SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended
September 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
1-14074
(Commission File Number)
ContiFinancial Corporation
(Exact name of registrant as specified in its charter)
Delaware 13-3852588
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 207-2800
no change
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
The Company had 46,749,435 shares of common stock outstanding as of November 9,
1998.
<PAGE>
ContiFinancial Corporation
Table of Contents
PART I
Page
Item 1.Financial Statements (unaudited)
Consolidated Balance Sheets 3
Consolidated Statements of Income 4
Condensed Consolidated Statements of Cash Flows 5
Notes to Unaudited Condensed Consolidated Financial Statements 6
Item 2.Management's Discussion and Analysis of Financial Condition and
Results of Operations
Discussion of Events During the Fiscal 1999 Second Quarter 10
Selected Financial Information 13
Results of Operations 15
Gain (Loss) on Sale of Receivables and Excess Spread Receivables 17
Liquidity and Capital Resources 20
Year 2000 22
Forward-looking Statements 25
Item 3.Quantitative and Qualitative Disclosures About Market Risk 25
PART II
Item 1.Legal Proceedings 26
Item 4.Submission of Matters to a Vote of Security Holders 26
Item 6.Exhibits and Reports on Form 8-K 27
Signatures 28
<PAGE>
CONTIFINANCIAL CORPORATION
Consolidated Balance Sheets
as of September 30, 1998 and March 31, 1998
(in thousands, except share data)
(unaudited)
<TABLE>
<CAPTION>
September 30, March 31,
1998 1998
Assets
<S> <C> <C>
Cash and cash equivalents $ 176,040 $ 173,588
Restricted cash 2,481 1,147
Securities purchased under agreements to resell 1,382,356 857,649
Receivables held for sale, net:
Receivables held for sale 954,284 726,990
Allowance for loan losses (3,598) (2,685)
------------- -------------
Receivables held for sale, net 950,686 724,305
Other receivables 124,909 117,678
Due from affiliates 66,145 46,922
Interest-only and residual certificates 793,753 648,785
Capitalized servicing rights 105,873 74,292
Premises and equipment, net of accumulated depreciation of $11,027
and $7,951 as of September 30, 1998 and March 31, 1998, respectively 24,587 18,887
Cost in excess of equity acquired 80,245 55,738
Equity investments in unconsolidated subsidiaries 51,101 53,660
Other assets 55,270 35,928
-------------- -------------
Total assets $ 3,813,446 $ 2,808,579
============== ============
Liabilities and Stockholders' Equity
Liabilities:
Accounts payable $ 214,936 $ 91,179
Securities sold but not yet purchased 1,290,742 847,470
Trade receivables sold under agreements to repurchase 539,767 245,556
Due to affiliates 151 163
Short-term debt 524,600 366,104
Taxes payable --- 81,190
Long-term debt 699,293 499,553
Other liabilities 19,353 30,427
------------ ------------
Total liabilities 3,288,842 2,161,642
------------ ------------
Commitments and contingencies
Minority interest in subsidiaries 5,131 629
Stockholders' equity:
Preferred stock (par value $0.01 per share;
25,000,000 shares authorized; none
issued at September 30, 1998 and March 31, 1998) --- ---
Common stock (par value $0.01 per share;
250,000,000 shares authorized;47,657,539 shares issued
at September 30, 1998 and March 31,1998)
477 477
Paid-in capital 400,101 399,776
Retained earnings 154,725 262,956
Treasury stock (908,104 and 201,209 shares of common stock, at cost,
at September 30, 1998 and March 31, 1998, respectively) (25,096) (5,794)
Deferred compensation (10,734) (11,107)
--------------- -----------
Total stockholders' equity 519,473 646,308
--------------- -----------
Total liabilities and stockholders' equity $ 3,813,446 $ 2,808,579
=============== ===========
</TABLE>
The accompanying notes to the unaudited condensed consolidated financial
statements are an integral part of these statements.
CONTIFINANCIAL CORPORATION
Consolidated Statements of Income
for the three and six months ended September 30, 1998 and 1997
(in thousands, except share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Six Months
Ended September Ended September
30, 30,
1998 1997 1998 1997
------------ ---------- ------------- ------------
Gross income:
<S> <C> <C> <C> <C>
Gain on sale of receivables $ 16,316 $ 78,792 $ 53,888 $ 143,132
Commercial real estate
valuation adjustments (see Note 3) (129,034) --- (129,034) ---
Interest 90,899 58,225 162,879 107,904
Net servicing income 28,966 17,807 55,686 33,780
Other income 3,708 3,306 9,552 7,337
------------- ------------- -------------- -------------
10,855 158,130 152,971 292,153
Total gross income ------------- ------------- -------------- -------------
Expenses:
Compensation and benefits 51,842 36,477 95,166 66,711
Interest 66,140 40,499 121,522 76,362
Provision for loan losses 2,329 1,203 3,051 2,514
General and administrative 40,071 22,718 72,582 43,788
Other charges (see Note 3) 36,090 --- 36,090 ---
------------ ------------ ------------- ------------
Total expenses 196,472 100,897 328,411 189,375
------------ ------------ ------------- ------------
Income (loss) before income taxes and
minority interest (185,617) 57,233 (175,440) 102,778
Income taxes (71,362) 23,343 (67,261) 41,984
----------- ------------ ------------ ------------
Income (loss) before minority interest (114,255) 33,890 (108,179) 60,794
Minority interest in subsidiaries
(4) (947) 52 (916)
------------ ------------ ------------ -----------
Net income (loss) $ (114,251) $ 34,837 $ (108,231) $ 61,710
============ ============ ============ ===========
Basic earnings (loss) per common share $ (2.48) $ 0.74 $ (2.33) $ 1.35
============ ============ ============ ===========
Diluted earnings (loss) per common share $ (2.48) $ 0.73 $ (2.33) $ 1.32
============ ============ ============ ===========
Basic weighted average number of
shares outstanding 46,153,506 46,853,920 46,419,684 45,805,621
============ =========== ============ ===========
Diluted weighted average number of
shares outstanding 46,153,506 47,619,685 46,419,684 46,604,156
============ =========== ============ ===========
</TABLE>
The accompanying notes to the unaudited condensed consolidated financial
statements are an integral part of these statements.
<PAGE>
CONTIFINANCIAL CORPORATION
Condensed Consolidated Statements of Cash Flows
for the six months ended September 30, 1998 and 1997
(in thousands)
(unaudited)
<TABLE>
Six Months Ended
September 30,
1998 1997
<S> <C> <C>
Net cash used in operating activities $ (290,309) $ (271,031)
--------------- -----------
Cash flows from investing activities:
Acquisitions of majority owned subsidiaries (net of cash acquired) (22,086) ---
Acquisitions of minority owned subsidiaries (1,140) (5,603)
Purchase of property and equipment, net (8,375) (3,959)
Net cash used in investing activities --------------- -----------
(31,601) (9,562)
Cash flows from financing activities: --------------- -----------
Decrease in due to affiliates (12) (29,219)
Increase in short-term debt 158,340 245,310
Increase in long-term debt 199,778 714
Proceeds from exercise of employee stock options --- 524
Debt issuance costs (11,692) ---
Repurchase of common stock (22,052) ---
Net proceeds from common stock offering --- 100,778
Other, net --- 24
--------------- -----------
Net cash provided by financing activities 324,362 318,131
--------------- -----------
Net increase in cash and cash equivalents 2,452 37,538
Cash and cash equivalents at beginning of period 173,588 51,200
--------------- -----------
Cash and cash equivalents at end of period $ 176,040 $ 88,738
=============== ===========
The accompanying notes to the unaudited condensed consolidated financial
statements are an integral part of these statements.
</TABLE>
<PAGE>
CONTIFINANCIAL CORPORATION
Notes to Unaudited Condensed Consolidated Financial Statements
September 30, 1998
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements of
ContiFinancial Corporation and its majority owned subsidiaries (collectively,
"ContiFinancial" or the "Company") have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission and, in the opinion of
management, reflect all normal recurring adjustments which are necessary for a
fair presentation of the financial position, results of operations, and cash
flows for each period shown. The preparation of financial statements requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and the results of operations. Actual results could
differ from these estimates. In addition, results for interim periods are not
necessarily indicative of results for the full year. These unaudited condensed
consolidated financial statements should be read in conjunction with the audited
Consolidated Financial Statements and notes thereto included in the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 1998 (the "Annual
Report"). All significant intercompany accounts and transactions have been
eliminated in consolidation.
2. RECENT ACCOUNTING PRONOUNCEMENT
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133 "Accounting for Derivative Instruments
and Hedging Activities" ("SFAS 133") which is effective for all fiscal quarters
of fiscal years beginning after June 15, 1999. SFAS 133 standardizes the
accounting for derivative instruments, including certain derivative instruments
embedded in other contracts, by requiring that an entity recognize those items
as assets or liabilities in the statement of financial position and measure them
at fair value. The Company is currently evaluating the impact of SFAS 133 on its
financial position and results of operations.
3. COMMERCIAL REAL ESTATE VALUATION ADJUSTMENTS and OTHER CHARGES
The Company's results for the 1999 second quarter were significantly and
adversely affected by extremely difficult capital market conditions during the
quarter. Although interest rates on U.S. Treasury securities moved significantly
lower during the quarter, the interest rate spreads between such securities and
other fixed income securities widened considerably. Particularly affected was
the market for commercial real estate loans and securities backed by such loans.
These adverse developments resulted in commercial real estate valuation
adjustments and other charges against earnings of $165.1 million.
The accompanying unaudited consolidated statements of income includes a charge
of $125.0 million related to the write down of commercial real estate loans
during the second quarter of fiscal 1999. At September 30, 1998 the Company had
commercial real estate loans held for sale of $150.2 million and $845.8 million
of loans sold with limited recourse under the Company's asset purchase and sale
facilities with certain financial institutions ("Purchase and Sale Facilities").
Prior to sale or securitization, the loans held for sale are carried at the
lower of aggregate cost or market value. Market value represents the proceeds
the Company believes it would receive if such assets were sold over a reasonable
period of time under prevailing market conditions. With respect to loans held
for sale and the recourse risk on the Purchase and Sale Facilities, the Company
hedges its resulting exposure to absolute movement in interest rates, typically
through the short sale of U.S. Treasury securities or interest rate futures
contracts.
CONTIFINANCIAL CORPORATION
Notes to Unaudited Condensed Consolidated Financial Statements (Continued)
September 30, 1998
During the quarter, the significant decline in interest rates on U.S. Treasury
securities resulted in significant losses on hedge positions. If interest rate
spreads between U.S. Treasury securities and the securities to be issued (backed
by the commercial real estate loans) had remained at the levels that prevailed
when the hedges were executed, the market value of the loans would have
increased, offsetting the hedge losses. However, spreads widened considerably,
so much in fact that the market value of the loans declined at the same time
that hedge losses were being incurred. In addition, commercial real estate
valuation adjustments includes a $4.0 million reduction in the carrying value of
commercial real estate related excess spread receivable ("ESR").
