administrative Agent and the Arranger on or
before the Closing Date shall have been paid and (ii) all fees required to be
paid to the Lenders on or before the Closing Date shall have been
paid.
(f) The
Administrative Agent shall have been reimbursed by the Borrower for all of its
reasonable and properly documented out-of-pocket fees and expenses relating to
the Transaction (including, but not limited to, the reasonable and documented
out-of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ llp, as
counsel to the Administrative Agent, and due diligence expenses).
(g) The
representations and warranties of AGFC, the Borrower and the Subsidiary
Guarantors contained in Article V or any
other Loan Document shall be true and correct in all material respects (except
where such representations and warranties are qualified by materiality, in which
case they shall be true and correct in all respects) on and as of the Closing
Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct in all
material respects (except where such representations and warranties are
qualified by materiality, in which case they shall be true and correct in all
respects) as of such earlier date.
30
(h) No
Default or Event of Default shall exist and be continuing, or would result from
the making of the Loans or from the application of the proceeds
thereof.
(i) The
Administrative Agent shall have received a Committed Loan Notice in accordance
with the requirements hereof.
(j) The
Administrative Agent shall be satisfied that (i) the Borrower has provided
written instructions that the net proceeds of the Loans, together with other
cash of the Borrower, shall be used by the Borrower to fund the Intercompany
Secured Loans and (ii) the aggregate principal amount of the Loans shall not
exceed the aggregate amount of the Intercompany Secured Loans plus amounts
described in clause (f) of the definition of Borrowing Base (not to exceed the
amounts set forth in such clause (f)).
Without
limiting the generality of the provisions of Section 9.03(e), for
purposes of determining compliance with the conditions specified in this Section 4.01, each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
Each of
AGFC, the Borrower and the Subsidiary Guarantors represents and warrants to the
Administrative Agent and the Lenders that:
5.01.
Existence, Qualification and
Power. Each
Loan Party (a) is duly organized or formed, validly existing and, as applicable,
in good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or
lease its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, and (c) is duly
qualified and is licensed and, as applicable, in good standing under the Laws of
each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
5.02.
Authorization; No
Contravention. The
execution, delivery and performance by each Loan Party of each Loan Document,
the Intercompany Security Documents, the Intercompany Secured Loan Agreements
and the Subordination Agreement to which such Loan Party is or is to be a party
have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of any of such Loan
Party’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under, (i) any material Contractual Obligation to which such Loan Party
is a party or affecting such Loan Party or the properties of such Loan Party or
any of its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Loan Party or its
property is subject; or (c) violate any Law.
5.03.
Governmental Authorization;
Other Consents. No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, (i) any Governmental Authority, except as has already been
obtained or (ii) except where the failure to obtain would not reasonably be
expected to have a Material Adverse Effect or except as has already been
obtained, any other Person, in each case, is necessary or required in connection
with (a) the execution, delivery or performance by, or enforcement against, any
Loan Party of this Agreement or any other Loan Document, or for the consummation
of the Transaction, (b) the grant by any Loan Party of the Liens granted by it
pursuant to the Pledge Agreement and the Intercompany Security Documents, (c)
the perfection or maintenance of the Liens created under the Pledge Agreement
and the Intercompany Security Documents (including, in each case, the first
priority nature thereof) or (d) the exercise by the Administrative Agent or any
Lender of its rights under the Loan Documents or the Pledge Agreement and the
Intercompany Security Documents. No action has been taken by any
Governmental Authority restraining, preventing or imposing materially adverse
conditions upon the Transaction
31
or the
rights of the Loan Parties freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any of
them.
5.04.
Binding
Effect. This
Agreement has been, and each other Loan Document, the Intercompany Security
Documents, the Intercompany Secured Loan Agreements and the Subordination
Agreement when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes,
and each other Loan Document when so delivered will constitute, a legal, valid
and binding obligation of such Loan Party, enforceable against each Loan Party
that is party thereto in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors’ rights generally or by equitable principles relating
to enforceability.
5.05.
Financial Statements; No
Material Adverse Effect.
(a)
The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of AGFC and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of AGFC and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.
(b)
Since
December 31, 2009, there has been no event or circumstance, either individually
or in the aggregate, that has had or could reasonably be expected to have a
Material Adverse Effect.
5.06.
Litigation. As
of the date hereof, there are no actions, suits, proceedings, claims or disputes
pending or, to the knowledge of the Borrower, threatened or contemplated, at
law, in equity, in arbitration or before any Governmental Authority, by or
against AGFC or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or (b) either individually or in the aggregate, are
reasonably likely to be adversely determined, and if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
5.07.
No Breach or
Default. Neither
any Loan Party nor any Subsidiary thereof is in default under or with respect
to, or a party to, any Contractual Obligation that could, either individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect. No Default has occurred and is continuing or would result
from the consummation of the transactions contemplated by this Agreement or any
other Loan Document.
5.08.
Ownership of Property;
Liens;
Investments.
(a)
Each
Subsidiary Guarantor has good record and marketable title to the Loan
Receivables pledged by such Subsidiary Guarantor to the Borrower pursuant to the
Intercompany Security Documents.
(b)
Other
than Liens in favor of the Borrower pursuant to the Intercompany Security
Documents, there are no Liens on the Eligible Loan Receivables.
(c)
Schedule 5.08(c)
of the Disclosure Letter sets forth a complete and accurate list of all
Investments (x) by AGFC in any other Loan Party, (y) by the Borrower or any
Subsidiary Guarantor in AGFC and (z) individually in excess of $100,000,000 that
are held by any Loan Party on the date hereof (other than any Investments
between the Borrower and the Subsidiary Guarantors or among Subsidiary
Guarantors), showing as of the date hereof the amount, obligor or issuer and
maturity, if any, thereof.
5.09.
ERISA Matters.
(a)
Each Plan
is in compliance with the applicable provisions of ERISA, the Code and other
Federal or state laws except for non-compliance that could not, individually or
in the aggregate reasonably be expected to have a Material Adverse
Effect. Each Pension Plan that is intended to be a qualified plan
under Section 401(a) of the Code has received a favorable determination letter
from the Internal Revenue Service to the effect that the form of such Plan is
qualified under Section 401(a) of
32
the Code
and the trust related thereto has been determined by the Internal Revenue
Service to be exempt from federal income tax under Section 501(a) of the Code,
or an application for such a letter is currently being processed by the Internal
Revenue Service except for non-compliance that could not, individually or in the
aggregate reasonably be expected to have a Material Adverse
Effect. To the best knowledge of the Borrower, nothing has occurred
that would prevent or cause the loss of such tax-qualified status except for
non-compliance that could not, individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
(b)
There are
no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to
any Plan that could reasonably be expected to have a Material Adverse
Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No
ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate is
aware of any fact, event or circumstance that could reasonably be expected to
constitute or result in an ERISA Event with respect to any Pension Plan; (ii)
the Borrower and each ERISA Affiliate has met all applicable requirements under
the Pension Funding Rules in respect of each Pension Plan, and no waiver of the
minimum funding standards under the Pension Funding Rules has been applied for
or obtained; (iii) neither the Borrower nor any ERISA Affiliate has incurred any
liability to the PBGC other than for the payment of premiums, and there are no
premium payments which have become due that are unpaid and no Pension Plan has
been terminated by the plan administrator thereof nor by the PBGC, and no event
or circumstance has occurred or exists that could reasonably be expected to
cause the PBGC to institute proceedings under Title IV of ERISA to terminate any
Pension Plan, except in the case of clauses (i) through (iv) such event or
circumstance, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
5.10.
Subsidiaries; Equity
Interests; Loan
Parties. No
Loan Party has any Subsidiaries on the date hereof other than those specifically
disclosed in Part (a) of Schedule 5.10 of the
Disclosure Letter, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and non-assessable and are
owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.10 of
the Disclosure Letter free and clear of all Liens (subject to Liens permitted by
each of Sections
7.01 and 7.02(a)). No
Loan Party has any equity investments in any other corporation or entity on the
date hereof other than those specifically disclosed in Part (b) of Schedule 5.10 of the
Disclosure Letter. All of the outstanding Equity Interests in the
Borrower have been validly issued, are fully paid and non-assessable and are
owned (directly or indirectly) by AGFC free and clear of all Liens except those
created under the Pledge Agreement. Set forth on Part (d) of Schedule 5.10 of the
Disclosure Letter is a complete and accurate list of all Loan Parties, showing
as of the Closing Date (as to each Loan Party) the jurisdiction of its
incorporation, the address of its principal place of business and its U.S.
taxpayer identification number.
5.11.
Margin Regulations;
Investment Company Act.
(a)
No Loan
Party is engaged nor will any Loan Party engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.
(b)
Immediately
after giving effect to the Transaction, no Loan Party, any Person Controlling
any Loan Party, or any of their Subsidiaries is or will be required to be
registered as an “investment company”
under the Investment Company Act of 1940.
5.12.
Disclosure. The
Loan Parties have disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which any of the
Loan Parties is subject, and all other matters known to them, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan
33
Document
(in each case 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
projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time prepared.
5.13.
Compliance with
Laws. Each
Loan Party is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.14.
Solvency. As
of the Closing Date, the Borrower and the Subsidiary Guarantors are
Solvent.
5.15.
Collateral
Documents.
(a)
The
provisions of the Pledge Agreement are effective to create in favor of the
Administrative Agent for the benefit of the Secured Parties a legal, valid and
enforceable first priority Lien on all right, title and interest of AGFC in the
Pledged Equity described therein. Except for filings completed on or
prior to the Closing Date and as contemplated hereby and by the Pledge
Agreement, no filing or other action will be necessary to perfect such
Liens.
(b)
The
provisions of the Intercompany Security Documents are effective to create in
favor of the Borrower a legal, valid and enforceable first priority Lien on all
right, title and interest of the Qualifying Subsidiary Guarantors in the
Eligible Loan Receivables pledged pursuant thereto. Except for
filings completed on or prior to the Closing Date and as contemplated by the
Intercompany Security Documents, no filing or other action will be necessary to
perfect such Liens.
5.16.
Pari Passu
Status. The
Obligations rank at least pari
passu in right of payment with each Loan Party’s
present and future unsecured, unsubordinated payment obligations, except for
obligations mandatorily preferred by law applying to companies generally in its
jurisdiction of incorporation or any other jurisdiction where it carries on
business.
5.17.
Specified
Subsidiaries. The
Subsidiary Guarantors are the only Persons through which AGFC conducts or
services its “branch” loan receivables originated in the United States
(excluding its possessions and territories).
ARTICLE
VI
AFFIRMATIVE
COVENANTS
So long
as any Lender shall have any Commitment hereunder or any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, each of AGFC and the
Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01,
6.02 and 6.03) cause each
Subsidiary Guarantor to:
6.01.
Financial
Statements. Deliver
to the Administrative Agent for further distribution to each Lender, in form and
detail reasonably satisfactory to the Administrative Agent:
(a) as soon
as available, but in any event within 120 days after the end of each fiscal year
of AGFC and the Borrower (or, if earlier, 15 days after the date required to be
filed with the SEC (without giving effect to any extension permitted by the
SEC)) (commencing with the fiscal year ended December 31, 2010), (i) a
consolidated balance sheet of AGFC and its Subsidiaries and (ii) a balance sheet
of the Borrower, in each case as at the end of such fiscal year, and, in the
case of the foregoing clause (i), the related consolidated statements of income
or operations, changes in shareholders’ equity, and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, such statements (in the case of the consolidated
34
statements
of AGFC and its Subsidiaries, but not the Borrower) to be audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards, and such consolidated statements to be
certified by the chief executive officer, chief financial officer, treasurer or
controller of AGFC to the effect that such statements are fairly stated in all
material respects when considered in relation to the consolidated financial
statements of AGFC and its Subsidiaries or of the Borrower, as
applicable;
(b) as soon
as available, but in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of AGFC and the Borrower (or, if
earlier, 5 days after the date required to be filed with the SEC (without giving
effect to any extension permitted by the SEC)) (commencing with the fiscal
quarter ended March 31, 2010), (i) a consolidated balance sheet of AGFC and its
Subsidiaries and (ii) a balance sheet of the Borrower, in each case as at the
end of such fiscal quarter, and, in the case of the foregoing clause (i), the
related consolidated statements of income or operations, changes in
shareholders’ equity, and cash flows for such fiscal quarter and for the portion
of AGFC’s fiscal year then ended, setting forth in each case in comparative form
the figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail,
such consolidated statements to be certified by the chief executive officer,
chief financial officer, treasurer or controller of AGFC as fairly presenting
the financial condition, results of operations, shareholders’ equity and cash
flows of AGFC and its Subsidiaries or the Borrower, as applicable, in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.
6.02.
Borrowing Base Certificates;
Other Information. Deliver
to the Administrative Agent for further distribution to each Lender, in form and
detail reasonably satisfactory to the Administrative Agent:
(a) concurrently
with the delivery of the financial statements referred to in Section 6.01(a)(i)
and Section 6.01(b)(i),
(i) a narrative report and management’s discussion and analysis of the financial
condition and results of operations of AGFC for the applicable fiscal year or
quarter, as compared to amounts for the previous fiscal year or quarter, as the
case may be, and (ii) commencing with the fiscal quarter ended June 30, 2010, a
statement as to the aggregate amount of Loan Receivables of the Subsidiary
Guarantors as of the end of such fiscal year or quarter, as the case may be (it
being understood that the information required in connection with the financial
statements referred to in Section 6.01(a),
Section 6.01(b)
and this Section
6.02(a) may be furnished in the form of a Form 10-K or 10-Q of AGFC, so
long as such Form 10-K or 10-Q contains such information);
(b) promptly
after the same are available, copies of each annual report or financial
statement or other report or communication sent to the stockholders of AGFC
generally, and copies of all annual, regular, periodic and special reports and
registration statements which AGFC or the Borrower may file or be required to
file with the SEC under Section 13 or 15(d) of the Securities Exchange Act
of 1934, or with any national securities exchange, and in any case not otherwise
required to be delivered to the Administrative Agent pursuant
hereto;
(c) promptly
after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or of any of its Subsidiaries
pursuant to the terms of any indenture, loan or credit or similar agreement, but
only to the extent a comparable statement or report is not otherwise required to
be furnished to the Lenders pursuant to Section 6.01 or any
other clause of this Section 6.02;
(d) not later
than five Business Days after receipt thereof by any Loan Party or any
Subsidiary thereof, copies of all notices pursuant to any instrument, indenture,
loan or credit or similar agreement regarding or related to any breach or
default by any party thereto;
(e) (i) on or
prior to the thirtieth day following the end of each calendar month following
the Closing Date (beginning June 2010), (ii) at least one Business Day prior to
the consummation of any transaction pursuant to Section 7.02(d)(vii)
and (iii) at least one Business Day prior to the making of additional
35
Intercompany
Secured Loans pursuant to Section 2.03(b), an updated Borrowing Base Certificate
setting forth a calculation of the Required Borrowing Base as of the end of the
immediately preceding calendar month (or with respect to clause (ii) or (iii) as
of the end of the most recent calendar month for which a Borrowing Base
Certificate was required to be delivered), which (x) in the case of clause
(i) shall be calculated based on information with respect to Eligible Loan
Receivables as of the end of such immediately preceding calendar month; provided
that such calculation shall only be required to be updated with respect to FICO
Scores and TDRs with respect to such Eligible Loan Receivables as of the end of
such calendar month for any Borrowing Base Certificate that is required to be
delivered with respect to a calendar month that is also the end of a calendar
quarter, (y) in the case of clause (ii) shall be calculated on a pro forma basis
giving effect to the relevant substitution or exchange contemplated by Section
7.02(d)(vii), as applicable, and (z) in the case of clause (iii) shall be
calculated on a pro forma basis giving effect to the additional Intercompany
Secured Loans and pledge of additional Eligible Loan Receivables under the
Intercompany Security Documents being made pursuant to Section 2.03;
and
(f) no
Subsidiary Guarantor will effect any change (i) in such Subsidiary
Guarantor’s legal name, (ii) in such Subsidiary Guarantor’s organizational
structure, (iii) in such Subsidiary Guarantor’s Federal Taxpayer
Identification Number or organizational identification number, if any or
(iv) in such Subsidiary Guarantor’s jurisdiction of organization unless
(A) it shall have given the Administrative Agent not less than
10 days’ prior written notice of its intention so to do and (B) it
shall have taken all action reasonably necessary to maintain the perfection and
priority of the security interest of the Borrower in the Collateral (as defined
in the Intercompany Security Documents) under the Intercompany Security
Documents.
Documents
required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.02(b)
(to the extent any such documents are included in materials otherwise filed with
the SEC) or Section
6.02(d) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 11.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet
or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents
to the Administrative Agent upon its request to the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent and (ii) the Borrower shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of
such documents. The Administrative Agent shall have no obligation to
request the delivery of or to maintain paper copies of the documents referred to
above.
The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arranger will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may
have personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. The Borrower
hereby agrees that it will use its commercially reasonable efforts to identify
that portion of the Borrower Materials that may be distributed to the Public
Lenders, including using commercially reasonable efforts to ensure that (w) all
such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower
shall be deemed to have authorized the Administrative Agent, the Arranger and
the Lenders to treat such Borrower Materials as not containing any material
non-public information (although it may be sensitive and proprietary) with
respect to AGFC and its Affiliates or their securities for purposes of United
States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as
set forth in Section
11.07); (y) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public Side
Information”; and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
36
Side
Information.” Notwithstanding the foregoing, the Borrower
shall be under no Obligation to ▇▇▇▇ any Borrower Materials
“PUBLIC”.
6.03.
Notices. Promptly
notify the Administrative Agent:
(a) of the
occurrence of any Default;
(b) of any
matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect; and
(c) of the
assertion or occurrence of any action or proceeding against any Loan Party or
any of their Subsidiaries that is reasonably likely to be adversely determined
and, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect.
Each
notice pursuant to Section 6.03 shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth reasonable details of the occurrence referred to therein and stating what
action the Borrower has taken and/or proposes to take with respect
thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04.
Payment of
Obligations. Pay
and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all Taxes upon it or its property, income or assets,
unless the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being
maintained by AGFC or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness, and timely and
correctly file all Tax returns required to be filed by it, except for failures
to pay and discharge or file that could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect.
6.05.
Preservation of Existence,
Etc. (a)
Preserve, renew and maintain in full force and effect its legal existence and
good standing under the Laws of the jurisdiction of its organization except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect and (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
6.06.
Compliance with
Laws. Comply
in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
6.07.
Books and
Records. (a)
Maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of AGFC or
such Subsidiary Guarantor, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over AGFC, the
Borrower or such Subsidiary, as the case may be; provided that this Section 6.07 shall
not be deemed to require the delivery of an audit opinion that does not contain
a “going concern” or similar qualification.
6.08.
Borrowing Base Audit
Rights. Permit
representatives and independent contractors of the Administrative Agent to visit
and to conduct appraisals and collateral examinations of the Eligible Loan
Receivables of the Borrower and the Subsidiary Guarantors, which shall include,
without limitation, of the Borrower’s practices in the computation of the
Borrowing Base, and related financial information, all at the expense of the
Borrower and at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that,
excluding any such visits and inspections during the continuation of an Event of
Default, the Administrative Agent shall not exercise such rights more than one
(1) time during any calendar
37
year
absent the existence and continuance of an Event of Default; provided that when
an Event of Default exists, the Administrative Agent (or its representatives or
independent contractors) may do any of the foregoing, in each case, at the
expense of the Borrower at any time during normal business hours and upon
reasonable advance notice.
6.09.
Use of
Proceeds. Use
the net proceeds of the Loans together with other cash of the Borrower to make
Intercompany Secured Loans to Subsidiary Guarantors such that the aggregate
principal amount of the Loans on the Closing Date shall not exceed the aggregate
amount of the Intercompany Secured Loans on the Closing Date.
6.10.
Covenant to Guarantee
Obligations.
(a)
If (x)
any direct or indirect Subsidiary of AGFC provides a Guarantee of any
Indebtedness of AGFC represented by securities or (y) any Subsidiary of AGFC
(other than an Excluded Subsidiary) shall be formed or established that conducts
or services “branch” loan receivables which are originated in the United States,
then AGFC shall, at AGFC’s expense:
(i) promptly
cause such Subsidiary to duly execute and deliver to the Administrative Agent an
executed joinder agreement to this Agreement in the capacity as a Subsidiary
Guarantor, and if such Subsidiary pledges Eligible Loan Receivables, to an
Intercompany Secured Loan Agreement and the Intercompany Security Documents, in
each case, in form and substance reasonably satisfactory to the Administrative
Agent; and
(ii) within 15
days after such formation, acquisition or activity, deliver to the
Administrative Agent, upon the request of the Required Lenders, a signed copy of
a favorable opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties acceptable to the Administrative Agent
as to the matters contained in clause (i) above, and as to such other matters as
the Administrative Agent may reasonably request (but consistent with the legal
opinions delivered on the Closing Date pursuant to Section
4.01(a)(vii)).
(b)
At any
time upon request of the Administrative Agent, promptly execute and deliver any
and all further instruments and documents and take all such other action as the
Administrative Agent may reasonably deem necessary or desirable and that the
Loan Parties are commercially able to do in obtaining the full benefits of, or
(as applicable) in perfecting and preserving the Liens of, such guaranties and
pledge agreements.
(c)
Notwithstanding
any other provision of this Agreement (x) at all times AGF CashCo shall be a
Subsidiary Guarantor and (y) no Subsidiary of AGFC listed on Schedule 1.01(c)
shall be required to grant Guarantees of the Obligations of Borrower unless such
Subsidiary becomes a Qualifying Subsidiary Guarantor.
(d)
Notwithstanding
the foregoing, no Foreign Subsidiary shall be a Subsidiary Guarantor or
otherwise be subject to this Section
6.10.
6.11.
Conduct of
Business. Subject
to the right to transfer Loan Receivables from one Subsidiary Guarantor to
another Subsidiary Guarantor, provided that following any such transfer they
continue to be Eligible Loan Receivables, each Subsidiary Guarantor shall
continue to service the Loan Receivables it has pledged to the Borrower as
collateral securing the Intercompany Secured Loans in accordance with customary
business practices and consistent with past practice and any activities that are
ancillary or reasonably related thereto.
6.12.
Cash Management. Within
120 days following the Closing Date, AGFC shall, and shall cause its
Subsidiaries to enter into cash management procedures reasonably satisfactory to
the Administrative Agent, including procedures that:
(i) ensure
that cash of the Subsidiary Guarantors that constitutes payments received from
Eligible Loan Receivables is not commingled with cash of AGFC on any day other
than, so long as no Event of Default has occurred and is continuing, an amount
of cash that does not exceed the amount of loan disbursements and expenses
expected to be paid by AGFC on the Business Day following such day;
38
(ii) require
that an amount of cash generated by each Eligible Loan Receivable be deposited
with AGFS Cash Services, Inc. (“AGF CashCo”) within
two (2) Business Days of such generation;
(iii) provide
that during the continuance of an Event of Default any cash that constitutes
payments received from the Eligible Loan Receivables shall be segregated and (x)
directed within two (2) Business Days after receipt to a blocked deposit account
of the Borrower that is subject to an account control agreement in favor of the
Borrower, which account control agreement is in form and substance reasonably
satisfactory to the Administrative Agent or (y) pledged to the Borrower pursuant
to procedures reasonably acceptable to the Administrative Agent;
provided that such
procedures shall, (x) subject to Article VII, allow
the movement of cash (to the extent such cash is determined not to have been
generated by Eligible Loan Receivables) from AGF CashCo to AGFC and (y) not
otherwise restrict the aggregation or movement of funds among the Subsidiary
Guarantors and the Borrower; provided further that on or
prior to the date that is 120 days following the Closing Date, the Borrower
shall provide the Administrative Agent with a certificate of the chief financial
officer of the Borrower confirming that the procedures in clauses (i) through
(iii) of this Section
6.12 have been completed.
6.13.
ERISA. AGFC
and its Subsidiaries shall furnish to the Administrative Agent (a) as soon as
possible, and in any event within 30 days after AGFC has knowledge that any
ERISA Event with respect to any Pension Plan with vested Unfunded Liabilities
that could reasonably be expected to have a Material Adverse Effect has
occurred, a statement setting forth details as to such ERISA Event and the
action that AGFC proposes to take with respect thereto, together with a copy of
the notice of such ERISA Event given to the PBGC, and (b) promptly after receipt
thereof, a copy of any notice AGFC or any of its Subsidiaries may receive from
the PBGC relating to the intention of the PBGC to terminate any Plan with vested
Unfunded Liabilities that could reasonably be expected to have a Material
Adverse Effect or to appoint a trustee to administer any Plan with vested
Unfunded Liabilities that could reasonably be expected to have a Material
Adverse Effect.
