EXHIBIT 10.5
AMENDED AND RESTATED
KEEP WELL AGREEMENT
Dated as of April 15, 1998
This Amended and Restated Keep Well Agreement, dated as of April 15, 1998,
amends and restates that certain Restated Keep Well Agreement dated as of June
17, 1997 (the "Prior Restated Keep Well Agreement") between The Fuji Bank,
Limited, a Japanese banking corporation ("Fuji"), acting by and through its New
York Branch (the "Branch"), and ▇▇▇▇▇▇ Financial, Inc, a Delaware corporation
("Finance").
W I T N E S S E T H:
WHEREAS, Fuji on January 26, 1984 purchased from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
International Corporation, a Delaware corporation ("▇▇▇▇▇▇"), pursuant to a
Stock Purchase Agreement dated as of April 23, 1983 (the "Stock Purchase
Agreement"), all of the issued and outstanding shares of common stock of Finance
and of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Overseas Corporation; and
WHEREAS, pursuant to the Stock Purchase Agreement, Fuji and Finance entered
into a Keep Well Agreement dated as of April 23, 1983 (the "Original Keep Well
Agreement") in order to assist Finance in maintaining its credit rating; and
WHEREAS, the Prior Restated Keep Well Agreement was executed in order to
reflect various amendments that had been made to the Original Keep Well
Agreement; and
WHEREAS, Finance and Fuji now desire to amend the Prior Restated Keep Well
Agreement and to further restate such Prior Restated Keep Well Agreement to
reflect such amendment;
NOW, THEREFORE, the parties hereto agree to amend and restate the Prior
Restated Keep Well Agreement as follows (the Prior Restated Keep Well Agreement
as so amended and restated being referred to herein as the "Keep Well Agreement"
or this "Agreement"):
SECTION 1. Definitions. For the purposes of this Agreement:
"Business Day" shall mean a day of the year on which dealings are
carried on in the London interbank market and banks are open for business
in London and not required or authorized to close in New York City or
Chicago.
"Commercial Paper" shall mean all commercial paper issued and sold by
Finance (or by any issuing agent acting on behalf of Finance) after the
date of the Original Keep Well Agreement and on or prior to the 30th
Business Day after notice or termination of this Agreement is given by Fuji
pursuant to Section 8(c) or by Finance pursuant to Section 8(d).
"Illiquidity Certification" shall mean a certificate of the chief
financial officer or chief accounting officer of Finance, in substantially
the form of Exhibit A hereto.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. Any reference in
this Agreement to any specific rating by ▇▇▇▇▇'▇ is a reference to such
rating as currently defined by Moody's and shall be deemed to refer to the
equivalent rating if such rating system changes. If Moody's shall at any
time discontinue rating either the Series A Preferred Stock or the Series C
Preferred Stock and S&P is not then rating such Preferred Stock, then
▇▇▇▇▇▇▇, Sachs & Co. for as long as the Series A Preferred Stock shall
remain outstanding and thereafter ▇▇▇▇▇▇ Brothers Inc., or its applicable
successor, shall, within 30 days, select a nationally
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recognized substitute rating agency and identify the comparable ratings
from such agency. During such 30-day period, ▇▇▇▇▇'▇ rating shall be
considered to be the last rating ▇▇▇▇▇'▇ provided before it discontinued
rating the applicable Preferred Stock.
"Net Worth" for any period shall mean the stockholders' equity of
Finance (including preferred stock, common stock and earned surplus and all
other items listed under the heading "Stockholders' Equity" on the balance
sheet of Finance) as determined in accordance with generally accepted
accounting principles, consistently applied, and shown on the balance sheet
of Finance as at the close of such period; provided, however, that for the
purposes of this Agreement, Net Worth shall be increased by the aggregate
amount of the accrued and unpaid dividends on all shares of NW Preferred
Stock outstanding on the last day of the period in respect of which Net
Worth is being determined (and by the aggregate amount of the liquidation
preference of all such shares of NW Preferred Stock to the extent not
otherwise included in Net Worth pursuant to the foregoing provisions of
this definition).
"Net Worth Certification" for any period shall mean a certificate of
the chief financial officer or chief accounting officer of Finance, in
substantially the form of Exhibit B hereto, setting forth in detail the Net
Worth for such period and the calculations upon which it has been
determined and containing a notice of issuance of NW Preferred Stock.