Expenses for the quarter include other charges of $36.1 million. During the
quarter, certain affiliates engaged in commercial real estate activities or
subprime home equity lending experienced constraints on their financing
availability or encountered depressed origination premiums that the Company
believes has adversely impacted such affiliates' operations. As a result,
charges of $28.0 million were recorded in order to establish reserves in
connection with receivables from such entities. The remaining charges of $8.1
million were attributable to the write down of certain investments in affiliates
and costs incurred as a result of the Company's decision to reduce the scope of
certain business activities, primarily commercial real estate.
4. STOCKHOLDERS' EQUITY
The following table presents a reconciliation of basic and diluted earnings per
common share (dollars in thousands, except per share amounts).
<TABLE>
<CAPTION>
Three Months Six Months
Ended September 30, Ended September 30,
1998 1997 1998 1997
<S> <C> <C> <C> <C>
Net income (loss) $ (114,251) $ 34,837 $ (108,231) $ 61,710
============ ============ ============= ==============
Basic weighted average number of
shares outstanding 46,153,506 46,853,920 46,419,684 45,805,621
Adjustments for dilutive shares outstanding:
Restricted shares --- 175,086 --- 163,000
Options --- 590,679 --- 635,535
------------ ------------ ------------- --------------
Diluted weighted average number of
shares outstanding 46,153,506 47,619,685 46,419,684 46,604,156
============ ============= ============= =============
Earnings (loss) per common share:
Basic $ (2.48) $ 0.74 $ (2.33) $ 1.35
============ ============ ============= =============
Diluted $ (2.48) $ 0.73 $ (2.33) $ 1.32
============ ============ ============= =============
</TABLE>
CONTIFINANCIAL CORPORATION
Notes to Unaudited Condensed Consolidated Financial Statements (Continued)
September 30, 1998
For the three and six months ended September 30, 1998, there were no adjustments
for diluted shares outstanding as their effect was antidilutive.
In February 1998, the Company's Board of Directors authorized the purchase of up
to one million shares of the Company's outstanding common stock. During the six
months ended September 30, 1998, the Company purchased 806,300 shares at an
average cost of $27.35 per share, completing the authorized one million share
repurchase. The purchased shares are held in treasury for use in connection with
ContiFinancial's 1995 Long-Term Stock Incentive Plan (the "Stock Plan").
5. ACQUISITION
In April 1998, the Company acquired, for approximately $18.0 million, a 75%
interest in Keystone Mortgage Partners L.L.C. ("Keystone"). Keystone, an
originator and servicer of commercial mortgage loans with offices in Dallas and
Phoenix, acts as a mortgage banker primarily to the insurance industry and does
not take principal risk.
6. DEBT
Short-term and long-term debt at September 30, 1998 and March 31, 1998 consisted
of the following :
<TABLE>
<CAPTION>
September 30, March 31,
1998 1998
(in thousands)
Short-term debt:
<S> <C> <C>
Commercial paper $ 314,226 $ 270,708
Revolving credit facility 150,000 95,000
Uncommitted credit facility 60,000 ---
Current portion of long-term debt 374 396
------------ ------------
Total short-term debt $ 524,600 $ 366,104
============ ============
Long-term debt:
8 3/8% Senior Notes, $300 million face amount, due 2003 $ 299,348 $ 299,295
7 1/2% Senior Notes, $200 million face amount, due 2002 199,479 199,412
8 1/8% Senior Notes, $200 million face amount, due 2008 199,785 ---
Capitalized lease 681 846
------------ ------------
Total long-term debt $ 699,293 $ 499,553
============ ============
</TABLE>
CONTIFINANCIAL CORPORATION
Notes to Unaudited Condensed Consolidated Financial Statements (Continued)
September 30, 1998
On April 2, 1998, the Company issued $200 million of 8 1/8% unsecured Senior
Notes due April 1, 2008. Proceeds to the Company, net of underwriting fees,
market discount and other costs were $188.0 million. Interest on these notes is
payable semi-annually on April 1 and October 1 commencing October 1, 1998. The
notes are redeemable in whole or in part, at the option of the Company, at any
time or from time to time, at a redemption price equal to the greater of (i)
100% of their principal amount or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
date of redemption on a semiannual basis at the treasury yield plus 50 basis
points, plus, in each case, accrued interest to the date of redemption.
On August 21, 1998, the Company increased its one year renewable unsecured
Commercial Paper Program ("Commercial Paper Program") backed by an irrevocable
direct-pay letter of credit provided by a syndicate of banks from $275.0 million
to $317.5 million. At September 30, 1998, $314.2 million of commercial paper was
outstanding.
As of November 13, 1998 the Company is fully drawn under its Commercial Paper
Program and its $200 million unsecured revolving credit facility (the "Revolving
Credit Facility").
The Company is also required to comply with various financial covenants under
its outstanding senior notes, Revolving Credit Facility and Commercial Paper
Program, as well as under certain provisions of the Purchase and Sale Facilities
and agreements to repurchase (the "Repurchase Agreements") including, among
other things, a 2.5 to 1 leverage ratio, a minimum net worth test and an
interest coverage ratio. The Company was in compliance with these covenants as
of September 30, 1998 but may or may not be in compliance as of the end of the
third quarter of fiscal year 1999. If it appears necessary, the Company will
approach its lenders under the Revolving Credit Facility and the Commercial
Paper Program for covenant relief. However, no assurance can be given that any
such relief will be forthcoming. The Company's ability to continue to obtain
funding under the Revolving Credit Facility and the Commercial Paper Program is
subject to its continued compliance with these covenants or, if necessary,
obtaining covenant relief. The Company's ability to remain in compliance is
dependent on factors beyond the control of the Company, primarily conditions in
the securitization and whole-loan sale markets. Failure of the Company to remain
in compliance with the financial covenants may result in discontinuation of
funding under its financing facilities and could have a material adverse effect
on the Company's liquidity, financial condition and operations.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
This discussion should be read in conjunction with the accompanying unaudited
condensed consolidated financial statements and notes thereto included herein,
and the Company's audited Consolidated Financial Statements and notes thereto
included in the Company's Annual Report. Certain statements under this caption
constitute "forward-looking statements" under federal securities laws. See
"Forward-looking Statements".
Discussion of Events During the Fiscal 1999 Second Quarter
The Company's results for the 1999 second quarter were significantly and
adversely affected by extremely difficult capital market conditions during the
quarter. Although interest rates on U.S. Treasury securities moved significantly
lower during the quarter, the interest rate spreads between such securities and
other fixed income securities widened considerably. Particularly affected was
the market for commercial real estate loans and securities backed by such loans.
As more fully discussed below, these adverse developments resulted in charges
against earnings, a weakening of operating results (exclusive of the charges)
and draws on liquidity.
Special Charges Against Earnings - The Company's second quarter loss included
charges against earnings of $165.1 million that resulted directly from the
disruptive market conditions noted above.
The accompanying unaudited consolidated statements of income includes a
charge of $125.0 million related to the write down of commercial real estate
loans during the second quarter of fiscal 1999. At September 30, 1998 the
Company had commercial real estate loans held for sale of $150.2 million and
$845.8 million of loans sold with limited recourse under the Company's Purchase
and Sale Facilities. Prior to sale or securitization, the loans held for sale
are carried at the lower of aggregate cost or market value. Market value
represents the proceeds the Company believes it would receive if such assets
were sold over a reasonable period of time under prevailing market conditions.
With respect to loans held for sale and the recourse risk on the Purchase and
Sale Facilities, the Company hedges its resulting exposure to absolute movement
in interest rates, typically through the short sale of U.S. Treasury securities
or interest rate futures contracts. During the quarter, the significant decline
in interest rates on U.S. Treasury securities resulted in significant losses on
hedge positions. If interest rate spreads between U.S. Treasury securities and
the securities to be issued (backed by the commercial real estate loans) had
remained at the levels that prevailed when the hedges were executed, the market
value of the loans would have increased, offsetting the hedge losses. However,
spreads widened considerably, so much in fact that the market value of the loans
declined at the same time that hedge losses were being incurred. In addition,
commercial real estate valuation adjustments includes a $4.0 million reduction
in the carrying value of commercial real estate related ESR.
Expenses for the quarter include other charges of $36.1 million. During the
quarter, certain affiliates engaged in commercial real estate activities or
subprime home equity lending experienced constraints on their financing
availability or encountered depressed origination premiums that the Company
believes has adversely impacted such affiliates' operations. As a result,
charges of $28.0 million were recorded in order to establish reserves in
connection with receivables from such entities. The remaining charges of $8.1
million were attributable to the write down of certain investments in affiliates
and costs incurred as a result of the Company's decision to reduce the scope of
certain business activities, primarily commercial real estate.
Impact on Operating Results - In addition to the items discussed above, the
market conditions that prevailed in the fiscal 1999 second quarter had an
adverse impact on operating results. The Company contributed a total of $669.1
million of commercial mortgage loans to a $1.1 billion commercial
mortgage-backed securitization that closed in late August. In addition, Red
Mountain Funding, a 48% owned affiliate, contributed $112.7 million of
collateral to the transaction. As a result of the deterioration of interest rate
spreads, the Company recorded a pretax loss of $3.3 million in connection with
this transaction, which is included in gain on sale of receivables in the
accompanying unaudited consolidated statements of income.
The Company completed a $2.1 billion home equity securitization in September.
Although spreads on securities collateralized by home equity loans widened
during the quarter, the resulting impact on profitability was much less
significant than the impact on the commercial real estate securitization
discussed above. The pretax gain on sale recorded in connection with the
ContiMortgage 98-3 transaction was $64.5 million. The gain on sale percentage
(i.e., gain on sale as a percentage of securitization volume) for that
transaction was 3.07%, down from 3.90% for the ContiMortgage 98-2 securitization
completed in the first quarter. The aforementioned amounts do not include the
impact of ESR fair value adjustments.
The ESR fair value adjustment for the quarter was $78.4 million. During the
first quarter, the Company increased the weighted average estimated future
Conditional Prepayment Rate ("CPR") for its ContiMortgage Corporation
("ContiMortgage")/ContiWest Corporation ("ContiWest") ESR portfolio from 27% at
March 31, 1998 to 28% at June 30, 1998. At September 30, 1998, the estimate
remained at 28%. Approximately $25 million of the aggregate second quarter
adjustment was the result of a higher level of actual prepayments during the
quarter than the level assumed in the computation of ESR fair value on
ContiMortgage/ContiWest Real Estate Mortgage Investment Conduits ("REMICs").
Prepayments moderated later in the quarter. During the second quarter, the
Company increased its assumption of future credit losses on
ContiMortgage/ContiWest REMICs to reflect the increase in its assumed level of
future defaults and an increase in future loss severity. This increase accounted
for $46.3 million of the fair value adjustment. (see "Gain (Loss) on Sale of
Receivables and Excess Spread Receivables" for further discussion)
Draws on liquidity - As interest rate spreads widened on securities backed by
commercial real estate loans and, to a lesser extent, subprime home equity
loans, the "margins" applied to financing for such loans prior to sale or
securitization were in many instances increased. The margin represents the
difference between a loan's principal value and the amount that can be borrowed
by pledging the loan as collateral. In the normal course of its business
activities, the Company maintains substantial inventories of loans held for sale
or securitization and, as a result, has significant financing requirements. As a
result of the reduction in the value of loans pledged as collateral for secured
borrowings and/or the increase in related margins, the Company was required to
post net cash collateral of $55.4 million during the quarter and $36.9 million
in October 1998.