6.14.
Further
Assurances. Promptly
upon request by the Administrative Agent, (a) correct any material defect or
error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent, may reasonably require from time to time in order to (i)
carry out more effectively the purposes of the Loan Documents, (ii) perfect and
maintain the validity, effectiveness and priority of any of the Pledge Agreement
and the Intercompany Security Documents and any of the Liens intended to be
created thereunder, (iii) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the rights granted
or now or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan
Document to which any Loan Party is or is to be a party and (iv) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively unto the
Borrower the rights granted or now or hereafter intended to be granted to the
Borrower under any Intercompany Security Document or under any other instrument
executed in connection with any Intercompany Security Document to which any
Qualifying Subsidiary Guarantor is or is to be a party. Promptly upon
request by the Administrative Agent or the Required Lenders, if an Event of
Default occurs and is continuing and the Administrative Agent has exercised its
rights and remedies pursuant to Section 8.02, (x) the Borrower will exercise its
rights and remedies under the Intercompany Secured Loan Agreements and the
Intercompany Security Documents and (y) the Subsidiary Guarantors will exercise
their rights and remedies under the Subordination Agreement.
ARTICLE
VII
NEGATIVE
COVENANTS
7.01.
Negative Covenants
Applicable to AGFC and Its Subsidiaries.
(a)
So long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, AGFC shall not at any time,
directly or indirectly, create, assume or suffer to exist, and shall not cause,
suffer or permit any of its Subsidiaries to create, assume or suffer to exist,
any Lien of
39
or upon
any of its or their properties or assets, real or personal, whether owned at the
Closing Date or thereafter acquired, or of or upon any income or profit
therefrom, without making effective provision, and AGFC covenants that in any
such case it will make or cause to be made effective provision, whereby the
Loans then outstanding shall be secured by such Lien equally and ratably with or
prior to any and all other obligations and Indebtedness to be secured thereby,
so long as any such other obligations and Indebtedness shall be so secured;
provided that this Section 7.01 shall not be construed to prevent AGFC or any of
its Subsidiaries from creating, assuming or suffering to exist, and AGFC or any
of its Subsidiaries is hereby expressly permitted to create, assume or suffer to
exist, without securing the Loans then outstanding, the following:
(i) any Lien
arising under the Loan Documents;
(ii) any Lien
on any properties or assets of AGFC or any of its Subsidiaries existing on the
date hereof and (to the extent any underlying property or asset subject to such
Lien individually has a value in excess of $50,000,000) listed on Schedule 7.01(a)(ii)
of the Disclosure Letter;
(iii) any Lien
on any property or assets of any of AGFC’s Subsidiaries to secure Indebtedness
owing by it to AGFC or to a Wholly Owned Subsidiary of AGFC;
(iv) any Lien
on any property or assets of any of AGFC’s Subsidiaries to secure, in the
ordinary course of its business, its Indebtedness, if as a matter of practice,
prior to the time it became a Subsidiary of AGFC, it had borrowed on the basis
of secured loans or had customarily deposited collateral to secure any or all of
its obligations;
(v) any
purchase money Lien on property, real or personal, acquired or constructed by
AGFC or any of its Subsidiaries after the Closing Date, to secure the purchase
price of such property (or to secure Indebtedness incurred for the purpose of
financing the acquisition or construction of such property to be subject to such
Lien), or Liens existing on any such property at the time of acquisition,
whether or not assumed, or any Lien existing on any property of any Person at
the time it becomes a Subsidiary of AGFC, or any Lien with respect to any
property hereafter acquired; provided, however, that the
aggregate principal amount of the Indebtedness secured by all such Liens on a
particular parcel of property shall not exceed 75% of the cost of such property,
including the improvements thereon, to AGFC or any such Subsidiary, and provided, further, that any
such Lien does not spread to other property owned prior to such acquisition or
construction or to property thereafter acquired or constructed other than
additions to such property;
(vi) refundings
or extensions of any Lien permitted by this Section 7.01(a) for
amounts not exceeding the principal amount of the Indebtedness so refunded or
extended at the time of the refunding or extension thereof, and covering only
the same property theretofore securing the same;
(vii) Liens to
enable AGFC or any of its Subsidiaries to exercise any privilege or license, or
to secure payments of workmen’s compensation, unemployment insurance, old age
pensions or other social security, or to secure the performance of bids,
tenders, contracts or leases to which AGFC or any of its Subsidiaries is a
party, or to secure public or statutory obligations of AGFC or any of its
Subsidiaries, or to secure surety, stay or appeal bonds to which AGFC or any of
its Subsidiaries is a party; or other similar Liens made in the ordinary course
of business;
(viii) mechanics’,
workmen’s, repairmen’s, materialmen’s, or carriers’ Liens; or other similar
Liens arising in the ordinary course of business; or deposits or pledges to
obtain the release of any such liens;
(ix) Liens
arising out of judgments or awards against AGFC or any Subsidiary with respect
to which AGFC or such Subsidiary shall in good faith be prosecuting an appeal or
proceedings for review; or Liens incurred by AGFC or any Subsidiary for the
purpose of obtaining a stay or discharge in the course of any legal proceedings
to which AGFC or such Subsidiary is a party;
40
(x) Liens for
taxes not yet subject to penalties for non-payment or contested, or survey
exceptions, or encumbrances, easements or reservations of, or rights of others
for, rights of way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions as to the use of real
properties, which encumbrances, easements, reservations, rights and restrictions
do not in the aggregate materially detract from the value of such properties or
materially impair their use in the operation of the business of AGFC or of its
Subsidiary owning the same;
(xi) other
Liens incidental to the conduct of its business or the ownership of its property
and assets which were not incurred in connection with the borrowing of money or
the obtaining of advances of credit, and which do not in the aggregate
materially detract from the value of its property and assets or materially
impair the use thereof in the operation of its business;
(xii) any Lien
created by AGFC or any of its Subsidiaries in connection with a transaction
intended by AGFC or such Subsidiary to be one or more sales of properties or
assets of AGFC or such Subsidiary; provided that such
Lien shall only apply to the properties or assets involved in such sale or
sales, the income from such properties or assets and/or the proceeds of such
properties or assets;
(xiii) Liens on
property (other than Eligible Loan Receivables) of the Subsidiary Guarantors
securing Indebtedness incurred pursuant to Section 7.02(b)(v);
and
(xiv) Liens on
property (other than Eligible Loan Receivables) of the Loan Parties securing
Indebtedness incurred pursuant to Section
7.02(b)(viii).
(b) Notwithstanding
Section
7.01(a), AGFC and its Subsidiaries shall not create, assume or suffer to
exist, and shall not cause, suffer or permit any of its Subsidiaries to create,
assume or suffer to exist, any Lien upon any of its or their properties or
assets, real or personal, whether owned at the Closing Date or thereafter
acquired, or of or upon any income or profit therefrom in reliance upon the
Consolidated Net Worth Basket other than Liens granted pursuant to the Pledge
Agreement.
(c)
(i) So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, AGFC shall not
consolidate with, merge with or into, or sell or convey all or substantially all
of its assets to, any other Person; provided that AGFC
may consolidate with, merge with or into, or sell or convey all or substantially
all of its assets to, any other corporation, association, company or business
trust, provided that
(x) (1) in the case of a merger, AGFC is the surviving entity in such merger, or
(2) in the case of a merger in which AGFC is not the surviving entity or in the
case of a consolidation or a sale or conveyance of assets, the entity into which
AGFC is merged or the entity which is formed by such consolidation or which
acquires by sale or conveyance all or substantially all of the assets of AGFC
shall be a corporation, association, company or business trust organized and
existing under the laws of the United States of America or a State thereof and
such successor entity shall expressly assume the due and punctual payment of the
principal of the Obligations and the due and punctual performance and observance
of all of the covenants of this Agreement to be performed or observed by AGFC by
an assumption agreement in form satisfactory to the Administrative Agent,
executed and delivered to the Administrative Agent by such entity and (y) AGFC
or such successor entity, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance or observance of any such covenant and shall not immediately
thereafter have outstanding (or otherwise be liable for) any Indebtedness
secured by a Lien not expressly permitted by the provisions of Section 7.01(a) or
shall have secured the Obligations hereunder equally and ratably with (or prior
to) any Indebtedness secured by any Lien not so permitted.
7.02.
Negative Covenants
Applicable to the Borrower and the Subsidiary Guarantors. So
long as any Lender shall have any Commitment hereunder or any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, the Borrower and the
Subsidiary Guarantors shall not at any time directly or indirectly:
(a) Liens. Create,
incur, assume or suffer to exist any Lien upon (i) in the case of the Borrower,
any of its assets and (ii) in the case of the Subsidiary Guarantors, any of the
Eligible Loan Receivables or upon the Intercompany Secured Loans, other than
Liens in favor of the Borrower pursuant to the Intercompany Security
Documents.
41
(b) Indebtedness. Create,
incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness
under the Loan Documents;
(ii) Indebtedness
existing on the Closing Date and (to the extent individually in excess of
$100,000,000 (other than intercompany Indebtedness among the Subsidiary
Guarantors)) listed on Schedule 7.02(b)(ii)
of the Disclosure Letter and Refinancing Indebtedness in respect
thereof;
(iii) the
Subsidiary Guarantors may incur Indebtedness for the purpose of refinancing,
refunding, renewing or extending any Indebtedness of AGFC existing on the
Closing Date and listed on Schedule 7.02(b)(iii)
of the Disclosure Letter in compliance with Section 7.02(e)(ii),
and any Indebtedness of a Subsidiary Guarantor incurred in contemplation of such
refinancing, refunding, renewal or extension, so long as the proceeds thereof
are retained at a Subsidiary Guarantor until actually applied to such
refinancing, refunding, renewal or extension;
(iv) so long
as no Default shall have occurred and be continuing or would result therefrom,
the Subsidiary Guarantors may incur Indebtedness (including pursuant to
Alternate Transactions), the net cash proceeds of which are used or invested in
the Loan Business, and Refinancing Indebtedness in respect thereof;
(v) Indebtedness
of a Subsidiary Guarantor owed to the Borrower or another Subsidiary
Guarantor;
(vi) so long
as no Default shall have occurred and be continuing or would result therefrom,
the Borrower may incur Subordinated Indebtedness;
(vii) so long
as no Default shall have occurred and be continuing or would result therefrom,
the Subsidiary Guarantors may Guarantee any Indebtedness that would have
otherwise been permitted to be incurred by such Subsidiary Guarantor pursuant to
another clause of this Section
7.02(b);
(viii) Indebtedness
under interest rate Swap Contracts; provided that such
Indebtedness is not incurred for speculative purposes;
(ix) Indebtedness
in respect of netting services, overdraft protections and otherwise in
connection with customary deposit accounts maintained by a Loan Party as part of
its ordinary cash management program;
(x) performance
Guarantees in the ordinary course of business of the obligations (other than
Indebtedness) of suppliers, customers, franchisees and licensees of a Subsidiary
Guarantor or of any Subsidiary Guarantor as a tenant or subtenant on real estate
leases in the ordinary course of business; and
(xi) other
Indebtedness of the Subsidiary Guarantors not to exceed $500,000,000 at any one
time outstanding.
(c) Investments. Make
or hold any Investments, except:
(i) Investments
consisting of extensions of credit in the nature of accounts receivable or notes
receivable arising from the grant of trade credit in the ordinary course of
business,
(ii) Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors in the ordinary course of business or to the extent
reasonably necessary in order to prevent or limit loss;
42
(iii) Investments
in cash and Cash Equivalents;
(iv) Indebtedness
permitted to be incurred pursuant to Section 7.02(b)(iv),
7.02(b)(v),
7.02(b)(vi) or
7.02(b)(vii);
(v) Investments
entered into in connection with Alternate Transactions permitted pursuant to
Section
7.05;
(vi) Investments
existing on the Closing Date and (to the extent individually in excess of
$100,000,000 (other than intercompany Investments among the Subsidiary
Guarantors)) listed on Schedule 5.08(c) of
the Disclosure Letter;
(vii) Restricted
Payments permitted pursuant to Section 7.02(e);
and
(viii) without
duplication of Restricted Payment pursuant to Section 7.02(e)(ii)
and other than with Unrestricted Cash of the Borrower included in the Required
Borrowing Base, so long as no Default shall have occurred and be continuing or
would result therefrom, the Borrower and each Subsidiary Guarantor may make
Investments in the form of unsubordinated loans to AGFC and American General
Finance, Inc. and AGFC may make Investments in the form of unsubordinated loans
to American General Finance, Inc., in each case, in an amount not to exceed the
amount necessary to pay principal and interest payments on AGFC’s (or American
General Finance, Inc.’s) Indebtedness to the extent such payments are due and
payable within 24 months of the date of such Investment; so long as the proceeds
thereof are promptly used by AGFC (or American General Finance, Inc.) to make
such payment of principal and/or interest.
(d) Dispositions. Make
any Disposition, except:
(i) Dispositions,
the net cash proceeds of which are applied to permanently repay Indebtedness of
AGFC or any Subsidiary Guarantor (which in the case of any revolving
Indebtedness shall be accompanied by a termination of the commitments with
respect to such Indebtedness);
(ii) Dispositions,
the net cash proceeds of which are used in the Loan Business;
(iii) Dispositions
of obsolete or worn-out property, or property that is no longer used or useful
in the business, whether now owned or hereafter acquired, in the ordinary course
of business; provided that
Disposition of any Loan Receivables shall not be permitted pursuant to this
clause (iii);
(iv) Dispositions
of equipment or real property to the extent that the proceeds of such
Disposition are reasonably promptly applied to the purchase price of such
replacement property;
(v) Dispositions
of property to any Subsidiary Guarantor;
(vi) Dispositions
occurring to effect a transaction pursuant to Section 7.02(e) or
Section
7.05;
(vii) the
substitution or exchange of Eligible Loan Receivables; provided that after
giving effect thereto, the Required Borrowing Base is not less than the amount
of outstanding Loans as shown on the most recent Borrowing Base Certificate
delivered pursuant to Section
6.02(e);
43
(viii) Dispositions
in the ordinary course of business of assets realized from collateral that was
pledged by borrowers to support their related Loan Receivable or assets
otherwise received in satisfaction of their obligations; and
(ix) Transactions
permitted by Section
7.05 that constitute a Disposition.
(e) Restricted
Payments Declare or make any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except that:
(i) each
Subsidiary Guarantor may make Restricted Payments to another Subsidiary
Guarantor or the Borrower;
(ii) without
duplication of Investments pursuant to Section
7.02(c)(viii), so long as no Default shall have occurred and be
continuing or would result therefrom, the repayment of amounts owing by a
Subsidiary Guarantor to AGFC and American General Finance, Inc. in respect of
intercompany loans in an amount not to exceed the amount necessary to pay
principal and interest payments on AGFC’s (or American General Finance, Inc.’s)
Indebtedness to the extent such payments are due and payable within 24 months of
the date of such repayment so long as the proceeds thereof are promptly used by
AGFC (or American General Finance, Inc.) to make such payment of principal
and/or interest; and
(iii) the
Borrower and the Subsidiary Guarantors may declare and pay cash dividends to
AGFC, in each case, other than Unrestricted Cash of the Borrower included in the
Required Borrowing Base and not to exceed an amount necessary to permit AGFC to
pay (x) reasonable and customary corporate and operating expenses (including
reasonable out-of-pocket expenses for legal, administrative and accounting
services provided by third parties, and compensation and benefits payable to
officers and directors in connection with their employment in the ordinary
course of business and to board of director observers), (y) franchise fees or
similar taxes and fees required to maintain its corporate existence, and (z) its
proportionate share of the tax liability of the affiliated group of corporations
that file consolidated Federal income tax returns (or that file state and local
income tax returns on a consolidated basis); provided that, in
each case, such dividends shall promptly be used by AGFC to make such payments;
provided, further that for the
avoidance of doubt no such dividends shall be paid to AGFC in order for AGFC to
make any payments in respect of its Indebtedness.
(f) Transactions
with Affiliates. Enter
into any transaction of any kind with any Affiliate of the Borrower or any
Subsidiary Guarantor; provided that the foregoing restriction shall not apply
to:
(i) any
transaction pursuant to any agreements or arrangements in effect on the Closing
Date and, to the extent the value of such transaction is in excess of
$25,000,000, listed on Schedule 7.02(f)(i)
of the Disclosure Letter, and any renewals, replacements and modifications any
such transaction that, taken as a whole, are not materially adverse to the
interests of the Lenders;
(ii) transactions
between or among the Borrower and one or more Subsidiary
Guarantors;
(iii) any
transaction or a series of related transactions undertaken by the Borrower or a
Subsidiary Guarantor that is not material to the Borrower or to the Subsidiary
Guarantors, taken as a whole; and
(iv) transactions
that (x) would be on terms at least as favorable in all material respects to the
Borrower or such Subsidiary Guarantor as would be obtainable by the Borrower or
such Subsidiary Guarantor in a comparable arm’s-length transaction with a Person
that is not an
44
Affiliate
and (y) are either in the ordinary course of business or are consistent with
past practice prior to the Closing Date;
(v) transactions
necessary to comply with any of the provisions of this Agreement;
(vi) the
Borrower holding demand notes referred to in clause (e) of the definition of
“Cash
Equivalents” and the making of loans pursuant thereto; and
(vii) Investments
pursuant to Section
7.02(c)(viii) and the repayment of existing intercompany loans from AGFC
or American General Finance, Inc. by any Subsidiary Guarantor.
7.03.
Amendments of
Documents. So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, none of the Borrower or
any Subsidiary Guarantor shall amend any of its Organization Documents, the
Intercompany Secured Loans, the Intercompany Security Documents or the
Subordination Agreement, except (i) to increase the amount of Intercompany
Secured Loans as required pursuant to Section 2.03(b), (ii)
to make any amendment to the Intercompany Security Documents to reflect a
corresponding amendment to any Loan Document so as to comply with the
requirements of this Agreement and the other Loan Documents, (iii) in the case
of any Organization Documents of the Borrower or any Subsidiary Guarantor, as
would not be materially adverse to the interests of the Lenders (it being agreed
that conforming changes to be made relating to directors’ and officers’
indemnity provisions are not materially adverse to the Lenders) or (iv)
amendments to the Intercompany Secured Loan Agreements, the Intercompany
Security Documents or the Subordination Agreement that, in each case, are not
adverse to the Borrower in any material respect.
7.04.
Special Purpose
Entity. So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall not,
and AGFC shall not permit the Borrower to, engage in any business or consensual
activity other than (i) as a Single Purpose Entity, (ii) as required by the
terms of the Loan Documents and (iii) as required by the Intercompany Security
Documents.
7.05.
Alternate and Subsequent
Transactions. For
the avoidance of doubt, it is understood and agreed that, the Subsidiary
Guarantors from time to time and any other existing or newly created
Subsidiaries of AGFC shall be permitted to enter into one or more other
financing transactions (“Alternate
Transactions”) with financial institutions or other entities on the basis
that any loans, securitizations or other transactions made under Alternate
Transactions will not be secured by a lien on any Eligible Loan Receivables and,
if involving a Subsidiary Guarantor, (i) the proceeds of any such financing
transaction are applied in accordance with Article VII and (ii)
procedures are in place at such time for the identification and segregation,
within two (2) Business Days after receipt thereof, of cash generated by either
(x) such Alternate Transaction or (y) the Eligible Loan
Receivables. For the avoidance of doubt, it is agreed that Alternate
Transactions may include lending transactions, securitizations and other
financing transactions involving Subsidiary Guarantors and/or Subsidiaries that
are not Subsidiary Guarantors, and may be either secured to the extent otherwise
permitted by this Article VII (provided that no debt
may be secured in reliance upon the Consolidated Net Worth Basket) or unsecured,
either guaranteed or non-guaranteed and either involving intercompany secured
loans or not involving intercompany secured loans; provided that if
secured they may be secured only by assets that do not constitute Eligible Loan
Receivables.
ARTICLE
VIII
EVENTS OF
DEFAULT AND REMEDIES
8.01.
Events of
Default. Any
of the following shall constitute an “Event of
Default”:
(a) Non-Payment. The
Borrower or any other Loan Party fails to (i) pay when and as required to be
paid herein, any amount of principal of any Loan, or (ii) pay within ten
Business Days after the same becomes due, any interest on any Loan or any fee
due hereunder, or (iii) pay within ten Business Days after the same becomes due,
any other amount payable hereunder or under any other Loan Document;
or
45
(b) Covenants. (i)
The Borrower or any other Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 6.02(e),
Section
6.03(a), Section 6.09, or
Section 6.12, or
(ii) the Borrower or any other Loan Party fails to perform or observe any term,
covenant or agreement contained in Article VII and,
solely in the case of this clause (ii), such failure is capable of being
remedied and such failure continues for 30 days, or (iii) any of the Loan
Parties fails to perform or observe any term, covenant or agreement (not
specified in Section
8.01(a) or Section 8.01(b)(i))
contained in any Loan Document on its part to be performed or observed and,
solely in the case of this clause (iii), such failure continues for 60 days;
or
(c) Representations and
Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any
other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
in any material respect when made or deemed made; provided that the
breach of such representation, warranty, certification or statement of fact
could reasonably be expected to result in a Material Adverse Effect;
or
(d) Cross-Default. (i)
Any Loan Party (A) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in respect of
any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
(x) with respect to any Indebtedness or Guarantee of AGFC, $25,000,000 or (y)
with respect to any Indebtedness or Guarantee of the Borrower or any Subsidiary
Guarantor, $100,000,000, or (B) fails to observe or perform any other agreement
or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event referred to in this
clause (B) is to cause, such Indebtedness to be demanded or to become due
or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract to which it is a party an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which a Loan Party is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which such Loan Party is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by such Loan
Party as a result thereof is greater than (x) with respect to any amount owed by
AGFC, $25,000,000 or (y) with respect to any amount owed by any other Loan Party
(individually or in the aggregate), $100,000,000 and the result of which the
obligations thereunder are accelerated; or
(e) Insolvency Proceedings,
Etc. Any Loan Party institutes or consents to the institution
of any proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding (provided that this
Section 8.01(e)
shall not apply to any Subsidiary Guarantor so long as (i) such Subsidiary
Guarantor has less than $50,000,000 in total assets as of the end of the most
recent fiscal quarter, (ii) such Subsidiary Guarantor, when taken together with
all other Subsidiary Guarantors to which this Section 8.01(e) would
otherwise be applicable absent this proviso, has less than $250,000,000 in total
assets as of the end of the most recent fiscal quarter and (iii) other
Subsidiary Guarantors that are not subject to any proceeding, appointment or
order and have not made any assignment, application, or consent, in each case
referred to in this Section 8.01(e) shall
have immediately pledged additional Eligible Loan Receivables pursuant to the
Intercompany Security Documents in an amount at least equal to the Eligible Loan
Receivables that were then pledged by such Subsidiary Guarantor);
or
46
(f) Judgments. There
is entered against any Loan Party one or more final judgments or orders for the
payment of money in an aggregate unpaid amount (as to all such judgments and
orders) exceeding (x) with respect to any judgment against AGFC, $25,000,000 or
(y) with respect to any judgment against the Borrower or any Subsidiary
Guarantor, $100,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer is rated at least “A” by A.M. Best
Company, has been notified of the potential claim and does not dispute
coverage), (A) enforcement proceedings are commenced by any creditor upon such
judgment or order, or (B) there is a period of sixty (60) consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(g) Invalidity of Loan
Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party contests
in any manner the validity or enforceability of any provision of any Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any provision of any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or
(h) Pledge
Agreement. The Pledge Agreement after delivery thereof
pursuant to Section 4.01
shall for any reason (other than pursuant to the terms thereof) cease to create
a valid and perfected first priority Lien (subject to Liens permitted by Section 7.01) on the
Pledged Equity purported to be covered thereby; or
(i) Intercompany
Documents. The Intercompany Security Documents after delivery
thereof pursuant to Section 4.01
shall for any reason (other than pursuant to the terms thereof) cease to create
a valid and perfected first priority Lien on the Eligible Loans Receivables
purported to be covered thereby or any Intercompany Secured Loan shall cease to
be in full force or effect; or
(j) ERISA
Event. An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect.
8.02.
