EXECUTION COPY
EXHIBIT 10.1
U.S. $400,000,000
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CREDIT AGREEMENT
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dated as of August 16, 1996
among
THE MONEY STORE INC.,
as Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as Lenders,
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Documentation Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................... vii
ARTICLE II THE CREDITS.......................................................................... 15
2.1. Commitments............................................................................ 15
2.2. Required Payments; Termination......................................................... 15
2.3. Ratable Loans.......................................................................... 16
2.4. Types of Advances...................................................................... 16
2.5. Facility Fee; Reductions in Aggregate Commitment; Syndication Fee...................... 16
2.6. Minimum Amount of Each Advance......................................................... 16
2.7. Principal Payments..................................................................... 17
2.8. Method of Selecting Types and Eurodollar Interest Periods for New Advances............. 17
2.9. Conversion and Continuation of Outstanding Advances.................................... 18
2.10. Changes in Interest Rate, etc.......................................................... 18
2.11. Rates Applicable After Default......................................................... 18
2.12. Method of Payment...................................................................... 19
2.13. Notes; Telephonic Notices.............................................................. 19
2.14. Interest Payment Dates; Interest and Fee Basis......................................... 20
2.15. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions........ 20
2.16. Lending Installations.................................................................. 20
2.17. Non-Receipt of Funds by the Agent...................................................... 20
2.18. Risk Participation in Facility B....................................................... 21
ARTICLE III CHANGE IN CIRCUMSTANCES............................................................. 21
3.1. Yield Protection....................................................................... 21
3.2. Changes in Capital Adequacy Regulations................................................ 22
3.3. Availability of Types of Advances...................................................... 22
3.4. Funding Indemnification................................................................ 23
3.5. Lender Statements; Survival of Indemnity............................................... 23
ARTICLE IV CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION...................................... 23
4.1. Initial Advance........................................................................ 23
4.2. Each Advance........................................................................... 24
4.3. Withholding Tax Exemption.............................................................. 25
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................................ 25
5.1. Corporate Existence and Standing....................................................... 25
5.2. Authorization and Validity............................................................. 25
5.3. No Conflict; Government Consent........................................................ 25
5.4. Financial Statements................................................................... 26
5.5. Material Adverse Change................................................................ 26
5.6. Taxes.................................................................................. 26
5.7. Litigation and Contingent Obligations.................................................. 26
5.8. Subsidiaries........................................................................... 26
5.9. ERISA.................................................................................. 27
5.10. Accuracy of Information................................................................ 27
5.11. Regulation U........................................................................... 27
5.12. Material Agreements.................................................................... 27
5.13. Compliance With Laws................................................................... 27
i
5.14. Ownership of Properties................................................................ 27
5.15. Assets; Prohibited Transactions........................................................ 27
5.16. Environmental Matters.................................................................. 27
5.17. Investment Company Act................................................................. 28
5.18. Public Utility Holding Company Act..................................................... 28
5.19. Subordinated Indebtedness.............................................................. 28
5.20. Insurance.............................................................................. 28
ARTICLE VI COVENANTS............................................................................ 28
6.1. Financial Reporting.................................................................... 28
6.2. Use of Proceeds........................................................................ 30
6.3. Notice of Default...................................................................... 30
6.4. Conduct of Business.................................................................... 30
6.5. Taxes.................................................................................. 30
6.6. Insurance.............................................................................. 30
6.7. Compliance with Laws................................................................... 30
6.8. Maintenance of Properties.............................................................. 30
6.9. Maintenance of Books; Inspection....................................................... 31
6.10. Merger................................................................................. 31
6.11. Sale of Assets......................................................................... 31
6.12. Investments and Acquisitions........................................................... 31
6.13. Liens.................................................................................. 32
6.14. Subsidiary Indebtedness................................................................ 33
6.15. Affiliates............................................................................. 33
6.16. Subordinated Indebtedness.............................................................. 34
6.17. Contingent Obligations................................................................. 34
6.18. Distributions.......................................................................... 34
6.19. Subsidiary Preferred Stock............................................................. 35
6.20. Financial Covenants.................................................................... 35
6.21. Underwriting Standards................................................................. 36
ARTICLE VII DEFAULTS............................................................................ 36
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES..................................... 38
8.1. Acceleration........................................................................... 38
8.2. Amendments............................................................................. 39
8.3. Preservation of Rights................................................................. 39
ARTICLE IX GENERAL PROVISIONS................................................................... 40
9.1. Survival of Representations............................................................ 40
9.2. Governmental Regulation................................................................ 40
9.3. Taxes.................................................................................. 40
9.4. Headings............................................................................... 40
9.5. Entire Agreement....................................................................... 40
9.6. Several Obligations; Benefits of this Agreement........................................ 40
9.7. Expenses; Indemnification.............................................................. 40
9.8. Numbers of Documents................................................................... 41
9.9. Accounting............................................................................. 41
9.10. Severability of Provisions............................................................. 41
9.11. Nonliability of Lenders................................................................ 41
9.12. Nonreliance............................................................................ 42
ii
ARTICLE X THE AGENT............................................................................. 42
10.1. Appointment; Nature of Relationship.................................................... 42
10.2. Powers................................................................................. 42
10.3. General Immunity....................................................................... 42
10.4. No Responsibility for Loans, Recitals, etc............................................. 42
10.5. Action on Instructions of Lenders...................................................... 43
10.6. Employment of Agents and Counsel....................................................... 43
10.7. Reliance on Documents; Counsel......................................................... 43
10.8. Agent's Reimbursement and Indemnification.............................................. 43
10.9. Notice of Default...................................................................... 44
10.10. Rights as a Lender..................................................................... 44
10.11. Lender Credit Decision................................................................. 44
10.12. Successor Agent........................................................................ 44
10.13. Agent's Fee; Documentation Agent's Fee................................................. 45
10.14 Duties and Rights of Documentation Agent............................................... 45
ARTICLE XI SETOFF; RATABLE PAYMENTS............................................................. 45
11.1. Setoff................................................................................. 45
11.2. Ratable Payments....................................................................... 45
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................... 46
12.1. Successors and Assigns................................................................. 46
12.2. Participations......................................................................... 46
12.2.1. Permitted Participants; Effect......................................................... 46
12.2.2. Voting Rights.......................................................................... 46
12.2.3. Benefit of Setoff...................................................................... 47
12.3. Assignments............................................................................ 47
12.3.1. Permitted Assignments.................................................................. 47
12.3.2. Effect; Effective Date................................................................. 47
12.4. Dissemination of Information........................................................... 48
12.5. Tax Treatment.......................................................................... 48
ARTICLE XIII NOTICES............................................................................ 48
13.1. Notices................................................................................ 48
13.2. Change of Address...................................................................... 48
iii
ARTICLE XIV COUNTERPARTS........................................................................ 48
ARTICLE XV CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL......................... 49
15.1. CHOICE OF LAW......................................................................... 49
15.2. CONSENT TO JURISDICTION............................................................... 49
15.3. WAIVER OF JURY TRIAL.................................................................. 49
iv
EXHIBIT A-1 FACILITY A NOTE
EXHIBIT A-2 FACILITY B NOTE
EXHIBIT B FORM OF OPINION
EXHIBIT C COMPLIANCE CERTIFICATE
SCHEDULE I TO COMPLIANCE CERTIFICATE
EXHIBIT D ASSIGNMENT AGREEMENT
EXHIBIT I NOTICE OF ASSIGNMENT
EXHIBIT E LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
EXHIBIT F SUBSIDIARY GUARANTY
SCHEDULE 1 SUBSIDIARIES AND OTHER INVESTMENTS
SCHEDULE 2 INDEBTEDNESS AND LIENS
SCHEDULE 3 COMMITMENT FEES
v
CREDIT AGREEMENT
This Agreement, dated as of August 16, 1996, is among The Money Store Inc.,
the Lenders, First Union National Bank of North Carolina, as Documentation
Agent, and The First National Bank of Chicago, as Administrative Agent. The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement:
"Acquisition" means any transaction, or any series of related transactions,
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consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any firm, corporation or limited liability company, or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the Securities of a corporation which have ordinary voting power for
the election of directors (other than Securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding ownership interests of a partnership or limited
liability company.
"Advance" means a borrowing hereunder (or conversion or continuation thereof)
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consisting of the aggregate amount of the several Loans made on the same
Borrowing Date (or date of conversion or continuation) by the Lenders (or in the
case of a borrowing of Facility B Loans, by the Facility B Lenders) to the
Borrower of the same Type and, in the case of Eurodollar Advances, for the same
Eurodollar Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
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controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 5% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as
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administrative agent for the Lenders pursuant to Article X, and not in its
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individual capacity as a Lender, and any successor Agent appointed pursuant to
Article X.
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"Aggregate Commitment" means the aggregate of the Commitments of all the
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Lenders, as reduced from time to time pursuant to the terms hereof. The
Aggregate Commitment initially shall be $400,000,000.
"Aggregate Facility B Commitment" means the aggregate of the Facility B
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Commitments of all the Facility B Lenders, as reduced from time to time pursuant
to the terms hereof. The Aggregate Facility B Commitment initially shall be
$30,000,000. The Aggregate Facility B Commitment constitutes a subcommitment
of, and is not in addition to, the Aggregate Commitment.
"Agreement" means this credit agreement, as it may be amended or modified and
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in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per annum equal
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to the higher of (i) the Corporate Base Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Facility Fee Percentage" means for each day on which (i) Level I
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Status exists, 0.175%, (ii) Level II Status exists, 0.200%, (iii) Level III
Status exists, 0.250% and (iv) Level IV Status exists, 0.300%. The Applicable
Facility Fee Percentage shall be adjusted (upward or downward, as applicable)
effective on the first Business Day following public issuance of, or
announcement of a change in, the rating by S&P or ▇▇▇▇▇'▇ of the Borrower's
senior, unsecured long-term debt which results in a change in the applicable
status level.
"Applicable Margin" means for each day on which (i) Level I Status exists,
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0.325%, (ii) Level II Status exists, 0.500%, (iii) Level III Status exists,
0.600% and (iv) Level IV Status exists, 0.750%. The Applicable Margin shall be
adjusted (upward or downward, as applicable) effective on the first Business Day
following public issuance of, or announcement of a change in, the rating by S&P
or ▇▇▇▇▇'▇ of the Borrower's senior, unsecured long-term debt.
"Article" means an article of this Agreement unless another document is
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specifically referenced.
"Authorized Officer" means any of the President, Chief Financial Officer,
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Treasurer or any Vice President of the Borrower, acting singly.
"Borrower" means The Money Store Inc., a New Jersey corporation, and its
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successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
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"Borrowing Notice" is defined in Section 2.8.
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"Business Day" means (i) with respect to any borrowing, payment or rate
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selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Illinois, New York, New Jersey and North Carolina for the
conduct of substantially all of their commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such Person as
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lessee which would be capitalized on a balance sheet of such Person prepared in
accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of the
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obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Change" is defined in Section 3.2.
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"Change in Control" means any change in the "beneficial ownership" (within the
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meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of the capital stock of the Borrower which
results in any Person, or two or more Persons acting in concert (other than the
Turtletaub Group), together with any such Person's "affiliates" and "associates"
(as each of such terms is defined in Rule 12b-2 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) becoming the "beneficial
owner" (as defined in Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934) of 40% or more of the outstanding shares of
Voting Stock of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
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otherwise modified from time to time.
2
"Commitment" means, for each Lender, the obligation of such Lender to make
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Loans not exceeding the amount set forth opposite its signature below or as set
forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
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to time pursuant to the terms hereof.
"Condemnation" is defined in Section 7.8.
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"Consolidated Adjusted Tangible Net Worth" at any time of determination means
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(a) the aggregate shareholders' equity of the Borrower and its Subsidiaries
(other than in respect of Disqualified Stock) determined in accordance with
GAAP, minus (b) goodwill of the Borrower and its Subsidiaries, plus (c) the
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outstanding principal amount of Subordinated Indebtedness of the Borrower and
its Subsidiaries at such time.
"Consolidated Capital" at any time of determination means Consolidated
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Adjusted Tangible Net Worth plus the amount deducted in determining Consolidated
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Receivables in respect of allowance for credit losses determined in accordance
with GAAP.
"Consolidated Cash Flow" for any period means the sum of (a) all cash released
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to the Borrower and its Subsidiaries from Consolidated Restricted Cash during
such period (other than any such cash released in consideration of loans or
other receivables (or an interest therein) transferred by the Borrower or any of
its Subsidiaries) and (b) all cash collections of Consolidated Receivables and
Consolidated Eligible Loans received by the Borrower and its Subsidiaries during
such period.
"Consolidated Eligible Loans" at any time of determination means the aggregate
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outstanding principal amount of all consumer and commercial loans owned by the
Borrower or any of its Subsidiaries at such time which are held for sale which
satisfy all of the following criteria: (a) the Borrower or the applicable
Subsidiary has full right to pledge or otherwise transfer such loan (including,
without limitation, all related documents, underlying collateral and other
Property) and the same is not then transferred or subject to any commitment to
transfer to any Person; (b) the Borrower's or the applicable Subsidiary's right,
title and interest in and to such loan and related Property is not subject to
any Lien of any kind and, without limiting the foregoing, is not on deposit,
held in reserve or otherwise serving as credit or other enhancement for the
benefit of Persons other than the Borrower and its Subsidiaries; and (c) such
loan and related Property meets both the Borrower's underwriting standards as in
effect on the date of calculation and eligibility requirements for the transfer
of such loan and related Property to a trust or other special purpose entity in
a securitization of the type customarily entered into by the Borrower and its
Subsidiaries as of the date of calculation; provided, however, that, for a
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period of up to 90 days from the origination or acquisition of a loan by the
Borrower or the applicable Subsidiary, such loan shall not be deemed ineligible
solely because such loan and related Property fails to satisfy the condition
contained in this clause (c) if and so long as the Borrower or the applicable
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Subsidiary reasonably expects such loan and related Property to satisfy such
condition by the expiration of such 90 day period.
"Consolidated Excess Servicing Asset" at any time of determination means the
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aggregate, for all consumer and commercial loans sold by the Borrower and its
Subsidiaries, of the present value of the excess, if any, of (x) the interest
charged by the Borrower or such Subsidiary to the obligor on such loan over (y)
the sum of the interest payable to the transferee of such loan in respect of
such loan (or, in the case of a sale by the Borrower or the applicable
Subsidiary to a trust or other special purpose entity, the yield payable to the
investors of such trust or other special purpose entity in respect of such loan)
and any normal loan servicing fees payable to the servicer of such loan, all as
determined at such time in accordance with GAAP in conformity with the line item
entitled "excess servicing asset" in the consolidated statements of financial
condition referred to in Section 5.4 (including the prepayment assumptions
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therein).
"Consolidated Fixed Charges" means, for any period, the sum, computed on a
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consolidated basis for the Borrower and its Subsidiaries, without duplication,
of (a) all interest (including, without limitation, interest,
3
sometimes referred to as "warehouse interest expense," accruing on amounts
outstanding under lines of credit used to finance loans prior to sale thereof to
third parties), accruing during such period on indebtedness for borrowed money
(including any Contingent Obligations in respect of such indebtedness), together
with that portion of all rental payments accruing during such period in respect
of Capitalized Leases of the Borrower and its Subsidiaries which is allocated to
interest expense in accordance with GAAP, plus (b) the aggregate amount of
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fixed rents payable during such period by the Borrower or any of its
Subsidiaries as lessee or sublessee under a lease of Property, or payable by
another Person as such lessee or sublessee, if payment of such rents is
guaranteed by the Borrower or any of its Subsidiaries (in each case for purposes
of this clause (b) other than in respect of Capitalized Leases), plus (c) the
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aggregate amount of any dividends, distributions or other payments paid in
respect of any preferred stock of the Borrower or any of its Subsidiaries.
"Consolidated Funded Debt" at any time of determination means consolidated
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Indebtedness of the Borrower and its Subsidiaries as of such date of
determination.
"Consolidated Net Income" means, for any period, the net income (or loss) of
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the Borrower and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period determined in accordance with GAAP.
"Consolidated Other Cash Producing Assets" at any time of determination means
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the sum, without duplication, of (a) Consolidated Restricted Cash plus (b)
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Consolidated Receivables plus (c) Consolidated Excess Servicing Asset at such
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time.
"Consolidated Pre-Tax Income" for any period, means net earnings before income
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taxes of the Borrower and its Subsidiaries determined on a consolidated basis,
but excluding:
(i) the amount by which capital gains and other extraordinary credits
exceed capital losses and extraordinary charges;
(ii) any gain arising from any write-up of assets or from the acquisition of
any Securities of the Borrower or any of its Subsidiaries;
(iii) earnings of any Person realized prior to the date it becomes a
Subsidiary of the Borrower or its assets are acquired by merger or
otherwise by the Borrower or a Subsidiary of the Borrower;
(iv) earnings of any Person (other than a Subsidiary of the Borrower) in
which the Borrower or any of its Subsidiaries has an ownership
interest, not received by the Borrower or such Subsidiary in the form
of cash distributions, provided that any earnings excluded pursuant to
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this clause (iv) may be included in the year in which they are actually
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received as cash distributions;
(v) earnings denominated in any currency which is not freely convertible
into United States dollars, provided that any earnings excluded
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pursuant to this clause (v) may be included in the year in which they
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are actually converted into United States dollars;
(vi) any portion of the earnings of any Subsidiary of the Borrower which for
any reason is unavailable for payment of dividends to the Borrower or
any other Subsidiary of the Borrower;
(vii) earnings of any Person (other than a Subsidiary of the Borrower)
realized prior to the date it acquires the assets of the Borrower by
merger or otherwise; and
(viii) any gain arising from the termination of a Plan.