"Net Worth Deficiency" for any period shall mean the amount by which
$500,000,000 exceeds the Net Worth in respect of such period.
"NW Preferred Stock" shall mean the preferred stock of Finance
entitled "NW Preferred Stock" and to be issued pursuant to Section 2 to
Fuji or a subsidiary of Fuji as Fuji shall elect by written notice to
Finance (such notice to be given to Finance no later than three Business
Days prior to the date of issuance of any such NW Preferred Stock pursuant
to Section 2), from time to time in one or more series, each without voting
rights except as shall be provided for under the statutes of the State of
Delaware, and having the following provisions:
(a) Dividends. Dividends as to any series of NW Preferred Stock shall
be payable (if declared) quarterly commencing on the last day of the
calendar quarter during which such series is issued, and on the last day of
each calendar quarter thereafter (each such last day of a calendar quarter
being a "Dividend Date") for so long as that series is outstanding (the
dividend during the first such quarter to be prorated); dividends on each
series of NW Preferred Stock shall accrue and be payable at a rate per
annum equal at all times during a calendar quarter ending on a Dividend
Date to 1% per annum above the rate of interest at which deposits in United
States Dollars are offered by the principal office of Fuji in London,
England on the second Business Day (it being agreed that for this purpose
only, the definition of "Business Day" shall not include reference to
Chicago) preceding the first day of such calendar quarter (or, in the case
of the first dividend period, preceding the date of issuance of such
series) to prime banks in the London interbank market for a period equal to
three months (or, in the case of such first dividend period, equal to such
shorter period commencing on the date of issuance of such series and ending
on the last day of the calendar quarter during which such issuance
occurred); provided, however that the dividends on each series of NW
Preferred Stock shall be noncumulative such that if the Board of Directors
of Finance fails to declare a dividend on the NW Preferred Stock payable on
a dividend payment date, then holders of NW Preferred Stock will have no
right to receive a dividend in respect of the dividend period ending on
such dividend payment date, and Finance will have no obligation to pay
dividends accrued for such period, whether or not dividends on the NW
Preferred Stock are declared payable on any future dividend payment date;
and provided further, however, that no dividend shall be paid on any series
of NW Preferred Stock during the existence of a default in the payment of
principal of or interest on any outstanding indebtedness for money borrowed
of Finance;
(b) Redemption. Shares of NW Preferred Stock shall be redeemable no
less than 30 and no more than 45 days following the end of a calendar
quarter, in an aggregate amount in respect of such calendar quarter not
exceeding the excess of Net Worth as of the end of such calendar quarter
over $500,000,000, upon five Business Days' prior written notice to Finance
from the holder thereof, at a redemption price equal to the price paid to
the issuer for such shares upon the issuance thereof plus accumulated
unpaid dividends; provided, however, that Finance shall be obligated to
effect any such redemption only to the extent that its
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doing so will not (i) result in a breach of or default under any agreement
for or instrument evidencing indebtedness of Finance or guaranteed by
Finance and (ii) conflict with the terms of the provisos to paragraph (a)
of the definition of NW Preferred Stock;
(c) No Sinking Fund. No shares of any series of NW Preferred Stock
shall be subject or entitled to the benefit of a sinking fund; and
(d) Liquidation Rights. Upon the liquidation, dissolution or winding
up of Finance, the holders of the shares of each series of NW Preferred
Stock shall be entitled to receive, out of the assets of the Company
available therefor, an amount equal to the price paid for each such share
upon the issuance thereof plus an amount equal to accrued dividends thereon
to and including the date of payment.
"Preferred Stock" shall mean either the Series A Preferred Stock or
the Series C Preferred Stock, or both, as the context shall require.
"Rating Agencies" shall mean Moody's and S&P and their respective
successors, if any, selected in accordance with the definitions of Moody's
and S&P, respectively. In the event either Moody's or S&P shall discontinue
rating either the Series A Preferred Stock or the Series C Preferred Stock
or both while the other is continuing to provide such ratings, "Rating
Agencies" shall thereafter mean the Rating Agency which is continuing to
provide such ratings.