On an ongoing basis, the Company is required to maintain margin deposits in
connection with its hedge positions. As noted earlier, the Company incurred
significant hedge losses during the quarter. As a result, the net cash outflow
in connection with its hedge positions was $114.1 million over the course of the
quarter and $24.9 million in October 1998. The Company had hedged its interest
rate exposure on its loan portfolio through the short sale of U.S. Treasury
securities or interest rate futures contracts. In an effort to reduce its
exposure to large cash outflows as a result of margin requirements in the event
of a large decline in interest rates, the Company has replaced a significant
portion of its short sales and futures positions with positions utilizing
options on interest rate futures contracts.
During the quarter, the Company maintained sufficient levels of liquidity and
was able to fund its business activities, albeit at a reduced level, including
the additional cash requirements in connection with margins on secured financing
and margins on hedge positions. As discussed further below, the Company has
taken steps to reduce its financing needs and provide continued access to
liquidity. Previously, Continental Grain Company ("Continental Grain"), which
owns approximately 77% of the Company's outstanding common stock, stated its
intention to provide the Company with financial support, under the appropriate
conditions. At ContiFinancial's request, Continental Grain has now agreed, for a
fee, to provide up to an aggregate of $85 million in monthly servicer advances
to certain REMICs for which ContiMortgage, a wholly-owned subsidiary, is the
servicer. Continental Grain has agreed to make these advances through October
15, 1999. Although the advances will be made to, and repaid by, the REMICs, and
not by the Company or ContiMortgage, Continental Grain's advances will improve
the liquidity of the Company by relieving it of its obligation to make these
advances itself. Continental Grain has indicated its willingness to consider
additional financial support to the Company, under the appropriate
circumstances, should the Company require it. However, Continental Grain has
made no commitment to provide additional funds.
The Company's most significant financing requirement is the funding of mortgage,
loan and lease originations and purchases pending their pooling and sale. These
receivables are generally financed on a secured basis either through the
Company's Purchase and Sale Facilities or the Company's funding under the
Repurchase Agreements, collectively, the "Facilities". In October 1998, the
Company suspended the origination of new loans through its ContiMAP conduit
program. As noted earlier, the Company recorded a $125.0 million charge,
including hedging losses, to write down the commercial real estate loan
portfolio to market value, assuming an orderly liquidation of the portfolio over
a reasonable period of time based on the market conditions that prevailed as of
September 30, 1998.
Subsequent to September 30, 1998, the Company has reduced the volume of home
equity, home improvement and other residential mortgage loan originations. Loan
originations for the month of October were $772.9 million compared with a
monthly average of $837.9 million during the second fiscal quarter. The
reduction was focused on wholesale originations since the Company typically pays
premiums in connection with the purchase of loans from wholesale originators.
The Company plans to reduce wholesale originations to approximately 30% of its
total originations, down from 60% of the total currently. Another factor
influencing financing requirements is the timing of loan sales and
securitizations. The Company has generally executed one large home equity
securitization in the last month of each quarter. Looking ahead, the Company
expects to increase the frequency of loan sales through a combination of whole
loan sales and smaller, but more frequent, securitizations. By pursuing this
approach, the Company expects that the financing required to fund loan inventory
should be less than that otherwise required under the previous approach. In
early November 1998, the Company signed agreements encompassing sales of $553
million of home equity loans of which $425 million has been funded, with the
remaining $128 million to be funded this week. The Company also intends to
negotiate a flow-basis whole loan sale program.
Another step the Company is taking to improve the cash flow characteristics of
its business activities is to focus its direct origination (i.e., retail) and
small broker channels, and reducing the level of loan purchases from wholesale
originators. The Company's objective with respect to wholesale origination, is
to pursue a pricing policy that will facilitate a continuous flow of cash
positive whole loan sales.
In its commercial loan operations, the Company will focus on the origination of
commercial loans primarily through Keystone, a subsidiary of the Company, which
acts as a mortgage banker and does not take principal risk. The Company has
received indications of interest to buy $540 million of the Company's current
commercial loan portfolio at prices comparable to its value as of September 30,
1998. The remaining approximately $400 million of commercial loans are currently
being marketed.
In connection with the foregoing actions, the Company is in the process of
implementing a staff reduction consistent with the reduction of its wholesale
residential mortgage and commercial real estate activity. Approximately, 446
positions, or 12% of the Company's total work force, are being eliminated. Most
of the positions relate to home equity wholesale origination and funding.
Selected Financial Information
ContiFinancial Corporation
Loan Originations, Securitizations and Sales
(dollars in thousands)
(unaudited)
<TABLE>
<CAPTION>
For the three months ended % For the six months ended %
September 30, Incr. September 30, Incr.
1998 1997 (Decr.) 1998 1997 (Decr.)
Home equity, home improvement and
other residential mortgage loans:
Wholesale:
<S> <C> <C> <C> <C> <C> <C>
Brokers $ 401,301 $ 226,121 77.5% $ 777,196 $ 433,210 79.4%
Correspondents 1,585,875 1,109,182 43.0% 2,935,304 2,092,446 40.3%
Direct retail 498,906 304,036 64.1% 964,831 505,914 90.7%
---------- ----------- ------ ------------ ---------- ------
Total home equity, home improvement
and other residential mortgage loans 2,486,082 1,639,339 51.7% 4,677,331 3,031,570 54.3%
---------- ----------- ------ ------------ ---------- ------
Commercial real estate mortgage loans:
Conduit (ContiMAP(R)and affiliates) 656,524 383,764 71.1% 1,375,307 575,570 138.9%
Keystone 269,543 --- 100.0% 487,495 --- 100.0%
---------- ----------- ------ ----------- ---------- ------
Total commercial real estate
mortgage loans . . 926,067 383,764 141.3% 1,862,802 575,570 223.6%
---------- ----------- ------ ----------- ---------- ------
Triad auto loans 102,407 38,277 167.5% 172,953 76,333 126.6%
---------- ----------- ------ ----------- ---------- ------
Total loan originations $3,514,556 $2,061,380 70.5% $6,713,086 $3,683,473 82.2%
========== =========== ===== ========== ========== ======
Securitizations and sales
ContiMortgage/ContiWest
securitizations $2,100,000 $1,525,000 37.7% $3,850,000 $2,790,000 38.0%
Other home equity,
home improvement and 193,360 131,705 46.8% 389,543 217,584 79.0%
other residential mortgage sales ---------- ----------- ----- ---------- ---------- -----
Total home equity, home improvement
and other residential mortgage sales 2,293,360 1,656,705 38.4% 4,239,543 3,007,584 41.0%
---------- ----------- ----- ---------- ---------- -----
Commercial real estate mortgage loans:
Conduit (ContiMAP(R)and affiliates) 581,343 328,007 77.2% 581,343 486,823 19.4%
Keystone 269,543 --- 100.0% 487,495 --- 100.0%
--------- ----------- ------ --------- --------- ------
Total commercial real estate
mortgage loans 850,886 328,007 159.4% 1,068,838 486,823 119.6%
---------- ----------- ------ --------- --------- ------
Triad auto loans 80,007 --- 100.0% 137,674 45,881 200.1%
Strategic alliances 56,939 75,877 (25.0)% 157,188 250,077 (37.1)%
---------- ----------- ------ --------- --------- ------
Total securitizations and sales $3,281,192 $2,060,589 59.2% $ 5,603,243 $ 3,790,365 47.8%
========== =========== ====== ========= ========= ======
</TABLE>
ContiMortgage Corporation
Delinquencies, Defaults and Losses
(dollars in thousands)
(unaudited)
<TABLE>
<CAPTION>
ContiMortgage September 30, March 31, September 30,
Servicing Portfolio 1998 1998 1997
<S> <C> <C> <C>
Serviced loan portfolio (at period end) $ 12,535,874 $ 10,135,785 $ 8,163,419
============ ============ ===========
Delinquencies:
30 - 59 days 2.02% 1.50% 2.92%
60 - 89 days 0.74% 0.51% 0.73%
90 days and over 0.57% 0.35% 0.62%
Total delinquencies (%) 3.33% 2.36% 4.27%
============ ============ ============
Total delinquencies ($) $ 417,862 $ 239,015 $ 348,180
============ ============ ============
Defaults:
Foreclosures 1.95% 2.31% 2.98%
Bankruptcies 1.53% 1.70% 1.39%
Real estate owned 0.93% 0.83% 0.53%
Loss mitigation (1) 0.91% 0.74% 0.07%
------------ ------------ ------------
Total defaults (%) 5.32% 5.58% 4.97%
============ ============ ============
Total defaults ($) $ 666,687 $ 565,238 $ 405,503
============ ============ ============
(1) This category includes non-performing accounts specifically identified for
accelerated resolution under the Company's loss mitigation program. Resolution
strategies include refinances, reinstatements, and full payoffs; forbearance
plans; pre-foreclosure sales for less than full payoff; third party foreclosure
sales; deed-in-lieu (or "cash for keys"); and charge-offs.
</TABLE>
<TABLE>
<CAPTION>
For the three For the twelve
months ended months ended
ContiMortgage September 30, September 30,
Loan Loss experience 1998 1998
--------------------
<S> <C> <C>
Average serviced loan portfolio $ 12,013,942 $ 10,254,773
============== ================
Net losses :
REMICs and loans held
pending sale or securitization $ 24,624 $ 67,603
Loans and properties
purchased out of REMICs 1,899 14,027
Total net losses $ 26,523 $ 81,630
============== ================
Net losses as a percentage of
average amount outstanding (2):
REMICs and loans held
pending sale or securitization 0.82% 0.66%
Loans and properties
purchased out of REMICs 0.06% 0.14%
-------------- ----------------
Total net losses as a percentage
of average amount outstanding 0.88% 0.80%
============== ================
(2) Amounts for the three months ended September 30, 1998
are annualized.
</TABLE>
Results of Operations
Three and Six Months Ended September 30, 1998 Compared with the
Three and Six Months Ended September 30, 1997
Net loss for the three and six months ended September 30, 1998 was $114.3
million and $108.2 million, respectively, compared with net income of $34.8
million and $61.7 million for the corresponding periods in fiscal 1998. The
Company's total gross income decreased to $10.9 million and $153.0 million for
the three and six months ended September 30, 1998, respectively, from $158.1
million and $292.2 million for the comparable periods last year.
As discussed previously in the "Discussion of Events During the Fiscal 1999
Second Quarter", the Company incurred charges related to commercial real estate
valuation and other charges against earnings during the fiscal 1999 second
quarter of $165.1 million. Also contributing to the decreases were fair value
adjustments to primarily home equity related ESR for the three and six months
ended September 30, 1998 of $78.4 million and $137.9 million, respectively.
Further, the fiscal 1999 second quarter commercial real estate loan
securitization resulted in a $3.3 million loss. There was no commercial real
estate loan securitization in the 1999 fiscal first quarter. The Company
generated pretax gain on sale of receivables from commercial real estate
activities of $11.4 million and $15.8 million for the three and six months ended
September 30, 1997, respectively.