4
"Consolidated Receivables" at any time of determination means all receivables
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of the Borrower and its Subsidiaries at such time (net of allowances for credit
losses), determined in accordance with GAAP and in conformity with the line item
entitled "receivables net of an allowance for credit losses" in the consolidated
statements of financial condition referred to in Section 5.4, but excluding the
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aggregate principal amount of consumer and commercial loans owned by the
Borrower or any of its Subsidiaries at such time.
"Consolidated Restricted Cash" has the meaning assigned to such term in the
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definition "Consolidated Unrestricted Cash" herein.
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"Consolidated Tangible Net Worth" at any time of determination means,
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Consolidated Adjusted Tangible Net Worth minus the outstanding principal amount
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of Subordinated Indebtedness of the Borrower and its Subsidiaries at such time.
"Consolidated Unrestricted Cash" at any time of determination means (a) the
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aggregate amount of cash and cash equivalents of the Borrower and its
Subsidiaries at such time minus (b) any such amounts which are held in trust or
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in any fiduciary capacity in whole or in part for the benefit of Persons other
than the Borrower and its Subsidiaries or which are on deposit or otherwise
acting as a reserve, cash collateral or other form of credit or other
enhancement in respect of loans or other Property (or any interest therein)
transferred by the Borrower or any of its Subsidiaries to Persons other than the
Borrower and its Subsidiaries (such amount described in this clause (b) is
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referred to herein as "Consolidated Restricted Cash"), all as calculated in
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accordance with GAAP in the same manner as the line item "cash and cash
equivalents" in the consolidated statements of financial condition of the
Borrower and its Subsidiaries referred to in Section 5.4, excluding the portion
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of such amount referred to as "restricted".
"Consolidated Unsecured Debt" at any time of determination means Consolidated
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Funded Debt minus any Indebtedness secured by Liens permitted pursuant to
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Section 6.13(a)(vi).
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"Contingent Obligation" of a Person means any agreement, undertaking or
---------------------
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or discount with recourse, but excluding (i)
endorsements of negotiable instruments for deposit or collection in the ordinary
course of business of the Borrower and its Subsidiaries and (ii) any recourse
obligation of the Borrower or any of its Subsidiaries with respect to loans or
other receivables sold to trusts or other special purpose entities in
securitization transactions entered into in the ordinary course of business of
the Borrower and its Subsidiaries to the extent such recourse obligation either
(x) is in respect of a breach of representation made by the Borrower or any of
its Subsidiaries relating to such sale of receivables or (y) constitutes the
repurchase obligations reported in the Borrower's consolidated financial
statements as of December 31, 1995. Contingent Obligations of a Person shall
include, without limitation, the stated amount of each letter of credit, surety
bond and other similar instrument issued by such Person. The amount of any
Contingent Obligation of a Person shall be deemed to be the maximum amount for
which such Person may be liable, whether upon the occurrence of any contingency
or otherwise, under or by virtue of such Contingent Obligation.
"Conversion/Continuation Notice" is defined in Section 2.9.
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"Controlled Group" means all members of a controlled group of corporations and
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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.
5
"Corporate Base Rate" means a rate per annum equal to the corporate base rate
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of interest announced by First Chicago from time to time, changing when and as
said corporate base rate changes.
"Default" means an event described in Article VII.
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"Designated Subordinated Indebtedness" means that certain Note Purchase
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Agreement dated September 2, 1991 between the Borrower and American Bankers Life
Assurance Company of Florida regarding that certain Senior Subordinated Note in
the initial amount of $2,000,000.
"Distribution" means:
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(1) dividends or other payments or distributions (including any
prepayment or sinking fund payment) made directly or indirectly on capital
stock of the Borrower (except dividends or other distributions payable solely
in such stock); and
(2) the redemption, purchase, acquisition or other retirement of capital
stock of the Borrower or of warrants, rights or other options to purchase or
acquire such stock (except when solely in exchange for such stock, warrants,
rights or other options) unless made, contemporaneously, solely from the net
proceeds of a sale of such stock or warrants, rights or other options to
purchase or acquire such stock.
Any Distribution of Property other than cash shall be valued at the greater of
book or fair market value (as determined in the good faith judgment of the
Borrower's Board of Directors).
"Disqualified Stock" means with respect to any Person, any equity security or
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other similar interest of such Person which by its terms, by the terms of any
Security into which it is convertible or exchangeable, or otherwise, is, or upon
the happening of an event would be, (a) required to be redeemed (i) on or prior
to the Facility Termination Date or (ii) at the option of the holder thereof, or
(b) exchangeable or convertible, directly or indirectly, into any Security other
than (i) non-redeemable common stock or (ii) preferred stock which is not so
required to be redeemed on or prior to the Facility Termination Date or at the
option of the holder of such preferred stock.
"Environmental Laws" means any and all federal, state, local and foreign
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statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
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from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at a Eurodollar
------------------
Rate. Only Facility A Advances may be Eurodollar Advances.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
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relevant Eurodollar Interest Period, the rate determined by the Agent to be the
rate at which First Chicago offers to place deposits in U.S. dollars with first-
class banks in the London interbank market at approximately 11 a.m. (London
time) two Business Days prior to the first day of such Eurodollar Interest
Period, in the approximate amount of First Chicago's relevant Eurodollar Loan
and having a maturity approximately equal to such Eurodollar Interest Period.
6
"Eurodollar Interest Period" means, with respect to a Eurodollar Advance, a
--------------------------
period of one, two, three or six months commencing on a Business Day selected by
the Borrower pursuant to this Agreement. Such Eurodollar Interest Period shall
end on the day which corresponds numerically to such date one, two, three or six
months thereafter; provided, however, that if there is no such numerically
-------- -------
corresponding day in such next, second, third or sixth succeeding month, such
Eurodollar Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If a Eurodollar Interest Period would
otherwise end on a day which is not a Business Day, such Eurodollar Interest
Period shall end on the next succeeding Business Day; provided, however, that if
-------- -------
said next succeeding Business Day falls in a new calendar month, such Eurodollar
Interest Period shall end on the immediately preceding Business Day.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar Rate.
---------------
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the relevant
---------------
Eurodollar Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Eurodollar Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to such
Eurodollar Interest Period, plus (ii) the Applicable Margin in effect from time
to time during such Eurodollar Interest Period. The Eurodollar Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"Excluded Subsidiary" means a Subsidiary of the Borrower designated as such
-------------------
with the prior written consent of the Required Lenders. By its execution of
this Agreement, each Lender hereby consents to the designation as an Excluded
Subsidiary of each Subsidiary designated with an asterisk on Schedule 1 attached
----------
hereto.
"Facility A Advance" means an Advance consisting of Facility A Loans.
------------------
"Facility A Commitment" is defined in Section 2.1(a).
--------------------- --------------
"Facility A Loan" is defined in Section 2.1(a).
--------------- --------------
"Facility B Advance" means an Advance consisting of Facility B Loans.
------------------
"Facility B Commitment" means, for each Facility B Lender, the obligation of
---------------------
such Facility B Lender to make Facility B Loans not exceeding the amount set
forth opposite its signature below under the heading "Facility B" or as set
forth and so designated in any Notice of Assignment relating to any assignment
of such Facility B Lender's Facility B Commitment that has become effective
pursuant to Section 12.3.2, as such amount may be modified from time to time
--------------
pursuant to the terms hereof.
"Facility B Lenders" means First Chicago and First Union and their respective
------------------
successors and assigns.
"Facility B Loan" is defined in Section 2.1(b).
--------------- --------------
"Facility Termination Date" means August 16, 1999 or any earlier date on which
-------------------------
the Aggregate Commitment (including, without limitation, the Aggregate Facility
B Commitment) is reduced to zero or otherwise terminated pursuant to the terms
hereof.
"Federal Funds Effective Rate" means, for any day, an interest 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
7
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"First Chicago" means The First National Bank of Chicago in its individual
-------------
capacity, and its successors.
"First Union" means First Union National Bank of North Carolina in its
-----------
individual capacity, and its successors.
"Floating Rate Advance" means an Advance which bears interest at the Alternate
---------------------
Base Rate.
"Floating Rate Loan" means a Loan which bears interest at the Alternate Base
------------------
Rate.
"GAAP" means generally accepted accounting principles applied in a manner
----
consistent with that used in preparing the financial statements referred to in
Section 5.4, as in effect from time to time for purposes of the financial
-----------
reporting requirements set forth in Section 6.1 and, subject to Section 9.9, any
----------- -----------
other provisions of this Agreement.
"Guarantor" means each Subsidiary of the Borrower (other than an Excluded
---------
Subsidiary), and its respective successors and assigns.
"Guaranty" means that certain Subsidiary Guaranty dated as of August 16, 1996
--------
executed by each Guarantor in favor of the Agent, for the ratable benefit of the
Lenders, as it may be amended or modified and in effect from time to time.
"Indebtedness" of a Person means such Person's (i) obligations for borrowed
------------
money, (ii) obligations representing the deferred purchase price of Property or
services (other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade) and obligations to
repurchase loans or other receivables transferred by such Person as a result of
a breach of representation, warranty or covenant by such Person, (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) reimbursement obligations in respect of drawings under any
letter of credit, surety bond, bankers acceptance or other similar instrument
issued for the account of such Person, (vi) Contingent Obligations, (vii) the
aggregate redemption price of all Disqualified Stock, (viii) Capitalized Lease
Obligations, and (ix) Synthetic Lease Obligations.
"Investment" of a Person means any loan, advance (other than commission,
----------
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other Securities owned by such Person; any
deposit accounts and certificate of deposit owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or
contracts owned by such Person.
"Lenders" means the lending institutions listed on the signature pages of this
-------
Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, any
--------------------
office, branch, subsidiary or affiliate of such Lender or the Agent.
"Level I Status" exists at any date if, at such date, the Borrower has a
--------------
senior, unsecured long-term debt rating (without any third-party credit
enhancement with respect to such debt) from either S&P or Moody's and such debt
is rated (x) BBB+ or better by S&P or (y) Baa1 or better by Moody's.
8
"Level II Status" exists at any date if, at such date, Level I Status does not
---------------
exist, the Borrower has a senior, unsecured long-term debt rating (without any
third-party credit enhancement with respect to such debt) from either S&P or
Moody's and such debt is rated (x) BBB by S&P or (y) Baa2 by Moody's.
"Level III Status" exists at any date if, at such date, neither Level I nor
----------------
Level II Status exists, the Borrower has a senior, unsecured long-term debt
rating (without any third-party credit enhancement with respect to such debt)
from either S&P or Moody's, and such debt is rated (x) BBB- by S&P or (y) Baa3
by Moody's.
"Level IV Status" exists at any date if, at such date, none of Level I, Level
---------------
II or Level III Status exists.
"Lien" means any interest in Property securing an obligation owed to, or a
----
claim by, a Person other than the owner of the Property, whether the interest is
based on common, statute or contract and including any lien, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement or in respect of Synthetic Lease Obligations). The term "Lien" shall
----
include reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting Property, but shall not be deemed to include a negative
pledge clause prior to such time, if any, as such clause purports to impose a
security interest lien on any Property of the Borrower or any Subsidiary of the
Borrower. For the purposes of this Agreement, the Borrower or a Subsidiary of
the Borrower shall be deemed to be the owner of any Property which it has
acquired or holds subject to a Capitalized Lease, Synthetic Lease or a
conditional sale agreement or other arrangement pursuant to which title to the
Property has been retained by or vested in some other Person for security
purposes, and such retention or vesting shall be deemed to create a Lien on the
Property.
"Loan" means as the context may require or allow, a Facility A Loan or a
----
Facility B Loan (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Notes, the Guaranty and the other
--------------
documents and agreements contemplated hereby and executed by the Borrower, any
Guarantor or any of their respective officers, agents or Affiliates.
"Material Adverse Effect" means a material adverse effect on (i) the business,
-----------------------
Property, condition (financial or otherwise), results of operations, or
prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower or any Guarantor to perform its respective obligations
under the Loan Documents, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the Lenders hereunder
or thereunder.
"Material Indebtedness" is defined in Section 7.5.
--------------------- -----------
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Multiemployer Plan" means a Plan maintained pursuant to a collective
------------------
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Note" means, as the context may require or allow, either or both of (i) a
----
promissory note, in substantially the form of Exhibit A-1 hereto, duly executed
-----------
by the Borrower and payable to the order of a Lender in the amount of its
Commitment, or (ii) a promissory note, in substantially the form of Exhibit A-2
-----------
hereto, duly executed by the Borrower and payable to the order of a Facility B
Lender in the amount of its Facility B
9
Commitment, in each case including any amendment, modification, renewal or
replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
-------------------- --------------
"Obligations" means all unpaid principal of and accrued and unpaid interest on
-----------
the Notes, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or to any
Lender, the Agent or any indemnified party hereunder arising under the Loan
Documents.
"Operating Lease Obligations" means, as at any date of determination, the
---------------------------
amount obtained by aggregating the present values, determined in the case of
each particular Operating Lease by applying a discount rate (which discount rate
shall equal the discount rate which would be applied under GAAP if such
Operating Lease were a Capitalized Lease) from the date on which each fixed
lease payment is due under such Operating Lease to such date of determination,
of all fixed lease payments due under all Operating Leases of the Borrower and
its Subsidiaries.
"Operating Lease" of a Person means any lease of Property (other than a
---------------
Capitalized Lease) by such Person as lessee or sublessee or guarantor of another
Person acting as a lessee or sublessee which has an original term (including any
required renewals and any renewals effective at the option of the lessor) of one
year or more.
"Participants" is defined in Section 12.2.1.
------------ --------------
"Payment Date" means the fifteenth day of each calendar month.
------------
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
----
thereto.
"Percentage" of any Lender means, at any time of determination, the percentage
----------
which such Lender's Commitment represents of the Aggregate Commitment at such
time.
"Person" means any natural person, corporation, firm, joint venture,
------
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV of
----
ERISA or subject to the minimum funding standards under Section 412 of the Code
as to which the Borrower or any member of the Controlled Group may have any
liability.
"Property" of a Person means any and all property, whether real, personal,
--------
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Purchasers" is defined in Section 12.3.1.
---------- --------------
"Quarterly Payment Date" means each March 31, June 30, September 30 and
----------------------
December 31.
"Regulation D" means Regulation D of the Board of Governors of the Federal
------------
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
------------
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors
10
relating to the extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
----------------
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; provided, however, that a failure to meet the
-------- -------
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66-2/3% of
----------------
the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66-2/3% of the aggregate unpaid
principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a Eurodollar Interest Period, the
-------------------
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Restricted Investments" of any Person means all Investments of such Person
----------------------
(including without limitation, loans and advances to, and other Investments in,
Subsidiaries of such Person), the creation of any Subsidiary of such Person,
such Person's becoming or remaining a partner in any partnership or joint
venture, or such Person's Acquisition of any Person, except:
(i) investments by the Borrower or any of its Subsidiaries in a
Subsidiary of the Borrower or any corporation which concurrently with such
investment becomes a Subsidiary of the Borrower, or investments by any
Subsidiary of the Borrower in the Borrower;
(ii) investments in direct obligations of the United States of
America or any agency thereof, or repurchase agreements for such
obligations in an aggregate amount not exceeding $20,000,000 and with a
duration not exceeding 30 days with any bank or trust company organized
under the laws of the United States or any state thereof having both (i)
capital, surplus and undivided profits aggregating at least $100,000,000
and (ii) outstanding short-term debt rated A-1 or better by S&P or P-1 or
better by ▇▇▇▇▇'▇;
(iii) investments in federal funds, certificates of deposit, time
deposits and banker's acceptances, in each case having original maturities
of not more than 365 days and issued by a bank or trust company organized
under the laws of the United States or any state hereof having both (i)
capital, surplus and undivided profits aggregating at least $100,000,000
and (ii) outstanding short-term debt rated A-1 or better by S&P or P-1 or
better by ▇▇▇▇▇'▇;
(iv) investments in debt instruments of any state or political
subdivision thereof rated AA or better by S&P or Aa3 or better by ▇▇▇▇▇'▇
and maturing not more than one year from the date of acquisition thereof;
(v) investments in commercial paper (having original maturities
of not more than 365 days) rated A-1 or better by S&P or P-1 or better by
▇▇▇▇▇'▇;
(vi) investments in corporate debt obligations rated AA or better
by S&P or Aa3 or better by ▇▇▇▇▇'▇ and maturing not more than one year from
the date of acquisition thereof; and
11
(vii) investments in money market funds the assets of which are
invested solely in the instruments described in clauses (ii)-(vi) hereof.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
----------------------------- -----------
"Section" means a numbered section of this Agreement, unless another
-------
document is specifically referenced.
"Securitization SPV" means a Subsidiary of the Borrower which is a
------------------
bankruptcy-remote special purpose entity formed for the sole purpose of
securitizing consumer loans and other receivables of the Borrower and its other
Subsidiaries, so long as (i) such entity does not itself originate consumer
loans, receivables or other financial assets, but rather acquires such assets
from the Borrower and its other Subsidiaries and (ii) such entity does not make
or suffer to exist any Contingent Obligation.