"S&P" shall mean Standard & Poor's Ratings Services, A Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. Any reference in this Agreement to any
specific rating by S&P is a reference to such rating as currently defined
by S&P and shall be deemed to refer to the equivalent rating if such rating
system changes. If S&P shall at any time discontinue rating either the
Series A Preferred Stock or the Series C Preferred Stock and ▇▇▇▇▇'▇ is not
then rating such Preferred Stock, then ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for as long as
the Series A Preferred Stock shall remain outstanding and thereafter ▇▇▇▇▇▇
Brothers Inc., or its applicable successor, shall, within 30 days, select a
nationally recognized substitute rating agency and identify the comparable
ratings from such agency. During such 30 day period, S&P's rating shall be
considered to be the last rating S&P provided before it discontinued rating
the applicable Preferred Stock.
"Series A Preferred Stock" shall mean the "Cumulative Perpetual Senior
Preferred Stock, Series A" issued by Finance.
"Series C Preferred Stock" shall mean the "Fixed Rate Noncumulative
Perpetual Senior Preferred Stock, Series C" issued by Finance.
"Series A Minimum Rating" shall mean with respect to: a) Moody's, a
rating of "a3" and, with respect to Moody's successor rating agency, if
any, the comparable rating of such successor, all as determined in
accordance with the definition of Moody's herein; and b) S&P, a rating of
"A-" and, with respect to S&P's successor rating agency, if any, the
comparable rating of such successor, all as determined in accordance with
the definition of S&P herein.
"Series C Minimum Rating" shall mean with respect to: a) Moody's, a
rating of "baa1" and, with respect to Moody's successor rating agency, if
any, the comparable rating of such successor, all as determined in
accordance with the definition of Moody's herein; and b) S&P, a rating of
"BBB" and, with respect to S&P's successor rating agency, if any, the
comparable rating of such successor, all as determined in accordance with
the definition of S&P herein.
"Termination Date" shall mean the earlier of (a) December 31, 2007 and
(b) the Unsupported Rating Date, but in no event earlier than December 31,
2002.
"Unsupported Rating Date" shall mean such date on which Finance shall
have first obtained from each of the Rating Agencies a written
certification that upon termination of this Agreement the ratings on the
senior unsecured indebtedness of Finance without the support provided by
this Agreement shall be no lower than the ratings of Finance with the
support provided by this Agreement.
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SECTION 2. Net Worth Maintenance. If at the close of any month, there is a
Net Worth Deficiency for such month, Finance shall forthwith send to Fuji a Net
Worth Certification with respect thereto (accompanied by financial statements
for such period) requesting Fuji to purchase, or to cause a subsidiary of Fuji
to purchase, shares of NW Preferred Stock from Finance having an aggregate
liquidation preference equal to such Net Worth Deficiency, and Fuji shall,
within five Business Days after receipt by Fuji of such written request from
Finance, purchase, or cause a subsidiary of Fuji to purchase, shares of NW
Preferred Stock from Finance in such amount, against delivery of such shares to
Fuji or the Branch or such subsidiary, as Fuji shall elect by three Business
Days' prior written notice to Finance.
SECTION 3. Liquidity Maintenance. If on or before the effectiveness of
termination of this Agreement, Finance reasonably and in good faith determines
that it will have insufficient cash or other liquid assets to meet its payment
obligations on Commercial Paper maturing on the date in respect of which such
determination is made (each such date being a "Shortfall Date" and the amount of
such insufficiency occurring on such Shortfall Date being the "Liquidity
Shortfall" in respect of such Shortfall Date), and it shall have available no
unused commitments under its lines of credit, credit agreements and other credit
facilities with lenders other than Fuji, then Finance shall forthwith send to
the Branch an Illiquidity Certification requesting Fuji, through the Branch, to
make an advance to Finance in an amount not exceeding such Liquidity
Shortfall (such advance being a "Liquidity Advance"), and, upon receipt by the
Branch no later than 11:00 A.M. (New York City time) on such Shortfall Date of
such Illiquidity Certification and an executed promissory note (which may be
signed manually by facsimile) in the form of Exhibit C hereto (a "Liquidity
Advance Note") in respect of such Liquidity Advance, the Branch shall make a
Liquidity Advance in such amount on such Shortfall Date. Each Liquidity Advance
shall be repayable on demand made at any time after the Business Day following
the 29th day after the day on which such Liquidity Advance is made, shall bear
interest on the unpaid principal amount thereof from the date of such Advance
until the principal amount thereof shall be paid in full, payable in arrears on
the maturity thereof (and, in the case of any overdue principal, on demand), at
a rate of interest equal to a fluctuating interest rate per annum equal at all
times to 1/4 of 1% per annum above, but on any overdue principal amount 1 1/4 %
per annum above, the rate of interest announced publicly by ▇▇▇▇▇▇ Guaranty
Trust Company of New York in New York, New York from time to time as its prime
commercial lending rate, and shall be prepayable by Finance, as a whole or in
part, without premium, upon five Business days' prior written notice to Fuji;
provided, however, that no repayment of a Liquidity Advance shall be made during
the continuance of a default in the payment of any indebtedness of Finance for
borrowed money which indebtedness is not by its terms subordinated to other
indebtedness of Finance; and provided, further, that in no event shall Fuji's
obligation pursuant to this Section 3 to make Liquidity Advances exceed in the
aggregate for all Liquidity Advances at any time outstanding $500,000,000 (the
"Liquidity Commitment").