Interest income and Expense:
In the normal course of its activities, the Company carries inventories of loans
pending sale or securitization and earns a positive spread between the interest
income earned on those loans and its cost of financing those loans. In recent
years the Company's origination, securitization and sales volume has increased
significantly, contributing to a concurrent increase in the average level of
loans held in inventory pending securitization. As a result, net interest income
increased to $24.8 million and $41.4 million for the three and six months ended
September 30, 1998, respectively, from $17.7 million and $31.5 million,
respectively, for the corresponding periods last year. Interest income also
includes accrued interest on ESR. In addition to the cost of financing loans
pending sale or securitization, interest expense includes the cost of financing
the Company's longer term capital requirements. Interest income increased $32.7
million and $55.0 million or 56.1% and 50.9%, for the three and six months ended
September 30, 1998 compared to the three and six months ended September 30,
1997, respectively. Interest expense increased $25.6 million and $45.2 million
or 63.3% and 59.1%, for the three and six months ended September 30, 1998 over
the corresponding period fiscal 1998, respectively (see "Liquidity and Capital
Resources" for discussion of future operations).
Net servicing income:
Net servicing income increased $11.2 million and $21.9 million or 62.7% and
64.8% for the second quarter and first half of fiscal 1999, respectively, over
the corresponding periods in fiscal 1998 primarily due to the increase in the
size of the Company's home equity servicing portfolio and the volume of home
equity securitizations. The Company's home equity loan servicing portfolio
increased to $12.5 billion at September 30, 1998 from $8.2 billion at September
30, 1997. Servicing income consists of fee income and capitalized servicing. The
fee income component (which is realized in cash) represents income earned from
the REMICs and other trusts based on the level of loans serviced. The fee income
component of servicing income was $21.1 million and $39.5 million for the first
three and six months of fiscal 1999 and $11.4 million and $22.5 million for the
corresponding periods in fiscal 1998, respectively. Capitalized servicing
consists of servicing assets recorded in connection with new securitizations
(i.e., the present value of future servicing income, net of expenses), reduced
by amortization of capitalized servicing from prior securitizations. The net
capitalized servicing component of servicing income was $7.9 million and $16.2
million for the second quarter and first half of fiscal 1999 compared with $6.4
and $11.3 million for the corresponding periods in fiscal 1998, respectively.
Compensation and benefits and General and administrative expenses:
In fiscal 1997, the Company acquired 100% of three retail home equity companies,
California Lending Group, Inc., d/b/a United Lending Group, Resource One
Consumer Discount Company, Inc., and Royal Mortgage Partners, L.P., d/b/a Royal
MortgageBanc and 56% of an auto finance company, Triad Financial Corporation
("Triad"). In fiscal 1998, the Company acquired the remaining 44% of Triad and
100% of two additional retail home equity companies, Fidelity Mortgage Decisions
Corporation and Crystal Mortgage Company, Inc. along with its subsidiary Lenders
M.D., Inc. These companies are collectively referred to herein as the "Retail
Subsidiaries". In each case, the companies acquired were former Strategic
Alliances or ContiMortgage/ContiWest loan origination sources.
The table below allocates the Company's compensation and benefits, general and
administrative expenses and headcount between the Retail Subsidiaries and all
other activities. The Company's development of its retail origination platform
has resulted in a change in the profile of the consolidated statements of
income. Retail origination expenses focus heavily on compensation and benefits
and general and administrative expenses, whereas wholesale origination costs in
the form of retail loan origination points, are netted against gain on sale of
receivables. Consequently, the accompanying unaudited consolidated statements of
income reflect increases in retail operating expenses, as well as higher income
from retail loan origination points (see "Gain (Loss) on Sale of Receivables and
Excess Spread Receivables"). From the date of the acquisition of majority
ownership, expenses of the acquired subsidiaries are included in the Company's
consolidated expenses.
As demonstrated in the table below, the acquisition and expansion of the retail
origination subsidiaries has resulted in significantly higher levels of
compensation and benefits and general and administrative expenses. With respect
to the Company's activities exclusive of the Retail Subsidiaries, the expense
increases are indicative of the significant growth in ContiMortgage's
origination volume, its serviced loan portfolio and the related growth in
headcount to support these activities. Combined compensation and benefits and
general and administrative expenses for ContiMortgage (exclusive of its retail
subsidiaries) increased by $14.6 million and $21.7 million during the second
quarter and first half of fiscal 1999, respectively. ContiMortgage's headcount
(exclusive of its retail subsidiaries) was 1,379 as of September 30, 1998
compared with 810 as of September 30, 1997.
<TABLE>
<CAPTION>
Three Six
Months Ended Months Ended
September 30, September 30,
1998 1997 Increase 1998 1997 Increase
--------- -------- -------- --------- ------- --------
(dollars in thousands)
Compensation and benefits:
<S> <C> <C> <C> <C> <C> <C>
Retail Subsidiaries $ 23,418 $ 14,462 $ 8,956 $ 44,694 $ 26,802 $ 17,892
Operations excluding Retail
Subsidiaries 28,424 22,015 6,409 50,472 39,909 10,563
--------- ---------- ---------- ----------- ---------- ---------
Total compensation and benefits $ 51,842 $ 36,477 $ 15,365 $ 95,166 $ 66,711 $ 28,455
========= ========== ========== =========== ========== =========
General and administrative:
Retail Subsidiaries $ 18,520 $ 10,611 $ 7,909 $ 34,966 $ 20,274 $ 14,692
Operations excluding Retail
Subsidiaries 21,551 12,107 9,444 37,616 23,514 14,102
--------- ---------- ---------- ----------- ---------- ---------
Total general and administrative $ 40,071 $ 22,718 $ 17,353 $ 72,582 $ 43,788 $ 28,794
========= ========== ========== =========== ========== =========
Headcount (at period end):
Retail Subsidiaries 1,944 1,202 742
Headcount excluding Retail
Subsidiaries 1,612 892 720
-------- --------- ----------
Total headcount 3,556 2,094 1,462
======== ========= ==========
</TABLE>
Gain (Loss) on Sale of Receivables and Excess Spread Receivables
Gain (loss) on sale of receivables:
The following table sets forth the components of gain (loss) on sale of
receivables for the three and six months ended September 30, 1998 and 1997:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
September 30, September 30,
1998 1997 1998 1997
------------ ------------- ------------ ------------
(dollars in thousands)
Home equity/home improvement:
<S> <C> <C> <C> <C>
ContiMortgage/ContiWest securitizations $ (10,142) $ 48,954 $ 1,351 $ 86,960
Other (including whole loan sales,
origination points and fees) 22,300 16,899 41,950 31,045
------------ ------------- ------------ -----------
Total home equity/home improvement 12,158 65,853 43,301 118,005
Commercial real estate (2,510) 11,404 (1,248) 15,777
Auto 7,550 (53) 12,417 6,955
Other (882) 1,588 (582) 2,395
------------ ------------- ------------ ------------
Total $ 16,316 $ 78,792 $ 53,888 $ 143,132
============ ============ ============ ============
</TABLE>
Also, see "Discussion of Events During the Fiscal 1999 Second Quarter"
on page 10.
Gain on sale of receivables with respect to ContiMortgage/ContiWest
securitizations includes the gain recorded upon the completion of the
securitizations as well as unrealized gains or losses that result from the
quarterly adjustment of ESR to fair value. ESR fair value adjustments recorded
in fiscal 1999 are discussed in the following section on "Excess Spread
Receivables".
Excluding the ESR fair value adjustments, gain on sale of receivables for
ContiMortgage/ContiWest securitizations was $64.5 million and $132.9 million for
the three and six months ended September 30, 1998, respectively. Gain on sale of
receivables for ContiMortgage/ContiWest securitizations was $49.0 million and
$87.0 million for the three and six months ended September 30, 1997,
respectively. The increases in fiscal 1999 over the comparable periods in fiscal
1998 reflect higher levels of securitization volume: $2,100 million for the
fiscal 1999 second quarter, up 37.7% from $1,525 million in the comparable 1998
quarter; $3,850 million for the fiscal 1999 six month period, up 38.0% from
$2,790 million in the comparable 1998 period. Gain on sale percentage (i.e.,
gain on sale before ESR fair value adjustments as a percentage of securitization
volume), was 3.07% for the second quarter of fiscal 1999, down from 3.21% in the
comparable 1998 quarter. The impact of lower premiums paid to acquire loans from
wholesale sources was more than offset by a tightening in the spread (adjusted
for hedge results) between the interest rates on the mortgage loans securitized
and the rates on the securities sold. The gain on sale percentage was 3.45% for
the six months ended September 30, 1998 compared with 3.12% in the comparable
prior period. The improvement reflects the benefit of lower premiums paid,
offset in part by a widening in the interest rate spread.
Excess Spread Receivables:
At September 30, 1998 and March 31, 1998, the Company's ESR portfolio was
comprised of the following :
<TABLE>
<CAPTION>
September 30, Percentage March 31, Percentage
1998 of Total 1998 of Total
-------------- ---------- --------- -----------
(dollars in thousands)
Home equity:
<S> <C> <C> <C> <C>
ContiMortgage/ContiWest $ 667,228 84.1% $ 555,884 85.7%
Other servicers 33,445 4.2 37,428 5.8
-------------- --------- --------- ----------
Total home equity 700,673 88.3 593,312 91.5
Home improvement 4,949 0.6 7,919 1.2
Commercial real estate 39,473 5.0 8,233 1.3
Auto 40,682 5.1 28,223 4.3
Leases 6,470 0.8 8,960 1.4
Franchise 1,506 0.2 2,138 0.3
-------------- ---------- --------- ----------
Total ESR portfolio $ 793,753 100.0% $ 648,785 100.0%
============== ========== ========= ==========
</TABLE>
The ESR is reported as "Interest-only and residual certificates" in the
accompanying unaudited consolidated balance sheets. The ESR represents the
present value of an estimated stream of future cash flows that the Company
expects to receive over the life of a securitization, taking into consideration
estimated prepayment speeds and credit losses. These cash flows include the
excess of the weighted average coupon on the loans or other assets securitized
over the sum of the pass-through interest rate, a normal servicing fee, a
trustee fee, an insurance fee (where applicable) and the credit losses relating
to the loans or other assets securitized. At September 30, 1998, ESR totaled
$793.8 million, of which $667.2 million, or 84.1% of the total, was attributable
to ContiMortgage/ContiWest securitizations.
A major factor affecting the level of estimated future ESR cash flows is the
rate at which the underlying principal of the securitized loans is reduced.
Prepayments represent principal reductions in excess of contractually scheduled
reductions; prepayment speeds are generally expressed as an annualized CPR. In
determining fair value of the ContiMortgage/ContiWest ESR portfolio as of
September 30, 1998, the Company's weighted average estimated future CPR was 28%.