"Security" has the meaning assigned to such term in Section 2(1) of the
--------
Securities Act of 1933, as amended.
"Single Employer Plan" means a Plan maintained by the Borrower or any
--------------------
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
---
Hill Companies, Inc.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
-------------------------
Person the payment of which is subordinated to payment of the Obligations and
either (i) is listed on Part A of Schedule 2 attached hereto or (ii) with
------ ----------
respect to which the Required Lenders have stated in writing that they are
satisfied with the terms (including without limitation the subordination terms)
of such Indebtedness.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
----------
outstanding Voting Stock of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, or (ii) any partnership,
limited liability company, association, joint venture, enterprise, trust, or
other entity or organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
-------------------
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
----------
above.
"Subsidiary Stock" means any shares of the stock (or any options or
----------------
warrants to purchase stock or other Securities exchangeable for or convertible
into stock) of a Subsidiary.
"Synthetic Lease Obligations" means, as at any date of determination, the
---------------------------
amount of Operating Lease Obligations under all Operating Leases of the Borrower
and its Subsidiaries which are structured to be treated as loans for commercial,
bankruptcy and federal income tax law purposes.
"Transferee" is defined in Section 12.4.
---------- ------------
12
"Turtletaub Group" means any or all of (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (ii) ▇▇▇▇
----------------
Turtletaub, (iii) their respective "affiliates" and "associates" (as each of
such terms is defined in Rule 12b-2 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934), (iv) their respective heirs or
estates, and (v) any trust created for the exclusive benefit of the
grandchildren of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ of which either or both of
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall be a trustee and, as such, have sole
power to vote the stock held in such trust.
"Type" means, with respect to any Advance, its nature as a Floating Rate
----
Advance or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present value
--------------------
of all vested and unvested accrued benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the
-----------------
giving of notice, or both, would constitute a Default.
"Voting Stock" of any Person means Securities the holders of which are
------------
ordinarily, in the absence of contingencies, entitled to elect the corporate
directors (or Persons performing similar functions) of such Person.
"Wholly-Owned Subsidiary" means a Subsidiary, all of the equity Securities
-----------------------
(except directors' qualifying shares) of which are owned by the Borrower and/or
the Borrower's other Wholly-Owned Subsidiaries.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
-----------
2.1. Commitments.
-----------
(a) From and including the date of this Agreement and prior to the
Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make loans (each a "Facility A
----------
Loan") to the Borrower from time to time in amounts not to exceed in the
----
aggregate at any one time outstanding the amount of its Commitment. The
commitment of each Lender to make Facility A Loans pursuant to this Section
-------
2.1 is referred to herein as its "Facility A Commitment". No Lender shall
--- ---------------------
be required to make any Facility A Loan if, after giving effect thereto,
the then aggregate outstanding principal amount of all Facility A Loans and
Facility B Loans would exceed the Aggregate Commitment. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow at any
time prior to the Facility Termination Date. The Facility A Commitments
shall expire on the Facility Termination Date.
(b) Each Facility B Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make loans (each a "Facility B
----------
Loan") to the Borrower from time to time in amounts not to exceed in the
----
aggregate at any one time outstanding such Facility B Lender's Facility B
Commitment; provided that the Facility B Lenders shall not in any event be
--------
obligated to make any Facility B Loan if, after giving effect thereto, (i)
the sum of the outstanding principal amount of the Facility B Loans would
exceed the Aggregate Facility B Commitment, or (ii) the sum of the
outstanding principal amount
13
of the Facility A Loans plus the outstanding principal amount of the
Facility B Loans would exceed the Aggregate Commitment; and provided,
--------
further, that no Facility B Lender shall be obligated to make any Facility
-------
B Loan if, after giving effect thereto, the sum of the outstanding
principal amount of all Facility A Loans and Facility B Loans owing to such
Facility B Lender would exceed its Commitment. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Facility B Loans at
any time prior to the Facility Termination Date. The Facility B Commitments
shall expire on the Facility Termination Date.
2.2. Required Payments; Termination. Any outstanding Advances and all
------------------------------
other unpaid Obligations shall be paid in full by the Borrower on the
Facility Termination Date.
2.3. Ratable Loans.
-------------
(a) Each Facility A Advance hereunder shall consist of Facility A
Loans made from the several Lenders ratably in accordance with their
respective Percentages.
(b) Each Facility B Advance hereunder shall consist of Facility B
Loans made from the several Facility B Lenders ratably in proportion to the
ratio that their respective Facility B Commitments bear to the Aggregate
Facility B Commitment.
2.4. Types of Advances.
-----------------
(a) The Facility A Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9.
------------ ---
(b) The Facility B Advances shall be Floating Rate Advances.
2.5. Facility Fee; Reductions in Aggregate Commitment; Syndication Fee.
-----------------------------------------------------------------
(a) The Borrower agrees to pay to the Agent for the account of each
Lender a facility fee in an amount equal to the Applicable Facility Fee
Percentage of such Lender's Commitment, whether used or unused, from the
date hereof to and including the Facility Termination Date, payable in
arrears on each Quarterly Payment Date hereafter and on the Facility
Termination Date.
(b) The Borrower may permanently reduce the Aggregate Commitment
(but not the Aggregate Facility B Commitment) in whole, or in part ratably
among the Lenders in integral multiples of $25,000,000, upon at least five
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction; provided, however, that the amount of the
-------- -------
Aggregate Commitment may not be reduced below the aggregate principal
amount of the outstanding Advances; and provided, further, that if, as a
-------- -------
result of a reduction in the Aggregate Commitment, the Aggregate Facility B
Commitment would exceed the Aggregate Commitment, then the Aggregate
Facility B Commitment shall, without further action, be reduced by the
amount of such excess. All accrued facility fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make
Loans hereunder. The Aggregate Facility B Commitment shall not be reduced
except as set forth in this Section 2.5(b).
--------------
(c) On or before the date hereof, the Borrower shall pay to the
Agent for the account of each Lender a syndication fee in an amount equal
to the amount set forth opposite the name of such Lender on Schedule 3
----------
hereto.
14
2.6. Minimum Amount of Each Advance. Each Facility A Advance shall be
------------------------------
in the minimum amount of $10,000,000 (and in multiples of $5,000,000 if in
excess thereof), and each Facility B Advance shall be in the minimum amount of
$1,000,000 (and in multiples of $500,000 if in excess thereof); provided,
--------
however, that any Facility B Advance may be in the amount of the unused
-------
Aggregate Facility B Commitment.
2.7. Principal Payments.
------------------
(a) The Borrower may from time to time pay, without penalty or
premium, all outstanding Floating Rate Advances, or, any portion of the
outstanding Floating Rate Advances upon one Business Day's prior notice to
the Agent. Subject to Section 3.4 and upon one Business Day's prior notice
-----------
to the Agent, the Borrower may from time to time prepay Eurodollar Advances
in a minimum aggregate payment amount of $5,000,000 (or any integral
multiple of $1,000,000 in excess thereof).
(b) The Borrower shall from time to time prepay the Facility B
Loans so as not to permit the aggregate outstanding balance of Facility B
Loans at any time to equal or exceed $10,000,000 for more then five
consecutive Business Days.
(c) The Borrower shall prepay the Facility B Loans
contemporaneously with any reduction of the Aggregate Facility B Commitment
pursuant to Section 2.5(b).
--------------
2.8. Method of Selecting Types and Eurodollar Interest Periods for New
-----------------------------------------------------------------
Advances. The Borrower shall select the Type of Facility A Advance and, in the
--------
case of each Eurodollar Advance, the Eurodollar Interest Period applicable to
each Facility A Advance from time to time. The Borrower shall give the Agent
(and in the case of a Facility B Advance, each Facility B Lender) irrevocable
notice (a "Borrowing Notice") not later than (a) 10:00 a.m. (Chicago time) on
----------------
the Borrowing Date of each Facility A Advance which is a Floating Rate Advance,
(b) noon (Chicago time) on the Borrowing Date of each Facility B Advance, and
(c) 10:00 a.m. (Chicago time) at least three Business Days before the Borrowing
Date for each Eurodollar Advance, in each case specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected (which shall be a Floating Rate
Advance in the case of a Facility B Advance), and
(iv) in the case of each Eurodollar Advance, the Eurodollar Interest
Period applicable thereto; provided, however that Eurodollar
-------- -------
Advances may be subject to no more than five different Eurodollar
Interest Periods at any time.
Not later than (x) noon (Chicago time), in the case of a Eurodollar Advance, (y)
12:30 p.m. (Chicago time), in the case of a Facility A Advance which is a
Floating Rate Advance, or a Facility B Advance with respect to which the
Facility B Lenders have received a Borrowing Notice by 10:00 a.m. (Chicago time)
on the applicable Borrowing Date, or (z) 3:00 p.m. (Chicago time), in the case
of any Facility B Advance not described in the immediately preceding clause (y),
----------
on each Borrowing Date, each Lender (or in the case of a Facility B Advance,
each Facility B Lender) shall make available its Loan or Loans, in funds
immediately available in Chicago to the Agent at its address specified pursuant
to Article XIII. The Agent will make the funds so received from the Lenders
------------
available to the Borrower at the Agent's aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances. Floating Rate
---------------------------------------------------
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar
15
Advances. Each Eurodollar Advance shall continue as a Eurodollar Advance until
the end of the then applicable Eurodollar Interest Period therefor, at which
time such Eurodollar Advance shall be automatically converted into a Floating
Rate Advance unless the Borrower shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Eurodollar
Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Eurodollar Interest Period. Subject to the terms of Section
-------
2.6, the Borrower may elect from time to time to convert all or any part of an
---
Advance of any Type into any other Type or Types of Advances; provided that any
--------
conversion of any Eurodollar Advance on a day other than the last day of the
Eurodollar Interest Period applicable thereto shall be subject to Section 3.4.
-----------
The Borrower shall give the Agent irrevocable notice (a "Conversion/Continuation
-----------------------
Notice") of each conversion of an Advance or continuation of a Eurodollar
------
Advance not later than 10:00 a.m. (Chicago time) on the Business Day of the
requested conversion or continuation, in the case of a conversion into a
Floating Rate Advance or three Business Days prior to the date of the requested
conversion or continuation, in the case of a conversion into or continuation of
a Eurodollar Advance, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount and Type(s) of Advance(s) into which such Advance is to
be converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Advance, the duration of the Eurodollar
Interest Period applicable thereto; provided, however that
-------- -------
Eurodollar Advances may be subject to no more than five different
Eurodollar Interest Periods at any time.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
-----------------------------
bear interest on the outstanding principal amount thereof, for each day, from
and including the date such Advance is made or is converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section 2.9, to but excluding
-----------
the date it becomes due or is converted into a Eurodollar Advance pursuant to
Section 2.9, at a rate per annum equal to the Floating Rate for such day.
-----------
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Eurodollar Interest Period applicable thereto to (but not including) the last
day of such Eurodollar Interest Period at the interest rate determined as
applicable to such Eurodollar Advance. No Eurodollar Interest Period may end
after the Facility Termination Date .
2.11. Rates Applicable After Default. Notwithstanding anything to the
------------------------------
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
----------- ---
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
-----------
Lenders to changes in interest rates), declare that (i) no Advance may be made
as, converted into or continued as a Eurodollar Advance, (ii) each Eurodollar
Advance shall bear interest for the remainder of the applicable Interest Period
at the rate otherwise applicable to such Interest Period plus 2% per annum and
(iii) each Floating Rate Advance shall bear interest at a rate per annum equal
to the Alternate Base Rate (but not less than the Alternate Base Rate in effect
at the time such Default occurred) plus 2% per annum.
2.12. Method of Payment.
-----------------
(a) All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds
to the Agent at the Agent's address specified pursuant to Article XIII, or
------------
at any other Lending Installation of the Agent specified in writing by the
Agent to the Borrower, by noon (local time) on the date when due.
16
(b) Any payment of principal shall be applied in the following
order of priority:
First: to the outstanding principal balance of the Facility B
-----
Loans, to the extent of any payment required pursuant to
Section 2.7(b) or Section 2.7(c);
-------------- --------------
Second: to the outstanding principal balance of any Facility A
------
Loans to the extent of any payment required pursuant to
Section 2.5(b) as a result of a reduction of the
--------------
Aggregate Commitment; and
Third: to such of the outstanding Facility A Loans and Facility
-----
B Loans as the Borrower (or during the existence of a
Default or an Unmatured Default, the Agent) shall
select.
(c) Any payment of principal of or interest on the Facility B
Loans shall be applied ratably by the Agent among the Facility B Lenders.
Any payment of principal of or interest on the Facility A Loans and any
payment of the facility fee pursuant to Section 2.5 shall be applied
-----------
ratably by the Agent among all the Lenders.
(d) Each payment delivered to the Agent for the account of any
Lender shall be delivered promptly by the Agent to such Lender in the same
type of funds that the Agent received at its address specified pursuant to
Article XIII or at any Lending Installation specified in a notice received
------------
by the Agent from such Lender.
(e) The Agent is hereby authorized to charge the account of the
Borrower maintained with First Chicago for each payment of principal,
interest and fees as it becomes due hereunder.
2.13. Notes; Telephonic Notices. Each Lender is hereby authorized to
-------------------------
record the principal amount of each of its Loans and each repayment on the
schedule attached to its applicable Note; provided, however, that neither the
-------- -------
failure to so record nor any error in such recordation shall affect the
Borrower's obligations under such Note. The Borrower hereby authorizes the
Lenders and the Agent to extend, convert or continue Advances, effect selections
of Types of Advances and to transfer funds based on telephonic notices made by
any person or persons the Agent or any Lender in good faith believes to be
acting on behalf of the Borrower. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If
the written confirmation differs in any material respect from the action taken
by the Agent and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.
2.14. Interest Payment Dates; Interest and Fee Basis. Interest accrued
----------------------------------------------
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Eurodollar Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, or converted to a
Floating Rate Advance, and at maturity. Interest accrued on each Eurodollar
Advance having an Eurodollar Interest Period longer than three months shall also
be payable on the last day of each three-month interval during such Eurodollar
Interest Period. Interest on all Eurodollar Loans and facility fees shall be
calculated for actual days elapsed on the basis of a 360-day year. Interest on
all Floating Rate Loans shall be calculated for actual days elapsed on the basis
of a 365 (or, when appropriate, 366) day year. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the amount paid if
payment is received prior to noon (local time) at the place of payment. If any
payment of
17
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.15. Notification of Advances, Interest Rates, Prepayments and
---------------------------------------------------------
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
---------------------
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice which relates to the making of Facility A Loans,
Conversion/Continuation Notice, and repayment notice which relates to the
repayment of Facility A Loans received by it hereunder. In addition, the Agent
will notify each Facility B Lender of the contents of each Aggregate Facility B
Commitment reduction notice, Borrowing Notice which relates to the making of
Facility B Loans and repayment notice which relates to the repayment of Facility
B Loans promptly after receipt of the same. The Agent will notify each Lender of
the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.16. Lending Installations. Each Lender may book its Loans at any
---------------------
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.17. Non-Receipt of Funds by the Agent. Unless the Borrower or a
---------------------------------
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.18. Risk Participation in Facility B.
--------------------------------
(a) Each Lender (other than any Facility B Lender) shall be deemed
to have unconditionally and irrevocably purchased, as of the date of this
Agreement, a pro rata risk participation from the Facility B Lenders,
--- ----
without recourse to or warranty by any Facility B Lender (except that the
outstanding Facility B Loans in fact were made at a time when the
obligations of the Lenders had not been suspended or terminated by the
Required Lenders or the Agent pursuant to Section 8.1, have not been
-----------
repaid, and have not been sold or assigned by such Facility B Lender), in
an amount equal to that Lender's Percentage of the Aggregate Commitment, of
the principal of the Facility B Loans outstanding from time to time.
(b) Upon the occurrence and during the continuance of a Default,
the Agent may, but is not required to, without notice to or the consent of
the Borrower, suspend the Facility B Commitments and direct the Lenders
(other than the Facility B Lenders) to fund their participations purchased
pursuant to Section 2.18(a) by paying to the Agent an aggregate amount
---------------
equal to the aggregate principal amount of Facility B Loans outstanding at
such time. Each Lender (other than the Facility B Lenders) shall comply
with such Agent's direction by funding its Percentage of such aggregate
amount in the
18
same manner as it is required to fund Facility A Loans hereunder; provided,
--------
however, that, for this purpose, the conditions precedent set forth in
-------
Article IV shall not apply. The proceeds of such fundings shall be paid to
----------
the Agent for the ratable account of the Facility B Lenders to retire the
outstanding principal balance of Facility B Loans and all interest accrued
on such Facility B Loans prior to such payment shall be payable to the
Facility B Lenders. Once made, such fundings shall be deemed to constitute
Facility A Loans for all purposes hereunder and under the other Loan
Documents.
ARTICLE III
CHANGE IN CIRCUMSTANCES
-----------------------
3.1 Yield Protection. If any law or any governmental or quasi-
----------------
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law), or any interpretation thereof, or the compliance of
any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from the
Borrower (excluding federal taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the basis
of taxation of payments to any Lender in respect of its Loans or
other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making,
funding or maintaining loans or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with
loans, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of loans
held or interest received by it, by an amount deemed material by
such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans and its Commitment (which shall include any taxes payable
on the taxes paid by the Borrower pursuant to this Section 3.1 to the extent any
-----------
tax which is not excluded in clause (i) above is payable by such Lender
----------
thereon).