Remedies upon Event of
Default. If
any Event of Default occurs and is continuing, the Administrative Agent shall,
at the request of, or may, with the consent of, the Required Lenders, take any
or all of the following actions:
(a) declare
the Commitment of each Lender to make Loans to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower and each other Loan Party; and
(c) exercise
on behalf of itself, the Lenders all rights and remedies available to it, the
Lenders under the Loan Documents;
provided, however, that upon
the occurrence of an actual or deemed entry of an order for relief with respect
to the Borrower or AGFC under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, without further
act of the Administrative Agent or any Lender.
8.03.
Application of
Funds. After
the exercise of remedies provided for in Section 8.02 (or
after the Loans have automatically become immediately due and payable as set
forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
47
First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;
Second, to payment of
that portion of the Obligations constituting fees, indemnities and other amounts
(other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders arising under the
Loan Documents and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause
Second payable
to them;
Third, to payment of
that portion of the Obligations constituting interest on the Loans and other
Obligations arising under the Loan Documents, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans,
ratably among the Lenders, in proportion to the respective amounts described in
this clause Fourth held by them;
and
Last, the balance, if
any, after all of the Obligations have been indefeasibly paid in full, to the
Borrower or as otherwise required by Law.
ARTICLE
IX
ADMINISTRATIVE
AGENT
9.01. Appointment and
Authority.
(a)
Each of
the Lenders hereby irrevocably appoints Bank of America to act on its behalf as
the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent and the Lenders, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
(b)
The
Administrative Agent shall also act as the “collateral agent”
under the Loan Documents, and each of the Lenders. In this
connection, the Administrative Agent, as “collateral agent” and
any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative
Agent pursuant to Section 9.05 for
purposes of holding or enforcing any Lien granted under the Pledge Agreement, or
for exercising any rights and remedies thereunder at the direction of the
Administrative Agent, shall be entitled to the benefits of all provisions of
this Article IX
and Article XI
(including Section 11.04(c),
as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent”
under the Loan Documents) as if set forth in full herein with respect
thereto.
9.02.
Rights as a
Lender. The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with AGFC,
the Borrower or any of their respective Subsidiaries or Affiliates as if such
Person were not the Administrative Agent hereunder and without any duty to
account therefor to the Lenders.
9.03.
Exculpatory
Provisions. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
48
(a) shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law;
and
(c) shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to AGFC, the Borrower or any of their respective Affiliates
that is communicated to or obtained by the Person serving as the Administrative
Agent or any of its Affiliates in any capacity.
(d) The
Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and
8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent by
the Borrower or a Lender.
(e) The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or the creation, perfection or priority
of any Lien purported to be created by the Pledge Agreement, (v) the value or
the sufficiency of any collateral, or (vi) the satisfaction of any condition set
forth in Article
IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
9.04.
Reliance by Administrative
Agent. The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to
the making of a Loan that by its terms must be fulfilled to the satisfaction of
a Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender unless the Administrative Agent shall have received
notice to the contrary from such Lender prior to the making of such
Loan. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or
experts.
9.05.
Delegation of
Duties. The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facility provided for herein as well as
activities as Administrative Agent.
49
9.06.
Resignation of
Administrative Agent. The
Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders
under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (b) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, (if not already discharged therefrom as provided
above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and
Section 11.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
9.07.
Non-Reliance on
Administrative Agent and Other Lenders. Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
9.08.
No Other Duties,
Etc. Anything
herein to the contrary notwithstanding, none of the Bookrunners, Arrangers,
Syndication Agents or Co-Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent and as a Lender hereunder.
9.09.
Administrative Agent May
File Proofs of Claim. In
case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or
otherwise
(a) to file
and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent under
Sections 2.09
and 11.04)
allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
50
and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09
and 11.04.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender to authorize the Administrative Agent to vote in
respect of the claim of any Lender or in any such proceeding.
9.10.
Collateral and Guaranty
Matters.
(a)
Each of
the Lenders irrevocably authorizes the Administrative Agent, at its option and
in its discretion,
(i) to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (x) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than contingent indemnification
obligations), (y) that is sold or to be sold as part of or in connection with
any sale permitted hereunder or under any other Loan Document or (z) if
approved, authorized or ratified in writing in accordance with Section 11.01;
and
(ii) to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
9.10(a). In each case as specified in this Section 9.10(a), the
Administrative Agent will, at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of collateral from the assignment and
security interest granted under the Pledge Agreement or to subordinate its
interest in such item, or to release such Guarantor from its obligations under
the Guaranty, in each case in accordance with the terms of the Loan Documents
and this Section
9.10(a).
(b)
Notwithstanding
anything herein or in any other Loan Document, the Administrative Agent and the
Lenders hereby agree that the maximum amount of Obligations that is secured by
the Pledge Agreement is limited to the amount equal to (a) the lesser of (i) 10%
of the Consolidated Net Worth of AGFC (as defined in and calculated in
accordance with, the Existing Indenture as in effect on the Closing Date) and
(ii) until July 14, 2010 the amount of secured Indebtedness that is permitted to
be incurred under the last paragraph of Section 8.04 of the AGFC Credit Facility
as in effect on the Closing Date, if lower less (b) the
aggregate principal amount of Indebtedness secured by Liens on assets of AGFC
and its Subsidiaries as shown on Schedule 9.10 of the
Disclosure Letter (such amount, the “Consolidated Net Worth
Basket”).
9.11.
Withholding
Tax. To
the extent required by any applicable law, the Administrative Agent may withhold
from any payment to any Lender an amount equal to any applicable withholding
tax. If the IRS or any Governmental Authority asserts a claim that
the Administrative Agent did not properly withhold tax from any amount paid to
or for the account of any Lender for any reason (including because the
appropriate form was not delivered or was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances
that rendered the exemption from, or reduction of, withholding tax ineffective),
such Lender shall indemnify and hold harmless the Administrative Agent (to the
extent that the Administrative Agent has not already been reimbursed by the
Borrower and without limiting or expanding the obligation of the Borrower to do
so) for all amounts paid, directly or indirectly, by the Administrative Agent as
tax or otherwise, including any penalties, additions to tax or interest thereto,
together with all expenses incurred, including legal expenses and any
out-of-pocket
51
expenses,
whether or not such tax was correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of
such payment or liability delivered to any Lender by the Administrative Agent
shall be prima facie evidence of the matters set forth therein.
Each
Lender hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender under this Agreement or any other
Loan Document against any amount due to the Administrative Agent under this
Section
9.11. The agreements in this Section 9.11 shall survive the
resignation and/or replacement of the Administrative Agent, any assignment of
rights by, or the replacement of, a Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all Obligations.
Unless required by applicable Laws, at no time shall the Administrative Agent
have any obligation to file for or otherwise pursue on behalf of a Lender any
refund of Taxes withheld or deducted from funds paid for the account of such
Lender.
ARTICLE
X
CONTINUING
GUARANTY
10.01.
Guaranty. Each
of AGFC and the Subsidiary Guarantors hereby absolutely and unconditionally
guarantees as a guaranty of payment and performance and not merely as a guaranty
of collection, prompt payment when due, whether at stated maturity, by required
prepayment, upon acceleration, demand or otherwise, and at all times thereafter,
of any and all of the Obligations, whether for principal, interest, premiums,
fees, indemnities, damages, costs, expenses or otherwise, of the Borrower to the
Secured Parties, and whether arising hereunder or under any other Loan Document
(including all renewals, extensions, amendments, refinancings and other
modifications thereof and all costs, attorneys’ fees and expenses incurred by
the Secured Parties in connection with the collection or enforcement
thereof). The Administrative Agent’s books and records showing the
amount of the Obligations shall be admissible in evidence in any action or
proceeding, and shall be prima facie evidence of the matters set forth therein
for the purpose of establishing the amount of the Obligations. This
Guaranty shall not be affected by the genuineness, validity, regularity or
enforceability of the Obligations or any instrument or agreement evidencing any
Obligations, or by the existence, validity, enforceability, perfection,
non-perfection or extent of any collateral therefor, or by any fact or
circumstance relating to the Obligations which might otherwise constitute a
defense to the obligations of AGFC and the Subsidiary Guarantors under this
Guaranty, and each of AGFC and the Subsidiary Guarantors hereby irrevocably
waives any defenses it may now have or hereafter acquire in any way relating to
any or all of the foregoing.
Anything contained herein to the contrary notwithstanding, the
obligations of AGFC and the Subsidiary Guarantors hereunder shall be limited to
an aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of the Bankruptcy Code of the United States (Title
11, United States Code) or any comparable provisions of any similar federal or
state law.
10.02.
Rights of
Lenders. Each
of AGFC and the Subsidiary Guarantors consents and agrees that the Secured
Parties may, at any time and from time to time, without notice or demand, and
without affecting the enforceability or continuing effectiveness hereof, but
subject to the other provisions of this Agreement, (a) amend, extend,
renew, compromise, discharge, accelerate or otherwise change the time for
payment or the terms of the Obligations or any part thereof; (b) take, hold,
exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose
of any security for the payment of this Guaranty or any Obligations; (c) apply
such security and direct the order or manner of sale thereof as the
Administrative Agent and the Lenders in their sole discretion may determine; and
(d) release or substitute one or more of any endorsers or other guarantors of
any of the Obligations. Without limiting the generality of the
foregoing, each of AGFC and the Subsidiary Guarantors consents to the taking of,
or failure to take, any action which might in any manner or to any extent vary
the risks of AGFC and the Subsidiary Guarantors under this Guaranty or which,
but for this provision, might operate as a discharge of AGFC and the Subsidiary
Guarantors.
10.03.
Certain
Waivers. Each
of AGFC and the Subsidiary Guarantors waives (a) any defense arising by reason
of any disability or other defense of the Borrower or any other guarantor, or
the cessation from any cause whatsoever (including any act or omission of any
Secured Party) of the liability of the Borrower; (b) any defense based on any
claim that AGFC’s or the Subsidiary Guarantors’ obligations exceed or are more
burdensome than those of the Borrower; (c) the benefit of any statute of
limitations affecting AGFC’s or the Subsidiary Guarantors’ liability hereunder;
(d) any right to proceed against the Borrower, proceed against or exhaust any
security for the Obligations, or pursue any other remedy in the power of any
Secured Party whatsoever; (e) any benefit of and any right to participate in any
security now or hereafter held by any Secured Party; and (f) to the fullest
extent permitted
52
by law,
any and all other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors or
sureties.
Each of AGFC and
the Subsidiary Guarantors expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Obligations, and all notices of acceptance of this Guaranty or of the existence,
creation or incurrence of new or additional Obligations
. As provided below, this
Guaranty shall be governed by, and construed in accordance with, the laws of the
State of New York.
10.04.
Obligations
Independent. The
obligations of AGFC and the Subsidiary Guarantors hereunder are those of primary
obligor, and not merely as surety, and are independent of the Obligations and
the obligations of any other guarantor, and a separate action may be brought
against AGFC or the Subsidiary Guarantors to enforce this Guaranty whether or
not the Borrower or any other person or entity is joined as a
party.
10.05.
Subrogation. None
of AGFC and the Subsidiary Guarantors shall exercise any right of
subrogation, contribution, indemnity, reimbursement or similar rights with
respect to any payments it makes under this Guaranty until all of the
Obligations and any amounts payable under this Guaranty have been indefeasibly
paid and performed in full and the Commitments and the Facility are
terminated. If any amounts are paid to AGFC or any Subsidiary
Guarantor in violation of the foregoing limitation, then such amounts shall be
held in trust for the benefit of the Secured Parties and shall forthwith be paid
to the Secured Parties to reduce the amount of the Obligations, whether matured
or unmatured.
10.06.
Termination;
Reinstatement. This
Guaranty is a continuing and irrevocable guaranty of all Obligations now or
hereafter existing and shall remain in full force and effect until all
Obligations and any other amounts payable under this Guaranty are indefeasibly
paid in full in cash and the Commitments and the Facility with respect to the
Obligations are terminated. Notwithstanding the foregoing, this
Guaranty shall continue in full force and effect or be revived, as the case may
be, if any payment by or on behalf of the Borrower, AGFC or any Subsidiary
Guarantor is made, or any of the Secured Parties exercises its right of setoff,
in respect of the Obligations and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by any of the Secured Parties in their discretion) to be repaid to
a trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Laws or otherwise, all as if such payment had not been made or
such setoff had not occurred and whether or not the Secured Parties are in
possession of or have released this Guaranty and regardless of any prior
revocation, rescission, termination or reduction. The obligations of
AGFC and the Subsidiary Guarantors under this paragraph shall survive
termination of this Guaranty.
10.07.
Subordination. Each
of AGFC and the Subsidiary Guarantors hereby subordinates the payment of all
obligations and indebtedness of the Borrower owing to AGFC or such Subsidiary
Guarantor, whether now existing or hereafter arising, including but not limited
to any obligation of the Borrower to AGFC or such Subsidiary Guarantor as
subrogee of the Secured Parties or resulting from AGFC’s or such Subsidiary
Guarantor’s performance under this Guaranty, to the indefeasible payment in full
in cash of all Obligations. If the Secured Parties so request, any
such obligation or indebtedness of the Borrower to AGFC or any Subsidiary
Guarantor shall be enforced and performance received by AGFC or such Subsidiary
Guarantor, as trustee for the Secured Parties and the proceeds thereof shall be
paid over to the Secured Parties on account of the Obligations, but without
reducing or affecting in any manner the liability of AGFC or such Subsidiary
Guarantor under this Guaranty.
10.08.
Stay of
Acceleration. If
acceleration of the time for payment of any of the Obligations is stayed, in
connection with any case commenced by or against AGFC, any Subsidiary Guarantor
or the Borrower under any Debtor Relief Laws, or otherwise, all such amounts
shall nonetheless be payable by AGFC and the Subsidiary Guarantors immediately
upon demand by the Secured Parties.
10.09.
Condition of
Borrower. Each
of AGFC and the Subsidiary Guarantors acknowledges and agrees that it has the
sole responsibility for, and has adequate means of, obtaining from the Borrower
such information concerning the financial condition, business and operations of
the Borrower as AGFC or such Subsidiary Guarantor requires, and that none of the
Secured Parties has any duty, and none of AGFC and the Subsidiary Guarantors is
relying on the Secured Parties at any time, to disclose to AGFC or any
Subsidiary Guarantor any information relating
53
to the
business, operations or financial condition of the Borrower or any other
guarantor (AGFC and the Subsidiary Guarantors waiving any duty on the part of
the Secured Parties to disclose such information and any defense relating to the
failure to provide the same).
10.10.
Release of Subsidiary
Guarantors. If,
in compliance with the terms and provisions of the Loan Documents, all or
substantially all of the Equity Interests of any Subsidiary Guarantor are sold
or otherwise transferred to a person or persons, none of which is AGFC, the
Borrower or any of their Subsidiaries, such Subsidiary Guarantor shall, upon the
consummation of such sale or transfer, be automatically released from its
obligations under this Agreement.
10.11.
Right of
Contribution. Each
Subsidiary Guarantor hereby agrees that to the extent that a Subsidiary
Guarantor shall have paid more than its proportionate share of any payment made
hereunder, such Subsidiary Guarantor shall be entitled to seek and receive
contribution from and against any other Subsidiary Guarantor hereunder which has
not paid its proportionate share of such payment. Each Subsidiary
Guarantor’s right of contribution shall be subject to the terms and conditions
of Sections
10.05 and 10.07. The
provisions of this Section 10.11 shall
in no respect limit the obligations and liabilities of any Subsidiary Guarantor
to the Administrative Agent and the Lenders, and each Subsidiary Guarantor shall
remain liable to the Administrative Agent and the Lenders for the full amount
guaranteed by such Subsidiary Guarantor hereunder.
ARTICLE
XI
MISCELLANEOUS
11.01.
Amendments,
Etc. No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such
amendment, waiver or consent shall:
(a) postpone
any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory
prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under such other Loan Document without the written
consent of each Lender entitled to such payment;
(b) reduce
the principal of, or the rate of interest specified herein on, any Loan, or any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender entitled to such amount; provided, however, that only
the consent of the Required Lenders shall be necessary to amend the definition
of “Default
Rate”;
(c) change
Section 8.03 in
a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
(d) change
(i) any provision of this Section 11.01 or the
definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder (other than the definition
specified in clause (ii) of this Section 11.01(d)),
without the written consent of each Lender or (ii) the definition of “Required Lenders”
without the written consent of each Lender;
(e) release
all or substantially all of the Pledged Equity in any transaction or series of
related transactions, without the written consent of each Lender;
(f) release
all or substantially all of the value of the Guaranty, without the written
consent of each Lender, except to the extent the release of any Subsidiary from
the Guaranty is permitted pursuant to Section 9.10 (in
which case such release may be made by the Administrative Agent acting alone);
or
54
(g) impose
any greater restriction on the ability of any Lender to assign any of its rights
or obligations hereunder without the written consent the Required
Lenders;
and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; the Engagement Letter and the Administrative Agent Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent
which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not be
increased or extended without the consent of such Lender and (y) any
waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender that by its terms affects any Defaulting Lender more adversely
than other affected Lenders shall require the consent of such Defaulting
Lender.
Notwithstanding
anything to the contrary contained in this Section 11.01, if the
Administrative Agent and the Borrower shall have jointly identified an obvious
error (including, but not limited to, an incorrect cross-reference) or any error
or omission of a technical nature, in each case, in any provision of any Loan
Document, then the Administrative Agent and/or the Collateral Agent (acting in
their sole discretion) and the Borrower or any other relevant Loan Party shall
be permitted to amend such provision or cure any ambiguity, defect or
inconsistency and such amendment shall become effective without any further
action or consent of any other party to any Loan Document.
If any
Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that
has been approved by the Required Lenders, the Borrower may replace such
non-consenting Lender in accordance with Section 11.13; provided that such
amendment, waiver, consent or release can be effected as a result of the
assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this
paragraph).
11.02.
Notices; Effectiveness;
Electronic Communications.
(a)
Notices
Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier or
electronic mail as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to a
Loan Party or the Administrative Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule 11.02;
and
(ii) if to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on
its Administrative Questionnaire then in effect for the delivery of notices that
may contain material non-public information relating to the
Borrower).
Notices
and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by telecopier or electronic mail shall be
deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the
opening of business on the next Business Day for the
recipient). Notices and other communications delivered through
electronic communications to the extent provided in subsection (b) below shall
be effective as provided in such subsection (b).
(b)
Electronic
Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any
55
Lender
pursuant to Article II if such Lender has notified the Administrative Agent that
it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.
Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.
(c)
The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to AGFC, the Borrower, any Lender
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower’s or
the Administrative Agent’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to AGFC, the Borrower, any Lender
or any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d)
Change of Address,
Etc. Each of AGFC, the Borrower and the
Administrative Agent may change its address, telecopier or telephone number or
electronic mail address for notices and other communications hereunder by notice
to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number or electronic mail address for notices
and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such
Lender. Furthermore, each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected
the “Private Side
Information” or similar designation on the content declaration screen of
the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law,
including United States Federal and state securities Laws, to make reference to
Borrower Materials that are not made available through the “Public Side
Information” portion of the Platform and that may contain material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal or state securities laws.
(e)
Reliance by Administrative
Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices) purportedly given by or on behalf of any Loan
Party even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify
the Administrative Agent, each Lender and the Related Parties of each of them
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to
56
and other
telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
11.03.
No Waiver; Cumulative
Remedies;
Enforcement. No
failure by any Lender or the Administrative Agent to exercise, and no delay by
any such Person in exercising, any right, remedy, power or privilege hereunder
or under any other Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided, and provided under each other Loan Document, are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the
benefit of all the Lenders; provided, however, that the
foregoing shall not prohibit (a) the Administrative Agent from exercising on its
own behalf the rights and remedies that inure to its benefit (solely in its
capacity as Administrative Agent) hereunder and under the other Loan Documents,
(b) any Lender from exercising setoff rights in accordance with Section 11.08
(subject to the terms of Section 2.11), or (c)
any Lender from filing proofs of claim or appearing and filing pleadings on its
own behalf during the pendency of a proceeding relative to any Loan Party under
any Debtor Relief Law; and provided, further, that if at
any time there is no Person acting as Administrative Agent hereunder and under
the other Loan Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii)
in addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.11, any
Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.
11.04.
Expenses; Indemnity; Damage
Waiver.
(a)
Costs and
Expenses. The Loan Parties shall jointly and severally pay (i)
all reasonable and properly documented out-of-pocket fees and expenses
(including, but not limited to, the reasonable and documented out-of-pocket
fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, as counsel to the
Arranger, and due diligence expenses) incurred in connection with the Facility,
including, but not limited to, the syndication of the credit facility provided
for herein, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents or any amendments, modifications
or waivers of the provisions hereof or thereof, (ii) all out-of-pocket expenses
incurred by the Administrative Agent, or any Lender (including the fees, charges
and disbursements of any counsel for the Administrative Agent, or any Lender),
in connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with Loans made, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b)
Indemnification by the Loan
Parties. The Loan Parties shall jointly and severally
indemnify the Administrative Agent (and any sub-agent thereof), the Syndication
Agent, each Co-Documentation Agent, each Lender and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all claims, damages, losses
liabilities and reasonable expenses (including, without limitation, the
reasonable and properly documented out-of-pocket fees, and disbursements of one
primary counsel and, if necessary, one local counsel per material local
jurisdiction for all of the Indemnitees; provided that any
Indemnitee shall be entitled to be reimbursed for the costs of additional
counsel by the Loan Parties if (x) there are legal defenses available to such
Indemnitee for any such claims, damages, losses, and liabilities which are
different from or additional to the legal defenses of others involved in such
claims, damages, losses and liabilities or (y) there is an actual or potential
conflict of interest among such Indemnitee and other Indemnitees or among such
Indemnitee and the Loan Parties or one or more of their Affiliates with respect
to such claims, damages, losses and liabilities), that may be incurred by or
asserted or awarded against any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the execution or delivery of this Agreement, any
57
other
Loan Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof)
and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or the use made or proposed to be made with the
proceeds therefrom or (iii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final,
nonappealable judgment to have resulted from the bad faith, gross negligence or
willful misconduct of such Indemnitee.
(c)
If the
indemnification in subsection (b) is for any reason unavailable or insufficient
to hold any Indemnitee harmless, then the Loan Parties shall contribute to the
amount paid or payable by such Indemnitee as a result of such loss, claim or
damage in such proportion as is appropriate to reflect the relative benefits
received by the Loan Parties on the one hand and each Indemnitee on the other
arising out of the matters contemplated by this Agreement.
The
reimbursement, indemnity and contribution obligations of the Loan Parties under
subsections (a), (b) and (c) this paragraph will be in addition to any liability
which the Borrower may otherwise have, will be binding upon and inure to the
benefit of any of the successors, assigns, heirs and personal representatives of
the Loan Parties and each Indemnitee; provided that Sections 11.02(b) and
11.02(c) shall
not apply to Taxes, the indemnification for which shall be governed exclusively
by Section
3.01, except to the extent of any Taxes that represent losses and damages
resulting from a non-Tax claim.
Each Loan
Party agrees that, without each Indemnitee’s prior written consent (which
consent will not be unreasonably withheld), it will not agree to any settlement
of, compromise or consent to the entry or any judgment in or other termination
(each and collectively, a “Settlement”) of any
pending or threatened action, claim, suit, proceeding, or investigation (each,
and collectively, an “Action”) in respect
of which indemnification could be sought hereunder (whether or not any other
Indemnitee is an actual or potential party to such Action) unless (i) such
Settlement includes an unconditional release from the party bringing such Action
of each Indemnitee from any liabilities arising out of such Actions, (ii) the
parties agree that the terms of such Settlement shall remain confidential and
(iii) such Settlement does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
Indemnitee. No Loan Party shall be liable for any Settlement of any
Action without its written consent (which consent will not be unreasonably
withheld). Promptly after receipt by an Indemnitee arty of notice of
any complaint or the commencement of any Action with respect to which
indemnification is being sought hereunder, such person will notify the Borrower
in writing of such complaint or of the commencement of such Action, but failure
to so notify the Borrower will not relieve the Loan Parties from any liability
which the Loan Parties may have hereunder or otherwise, except to the extent
that such failure materially prejudices the Loan Parties’ rights with respect to
such Action.