SECTION 4. Limitation on Sale or Issuance of Common Stock of Finance. Fuji
will not, prior to giving notice of termination of this Agreement pursuant to
Section 8(c) or consenting to termination of this Agreement pursuant to Section
8(d), sell, pledge or otherwise dispose of, or permit any subsidiary to sell,
pledge or otherwise dispose of, or permit Finance to issue, any shares of common
stock of Finance, except that (i) Finance may issue shares of its common stock
to Fuji or to any corporation all of whose outstanding common stock is owned
directly or indirectly by Fuji, (ii) Fuji or any corporation all of whose
outstanding common stock is owned directly or indirectly by Fuji may transfer
shares of common stock of Finance to any corporation all of whose outstanding
common stock is owned directly or indirectly by Fuji or to Fuji and (iii)
Finance may issue, and Fuji or any corporation all of whose outstanding common
stock is owned directly or indirectly by Fuji, may sell, pledge or otherwise
dispose of, shares of the common stock of Finance to any one or more persons,
corporations or other entities provided that, after giving effect thereto, Fuji
(directly or indirectly through one or more subsidiaries) continues to hold
greater than 50% of the combined voting power of all of the issued and
outstanding common stock of Finance.
SECTION 5. Representations and Warranties of Finance. Finance represents
and warrants as follows:
(a) The execution, delivery and performance by Finance of this
Agreement and the performance of the transactions contemplated thereby are
within Finance's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) Finance's charter or
by-laws or (ii) any law or contractual restriction binding on or affecting
Finance.
(b) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by Finance of this
Agreement or for the performance by Finance of the transactions
contemplated hereby.
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(c) This Agreement is, and each Liquidity Advance Note when issued
hereunder will be, legal, valid and binding obligations of Finance
enforceable against Finance in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally.
(d) A sufficient number of shares of NW Preferred Stock have been duly
authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered pursuant to the provisions of this Agreement against
payment of the consideration therefor described herein, each such share
will be validly issued, fully paid and non-assessable; and each such share
will conform to the description thereof contained herein, and such
description will conform to such share. Upon its issuance, no share of NW
Preferred Stock will be subject to the preemptive rights of any stockholder
of Finance.
(e) The offering, sale and delivery of the NW Preferred Stock to Fuji
or a subsidiary of Fuji under the circumstances contemplated hereby do not
require registration of the NW Preferred Stock under the Securities Act of
1933, as amended (the "1933 Act"), and do not require qualification of
this Agreement or any indenture under the Trust Indenture Act of 1939, as
amended.
(f) All Commercial Paper will be exempt from registration under the
1933 Act by virtue of Section 3(a)(3) thereof.
(g) Finance is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any sale of NW Preferred Stock or any Liquidity
Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.