3.2 Changes in Capital Adequacy Regulations. If a Lender determines
---------------------------------------
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its Loans or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change after the date
------
of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date
19
of this Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
-----------------------------
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines that
---------------------------------
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, directive, or official
interpretation thereof, whether or not having the force of law, then the Agent
shall suspend the availability of Eurodollar Advances and require any Eurodollar
Advances to be repaid. If the Required Lenders determine that (i) deposits of a
type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of Eurodollar Advances and require any
Eurodollar Advances to be repaid at the end of their then-current Eurodollar
Interest Periods.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
-----------------------
occurs on a date which is not the last day of the applicable Eurodollar Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance (or any payment thereof) is not made, or an Advance is not
converted to or continued as a Eurodollar Advance, on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Eurodollar Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent reasonably
----------------------------------------
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1 and 3.2 or to avoid the unavailability of Eurodollar
------------ ---
Advances under Section 3.3, so long as such designation is not disadvantageous
-----------
to such Lender in its sole determination. Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Agent) as to the
amount due, if any, under Section 3.1, 3.2 or 3.4. Such written statement shall
----------- --- ---
set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not. The amount specified in the written statement of any Lender
shall be payable on demand after receipt by the Borrower of such written
statement. The obligations of the Borrower under Sections 3.1, 3.2 and 3.4
------------ --- ---
shall survive payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION
-----------------------------------------------
4.1. Initial Advance. The Lenders shall not be required to make the
---------------
initial Advance hereunder unless the Borrower has furnished to the Agent with
sufficient copies for the Lenders:
(i) Copies of the articles of incorporation of the Borrower, together
with all amendments, and a certificate of good standing, both
certified by the Secretary of State of the State of New Jersey.
20
(ii) For each Guarantor, copies of the articles of incorporation of such
Guarantor, together with all amendments, and a certificate of good
standing, both certified by the appropriate governmental officer in
its jurisdiction of incorporation.
(iii) For the Borrower and each Guarantor, copies, certified by the
Secretary or Assistant Secretary of such Person, of its by-laws and
of its Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Lender)
authorizing the execution of the Loan Documents to which it is a
party.
(iv) For the Borrower and each Guarantor, an incumbency certificate,
executed by the Secretary or Assistant Secretary of such Person,
which shall identify by name and title and bear the signature of
the officers of such Person, authorized to sign the Loan Documents
to which it is a party and, in the case of the Borrower, to make
borrowings hereunder, upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by the Borrower or such Guarantor, as the case may be.
(v) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Borrowing Date no Default or
Unmatured Default has occurred and is continuing.
(vi) A written opinion of ▇▇▇▇ ▇. ▇▇▇▇▇, corporate counsel to the
Borrower and each Guarantor, addressed to the Agent and the Lenders
in substantially the form of Exhibit B hereto.
---------
(vii) Notes with respect to Loans under the Facility A Commitments
payable to the order of each of the Lenders and Notes with respect
to Loans under the Facility B Commitments payable to the order of
each of the Facility B Lenders.
(viii) Written money transfer instructions, in substantially the form of
Exhibit E hereto, addressed to the Agent and signed by an
---------
Authorized Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(ix) The Guaranty duly executed by each Guarantor in substantially the
form of Exhibit F hereto.
---------
(x) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Advance. The Lenders shall not be required to make any
------------
Advance (other than a Facility A Advance that, after giving effect thereto and
to the application of the proceeds thereof, does not increase the aggregate
amount of outstanding Advances), unless the Agent shall have received a
Borrowing Notice and on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are true
---------
and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall be true
and correct on and as of such earlier date.
(iii) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
21
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied and shall be satisfied on the
--------------- ----
applicable Borrowing Date.
4.3. Withholding Tax Exemption. At least five Business Days prior to
-------------------------
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Borrower and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Borrower and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Borrower and the Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Borrower and its
--------------------------------
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
5.2. Authorization and Validity. Each of the Borrower and each
--------------------------
Guarantor has the corporate power and authority and legal right to execute and
deliver the Loan Documents to which it is a party and to perform its respective
obligations thereunder. The execution and delivery by each of the Borrower and
each Guarantor of the Loan Documents to which it is a party and the performance
of its respective obligations thereunder have been duly authorized by proper
corporate proceedings. The Loan Documents have been duly executed and delivered
by each of the Borrower and the Guarantors parties thereto and constitute legal,
valid and binding obligations of such of the Borrower and each Guarantor which
is a party thereto, enforceable against each such Person in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally.
5.3. No Conflict; Government Consent. Neither the execution and
-------------------------------
delivery by any of the Borrower or any Guarantor of the Loan Documents to which
such Person is a party, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
the Borrower, any Guarantor or any of their respective Subsidiaries or the
Borrower's, any Guarantor's or any of their respective Subsidiary's articles of
incorporation or by-laws or the provisions of any indenture, instrument or
agreement to which the Borrower, any Guarantor or any of their respective
Subsidiaries is a party or is subject, or by which it, or its Property, is
22
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of the Borrower,
any Guarantor or any of their respective Subsidiaries pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents.
5.4. Financial Statements. The December 31, 1995 audited, and the March
--------------------
31, 1996 unaudited, consolidated financial statements of the Borrower and its
Subsidiaries, each heretofore delivered to the Lenders, were prepared in
accordance with generally accepted accounting principles in effect on the date
such statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then ended.
5.5. Material Adverse Change. Since March 31, 1996, there has been no
-----------------------
event, circumstance or other condition which could have a Material Adverse
Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
-----
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with GAAP and as to which no Lien
exists. The United States income tax returns of the Borrower and its
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 1993. No tax Liens have been filed and no claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
-------------------------------------
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could have a Material Adverse Effect
or which seeks to prevent, enjoin or delay the making of the Loans or Advances.
The Borrower and its Subsidiaries have no material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
-------
5.4.
---
5.8. Subsidiaries. Schedule 1 hereto contains an accurate list of all
------------ ----------
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of incorporation and the percentage of their
respective capital stock owned by the Borrower or other Subsidiaries. All of
the issued and outstanding shares of capital stock of such Subsidiaries have
been duly authorized and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
-----
not in the aggregate exceed $10,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans in excess of $10,000,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
5.10. Accuracy of Information. No information, exhibit or report
-----------------------
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact
23
necessary to make the statements contained therein not misleading. There is no
fact known to the Borrower that has not been disclosed to the Lenders in writing
that materially and adversely affects the ability of the Borrower to perform its
obligations under the Loan Documents.
5.11. Regulation U. Margin stock (as defined in Regulation U)
------------
constitutes less than 25% of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
-------------------
party to any agreement or instrument or subject to any charter or other
corporate restriction which could have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
--------------------
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property if failure to comply
could reasonably be expected to have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Part C of Schedule
----------------------- ------ --------
2 hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
-
have good title, free of all Liens other than those permitted by Section 6.15,
------------
to all of the Property and assets reflected in the financial statements
referenced in Section 5.4 as owned by it.
-----------
5.15. Assets; Prohibited Transactions. The Borrower is not an entity
-------------------------------
deemed to hold "plan assets" within the meaning of 29 C.F.R. (S) 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code); and neither the execution of this Agreement nor the making of Loans
hereunder give rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business, the
---------------------
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
reasonably concluded that Environmental Laws cannot reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any Subsidiary has
received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are
the subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary
----------------------
thereof is an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor any
----------------------------------
Subsidiary thereof is a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
24
5.19. Subordinated Indebtedness. The Obligations constitute senior
-------------------------
indebtedness which is entitled to the benefits of the subordination provisions
of all outstanding Subordinated Indebtedness.
5.20. Insurance. The certificate signed by the President or Chief
---------
Financial Officer of the Borrower, that attests to the existence and adequacy
of, and summarizes, the property and casualty insurance program carried by the
Borrower and that has been furnished by the Borrower to the Agent and the
Lenders, is complete and accurate. This summary includes the insurer's or
insurers' name(s), policy number(s), expiration date(s), amount(s) of coverage,
type(s) of coverage, exclusion(s), and deductibles. This summary also includes
similar information, and describes any reserves, relating to any self-insurance
program that is in effect.
ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
-------------------
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 120 days after the close of each of its fiscal years, an
unqualified audit report certified by nationally recognized
independent certified public accountants, reasonably acceptable to
the Lenders, prepared in accordance with GAAP for itself and its
consolidated Subsidiaries, including (a) a consolidated balance
sheet as of the end of such period, (b) a related consolidated
profit and loss and reconciliation of surplus statements, and
statement of cash flows, (c) balance sheets and statements of
revenue and operating income of the Borrower and its Subsidiaries
for the following areas of business: (I) mortgage loans, (II)
student loans, (III) SBA guaranteed loans, (IV) auto loans, and (V)
any other significant area of business in which the Borrower or its
Subsidiaries are engaged, accompanied by (x) any management letter
prepared by said accountants and (y) a certificate of said
accountants that, in the course of their examination necessary for
their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default shall
exist, stating the nature and status thereof.
(ii) Within 60 days after the end of each of the first three quarterly
fiscal periods in each fiscal year of the Borrower, (a) a
consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of that quarter, (b) consolidated statements of income,
retained earnings and cash flows of the Borrower and its
Subsidiaries, for that quarter and (in the case of the second and
third quarters) for the portion of the fiscal year ending with that
quarter, and (c) statements of revenue and operating income of the
Borrower and its Subsidiaries for the following areas of business:
(I) mortgage loans, (II) student loans, (III) SBA guaranteed loans,
(IV) auto loans, and (V) any other significant area of business in
which the Borrower or its Subsidiaries are engaged.
(iii) Together with the financial statements required under Sections
--------
6.1(i) and (ii), a compliance certificate in substantially the form
------ ----
of Exhibit C hereto signed by its Chief Financial Officer showing
---------
the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists,
or if any Default or Unmatured Default exists, stating the nature
and status thereof.
25
(iv) Together with the financial statements required under Sections
--------
6.1(i) and (ii), a summary of delinquency information with respect
------ ----
to loans serviced by the Borrower in such form as is customarily
prepared by the Borrower from time to time.
(v) Within 270 days after the close of each fiscal year, a statement of
the Unfunded Liabilities of each Single Employer Plan, certified as
correct by an actuary enrolled under ERISA.
(vi) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with respect
to any Plan, a statement, signed by the chief financial officer of
the Borrower, describing said Reportable Event and the action which
the Borrower proposes to take with respect thereto.
(vii) As soon as possible and in any event within 10 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable to
any Person as a result of the release or the presence of any toxic
or hazardous waste or substance into the environment, and (b) any
notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower
or any of its Subsidiaries, which, in either case, could reasonably
be expected to have a Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(ix) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission.
(x) Such other information (including non-financial information) as the
Agent or any Lender may from time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each of its
---------------
Subsidiaries to, use the proceeds of the Advances for general corporate purposes
(including, without limitation, the repayment of outstanding Advances). The
Borrower will not, and will not permit any of its Subsidiaries to, use any of
the proceeds of the Advances to purchase or carry any "margin stock" (as defined
in any of Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System) or to make any Acquisition not permitted by Section 6.12.
------------
6.3. Notice of Default. The Borrower will, and will cause each of its
-----------------
Subsidiaries to, give prompt notice in writing to the Lenders of the occurrence
of any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each of its
-------------------
Subsidiaries to, do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority (including, without
limitation, all required franchises, licenses, permits and approvals) to conduct
its business in each jurisdiction in which its business is conducted. The
Borrower and its Subsidiaries at all times shall derive not less than 80% of
their consolidated gross revenues from consumer and commercial financial
services in the United States.
6.5. Taxes. The Borrower will, and will cause each of its Subsidiaries
-----
to, timely file complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except
26
those which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves have been set aside in accordance with
GAAP.
6.6. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts and covering such
risks as is consistent with sound business practice, and the Borrower will
furnish to any Lender upon request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each of
--------------------
its Subsidiaries to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject.
6.8. Maintenance of Properties. The Borrower will, and will cause each
-------------------------
of its Subsidiaries to, do all things necessary to maintain, preserve, protect
and keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
6.9. Maintenance of Books; Inspection. The Borrower will, and will
--------------------------------
cause each of its Subsidiaries to (i) maintain a standard and modern system of
accounting and keep true books of records and accounts in which full and correct
entries will be made of all its respective business transactions, and reflect in
its respective financial statements adequate accruals and appropriations to
reserves, all in accordance with GAAP, and (ii) permit the Agent and the
Lenders, by their respective representatives and agents, to inspect any of the
Property, corporate books and financial records of the Borrower and each such
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each such Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each such Subsidiary with,
and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate upon reasonable
notice given to the Borrower.
6.10. Merger. The Borrower will not, and will not permit any of its
------
Subsidiaries to, merge or consolidate with or into any other Person; provided,
--------
however, that a Subsidiary of the Borrower may merge into the Borrower or a
-------
Guarantor if the Borrower or such Guarantor, as the case may be, is the
surviving corporation.
6.11. Sale of Assets. The Borrower will not, and will not permit any of
--------------
its Subsidiaries to, lease, sell or otherwise dispose of its Property (whether
voluntarily or involuntarily), to any other Person, except:
(i) Sales in the ordinary course of business of loans originated or
purchased by the Borrower or any of its Subsidiaries; provided,
--------
however that (x) immediately before and after giving effect to such
-------
transaction, no Default or Unmatured Default would exist and (y)
such sale is for fair value and is in the best interests of the
Borrower or such Subsidiary, in the opinion of such Person's Board
of Directors; and
(ii) Leases, sales or other dispositions of its Property that, together
with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than pursuant to
clause (i) above) as permitted by this Section during the twelve-
----------
month period ending with the month in which any such lease, sale or
other disposition occurs, do not constitute a Substantial Portion
of the Property of the Borrower and its Subsidiaries and so long as
(x) immediately before and after giving effect to such transaction
no Default or Unmatured Default would exist and (y) in the opinion
of the Borrower's Board of Directors such sale or other disposition
is for fair value and is in the best interests of the Borrower.
27
6.12. Investments and Acquisitions. The Borrower will not, and will not
----------------------------
permit any of its Subsidiaries to, make or suffer to exist any Restricted
Investments or commitments therefor, unless, after giving effect thereto, the
aggregate amount (at original cost) of all outstanding Restricted Investments of
the Borrower and all of its Subsidiaries shall be less than 25% of Consolidated
Tangible Net Worth. Any Person which becomes a Subsidiary of the Borrower after
the date hereof shall be deemed to have made, at the time it becomes a
Subsidiary, all Restricted Investments of such Person existing immediately after
it becomes a Subsidiary. Unless otherwise directed by the Agent or the Required
Lenders, any Person which becomes a Subsidiary of the Borrower (other than a
Securitization SPV, so long as such Person remains a Securitization SPV) after
the date hereof, shall, contemporaneously with such Person becoming a
Subsidiary, become a party to the Guaranty and provide to the Agent such
opinions and certificates in respect thereof as the Agent or the Required
Lenders may reasonably request.
6.13. Liens.
-----
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on
the Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside on
its books; provided, however, that the Borrower's or the
-----------------
applicable Subsidiary's title to such Property is not
materially adversely affected and its use of such Property in
the ordinary course of its business is not materially
interfered with.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations which are not past due and are being contested in
good faith and by appropriate proceedings and for which
adequate reserves in accordance with generally accepted
principles of accounting shall have been set aside on its
books; provided, however, that the Borrower's or the
-----------------
applicable Subsidiary's title to such Property is not
materially adversely affected and its use of such Property in
the ordinary course of its business is not materially
interfered with.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation (and not in connection with borrowed money,
advances or the deferred purchase price of Property).
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries.
(v) Liens existing on the date hereof and described in Part C of
------
Schedule 2 hereto.
----------
(vi) Liens securing obligations of the Borrower for borrowed money
arising under inventory warehouse financing facilities entered
into by the Borrower from time to time which are secured by
consumer or commercial loans or other receivables owned
28
by the Borrower or any Subsidiary of the Borrower or by the
cash proceeds of such loans or receivables, provided that such
Lien and obligations are incurred in the ordinary course of
business of such Subsidiary and the Borrower.
(vii) Liens placed on tangible real or personal Property being
acquired by the Borrower or any Subsidiary of the Borrower
securing Indebtedness incurred to finance all or part of the
purchase price thereof, provided that (i) such Lien is
incurred within six months of the acquisition of such Property
by the Borrower or such Subsidiary and (ii) the principal
amount of such Indebtedness does not exceed the lesser of (x)
the fair market value of such Property at the time of such
incurrence or (y) the purchase price of such Property.
(b) Notwithstanding anything contained in Section 6.13(a):
---------------
(x) the Borrower will not, and will not permit or suffer and
Subsidiary to, at any time, create or permit or suffer to exist any
Lien on any Subsidiary Stock or other Security issued by a
Subsidiary and held by the Borrower or by another Subsidiary; and
(y) no Lien permitted by Section 6.13(a) shall result in any
---------------
obligation of the Borrower or any Subsidiary being secured by
assets which have a fair market value in excess of the amount of
such obligation except as generally required by conventional
commercial practice, and then only if, after giving effect to such
over-collateralization, the Borrower or such Subsidiary owns
similar assets, free of any Lien, which have an aggregate value at
least equal to the difference between (A) the aggregate fair market
value (as determined in the reasonable good faith judgment of the
Borrower's Board of Directors) of all assets of the Borrower or
such Subsidiary, as the case may be, securing such obligations, and
(B) the aggregate amount of all such secured obligations of the
Borrower or such Subsidiary.