The Loan
Parties will have the right (subject to the limitations set forth in the next
sentence. if applicable) to assume the defense of any Action. including the
employment of counsel reasonably satisfactory to the Administrative Agent and
the payment of the fees and disbursements of such counsel. In any Action, any
Indemnitee shall have the right to retain its own separate counsel at such
Indemnitee’s own expense and not subject to reimbursement by the Loan Parties;
provided, however, that the
Loan Parties shall bear the reasonable fees and expenses of such counsel
incurred in connection with investigating, preparing, defending, paying.
settling, or compromising any Action if (i) the parties to such Action include
both the Indemnitee and the any Loan Parties and there may be legal defenses
available to such Indemnitee which are different from or additional to those
available to the Loan Parties; (ii) the use of counsel chosen by the Loan
Parties to represent both the Loan Parties and such Indemnitee would present
such counsel with an actual or potential conflict of interest; (iii) the Loan
Parties shall not have employed satisfactory counsel to represent the Indemnitee
in the exercise of the Indemnitee’s reasonable judgment with in a reasonable
time alter notice of the institution of such Action: or (iv) the Loan Parties
shall authorize the Indemnitee to employ separate counsel at the expense of the
Loan Parties. Except as otherwise provided hereunder, the Loan
Parties shall not, in connection with any Action, be liable for the fees and
expenses of more than one separate counsel for all Indemnitees; provided that any
Indemnitee shall be entitled to be reimbursed for the costs of additional
counsel
58
by the
Loan Parties if (x) there are legal defenses available to such Indemnitee in
such Action which are different from or additional to the legal defenses of
others involved in such Action or (y) there is an actual or potential conflict
of interest regarding such Action among such Indemnitee and other Indemnitees or
among such Indemnitee and the Loan Parties or one or more of their
Affiliates.
(d)
Reimbursement by
Lenders. To the extent that the Loan Parties for any reason
fails to indefeasibly pay any amount required under subsection (a), (b) or
(c) of this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof) or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent) or
such Related Party, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or against any Related Party of any
of the foregoing acting for the Administrative Agent (or any such sub-agent) in
connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.10(d).
(e) Waiver of Consequential
Damages, Etc. To the fullest extent permitted by applicable
law, the Loan Parties shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or the use of the proceeds thereof. No
Indemnitee referred to in subsection (b) above shall be liable for any damages
arising from the use by unintended recipients of any information or other
materials distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful misconduct of such Indemnitee as determined
by a final and nonappealable judgment of a court of competent
jurisdiction.
(f) Payments. All
amounts due under this Section shall be payable not later than ten Business Days
after demand therefor.
(g)
Survival. The
agreements in this Section shall survive the resignation of the Administrative
Agent, the replacement of any Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
11.05.
Payments Set
Aside. To
the extent that any payment by or on behalf of any Loan Party is made to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per
annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Lenders under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.
11.06.
Successors and
Assigns.
(a)
Successors and Assigns
Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither the Borrower nor
any other Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or
59
otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of Section 11.06(b), (ii) by way of participation
in accordance with the provisions of Section 11.06(d), or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of Section
11.06(f) (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b)
Assignments by
Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment(s) and the Loans at the time owing
to it); provided that any
such assignment shall be subject to the following conditions:
(i)
Minimum
Amounts.
(A)
In the
case of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount
need be assigned; and
(B) In any
case not described in subsection (b)(i)(A) of this Section, the aggregate amount
of the Loans determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $1,000,000, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;
(ii)
Proportionate
Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned;
(iii)
Required
Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:
(A) the
consent of the Borrower (such consent not to be unreasonably withheld) shall be
required unless (1) an Event of Default has occurred and is continuing at the
time of such assignment or (2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund; provided that the
Borrower shall be deemed to have consented to any such assignment unless it
shall object thereto by written notice to the Administrative Agent within five
(5) Business Days after having received notice thereof;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of (1) any
Commitment if such assignment is to a Person that is not a Lender with a
Commitment, an Affiliate of such Lender or an Approved Fund with respect to such
Lender or (2) any Loan to a Person that is not a Lender, an Affiliate of a
Lender or an Approved Fund;
(iv)
Assignment and
Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
60
(v)
No Assignment to Certain
Persons. No such assignment shall be made (A) to the Borrower
or any of the Borrower’s Affiliates, or (B) to any Defaulting Lender or any of
its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (B), or (C) to
a natural person.
(vi)
Certain Additional
Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender
hereunder (and interest accrued thereon). Notwithstanding the
foregoing, in the event that any assignment of rights and obligations of any
Defaulting Lender hereunder shall become effective under applicable Law without
compliance with the provisions of this paragraph, then the assignee of such
interest shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to
facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute
and deliver a Note to the assignee Lender. Any assignment or transfer
by a Lender (i) of rights or obligations under this Agreement that does not
comply with this subsection or (ii) whereby the assignee does not execute
an Assignment and Assumption shall be treated for purposes of this Agreement as
a sale by such Lender of a participation in such rights and obligations in
accordance with Section
11.06(d).
(c)
Register. The
Administrative Agent, acting solely for this purpose as an agent of the Borrower
(and such agency being solely for tax purposes), shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal and interest amounts of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be prima facie evidence of the matters set forth
therein, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. In addition, the Administrative Agent shall maintain
on the Registrar information regarding the designation, and revocation of
designation, of any Lender as a Defaulting Lender. The Register shall
be available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d)
Participations. Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person, a Defaulting Lender or the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement;
61
provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 11.01 that
affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01,
3.04 and 3.05 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
Section
11.06(b) (subject to the requirements and limitations of such sections
including the documentation requirements under Section
3.01(e)). To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 11.08 as though it were a
Lender, provided such
Participant agrees to be subject to Section 2.11 as
though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower
(and such agency being solely for tax purposes), maintain a register on which it
enters the name and address of each Participant and the principal amounts (and
interest amounts) of each Participant’s interest in the Loans or other
obligations under this Agreement (the “Participant
Register”). The entries in the Participant Register shall be
prima facie evidence of the matters set forth therein and such Lender shall
treat each Person whose name is recorded in the Participant Register as the
owner of such participation for all purposes of this Agreement notwithstanding
any notice to the contrary.
(e)
Limitations upon Participant
Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent (not to be unreasonably withheld) and only to the extent such
entitlement to a greater payment results from a Change in Law after such
Participant becomes a Participant.
(f)
Certain
Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
11.07.
Treatment of Certain
Information; Confidentiality. Each
of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, any Lender, or any of their
respective Affiliates on a nonconfidential basis from a source other than the
Borrower.
For
purposes of this Section, “Information” means
all information received from the Borrower or any Subsidiary relating to the
Borrower or any Subsidiary or any of their respective businesses, other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that,
in the case of information received from the Borrower or any Subsidiary after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Each of
the Administrative Agent and the Lenders acknowledges that (a) the Information
may include material non-public information concerning the Borrower or a
Subsidiary, as the case may be, (b) it has developed
62
compliance
procedures regarding the use of material non-public information and (c) it will
handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.
11.08.
Right of Setoff. If
an Event of Default shall have occurred and be continuing, each Lender and its
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender or any such Affiliate to or for the credit or the
account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower or such
Loan Party may be contingent or unmatured or are owed to a branch or office of
such Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender or their respective
Affiliates may have. Each Lender agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
11.09.
Interest Rate
Limitation. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
11.10.
Counterparts; Integration;
Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof, except that the Confidentiality Agreement dated as of November 3, 2009
between Banc of America Securities LLC and AIG shall continue in full force and
effect. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or other electronic imaging means
shall be effective as delivery of a manually executed counterpart of this
Agreement.
11.11.
Survival of Representations
and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default at the time of any Borrowing, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied.
11.12.
Severability. If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the illegal, invalid or unenforceable provisions. The
invalidity of
63
a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without
limiting the foregoing provisions of this Section 11.12, if and
to the extent that the enforceability of any provisions in this Agreement
relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as
determined in good faith by the Administrative Agent then such provisions shall
be deemed to be in effect only to the extent not so limited.
11.13.
Replacement of
Lenders. If
any Lender requests compensation under Section 3.04, or
under the circumstances described in the last paragraph of Section 11.01, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender is a Defaulting Lender then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 11.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided
that:
(a) the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section
11.06(b);
(b) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 3.05) from
the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts);
(c) in the
case of any such assignment resulting from a claim for compensation under Section 3.04 or
payments required to be made pursuant to Section 3.01,
such assignment will result in a reduction in such compensation or payments
thereafter; and
(d) such
assignment does not conflict with applicable Laws.
A Lender
shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.
11.14.
Governing Law; Jurisdiction;
Etc.
(a)
GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b)
SUBMISSION TO
JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF THE STATE OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
64
(c)
WAIVER OF
VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d)
SERVICE OF
PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING
IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15.
WAIVER OF JURY
TRIAL. EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16.
No Advisory or Fiduciary
Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), each of the Borrower, AGFC and the Subsidiary Guarantor acknowledges
and agrees, and acknowledges its Affiliates’ understanding (i) the arrangement
of the Loans and any related arranging or other services regarding the Facility
in this letter is an arm’s-length commercial transaction between AGFC, the
Borrower and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, and it is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with the process leading to such transaction, the Administrative
Agent and the Arranger are and have been acting solely as a principal and is not
the financial advisor, agency or fiduciary, for AGFC, the Borrower or any of
their respective Affiliates, stockholders, creditors or employees or any other
party; (iii) the Administrative Agent and the Arranger have not assumed and will
not assume an advisory, agency or fiduciary responsibility in favor of AGFC, the
Borrower or any of their respective Affiliates with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective of
whether the Administrative Agent or the Arranger has advised or is currently
advising AGFC, the Borrower or any of their respective Affiliates on other
matters), and the Administrative Agent and the Arranger do not have any
obligations to AGFC, the Borrower or any of their respective Affiliates except
the obligations expressly set forth in this Agreement; (iv) the Administrative
Agent, the Arranger and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from AGFC, the Borrower
and their respective Affiliates, and none of the Administrative Agent, the
Arranger and their respective Affiliates has any obligations to disclose any of
such interests by virtue of any advisory, agency or fiduciary relationship; and
(v) the Administrative Agent and the Arranger have not provided any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby, and AGFC, the Borrower and the Subsidiary Guarantors have
consulted their own legal, accounting, regulatory and tax advisors to the extent
they deemed appropriate. AGFC, the Borrower and the Subsidiary
Guarantors hereby waive and release, to the fullest extent permitted by law, any
claims that you may have against the Administrative Agent and the Arranger or
any of their respective Affiliates with respect to any breach or alleged breach
of agency or fiduciary duty.
11.17.
Electronic Execution of
Assignments and Certain Other Documents. The
words “execution,” “signed,” “signature,” and words
of like import in any Assignment and Assumption or in any amendment or other
65
modification
hereof (including waivers and consents) shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
11.18.
USA PATRIOT
Act. Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the
Act. The Borrower shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to
comply with its ongoing obligations under applicable “know your customer”
an anti-money laundering rules and regulations, including the Act.
66
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
|
|
AGFS
FUNDING COMPANY, as Borrower
|
|
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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|
Name:
|
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇.
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|
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Title:
|
Senior Vice President and CFO
|
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AMERICAN
GENERAL FINANCE CORPORATION
|
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By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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|
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Name:
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
|
|
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Title:
|
Senior Vice President and CFO
|
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AMERICAN
GENERAL FINANCIAL SERVICES OF ALABAMA, INC. (DE)
AMERICAN
GENERAL AUTO FINANCE, INC. (DE)
AMERICAN
GENERAL FINANCE MANAGEMENT CORPORATION (IN)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (AZ)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (DE)
AMERICAN
GENERAL FINANCIAL SERVICES (NH), INC. (DE)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (MA)
AMERICAN
GENERAL FINANCE, INC. (FL)
AMERICAN
GENERAL FINANCIAL SERVICES OF ILLINOIS, INC. (IL)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (IN)
AMERICAN
GENERAL FINANCIAL SERVICES OF LOUISIANA, INC. (LA)
AMERICAN
GENERAL FINANCIAL SERVICES OF ARKANSAS, INC. (DE)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (NY)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (NC)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (OH)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (PA)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (SC)
AMERICAN
GENERAL FINANCIAL SERVICES,
INC. (TX)
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S-1
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AMERICAN
GENERAL FINANCIAL SERVICES, INC. (WA)
AMERICAN
GENERAL FINANCIAL SERVICES OF WISCONSIN, INC. (WI)
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (WY)
AMERICAN
GENERAL CONSUMER DISCOUNT COMPANY (PA)
AMERICAN
GENERAL AUTO FINANCE, INC. (TN)
AMERICAN
GENERAL FINANCIAL SERVICES OF HAWAII, INC. (HI)
AMERICAN
GENERAL FINANCE OF UTAH, INC. (UT)
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (DE)
AMERICAN
GENERAL HOME EQUITY, INC. (DE)
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (IA)
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (NC)
AMERICAN
GENERAL HOME EQUITY, INC. (WV)
MOREQUITY,
INC. (NV)
AMERICAN
GENERAL FINANCE, INC. (NV)
AMERICAN
GENERAL FINANCE COMMERCIAL CORP. (IN)
AG
FINANCIAL SERVICES, INC. (IN)
SERVICE
BUREAU OF INDIANA, INC. (IN)
AG
DOCUMENTATION SERVICES, INC. (CA)
AGF
FUNDING, INC.
AGFS
CASH SERVICES, INC.
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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|
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Name:
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Title:
|
Senior Vice President and CFO
|
S-2
|
|
BANK
OF AMERICA, N.A., as Administrative Agent
|
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By:
|
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
|
▇▇▇ ▇. ▇▇▇▇▇▇
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|
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Title:
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Vice President
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S-3
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BANK
OF AMERICA, N.A., as Lender
|
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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|
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Name:
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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|
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Title:
|
Director
|
S-4
|
)
|
|
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[
], as Lender
|
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By:
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Name:
|
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Title:
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S-5
Schedule
1.01
Part (a)
Subsidiary
Guarantors
|
Subsidiary
Guarantors
|
Jurisdiction
of
Incorporation
|
|
1. American
General Finance Management Corporation
|
Indiana
|
|
2. American
General Financial Services of Alabama, Inc.
|
Delaware
|
|
3. American
General Financial Services, Inc.
|
Arizona
|
|
4. American
General Financial Services of Arkansas, Inc.
|
Delaware
|
|
5. American
General Financial Services (NH), Inc.
|
Delaware
|
|
6. American
General Financial Services, Inc.
|
Delaware
|
|
7. AG
Documentation Services, Inc.
|
California
|
|
8. American
General Auto Finance, Inc.
|
Delaware
|
|
9. American
General Finance, Inc.
|
Florida
|
|
10. American
General Financial Services of Hawaii, Inc.
|
Hawaii
|
|
11. American
General Financial Services of Illinois, Inc.
|
Illinois
|
|
12. Service
Bureau of Indiana, Inc.
|
Indiana
|
|
13. AG
Financial Services, Inc.
|
Indiana
|
|
14. American
General Financial Services, Inc.
|
Indiana
|
|
15. American
General Finance Commercial Corp.
|
Indiana
|
|
16. American
General Financial Services of America, Inc.
|
Iowa
|
|
17. American
General Financial Services of Louisiana, Inc.
|
Louisiana
|
|
18. American
General Financial Services, Inc.
|
Massachusetts
|
|
19. American
General Finance, Inc.
|
Nevada
|
|
20. MorEquity,
Inc.
|
Nevada
|
|
21. American
General Financial Services, Inc.
|
New
York
|
|
22. American
General Financial Services of America, Inc.
|
North
Carolina
|
|
23. American
General Financial Services, Inc.
|
North
Carolina
|
|
24. American
General Financial Services, Inc.
|
Ohio
|
|
25. American
General Financial Services, Inc.
|
Pennsylvania
|
|
26. American
General Consumer Discount Company
|
Pennsylvania
|
|
27. American
General Financial Services, Inc.
|
South
Carolina
|
|
28. American
General Auto Finance, Inc.
|
Tennessee
|
|
29. American
General Financial Services, Inc.
|
Texas
|
|
30. American
General Finance of Utah, Inc.
|
Utah
|
|
31. American
General Financial Services, Inc.
|
Washington
|
|
32. American
General Home Equity, Inc.
|
West
Virginia
|
|
33. American
General Financial Services of Wisconsin, Inc.
|
Wisconsin
|
|
34. American
General Financial Services, Inc.
|
Wyoming
|
|
35. AGFS
Cash Services, Inc.
|
Delaware
|
|
36. AGF
Funding, Inc.
|
Delaware
|
|
37. American
General Financial Services of America, Inc.
|
Delaware
|
|
38. American
General Home Equity, Inc.
|
Delaware
|
Schedule
1.01
Part (b)
Qualifying Subsidiary
Guarantors
|
Subsidiaries
of AGFC
|
Jurisdiction
of
Incorporation
|
|
1. American
General Finance Management Corporation
|
Indiana
|
|
2. American
General Financial Services of Alabama, Inc.
|
Delaware
|
|
3. American
General Financial Services, Inc.
|
Arizona
|
|
4. American
General Financial Services of Arkansas, Inc.
|
Delaware
|
|
5. American
General Financial Services (NH), Inc.
|
Delaware
|
|
6. American
General Financial Services, Inc.
|
Delaware
|
|
7. AG
Documentation Services, Inc.
|
California
|
|
8. American
General Auto Finance, Inc.
|
Delaware
|
|
9. American
General Finance, Inc.
|
Florida
|
|
10. American
General Financial Services of Hawaii, Inc.
|
Hawaii
|
|
11. American
General Financial Services of Illinois, Inc.
|
Illinois
|
|
12. Service
Bureau of Indiana, Inc.
|
Indiana
|
|
13. AG
Financial Services, Inc.
|
Indiana
|
|
14. American
General Financial Services, Inc.
|
Indiana
|
|
15. American
General Finance Commercial Corp.
|
Indiana
|
|
16. American
General Financial Services of America, Inc.
|
Iowa
|
|
17. American
General Financial Services of Louisiana, Inc.
|
Louisiana
|
|
18. American
General Financial Services, Inc.
|
Massachusetts
|
|
19. American
General Finance, Inc.
|
Nevada
|
|
20. MorEquity,
Inc.
|
Nevada
|
|
21. American
General Financial Services, Inc.
|
New
York
|
|
22. American
General Financial Services of America, Inc.
|
North
Carolina
|
|
23. American
General Financial Services, Inc.
|
North
Carolina
|
|
24. American
General Financial Services, Inc.
|
Ohio
|
|
25. American
General Financial Services, Inc.
|
Pennsylvania
|
|
26. American
General Consumer Discount Company
|
Pennsylvania
|
|
27. American
General Financial Services, Inc.
|
South
Carolina
|
|
28. American
General Auto Finance, Inc.
|
Tennessee
|
|
29. American
General Financial Services, Inc.
|
Texas
|
|
30. American
General Finance of Utah, Inc.
|
Utah
|
|
31. American
General Financial Services, Inc.
|
Washington
|
|
32. American
General Home Equity, Inc.
|
West
Virginia
|
|
33. American
General Financial Services of Wisconsin, Inc.
|
Wisconsin
|
|
34. American
General Financial Services, Inc.
|
Wyoming
|
|
35. AGFS
Cash Services, Inc.
|
Delaware
|
|
36. AGF
Funding, Inc.
|
Delaware
|
|
37. American
General Financial Services of America, Inc.
|
Delaware
|
|
38. American
General Home Equity, Inc.
|
Delaware
|
Schedule
1.01
Part (c)
Non-Guarantor
Subsidiaries
Wilmington
Finance, Inc. (DE)
Merit
Life Insurance Co. (IN)
Yosemite
Insurance Company (IN)
Ocean
Finance and Mortgages Limited
Ocean
Money Limited
Ocean
Money (II) Limited
AGFC
Capital Trust I
Crossroads
Mortgage, Inc. (TN)
ENM, Inc.
(TN)
CREDITHRIFT
of Puerto Rico, Inc. (PR)
Interstate
Agency, Inc. (IN)
CommoLoCo,
Inc. (PR)
Third
Street Funding, LLC
Sixth
Street Funding, LLC
COMMITMENTS
|
LENDER NAME
|
CLOSING DATE COMMITMENT
|
APPLICABLE PERCENTAGE
|
|||||
|
Bank
of America, N.A.
|
$ | 3,000,000,000.00 | 100.00 | % | |||
|
Total:
|
$ | 3,000,000,000.00 | 100.00 | % | |||
Schedule
2.01- Commitments
SCHEDULE
11.02
ADMINISTRATIVE
AGENT’S OFFICE,
CERTAIN
ADDRESSES FOR NOTICES
BORROWER:
AGFS
Funding Company
c/o
American General Finance Corporation
Attention:
Treasurer
▇▇▇ ▇.▇.
▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Phone:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇ ▇▇▇ ▇▇▇▇
with a
copy to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇▇▇,
Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE
AGENT:
Administrative Agent’s
Office
(for
payments and Requests for Credit Extensions):
Bank of
America, N.A.
Building
B
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇
Mail
Code: CA4-702-02-25
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone:
▇▇▇.▇▇▇.▇▇▇▇
Telecopier:
888.217.4730
Electronic
Mail: ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
Account
No.: 3750836479
Account
Name: Credit Services #5596
Ref: AGFS
Funding Company
ABA#
▇▇▇▇▇▇▇▇▇
Schedule
11.02- Administrative Agent’s Office, Certain Addresses for
Notices
Other Notices as
Administrative Agent:
Bank of
America, N.A.
Agency
Management
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇
Mail
Code: NY1-503-04-03
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇
▇. ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopier: 212.901.7843
Electronic
Mail: ▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Schedule
11.02- Administrative Agent’s Office, Certain Addresses for Notices
EXHIBIT
A
FORM
OF COMMITTED LOAN NOTICE
|
Date: ___________,
_____
|
|
|
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Credit Agreement, dated as of April 21,
2010 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among AGFS Funding
Company, a Delaware corporation (the “Borrower”), American
General Finance Corporation, the Subsidiary Guarantors party thereto, the
Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent and Collateral Agent.
The
undersigned hereby requests (select one):
£ A
Borrowing of Loans
£ A
conversion or continuation of Loans
1. On
____________________________________ (a Business Day).
2. In
the amount of $___________________________
3. Comprised
of [Eurodollar Rate] [Base Rate] Loans
4. For
Eurodollar Rate Loans: with an Interest Period of [ ]
months.
To the
extent the Borrower requests funding arrangements to fund Eurodollar Rate Loans
above (such request for Eurodollar Rate Loans being the “Funding
Arrangements”), the Borrower hereby agrees to comply with the provisions
set forth in Section 3.05 of the Agreement as a result of the Funding
Arrangements and, to the extent provided in such Section 3.05, the Borrower
agrees to compensate each of the Lenders and the Administrative Agent upon
written request for all reasonable losses, expenses and liabilities which such
Lenders and the Administrative Agent may sustain, whether or not any such
Eurodollar Rate Loan is ever made as contemplated by such Funding Arrangements
and whether or not the Agreement is executed and delivered by the intended
parties thereto.
The
Borrower hereby represents and warrants that the conditions specified in Section 4.01 shall be
satisfied on and as of the date of the Borrowing.
A-1
Form of
Committed Loan Notice
|
AGFS
FUNDING COMPANY
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
A-2
Form of
Committed Loan Notice
EXHIBIT
B
FORM
OF NOTE
|
___________,
____
|
FOR VALUE
RECEIVED, the undersigned (the “Borrower”), hereby
promises to pay to
[ ]
or registered assigns (the “Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of the Loan from time to time made by the Lender to the
Borrower under that certain Credit Agreement, dated as of April 21, 2010 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among the Borrower,
American General Finance Corporation, the Subsidiary Guarantors party thereto,
the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent and Collateral Agent.
The
Borrower promises to pay interest on the unpaid principal amount of the Loan
made by the Lender from the date of such Loan until such principal amount is
paid in full, at such interest rates and at such times as provided in the
Agreement. All payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent’s Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note
is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This Note is also entitled to the
benefits of the Guaranty and is secured by the Pledged Equity. Upon
the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable all as provided in
the Agreement. The Loan made by the Lender shall be evidenced by one
or more loan accounts or records maintained by the Lender in the ordinary course
of business. The Lender may also attach schedules to this Note and
endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto.
The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.
[THIS
NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ.
OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE,
AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR THIS
NOTE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE
FOLLOWING ADDRESS: [ ] ATTENTION: [ ]."]1
|
1
|
To
be inserted if note is issued with original issue
discount.
|
B-1
Form of
Note
THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
|
AGFS
FUNDING COMPANY
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
B-2
Form of
Note
LOANS AND
PAYMENTS WITH RESPECT THERETO
|
Date
|
Type
of Loan Made
|
Amount
of Loan Made
|
End
of Interest Period
|
Amount
of Principal or Interest Paid This Date
|
Outstanding
Principal Balance This Date
|
Notation
Made By
|
|
_______
|
_______
|
_______
|
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|
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|
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|
_______
|
_______
|
_______
|
B-3
Form of
Note
EXHIBIT
C-1
FORM
OF ASSIGNMENT AND ASSUMPTION
This
Assignment and Assumption (this “Assignment and
Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between the Assignor identified in item 1 below (the “Assignor”) and the
Assignee identified in item 2 below (the “Assignee”). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in
full.