Additional factors that are considered in determining the fair value of ESR are
estimated future credit losses and the discount rate. As a credit enhancement,
the ESR is subordinate to the rights of the holders of the senior pass-through
securities. The weighted average annual credit loss provision used in the
determination of the fair value of ContiMortgage/ContiWest's ESR was 0.68% at
September 30, 1998. The future cash flows estimated as of September 30, and
March 31, 1998, taking into consideration estimated prepayment rates and credit
losses, were discounted at a rate of 10% to arrive at the fair value amounts
presented in the accompanying unaudited consolidated balance sheets. If actual
prepayments or credit losses are greater than the assumptions used to determine
ESR fair value, the ESR carrying value will be written down through a charge to
earnings. Given the size of the Company's servicing portfolio, even a modest
change in ESR fair value assumptions can have a relatively large impact on ESR
fair value. (See the table below.)
As of September 30, 1998, changes in the assumptions would have approximately
the following impact on ESR fair value:
Factor Change Fair value impact
- - ----------------------------------------------------------------------
Annual CPR 100 basis points $30 million
Annual credit losses 10 basis points $30 million
Discount rate 100 basis points $30 million
The following table presents an analysis of ESR activity during the six months
ended September 30, 1998:
- - ---------------------------------------------------------------------
Interest-only and residual certificates (in thousands):
- - ---------------------------------------------------------------------
Balance as of March 31, 1998 $ 648,785
New securitizations:
ContiMortgage 1998-2 100,175
Triad 1998-2 6,165
ContiMortgage 1998-3 130,388
Triad 1998-3 9,621
Commercial (1) 35,931 282,280
--------
Net cash distributions from REMICs and trusts (21,040)
Accruals of interest income 25,583
Special Charges (2) (4,000)
Fair value adjustments (see discussion below) (137,855)
---------
Balance as of September 30, 1998 $ 793,753
=========
(1) Represents "BB+/-" rated certificates retained from the Morgan Stanley
Capital 1998-CF1 securitization.
(2) Included in special charges was a $4.0 million write-down of the "BB+/-"
rated certificates retained from the Morgan Stanley Capital 1998-CF1
securitization.
ESR Fair Value Adjustments - The $137.9 million adjustment noted above included
$59.5 million in the fiscal 1999 first quarter and $78.4 million in the second
quarter. The first quarter adjustment was primarily attributable to higher
prepayment speeds. During the first quarter, the Company increased the weighted
average estimated future CPR for its ContiMortgage/ContiWest ESR portfolio from
27% at March 31, 1998 to 28% at June 30, 1998. At September 30, 1998, the
estimate remained at 28%. Approximately $25 million of the aggregate second
quarter adjustment was the result of a higher level of actual prepayments during
the quarter than the level assumed in the computation of ESR fair value on
ContiMortgage/ContiWest REMICs. Prepayments moderated later in the quarter.
During the second quarter, the Company increased its assumption of future credit
losses on ContiMortgage/ContiWest REMICs to reflect the increase in its assumed
level of future defaults and loss severity. This increase accounted for $46.3
million of the fair value adjustment. Actual credit losses for the quarter were
in line with expectations. Combined historical and estimated future losses as a
percentage of original pool balances (for ContiMortgage/ContiWest REMICs) was
2.08% at September 30, 1998 compared with 1.81% at June 30, 1998.
Liquidity and Capital Resources
Also, see "Discussion of Events During the Fiscal 1999 Second Quarter" on page
10.
Sources of Liquidity and Capital
The Company requires continued access to short- and long-term sources of funding
for its continued operations. The Company's primary cash requirements include
the funding of: (i) mortgage, loan and lease originations and purchases pending
their pooling and sale; (ii) premiums paid in connection with the acquisition of
wholesale loans; (iii) fees and expenses incurred in connection with its
securitization program; (iv) over-collateralization or reserve account
requirements in connection with loans and leases pooled and sold; (iv) servicer
advances to REMICs; (vi) ongoing administrative and other operating expenses;
(vii) payments related to tax obligations; (viii) interest and principal
payments relating to the Company's long-term debt and short-term borrowed funds;
(ix) the costs of sales under the Company's Facilities; (x) funding margin calls
and (xi) the cost of any subsequent purchase price adjustments on prior
acquisitions.
The Company's primary sources of liquidity are sales of loans, leases and other
assets through securitization, whole loan sales, the sale of loans, leases and
other assets under its Facilities, the issuance of shares of common stock, the
issuance of long-term debt and short-term borrowed funds.
The Company had $2.40 billion of committed and $3.20 billion of uncommitted
funding capacity under the Facilities as of September 30, 1998. The Purchase and
Sale Facilities allow the Company to sell, with limited recourse, interests in
designated pools of loans and other assets. The Repurchase Agreements allow the
Company to sell receivables held for sale to financial institutions under
agreements to repurchase the receivables. The Facilities generally have one year
renewable terms, which expire between November 1998 and September 1999 as
follows (amounts in thousands):
<TABLE>
<CAPTION>
Committed Uncommitted Total
Expiration Facility Facility Facility
--------------------------------------------------------
(in thousands)
--------------------------------------------------------
<S> <C> <C> <C> <C>
November, 1998 $ 150,000 $ 350,000 $ 500,000
December, 1998 300,000 950,000 1,250,000
March, 1999 300,000 100,000 400,000
June, 1999 150,000 600,000 750,000
July, 1999 500,000 0 500,000
August, 1999 250,000 450,000 700,000
September, 1999 750,000 750,000 1,500,000
---------------- ---------- ----------
Total facilities $2,400,000 $3,200,000 $5,600,000
================ ========== ==========
</TABLE>
As of September 30, 1998, the Company had utilized $2.0 billion of the capacity
under the Facilities. Although the Company currently plans to renew these
facilities when they expire, there can be no assurance that such financing will
be obtainable on as favorable terms, if at all.
On April 2, 1998, the Company issued $200 million of 8 1/8% unsecured Senior
Notes due April 1, 2008. Proceeds to the Company, net of underwriting fees,
market discount and other costs were $188.0 million. Interest on these notes is
payable semi-annually on April 1 and October 1 commencing October 1, 1998. The
notes are redeemable in whole or in part, at the option of the Company, at any
time or from time to time, at a redemption price equal to the greater of (i)
100% of their principal amount or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
date of redemption on a semiannual basis at the treasury yield plus 50 basis
points, plus, in each case, accrued interest to the date of redemption.
On August 21, 1998, the Company increased its Commercial Paper Program backed by
an irrevocable direct-pay letter of credit provided by a syndicate of banks from
$275.0 million to $317.5 million. At September 30, 1998, $314.2 million of
commercial paper was outstanding. As of November 13, 1998 the Company is fully
drawn under its Commercial Paper Program and Revolving Credit Facility.
In previous fiscal years, the Company sold ESR, with limited recourse, to
provide cash to fund the Company's operations. Under the recourse provisions of
the agreements, the Company is responsible for losses incurred by the purchaser
within an agreed-upon range. At September 30, 1998, $52.0 million of these sales
were outstanding. The Company's performance obligations in these transactions
are guaranteed by Continental Grain for an agreed-upon fee. Another method of
generating liquidity from the ESR portfolio is through the sale of Net Interest
Margin Notes, which generated proceeds of $159.7 million in fiscal 1998.
Although the Company intends to continue to pursue opportunities to sell ESR,
there is only a limited market for such instruments and no assurance can be
given that such opportunities will be available in the future.
However, the Company has operated on a negative cash flow basis and is dependent
on various financing sources for its continued operations. Although the
objective of the actions discussed above is to achieve a positive cash flow from
operations, no assurance can be given that this objective will be achieved. In
order to fund new loans and asset originations and purchases, the Company is
dependent on its ability to fund loans and other assets under its Facilities.
The Company is dependent on securitizations and whole-loan sales to generate the
cash flow to repay these lines and to create availability on such lines for new
fundings. Adverse conditions in the securitization and whole-loan sale markets
could impair the Company's ability to originate, purchase and sell loans and
other assets on a favorable or timely basis. No assurance can be given that such
adverse conditions will not occur or that the Company will have continued access
to these Facilities or that renewals will be obtainable on as favorable terms,
if at all. Failure of the Company to have continued access to the securitization
and whole-loan sale markets and its Facilities and other financing lines or
failure of the Company to renew such Facilities and other financing lines could
have a material adverse effect on the Company's liquidity, financial condition
and operations.
The Company is also required to comply with various financial covenants under
its outstanding senior notes, Revolving Credit Facility and Commercial Paper
Program, as well as under certain provisions of the Purchase and Sale Facilities
and agreements to repurchase (the "Repurchase Agreements") including, among
other things, a 2.5 to 1 leverage ratio, a minimum net worth test and an
interest coverage ratio. The Company was in compliance with these covenants as
of September 30, 1998 but may or may not be in compliance as of the end of the
third quarter of fiscal year 1999. If it appears necessary, the Company will
approach its lenders under the Revolving Credit Facility and the Commercial
Paper Program for covenant relief. However, no assurance can be given that any
such relief will be forthcoming. The Company's ability to continue to obtain
funding under the Revolving Credit Facility and the Commercial Paper Program is
subject to its continued compliance with these covenants or, if necessary,
obtaining covenant relief. The Company's ability to remain in compliance is
dependent on factors beyond the control of the Company, primarily conditions in
the securitization and whole-loan sale markets. Failure of the Company to remain
in compliance with the financial covenants may result in discontinuation of
funding under its financing facilities and could have a material adverse effect
on the Company's liquidity, financial condition and operations.
In February 1998, the Company's Board of Directors authorized the purchase of up
to one million shares of the Company's outstanding common stock. The repurchase
of one million shares was completed in July 1998 at an average cost of $27.66
per share. The purchased shares are held in treasury for use in connection with
ContiFinancial's Stock Plan.
On November 12, 1998, Moody's Investors Service downgraded the Company's
long-term debt ratings to B1. On October 13, 1998, Standard & Poor's lowered its
senior unsecured debt and long-term debt credit ratings to B+. On October 15,
1998, Fitch IBCA reduced the Company's long-term debt rating to BB. Reductions
in ratings will likely increase the Company's borrowing costs under its
Revolving Credit Facility and its Commercial Paper Program.
Year 2000
The "Year 2000" issue, the ability of systems to identify dates in the 21st
century, is a critical business and operational issue being addressed by the
Company. The issue primarily encompasses computer programs and applications that
were written using two digits (instead of four) to describe an applicable year.
Failure to successfully modify such programs and applications to be Year 2000
compliant would have a material adverse impact on the Company. Exposure arises
not only from potential consequences (e.g., business interruption) of certain of
the Company's own applications not being Year 2000 compliant, but the impact of
noncompliance by certain significant counterparties, including Strategic
Alliances.
The Company has undertaken a project to bring its systems into Year 2000
compliance. This project includes an assessment to determine the anticipated
cost to remediate its systems and applications to make them Year 2000 compliant.
Project efforts are being coordinated by a Year 2000 Task Force whose members
include the Company's senior management and information technology, finance,
accounting and legal staffs, supported by external consultants. Similar task
forces have been formed by each of Company's majority owned subsidiaries. The
Company's Year 2000 Task Force established the following five step project
methodology to address the Company's Year 2000 issues: (1) awareness and project
definition; (2) systems inventory and assessment; (3) remediation; (4) testing;
and, (5) implementation. The chart below describes the Company's current and
anticipated progress on the Year 2000 issue.