SECTION 6. Covenants of Finance. Finance covenants and agrees that, until
the latest of the effective date of termination of this Agreement as herein
provided, the redemption in full of all NW Preferred Stock and the repayment in
full of all Liquidity Advances made by Fuji:
(a) Finance will not issue or permit to be issued any Commercial Paper
having maturity later than the Business Day immediately following the 269th
day after its date of issue;
(b) Finance will issue Commercial Paper only on such terms as will
enable such Commercial Paper to be exempt from registration under the 1933
Act by virtue of Section 3(a)(3) thereof;
(c) Finance will use its best efforts to meet maturities of
outstanding Commercial Paper when due from sources (including the proceeds
of commercial paper issued by Finance after notice of termination of this
Agreement shall have been given pursuant to Section 8(c) or 8(d)) other
than the proceeds of Liquidity Advances, and will use the proceeds of each
Liquidity Advance solely for the payment at maturity of the Commercial
Paper in respect of which such Liquidity Advance was requested;
(d) Finance will, not less often than at the close of each month,
determine whether there is a Net Worth Deficiency for the period as to
which such determination is made;
(e) Finance will maintain (and Fuji hereby undertakes to assure that
Finance will maintain) in full force and effect and available to it unused
short-term lines of credit, asset sales facilities and committed credit
facilities in its favor in an amount at all times approximately equal to
75% of the amount of its commercial paper (including Commercial Paper) from
time to time outstanding; and
(f) Immediately upon receipt of notice of (i) termination of this
Agreement given by Fuji pursuant to Section 8(c) or (ii) consent by Fuji to
termination of this Agreement by Finance pursuant to Section 8(d), Finance
shall furnish notice of such termination to all Commercial Paper dealers
and to each statistical rating agency that has issued a rating in respect
of Finance or any of its commercial paper or other debt obligations.
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SECTION 7. No Guarantee; Limitation on Applicability; No Commercial Paper
Holder To Have Rights. This Agreement is not, and nothing herein contained and
nothing done pursuant hereto by Fuji shall be deemed to constitute a guarantee,
directly or indirectly, by Fuji of the payment of any Commercial Paper or other
commercial paper, indebtedness, liability or obligation of any kind or character
of Finance or any subsidiary of Finance, nor shall this Agreement or anything
contained herein have any effect, directly or indirectly, upon or in respect of
any commercial paper or upon or in respect of any Commercial Paper not issued
and outstanding on the day notice of termination of this Agreement is given
pursuant to Section 8(c) or on the day Fuji shall consent to termination of this
Agreement pursuant to Section 8(d), as the case may be. Fuji shall not, by
virtue of this Agreement, the transactions contemplated hereby or otherwise,
have any obligation or liability of any kind or character to or in respect of
any holder of any commercial paper or other indebtedness, liability or
obligation of any kind or character of Finance or any subsidiary of Finance.
SECTION 8. Modification, Amendment and Termination. (a) This Agreement may
be modified or amended only by the written agreement of Fuji and Finance;
provided, however, that (i) no such modification or amendment shall have any
adverse effect upon any Commercial Paper outstanding at the time of such
modification or amendment for so long as such Commercial Paper is outstanding;
(ii) the provisions of Section 8(b), 8(c) and 8(d) shall not be modified or
amended for any reason except and unless to extend the dates set forth therein;
and (iii) prior to the Termination Date, the dollar amount of $500,000,000 set
forth in each of Section 1 (in each of the definitions of "Net Worth Deficiency"
and "NW Preferred Stock" - (b) Redemption) and Section 3 shall not be decreased
for any reason.
(b) This Agreement may not be terminated for any reason by either party
hereto, and shall continue in full force and effect, until the Termination Date.
After the Termination Date, this Agreement may be terminated by Fuji, in
accordance with the provisions of Section 8(c) hereof, or by Finance, in
accordance with the provisions of Section 8(d) hereof.
(c) At any time after the Termination Date, this Agreement may be
terminated by Fuji upon 30 Business Days' prior written notice to Finance (with
a copy of such notice to each statistical rating agency referred to in Section
6(f) and, if Fuji shall so elect, to each Commercial Paper dealer). However,
such termination shall not in any way relieve Finance of its obligations under
the NW Preferred Stock outstanding on the date of such termination or under the
Liquidity Advance Notes outstanding on the date of such termination, or in
respect of Fuji's fee set forth in Section 9. Also, such termination shall not
be effective as to the obligations of Fuji contained in Sections 2 and 3 until
the scheduled maturity of all Commercial Paper issued in accordance with the
terms hereof and outstanding on the 30th Business Day after notice of such
termination is given.