For an
agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by the Assignor to the Assignee pursuant to
clauses (i) and (ii) above being referred to herein collectively as the “Assigned
Interest”). Each such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
|
1.
|
Assignor:
|
______________________________
|
|
2.
|
Assignee: _____________________________
[and is an Affiliate/Approved Fund of [identify Lender]2]
|
|
3.
|
Borrower:
|
AGFS
FUNDING COMPANY, a Delaware
corporation.
|
|
4.
|
Administrative
Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement
|
|
5.
|
Credit
Agreement: Credit
Agreement, dated as of April 21, 2010 among AGFS FUNDING COMPANY, a Delaware
corporation, AMERICAN GENERAL FINANCE CORPORATION, an Indiana corporation,
as a Guarantor, the Subsidiary Guarantors party thereto, the Lenders from
time to time party thereto, and Bank of America, N.A., as Administrative
Agent.
|
|
2
|
Select
as applicable.
|
C-1-1
Form of
Assignment and Assumption
|
6.
|
Assigned
Interest:
|
|
Assignor
|
Assignee
|
Aggregate
Amount of Loans for all Lenders3
|
Amount
of Loans Assigned
|
Percentage
Assigned of Loans4
|
CUSIP Number
|
|
$________________
|
$_________
|
____________%
|
|
7.
|
[Trade
Date: ______________________________]5
|
Effective
Date: _________________________, 20__ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
|
3
|
Amounts in this
column and in the column immediately to the right to be adjusted by the
counterparties to take into account any payments or prepayments made
between the Trade Date and the Effective
Date.
|
|
4
|
Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all Lenders thereunder.
|
|
5
|
To
be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade
Date.
|
C-1-2
Form of
Assignment and Assumption
The terms
set forth in this Assignment and Assumption are hereby agreed to:
|
ASSIGNOR
|
||
|
[NAME
OF ASSIGNOR]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ASSIGNEE
|
||
|
[NAME
OF ASSIGNEE]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
[Consented
to and] 6
Accepted:
|
|||
|
BANK
OF AMERICA, N.A., as Administrative Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
[Consented
to and Accepted:
|
|||
|
AGFS
FUNDING COMPANY, as Borrower
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:] 7
|
|||
|
6
|
To
be added only if the consent of the Administrative Agent is required by
the terms of the Credit
Agreement.
|
|
7
|
To
be added only if the consent of the Borrower is required by the terms of
the Credit Agreement.
|
C-1-3
Form of
Assignment and Assumption
ANNEX
1 TO
ASSIGNMENT
AND ASSUMPTION
AGFS
FUNDING COMPANY
AMERICAN
GENERAL FINANCE CORPORATION
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1.
Representations and
Warranties.
1.1. Assignor. The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all the requirements to be an
assignee under Section
11.06(b)(iii), (v) and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii)
of the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets
of the type represented by the Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire the Assigned Interest,
is experienced in acquiring assets of such type, (v) it has received a copy of
the Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to
Section 6.01
thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest, (vi) it is not a Person whose
primary business competes with AGFC and the Subsidiary Guarantors and (vii) if
it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance upon the Administrative Agent, the Assignor 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 decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
C-1-4
Form of
Assignment and Assumption
2.
Payments. From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
3.
General
Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page
of this Assignment and Assumption by telecopy shall be effective as delivery of
a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of New York.
C-1-5
Form of
Assignment and Assumption
EXHIBIT
C-2
FORM
OF ADMINISTRATIVE QUESTIONNAIRE
I. Borrower
Name: AGFS FUNDING
COMPANY
|
$
|
Type of Credit Facility
|
II.
Legal Name of Lender of Record for Signature Page:
|
|
·
|
Signing Credit
Agreement _____
YES _____NO
|
|
|
·
|
Coming in via
Assignment _____
YES _____NO
|
|
III. Type of Lender:
|
(Bank,
Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance,
Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose
Vehicle, Other – please specify)
|
IV.
Domestic Address:
|
V. Eurodollar
Address:
|
|
VI. Contact
Information:
Syndicate
level information (which may contain material non-public information about the
Borrower and its related parties or their respective securities will be made
available to the Credit Contact(s). The Credit Contacts identified
must be able to receive such information in accordance with his/her
institution's compliance procedures and applicable laws, including Federal and
State securities laws.
C-2-1
Form of
Administrative Questionnaire
|
Primary Credit Contact |
Secondary Operations Contact |
Operations Contact
|
||||
|
Name:
|
||||||
|
Title:
|
||||||
|
Address:
|
||||||
|
Telephone:
|
||||||
|
Facsimile:
|
||||||
|
E
Mail Address:
|
||||||
|
IntraLinks
E Mail Address:
|
Does
Secondary Operations Contact need copy of
notices? ___YES ___ NO
|
Letter
of Credit Contact
|
Draft
Documentation Contact
|
Legal Counsel
|
||||
|
Name:
|
||||||
|
Title:
|
||||||
|
Address:
|
||||||
|
Telephone:
|
||||||
|
Facsimile:
|
||||||
|
E
Mail Address:
|
VII.
Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’
Acceptance Fed Wire Payment Instructions (if applicable):
C-2-2
Form of
Administrative Questionnaire
|
Pay to:
|
||
|
(Bank
Name)
|
||
|
(ABA
#)
|
||
|
(Account
#)
|
||
|
(Attention)
|
VIII. Lender’s Fed Wire
Payment Instructions:
|
Pay to:
|
||
|
(Bank
Name)
|
||
|
(ABA
#)
|
(City/State)
|
|
|
(Account
#)
|
(Account
Name)
|
|
|
(Attention)
|
IX.
Organizational Structure and Tax Status
Please
refer to the enclosed withholding tax instructions below and then complete this
section accordingly:
Lender
Taxpayer Identification Number (TIN):
Tax
Withholding Form Delivered to Bank of America*:
|
W-9
|
||
|
W-8BEN
|
||
|
W-8ECI
|
||
|
W-8EXP
|
||
|
W-8IMY
|
C-2-3
Form of
Administrative Questionnaire
|
Tax Contact
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
|
Telephone:
|
||
|
Facsimile:
|
||
|
E Mail Address:
|
NON–U.S.
LENDER INSTITUTIONS
1.
Corporations:
If your
institution is incorporated outside of the United States for U.S. federal income
tax purposes, and is the beneficial owner of the interest and other income it
receives, you must complete one of the following three tax forms, as applicable
to your institution: a.) Form W-8BEN (Certificate of Foreign Status of
Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade
or Business), or c.) Form W-8EXP (Certificate of Foreign Government or
Governmental Agency).
A U.S.
taxpayer identification number is required for any institution submitting a Form
W-8 ECI. It is also required on Form W-8BEN for certain institutions
claiming the benefits of a tax treaty with the U.S. Please refer to
the instructions when completing the form applicable to your
institution. In addition, please be advised that U.S. tax regulations
do not permit the acceptance of faxed forms. An original tax form must be
submitted.
2.
Flow-Through Entities
If your
institution is organized outside the U.S., and is classified for U.S. federal
income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified
Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY
(Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain
U.S. branches for United States Tax Withholding) must be completed by the
intermediary together with a withholding statement. Flow-through
entities other than Qualified Intermediaries are required to include tax forms
for each of the underlying beneficial owners.
Please
refer to the instructions when completing this form. In addition,
please be advised that U.S. tax regulations do not permit the acceptance of
faxed forms. Original tax form(s) must be
submitted.
U.S.
LENDER INSTITUTIONS:
If your
institution is incorporated or organized within the United States, you must
complete and return Form W-9 (Request for Taxpayer Identification Number and
Certification). Please be advised that we require an
original form W-9.
C-2-4
Form of
Administrative Questionnaire
Pursuant
to the language contained in the tax section of the Credit Agreement, the
applicable tax form for your institution must be completed and returned on or
prior to the date on which your institution becomes a lender under this Credit
Agreement. Failure to provide the proper tax form when requested will
subject your institution to U.S. tax withholding.
X.
Bank of America Payment Instructions:
|
Pay
to:
|
Bank
of America, N.A.
|
|
|
ABA
#
[ ]
|
||
|
New
York, NY
|
||
|
Acct.
#
[ ]
|
||
|
Attn:
Large Corporate Loans
|
||
|
Ref:
AGFS FUNDING COMPANY
|
C-2-5
Form of
Administrative Questionnaire
EXHIBIT
D
SUBORDINATION
TERMS
1. The
Subordinated Indebtedness shall be subordinated to the prior payment in full in
cash of the Obligations.
2. No
payments on or distributions in respect of Subordinated Indebtedness shall be
made when there is a payment default on the Obligations.
3. If
there is a non-payment default with respect to the Obligations, then any the
representative of holder of designated senior debt (which shall in any event
include the Administrative Agent) may block payments on and distributions in
respect of the Subordinated Indebtedness for 179 days, but there must be a
period of 181 consecutive days during each period of 360 days when no such
blockage (other than a blockage pursuant to (2) above) is in
effect.
4. The
Subordinated Indebtedness shall not provide for any mandatory redemption or
repayment, offer for the debtor thereunder to repurchase or repay, any sinking
fund obligation or scheduled repayment, in any case, on any date that is prior
to 181 days after the Maturity Date.
5. The
Subordinated Indebtedness shall be unsecured.
6. No
Subsidiary of the Borrower (other than a Subsidiary Guarantor) shall Guarantee
the Subordinated Indebtedness (and if such Subsidiary Guarantor provides such a
Guarantee, such Guarantee shall be subordinated in right of payment to the
Obligations of such Subsidiary Guarantor on the same terms that such
Subordinated Indebtedness is subordinated to the Obligations of the
Borrower).
7. The
terms (other than the interest rate, but including without limitation the
restrictive covenants and subordination language) of the Subordinated
Indebtedness shall be customary for similar subordinated Indebtedness and in any
event no more burdensome to Borrower and its Subsidiaries, taken as a whole,
than the terms of the Credit Agreement.
8. The
holders of the Subordinated Indebtedness will be subject to customary turnover
provisions to effect such subordination.
9. Such
subordination provisions will not operate to prevent the occurrence of an event
of default under the Subordinated Indebtedness or the acceleration
thereof.
D-1
Subordination
Terms
EXHIBIT
E
FORM
OF PLEDGE AGREEMENT
PLEDGE
AGREEMENT
dated as
of
April 21,
2010
Between
AMERICAN
GENERAL FINANCE CORPORATION
and
BANK OF
AMERICA, N.A.
as
Collateral Agent
Form of Pledge
Agreement
TABLE OF
CONTENTS
|
ARTICLE
I Definitions
|
1
|
|
|
SECTION
1.01.
|
Credit
Agreement
|
1
|
|
SECTION
1.02.
|
Other
Defined Terms
|
1
|
|
ARTICLE
II Pledge of Securities
|
2
|
|
|
SECTION
2.01.
|
Pledge
|
2
|
|
SECTION
2.02.
|
Delivery
of the Pledged Equity
|
2
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants
|
2
|
|
SECTION
2.04.
|
Registration
in Nominee Name; Denominations
|
3
|
|
SECTION
2.05.
|
Voting
Rights; Dividends and Interest
|
4
|
|
ARTICLE
III Remedies
|
5
|
|
|
SECTION
3.01.
|
Remedies
Upon Default
|
5
|
|
SECTION
3.02.
|
Application
of Proceeds
|
6
|
|
ARTICLE
IV Miscellaneous
|
7
|
|
|
SECTION
4.01.
|
Notices
|
7
|
|
SECTION
4.02.
|
Waivers,
Amendment
|
7
|
|
SECTION
4.03.
|
Collateral
Agent’s Fees and Expenses; Indemnification
|
7
|
|
SECTION
4.04.
|
Successors
and Assigns
|
7
|
|
SECTION
4.05.
|
Survival
of Agreement
|
8
|
|
SECTION
4.06.
|
Counterparts;
Effectiveness, Several Agreement
|
8
|
|
SECTION
4.07.
|
Severability
|
8
|
|
SECTION
4.08.
|
Right
of Set-Off
|
8
|
|
SECTION
4.09.
|
Governing
Law; Jurisdiction; Venue; Waiver of Jury Trial; Consent to Service of
Process
|
8
|
|
SECTION
4.10.
|
Headings
|
9
|
|
SECTION
4.11.
|
Security
Interest Absolute
|
9
|
|
SECTION
4.12.
|
Termination
or Release
|
9
|
E-i
Form of Pledge
Agreement
|
SECTION
4.13.
|
Collateral
Agent Appointed Attorney-in-Fact
|
9
|
|
SECTION
4.14.
|
General
Authority of the Collateral Agent
|
10
|
|
SECTION
4.15.
|
Reasonable
Care
|
10
|
|
SECTION
4.16.
|
Delegation;
Limitation
|
10
|
|
SECTION
4.17.
|
Reinstatement
|
11
|
|
SECTION
4.18.
|
Miscellaneous
|
11
|
|
Schedule
I Pledged Equity
|
||
E-ii
Form of Pledge
Agreement
PLEDGE
AGREEMENT dated as of April 21, 2010, between American General Finance
Corporation, an Indiana corporation (“AGFC”) and Bank of America,
N.A., as Collateral Agent for the Secured Parties (in such capacity, the “Collateral
Agent”).
Reference
is made to that certain Credit Agreement dated as of April 21, 2010 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”),
among AGFS Funding Company, a Delaware corporation (the “Borrower”), AGFC, the
Subsidiary Guarantors party thereto from time to time, Bank of America, N.A., as
Administrative Agent and Collateral Agent, each lender from time to time party
thereto (each individually, a “Lender” and collectively, the
“Lenders”), and the
other agents named therein. The Lenders have agreed to extend credit
to the Borrower subject to the terms and conditions set forth in the Credit
Agreement. The obligations of the Lenders to extend such credit are
conditioned upon, among other things, the execution and delivery of this
Agreement. AGFC is the direct parent of the Borrower, will derive
substantial benefits from the extension of credit to the Borrower pursuant to
the Credit Agreement and is willing to execute and deliver this Agreement in
order to induce the Lenders to extend such credit. Accordingly, the
parties hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01. Credit
Agreement. (a)
Capitalized terms used in this Agreement and not otherwise defined herein have
the meanings specified in the Credit Agreement. All terms defined in
the UCC (as defined herein) and not defined in this Agreement have the meanings
specified therein; the term “instrument” shall have the meaning specified in
Article 9 of the UCC.
(b) The
rules of construction specified in Article I of the Credit Agreement also apply
to this Agreement.
SECTION
1.02.
Other Defined
Terms. As
used in this Agreement, the following terms have the meanings specified
below:
“AGFC” has the meaning assigned
to such term in the preliminary statements of this Agreement.
“Agreement” means this Pledge
Agreement.
“Collateral Agent” has the
meaning assigned to such term in the preliminary statements of this
Agreement.
“Credit Agreement” has the
meaning assigned to such term in the preliminary statements of this
Agreement.
“Lenders” has the meaning
assigned to such term in the preliminary statements of this
Agreement.
“Pledged Collateral” has the
meaning assigned to such term in Section 2.01.
“Pledged Equity” has the
meaning assigned to such term in Section 2.01.
“Secured Obligations” means the
“Obligations” (as defined in the Credit Agreement).
Form of Pledge
Agreement
E -
1
“UCC” means the Uniform
Commercial Code as from time to time in effect in the State of New York; provided that, if perfection
or the effect of perfection or non-perfection or the priority of the security
interest in any Pledged Collateral is governed by the Uniform Commercial Code as
in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform
Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof relating to such perfection, effect of
perfection or non-perfection or priority.
ARTICLE
II
Pledge of
Securities
SECTION
2.01. Pledge. As
security for the payment or performance, as the case may be, in full of the
Secured Obligations, including the Guaranty, AGFC hereby assigns and pledges to
the Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, and hereby grants to the Collateral Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest in (i) all of AGFC’s
right, title and interest in, to and under all Equity Interests issued by the
Borrower and any successor entity (the “Pledged Equity”); (ii) all
payments of principal or interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of, in exchange for or upon the conversion of, and all other Proceeds
received in respect of, the Pledged Equity; (iii) all rights and privileges of
AGFC with respect to the securities and other property referred to in clauses
(i) and (ii) above; and (iv) all Proceeds of any of the foregoing (the items
referred to in clauses (i) through (iv) above being collectively referred to as
the “Pledged
Collateral”); provided, however, that the maximum
amount of Secured Obligations that is secured hereunder is limited to any
amount, as calculated on the Closing Date by reference to the audited financial
statements of AGFC as at December 31, 2009, equal to (a) the lesser of (i) 10%
of the Consolidated Net Worth of AGFC at such time (as defined in and calculated
in accordance with, the Existing Indenture as in effect on the Closing Date) and
(ii) until July 14, 2010 the amount of secured Indebtedness that is permitted to
be incurred under the last paragraph of Section 8.04 of the AGFC Credit Facility
as in effect on the Closing Date, if lower less (b) the
aggregate principal amount of Indebtedness secured by Liens on assets of AGFC
and its Subsidiaries as shown on Schedule 9.10 to the Disclosure
Letter.
TO HAVE
AND TO HOLD the Pledged Collateral, together with all right, title, interest,
powers, privileges and preferences pertaining or incidental thereto, unto the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, forever, subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION
2.02. Delivery of the Pledged
Equity. (b) AGFC
agrees promptly (but in any event within 30 days after receipt by AGFC) to
deliver or cause to be delivered to the Collateral Agent, for the benefit of the
Secured Parties, any and all Pledged Equity to the extent
certificated.
(b) Upon
delivery to the Collateral Agent, any Pledged Equity shall be accompanied by
stock or security powers duly executed in blank or other instruments of transfer
reasonably satisfactory to the Collateral Agent and by such other instruments
and documents as the Collateral Agent may reasonably request. Each
delivery of Pledged Equity shall be accompanied by a schedule describing the
securities, which schedule shall be deemed to supplement Schedule I and made a
part hereof; provided
that failure to supplement Schedule I shall not
affect the validity of such pledge of such Pledged Equity. Each
schedule so delivered shall supplement any prior schedules so
delivered.
SECTION
2.03. Representations, Warranties
and Covenants. AGFC
represents, warrants and covenants to and with the Collateral Agent, for the
benefit of the Secured Parties, that:
Form of Pledge
Agreement
E -
2
(a) As
of the date hereof, Schedule I includes
all Equity Interests required to be pledged by AGFC hereunder and under the
Credit Agreement and all such Equity Interests have been delivered to the
Collateral Agent;
(b) the
Pledged Equity has been duly and validly authorized and issued by the issuers
thereof and are fully paid and nonassessable;
(c) except
for the security interests granted hereunder, AGFC (i) is, subject to any
transfers made in compliance with the Credit Agreement, the direct owner,
beneficially and of record, of the Pledged Equity indicated on Schedule I, (ii)
holds the same free and clear of all Liens, other than Liens created hereunder,
and (iii) if requested by the Collateral Agent, will defend its title or
interest thereto or therein against any and all Liens (other than the Liens
permitted pursuant to this Section 2.03(c)), however arising, of all Persons
whomsoever;
(d) except
for restrictions and limitations imposed or permitted by the Loan Documents or
securities laws generally, the Pledged Collateral is and will continue to be
freely transferable and assignable, and none of the Pledged Collateral is or
will be subject to any option, right of first refusal, shareholders agreement,
charter or by-law provisions or contractual restriction of any nature that might
prohibit, impair, delay or otherwise affect in any manner material and adverse
to the Secured Parties the pledge of such Pledged Collateral hereunder, the sale
or disposition thereof pursuant hereto or the exercise by the Collateral Agent
of rights and remedies hereunder;
(e)
the execution and performance by AGFC of this Agreement are
within AGFC’s corporate powers and have been duly authorized by all necessary
corporate action or other organizational action;
(f)
no consent or approval of any Governmental Authority, any securities
exchange or any other Person was or is necessary to the validity of the pledge
effected hereby, except for (i) filing of a UCC-1 financing statement in form
appropriate for filing under the Uniform Commercial Code of Indiana naming AGFC
as debtor and the Collateral Agent as secured party and describing the Pledged
Collateral and (ii) the approvals, consents, exemptions, authorizations,
actions, notices and filings which have been duly obtained, taken, given or made
and are in full force and effect;
(g) by
virtue of the execution and delivery by AGFC of this Agreement, and delivery of
the Pledged Equity to and continued possession by the Collateral Agent in the
State of New York, the Collateral Agent for the benefit of the Secured Parties
has a legal, valid and perfected lien upon and security interest in such Pledged
Equity as security for the payment and performance of the Secured Obligations;
and
(h) the
pledge effected hereby is effective to vest in the Collateral Agent, for the
benefit of the Secured Parties, the rights of the Collateral Agent in the
Pledged Collateral to the extent intended hereby.
Subject
to the terms of this Agreement and to the extent permitted by applicable law,
AGFC hereby agrees that upon the occurrence and during the continuance of an
Event of Default, it will comply with instructions of the Collateral Agent with
respect to the Equity Interests in the Borrower that constitute Pledged Equity
hereunder that are not certificated without further consent by the applicable
owner or holder of such Equity Interests.
SECTION
2.04. Registration in Nominee
Name; Denominations. If
an Event of Default shall have occurred and be continuing and the Collateral
Agent shall give AGFC prior notice of its intent
Form of Pledge
Agreement
E -
3
to exercise such rights, (a) the Collateral Agent, on behalf of
the Secured Parties, shall have the right to hold the Pledged Equity in its own
name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the
name of AGFC, endorsed or assigned in blank or in favor of the Collateral Agent
and AGFC will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Equity registered in
the name of AGFC and (b) the Collateral Agent shall have the right to exchange
the certificates representing Pledged Equity for certificates of smaller or
larger denominations for any purpose consistent with this Agreement, to the
extent permitted by the documentation governing such Pledged Equity.
SECTION
2.05. Voting Rights; Dividends and
Interest. (c) Unless
and until an Event of Default shall have occurred and be continuing and the
Collateral Agent shall have provided prior notice to AGFC that AGFC’s rights
under this Section 2.05 are being suspended:
(i)
AGFC shall be entitled to exercise any and all voting and/or other
consensual rights and powers inuring to an owner of Pledged Equity or any part
thereof, and AGFC agrees that it shall exercise such rights for purposes
consistent with the terms of this Agreement, the Credit Agreement and the other
Loan Documents;
(ii)
the Collateral Agent shall promptly (after
reasonable advance notice) execute and deliver to AGFC, or cause to be executed
and delivered to AGFC, all such proxies, powers of attorney and other
instruments as AGFC may reasonably request for the purpose of enabling AGFC to
exercise the voting and/or consensual rights and powers it is entitled to
exercise pursuant to subparagraph (i) above; and
(iii) AGFC
shall be entitled to receive and retain any and all dividends, interest,
principal and other distributions paid on or distributed in respect of the
Pledged Equity to the extent and only to the extent that such dividends,
interest, principal and other distributions are permitted by, and otherwise paid
or distributed in accordance with, the terms and conditions of the Credit
Agreement, the other Loan Documents and applicable Laws; provided that any noncash
dividends, interest, principal or other distributions that would constitute
Pledged Equity, whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer of any
Pledged Equity or received in exchange for Pledged Equity or any part thereof,
or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Pledged Collateral, and, if received
by AGFC, shall not be commingled by AGFC with any of its other funds or property
but shall be held separate and apart therefrom, shall be held in trust for the
benefit of the Collateral Agent and the Secured Parties and shall be promptly
(and in any event within 5 Business Days) delivered to the Collateral Agent in
the same form as so received (with any necessary endorsement reasonably
requested by the Collateral Agent). So long as no Default or Event of
Default has occurred and is continuing, the Collateral Agent shall promptly
deliver to AGFC any Pledged Equity in its possession if requested to be
delivered to the issuer thereof in connection with any exchange or redemption of
such Pledged Equity permitted by the Credit Agreement in accordance with this
Section 2.05(a)(iii).