<TABLE>
---------------------------------------------------- ----------------- ---------------- ---------------------------
TARGET
PHASE DATE STATUS COMMENTS
---------------------------------------------------- ----------------- ---------------- ---------------------------
---------------------------------------------------- ----------------- ---------------- ---------------------------
<S> <C> <C> <C>
Awareness and Project Definition - Heighten March, 15, 1998 Complete
awareness of the Company's Year 2000 issues and
formulate plans to address them.
---------------------------------------------------- ----------------- ---------------- ---------------------------
---------------------------------------------------- ----------------- ---------------- ---------------------------
Systems Inventory and Assessment - Inventory all
hardware, software and computerized systems and A portion of the
identify those requiring Year 2000 remediation. April 15, Substantially facilities assessment is
1998 Complete* incomplete.
---------------------------------------------------- ----------------- ---------------- ---------------------------
---------------------------------------------------- ----------------- ---------------- ---------------------------
Remediation - Modify or replace all hardware, Awaiting Year 2000
software and computerized systems that are not compliant software
Year 2000 compliant. August 31, 1998 Partially upgrades from some
Completed* vendors.
---------------------------------------------------- ----------------- ---------------- ---------------------------
---------------------------------------------------- ----------------- ---------------- ---------------------------
Testing - Test modifications to and replacements
of all hardware, software and computerized systems December 31, In progress;
for Year 2000 compliance. 1998 on target
---------------------------------------------------- ----------------- ---------------- ---------------------------
---------------------------------------------------- ----------------- ---------------- ---------------------------
Implementation - Integrate the remediated and
tested hardware, software and computerized systems March 31, 1999 In progress;
into the Company's operations. on target
---------------------------------------------------- ----------------- ---------------- ---------------------------
</TABLE>
* The Company does not expect a material adverse effect as a result of not
meeting these targets.
Based on its analysis of the data from the systems inventory and assessment
phase, the Company has concluded that the greatest risk posed by the Year 2000
issue concerns the computerized loan servicing systems utilized by its home
equity, auto and commercial lending operations. If such systems fail to operate
properly as a result of the Year 2000 issue, the loan servicing process could
not be executed in a manual environment. Both ContiMortgage, the Company's
largest home equity originator, and Triad, the Company's auto loan originator,
use loan servicing systems and software developed by outside vendors. These
systems and related key ancillary systems are operated and maintained in-house
or under a service arrangement with the vendors. Conversion to new systems and
servicing software could take up to twelve months. Accordingly, a large part of
the Company's remediation effort currently focuses on insuring that
ContiMortgage's and Triad's loan servicing systems will not be negatively
impacted by the Year 2000 issue.
ContiMortgage's loan servicing software service provider has stated that
the system should be remediated and tested for Year 2000 compliance by the end
of 1998, with additional testing during the first quarter of 1999. Because
ContiMortgage's loan servicing software will not be available until December
1998, the Company will not be able to complete the remediation phase until that
time, as noted in the chart above. ContiMortgage's loan servicing software
vendor is one of the largest in the financial services industry and its Year
2000 remediation and testing efforts are being scrutinized by the Federal
Financial Institutions Examination Council. The loan servicing software vendor
has retained an independent auditor to monitor its Year 2000 remediation and
testing efforts and to provide regular reports to the vendor's customers. The
Company believes that ContiMortgage's loan servicing software vendor will meet
its scheduled deadlines for Year 2000 compliance. ContiMortgage is in the
process of creating a contingency plan that could be implemented in the event
that its loan servicing software vendor is unable to address the Year 2000
issue. However, if ContiMortgage's loan servicing software vendor is unable to
correct all Year 2000 issues by the target dates and ContiMortgage's contingency
plan for that event proves inadequate, this would likely have a material adverse
impact on the Company. Even with a contingency plan in place, it is possible
that ContiMortgage could suffer a business disruption that could have a material
adverse impact on the Company. In addition, ContiMortgage estimates that
remediation and testing of other systems and applications for Year 2000
compliance will require about 10,000 working hours. The target deadline for
remediation of these systems and applications is December 31, 1998, and
approximately 50% of the project has been completed to date. Expenses associated
with the remediation and testing of those systems and applications is included
in the Company's year 2000 estimate of costs.
Triad uses a vendor for its computerized loan servicing and collections system.
According to the terms of its contract with Triad, the loan servicing and
collections vendor is obligated to ensure that the Year 2000 issue does not
cause an interruption in the services it provides to Triad. Triad is in the
process of testing its computerized systems and applications for Year 2000
readiness and will participate in group tests with its loan servicing and
collections vendor, loan origination sources and other entities with which it
exchanges information electronically. Triad is formulating a contingency plan
for use in the event that its loan servicing and collections vendor fails to
address the Year 2000 issue.
The Company is also working to assess that other operations are not materially
affected by the Year 2000 issue. The ability of the Company's subsidiaries to
generate new business would be severely impacted if the Company's primary long
distance telephone carrier experiences Year 2000 related difficulties. The
Company's primary long distance telephone carrier anticipates that its systems
will be Year 2000-compliant by late calendar year 1998. However,
telecommunications networks are difficult to test and it is highly unlikely that
the Company's long distance telephone carrier will provide written assurance
that the Company's telecommunications network will not experience Year
2000-related interruptions. Therefore, the Company will have to rely on its long
distance carrier's reputation, public statements and internal testing
procedures.
Another function that could be adversely effected by the Year 2000 issue are the
credit reporting agencies which provide the Company's home equity and auto
lending subsidiaries with information about the creditworthiness of potential
borrowers. The Company's subsidiaries make extensive use of these credit
reporting agencies, which in turn rely on consumer information provided to them
by third parties. Each credit reporting agency has informed the Company that it
plans to be Year 2000-compliant by late calendar year 1998. However, some credit
industry estimates indicate that over half of all consumer reports from credit
reporting agencies could be inaccurate or incomplete as a result of the Year
2000 issue. If the credit reporting agencies, or the third parties upon which
they rely, experience such difficulties, this could have a material adverse
impact on the Company's business operations.
The Company believes that through the execution of its Year 2000 project
methodology, it will significantly reduce the risk of a major business
interruption due to Year 2000 failures. The major risks are associated with the
Year 2000 remediation efforts of third party vendors utilized by the Company.
The vendors have provided information indicating that they will meet their
respective target deadlines for resolution of Year 2000 issues. The Company is
in the process of developing contingency plans for use in the event that any of
its hardware, software or other computerized systems, or those of a vendor, are
not ready for the Year 2000. These contingency plans should be complete by late
calendar year 1998.
The Company reaffirms its estimate that the direct cost of its Year 2000
remediation,including contingency planning, will be approximately $5.0 million.
This estimate is subject to change as the project progresses. To date, the
Company has spent approximately $1.0 million on the Year 2000 issue. The Company
presently believes, based on the information obtained during the systems
inventory and assessment phase, that the Year 2000 issue will not have a
material adverse impact on its computer systems or operations. However, the
interdependent nature of the Company's operations, in particular its substantial
reliance on third party vendors, makes it impossible to say with certainty that
the Year 2000 issue will not have a material adverse impact on those computer
systems and operations. The Company will reassess the expected cost of
compliance and the risk that the Year 2000 issue will have a material adverse
impact during the remediation, testing and implementation phases of its Year
2000 conversion effort.
Forward-looking Statements
Certain statements contained in this Quarterly Report on Form 10-Q, including
statements relating to the Company's strategic objectives and future
performance, which are not historical fact, may be deemed to be forward-looking
statements under the federal securities laws. There are many important factors
that could cause the Company's actual results to differ materially from those
indicated in the forward-looking statements. Such factors include, but are not
limited to, general economic conditions; interest rate risk; prepayment speeds;
delinquency and default rates; loss rates; changes (legislative and otherwise)
in the asset securitization industry; demand for the Company's services;
residential and commercial real estate values; the ability of the Company to
negotiate agreements to sell whole loans; the impact of certain covenants in
loan agreements of the Company; the degree to which the Company is leveraged;
its needs for financing; the continued availability of the Company's credit
facilities; the risk of margin calls on the Company's credit facilities and
hedge positions; the capital markets conditions, including the markets for
asset-backed securities, commercial mortgage-backed securities and net interest
margin securities; the performance of the Company's subsidiaries and affiliates;
the Company's Year 2000 issues; and other risks identified in the Company's
Securities and Exchange Commission filings. In addition, it should be noted that
past financial and operational performance of the Company is not necessarily
indicative of future financial and operational performance.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
Not applicable.
<PAGE>
PART II OTHER INFORMATION
Item 1. Legal Proceedings.
The Company believes that litigation could result from the
suspension of fundings with respect to that portion of the
Company's commercial real estate loan business originated by
ContiTrade Services L.L.C. ("ContiTrade") under the
ContiMAP(R) conduit. One such action was filed and
subsequently settled and other litigation has been threatened.
It is unclear whether any of such threats will result in
litigation. ContiTrade bas been actively pursuing settlement
of all potential claims. ContiTrade believes that it has valid
defenses to such claims and intends to vigorously defend
against any litigation that might ensue. The Company is
presently unable to estimate the amount of ultimate loss to
resolve these claims.
Item 4. Submission of Matters to a Vote of Security Holders.
(a) The annual meeting of shareholders of the Company
was held September 16, 1998.
(b) Directors whose term of office as a director
continued after the meeting including the Class III
Directors elected below:
Class I Directors Class II Directors Class III Directors
James E. Moore Paul J. Fribourg James J. Bigham
Donald L. Staheli John W. Spiegel John P. Tierney
Lawrence G. Weppler Michael J. Zimmerman
(c) Holders of common shares voted at this meeting on the
following matters, which were set forth in full in the
registrant's proxy statement dated July 28,1998 :
(i) Election of Class III Directors
Nominee For Withheld
James J. Bigham 45,196,718 53,568
John P. Tierney 45,196,193 54,093
Michael J. Zimmerman 45,194,743 55,543
<TABLE>
For Against Abstain
(ii) Approve the Senior Executive Warrant-Based
<S> <C> <C> <C>
Long-Term Incentive Plan: 44,822,147 384,199 43,940 <C>
Non-Vote
(iii) Amend the 1995 Long-Term Stock Incentive
Plan: 41,410,342 854,626 38,920 2,946,398
(iv) Appointment of Auditors: 45,222,345 19,201 8,740
</TABLE>
Appointment of the firm of Arthur Andersen LLP
as the independent accountants for the Company
for the fiscal year ending March 31, 1999.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
Exhibit
No. Description
11.1 Computation of the Company's Earnings Per
Common Share
12.1 Ratio of Earnings to Fixed Charges
10.1 Amendment to the Letter of Credit and
Reimbursement Agreement
27.1 Financial Data Schedule
(b) Reports on Form 8-K.