(d) At any time after the Termination Date, this Agreement may be
terminated by Finance upon (i) thirty Business Days' prior written notice to
Fuji and (ii) receipt by Finance of written consent from Fuji to such
termination (with notice of such termination to be given by Finance, after
receipt of Fuji's consent to such termination, to each Commercial Paper dealer
and statistical rating agency referred to in Section 6(f)). However, such
termination by Finance shall not in any way relieve Finance of its obligations
under the NW Preferred Stock outstanding on the date of such termination or
under the Liquidity Advance Notes outstanding on the date of such termination,
or in respect of Fuji's fee set forth in Section 9. Also, such termination shall
not be effective as to the obligations of Fuji contained in Sections 2 and 3
until the scheduled maturity of all Commercial Paper issued in accordance with
the terms hereof and outstanding on the 30th Business Day after notice of such
termination is given.
(e)(1) Anything contained elsewhere herein to the contrary notwithstanding,
it is expressly understood and agreed that this Agreement may not be terminated
for any reason by either party hereto, and shall continue in full force and
effect, at any time while all or any portion of the Series A Preferred Stock is
outstanding and held by third parties other than Fuji (or any direct or indirect
wholly-owned subsidiary of Fuji) unless Finance shall have first obtained from
each of the Rating Agencies a written certification that upon termination of
this Agreement the Series A Preferred Stock will be rated no lower than the
Series A Minimum Rating.
(2) Anything contained elsewhere herein to the contrary notwithstanding, it
is expressly understood and agreed that this Agreement may not be terminated for
any reason by either party hereto, and shall continue in full force and effect,
at any time while all or any portion of the Series C Preferred Stock is
outstanding and held by third parties other than Fuji (or any direct or indirect
wholly-owned subsidiary of Fuji) unless Finance shall have first obtained from
each of the Rating Agencies a written certification that upon termination of
this Agreement the Series C Preferred Stock will be rated no lower than the
Series C Minimum Rating.
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(3) For purposes of the each of the foregoing clauses (1) and (2), the
Series A Preferred Stock or the Series C Preferred Stock shall cease to be
considered outstanding at such time as an effective notice of redemption of all
of such Preferred Stock shall have been given by Finance and funds sufficient to
effectuate such redemption shall have been deposited with the party designated
for such purpose in the notice.
(f) For the purposes hereof, no portion of any Commercial Paper shall be
considered to be "outstanding" if moneys or securities in an amount sufficient
for the payment of principal thereof and interest and premium, if any, thereon
shall have been deposited with the proper party or parties for the satisfaction
and discharge of such portion of such Commercial Paper, all in accordance with
the governing instrument defining the rights of the holders thereof or shall
have been deposited in trust with a commercial bank in The City of New York.
SECTION 9. Fuji's Fee. Finance shall pay to Fuji a fee, payable in same day
funds, on the average daily unused portion of the Liquidity Commitment from the
date hereof until the date of the payment in full of all Commercial Paper
outstanding on the day on which Fuji shall give notice to Finance of the
termination of this Agreement pursuant to Section 8(c) or on the day Fuji shall
consent to the termination of this Agreement pursuant to Section 8(d), as the
case may be, at the rate of 1/16 of 1% per annum, payable on July 1, 1983 and on
the first Business Day of each calendar quarter thereafter until the date of
such payment in full of all such Commercial Paper, and on the date of such
payment in full of all such Commercial Paper.
SECTION 10. Representation by Fuji. Fuji represents that it is acquiring
the shares of NW Preferred Stock as contemplated hereby for its own account in
the ordinary course of its business and not with a view to the public
distribution or sale thereof nor with any present intention of selling or
distributing such shares, but subject, nevertheless, to any legal or
administrative requirement that the disposition of its property shall at all
times be within its control.
SECTION 11. Notices. All notices, requests and other communications
required or permitted hereunder shall, unless otherwise stated herein, be given
by hand delivery or by telecopy, addressed as follows:
To Fuji:
The Fuji Bank, Limited
New York Branch
Two World Trade ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President and Manager,
U.S. Corporate Finance and Credit
Group II
Telecopy: 212.898.2770
To Finance:
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: 312.441.7568
or at such other address as either party shall specify to the other party in
writing.