(b) Upon
the occurrence and during the continuance of an Event of Default, after the
Collateral Agent shall have notified AGFC of the suspension of AGFC’s rights
under Section 2.05(a)(iii), then all rights of AGFC to dividends, interest,
principal or other distributions that AGFC is authorized to receive pursuant to
Section 2.05(a)(iii) shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to receive and retain such dividends, interest, principal or other
distributions. All dividends, interest, principal or other
distributions received by AGFC contrary to the provisions of this Section 2.05
shall be held in trust for the benefit of
Form of Pledge
Agreement
E -
4
the Collateral Agent, shall be segregated from
other property or funds of AGFC and shall be promptly (and in any event within 5
Business Days) delivered to the Collateral Agent upon demand in the same form as
so received (with any necessary endorsement reasonably requested by the
Collateral Agent). Any and all money and other property paid over to
or received by the Collateral Agent pursuant to the provisions of this paragraph
(b) shall be retained by the Collateral Agent in an account to be established by
the Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 3.02. After all
Events of Default have been cured or waived, the Collateral Agent shall promptly
repay to AGFC (without interest) all dividends, interest, principal or other
distributions that AGFC would otherwise be permitted to retain pursuant to the
terms of paragraph (a)(iii) of this Section 2.05 and that remain in such
account.
(c)
Upon the occurrence and during the
continuance of an Event of Default, after the Collateral Agent shall have
provided AGFC with notice of the suspension of AGFC’s rights under Section 2.05
(a)(i), then all rights of AGFC to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to Section 2.05 (a)(i), and the
obligations of the Collateral Agent under Section 2.05 (a)(ii), shall cease, and
all such rights shall thereupon become vested in the Collateral Agent, which
shall have the sole and exclusive right and authority to exercise such voting
and consensual rights and powers; provided that, unless
otherwise directed by the Required Lenders, the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit AGFC to exercise such rights. After all Events of
Default have been cured or waived, AGFC shall have the exclusive right to
exercise the voting and/or consensual rights and powers that AGFC would
otherwise be entitled to exercise pursuant to the terms of Section 2.05 (a)(i)
above, and the obligations of the Collateral Agent under Section 2.05 (a)(ii)
shall be reinstated.
(d) Any
notice given by the Collateral Agent to AGFC under Section 2.04 or Section 2.05
shall be given in writing and may suspend the rights of AGFC under Section 2.05
(a)(i) or Section 2.05 (a)(iii) in part without suspending all such rights (as
specified by the Collateral Agent in its sole and absolute discretion) and
without waiving or otherwise affecting the Collateral Agent’s rights to give
additional notices from time to time suspending other rights so long as an Event
of Default has occurred and is continuing.
ARTICLE
III
Remedies
SECTION
3.01. Remedies Upon
Default. During
the continuance of an Event of Default, it is agreed that the Collateral Agent
shall have the right to exercise any and all rights afforded to a secured party
with respect to the Secured Obligations, including the Guarantees, under the UCC
or other applicable Law and also may (i) exercise any and all rights and
remedies of AGFC under or in connection with the Pledged Collateral, or
otherwise in respect of the Pledged Collateral; provided that the Collateral
Agent shall provide AGFC with notice thereof prior to such exercise; and (ii)
subject to the mandatory requirements of applicable Law and the notice
requirements described below, sell or otherwise dispose of all or any part of
the Pledged Collateral securing the Secured Obligations at a public or private
sale or at any broker’s board or on any securities exchange, for cash, upon
credit or for future delivery as the Collateral Agent shall deem
appropriate. The Collateral Agent shall be authorized at any such
sale of securities (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Pledged Collateral for their own account for investment
and not with a view to the distribution or sale thereof, and upon consummation
of any such sale the Collateral Agent shall have the right to assign, transfer
and deliver to the purchaser or purchasers thereof the Pledged Collateral so
sold. Each such purchaser at any sale of Pledged Collateral shall
hold the property sold absolutely, free from any claim or right on the part of
AGFC, and AGFC hereby waives (to the extent
Form of Pledge
Agreement
E -
5
permitted by Law) all rights of redemption, stay
and appraisal which AGFC now has or may at any time in the future have under any
Law now existing or hereafter enacted.
The
Collateral Agent shall give AGFC 5 Business Days’ written notice (which AGFC
agrees is reasonable notice within the meaning of Section 9-611 of the UCC or
its equivalent in other jurisdictions) of the Collateral Agent’s intention to
make any sale of Pledged Collateral. Such notice, in the case of a
public sale, shall state the time and place for such sale and, in the case of a
sale at a broker’s board or on a securities exchange, shall state the board or
exchange at which such sale is to be made and the day on which the Pledged
Collateral, or portion thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as the Collateral
Agent may fix and state in the notice (if any) of such sale. At any
such sale, the Pledged Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. The Collateral Agent
shall not be obligated to make any sale of any Pledged Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
Pledged Collateral shall have been given. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case any sale of all
or any part of the Pledged Collateral is made on credit or for future delivery,
the Pledged Collateral so sold may be retained by the Collateral Agent until the
sale price is paid by the purchaser or purchasers thereof, but the Collateral
Agent shall not incur any liability in case any such purchaser or purchasers
shall fail to take up and pay for the Pledged Collateral so sold and, in case of
any such failure, such Pledged Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by Law, private)
sale made pursuant to this Agreement, any Secured Party may bid for or purchase,
free (to the extent permitted by Law) from any right of redemption, stay,
valuation or appraisal on the part of AGFC (all said rights being also hereby
waived and released to the extent permitted by Law), the Pledged Collateral or
any part thereof offered for sale and may make payment on account thereof by
using any claim then due and payable to such Secured Party from AGFC as a credit
against the purchase price, and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to AGFC therefor. For purposes hereof, a written
agreement to purchase the Pledged Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Agent shall be free to carry out such
sale pursuant to such agreement and AGFC shall not be entitled to the return of
the Pledged Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Secured
Obligations paid in full. As an alternative to exercising the power
of sale herein conferred upon it, the Collateral Agent may proceed by a suit or
suits at Law or in equity to foreclose this Agreement and to sell the Pledged
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this
Section 3.01 shall be deemed to conform to the commercially reasonable standards
as provided in Section 9-610(b) of the UCC or its equivalent in other
jurisdictions.
SECTION
3.02. Application of
Proceeds. The
Collateral Agent shall apply the proceeds of any collection or sale of Pledged
Collateral, including any Pledged Collateral consisting of cash in accordance
with Section 8.03 of the Credit Agreement.
The
Collateral Agent shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Pledged Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Pledged Collateral so sold and such purchaser or purchasers
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shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication thereof.
The
Collateral Agent shall have no liability to any of the Secured Parties for
actions taken in reliance on information supplied to it as to the amounts of
unpaid principal and interest and other amounts outstanding with respect to the
Secured Obligations, provided that nothing in this
sentence shall prevent AGFC from contesting any amounts claimed by any Secured
Party in any information so supplied. All distributions made by the
Collateral Agent pursuant to this Section 3.02 shall be (subject to any decree
of any court of competent jurisdiction) final (absent manifest error), and the
Collateral Agent shall have no duty to inquire as to the application by the
Administrative Agent of any amounts distributed to it.
ARTICLE
IV
Miscellaneous
SECTION
4.01. Notices. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in Section 11.02 of the
Credit Agreement.
SECTION
4.02. Waivers,
Amendment. (d)
No failure or delay by any Secured Party in exercising any right, remedy, power
or privilege hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges of the Secured
Parties provided herein and under each other Loan Document, are cumulative and
are not exclusive of any rights, remedies, powers and privileges provided by
Law. No waiver of any provision of this Agreement or consent to any
departure by AGFC therefrom shall in any event be effective unless the same
shall be permitted by Section 4.02(b), and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making
of a Loan shall not be construed as a waiver of any Default, regardless of
whether any Secured Party may have had notice or knowledge of such Default at
the time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Collateral Agent and AGFC, subject to any consent required in accordance with
Section 11.01 of the Credit Agreement.
SECTION
4.03. Collateral Agent’s Fees and
Expenses; Indemnification. (e)
The parties hereto agree that the Collateral Agent shall be entitled to
reimbursement of its reasonable out-of-pocket expenses incurred hereunder and
indemnity for its actions in connection herewith, in each case, as provided in
Section 11.04 of the Credit Agreement.
(b) Any
such amounts payable as provided hereunder shall be additional Secured
Obligations secured hereby. The provisions of this Section 4.03 shall
remain operative and in full force and effect regardless of the termination of
this Agreement or any other Loan Document, the consummation of the transactions
contemplated hereby, the repayment of any of the Secured Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the Collateral
Agent or any other Secured Party. All amounts due under this Section
4.03 shall be payable within 5 Business Days of written demand
therefor.
SECTION
4.04. Successors and
Assigns. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
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SECTION
4.05. Survival of
Agreement. All
covenants, agreements, representations and warranties made by AGFC hereunder and
in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the Secured Parties and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and the
provision of services, regardless of any investigation made by any Secured Party
or on its behalf and notwithstanding that any Secured Party may have had notice
or knowledge of any Default at the time any credit is extended under the Credit
Agreement, and shall continue in full force and effect as long as this Agreement
has not been terminated or released pursuant to Section 4.12 below.
SECTION
4.06. Counterparts; Effectiveness,
Several Agreement. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Delivery by facsimile or other electronic communication
of an executed counterpart of a signature page to this Agreement shall be
effective as delivery of an original executed counterpart of this
Agreement. This Agreement shall become effective as to AGFC when a
counterpart hereof executed on behalf of AGFC shall have been delivered to the
Collateral Agent and a counterpart hereof shall have been executed on behalf of
the Collateral Agent, and thereafter shall be binding upon AGFC and the
Collateral Agent and their respective permitted successors and assigns, and
shall inure to the benefit of AGFC, the Collateral Agent and the other Secured
Parties and their respective permitted successors and assigns, except that AGFC
shall not have the right to assign or transfer its rights or obligations
hereunder or any interest herein or in the Pledged Collateral (and any such
assignment or transfer shall be void) except as expressly contemplated by this
Agreement or the Credit Agreement.
SECTION
4.07. Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby. The invalidity
of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION
4.08. Right of
Set-Off. In
addition to any rights and remedies of the Secured Parties provided by Law, upon
the occurrence and during the continuance of any Event of Default, each Secured
Party and its Affiliates is authorized at any time and from time to time,
without prior notice to AGFC, any such notice being waived by AGFC to the
fullest extent permitted by applicable Law, to set-off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other Indebtedness at any time owing by, such Secured Party and its
Affiliates to or for the credit or the account of AGFC against any and all
Secured Obligations owing to such Secured Party and its Affiliates hereunder,
now or hereafter existing, irrespective of whether or not such Secured Party or
Affiliate shall have made demand under this Agreement and although such Secured
Obligations may be contingent or unmatured or owed to a branch or office holding
such deposit or obligation or such Indebtedness. The rights of each
Secured Party and their respective Affiliates under this Section 4.08 are in
addition to other rights and remedies (including other rights of set-off that
such Secured Party or its respective Affiliates may have. Each
Secured Party agrees promptly to notify AGFC and the Collateral Agent after any
such set-off and application made by such Secured Party; provided, that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of each Secured Party under this Section 4.08
are in addition to other rights and remedies (including other rights of set-off)
that such Secured Party may have at Law.
SECTION
4.09. Governing Law; Jurisdiction;
Venue; Waiver of Jury Trial; Consent to Service of Process.
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(a) The
terms of Sections 11.14 and 11.15 of the Credit Agreement with respect to
governing law, submission of jurisdiction, venue and waiver of jury trial are
incorporated herein by reference, mutatis mutandis, and the
parties hereto agree to such terms.
(b) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 4.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by Law.
SECTION
4.10. Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION
4.11. Security Interest
Absolute. To
the extent permitted by Law, all rights of the Collateral Agent hereunder, the
grant of a security interest in the Pledged Collateral and all obligations of
AGFC hereunder shall be absolute and unconditional irrespective of (a) any lack
of validity or enforceability of the Credit Agreement, any other Loan Document,
any agreement with respect to any of the Secured Obligations or any other
agreement or instrument relating to any of the foregoing, (b) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Secured Obligations, or any other amendment or waiver of or any consent to any
departure from the Credit Agreement, any other Loan Document or any other
agreement or instrument, (c) any exchange, release or non-perfection of any Lien
on other collateral, or any release or amendment or waiver of or consent under
or departure from any guarantee, securing or guaranteeing all or any of the
Secured Obligations or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, AGFC in respect of the
Secured Obligations or this Agreement.
SECTION
4.12. Termination or
Release. (f) This
Agreement and all security interests granted hereby shall terminate with respect
to all Secured Obligations and any Liens arising therefrom shall be
automatically released upon payment in full of all Obligations (other than
contingent obligations not yet accrued and payable).
(b) Upon
any sale or transfer by AGFC of any Pledged Collateral that is permitted under
the Credit Agreement (other than a sale or transfer to another Loan Party), or
upon the effectiveness of any written consent to the release of the security
interest granted hereby in any Pledged Collateral pursuant to Section 11.01 of
the Credit Agreement, the security interest in such Collateral shall be
automatically released.
(c) In
connection with any termination or release pursuant to Section 4.12 (b), the
Collateral Agent shall execute and deliver to AGFC, at AGFC’s expense, all
documents that AGFC shall reasonably request to evidence such termination or
release and shall perform such other actions reasonably requested by AGFC to
effect such release, including delivery of certificates, securities and
instruments. Any execution and delivery of documents pursuant to this
Section 4.12 shall be without recourse to or warranty by the Collateral
Agent.
SECTION
4.13. Collateral Agent Appointed
Attorney-in-Fact. AGFC
hereby appoints the Collateral Agent (and all officers, employees or agents
designated by the Collateral Agent) as the Borrower’s true and lawful agent (and
the attorney-in-fact) of AGFC for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument that the
Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof at any time after and during the continuance of an Event of Default,
which appointment is irrevocable and coupled with an interest (provided that the Collateral
Agent shall provide AGFC with notice thereof prior to exercising such
rights). Without limiting the generality of the foregoing, the
Collateral Agent shall have the right, upon the occurrence
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and during the continuance of an Event of Default
and notice by the Collateral Agent to AGFC of the Collateral Agent’s intent to
exercise such rights, with full power of substitution either in the Collateral
Agent’s name or in the name of AGFC (a) to receive, endorse, assign and/or
deliver any and all notes, acceptances, checks, drafts, money orders or other
evidences of payment relating to the Pledged Collateral or any part thereof; (b)
to demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Pledged Collateral; (c) to commence and prosecute
any and all suits, actions or proceedings at Law or in equity in any court of
competent jurisdiction to collect or otherwise realize on all or any of the
Pledged Collateral or to enforce any rights in respect of any Pledged
Collateral; (d) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to all or any of the Pledged Collateral; (e) to
endorse the name of AGFC on any check, draft, instrument or other item of
payment representing or included in the Pledged Collateral; (f) to make all
determinations and decisions with respect thereto; and (e) to use, sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with all
or any of the Pledged Collateral, and to do all other acts and things necessary
to carry out the purposes of this Agreement, as fully and completely as though
the Collateral Agent were the absolute owner of the Pledged Collateral for all
purposes; provided that
nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent, or to present or
file any claim or notice, or to take any action with respect to the Pledged
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the
other Secured Parties shall be accountable only for amounts actually received as
a result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to AGFC
for any act or failure to act hereunder, except for their own gross negligence,
bad faith, or willful misconduct or that of any of their Affiliates, directors,
officers, employees, counsel, agents or attorneys-in-fact, in each case, as
determined by a final nonappealable judgment of a court of competent
jurisdiction. All sums disbursed by the Collateral Agent in
connection with this paragraph, including reasonable attorneys’ fees, court
costs, expenses and other charges relating thereto, shall be payable, within 5
Business Days of demand, by AGFC to the Collateral Agent and shall be additional
Secured Obligations secured hereby.
SECTION
4.14. General Authority of the
Collateral Agent. By
acceptance of the benefits of this Agreement and any other Collateral Documents,
each Secured Party (whether or not a signatory hereto) shall be deemed
irrevocably (a) to consent to the appointment of the Collateral Agent as its
agent hereunder and under such other Loan Documents, (b) to confirm that the
Collateral Agent shall have the authority to act as the exclusive agent of such
Secured Party for the enforcement of any provisions of this Agreement and such
other Loan Documents against AGFC, the exercise of remedies hereunder or
thereunder and the giving or withholding of any consent or approval hereunder or
thereunder relating to any Pledged Collateral or AGFC’s obligations with respect
thereto, (c) to agree that it shall not take any action to enforce any
provisions of this Agreement or any other Loan Document against AGFC, to
exercise any remedy hereunder or thereunder or to give any consents or approvals
hereunder or thereunder except as expressly provided in this Agreement or any
other Loan Document and (d) to agree to be bound by the terms of this Agreement
and any other Loan Documents.
SECTION
4.15. Reasonable
Care. The
Collateral Agent is required to use reasonable care in the custody and
preservation of any of the Pledged Collateral in its possession; provided that the Collateral
Agent shall be deemed to have used reasonable care in the custody and
preservation of any of the Pledged Collateral, if such Pledged Collateral is
accorded treatment substantially similar to that which the Collateral Agent
accords its own property.
SECTION
4.16. Delegation;
Limitation. The
Collateral Agent may execute any of the powers granted under this Agreement and
perform any duty hereunder either directly or by or through agents or
attorneys-in-fact, and shall not be responsible for the gross negligence or
willful misconduct of any
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agents or attorneys-in-fact selected by it with reasonable care and without
gross negligence or willful misconduct.
SECTION
4.17. Reinstatement. The
obligations of AGFC under this Agreement shall be automatically reinstated if
and to the extent that for any reason any payment by or on behalf of the
Borrower or other Loan Party in respect of the Secured Obligations is rescinded
or must be otherwise restored by any holder of any of the Secured Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise.
SECTION
4.18. Miscellaneous. The
Collateral Agent shall not be deemed to have actual, constructive, direct or
indirect notice or knowledge of the occurrence of any Event of Default unless
and until the Collateral Agent shall have received a notice of Event of Default
or a notice from AGFC or the Secured Parties to the Collateral Agent in its
capacity as Collateral Agent indicating that an Event of Default has
occurred.
[Signature Pages
Follow.]
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first written above.
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AMERICAN
GENERAL FINANCE CORPORATION
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By:
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Name:
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Title:
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Signature
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BANK OF AMERICA,
N.A.,
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as
Collateral Agent
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By:
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Name:
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Title:
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Signature Page to Pledge
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PLEDGED
EQUITY
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Issuer
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Holder
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Certificate Number
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Shares
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Representing
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AGFS
Funding Company
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American
General Finance Corporation
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1
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10,000
shares of capital stock
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100%
of issued common; 20% of authorized
stock
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Schedule I-1
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EXHIBIT
F
FORM
OF INTERCOMPANY SECURED LOAN AGREEMENT
Form of Intercompany Note
INTERCOMPANY
SECURED LOAN AGREEMENT
This
INTERCOMPANY SECURED
LOAN AGREEMENT
("Agreement")
dated as of April 21, 2010, is by and between AGFS FUNDING COMPANY, a
Delaware corporation ("AGFS
Funding") as lender (in such capacity, the "Intercompany
Lender"), and each of the entities from time to time party hereto as
borrowers and each of the other entities that becomes a party hereto pursuant to
Section 5.6 (each a "Borrower",
and collectively the "Borrowers").
WHEREAS, each Borrower has
requested the Intercompany Lender to make extensions of credit to such Borrower
in the form of loans, and the Intercompany Lender is willing to make such loans,
subject to the terms and conditions hereof;
WHEREAS, the Intercompany
Lender and the Borrowers have entered into that certain Credit Agreement, dated
as of April 21, 2010 with Bank of America, N.A., as administrative agent (the
"Administrative
Agent") and the lenders party thereto from time to time (the "Credit
Agreement Lenders") (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms not herein defined are defined as used in
the Credit Agreement);
WHEREAS, it is a condition
precedent to obligations of the Credit Agreement Lenders to extend credit to
AGFS Funding under the Credit Agreement that the parties hereto execute and
deliver this Agreement;
WHEREAS, the Credit Agreement
requires that the loans made under this Agreement be on economic terms that are
at least as favorable to AGFS Funding as the terms of the Credit Agreement are
to the Credit Agreement Lenders;
NOW, THEREFORE, in
consideration of the mutual promises and covenants made herein, the parties
hereto, intending to be legally bound hereby, agree as follows:
SECTION
1. THE
LOANS
1.1. The
Borrowings.
(a) Subject
to the terms and conditions of this Agreement, the Borrowers agree that (x) they
will request loans (the "Loans")
in such amounts, and the Intercompany Lender agrees to make Loans in such
amounts, as shall be necessary to ensure compliance with the Borrowing Base and
other requirements under the Credit Agreement, including without limitation,
those requirements set out in Section 2.03(b) of the Credit Agreement and (y)
they shall from time to time pledge Loan Receivables to the Intercompany Lender
pursuant to the Intercompany Security Documents such that after applying the
percentage discounts in the definition of Borrowing Base in the Credit Agreement
to the Loan Receivables so pledged, the Borrowing Base is not less than the
outstanding principal amount of the Loans (as defined in the Credit
Agreement).
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(b) At
the time of each borrowing of Loans hereunder the relevant Borrowers shall
immediately become indebted to the Intercompany Lender for the amount of each
such borrowing.
(c) The
initial Loans being made hereunder on the Closing Date are shown on the schedule
attached hereto (the "Loan Schedule"), and
by execution of this Agreement each Borrower acknowledges receipt of the Loans
made to it as set forth on the Loan Schedule, and requests that the Intercompany
Lender transfer the amounts represented by such Loans to American General
Finance Corporation, an Indiana corporation ("AGFC") on its behalf,
for credit to the repayment of each such Borrower's intercompany loans with
AGFC.
(d) The
Intercompany Lender shall maintain a schedule in respect of each Borrower that
reflects the aggregate amount of Loans made to such Borrower hereunder at any
time (the "Intercompany Loan
Schedule").
1.2. Payment of
Interest. Interest on all Loans made pursuant to Section 1.1
shall bear interest upon the unpaid principal amounts thereof at the rate per annum equal to five
one-hundredths of one percent (0.05%) per annum in excess of the
Intercompany Lender�s effective cost of funds in connection with the
transactions under the Credit Agreement (but, in no event shall such rate be
higher than the maximum rate permitted by applicable law), with changes in the
Intercompany Lender's effective cost of funds to be adjusted from time to time
during the term of this Agreement to ensure that it reflects the Intercompany
Lender�s effective cost of funds in connection with the transactions under the
Credit Agreement from time to time, including pursuant to Section 2.06(b) of the
Credit Agreement at any time there is a Default or Event of Default continuing
under the Credit Agreement (but in no event higher than the maximum rate
permitted by applicable law). Interest shall be paid on or before
each Interest Payment Date, in arrears. Payment of interest under
this Agreement shall be calculated in accordance with Sections 2.08 and 2.10 of
the Credit Agreement.
1.3. Manner of
Payment. All payments to be made by any Borrower on account of
such borrowings hereunder shall be made without set-off or counterclaim in
lawful currency of the United States of America and in immediately available
funds.
1.4 Repayment. The
Borrower shall have the right to prepay the loans in whole at any time or in
part from time to time, without premium or penalty, but with the accrued
interest on the principal being repaid to the date of repayment, other than, in
the case of a prepayment of the Loans hereunder where the proceeds are being
used to prepay the loans made under the Credit Agreement, where such prepayment
of Loans on or prior to the first anniversary of the date of this Agreement
shall be accompanied by a premium payable by the relevant Borrowers to the
Intercompany Lender equal to 1.00% of the principal amount of the Loans so
prepaid.
1.5 Events of
Default. At any time when an Event of Default is continuing
under the Credit Agreement, the Intercompany Lender shall have the right to
demand immediate payment in full of the unpaid principal amount of all Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
under any Intercompany Loan Document, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly
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waived by each Borrower. Upon the
occurrence of any Event of Default under Section 8.01(e) of the Credit
Agreement, the unpaid principal amount of all outstanding Loans and all interest
and other amounts owing under all Intercompany Loan Documents shall
automatically become due and payable, without further act of the Intercompany
Lender or any other Person.
1.6 Security. Each
Borrower has granted a first priority Lien on and pledges all of its rights,
title and interest in its Eligible Loan Receivables, that, at any time of
determination, are in the Borrowing Base to the Intercompany Lender as security
for such loans granted under this Agreement and in connection with the
Intercompany Security Documents.
1.6 Maturity
Date. Unless earlier stated by the Intercompany Lender, the
Loans shall mature on the Maturity Date.
1.7 Certain Defined
Terms.
(a) �Intercompany Loan
Obligations� means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Borrower arising under any Intercompany Loan
Document or otherwise with respect to any Loan, in each case whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Borrower thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding.
(b) �Intercompany Loan
Documents� means this Agreement and the Intercompany Security
Documents.