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ContiFinancial Corporation
Date Signature Title
November 16, 1998 /s/ Daniel J. Willett Senior Vice President and Chief
----------------- ---------------------
Daniel J. Willett Financial Officer
(Principal Financial Officer)
Exhibit 11.1
ContiFinancial Corporation
Calculation of Earnings Per Share
For the three months ended September 30, 1998
<TABLE>
<CAPTION>
Basic and Diluted Computation for the three months ended September 30, 1998
Weighted average shares outstanding:
<S> <C>
Common stock excluding shares relating to employee incentive plans 45,415,232
Vested Restricted Shares Outstanding during the Quarter 738,274
---------------------------
Weighted Average Shares Outstanding 46,153,506
---------------------------
Quarter income ($114,251,000)
---------------------------
Basic Earnings Per Share ($2.48)
===========================
Basic and Diluted computation for the six months ended September 30, 1998
Net Income (loss) ($108,231,000)
Weighted Average Shares Outstanding
First quarter 46,685,863
Second quarter 46,153,506
-------------------
Average 46,419,684
---------------------------
Year-to-date Basic EPS ($2.33)
===========================
</TABLE>
ContiFinancial Corporation
Ratio of Earnings to Fixed Charges
Exhibit 12.1 of September 30, 1998 Form 10-Q
<TABLE>
<CAPTION>
Six months ended
September 30,
1998 1997 Fiscal 98 Fiscal 97 Fiscal 96 Fiscal 95 Fiscal 94
Summary:
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (55,575) 178,782 385,425 297,677 197,996 77,895 42,334
Fixed Charges 121,522 76,362 165,904 120,636 74,770 29,635 12,124
-------- ---------- -------- -------- -------- -------- ------
Ratio -0.46 2.34 2.32 2.47 2.65 2.63 3.49
======== ========== ======== ======== ======== ======== ======
Earnings:
Income (loss) before income taxes
and minority interest (175,440) 102,778 224,965 177,041 126,536 56,988 35,286
Plus: Interest expense 121,522 76,362 165,904 120,636 74,770 29,635 12,124
Less: Equity income in
unconsolidated subsidiaries (1,605) (358) (5,444) - - - -
(Less): Minority interest (52) n/a n/a n/a (3,310) (8,728) (5,076)
---------- ---------- ------- ------- -------- ------- -------
Total "Earnings" (55,575) 178,782 385,425 297,677 197,996 77,895 42,334
========== ========== ======= ======= ======== ======= =======
Fixed Charges:
Interest expense 121,522 76,362 165,904 120,636 74,770 29,635 12,124
</TABLE>
AMENDED AND RESTATED
LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
dated as of September 9, 1997
as amended and restated as of August 21, 1998
among
CONTIFINANCIAL CORPORATION
The Participating Banks Party Hereto
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
as Agent
and
DRESDNER BANK AG,
NEW YORK BRANCH,
as Issuing Bank
-----------------
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as Arrangers
------------------
<PAGE>
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms .............................................. 2
SECTION 1.02. Computation of Time Periods.................................30
SECTION 1.03. Terms Generally.............................................30
SECTION 1.04. Accounting Terms; GAAP......................................31
ARTICLE II
Amount and Terms of the Letter of Credit
SECTION 2.01. The Letter of Credit........................................ 31
SECTION 2.02. Commissions and Fees........................................ 32
SECTION 2.03. Reimbursement............................................... 32
SECTION 2.04. Loans....................................................... 33
SECTION 2.05. Reimbursement of Issuing
Bank, Etc. ............................................... 35
SECTION 2.06. Prepayments................................................. 37
SECTION 2.07. Increased Costs............................................. 39
SECTION 2.08. Break Funding Payments...................................... 41
SECTION 2.09. Payments and Computations................................... 42
SECTION 2.10. Non-Business Days........................................... 43
SECTION 2.11. Termination; Reduction;
Extension................................................. 43
SECTION 2.12. Evidence of Debt............................................ 48
SECTION 2.13. Obligations Absolute........................................ 48
SECTION 2.14. Taxes....................................................... 51
SECTION 2.15. Interest Elections.......................................... 52
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................ 54
SECTION 3.02. Authorization; Enforceability............................... 54
SECTION 3.03. Governmental Approvals;
No Conflicts.............................................. 54
SECTION 3.04. Financial Condition; No Material
Adverse Change............................................ 55
SECTION 3.05. Properties.................................................. 55
SECTION 3.06. Litigation and Environmental
Matters................................................... 55
SECTION 3.07. Compliance with Laws
and Agreements............................................ 56
SECTION 3.08. Investment and Holding Company
Status.................................................... 56
SECTION 3.09. Taxes....................................................... 56
SECTION 3.10. ERISA....................................................... 57
SECTION 3.11. Disclosure.................................................. 57
SECTION 3.12. Federal Reserve Regulations................................. 57
SECTION 3.13. Year 2000................................................... 58
ARTICLE IV
Conditions
SECTION 4.01. Effective Date.............................................. 58
SECTION 4.02. Issuance and Increases...................................... 60
SECTION 4.03. Each Loan................................................... 60
ARTICLE V
Affirmative Covenants
SECTION 5.01.Financial Statements and Other
Information .............................................. 61
SECTION 5.02.Notices of Material Events.................................. 63
SECTION 5.03.Existence; Conduct of Business.............................. 64
SECTION 5.04.Payment of Obligations...................................... 64
SECTION 5.05.Maintenance of Properties;
Insurance................................................. 64
SECTION 5.06.Books and Records; Inspection
and Audit Rights.......................................... 65
SECTION 5.07.Compliance with Laws........................................ 65
SECTION 5.08.Purpose..................................................... 65
SECTION 5.09.Related Documents........................................... 66
SECTION 5.10.Reimbursement Account....................................... 66
ARTICLE VI
Negative Covenants
SECTION 6.01. Limitation on Indebtedness and
Preferred Stock of
Restricted Subsidiaries................................... 66
SECTION 6.02. Limitation on Liens......................................... 67
SECTION 6.03. Limitation on Mergers and
Consolidations............................................ 70
SECTION 6.04. Limitation on Sales of Assets and
Subsidiary Stock.......................................... 71
SECTION 6.05. Limitation on Loans and
Investments............................................... 72
SECTION 6.06. Limitation on Affiliate
Transactions.............................................. 75
SECTION 6.07. Limitation on Restrictions on
Distributions from
Restricted Subsidiaries................................... 76
SECTION 6.08. Limitation on Investment
Company Status............................................ 77
SECTION 6.09. Financial Covenants......................................... 77
SECTION 6.10. Limitation on Business of the
Company................................................... 77
SECTION 6.11. Commercial Paper............................................ 77
SECTION 6.12. Issuing and Paying Agent and
Depositary................................................ 78
SECTION 6.13. Related Documents........................................... 78
ARTICLE VII
Events of Default........................................ 79
ARTICLE VIII
The Agent; the Participating Banks;
and the Issuing Bank........................................ 83
- - --------------------------------------------------------------------------------
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.....................................................86
SECTION 9.02. Waivers; Amendments ........................................87
SECTION 9.03. Expenses; Indemnity;
Damage Waiver.............................................88
SECTION 9.04. Successors and Assigns......................................90
SECTION 9.05. Survival....................................................94
SECTION 9.06. Counterparts; Integration;
Effectiveness.............................................95
SECTION 9.07. Severability................................................95
SECTION 9.08. Right of Setoff.............................................95
SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process.............................97
SECTION 9.10. WAIVER OF JURY TRIAL........................................98
SECTION 9.11. Headings....................................................98
SECTION 9.12. Confidentiality 98
<PAGE>
SCHEDULES AND EXHIBITS
Schedule 2.01 Participating Banks
Schedule 3.06 Disclosed Matters
Schedule 6.01 Indebtedness and Preferred Stock
Schedule 6.02 Existing Liens
Schedule 6.06 Affiliate Transactions
Schedule 6.07 Existing Restrictions
Exhibit A Form of Letter of Credit
Exhibit B Form of Dealer Agreement
Exhibit C Form of Issuing and Paying Agency and Depositary Agreement
Exhibit D Form of Borrowing Base Certificate
Exhibit E Form of Opinion of Pitney, Hardin, Kipp & Szuch
Exhibit F Form of Opinion of Internal Counsel of the Company
Exhibit G Form of Assignment and Acceptance
<PAGE>
<PAGE>
AMENDED AND RESTATED LETTER OF
CREDIT AND REIMBURSEMENT AGREEMENT, dated as
of September 9, 1997, as amended and
restated as of August 21, 1998, among
CONTIFINANCIAL CORPORATION, the
PARTICIPATING BANKS party hereto, CREDIT
SUISSE FIRST BOSTON, NEW YORK BRANCH, as
Agent, and DRESDNER BANK AG, NEW YORK
BRANCH, as Issuing Bank.
INTRODUCTORY STATEMENTS: (1) The Company (such term and each
other capitalized term used but not otherwise defined herein having the meaning
assigned to such term in Article I), the Participating Banks party thereto, the
Agent and the Issuing Bank entered into this Agreement as of September 9, 1997
(the "Original Agreement") pursuant to which the Participating Banks established
the credit facility provided for herein in the amount of $275,000,000 to permit
the issuance of a direct pay letter of credit to the Issuing and Paying Agent
and Depositary for the benefit of the holders of the Commercial Paper. The
Company has requested that the Original Agreement be amended in order to (a)
change the Termination Date and (b) provide for increases of up to $50,000,000
in the aggregate in the Stated Amount at the Company's request and upon the
terms and conditions set forth herein.
(2) The Company and the CP Dealer have entered into a Dealer
Agreement pursuant to which the CP Dealer will purchase for its own account or
sell for the account of the Company the Commercial Paper.
(3) The Company, the Issuing and Paying Agent and Depositary,
the Issuing Bank and the Agent have entered into an Issuing and Paying Agency
and Depositary Agreement in connection with the issuance from time to time of
the Commercial Paper.
(4) The Issuing Bank has issued its direct pay letter of
credit, in substantially the form of Exhibit A (such letter of credit and any
successor letter of credit being the "Letter of Credit"), for the Stated Amount
(the Issuing Bank's obligation to issue the Letter of Credit as hereinafter
provided being hereinafter referred to as the "Commitment").
The Participating Banks are willing to amend the Original
Agreement and to restate the Original Agreement as so amended in the form
hereof, upon the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan, refers to whether
such Loan bears interest at a rate determined by reference to the Alternate Base
Rate.
"Account" has the meaning assigned to such term in
Section 2.06(c).
"Additional Assets" means (a) any property or assets (other
than Indebtedness and Capital Stock) used or useful in a Related Business, (b)
the Capital Stock of a Person that becomes a Restricted Subsidiary as a result
of the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary, (c) Capital Stock constitu ting a minority interest in any Person
that at such time is a Restricted Subsidiary; provided, however, that any such
Restricted Subsidiary described in clause (b) or (c), above, is primarily
engaged in a Related Business or (d) the Capital Stock or Indebtedness of a
Strategic Alliance Client.
"Adjusted LIBO Rate" means, with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, an interest rate per annum
equal to (a) the Applicable Percentage plus (b) the rate determined in
accordance with the following formula (rounded upwards, if necessary, to the
next 1/16 of 1%):
LIBO Rate
1.00 - Eurocurrency Reserve Requirements
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agent" means Credit Suisse First Boston Corpora tion, New
York Branch, in its capacity as administrative agent for the Participating Banks
hereunder.