(c) In case any Property is subjected to a Lien securing
Indebtedness of the Borrower or any Subsidiary in violation of Section
-------
6.13(a) or (b), the Borrower will make or cause to be made provision
--------------
whereby the Obligations will be secured equally and ratably with all other
obligations secured thereby, and in any case the Obligations shall have the
benefit, to the full extent that, and with such priority as, the Lenders
may be entitled thereto under applicable law, of an equitable Lien on such
Property securing the Obligations. Such violation of Section 6.13(a) or (b)
------- ---
shall result in a Default hereunder, whether or not any such provision is
made pursuant to this Section 6.13(c).
---------------
6.14. Subsidiary Indebtedness. No Subsidiary will (i) become liable for
-----------------------
or have outstanding, any Indebtedness (except to the extent a Contingent
Obligation permitted by Section 6.17 constitutes Indebtedness) other than to the
------------
Borrower or to a Wholly-Owned Subsidiary of the Borrower or (ii) permit its
Property to be subject to a Lien securing any Indebtedness except for Liens on
loans or other receivables of a Subsidiary or on the cash proceeds of such loans
or other receivables securing Indebtedness of the Borrower, which are permitted
pursuant to Section 6.13(a)(vi).
-------------------
6.15. Affiliates. The Borrower will not, and will not permit any of its
----------
Subsidiaries to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
29
6.16. Subordinated Indebtedness. The Borrower will not issue any
-------------------------
Subordinated Indebtedness or Disqualified Stock unless the same is not otherwise
prohibited hereunder and the first sinking fund, redemption or other required
payment is scheduled to occur after the Facility Termination Date. The Borrower
will not, and will not permit any of its Subsidiaries to, make any amendment or
modification to the indenture, note or other agreement evidencing or governing
any Subordinated Indebtedness, or directly or indirectly voluntarily prepay,
defease or in substance defease, purchase, redeem, retire or otherwise acquire,
any Subordinated Indebtedness; provided, however, that the Borrower may from
-------- -------
time to time extend (but not increase) the Designated Subordinated Indebtedness.
6.17. Contingent Obligations. (a) The Borrower will not make or suffer
----------------------
to exist any Contingent Obligation unless (i) after giving effect to the
existence of such Contingent Obligation, no Default or Unmatured Default would
exist, and (ii) the maximum amount of Indebtedness, dividend or other obligation
or liability with respect to which such Contingent Obligation provides assurance
(as well as the maximum amount of such Contingent Obligation) can be
mathematically determined at the time such Contingent Obligation is incurred.
(b) No Subsidiary of the Borrower will make or suffer to exist any
Contingent Obligation except (i) the Guaranty, (i) the existing Contingent
Obligations listed in Part B of Schedule 2 attached hereto, and (iii) any other
------ ----------
Contingent Obligation incurred by the Borrower or any Subsidiary which satisfies
all of the following conditions: (A) it is a guaranty of indebtedness for
borrowed money, (B) the Borrower is the primary obligor of the indebtedness
guaranteed; (C) the proceeds of such indebtedness are applied by the Borrower to
provide funds (including working capital) to be used in the ordinary course of
business of the Borrower and its Subsidiaries; (D) after giving effect to the
existence of such Contingent Obligation, no Default or Unmatured Default would
exist; (E) the maximum amount of indebtedness being guaranteed (as well as the
maximum amount of such Contingent Obligation) can be mathematically determined
at the time the Contingent Obligation is incurred; and (F) such Contingent
Obligation and the indebtedness of the Borrower guaranteed thereby is incurred
in the ordinary course of business of such Subsidiary and the Borrower and in
accordance with the current practice of the Borrower and its Subsidiaries, at
the date hereof.
6.18. Distributions. Neither the Borrower nor any Subsidiary will
-------------
declare, make or become obligated to make any Distribution unless, immediately
after giving effect thereto the aggregate amount of all Distributions declared,
made or obligated, for the period subsequent to December 31, 1994 would not
exceed the sum of (x) 50% (or 100% in case of a negative number) of Consolidated
Pre-Tax Income (net of income taxes) accumulated after December 31, 1994, plus
----
(y) 100% of the aggregate net proceeds received by the Borrower after December
31, 1994 from the issue and sale of its capital stock (less any portion of the
net proceeds of such sale of capital stock which was used by the Borrower to
contemporaneously redeem or acquire any of the Borrower's capital stock or
warrants, rights or other options to purchase or acquire such stock), plus (z)
----
the aggregate amount of capital contributions to the Borrower made after
December 31, 1994 in any fashion other than through the purchase of the
Borrower's capital stock. The Borrower will not become obligated to make a
Distribution which is payable more than sixty days after authorization.
6.19. Subsidiary Preferred Stock. No Subsidiary shall (i) issue
--------------------------
preferred stock except shares of nonconvertible preferred stock issued to the
Borrower or a Wholly-Owned Subsidiary of the Borrower or (ii) permit any shares
of its preferred stock to remain outstanding except (x) shares of its
nonconvertible preferred stock which are held by the Borrower or a Wholly-Owned
Subsidiary of the Borrower and (y) shares of nonconvertible preferred stock of a
Guarantor held by others at the time such Guarantor becomes a Guarantor so long
as such shares of preferred stock were not issued or transferred to such others
in contemplation of, or in connection with, such Guarantor becoming a Subsidiary
of the Borrower.
30
6.20. Financial Covenants.
-------------------
(a) Fixed Charge Coverage. The Borrower will not permit the ratio of
---------------------
(i) the sum of Consolidated Pre-Tax Income plus Consolidated Fixed Charges
----
to (ii) Consolidated Fixed Charges, in each case determined as at the end
of any fiscal quarter of the Borrower for the period of four consecutive
fiscal quarters ending on such determination date, to be less than
1.50:1.00.
(b) Consolidated Adjusted Tangible Net Worth. The Borrower will at
----------------------------------------
all times maintain Consolidated Adjusted Tangible Net Worth of not less
than $325,000,000 plus:
----
(i) 50% of Consolidated Net Income for the period
commencing January 1, 1996 and ending on the last day of the
most recent fiscal quarter ended at least 60 days prior to
the date of determination (excluding any net losses during
any fiscal quarter period within such measurement period);
and
(ii) 100% of the cash proceeds (net of underwriting
commissions, legal, accounting and other usual professional
fees and taxes) of any sale or issuance of equity Securities
of the Borrower or any of its Subsidiaries (or of any
options, warrants or rights in respect of any such equity
Securities) or the sale or issuance of any Subordinated
Indebtedness, in each case which issuance or sale takes
place after the date of this Agreement.
(c) Consolidated Funded Debt to Consolidated Adjusted Tangible Net
--------------------------------------------------------------
Worth. The Borrower will maintain the ratio of Consolidated Funded Debt to
-----
Consolidated Adjusted Tangible Net Worth at less than 7.00:1.00 at all
times and will not permit the ratio of Consolidated Funded Debt to
Consolidated Adjusted Tangible Net Worth to exceed 5.00:1.00 as of the last
day of any fiscal quarter of the Borrower.
(d) Liquid Asset Coverage. The Borrower will not permit the ratio of
---------------------
Consolidated Unrestricted Cash plus Consolidated Eligible Loans to (y)
----
Consolidated Unsecured Debt at any time to be less than .75:1.00 at such
time.
(e) Minimum Cash Flow. The Borrower will not permit the sum,
-----------------
determined as of the last day of any fiscal quarter of the Borrower, of (i)
the Consolidated Cash Flows during each of the four consecutive fiscal
quarters of the Borrower ending on such day plus (ii) the Consolidated Cash
----
Flows projected by the Borrower pursuant to the procedure (and subject to
any adjustments) described below for each of the next succeeding four
consecutive fiscal quarters of the Borrower to be less than $200,000,000.
The amount in clause (ii) above shall be as provided in pro forma financial
-----------
statements prepared by the Borrower in good faith in reasonable detail with
reasonable assumptions for such period, which financial statements shall
have been provided as part of the compliance certificate delivered pursuant
to Section 6.1(iii) for such fiscal quarter. At the request of the Agent
----------------
(made in its reasonable discretion or at the direction of the Required
Lenders within 10 Business Days after the applicable compliance certificate
is delivered as required by Section 6.1(iii)) the Borrower shall, at its
----------------
expense, arrange for its accountants referred to in Section 6.1 to review
-----------
and render a report (addressed to the Borrower and the Lenders) regarding
the accuracy of the applicable projections, and the Borrower will make any
adjustments to such projections recommended by such accountants, all within
20 Business Days after request of the Agent pursuant to this Section 6.20
------------
(e).
---
(f) Consolidated Other Cash Producing Assets to Consolidated Capital
----------------------------------------------------------------
Ratio. The Borrower will not permit the ratio of Consolidated Other Cash
-----
Producing Assets to Consolidated Capital to be greater than 1.80:1.00 as of
the last day of any fiscal quarter of the Borrower.
31
6.21. Underwriting Standards. The Borrower will not, and will not permit
----------------------
any of its Subsidiaries to, modify its respective underwriting standards or
eligibility requirements for the origination, and transfer to a trust or other
special purpose entity, of loans and related Property if such modification could
result in a Material Adverse Effect.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall constitute a
Default:
7.1. Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement,any other Loan Document, any Loan, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be materially false on the date as of which made.
7.2. (a) Nonpayment of principal of any Note when due, or (b) nonpayment of
interest upon any Note or of any facility fee or other Obligations under any of
the Loan Documents within five days after the same becomes due.
7.3 The breach by the Borrower of any of the terms or provisions of
Section 6.2 or any of Sections 6.10 through 6.21.
----------- ------------- ----
7.4 The breach by the Borrower (other than a breach which constitutes a
Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this
----------- --- ---
Agreement which is not remedied within five days after written notice from the
Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay when due any
Indebtedness aggregating in excess of $10,000,000 ("Material Indebtedness"); or
---------------------
the default by the Borrower or any of its Subsidiaries in the performance of any
term, provision or condition contained in any agreement under which any
Indebtedness was created or is governed (including any default arising from a
failure to pay), or any other event shall occur or condition exist, the effect
of which is to cause, or to permit the holder or holders of any Material
Indebtedness to cause, any Material Indebtedness to become due prior to its
stated maturity; or any Material Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof; or the Borrower or any of its Subsidiaries shall not pay, or
admit in writing its inability to pay, its debts generally as they become due.
7.6. The Borrower or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate action to authorize or effect or in furtherance of any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
-----------
faith any appointment or proceeding described in Section 7.7.
-----------
32
7.7. Without the application, approval or consent of the Borrower or any of
its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its respective Property, or a proceeding described in
Section 7.6(iv) shall be instituted against the Borrower or any of its
---------------
Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation"),
------------
all or any portion of the Property of the Borrower or any of its Subsidiaries
which, when taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or control of,
during the twelve-month period ending with the month in which any such
Condemnation occurs, constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge one or more judgments or orders for the payment
of money in excess of $10,000,000 in the aggregate, which are not stayed on
appeal or otherwise being appropriately contested in good faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in
the aggregate $10,000,000 or any Reportable Event shall occur in connection with
any Plan.
7.11. The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $2,500,000 per annum.
7.12. The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the other members of the Controlled
Group (taken as a whole) to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years of
each such Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $10,000,000.
7.13. The Borrower or any of its Subsidiaries shall be the subject of any
proceeding or investigation pertaining to the release by the Borrower or any of
its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. The occurrence of any "default", as defined in any Loan Document
(other than this Agreement or the Notes) or the breach of any of the terms or
provisions of any Loan Document (other than this Agreement or the Notes), which
default or breach continues beyond any period of grace therein provided.
7.16. The Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty or any Guarantor shall fail to comply with any
of the terms or provisions of the Guaranty, or any Guarantor denies that it has
any further liability under the Guaranty, or gives notice to such effect.
33
7.17. The representations and warranties set forth in Section 5.15 shall at
------------
any time not be true and correct.
7.18. The Borrower or any Subsidiary shall fail to pay when due any rate
hedging obligation, operating lease obligation, letter of credit, obligation
under sale and leaseback transaction or Contingent Obligation.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1. Acceleration. If any Default described in Section 7.6 or 7.7 occurs
------------ ----------- ---
with respect to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the Agent
or any Lender. If any other Default occurs, the Required Lenders (or the Agent
with the consent of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Loans hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives.
If, within five days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in Section 7.6 or 7.7
----------- ---
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required Lenders
(or, in respect of a Default of the type described in Section 7.1, all the
-----------
Lenders), in either case in their sole discretion, shall so direct, then the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
---------- ------------
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder or any requirement under any Loan Document; provided, however,
-------- -------
that no such supplemental agreement shall, without the consent of each Lender
affected thereby:
(i) Extend the final maturity of any Loan or Note or forgive all or any
portion of the principal amount thereof, or reduce the rate or amount
or extend the time of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required under
Section 2.2, or increase or decrease the amount of the Commitment
-----------
(including without limitation any Facility B Commitment) of any
Lender hereunder (except for a ratable decrease in the Commitments of
all Lenders), or permit the Borrower to assign its rights under this
Agreement.
(iv) Amend this Section 8.2.
-----------
(v) Release any Guarantor from the Guaranty.
34
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent of any
--------------
other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
----------------------
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
-----------
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. Survival of Representations. All representations and warranties of
---------------------------
the Borrower contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
-----------------------
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Taxes. Any taxes (excluding federal income taxes on the overall net
-----
income of any Lender) or other similar assessments or charges made by any
governmental or revenue authority in respect of the Loan Documents shall be paid
by the Borrower, together with interest and penalties, if any.
9.4. Headings. Section headings and tables of contents in the Loan
--------
Documents are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
9.5. Entire Agreement. The Loan Documents embody the entire agreement and
----------------
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof (other than the fee letter
described in Section 10.13).
-------------
9.6. Several Obligations; Benefits of this Agreement. The respective
-----------------------------------------------
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any
of its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective permitted successors and assigns and any indemnitees
pursuant to Section 9.7 to the extent provided in such Section.
-----------
9.7. Expenses; Indemnification . The Borrower shall reimburse each of the
--------------------------
Agent and the Documentation Agent for any costs, internal charges and out-of-
pocket expenses (including attorneys' fees and time charges of attorneys for the
Agent and the Documentation Agent, which attorneys may be employees of
35
the Agent or the Documentation Agent) paid or incurred by the Agent or the
Documentation Agent in connection with the preparation, negotiation, execution,
delivery, review, amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent and the Lenders for
any costs, internal charges and out-of-pocket expenses (including attorneys'
fees and time charges of attorneys for the Agent and the Lenders, which
attorneys may be employees of the Agent or the Lenders) paid or incurred by the
Agent or any Lender in connection with the collection and enforcement of
(including without limitation endeavoring to enforce) the Loan Documents. The
Borrower further agrees to indemnify the Agent and each Lender, its directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Agent or any Lender is
a party thereto) which any of them may pay or incur arising out of or relating
to this Agreement, the other Loan Documents, the transactions contemplated
hereby or the direct or indirect application or proposed application of the
proceeds of any Loan hereunder except to the extent that they are determined by
a court of competent jurisdiction in a final and non-appealable order to have
resulted from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
9.8. Numbers of Documents. All statements, notices, closing documents,
--------------------
and requests hereunder shall be furnished to the Agent with sufficient copies so
that the Agent may furnish one to each of the Lenders.
9.9. Accounting. All accounting terms not specifically defined herein
----------
shall be construed in accordance with GAAP. Except as otherwise provided
herein, if any changes in accounting principles from those used in the
preparation of the most recent financial statements referred to in Section 5.4
-----------
are hereafter required or permitted by the rules, regulations, pronouncements
and opinions of the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and are adopted by the Borrower with the agreement of
its independent certified public accountants and such changes result in a change
in the method of calculation of any of the financial covenants, standards or
terms found in Section 6.20 or in the related definitions of terms used therein,
------------
the parties hereto agree to enter into good faith negotiations in order to amend
such provisions so as to reflect equitably such changes with the desired result
that the criteria for evaluating the Borrower's financial condition shall be the
same after such changes as if such changes had not been made, provided that no
--------
change in GAAP that would affect the method of calculation of any of the
financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to the
Borrower, the Agent and the Required Lenders, so as to reflect such change in
accounting principles.
9.10. Severability of Provisions. Any provision in any Loan Document that
--------------------------
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.11. Nonliability of Lenders. The relationship between the Borrower and
-----------------------
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations. The Borrower agrees that
neither the Agent nor any Lender shall have liability to the Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined by
a court of competent jurisdiction in a final and non-appealable order that such
losses resulted from the gross negligence or willful misconduct of the party
from which recovery is sought. Neither the Agent nor any Lender shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees
not to ▇▇▇ for, any
36
special, indirect or consequential damages suffered by the Borrower in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.
9.12. Nonreliance. Each Lender hereby represents that it is not relying on
-----------
or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans provided
for herein.