SECTION
2. CONDITIONS PRECEDENT TO
BORROWINGS
The
obligation of the Intercompany Lender to make any Loan hereunder on the Closing
Date (but not thereafter) is subject to the satisfaction on or before the date
of any such borrowing of the following conditions precedent:
2.1 Representations and
Warranties. The representations and warranties of the relevant
Borrower contained in Section 3 hereof shall be true and correct in all material
respects on and as of the date of any such borrowing.
2.2. Performance; No
Default. Each relevant Borrower shall have performed and
complied with all agreements and conditions contained in this Agreement required
to be performed or complied with by it prior to or at the time of the borrowing,
and as of the date of the borrowing, no condition or event which constitutes a
default in the performance of its obligations under any Intercompany Loan
Document shall have occurred and be continuing.
2.3 Agreement and Additional
Matters. The Intercompany Lender shall have received, on or
prior to the date of such borrowing, (a) this Agreement, executed by a duly
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authorized officer of such Borrower, (b) executed
copies of the Intercompany Security Documents, each of which shall be in full
force and effect, (c) copies of UCC financing statements evidencing the
perfection of the Intercompany Lender's security interest in the Eligible Loan
Receivables securing the Loans pursuant to the Intercompany Security Documents,
and (d) such other documents which may be reasonably requested by the
Intercompany Lender.
SECTION
3. REPRESENTATIONS AND
WARRANTIES.
3.1 Organization. Each
Borrower is a corporation which has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction in which it is
incorporated, with the corporate power and authority to own its properties and
transact the business in which it is now engaged or in which it proposes to
engage.
3.2. No Conflict, Default or
Violation. Neither the execution and delivery of this
Agreement, nor the performance of any Borrower's obligations under this
Agreement, nor the consummation of the transactions herein contemplated shall
(a) conflict with or result in a breach of any of the terms or provisions of or
constitute a default under, with or without notice or lapse of time or both, any
indenture, contract, agreement, instrument or other undertaking to which any
Borrower is a party or by which it is bound or to which any of the property or
assets of such Borrower is subject, or result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever, upon any of the
property or assets of such Borrower, (b) result in any violation of the
provision of its articles of incorporation, by-laws or other governing
documents, or (c) conflict with or result in a breach of any provision of any
statute or any order, decree, judgment, rule or regulation of any court or any
regulatory authority or other governmental agency or body having jurisdiction
over such Borrower or any of its properties.
3.3. Due
Authorization. The execution and delivery by each Borrower of
this Agreement have been duly authorized by all requisite corporate action on
the part of the Borrower and such Agreement constitutes the valid and legally
binding obligation of such Borrower enforceable against the Borrower in
accordance with its terms, except that (a) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to certain equitable defenses and to the discretion of the court
before which any proceeding therefore may be brought.
SECTION
4. COVENANTS.
So long
as any indebtedness under this Agreement remains unpaid, and so long as the
Intercompany Lender shall have the obligation to make Loans hereunder, unless
the Intercompany Lender shall otherwise consent in writing, each Borrower
shall:
4.1. Corporate
Matters. Preserve and maintain its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary to the normal conduct of its business except for rights, privileges
and franchises the loss of which would not in the aggregate have a material
adverse effect on the business, operations or financial or other condition
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of the Borrower.
4.2. Inspection of Property;
Books and Records. Keep proper books or records and accounts
in which full, true and correct entries in conformity with sound business
practice and all requirements of law applicable to the Borrower shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of Intercompany Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable times and as often as the Intercompany Lender may reasonably
desire.
4.3. Further
Assurances. Take, or cause to be taken, all other actions
reasonably necessary or desirable to preserve and defend the rights of the
Intercompany Lender to payment hereunder, and to assure to the Intercompany
Lender the benefits hereof.
4.4. Use of
Proceeds. Each Borrower shall use the proceeds of such loans
in accordance with the terms of the Credit Agreement and the Intercompany
Security Documents.
SECTION
5. MISCELLANEOUS.
5.1. Entire Agreement;
Amendments. This Agreement and any other documents referred to
herein, contain the entire and only agreement between the Intercompany Lender
and each Borrower concerning the subject matter hereof, and any oral statements
or representations or prior written matter with respect thereto not contained
herein shall have no force and effect. Subject to the provisions of the Credit
Agreement, the provisions of this Agreement shall not be modified, amended or
waived save in writing, executed by all parties hereto.
5.2 Compliance of Credit
Agreement Terms. All parties to this agreement acknowledge and
agree that any Loan made to any Borrower will also be subject to the terms and
conditions of the Credit Agreement.
5.3. Failure to Act Not a
Waiver. Neither the failure nor any delay on the part of the
Intercompany Lender to exercise any right, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any further exercise of such
right, power or privilege or any exercise of any other right, power or
privilege.
5.4. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of, and be enforceable by, the Borrower and the Intercompany Lender,
their respective successors and assigns, except that no party may assign or
otherwise transfer any of its obligations, rights or interests in or to this
Agreement hereunder without the prior written consent of the other parties
hereto; provided that the Intercompany Lender shall not transfer this Agreement
to any other Person without the prior written consent of the Administrative
Agent.
5.5. Additional
Borrowers. If any Person becomes a Qualifying Subsidiary
Guarantor after the date hereof that is not already a Borrower hereunder, such
Person shall execute and deliver to the Intercompany Lender a joinder agreement
to this Agreement and shall thereafter
Form of Intercompany Note
F -
5
for all purposes be a Borrower hereunder and have
the same rights, benefits and obligations as a Borrower party hereto on the date
hereof.
5.6. Governing Law;
Severability. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, without giving effect to
the principles of conflicts of law thereof. In the case of any one or more of
the provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
5.7. Notices. All
notices required in writing under this Agreement shall be considered as having
been given by one party to the other upon the latter party's receipt of same.
All such notices shall be transmitted by registered or certified mail, by
facsimile or by personal delivery. Such written notice shall be sent
to the attention of the Treasurer and General Counsel of the relevant
party.
5.8 Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts (including by telecopy), each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be
detached from multiple counterparts and attached to a single counterpart so that
all signature pages are attached to the same document. Delivery of an
executed counterpart by telecopy shall be effective as delivery of a manually
executed counterpart.
5.9 Section
Headings. The section titles contained in this Agreement are,
and shall be, without substantive meaning or content of any kind whatsoever and
are not part of the agreement of the parties hereto.
[The Remainder of This Page is
Intentionally Blank]
Form of Intercompany Note
F -
6
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed and delivered by their
proper and duly authorized officers, upon the date first above
written.
|
AGFS
FUNDING COMPANY,
|
||
|
as
Intercompany Lender
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF ALABAMA, INC. (DE)
|
||
|
AMERICAN
GENERAL AUTO FINANCE, INC. (DE)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (AZ)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (DE)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES (NH), INC. (DE)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (MA)
|
||
|
AMERICAN
GENERAL FINANCE, INC. (FL)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF ILLINOIS, INC. (IL)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (IN)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF LOUISIANA, INC. (LA)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF ARKANSAS, INC. (DE)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (NY)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (NC)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (OH)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (PA)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (SC)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (TX)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (WA)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF WISCONSIN, INC. (WI)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC.
(WY)
|
||
[Signature
Page to Intercompany Secured Loan
Agreement]
Form of Intercompany Note
F -
7
|
AMERICAN
GENERAL CONSUMER DISCOUNT COMPANY (PA)
|
||
|
AMERICAN
GENERAL AUTO FINANCE, INC. (TN)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF HAWAII, INC. (HI)
|
||
|
AMERICAN
GENERAL FINANCE OF UTAH, INC. (UT)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (DE)
|
||
|
AMERICAN
GENERAL HOME EQUITY, INC. (DE)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (IA)
|
||
|
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (NC)
|
||
|
AMERICAN
GENERAL HOME EQUITY, INC. (WV)
|
||
|
MOREQUITY,
INC. (NV)
|
||
|
AMERICAN
GENERAL FINANCE, INC. (NV)
|
||
|
AMERICAN
GENERAL FINANCE COMMERCIAL CORP. (IN)
|
||
|
AG
FINANCIAL SERVICES, INC. (IN)
|
||
|
SERVICE
BUREAU OF INDIANA, INC. (IN)
|
||
|
AG
DOCUMENTATION SERVICES, INC. (CA)
|
||
|
AMERICAN
GENERAL FINANCE MANAGEMENT CORPORATION (IN)
|
||
|
AGF
FUNDING, INC.
|
||
|
AGFS
CASH SERVICES, INC. (DE) as Borrowers
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[Signature
Page to Intercompany Secured Loan Agreement]
Form of Intercompany Note
F -
8
Loan
Schedule
|
Entity
Name
|
#
Accts
|
Eligible
Loan Receivables Pledged
|
Required
Borrowing Base
|
Intercompany
Secured Loans
|
|||||||||||
|
American
General Auto Finance, Inc. (DE)
|
2,880 | $ | 30,847,356.31 | $ | 9,254,206.89 | $ | 9,254,206.89 | ||||||||
|
American
General Auto Finance, Inc. (TN)
|
5,883 | 68,204,320.96 | 20,461,296.29 | 20,461,296.29 | |||||||||||
|
American
General Consumer Discount Company (PA)
|
33,969 | 123,563,068.37 | 37,640,938.02 | 37,640,938.02 | |||||||||||
|
American
General Finance Commercial Corp. (IN)
|
62 | 777,313.79 | 290,294.63 | 290,294.63 | |||||||||||
|
American
General Finance, Inc. (FL)
|
18,704 | 80,017,727.10 | 24,005,318.13 | 24,005,318.13 | |||||||||||
|
American
General Financial Services (NH), Inc. (DE)
|
1,347 | 22,984,519.29 | 9,081,085.82 | 9,081,085.82 | |||||||||||
|
American
General Financial Services of Alabama, Inc. (DE)
|
17,917 | 191,808,951.46 | 75,077,521.12 | 75,077,521.12 | |||||||||||
|
American
General Financial Services of America, Inc. (DE)
|
72,071 | 189,571,322.51 | 57,099,014.32 | 57,099,014.32 | |||||||||||
|
American
General Financial Services of America, Inc. (IA)
|
1,755 | 3,287,358.83 | 988,156.08 | 988,156.08 | |||||||||||
|
American
General Financial Services of America, Inc. (NC)
|
59,294 | 179,795,502.55 | 53,941,571.41 | 53,941,571.41 | |||||||||||
|
American
General Financial Services of Hawaii, Inc. (HI)
|
4,148 | 32,605,872.20 | 11,462,214.74 | 11,462,214.74 | |||||||||||
|
American
General Financial Services of Illinois, Inc. (IL)
|
55,358 | 410,251,160.82 | 151,306,110.33 | 151,306,110.33 | |||||||||||
|
American
General Financial Services of Louisiana, Inc. (LA)
|
17,593 | 183,101,835.38 | 69,179,927.02 | 69,179,927.02 | |||||||||||
|
American
General Financial Services of Wisconsin, Inc. (WI)
|
15,442 | 76,562,836.77 | 27,077,751.39 | 27,077,751.39 | |||||||||||
|
American
General Financial Services, Inc. (AZ)
|
12,002 | 42,250,661.47 | 12,682,910.47 | 12,682,910.47 | |||||||||||
Form of Intercompany Note
F -
9
|
Entity
Name
|
#
Accts
|
Eligible
Loan Receivables Pledged
|
Required
Borrowing Base
|
Intercompany
Secured Loans
|
|||||||||||
|
American
General Financial Services, Inc. (DE)
|
281,072 | 2,956,653,580.23 | 1,114,729,067.85 | 1,114,729,067.85 | |||||||||||
|
American
General Financial Services, Inc. (IN)
|
35,223 | 325,870,486.44 | 122,822,323.67 | 122,822,323.67 | |||||||||||
|
American
General Financial Services, Inc. (NC)
|
14,241 | 498,770,873.43 | 199,655,267.35 | 199,655,267.35 | |||||||||||
|
American
General Financial Services, Inc. (NY)
|
14,436 | 44,249,238.23 | 13,274,771.47 | 13,274,771.47 | |||||||||||
|
American
General Financial Services, Inc. (OH)
|
43,270 | 416,377,783.80 | 160,260,772.08 | 160,260,772.08 | |||||||||||
|
American
General Financial Services, Inc. (PA)
|
5,720 | 260,041,692.37 | 105,726,108.12 | 105,726,108.12 | |||||||||||
|
American
General Financial Services, Inc. (SC)
|
32,059 | 325,205,150.90 | 120,346,978.37 | 120,346,978.37 | |||||||||||
|
American
General Financial Services, Inc. (TX)
|
36,763 | 368,907,045.30 | 137,614,697.16 | 137,614,697.16 | |||||||||||
|
American
General Financial Services, Inc. (WA)
|
20,734 | 245,475,915.60 | 91,207,039.45 | 91,207,039.45 | |||||||||||
|
American
General Financial Services, Inc. (WY)
|
1,910 | 13,467,769.72 | 5,012,568.82 | 5,012,568.82 | |||||||||||
|
American
General Home Equity, Inc. (DE)
|
12,720 | 620,032,974.57 | 246,836,479.51 | 246,836,479.51 | |||||||||||
|
American
General Home Equity, Inc. (WV)
|
11,532 | 89,265,523.34 | 34,167,431.25 | 34,167,431.25 | |||||||||||
|
Grand
Total
|
828,105 | $ | 7,799,947,841.74 | $ | 2,911,201,821.76 | $ | 2,911,201,821.76 | ||||||||
Subsidiary Guarantors with
no Eligible Loan Receivables in Required Borrowing Base:
|
AGF
Funding, Inc. (DE)
|
American
General Finance of Utah, Inc. (UT)
|
|
|
American
General Finance Management Corporation (IN)
|
American
General Financial Services, Inc. (MA)
|
|
|
American
General Financial Services of Arkansas, Inc. (DE)
|
MorEquity,
Inc. (NV)
|
|
|
AGFS
Cash Services, Inc. (DE)
|
Form of Intercompany Note
F -
10
|
American
General Finance Commercial Corp. (IN)
|
AG
Financial Services, Inc. (IN)
|
|
|
Service
Bureau of Indiana, Inc. (IN)
|
AG
Documentation Services, Inc. (CA)
|
|
|
AGFS
Cash Services, Inc. (DE)
|
Form of Intercompany Note
F -
11
EXHIBIT
G
FORM
OF INTERCOMPANY SECURITY AGREEMENT
SECURITY
AGREEMENT
Dated
as of
April 21, 2010
among
Each
Grantor Listed on the Signature Pages Hereto
as
a Grantor
and
Each
Other Grantor
From
Time to Time Party Hereto
and
AGFS
Funding Company
as
the Secured Party
Form
of Intercompany Security Agreement
SECURITY
AGREEMENT
Security
Agreement, dated
as of April 21, 2010 (this "Agreement"),
by each Grantor listed on the signature pages hereto and each of the other
entities that becomes a party hereto pursuant to Section 6.8 (
Additional Grantors) (each a "Grantor"
and, collectively, the "Grantors"),
in favor of AGFS Funding Company, a Delaware corporation ("AGFS
Funding"), as secured party (in such capacity, the "Secured
Party").
W
i t n e s s e t h:
Whereas, pursuant to
the Credit Agreement, dated as of the date hereof (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among, inter alios, AGFS Funding, as
borrower (in such capacity, the "Borrower"),
the Guarantors listed therein, the Lenders from time to time party thereto, and
Bank of America, N.A., as administrative agent for the Lenders, (i) the Lenders
have severally agreed to make extensions of credit to the Borrower upon the
terms and subject to the conditions set forth therein and (ii) the Grantors have
guaranteed the Obligations of the Borrower thereunder;
Whereas, the Grantors
are party to an Intercompany Secured Loan Agreement pursuant to which the
Borrower shall use the proceeds of the Loans made to it under the Credit
Agreement to make loans to the Grantors; and
Whereas, it is a
condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the
Grantors shall have executed and delivered this Agreement to the Secured Party
to secure their respective obligations under the Intercompany Secured Loan
Agreement;
Now, therefore, in
consideration of the premises and to induce the Lenders, and the Secured Party
to enter into the Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrower thereunder, each Grantor hereby
agrees with the Secured Party as follows:
|
|
ARTICLE I
|
Defined
Terms
|
|
|
Section
1.1
|
Definitions
|
(a) Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
have the meanings given to them in the Credit Agreement.
(b) The
following terms shall have the following meanings:
"Agreement"
means this Security Agreement.
"Collateral"
has the meaning specified in
Section 2.1 (
Collateral).
"Excluded
Property" means, at any time of determination, those Loan Receivables of
the Grantors that (i) are pledged to a third party pursuant to an Alternate
Transaction permitted by Section 7.05 of the Credit Agreement or (ii) are not
identified as being included in the Borrowing Base (prior to giving effect to
any percentage discounts in the definition of the term Borrowing Base in the
Credit Agreement) in the supporting documentation for the most recent Borrowing
Base Certificate delivered to the Administrative Agent under the Credit
Agreement; provided,
however, "Excluded
Property" shall not include any substitutions or
Form
of Intercompany Security Agreement
G -
1
SECURITY
AGREEMENT
replacements
of Excluded Property (unless such substitutions or replacements would constitute
Excluded Property); and provided, further, that Excluded
Property shall not include any Loan Receivables identified as being included in
the Required Borrowing Base on the most recent Borrowing Base Certificate
delivered to the Administrative Agent under the Credit Agreement.
"UCC"
means the Uniform Commercial Code as from time to time in effect in the State of
New York; provided,
however, that, in the
event that, by reason of mandatory provisions of law, any of the attachment,
perfection or priority of the Secured Party's and the Secured Parties� security
interest in any Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, the term "UCC"
shall mean the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such
provisions.
|
|
Section
1.2
|
Certain
Other Terms
|
(a) In
this Agreement, in the computation of periods of time from a specified date to a
later specified date, the word "from"
means "from and
including" and the words "to"
and "until"
each mean "to but
excluding" and the word "through"
means "to and
including."
(b) The
terms "herein," "hereof," "hereto"
and "hereunder"
and similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(c) The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(d) Where
the context requires, provisions relating to any Collateral, when used in
relation to a Grantor, shall refer to such Grantor's Collateral or any relevant
part thereof.
(e) Any
reference in this Agreement to the Intercompany Secured Loan Document shall
include all appendices, exhibits and schedules thereto, and, unless specifically
stated otherwise all amendments, restatements, supplements or other
modifications thereto, and as the same may be in effect at any time such
reference becomes operative.
(f)
The term "including"
means "including
without limitation" except when used in the computation of time
periods.
(g) The
terms "Lender"
and "Secured
Party" include their respective successors.
(h) References
in this Agreement to any statute shall be to such statute as amended or modified
and in effect from time to time.
Form
of Intercompany Security Agreement
G -
2
SECURITY
AGREEMENT
|
|
ARTICLE II
|
Grant of Security
Interest
|
|
|
Section
2.1
|
Collateral
|
For the
purposes of this Agreement, all of the following property now owned or at any
time hereafter acquired by a Grantor or in which a Grantor now has or at any
time in the future may acquire any right, title or interests is collectively
referred to as the "Collateral":
(a) all
Loan Receivables;
(b) all
General Intangibles, Instruments and Supporting Obligations (as each such term
is defined in the UCC) evidencing or relating to any Loan Receivables pledged
hereunder; and
(c)
to the extent not otherwise
included, all Proceeds of such Loan Receivables;
provided, however, that
"Collateral"
shall not include any Excluded Property; and provided, further, that if and when any
property shall cease to be Excluded Property, such property shall be deemed at
all times from and after the date hereof to constitute Collateral.
|
|
Section
2.2
|
Grant
of Security Interest in Collateral
|
Each
Grantor, as collateral security for the full, prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Intercompany Loan Obligations (as such term is defined in the
Intercompany Secured Loan Agreement), hereby mortgages, pledges and hypothecates
to the Secured Party for the benefit of such Secured Party, and grants to the
Secured Party for the benefit of such Secured Party a lien on and security
interest in, all of its right, title and interest in, to and under the
Collateral of such Grantor; provided, however, that, (i) if and
when any property that at any time constituted Excluded Property becomes
Collateral, the Secured Party shall have, and at all times from and after the
date hereof be deemed to have had, a security interest in such property and (ii)
as set forth in Section 6.9 (Release of Collateral)
hereof, if and when any property that at any time previously constituted
Collateral becomes Excluded Property, the lien and security interest granted
hereunder shall automatically terminate with respect to such
Collateral.
|
|
ARTICLE
III
|
Representations and
Warranties
|
To induce
the Secured Party to enter into this Agreement, each Grantor hereby represents
and warrants each of the following to the Secured Party:
|
|
Section
3.1
|
Title;
No Other Liens
|
Except
for the lien granted to the Secured Party pursuant to this Agreement and the
other liens permitted to exist on the Collateral under the Intercompany Secured
Loan Document, such Grantor has rights in or the power to transfer each other
item of Collateral in which a lien is granted by it hereunder, free and clear of
any other lien.
Form
of Intercompany Security Agreement
G -
3
SECURITY
AGREEMENT
|
|
Section
3.2
|
Perfection
and Priority
|
The
security interest granted pursuant to this Agreement shall constitute a valid
and continuing perfected security interest in favor of the Secured Party in the
Collateral for which perfection is governed by the UCC in the case of all
Collateral in which a security interest may be perfected by filing a financing
statement under the UCC. Such security interest shall be prior to all
other liens on the Collateral except for Liens having priority over the Secured
Party's lien by operation of applicable law. Each Grantor represents
and warrants that all financing statements, agreements, instruments and other
documents necessary to perfect security interest referred to above have been
delivered to the Secured Party in completed and, to the extent necessary or
appropriate, duly executed form for filing in each relevant
jurisdiction. Each Grantor agrees that at the sole cost and expense
of the Grantors, such Grantor will maintain the security interest created by
this Agreement in the Collateral as a perfected first priority security interest
subject only to Liens permitted by the Credit Agreement. Each Grantor
hereby irrevocably authorizes the Secured Party at any time and from time to
time to file in any relevant jurisdiction any financing statements and
amendments thereto that contain the information required by Article 9 of the
Uniform Commercial Code of each applicable jurisdiction for the filing of any
financing statement or amendment relating to the Collateral describing the
Collateral in a manner reasonably acceptable to the Secured Party.
|
|
ARTICLE IV
|
Covenants
|
Each
Grantor agrees with the Secured Party that, as long as any obligation under the
Intercompany Secured Loan Agreement remains outstanding, such Grantor shall not
use or permit any Collateral to be used unlawfully or in violation of any
provision of any requirement of applicable law. Promptly upon request
by the Secured Party, (a) correct any material defect or error that may be
discovered in any Intercompany Security Document or in the execution,
acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, certificates, assurances and other instruments as the
Secured Party may reasonably require from time to time in order to (i) carry out
more effectively the purposes of the Intercompany Security Documents, (ii)
perfect and maintain the validity, effectiveness and priority of any of the
Intercompany Security Documents and any of the liens intended to be created
thereunder and (iii) assure, convey, grant, assign, transfer, preserve, protect
and confirm more effectively unto the Secured Party the rights granted or now or
hereafter intended to be granted to the Secured Party under any Intercompany
Security Document or under any other instrument executed in connection with any
Intercompany Security Document to which any Grantor is or is to be a
party.
|
|
ARTICLE V
|
Remedial
Provisions
|
|
|
Section
5.1
|
Code
and Other Remedies
|
During
the continuance of an Event of Default, the Secured Party may exercise, in
addition to all other rights and remedies granted to it in this Agreement and in
any other instrument or agreement securing, evidencing or relating to the
obligations under any Intercompany Secured Loan Agreement, all rights and
remedies of a secured party under the UCC or any other applicable
law. Without limiting the generality of the foregoing, the Secured
Party, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Grantor
Form
of Intercompany Security Agreement
G -
4
SECURITY
AGREEMENT
or
any other person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon any Collateral, and may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver any Collateral (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, at any exchange, broker's board or
office of the Secured Party or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. The
Secured Party shall have the right upon any such public sale or sales, and, to
the extent permitted by the UCC and other applicable law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption of any Grantor, which right or equity is
hereby waived and released. Each Grantor further agrees, at the
Secured Party's request, to assemble the Collateral and make it available to the
Secured Party at places that the Secured Party shall reasonably select, whether
at such Grantor's premises or elsewhere. The Secured Party shall
apply the net proceeds of any action taken by it pursuant to this
Section
5.1, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any
Collateral or in any way relating to the Collateral or the rights of the Secured
Party, including reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Intercompany Loan Obligations, in such order as such
Intercompany Secured Loan Agreements shall prescribe, and only after such
application and after the payment by the Secured Party of any other amount
required by any provision of law, need the Secured Party account for the
surplus, if any, to any Grantor. To the extent permitted by
applicable law, each Grantor waives all claims, damages and demands it may
acquire against the Secured Party arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other
disposition.
|
|
Section
5.2
|
Accounts
and Payments in Respect of General
Intangibles
|
In
addition to, and not in substitution for, any similar requirement in any
Intercompany Secured Loan Agreement, if required by the Secured Party at any
time during the continuance of a default or breach of the agreements of any
Grantor under the Intercompany Secured Loan Agreement, any payment in respect of
the Collateral shall be held by each Grantor in trust for the Secured Party,
segregated from other funds of such Grantor.
|
|
Section
5.3
|
Proceeds
to be Turned Over To Secured Party
|
Any
Proceeds while held by the Secured Party (or by such Grantor in trust for the
Secured Party) shall be held as collateral security for the obligations under
the Intercompany Secured Loan Agreement and shall not constitute payment thereof
until applied as provided in the Intercompany Secured Loan
Agreement.
|
|
ARTICLE VI
|
Miscellaneous
|
|
|
Section
6.1
|
Amendments
in Writing
|
Subject
to any restrictions contained in the Credit Agreement, none of the terms or
provisions of this Agreement may be waived, amended, supplemented or otherwise
modified except by written instrument by the Secured Party and the
Grantors.