SECTION 12. Accounting Terms; Interest Computation. All accounting terms
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied, except as otherwise stated
herein.
All computations of interest under or in connection with this Agreement
shall be made on the basis of a year of 360 days for the actual number of days
elapsed. Whenever any payment to be made hereunder or in connection
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herewith shall be due on a day other than a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest.
SECTION 13. No Waiver; Remedies. No failure on the part of Fuji to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 14. Original Keep Well Agreement Superseded. This Agreement amends
and supersedes the Prior Restated Keep Well Agreement as that document has been
amended from time to time.
SECTION 15. Submission to Jurisdiction. Fuji hereby irrevocably submits to
the jurisdiction of any New York State or Federal court sitting in the County of
New York, State of New York, over any action or proceeding arising out of this
Agreement. Fuji hereby irrevocably appoints the Branch as its agent to receive
on behalf of Fuji service of copies of the summons and complaint and any other
process that may be served in any such action or proceeding.
SECTION 16. Binding Effect; Successors. This Agreement shall be binding
upon, and inure to the benefit of, Fuji and Finance and their respective
successors and assigns, except that Finance shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent of
Fuji. Fuji may assign to any financial institution all or any part of, or any
interest in, its rights and benefits hereunder and under any of the Liquidity
Advance Notes and, subject to the provisions of Section 10, the shares of NW
Preferred Stock owned by Fuji.
SECTION 17. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York. In Witness
Whereof, the parties hereto have caused this Agreement to be executed and
delivered by their respective officers thereunto duly authorized as of the date
first above written.
THE FUJI BANK, LIMITED
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Managing Director
THE FUJI BANK, LIMITED, NEW YORK
BRANCH, as Obligor under Section 3 of the
Amended and Restated Keep Well Agreement
By:
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Director and General Manager
▇▇▇▇▇▇ FINANCIAL, INC.
By:
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board
and Chief Executive Officer
8
EXHIBIT A TO AMENDED AND RESTATED KEEP WELL AGREEMENT
Form of Illiquidity Certificate
I, _______________________, [Chief Financial Officer] [Chief Accounting
Officer] of ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation ("Finance"), DO
HEREBY CERTIFY to The Fuji Bank, Limited ("Fuji"), in connection with Section 3
of the Amended and Restated Keep Well Agreement dated as of April 15, 1998
between Finance and Fuji (the "Keep Well Agreement", the terms defined therein
being used herein as therein defined), THAT:
1. This Illiquidity Certificate constitutes the irrevocable request of
Finance that Fuji make a Liquidity Advance to Finance in the amount of
$__________(the "Requested Advance") on the fifth Business Day after the receipt
by Fuji of this Certificate. The Requested Advance shall be evidenced by the
Liquidity Advance Note accompanying this Certificate (the "Note") and shall have
such terms and conditions as are set forth in the Keep Well Agreement and the
Note. The Note has been duly authorized, executed and delivered by Finance and
is in the form of Liquidity Advance Note set forth in the Keep Well Agreement.
2. Finance has reasonably and in good faith determined that it will have a
Liquidity Shortfall in the amount of the Requested Advance on the fifth Business
Day after the date hereof and that it has available no unused commitments under
its line of credit, credit agreements and other credit facilities with lenders
other than Fuji.
3. Fuji is to make the Requested Advance available to Finance on the fifth
Business Day after the receipt by Fuji of this Certificate by crediting
Finance's account no. _____________ maintained at _______________________ in New
York, New York in the amount of the Requested Advance.
In Witness Whereof, I have signed this Certificate this _____ day
of__________________, 19___
▇▇▇▇▇▇ Financial, Inc.
By:
-------------------------------------
Title:
----------------------------------
9
EXHIBIT B TO RESTATED KEEP WELL AGREEMENT
Form of Net Worth Certificate
I, _______________________, the [Chief Financial Officer] [Chief Accounting
Officer] of ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation ("Finance"), DO
HEREBY CERTIFY to The Fuji Bank, Limited ("Fuji"), in connection with Section 2
of the Amended and Restated Keep Well Agreement dated as of April 15, 1998
between Finance and Fuji (the "Keep Well Agreement", the terms defined therein
being used herein as therein defined), THAT:
1. Accompanying this Certificate are financial statements of Finance for
the calendar quarter ended immediately prior to the date hereof. The
Net Worth for such calendar quarter is equal to $_____________, and the
calculations upon which it has been determined are the following:
_____________. Such Net Worth has been determined in a manner
consistent with the definition of "Net Worth" contained in the Keep
Well Agreement.