ARTICLE X
THE AGENT
---------
10.1. Appointment; Nature of Relationship. The First National Bank of
-----------------------------------
Chicago is hereby appointed by the Lenders as the Agent hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the Agent to
act as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent agrees to
act as such contractual representative upon the express conditions contained in
this Article X. In its capacity as the Lenders' contractual representative, the
---------
Agent (i) does not hereby assume any fiduciary duties to any of the Lenders,
(ii) is a "representative" of the Lenders within the meaning of Section 9-105 of
the Uniform Commercial Code and (iii) is acting as an independent contractor,
the rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Notwithstanding the use of the defined
term "Agent" or any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, it is expressly understood and agreed
that the Agent is merely acting as the representative of the Lenders and the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
10.2. Powers. The Agent shall have and may exercise such powers under the
------
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
----------------
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
for its or their own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
-------------------------------------------
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV, except
----------
receipt of items required to be delivered to the Agent; (iv) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; or (v) the
value, sufficiency, creation, perfection or priority of any interest in any
collateral security. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the Agent at
such time, but
37
is voluntarily furnished by the Borrower to the Agent (either in its capacity as
Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases be
---------------------------------
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or all the Lenders, to the extent unanimity is expressly
required herein or in such Loan Document), and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders
and on all holders of Notes. The Lenders hereby acknowledge that the Agent
shall be under no duty to take any discretionary action permitted to be taken by
it pursuant to the provisions of this Agreement or any other Loan Document
unless it shall be requested in writing to do so by the Required Lenders (or all
the Lenders, to the extent unanimity is expressly required herein or in such
Loan Document). The Agent shall be fully justified in failing or refusing to
take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of its
--------------------------------
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely
------------------------------
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it (which belief is held in the absence
of gross negligence or willful misconduct) to be genuine and correct and to have
been signed or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which counsel may be
employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
-----------------------------------------
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Agent. The
obligations of the Lenders under this Section 10.8 shall survive payment of the
------------
Obligations and termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have knowledge
-----------------
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the Agent
------------------
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a
Lender, unless
38
the context otherwise indicates, include the Agent in its individual capacity.
The Agent may accept deposits from, lend money to, and generally engage in any
kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving
---------------
written notice thereofto the Lenders and the Borrower, such resignation to
be effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of
its intention to resign. The Agent may be removed at any time by written notice
received by the Agent from the Required Lenders, such removal to be effective on
the date specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on behalf of the
Borrower and the Lenders, a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
or removed Agent's giving notice of its intention to resign, then the resigning
or removed Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. If the Agent has resigned or been removed and no successor
Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrower shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at least $50,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
---------
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents.
10.13. Agent's Fee; Documentation Agent's Fee. The Borrower agrees to pay
--------------------------------------
to the Agent, for its own account, the fees agreed to by the Borrower pursuant
to that certain letter agreement dated June 13, 1996, between the Borrower and
First Chicago Capital Markets, Inc. or as otherwise agreed from time to time.
The Borrower agrees to pay to the Documentation Agent, for its own account, such
fees as have been agreed to by the Borrower and the Documentation Agent.
10.14. Duties and Rights of Documentation Agent. The Documentation
----------------------------------------
Agent shall have no duties under this Agreement or the other Loan Documents, and
shall have no rights, in its capacity as Documentation Agent hereunder except as
expressly set forth herein or therein.
39
ARTICLE XI
SETOFF; RATABLE PAYMENTS
------------------------
11.1. Setoff. In addition to, and without limitation of, any rights of the
------
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender to or for the credit or account of the Borrower may be offset and
applied toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
----------------
payment made to it upon its Facility A Loans (other than payments received
pursuant to Section 3.1, 3.2 or 3.4) in a greater proportion than that received
----------- --- ---
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Facility A Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Facility A Loans. If
any Facility B Lender, whether by setoff or otherwise, has payment made to it
upon its Facility B Loans (other than payments received pursuant to Section 3.1
-----------
or 3.2) in a greater proportion than that received by any other Facility B
---
Lender, such Facility B Lender agrees, promptly upon demand, to purchase a
portion of the Facility B Loans held by the other Facility B Lenders so that
after such purchase each Facility B Lender will hold its ratable proportion of
Facility B Loans. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action necessary such
that all Lenders share in the benefits of such collateral ratably in proportion
to their Loans. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
If an amount to be setoff is to be applied to Indebtedness of the Borrower
to a Lender, other than Indebtedness evidenced by any of the Notes held by such
Lender, such amount shall be applied ratably to such other Indebtedness and to
the Indebtedness evidenced by such Notes.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. Successors and Assigns. The terms and provisions of the Loan
----------------------
Documents shall be binding upon and inure to the benefit of the Borrower, the
Agent and the Lenders and their respective successors and assigns, except that
(i) the Borrower shall not have the right to assign its rights or obligations
under the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with Section 12.3. Notwithstanding clause (ii) of this Section, any
------------ -----------
Lender may at any time, without the consent of the Borrower or the Agent, assign
all or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment to a Federal Reserve
-------- -------
Bank shall release the transferor Lender from its obligations hereunder. The
Agent may treat the payee of any Note as the owner thereof for all purposes
hereof unless and until such payee complies with Section 12.3 in the case of an
------------
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Agent. Any assignee or transferee of a Note
agrees by acceptance thereof to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the
time of making such request or giving such authority or consent is the holder of
any Note, shall be conclusive and binding on any subsequent holder, transferee
or assignee of such Note or of any Note or Notes issued in exchange therefor.
40
12.2. Participations.
--------------
12.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary
------------------------------
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
------------
in any Loan owing to such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender under the Loan Documents.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
-------------
without the consent of any Participant (and no Lender shall permit a Participant
to have the right to approve), any amendment, modification or waiver of any
provision of the Loan Documents other than any amendment, modification or waiver
with respect to any Loan or Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, postpones the final
maturity date of any such Loan or any date fixed for any regularly scheduled
payment of interest or fees on any such Loan or Commitment, or releases any
Guarantor.
12.2.3. Benefit of Setoff. The Borrower agrees that each Participant shall
-----------------
be deemed to have the right of setoff provided in Section 11.1 in respect of its
------------
participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in Section 11.1 with respect to the amount of
------------
participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount received
------------
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender.
------------
12.3. Assignments.
-----------
12.3.1. Permitted Assignments. Any Lender may, in the ordinary course of
---------------------
its business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") all or any part of its rights and
----------
obligations under the Loan Documents. Such assignment shall be substantially in
the form of Exhibit D hereto or in such other form as may be agreed to by the
---------
parties thereto. The consent of the Agent and the Borrower (which consent shall
not be unreasonably withheld or delayed) shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate thereof; provided, however, that if a Default has occurred and
-------- -------
is continuing, the consent of the Borrower shall not be required. Each such
assignment shall be in an amount not less than the lesser of (i) $10,000,000 or
(ii) the remaining amount of the assigning Lender's Commitment (calculated as at
the date of such assignment). Any assignment by a Facility B Lender of its
Commitment may or may not include its Facility B Commitment, so long as after
giving effect to any such assignment, each of the assigning Facility B Lender
and the assignee Lender have a Commitment at least equal to its Facility B
Commitment, if any.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agent of a notice
----------------------
of assignment, substantially in the form attached as Exhibit I to Exhibit D
--------- ---------
hereto (a "Notice of Assignment"), together
--------------------
41
with any consents required by Section 12.3.1, and (ii) payment of a $3,000 fee
--------------
to the Agent for processing such assignment, such assignment shall become
effective on the effective date specified in such Notice of Assignment. The
Notice of Assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the
Commitment and Loans under the applicable assignment agreement are "plan assets"
as defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender (and, if applicable, a Facility B Lender) party to this Agreement and any
other Loan Document executed by the Lenders and shall have all the rights and
obligations of a Lender (and if applicable, a Facility B Lender) under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and/or the Aggregate Facility B Commitment and Facility A
Loans and/or Facility B Loans assigned to such Purchaser. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.2, the transferor
--------------
Lender, the Agent and the Borrower shall make appropriate arrangements so that
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Commitments (and, if applicable, their
respective Facility B Commitments), as adjusted pursuant to such assignment.
12.4.Dissemination of Information. The Borrower authorizes each Lender to
----------------------------
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
----------
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries.
12.5. Tax Treatment. If any interest in any Loan Document is transferred
-------------
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 4.3.
-----------
ARTICLE XIII
NOTICES
-------
13.1. Notices. Except as otherwise permitted by Section 2.13 with respect
------- ------------
to borrowing notices, all notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, facsimile transmission
or similar writing) and shall be given to such party: (x) in the case of the
Borrower or the Agent, at its address or facsimile number set forth on the
signature pages hereof, (y) in the case of any Lender, at its address or
facsimile number set forth below its signature hereto or (z) in the case of any
party, such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Agent and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
--------
to the Agent under Article II shall not be effective until received.
----------
13.2. Change of Address. The Borrower, the Agent and any Lender may each
-----------------
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
42
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by facsimile transmission or telephone,
that it has taken such action.
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL
------------------------------------------------------------
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
-----------------------
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY
--------------------
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
43
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
THE MONEY STORE INC.
By: ______________________________
Print Name: ______________________
Title: ___________________________
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ______________________
Commitment (Facility B, if any)
----------- ------------------
FIRST UNION NATIONAL BANK
$37,500,000 $15,000,000 OF NORTH CAROLINA,
Individually and as Documentation Agent
By: ______________________________
Print Name: ______________________
Title: ___________________________
One First ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ______________________
Commitment (Facility B, if any)
----------- -------------------
BANCO POPULAR de PUERTO RICO
$30,000,000 N/A
By: _______________________________
Print Name: _______________________
Title: ____________________________
Seven ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _______________________
Commitment (Facility B, if any)
---------- -------------------
BANK HAPOALIM B.M.
$20,000,000 N/A
By: _______________________________
Print Name: _______________________
Title: ____________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _______________________
Commitment (Facility B, if any)
---------- -------------------
THE BANK OF NEW YORK
$15,000,000 N/A
By: ______________________________
Print Name: ______________________
Title: ___________________________
One Wall Street
17th Floor, Mortgage Banking Division
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ______________________
Commitment (Facility B, if any)
---------- -------------------
THE BANK OF NOVA SCOTIA
$27,000,000 N/A
By: __________________________
Print Name: __________________
Title: _______________________
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: __________________
Commitment (Facility B, if any)
---------- -------------------
THE CHASE MANHATTAN BANK
$27,000,000 N/A
By: _______________________________
Print Name: _______________________
Title: ____________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Commitment (Facility B, if any)
---------- --------------------
CIBC INC.
$27,000,000 N/A
By: ________________________________
Print Name: ________________________
Title: _____________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ________________________
Commitment (Facility B, if any)
---------- -------------------
COMERICA BANK
$30,000,000 N/A
By: _________________________
Print Name: _________________
Title: ______________________
One Detroit Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _________________
Commitment (Facility B, if any)
---------- ------------------
CREDIT LYONNAIS NEW YORK BRANCH
$27,000,000 N/A
By: ___________________________
Print Name: ___________________
Title: ________________________
Credit ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇,
Senior Vice President
---------------------
Commitment (Facility B, if any)
---------- --------------------
FIRST BANK NATIONAL ASSOCIATION
$25,000,000 N/A
By: ________________________________
Print Name: ________________________
Title: _____________________________
First Bank Place
601 Second Avenue, South, MPFP ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: _________________________
Commitment (Facility B, if any)
---------- -------------------
THE SUMITOMO BANK OF CALIFORNIA
$15,000,000 N/A
By: _________________________________
Print Name: _________________________
Title: ______________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Sixth Floor, Commercial Banking Office
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: __________________________
By: _________________________________
Print Name: _________________________
Title: ______________________________
Commitment (Facility B, if any)
---------- -------------------
THE SUMITOMO BANK, LIMITED
$10,000,000 N/A
By: _________________________________
Print Name: _________________________
Title: ______________________________
By: _________________________________
Print Name: _________________________
Title: ______________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _________________________
Commitment (Facility B, if any)
---------- -------------------
UNION BANK OF CALIFORNIA, N.A.
$20,000,000 N/A
By: _______________________________
Print Name: _______________________
Title: ____________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _______________________
Commitment (Facility B, if any)
---------- -------------------
UNITED STATES NATIONAL BANK OF OREGON
$25,000,000 N/A
By: ______________________________
Print Name: ______________________
Title: ___________________________
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ______________________
Commitment (Facility B, if any)
---------- --------------------
▇▇▇▇▇ FARGO BANK, N.A.
$27,000,000 N/A
By: ____________________________
Print Name: ____________________
Title: _________________________
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _____________________
Commitment (Facility B, if any)
------------ -------------------
$ 37,500,000 $ 15,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
By: ____________________________
Print Name: ▇▇▇▇ ▇. ▇▇▇▇
--------------------
Title: As Authorized Agent
-------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
---------------------
------------ -------------
$400,000,000 $(30,000,000)
============ ============
EXHIBIT A-1
-----------
FACILITY A NOTE
$ ___________
___________, 19__
The Money Store Inc., a New Jersey corporation (the "Borrower"), promises to
--------
pay to the order of __________________________________ (the "Lender") the lesser
------
of the principal sum of __________________ Dollars or the aggregate unpaid
principal amount of all Facility A Loans made (or deemed made) by the Lender to
the Borrower pursuant to Article II of the Agreement (as hereinafter defined),
----------
in immediately available funds at the main office of The First National Bank of
Chicago in Chicago, Illinois, as Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Facility A Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Facility A Loan and the date and amount of each
principal payment hereunder, provided that its failure to do so shall not
absolve the Borrower of its obligations hereunder or under any other Loan
Document.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Credit Agreement dated as of August 16, 1996 (which, as it may
be amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrower, the lenders party thereto, including the
----------
Lender, First Union National Bank of North Carolina, as Documentation Agent, and
The First National Bank of Chicago, as Administrative Agent, to which Agreement
reference is hereby made for a statement of the terms and conditions governing
this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. This Note is guaranteed pursuant to
the Guaranty, as more specifically described in the Agreement, and reference is
made thereto for a statement of the terms and provisions thereof. Capitalized
terms used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS.
THE MONEY STORE INC.
By:---------------------------
Print Name:-------------------
Title:------------------------
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
FACILITY A NOTE OF THE MONEY STORE INC.,
DATED _______________, 19__
Principal Maturity Principal Maturity
Amount of of Interest Amount Unpaid
Date Facility A Loan Period Paid Balance
------- --------------- ----------- -------- ---------
EXHIBIT A-2
-----------
FACILITY B NOTE
$_______________ ____________, 19__
The Money Store Inc., a New Jersey corporation (the "Borrower"), promises to
--------
pay to the order of __________________________________ (the "Lender") the lesser
------
of the principal sum of __________________ Dollars or the aggregate unpaid
principal amount of all Facility B Loans made by the Lender to the Borrower
pursuant to Article II of the Agreement (as hereinafter defined), in immediately
----------
available funds at the main office of The First National Bank of Chicago in
Chicago, Illinois, as Agent, together with interest on the unpaid principal
amount hereof at the rates and on the dates set forth in the Agreement. The
Borrower shall pay the principal of and accrued and unpaid interest on the
Facility B Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Facility B Loan and the date and amount of each
principal payment hereunder, provided that its failure to do so shall not
absolve the Borrower of its obligations hereunder or under any other Loan
Document.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Credit Agreement dated as of August 16, 1996 (which, as it may
be amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrower, the lenders party thereto, including the
----------
Lender, First Union National Bank of North Carolina, as Documentation Agent, and
The First National Bank of Chicago, as Administrative Agent, to which Agreement
reference is hereby made for a statement of the terms and conditions governing
this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. This Note is guaranteed pursuant to
the Guaranty, as more specifically described in the Agreement, and reference is
made thereto for a statement of the terms and provisions thereof. Capitalized
terms used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS.
THE MONEY STORE INC.
By:________________________
Print Name:________________
Title:_____________________
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
FACILITY B NOTE OF THE MONEY STORE INC.,
DATED AUGUST 16, 1996
Principal Principal
Amount of Amount Unpaid
Date Facility B Loan Paid Balance
---- --------------- ---------- -------
EXHIBIT B
---------
FORM OF OPINION
August __, 1996
The Agent and the Lenders who are parties to the
Credit Agreement described below.
Gentlemen/Ladies:
I am Corporate Counsel for The Money Store Inc. (the "Borrower") and each
--------
Subsidiary of the Borrower listed on Annex I hereto (collectively, the
-------
"Guarantors"), and have represented the Borrower and the Guarantors in
-----------
connection with the execution and delivery by the Borrower of a Credit Agreement
dated as of August 16, 1996 (the "Agreement") among the Borrower, the Lenders
---------
named therein, First Union National Bank of North Carolina, as Documentation
Agent, and The First National Bank of Chicago, as Administrative Agent,
providing for Advances in an aggregate principal amount not exceeding
$400,000,000 at any one time outstanding, and the execution and delivery by each
of the Guarantors of a Subsidiary Guaranty dated as of August 16, 1996 (the
"Guaranty") guaranteeing the obligations of the Borrower under the Agreement.
---------
All capitalized terms used in this opinion and not otherwise defined herein
shall have the meanings attributed to them in the Agreement.
I have examined the Borrower's and each Guarantor's original or certified
copies of its articles of incorporation, by-laws, resolutions, the Loan
Documents and such other matters of fact and law which I deem necessary in order
to render this opinion. In all such examinations made by me in connection with
the opinions set forth below, I have assumed the genuineness of all signatures
(other than those signatures of officers of the Borrower and the Guarantors
appearing on the Credit Agreement, the Guaranty and the Notes, as the case may
be), the completeness and authenticity of all records and all documents
submitted to me as originals, and the conformity with the originals of all
documents submitted to me as copies thereof. As to various matters of fact
relevant to the opinions hereinafter expressed, I have relied upon the
representations and warranties contained in the Credit Agreement and the
Guaranty and statements and certificates of officers and representatives of the
Borrower, the Guarantors and others.