Form
of Intercompany Security Agreement
G -
5
SECURITY
AGREEMENT
|
|
Section
6.2
|
Successors
and Assigns
|
This
Agreement shall be binding upon the successors and assigns of each Grantor and
shall inure to the benefit of the Secured Party and each other Secured Party and
their successors and assigns; provided, however, that no Grantor may
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Secured Party, and the
Secured Party may not transfer any of its rights or obligations hereunder to any
Person.
|
|
Section
6.3
|
Counterparts
|
This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts (including by telecopy), each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be
detached from multiple counterparts and attached to a single counterpart so that
all signature pages are attached to the same document. Delivery of an
executed counterpart by telecopy shall be effective as delivery of a manually
executed counterpart.
|
|
Section
6.4
|
Severability
|
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
|
|
Section
6.5
|
Section
Headings
|
The
Article and Section titles contained in this Agreement are, and shall be,
without substantive meaning or content of any kind whatsoever and are not part
of the agreement of the parties hereto.
|
|
Section
6.6
|
Entire
Agreement
|
This
Agreement together with the Intercompany Security Documents represents the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.
|
|
Section
6.7
|
Governing
Law
|
This
Agreement and the rights and obligations of the parties hereto shall be governed
by, and construed and interpreted in accordance with, the law of the State of
New York.
|
|
Section
6.8
|
Additional
Grantors
|
If any
Person becomes a Qualifying Subsidiary Guarantor after the Closing Date that is
not a Grantor hereunder, such Person to become a Grantor hereunder, such Person
shall execute and deliver to the Secured Party a joinder agreement to this
Agreement and shall
Form
of Intercompany Security Agreement
G -
6
SECURITY
AGREEMENT
thereafter
for all purposes be a party hereto and have the same rights, benefits and
obligations as a Grantor party hereto on the Closing Date.
|
|
Section
6.9
|
Release
of Collateral
|
At any
time when any Loan Receivable shall (i) be pledged to a third party pursuant to
an Alternate Transaction permitted by Section 7.05 of the Credit Agreement or
(ii) otherwise not be identified as being included in the Borrowing Base on the
most recent Borrowing Base Certificate delivered to the Administrative Agent
under the Credit Agreement, and therefore be deemed Excluded Property, such Loan
Receivable (and its related General Intangibles, Instruments, Supporting
Obligations and Proceeds) shall be released from the Lien created hereby and
this Agreement and all obligations (other than those expressly stated to survive
such termination) of the Secured Party and the Grantor to which such Loan
Receivable is attributable hereunder shall terminate (with respect to such Loan
Receivable), all without delivery of any instrument or performance of any act by
any party, and all rights to such Loan Receivable shall revert to its respective
Grantor. At the request and sole expense of any Grantor following any
such automatic release and termination, the Secured Party shall execute and
deliver to such Grantor such documents as such Grantor shall reasonably request
to evidence such termination. At the request of the Secured Party at
any time and from time to time, each Grantor shall provide to the Secured Party
the supporting documentation for the most recent Borrowing Base Certificate, and
such information shall be made available to the Administrative Agent upon its
written request.
[Signature
Pages Follow]
Form
of Intercompany Security Agreement
G -
7
SECURITY
AGREEMENT
In witness whereof,
each of the undersigned has caused this Security Agreement to be duly executed
and delivered as of the date first above written.
|
AMERICAN
GENERAL FINANCIAL SERVICES OF ALABAMA, INC. (DE)
|
|
|
AMERICAN
GENERAL AUTO FINANCE, INC. (DE)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES,
INC.
(AZ)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (DE)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES (NH), INC. (DE)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (MA)
|
|
|
AMERICAN
GENERAL FINANCE, INC. (FL)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF ILLINOIS, INC. (IL)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (IN)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF LOUISIANA, INC. (LA)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF ARKANSAS, INC. (DE)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (NY)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (NC)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (OH)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (PA)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (SC)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (TX)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (WA)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF WISCONSIN, INC. (WI)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES, INC. (WY)
|
|
|
AMERICAN
GENERAL CONSUMER DISCOUNT COMPANY (PA)
|
|
|
AMERICAN
GENERAL AUTO FINANCE, INC. (TN)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF HAWAII, INC. (HI)
|
|
|
AMERICAN
GENERAL FINANCE OF UTAH, INC. (UT)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (DE)
|
|
|
AMERICAN
GENERAL HOME EQUITY, INC. (DE)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (IA)
|
|
|
AMERICAN
GENERAL FINANCIAL SERVICES OF AMERICA, INC. (NC)
|
|
|
AMERICAN
GENERAL HOME EQUITY, INC. (WV)
|
|
|
MOREQUITY,
INC. (NV)
|
|
|
AMERICAN
GENERAL FINANCE, INC. (NV)
|
|
|
AMERICAN
GENERAL FINANCE COMMERCIAL CORP. (IN)
|
|
|
AG
FINANCIAL SERVICES, INC. (IN)
|
[Signature Page to Security
Agreement]
Form
of Intercompany Security Agreement
G -
8
SECURITY
AGREEMENT
|
SERVICE
BUREAU OF INDIANA, INC. (IN)
|
|
|
AG
DOCUMENTATION SERVICES, INC. (CA)
|
|
|
AMERICAN
GENERAL FINANCE MANAGEMENT CORPORATION (IN)
|
|
|
AGF
FUNDING, INC.
|
|
|
AGFS
CASH SERVICES, INC. (DE)
|
|
|
as
Grantor
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
Accepted
and Agreed
as of the
date first above written:
AGFS Funding
Company,
as
Secured Party
|
By:
|
||
|
Name:
|
||
|
Title:
|
[Signature Page to Security
Agreement]
Form of Intercompany
Security Agreement
G -
9
EXHIBIT
H
FORM OF REQUIRED LEGAL OPINIONS8
State Corporate Law/UCC
Opinions
1. Each
of AGFC, the Borrower and each Subsidiary Guarantor is duly organized and
validly existing under the laws of its state of organization or formation and is
in good standing.
2. The
execution, delivery and performance of each of the Loan Documents to be entered
into by each Loan Party and the transactions contemplated thereby (including, in
the case of Borrower, the borrowing of Loans) are within such Loan Party’s
powers and have been duly authorized by all necessary action on the part of such
Loan Party. Each Loan Document has been duly executed and delivered
by each Loan Party which is a party to it.
3. The
execution, delivery and performance of each of the Loan Documents and
consummation of the transactions contemplated thereby (including the borrowing
of Loans) (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except (i) such as
have been obtained or made and are in full force and effect and (ii) filings
necessary to perfect Liens created by the Loan Documents, (b) will not violate
the Organization Documents of any Loan Party and (c) will not violate any law,
statute, rule or regulation or any judgment, decree or order of any Governmental
Authority known to us to be applicable to any Loan Party (other than state and
federal securities laws and “blue sky” laws.
4. The
Financing Statement in in proper form for filing in the Office of Secretary of
State of the State of Indiana, and upon the filing in such office, the security
interest created by the Pledge Agreement on the Pledged Collateral (as such term
is defined in the Pledge Agreement) in favor of the Collateral Agent for the
benefit of the Secured Parties will be duly perfected to the extent that the
filing of a financing statement under the provisions of the UCC is effective to
perfect a security interest in such Pledged Collateral.
New York
Contract/Federal/Delaware Opinions9
1. Each
Loan Document constitutes the legal, valid and binding obligation of such Loan
Party, enforceable against each such Loan Party in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
|
8
|
Capitalized
terms used and not defined herein are used with the meanings assigned to
such terms in the Credit Agreement.
|
|
9
|
Add
opinions 1 and 2 from State Corporate Law
opinions.
|
H-1
Form of
Required Legal Opinions
2. The
making of the Loans under the Credit Agreement, the use of proceeds
therefrom or the pledge of the Pledged Equity pursuant to the Pledge
Agreement (a) will not violate any law, statute, rule or regulation of the State
of New York or the United States or the DGCL or any judgment, decree or order of
any Governmental Authority of the State of New York or the United States known
to us to be applicable to any Loan Party, (b) will not violate or result in a
default or require any consent or approval under any Material Contract10, except for
violations, defaults or the creation of such rights that could not reasonably be
expected to result in a Material Adverse Effect, and (d) will not result in the
creation or imposition of any Lien on any property of any Loan, except Liens
created by the Loan Documents and Liens permitted under the Credit
Agreement.
3. Except
as set forth on a schedule to the legal opinion, to the knowledge of such
counsel, there are no actions, suits or proceedings at law or in equity by or
before any Governmental Authority now pending or threatened against or affecting
any Loan Party or any business, property or rights of any Loan Party (i) that
involve any Loan Document or (ii) as to which there is a reasonably possibility
of an adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect.
4. Neither
the making of the Loans under the Credit Agreement, the use of proceeds
therefrom or the pledge of the Pledged Equity pursuant to the Pledge
Agreement will violate or be inconsistent with the provisions of Regulation T, U
or X.
5. No
Loan Party is an “investment company” or a company “controlled” by an
“investment company,” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.
6. The
Pledge Agreement is effective to create in favor of the Collateral Agent for the
benefit of the Secured Parties, legal, valid and enforceable Liens on and and
security interests in the Pledged Collateral.
7. Upon
delivery to the Collateral Agent in the State of New York of the certificates
representing the Pledged Equity in registered form, indorsed in blank by an
effective indorsement or accompanied by undated stock powers with respect
thereto duly indorsed in blank by an effective indorsement, the Collateral Agent
will have control (within the meaning of the UCC) of the Pledged Equity for the
benefit of the Secured Parties under the UCC. Assuming neither the
Collateral Agent nor any of the Secured Parties has notice of any adverse claim
(within the meaning of the UCC) to the Pledged Equity, the Collateral Agent will
acquire the security interest in the Pledged Equity for the benefit of the
Secured Parties free of any adverse claim.
8. A
federal or state court sitting in New York will honor the parties’ choice of
internal laws of the State of New York as the law applicable to the Loan
Documents (to the extent set forth in such Loan Documents).
|
10
|
To
be set forth on a schedule to the
opinion.
|
H-2
Form of
Required Legal Opinions
In
rendering the opinion, counsel may rely as to matters of fact (but not as to
legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Loan Parties and public officials. The
opinion may contain such qualifications and assumptions as are customary for the
Administrative Agent for transactions of this type and are otherwise
satisfactory to counsel for the Administrative Agent. The opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). The opinion shall state that
Lenders and their permitted assignees may rely on the opinion.
H-3
Form of
Required Legal Opinions
EXHIBIT
I
FORM
OF BORROWING BASE CERTIFICATE
This
Borrowing Base Certificate is being executed and delivered pursuant to Section
[4.01(a)(x)][6.02(e)[(i)][(ii)][(iii)]] of that certain Credit Agreement, dated
as of April 21, 2010, among AGFS FUNDING COMPANY, a Delaware corporation (the
“Borrower”),
AMERICAN GENERAL FINANCE CORPORATION, an Indiana corporation (“AGFC”); the
Subsidiary Guarantors party thereto, the lenders party thereto from time to time
(the “Lenders”)
and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) and collateral agent (the “Credit
Agreement”). Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Credit Agreement.
I,
_____________________, certify that I am a duly appointed, qualified and acting
Responsible Financial Officer of [the Borrower][AGFC], and in such capacity, do
hereby certify, on behalf of [the Borrower][AGFC] and not individually,
that:
|
|
1.
|
The
calculations attached as Schedule A hereto are complete and correct in all
material respects;
|
|
|
2.
|
All
information included in the attached Schedule A is as of __________, ____
[pro forma for the proposed transaction giving rise to the requirement to
deliver this Borrowing Base Certificate]11;
|
|
|
3.
|
All
of the Loan Receivables included on the attached Schedule A have been
pledged to the Borrower as security for an Intercompany Secured Loan and
satisfy the requirements under the definition of Eligible Loan Receivables
and the applicable definitions for each such type and category of Eligible
Loan Receivable or Unrestricted Cash, in each case as set forth in the
Credit Agreement.
|
[Remainder of page intentionally left
blank]
|
11
|
To
be included if delivered pursuant to Section 6.02(e)(ii) or
(iii).
|
I-1
Form of
Borrowing Base Certificate
IN
WITNESS WHEREOF, the undersigned, solely in his capacity as a Responsible
Financial Officer of [the Borrower][AGFC], has executed this Borrowing Base
Certificate for and on behalf of AGFC and the Borrower and has caused this
Borrowing Base Certificate to be delivered this ____ day of
_____________.
|
[AGFS
FUNDING COMPANY][AMERICAN GENERAL FINANCE CORPORATION]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
I-2
Form of
Borrowing Base Certificate
|
Eligible Category
|
Amount of
Eligible Loan Receivables Pledged Pursuant to
Intercompany Secured Loans included in the Required Borrowing
Base12
|
Advance Rate
|
Required Borrowing Base(1)
|
|
|
(1)
Tier 1 Real Estate Loans
|
$[ ]
|
50.0%
|
$[ ]
|
|
|
(2)
Tier 2 Real Estate Loans
|
$[ ]
|
45.0%
|
$[ ]
|
|
|
(3)
Tier 3 Real Estate Loans
|
$[ ]
|
40.0%
|
$[ ]
|
|
|
(4)
Unrestricted Cash held by Borrower
|
$[ ]
|
100.0%
|
$[ ]13
|
|
|
Subtotal
Categories 1-4
|
$[ ]14
|
|||
|
(5)
Eligible Secured Non-Real Estate Loans
|
$[ ]
|
33.3%
|
$[ ]
|
|
|
(6)
Eligible Other Loans:
|
||||
|
(A)
second lien on single-family residence
|
$[ ]
|
|||
|
(B)
first lien on real estate other than a single-family
residence
|
$[ ]
|
|||
|
(C)
first lien on single family residence that (x) are TDRs and/or (y) had an
original principal amount equal to or greater than 95.5% of the appraised
value of such single family residence at the time such loan was
made
|
$[ ]
|
|||
|
(D)
first lien basis by personal property not designated as “hard”
collateral
|
$[ ]
|
|
12
|
Schedule
A-1 attached hereto sets forth for each of the Subsidiary Guarantors (1)
the aggregate amount of Eligible Loan Receivables of such Subsidiary
Guarantor to be included in the Required Borrowing Base [with respect to
any Borrowing Base Certificate delivered after the Closing Date —by
Eligible Loan category] and (2) the outstanding amount of the Intercompany
Secured Loan owing by such Subsidiary Guarantor to the
Borrower. In the event that the amount of the Borrowing Base
that would result from Eligible Loan Receivables pledged by the Subsidiary
Guarantors (i.e., after giving effect
to the applicable Advance Rates) plus Unrestricted Cash held by the
Borrower and included in the Required Borrowing Base exceeds the Required
Borrowing Base, Schedule A-1 shall
only include information with respect to Eligible Loan Receivables pledged
to secure an Intercompany Secured Note and included in the Required
Borrowing Base.
|
|
13
|
Not
to exceed $250.0 million.
|
|
14
|
Must
equal at least 65% of the amount of the Required Borrowing
Base.
|
I-3
Form of
Borrowing Base Certificate
|
(E)
unsecured loans
|
$[ ]
|
|||
|
(F)
Retail Loans
|
$[ ]
|
|||
|
Subtotal
Eligible Other Loans (sum (A) through (F))
|
$[ ]
|
30.0%
|
$[ ]
|
|
|
Subtotal
Categories 5-6
|
$[ ]
|
|||
|
Total
Eligible Loan Receivables (sum of Categories 1, 2, 3, 5 and
6)
|
$[ ]
|
|||
|
Borrowing
Base Total
|
$[ ]
|
|||
|
Outstanding
Balance under Credit Agreement as of date of Borrowing Base
Certificate
|
$[ ]
|
|||
|
Aggregate
Amount of Outstanding Intercompany Secured Loans as of date of Borrowing
Base Certificate15
|
$[ ]
|
|
15
|
Schedule
A-1 attached hereto includes the amounts of the Intercompany Secured Loans
on an entity-by-entity basis for the Subsidiary
Guarantors. [The amount of the Eligible Loan Receivables (after
giving effect to the applicable Advance Rates) that are included in the
Required Borrowing Base for each Subsidiary Guarantor shall not exceed the
outstanding balance of the Intercompany Secured Loan owed to the Borrower
by such Subsidiary Guarantor. For the avoidance of doubt,
Eligible Loan Receivables in excess of those included in the Required
Borrowing Base may be pledged by a Subsidiary Guarantor in respect of an
Intercompany Secured Loan from such Subsidiary
Guarantor.]
|
I-4
Form of
Borrowing Base Certificate
EXHIBIT
J-1
FORM
OF
NON-BANK TAX CERTIFICATE
(For Foreign Lenders That
Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference
is made to the Credit Agreement dated as of April 21, 2010 (the “Agreement”),
among AGFS FUNDING COMPANY, a Delaware corporation (the “Borrower”), AMERICAN
GENERAL FINANCE CORPORATION, an Indiana corporation (“AGFC”), as a
Guarantor, the Subsidiary Guarantors, each lender from time to time party
thereto and BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent.
Capitalized terms used herein but not otherwise defined shall have the meaning
given to such term in the Credit Agreement.
Pursuant
to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the
Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it
is providing this certificate, (ii) it is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of
the Borrower within the meaning of Code Section 871(h)(3)(B), (iv) it is not a
“controlled foreign corporation” related to the Borrower as described in Section
881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan
Document are effectively connected with the undersigned’s conduct of a U.S.
trade or business.
The
undersigned has furnished the Administrative Agent with a certificate of its
non-U.S. person status on Internal Revenue Service Form W-8BEN. By
executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform
the Borrower and the Administrative Agent in writing and (2) the undersigned
shall furnish the Borrower and the Administrative Agent a properly completed and
currently effective certificate in either the calendar year in which payment is
to be made by the Borrower or the Administrative Agent to the undersigned, or in
either of the two calendar years preceding such payment.
[Signature
Page Follows]
J-1-1
Form of
Tax Certificate
|
[Lender]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
[Address]
|
||
Dated: ______________________,
20[ ]
J-1-2
Form of
Tax Certificate
EXHIBIT
J-2
FORM
OF
NON-BANK TAX
CERTIFICATE
(For Foreign Lenders That
Are Partnerships For U.S. Federal Income Tax Purposes)
Reference
is made to the Credit Agreement dated as of April 21, 2010 (the “Agreement”),
among AGFS FUNDING COMPANY, a Delaware corporation (the “Borrower”), AMERICAN
GENERAL FINANCE CORPORATION, an Indiana corporation (“AGFC”), as a
Guarantor, the Subsidiary Guarantors, each lender from time to time party
thereto and BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent.
Capitalized terms used herein but not otherwise defined shall have the meaning
given to such term in the Credit Agreement.
Pursuant
to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as
any Note(s) evidencing such Loan(s)) in respect of which it is providing this
certificate, (ii) its partners/members are the sole beneficial owners of such
Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) neither the
undersigned nor any of its partners/members is a bank within the meaning of
Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten
percent shareholder of the Borrower within the meaning of Code Section
871(h)(3)(B), (v) none of its partners/members is a “controlled foreign
corporation” related to the Borrower as described in Section 881(c)(3)(C) of the
Code, and (vi) no payments in connection with any Loan Document are effectively
connected with the undersigned’s or its partners/members’ conduct of a U.S.
trade or business.
The
undersigned has furnished the Administrative Agent and the Borrower with
Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service
Form W-8BEN from each of its partners/members claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (1) if the
information provided on this certificate changes, the undersigned shall promptly
so inform the Borrower and the Administrative Agent and (2) the undersigned
shall have at all times furnished the Borrower and the Administrative Agent in
writing with a properly completed and currently effective certificate in either
the calendar year in which each payment is to be made to the undersigned, or in
either of the two calendar years preceding such payments.
[Signature
Page Follows]
J-2-1
Form of
Tax Certificate
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[Lender]
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By:
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Name:
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Title:
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[Address]
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Dated:
______________________, 20[ ]
J-2-2
Form of
Tax Certificate
EXHIBIT
J-3
FORM
OF
NON-BANK
TAX CERTIFICATE
(For Foreign Participants
That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference
is made to the Credit Agreement dated as of April 21, 2010 (the “Agreement”),
among AGFS FUNDING COMPANY, a Delaware corporation (the “Borrower”), AMERICAN
GENERAL FINANCE CORPORATION, an Indiana corporation (“AGFC”), as a
Guarantor, the Subsidiary Guarantors, each lender from time to time party
thereto and BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent.
Capitalized terms used herein but not otherwise defined shall have the meaning
given to such term in the Credit Agreement.
Pursuant
to the provisions of Section 3.01(e) and Section 10.07(e) of the Credit
Agreement, the undersigned hereby certifies that (i) it is the sole record and
beneficial owner of the participation in respect of which it is providing this
certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of
the Code, (iii) it is not a ten percent share-holder of the Borrower within the
meaning of Code Section 871(h)(3)(B), (iv) it is not a “controlled foreign
corporation” related to the Borrower as described in Section 881(c)(3)(C) of the
Code, and (v) no payments in connection with any Loan Document are effectively
connected with the undersigned’s conduct of a U.S. trade or
business.
The
undersigned has furnished its participating Foreign Lender with a certificate of
its non-U.S. person status on Internal Revenue Service Form
W-8BEN. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the undersigned
shall promptly so inform such Foreign Lender in writing and (2) the undersigned
shall have at all times furnished such Foreign Lender with a properly completed
and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
[Signature
Page Follows]
J-3-1
Form of
Tax Certificate
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[Participant]
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By:
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Name:
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Title:
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[Address]
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Dated:
______________________, 20[ ]
J-3-2
Form of
Tax Certificate
EXHIBIT
J-4
FORM
OF
NON-BANK
TAX CERTIFICATE
(For Foreign Participants
That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference
is made to the Credit Agreement dated as of April 21, 2010 (the “Agreement”),
among AGFS FUNDING COMPANY, a Delaware corporation (the “Borrower”), AMERICAN
GENERAL FINANCE CORPORATION, an Indiana corporation (“AGFC”), as a
Guarantor, the Subsidiary Guarantors, each lender from time to time party
thereto and BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent.
Capitalized terms used herein but not otherwise defined shall have the meaning
given to such term in the Credit Agreement.
Pursuant
to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the participation in
respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such participation, (iii) neither the undersigned
nor any of its partners/members is a bank within the meaning of Section
881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten percent
shareholder of the Borrower within the meaning of Code Section 871(h)(3)(B), (v)
none of its partners/members is a “controlled foreign corporation” related to
the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) no
payments in connection with any Loan Document are effectively connected with the
undersigned’s or its partners/members’ conduct of a U.S. trade or
business.
The
undersigned has furnished its participating Foreign Lender with Internal Revenue
Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN from
each of its partners/members claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform
such Foreign Lender in writing and (2) the undersigned shall have at all times
furnished such Foreign Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to
the under-signed, or in either of the two calendar years preceding such
payments.
[Signature
Page Follows]
J-4-1
Form of
Tax Certificate
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[Participant]
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By:
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Name:
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Title:
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[Address]
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Dated:
______________________, 20[ ]
J-4-2
Form of
Tax Certificate