2. There is a Net Worth Deficiency for such calendar quarter (the "Net
Worth Deficiency" equal to $___________, which is the excess of
$500,000,000 over the Net Worth set forth in Paragraph 1.
3. This Net Worth Certificate constitutes (i) notice to Fuji that Finance
shall issue shares of its NW Preferred Stock in the amount of the Net
Worth Deficiency (the "Issued Amount") on the fifth Business Day after
the date hereof (the "Issuance Date") and (ii) the irrevocable request
of Finance that Fuji purchase shares of NW Preferred Stock in the
aggregate amount equal to the Issuance Amount on the fifth Business Day
after receipt by Fuji of this Certificate. Shares of NW Preferred Stock
issued on the Issuance Date shall be evidenced by one or more
certificates of NW Preferred Stock issued to Fuji or the Branch, as
Fuji shall request not later than two Business Days after receipt by
Fuji of this Certification, and shall have such terms and conditions as
are set forth in the Keep Well Agreement. Each such share, when issued,
will have been duly authorized, issued and delivered by Finance and
will be in the form of NW Preferred Stock specified in the Keep Well
Agreement.
In Witness Whereof, I have signed this certificate this _____ day of
___________________, 19____.
▇▇▇▇▇▇ Financial, Inc.
By:
---------------------------------
Title:
------------------------------
10
EXHIBIT C TO RESTATED KEEP WELL AGREEMENT
Form of Liquidity Advance Note
LIQUIDITY ADVANCE PROMISSORY NOTE
U.S. $[amount of Liquidity Dated: _________________________, 19____
Advance in figures]
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ FINANCIAL, INC., a corporation
organized and existing under the laws of Delaware (the "Borrower"), HEREBY
PROMISES TO PAY to the order of THE FUJI BANK, LIMITED (the "Bank"), a Japanese
banking corporation, the principal sum of [amount of the Liquidity Advance in
words] United States Dollars (U.S. $ [amount of the Liquidity Advance in
figures]) on _______________, 19___ [insert the date of the Business day next
succeeding the day that is twenty-nine days after the date of Note], together
with interest on the principal amount remaining unpaid hereunder from the date
hereof until said principal amount is paid in full, payable on the day said
principal amount becomes due and, with respect to interest on any overdue
principal amount, payable on demand, at a fluctuating interest rate per annum
equal at all times to 1/4 of 1% per annum above, but on any overdue principal
amount 1 1/4% per annum above, the rate of interest announced publicly by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York, New York from time to time as
its prime commercial lending rate (the "Prime Rate"). Each change in the
fluctuating interest rate hereunder shall take effect simultaneously with the
corresponding change in the Prime Rate.
The Borrower may, upon at least five Business Days' notice to the Bank,
prepay this Liquidity Advance Note, without premium, in whole or in part, with
accrued interest to the date of such prepayment on the amount prepaid, provided
that each partial prepayment shall be in a principal amount not less than U.S.
$10,000,000 or a multiple thereof.
The Borrower shall make each payment of principal and interest hereunder
not later than 12:00 noon (New York City time) on the day when due in lawful
money of the United States to the Bank at the office of The Fuji Bank, Limited,
New York Branch, Two World ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
by wire transfer of Federal funds to the account of the Bank at ▇▇▇▇▇▇ Guaranty
Trust Company of New York, account no. ▇▇▇-▇▇-▇▇▇.
All computations of interest shall be made by the Bank on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day occurring in the period for which such interest is
payable) elapsed.
This Liquidity Advance Promissory Note is one of the Liquidity Advance
Notes referred to in, and is entitled to the benefits of, the Amended and
Restated Keep Well Agreement dated as of April 15, 1998 between the Borrower and
the Bank, and shall be governed by, and construed in accordance with, the law of
the State of New York.
▇▇▇▇▇▇ Financial, Inc.
By:
-----------------------------------
Title:
--------------------------------
11