As to matters in paragraph 1 below, relating to the good standing, valid
existence of the Borrower, and the Guarantors, I have relied solely upon good
standing certificates of public officials in the appropriate jurisdictions,
copies of which are attached hereto, and my opinion is expressed as of the date
set forth on the related good standing certificate and not as of the date
hereof. As to matters in paragraph 1 below relating to the requisite authority
of the Borrower and the Guarantors to conduct their business in each
jurisdiction in which their business is conducted, with your consent, I have not
obtained any good standing or similar certificates of public officials in the
appropriate jurisdictions, and my opinion is therefor given without independent
verification.
With respect to the opinion in Paragraphs 2(a) and 3 below, I have assumed
the due authorization, execution and delivery of, and the validity and binding
effect of, the Credit Agreement on the part of the parties thereto other than
the Borrower.
I express no opinion except as to the laws of the United States and of the
State of New Jersey. In that regard, I call your attention to the fact that the
Agreement, the Guaranty and the Note state they are governed by the law of the
State of Illinois and I am not rendering an opinion under the laws of that
State. My opinion is based on the assumption that the internal laws of the
State of New Jersey and United States law would govern the provisions of such
documents and the transactions contemplated thereby.
The opinions in paragraphs 2(a) and 3 below are subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto, and to the understanding that I express no
opinion as the application of equitable principles or remedies in any
proceeding, whether at law or in equity. Based upon the foregoing, it is my
opinion that:
1. The Borrower and each Guarantor are corporations duly incorporated,
validly existing and in good standing under the laws of their states of
incorporation and have all requisite authority to conduct their business in each
jurisdiction in which their business is conducted.
2. The execution and delivery of the Loan Documents by each of the
Borrower and the Guarantors parties thereto and the performance by the Borrower
and the Guarantors of the Obligations have been duly authorized by all necessary
corporate action and proceedings on the part of the Borrower and the Guarantors
and will not:
(a) require any consent of the Borrower's or any Guarantor's
shareholders;
(b) violate, conflict with or result in a default under any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on
the Borrower or any of its Subsidiaries or the Borrower's or any
Subsidiary's articles of incorporation or by-laws or any indenture,
instrument or agreement binding upon the Borrower or any of its
Subsidiaries; or
(c) result in, or require, the creation or imposition of any Lien
pursuant to the provisions of any indenture, instrument or agreement
binding upon the Borrower or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by such of
the Borrower and the Guarantors parties thereto and constitute legal, valid and
binding obligations of such of the Borrower and the Guarantors parties thereto
enforceable in accordance with their terms except to the extent the enforcement
thereof may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and subject also to the availability
of equitable remedies if equitable remedies are sought.
4. There is no litigation or proceeding against the Borrower or any of
its Subsidiaries which, if adversely determined, could have a Material Adverse
Effect.
5. No approval, authorization, consent, adjudication or order of any
governmental authority, which has not been obtained by the Borrower or any of
its Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement or in connection with the payment
by the Borrower and the Guarantors of the Obligations.
6. The Obligations constitute senior indebtedness which is entitled to the
benefits of the subordination provisions of all outstanding Subordinated
Indebtedness.
This opinion may be relied upon by the Agent, the Lenders and their
participants, assignees and other transferees.
Very truly yours,
EXHIBIT C
---------
COMPLIANCE CERTIFICATE
To: The Lenders which are parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Credit
Agreement dated as of August 16, 1996 (as amended, modified, renewed or extended
from time to time, the "Agreement") among The Money Store Inc. (the "Borrower"),
--------- --------
the lenders party thereto, First Union National Bank of North Carolina, as
Documentation Agent, and The First National Bank of Chicago, as Administrative
Agent for the Lenders. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
-----------
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
----------
evidencing the Borrower's compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in
-----------
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
----------
in support hereof, are made and delivered this ____ day of ______________,
19___.
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _________, 199_ with
Provisions of Section 6.20 of
the Agreement
6.20(A) FIXED CHARGE COVERAGE:
---------------------
i. Consolidated Pre-Tax Income plus Consolidated Fixed Charges
-- -----------------------------------------------------------
ii. Consolidated Fixed Charges
---- --------------------------
RATIO
(CANNOT BE LESS THAN 1.50 TO 1 ON A ROLLING FOUR QUARTER BASIS)
====================================================== ======================
6.20(B) CONSOLIDATED ADJUSTED TANGIBLE NET WORTH:
----------------------------------------
NOT LESS THAN:
$325,000
Plus:
----
i. 50% of:
-- ------
Consolidated Net Income since 1/1/96
ii. 100% of cash proceeds of:
--- ------------------------
Equity Securities sold or issued after 8/16/96
Subordinated Indebtedness issued after 8/16/96
================================================================================
6.20(C) CONSOLIDATED FUNDED DEBT TO CONSOLIDATED ADJUSTED TANGIBLE NET WORTH:
--------------------------------------------------------------------
i. Consolidated Funded Debt
-- ------------------------
ii. Consolidated Adjusted Tangible Net Worth
--- ----------------------------------------
RATIO
(CANNOT BE GREATER THAN 5 TO 1 AS OF THE LAST DAY OF ANY FISCAL
QUARTER AND 7 TO 1 AT ALL OTHER TIMES).
================================================================================
6.20(D) LIQUID ASSET COVERAGE:
i. Consolidated Unrestricted Cash plus Consolidated Eligible Loans
-- ---------------------------------------------------------------
ii. Consolidated Unsecured Debt
--- ---------------------------
RATIO
(CANNOT BE LESS THAN .75 TO 1)
Consolidated Unrestricted Cash
Consolidated Eligible Loans
Consolidated Unrestricted Cash plus Consolidated Eligible Loans
================================================================================
6.20(E) MINIMUM CASH FLOW:
MINIMUM CASH FLOW
i. Borrower's Consolidated Cash Flows for the four consecutive fiscal
quarters ended _______, 199__
ii. Borrowers projected Consolidated Cash Flows for the next succeeding
four consecutive fiscal quarters
BORROWER'S CASH FLOW
(sum of (i) and (ii) cannot be less than $200,000,000)
================================================================================
6.20(F) CONSOLIDATED OTHER CASH PRODUCING ASSETS TO
CONSOLIDATED CAPITAL RATIO:
--------------------------------------------
i. Consolidated Other Cash Producing Assets
ii. Consolidated Capital
RATIO
(CANNOT EXCEED 1.80 TO 1)
EXHIBIT D
---------
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
--------------------
__________________________ (the "Assignor") and __________________ (the
--------
"Assignee") is dated as of _________________, 19__. The parties hereto agree as
---------
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
---------------------
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
---------------- ------ ----------
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
----------
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
-------------------------
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
------ ----------
under the Credit Agreement relating to the facilities listed in Item 3 of
------
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
----------
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
------ ----------
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
--------------
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
-------------- ------ --------
1 or two Business Days (or such shorter period agreed to by the Agent) after a
-
Notice of Assignment substantially in the form of Exhibit I attached hereto has
---------
been delivered to the Agent. Such Notice of Assignment must include any
consents required to be delivered to the Agent by Section 12.3.1 of the Credit
--------------
Agreement. In no event will the Effective Date occur if the payments required
to be made by the Assignee to the Assignor on the Effective Date under Sections
--------
4 and 5 hereof are not made on the proposed Effective Date. The Assignor will
- -
notify the Assignee of the proposed Effective Date no later than the Business
Day prior to the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender (including, if
applicable, of a Facility B Lender) under the Loan Documents with respect to the
rights and obligations assigned to the Assignee hereunder and (ii) the Assignor
shall relinquish its rights and be released from its corresponding obligations
under the Loan Documents with respect to the rights and obligations assigned to
the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Floating Rate Loans
assigned to the Assignee hereunder and (ii) with respect to each Eurodollar Loan
made by the Assignor and assigned to the Assignee hereunder which is outstanding
on the Effective Date, (a) on the last day of the Eurodollar Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the Assignee
or (c) on the date on which any such Eurodollar Loan either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being hereinafter referred to as the "Payment Date"),
----------- --- --- ------------
the Assignee shall pay the Assignor an amount equal to the principal amount of
the portion of such Eurodollar Loan assigned to the Assignee which is
outstanding on the Payment Date. If the Assignor and the Assignee agree that the
Payment Date for such
D-1
Eurodollar Loan shall be the Effective Date, they shall agree to the interest
rate applicable to the portion of such Loan assigned hereunder for the period
from the Effective Date to the end of the existing Eurodollar Interest Period
applicable to such Eurodollar Loan (the "Agreed Interest Rate") and any interest
--------------------
received by the Assignee in excess of the Agreed Interest Rate shall be remitted
to the Assignor. In the event interest for the period from the Effective Date to
but not including the Payment Date is not paid by the Borrower with respect to
any Eurodollar Loan sold by the Assignor to the Assignee hereunder, the Assignee
shall pay to the Assignor interest for such period on the portion of such
Eurodollar Loan sold by the Assignor to the Assignee hereunder at the applicable
rate provided by the Credit Agreement. In the event a prepayment of any
Eurodollar Loan which is existing on the Payment Date and assigned by the
Assignor to the Assignee hereunder occurs after the Payment Date but before the
end of the Eurodollar Interest Period applicable to such Eurodollar Loan, the
Assignee shall remit to the Assignor the excess of the prepayment penalty paid
with respect to the portion of such Eurodollar Loan assigned to the Assignee
hereunder over the amount which would have been paid if such prepayment penalty
was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Agent with respect to Eurodollar Loans prior to the Payment Date and (ii) any
amounts of interest on Loans and fees received from the Agent which relate to
the portion of the Loans assigned to the Assignee hereunder for periods prior to
the Effective Date, in the case of Floating Rate Loans or fees, or the Payment
Date, in the case of Eurodollar Loans, and not previously paid by the Assignee
to the Assignor.]* In the event that either party hereto receives any payment to
which the other party hereto is entitled under this Assignment Agreement, then
the party receiving such amount shall promptly remit it to the other party
hereto.
*Each Assignor may insert its standard payment provisions in lieu of the payment
terms included in this Exhibit.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor a
----------------------------
fee on each day on which a payment of interest or facility fees is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or facility fees for the period
prior to the Effective Date or, in the case of Eurodollar Loans, the Payment
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
Section 4 hereof). The amount of such fee shall be the difference between (i)
----------------
the interest or fee, as applicable, paid with respect to the amounts assigned to
the Assignee hereunder and (ii) the interest or fee, as applicable, which would
have been paid with respect to the amounts assigned to the Assignee hereunder if
each interest rate was ___ of 1% less than the interest rate paid by the
Borrower or if the facility fee was ___ of 1% less than the facility fee paid by
the Borrower, as applicable. In addition, the Assignee agrees to pay ___% of the
recordation fee required to be paid to the Agent in connection with this
Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
--------------------------------------------------------------
LIABILITY. The Assignor represents and warrants that it is the legal and
---------
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any Guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any Guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
D-2
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
-------------------------------
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) agrees that 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, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets
----------
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
[and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying that the Assignee is entitled to receive payments under
the Loan Documents without deduction or withholding of any United States federal
income taxes].**
**to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
---------
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
----------------------
have the right pursuant to Section 12.3.1 of the Credit Agreement to assign the
------
rights which are assigned to the Assignee hereunder to any Person, provided that
(i) any such subsequent assignment does not violate any of the terms and
conditions of the Loan Documents or any law, rule, regulation, order, writ,
judgment, injunction or decree and that any consent required under the terms of
the Loan Documents has been obtained and (ii) unless the prior written consent
of the Assignor is obtained, the Assignee is not thereby released from its
obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
---------- - -
10. REDUCTIONS OF AGGREGATE COMMITMENTS. If any reduction in the Aggregate
-----------------------------------
Commitment or the Aggregate Facility B Commitment occurs between the date of
this Assignment Agreement and the Effective Date, the percentage interest
specified in Item 3 of Schedule 1 shall remain the same, but the dollar amount
------ ----------
purchased shall be recalculated based on the reduced Aggregate Commitment or
Aggregate Facility B Commitment, as applicable.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
----------------
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
-------------
internal law, and not the law of conflicts, of the State of Illinois.
D-3
13. NOTICES. Notices shall be given under this Assignment Agreement in the
-------
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
----------
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: ________________________________________
Title: ________________________________________
________________________________________
________________________________________
[NAME OF ASSIGNEE]
By: ________________________________________
Title: ________________________________________
________________________________________
________________________________________
D-4
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement dated as of August 16,
Credit Agreement: 1996, among The Money Store Inc., the
Lenders party thereto, First Union National
Bank of North Carolina, as Documentation
Agent, and The First National Bank of
Chicago, as Administrative Agent.
2. Date of Assignment Agreement: _____________, 19__
3. Amounts (As of Date of Item 2 above):
------
Facility A Facility B
Commitment Commitment
---------- -----------
a. Total of Commitments
(Loans)** under
Credit Agreement $______ $______
b. Assignee's Percentage
of each Facility purchased
under the Assignment
Agreement*** ______% ______%
c. Amount of Assigned Share in
each Facility purchased under
the Assignment Agreement $______ $______
4. Assignee's Aggregate (Loan
Amount)** Commitment Amount
Purchased Hereunder: $______ $______
5. Proposed Effective Date: ______
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: _______________________ By: ______________________
Title: ____________________ Title: ___________________
* Insert specific facility names per Credit Agreement
** If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
*** Percentage taken to 10 decimal places
D-5
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must include
notice address for the Assignor and the Assignee
D-6
EXHIBIT I
---------
to Assignment Agreement
NOTICE
OF ASSIGNMENT
-------------
____________________, 19__
--------------------------
To: THE MONEY STORE INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
THE FIRST NATIONAL BANK OF CHICAGO, as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
------ ---------- ----------
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
------
delivered to the Borrower and the Agent pursuant to Section 12.3.2 of the Credit
--------------
Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of __________, 19__ (the "Assignment"), pursuant to which,
----------
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
------ ----------
outstandings, rights and obligations under the Credit Agreement relating to the
facilities listed in Item 3 of Schedule 1. The Effective Date of the Assignment
------ ----------
shall be the later of the date specified in Item 5 of Schedule 1 or two Business
------ ----------
Days (or such shorter period as agreed to by the Agent) after this Notice of
Assignment and any consents and fees required by Sections 12.3.1 and 12.3.2 of
--------------- ------
the Credit Agreement have been delivered to the Agent, provided that the
Effective Date shall not occur if any condition precedent agreed to by the
Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrower and
the Agent notice of the assignment and delegation referred to herein. The
Assignor will confer with the Agent before the date specified in Item 5 of
------
Schedule 1 to determine if the Assignment Agreement will become effective on
----------
such date pursuant to Section 3 hereof, and will confer with the Agent to
---------
determine the Effective Date pursuant to Section 3 hereof if it occurs
---------
thereafter. The Assignor shall notify the Agent if the Assignment Agreement
does not become effective on any proposed Effective Date as a result of the
failure to satisfy the conditions precedent agreed to by the Assignor and the
Assignee. At the request of the Agent, the Assignor will give the Agent
written confirmation of the satisfaction of the conditions precedent.
I-1
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $3,000 required by Section
-------
12.3.2 of the Credit Agreement.
------
6. If Notes are outstanding on the Effective Date, the Assignor
and the Assignee request and direct that the Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
----------
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that its
rights, benefits, and interests in and under the Loan Documents will not be
"plan assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent under
the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: ______________________________ By: ______________________________
Title: ______________________________ Title: ______________________________
ACKNOWLEDGED AND CONSENTED TO BY ACKNOWLEDGED AND CONSENTED TO
THE FIRST NATIONAL BANK OF CHICAGO, BY THE MONEY STORE INC.
as Agent
By: ______________________________ By: ______________________________
Title: ______________________________ Title: ______________________________
[Attach photocopy of Schedule 1 to Assignment]
I-2
EXHIBIT E
---------
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago, as Administrative Agent (the "Agent")
-----
under the Credit Agreement Described Below.
Re: Credit Agreement, dated August 16, 1996 (as the same may be amended or
modified, the "Credit Agreement"), among The Money Store Inc. (the
----------------
"Borrower"), the Lenders named therein, First Union National Bank of North
--------
Carolina, as Documentation Agent, and the Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned
thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the following
standing money transfer instructions with respect to the proceeds of Advances or
other extensions of credit from time to time until receipt by the Agent of a
specific written revocation of such instructions by the Borrower, provided,
however, that the Agent may otherwise transfer funds as hereafter directed in
writing by the Borrower in accordance with Section 13.1 of the Credit Agreement
------------
or based on any telephonic notice made in accordance with Section 2.13 of the
------------
Credit Agreement.
Facility Identification Number(s)_______________________________________________
Customer/Account Name___________________________________________________________
Transfer Funds To_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
For Account No._________________________________________________________________
Reference/Attention To__________________________________________________________
Authorized Officer (Customer Representative) Date______________________________
_________________________ _________________________________________________
(Please Print) Signature
_________________________ _________________________________________________
Bank Officer Name Date
_________________________ _________________________________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
E-1
EXHIBIT F
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SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY dated as of August 16, 1996, is executed in favor
of THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent for the benefit
of the Lenders, under the Credit Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, The Money Store Inc. (the "Borrower") has entered into a Credit
--------
Agreement dated as of August 16, 1996 (as amended or otherwise modified from
time to time, the "Credit Agreement"; the terms defined therein and not
----------------
otherwise defined herein shall be used herein as therein defined) with the
Lenders from time to time party thereto (collectively, the "Lenders" and
-------
individually, a "Lender"), First Union National Bank of North Carolina, as
------
Documentation Agent, and The First National Bank of Chicago, as Administrative
Agent (in such capacity, together with its successors and assigns in such
capacity, the "Agent") pursuant to which the Lenders may make Advances from time
-----
to time to the Borrower;
WHEREAS, each of the undersigned are Subsidiaries of the Borrower and the
financial strength and flexibility of the Borrower has a direct impact on each
of the undersigned; and
WHEREAS, each of the undersigned does and will benefit from the making of
the Advances pursuant to the Credit Agreement and is willing to guaranty the
Guaranteed Obligations (as defined below).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
jointly and severally unconditionally, as primary obligor and not merely as
surety, guarantees the full and prompt payment when due, whether by acceleration
or otherwise, and at all times thereafter, of all Obligations and all
obligations (monetary or otherwise) of each of the undersigned to the Agent or
any Lender, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
which arise out of or in connection with the Credit Agreement, the Notes, or any
document or instrument executed in connection therewith, in each case as the
same may be amended, modified, extended or renewed from time to time, including
any interest which would accrue but for the fact that bankruptcy proceedings
have been commenced (all such obligations being herein collectively called the
"Guaranteed Obligations"); provided, however, that the liability of each of the
----------------------- -------- -------
undersigned hereunder shall be limited to the maximum amount of the Guaranteed
Obligations which such undersigned may guaranty without violating any fraudulent
conveyance or fraudulent transfer law (plus all costs and expenses (including
attorneys' fees (which attorneys may be employees of the Agent or any Lender)
and legal expenses) paid or incurred by the Agent or any Lender in enforcing
this Guaranty against such undersigned).
Each of the undersigned agrees that, in the event of the dissolution or
insolvency of the Borrower or any undersigned, or the inability or failure of
the Borrower or any undersigned to pay debts as they become due, or an
assignment by the Borrower or any undersigned for the benefit of creditors, or
the occurrence of any other event of the type described in Section 7.7 or 7.8 of
----------- ---
the Credit Agreement with respect to the Borrower or any of the undersigned, and
if such event shall occur at a time when any of the Guaranteed Obligations may
not then be due and payable, such undersigned will pay to the Agent, for the
benefit of itself and the Lenders forthwith the full amount which would be
payable hereunder by such undersigned if all Guaranteed Obligations were then
due and payable.
To secure all obligations of each of the undersigned hereunder, the Agent
and each Lender shall have a Lien on and security interest in (and may, without
demand or notice of any kind, at any time and from time to time when any amount
shall be due and payable by such undersigned hereunder, appropriate and apply
toward the payment of such amount, in such order of application as the Agent or
such Lender may elect, subject to Section 2.12 of the Credit Agreement) any and
------------
all balances, credits, deposits, accounts or moneys of or in the name of such
undersigned now or hereafter with the Agent or any Lender (other than to the
extent held in trust or as fiduciary for the benefit of investors) and any and
all property of every kind or
F-1
description of or in the name of such undersigned
now or hereafter, for any reason or purpose whatsoever, in the possession or
control of, or in transit to, the Agent or any Lender or any agent or bailee for
the Agent or any Lender.
This Guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the undersigned
or that at any time or from time to time no Guaranteed Obligations are
outstanding) until all Guaranteed Obligations have been paid in full and all
Commitments under the Credit Agreement have been terminated.
The undersigned further agree that if at any time all or any part of any
payment theretofore applied by the Agent or any Lender to any of the Guaranteed
Obligations is or must be rescinded or returned by the Agent or such Lender for
any reason whatsoever (including, without limitation, the insolvency, bankruptcy
or reorganization of the Borrower or any of the undersigned), such Guaranteed
Obligations shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent or such Lender, and
this Guaranty shall continue to be effective or be reinstated, as the case may
be, as to such Guaranteed Obligations, all as though such application by the
Agent or such Lender had not been made.
The Agent (on behalf of the Lenders) may, from time to time, at its sole
discretion and without notice to the undersigned (or any of them), take any or
all of the following actions: (a) retain or obtain a security interest in any
property to secure any of the Guaranteed Obligations or any obligation hereunder
(to the extent provided in any collateral document entered into in connection
with the Credit Agreement), (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to the undersigned, with
respect to any of the Guaranteed Obligations, (c) extend or renew any of the
Guaranteed Obligations for one or more periods (whether or not longer than the
original period), alter or exchange any of the Guaranteed Obligations, or
release or compromise any obligation of any of the undersigned hereunder or any
obligation of any nature of any other obligor with respect to any of the
Guaranteed Obligations, (d) release its security interest in, or surrender,
release or permit any substitution or exchange for, all or any part of any
property securing any of the Guaranteed Obligations or any obligation hereunder,
or extend or renew for one or more periods (whether or not longer than the
original period) or release, compromise, alter or exchange any obligations of
any nature of any obligor with respect to any such property, and (e) resort to
the undersigned (or any of them) for payment of any of the Guaranteed
Obligations when due, whether or not the Agent or any Lender shall have resorted
to any property securing any of the Guaranteed Obligations or any obligation
hereunder or shall have proceeded against any other of the undersigned or any
other obligor primarily or secondarily obligated with respect to any of the
Guaranteed Obligations.
Any amounts received by the Agent or any Lender from whatever source on
account of the Guaranteed Obligations may be applied by it toward the payment of
the Guaranteed Obligations; and, notwithstanding any payments made by or for the
account of any of the undersigned pursuant to this Guaranty, the undersigned
shall not be subrogated to any rights of the Agent or any Lender until such time
as this Guaranty shall have been discontinued as to all of the undersigned and
the Agent and each Lender shall have received payment of the full amount of all
Guaranteed Obligations.
The undersigned hereby expressly waive: (a) notice of the acceptance by
the Agent or any Lender of this Guaranty, (b) notice of the existence or
creation or non-payment of all or any of the Guaranteed Obligations, (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, and (d) all diligence in collection or protection of or realization
upon any Guaranteed Obligations or any security for or guaranty of any
Guaranteed Obligations.
Each of the undersigned further agrees to pay all reasonable expenses
(including reasonable attorneys' fees (which attorneys may be employees of the
Agent or any Lender) and legal expenses) paid or incurred by the Agent or any
Lender in endeavoring to collect the Guaranteed Obligations of such undersigned,
or any part thereof, and in enforcing this Guaranty against such undersigned.
The creation or existence from time to time of additional Guaranteed
Obligations to the Agent or any Lender is hereby authorized, without notice to
the undersigned (or any of them), and shall in no way affect or impair the
rights of the Agent or any Lender or the obligations of the undersigned under
this Guaranty.
F-2
The Agent or any Lender may from time to time, without notice to the
undersigned (or any of them), assign or transfer any or all of the Guaranteed
Obligations or any interest therein to the extent permitted by the Credit
Agreement; and, notwithstanding any such assignment or transfer or any
subsequent assignment or transfer thereof, such Guaranteed Obligations shall be
and remain Guaranteed Obligations for the purposes of this Guaranty, and each
and every immediate and successive assignee or transferee of any of the
Guaranteed Obligations or of any interest therein shall, to the extent of the
interest of such assignee or transferee in the Guaranteed Obligations, be
entitled to the benefits of this Guaranty to the same extent as if such assignee
or transferee were the Agent or such Lender, as the case may be.
No delay on the part of the Agent or any Lender in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Agent or any Lender of any right or remedy shall preclude other
or further exercise thereof or the exercise of any other right or remedy; nor
shall any modification or waiver of any provision of this Guaranty be binding
upon the Agent or any Lender except as expressly set forth in a writing duly
signed and delivered on behalf of the Agent or such Lender, as the case may be.
No action of the Agent or any Lender permitted hereunder shall in any way affect
or impair the rights of the Agent or any Lender or the obligations of the
undersigned under this Guaranty. For purposes of this Guaranty, Guaranteed
Obligations shall include all obligations of the Borrower and each of the
undersigned to the Agent and each Lender arising under or in connection with the
Credit Agreement, the Notes or any other Loan Document, notwithstanding any
right or power of the Borrower or anyone else to assert any claim or defense as
to the invalidity or unenforceability of any obligation, and no such claim or
defense shall affect or impair the obligations of the undersigned hereunder.
This Guaranty shall be binding upon the undersigned and the successors and
assigns of the undersigned; and to the extent that the Borrower or any of the
undersigned is either a partnership or a corporation, all references herein to
the Borrower and to the undersigned, respectively, shall be deemed to include
any successor or successors, whether immediate or remote, to such partnership or
corporation. The term "undersigned" as used herein shall mean all parties
executing this Guaranty and each of them, and all such parties shall be jointly
and severally obligated hereunder.
This Guaranty has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State of
Illinois. Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty. At any time after the date of this
Guaranty, one or more additional persons or entities may become parties hereto
by executing and delivering to the Agent a counterpart of this Guaranty.
Immediately upon such execution and delivery (and without any further action),
each such additional person or entity will become a party to, and will be bound
by all of the terms of, this Guaranty.
This Guaranty may be secured by one or more other agreements (including,
without limitation, one or more pledge agreements, mortgages, deeds of trust or
other similar documents).
EACH OF THE UNDERSIGNED HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS AND EACH OF THE UNDERSIGNED HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY OF THE UNDERSIGNED IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY OF THE
UNDERSIGNED AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR
F-3
ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A
COURT IN CHICAGO, ILLINOIS.
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) THE AGENT
AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
F-4
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered as
of the day and year first above written.
TMS Mortgage Inc., The Money Store/Kentucky Inc., The
Money Store Home Equity Corp., The Money Store/D.C.,
Inc., The Money Store/Minnesota Inc., The Money Store
Auto Finance Inc., The Money Store Commercial Mortgage
Inc., Equity Insurance Agency, Inc., Major Brokerage
Co., Inc., Princeton Escrow, Dyna-▇▇▇▇, Inc., The Money
Store Investment Corporation, The Money Store of New
York, Inc., The Commerce Group, The Money Store/Service
Corp., ClassNotes Inc., The Money Store Realty, Inc.,
TMS Venture Holdings Inc.
By:______________________________________________
Name:____________________________________________
Printed:_________________________________________
Title:___________________________________________
F-5
FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT, dated as of September 20, 1996 (this "Amendment") is
---------
among The Money Store Inc. (the "Borrower"), the Lenders, First Union National
--------
Bank of North Carolina, as Documentation Agent, and The First National Bank of
Chicago, as Administrative Agent.
BACKGROUND
1. The Borrower, the Lenders, the Documentation Agent and the
Administrative Agent entered into a Credit Agreement, dated as of August 16,
1996 (the "Credit Agreement").
----------------
2. The parties desire to amend the Credit Agreement in certain respects as
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and not
-----------
otherwise defined herein shall have the meanings assigned thereto in the Credit
Agreement.
SECTION 2. Amendments to Credit Agreement. Each of the parties hereto
------------------------------
agrees that effective as of August 16, 1996, the Credit Agreement is hereby
amended as follows:
(a) The definition of "Contingent Obligation" is hereby amended by
(i) deleting the clause designation "(y)" therein and substituting therefor
the clause designation "(z)" and (ii) inserting the text ", (y) is or will
be funded from Consolidated Restricted Cash" immediately before the word
"or" and the new clause designation "(z)".
(b) There is hereby added to Section 6.13(a) the following new clause
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(viii):
"(viii) Liens incurred on Consolidated Restricted Cash to secure the
performance of letters of credit, bids, tenders, sales contracts,
leases, statutory obligations, surety, appeal and performance
bonds and other similar obligations not incurred in connection
with the
borrowing of money, the obtaining of advances or the payment of
the deferred purchase price of Property."
(c) Section 6.14 is hereby amended by adding the following sentence
------------
thereto immediately following the period at the end of such Section:
"Notwithstanding the foregoing, a Subsidiary may become liable for or
have outstanding Indebtedness, or permit such of its Property
constituting Consolidated Restricted Cash to be subject to a Lien
securing Indebtedness, in each case to the extent such Indebtedness
would be excluded from the definition of "Contingent Obligation"
pursuant to clause (ii) of the definition thereof."
SECTION 3. Conditions to Effectiveness. This Amendment shall become
---------------------------
effective as of August 16, 1996, subject to the satisfaction of the
following conditions precedent:
(a) the Agent shall have received counterparts of this Amendment
executed by the Borrower and the Required Lenders; and
(b) the Agent shall have received an opinion of Stroock & Stroock &
▇▇▇▇▇, special counsel to the Borrower, addressed to the Agent and the
Lenders, in form and substance satisfactory to the Agent and to the effect
that the performance by the Borrower and the Guarantors of the Obligations
will not violate, conflict with or result in a default under the documents
governing the Borrower's contemplated securitization transaction expected
to close during the week of September 23, 1996.
SECTION 4. Representations and Warranties. The Borrower hereby represents
------------------------------
and warrants that no Default or Unmatured Default has occurred which is
continuing and the representations and warranties set forth in Article V of the
---------
Credit Agreement are true and correct as of the date hereof, in each case after
giving effect to the amendments made hereby.
SECTION 5. Fees and Expenses. The Borrower hereby agrees, in accordance
-----------------
with Section 9.7 of the Credit Agreement, to pay, or reimburse the Agent and the
-----------
Documentation Agent, on demand, for any and all legal fees and expenses incurred
by the Agent or the Documentation Agent, as applicable, in connection with this
Amendment.
SECTION 6. Post-Closing Opinion. The Borrower hereby agrees to deliver to
--------------------
the Agent (with sufficient copies for the Lenders) on or prior to October 31,
1996, an opinion of Stroock & Stroock & ▇▇▇▇▇, special counsel to the Borrower,
addressed to the
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Agent and the Lenders, in form and substance satisfactory to the Agent and to
the effect that the performance by the Borrower and the Guarantors of the
Obligations will not violate, conflict with or result in a default under any
material indenture, instrument or agreement binding upon the Borrower or any of
its subsidiaries. Failure to deliver such opinion by October 31, 1996 shall
constitute a Default for all purposes under the Credit Agreement and the other
Loan Documents.
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SECTION 7. Miscellaneous. The Credit Agreement, as amended hereby,
-------------
remains in full force and effect. Any reference to the Credit Agreement from and
after the date of this Amendment shall be deemed to refer to the Credit
Agreement as amended hereby. This Amendment may be executed in any number of
counterparts, and by the parties on separate counterparts, all of which shall
constitute but one and the same agreement. This Amendment shall be governed by
the internal laws of the State of Illinois, but giving effect to Federal laws
applicable to national banks.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date and year first above written.
THE MONEY STORE INC.
By:_______________________________
Name Printed:_____________________
Title:____________________________
THE FIRST NATIONAL BANK OF
CHICAGO,
individually and as Administrative Agent
By:________________________________
Name Printed:______________________
Title:_____________________________
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:________________________________
Name Printed:______________________
Title:_____________________________
BANCO POPULAR de PUERTO RICO
By:________________________________
Name Printed:______________________
Title:_____________________________
BANK HAPOALIM B.M.
By:________________________________
Name Printed:______________________
Title:_____________________________
THE BANK OF NEW YORK
By:________________________________
Name Printed:______________________
Title:_____________________________
THE BANK OF NOVA SCOTIA
By:________________________________
Name Printed:______________________
Title:_____________________________
THE CHASE MANHATTAN BANK
By:________________________________
Name Printed:______________________
Title:_____________________________
CIBC INC.
By:________________________________
Name Printed:______________________
Title:_____________________________
COMERICA BANK
By:________________________________
Name Printed:______________________
Title:_____________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:________________________________
Name Printed:______________________
Title:_____________________________
FIRST BANK NATIONAL ASSOCIATION
By:________________________________
Name Printed:______________________
Title:_____________________________
THE SUMITOMO BANK OF CALIFORNIA
By:________________________________
Name Printed:______________________
Title:_____________________________
By:________________________________
Name Printed:______________________
Title:_____________________________
THE SUMITOMO BANK, LIMITED
By:________________________________
Name Printed:______________________
Title:_____________________________
By:________________________________
Name Printed:______________________
Title:_____________________________
UNION BANK OF CALIFORNIA, N.A.
By:________________________________
Name Printed:______________________
Title:_____________________________
UNITED STATES NATIONAL BANK
OF OREGON
By:________________________________
Name Printed:______________________
Title:_____________________________
▇▇▇▇▇ FARGO BANK, N.A.
By:________________________________
Name Printed:______________________
Title:_____________________________
Each of the undersigned hereby consents
to the foregoing Amendment as of the
date and year first above written:
TMS Mortgage Inc., The Money Store/Kentucky Inc., The Money Store Home Equity
Corp., The Money Store/D.C., Inc., The Money Store/Minnesota Inc., The Money
Store Auto Finance Inc., The Money Store Commercial Mortgage Inc., Equity
Insurance Agency, Inc., Major Brokerage Co., Inc., Princeton Escrow, Dyna-▇▇▇▇,
Inc., The Money Store Investment Corporation, The Money Store of New York, Inc.,
The Commerce Group, The Money Store/Service Corp., ClassNotes Inc., The Money
Store Realty, Inc., TMS Venture Holdings Inc.
By:________________________________________
Name Printed:_______________________________
Title:______________________________________