"Allocation" means, as of any date of determina tion, with
respect to any Participating Bank, an amount equal to the product of (a) such
Participating Bank's Participation Percentage as of such date and (b) the Stated
Amount (without giving effect to any reductions thereto other than irrevocable
reductions) as of such date.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Amendment Effective Date" means the date on which the
conditions specified in Section 4.01 are satisfied.
"Applicable Percentage" means as of any time the percentage
per annum set forth below corresponding to the then-Applicable Rating Level:
=================================== ==============================
Applicable Rating Adjustment
Level
=================================== ==============================
I 0.400%
=================================== ==============================
II 0.450%
=================================== ==============================
III 0.500%
=================================== ==============================
IV 0.625%
=================================== ==============================
V 0.750%
=================================== ==============================
VI 1.000%
=================================== ==============================
"Applicable Rating Level" shall be determined, for any day, in
accordance with the following table based upon the ratings by Moody's and S&P,
respectively, applicable on such date to the Company's Index Debt:
======================================= ====================
Index Debt Ratings Applicable Rating
Level
======================================= ====================
Category 1 I
A- or higher by S&P
A3 or higher by Moody's
======================================= ====================
Category 2 II
BBB+ by S&P
Baa1 by Moody's
======================================= ====================
Category 3 III
BBB by S&P
Baa2 by Moody's
======================================= ====================
Category 4 IV
BBB- by S&P
Baa3 by Moody's
======================================= ====================
Category 5 V
BB+ by S&P
Bal by Moody's
======================================= ====================
Category 6 VI
Lower than BB+ by S&P
Lower than Bal by Moody's
======================================= ====================
For purposes of the foregoing, (a) if either Moody's or S&P shall not have in
effect a rating for the Company's Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 6; (b) if
the ratings established or deemed to have been established by Moody's and S&P
for the Company's Index Debt shall fall within different Categories, the
Applicable Rating Level shall be based on the higher of the two ratings, except
that (i) if the lower of such ratings is two Categories below the higher of such
ratings, the Applicable Rating Level shall be determined based on the Category
between the Categories in which such ratings fall and (ii) if the lower of such
ratings is more than two Categories below the higher of such ratings, the
Applicable Rating Level shall be determined based on the Category that is
immediately above the Category in which the lower of such ratings falls; and (c)
if the ratings established or deemed to have been established by Moody's and S&P
for the Company's Index Debt shall be changed (other than as a result of a
change in the rating system of Moody's or S&P), such change shall be effective
as of the first Business Day following the applicable ratings change. Each
change in the Applicable Rating Level shall apply during the period commencing
on the date on which such change is publicly announced and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Moody's or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations or either
Moody's or S&P shall refuse to provide a rating of the Company's Index Debt
(provided that the Company has used its best efforts to cause such rating agency
to provide such a rating, including the payment of any fees and the provision of
any information requested or required thereby in the ordinary course conduct of
its rating business), the Company and the Participating Banks shall negotiate in
good faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effec
tiveness of any such amendment, the Applicable Rating Level shall be determined
by reference to the rating most recently in effect prior to such change or
cessation.
"Asset Disposition" has the meaning assigned to it in
Section 6.04.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Participating Bank and an assignee (with the consent of any
party whose consent is required by Section 9.04), and accepted by the Agent, in
the form of Exhibit G or any other form approved by the Agent.
"Average Life" means, as of the date of determina tion, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (a) the sum of the pro ducts of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (b) the sum of all
such payments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board
of Directors.
"Borrowing Base" means an amount by which (a) two times the
sum, without duplication, of (i) 100% of Eligible Cash & Cash Equivalents, (ii)
95% of Eligible Receivables, (iii) 85% of Eligible Fixed Income Investments,
(iv) 85% of Eligible I/O Strip Securities, (v) 80% of Eligible Perform ance
Deposits, (vi) 75% of Capitalized Servicing Fees and (vii) 65% of Eligible
Residuals (in each case excluding any assets set forth in clauses (i) through
(vii) above that are not Eligible Assets), exceeds (b) the sum of (i) two times
Outstanding Funded Indebtedness plus (ii) the aggregate principal amount of all
loans outstanding under the Credit Agreement. The amount of the Borrowing Base
set forth in any Borrowing Base Certificate may be reduced by the Company at its
option for any reason, including any failure of the Company to obtain the
relevant information from newly- acquired Restricted Subsidiaries in a timely
manner. The Borrowing Base at any time in effect shall be determined by
reference to the Borrowing Base Certificate most recently delivered to the Agent
pursuant to Sections 4.01(f) and 5.01(g). Notwithstanding the foregoing
provisions of this definition, at any time when the Company shall have out
standing Index Debt that shall be Investment Grade, the Borrowing Base will be
deemed to equal the Stated Amount in effect at such time.
"Borrowing Base Certificate" means a certificate in the form
of Exhibit D prepared by the Company.
"Business Day" means a day that is not a Saturday, Sunday or
other day on which commercial banks are required or authorized by law to close
in New York City; provided that when used in connection with any Eurodollar Loan
or Interest Period therefor, "Business Day" shall also exclude any day on which
dealings in dollar deposits are not carried on in the London interbank market.
"Cancelation Date" has the meaning assigned to that term in
the Letter of Credit.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" of any Person means any and all shares,
interests, share capital, rights to subscribe for or purchase, warrants,
options, participations or other equiva lents of or interests or membership
interests in (however designated) equity of such Person, including any Preferred
Stock, any limited or general partnership interest and any limited liability
company membership interest (but excluding any debt securities convertible into
such equity), and any rights to subscribe for or purchase any thereof.
"Capitalized Servicing Fees" means servicing fees capitalized
and carried at fair value in accordance with GAAP on the balance sheet of the
Company and its Restricted Subsidiaries on a consolidated basis.
"Change in Control" means the occurrence of any of the
following events:
(a) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than any Permitted Holder,
is or becomes the "bene ficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that such person shall be deemed
to have "beneficial ownership" of all shares that any such person has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than
35% of the total voting power of the Voting Stock of the Company;
provided, however, that the Permitted Holders beneficially own (as
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly
or indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company than such other person and do
not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors
(for the purposes of this clause (i), such other person shall be deemed
to beneficially own any Voting Stock of a corporation held by another
corpora tion (a "parent corporation"), if such other person is the
beneficial owner (as defined above for such person), directly or
indirectly, of more than 35% of the voting power of the Voting Stock of
such parent corporation and the Permitted Holders beneficially own (as
defined above for the Permitted Holders), directly or indirectly, in
the aggregate a lesser percentage of the voting power of the Voting
Stock of such parent corporation and do not have the right or ability
by voting power, contract or otherwise to elect or designate for
election a majority of the board of directors of such parent
corporation);
(b) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders
of the Company was approved by a vote of 66-2/3% of the directors of
the Company then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; or
(c) the merger or consolidation of the Company with
or into another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company to another Person (other than a Person that is controlled by
the Permitted Holders), and, in the case of any such merger or
consolidation, the securities of the Company that are outstanding
immediately prior to such transaction and which represent 100% of the
aggregate voting power of the Voting Stock of the Company are changed
into or exchanged for cash, securities or property, unless pursuant to
such transaction such securities are changed into or exchanged for, in
addition to any other consideration, securities of the surviving
corporation that represent immediately after such transaction, at least
a majority of the aggregate voting power of the Voting Stock of the
surviving corporation; provided, however, that the sale by the Company
or its Restricted Subsidiaries from time to time solely of Receivables
to a trust for the purpose solely of effecting one or more
securitizations shall not be treated hereunder as a sale of all or
substantially all the assets of the Company.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpreta tion or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any
Participating Bank (or, for purposes of Section 2.07(b), by any lending office
of such Participating Bank or by such Participating Bank's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commercial Paper" means short-term promissory notes issued by
the Company pursuant to the Issuing and Paying Agency and Depositary Agreement.
"Commitment" has the meaning assigned to that term in the
fourth Introductory Statement hereto.
"Company" means ContiFinancial Corporation, a Delaware
corporation.
"Consolidated EBIT" for any period, with respect to the
Company and its Restricted Subsidiaries on a consoli dated basis, means
Consolidated Net Income for such period plus, to the extent deducted in
computing Consolidated Net Income for such period, (a) Consolidated Interest
Expense for such period and (b) foreign, Federal, state and local income tax
expense for such period.
"Consolidated Interest Coverage Ratio" for any period means
the ratio of Consolidated EBIT for such period to Consolidated Interest Expense
for such period.
"Consolidated Interest Expense" for any period means the total
interest expense of the Company and its Restricted Subsidiaries on a
consolidated basis for such period.
"Consolidated Leverage Ratio" as of any date of determination
means the ratio of (a) the aggregate amount of all Indebtedness of the Company
and its Restricted Subsi diaries on a consolidated basis as of such date
(excluding (i) Permitted Warehouse Indebtedness and (ii) any Indebted ness under
Hedging Agreements Incurred pursuant to Section 6.05(b)) to (b) Consolidated Net
Worth as of such date.
"Consolidated Net Income" means the net income from continuing
operations (after taxes) of the Company and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP, excluding the effect
of extraordinary or non-recurring gains or losses (as such gains or losses are
determined in accordance with GAAP).
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its Restricted Subsidiaries on a
consolidated basis as of the end of the most recent fiscal quarter of the
Company for which financial statements are available, as (a) the par or stated
value of all outstanding Capital Stock of the Company plus (b) paid-in capital
or capital surplus relating to such Capital Stock plus (c) any retained earnings
or earned surplus less (i) any accumulated deficit, (ii) any amounts
attributable to Disqualified Stock and (iii) any amounts attributable to
deferred compensation appropriately classified as net worth in accordance with
GAAP.
"Continental Grain" means Continental Grain Company, a
Delaware corporation.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"CP Dealer" means Credit Suisse First Boston Corporation, a
Massachusetts corporation.
"Credit Agreement" means the Credit Agreement dated as of
January 7, 1997, among ContiFinancial Corpora tion, the lenders party thereto
and Credit Suisse First Boston, New York Branch, as administrative agent.
"Dealer Agreement" means a dealer agreement dated the
Effective Date between the CP Dealer and the Company substantially in the form
of Exhibit B.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Default Rate" means 2% per annum plus the Alternate Base Rate
in effect from time to time.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (b) is convertible or exchangeable for Indebtedness or
Disqualified Stock or (c) is redeemable at the option of the holder thereof, in
each case in whole or in part on or prior to the first anniversary of the
Termination Date; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock upon
the occurrence of a "change of control" occurring prior to the first anniversary
of the Termination Date shall not constitute Disqualified Stock if the "change
of control" provisions applicable to such Capital Stock are not more favorable
to the holders of such Capital Stock than the Change in Control-related
provisions in Article VII.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means September 9, 1997.
"Eligible Assets" means Eligible Cash & Cash Equivalents,
Eligible Fixed Income Investments, Eligible I/O Strip Securities, Eligible
Performance Deposits, Eligible Receivables, Eligible Residuals and Capitalized
Servicing Fees, in each case which are free and clear of all Liens (except that
Eligible Performance Deposits may be subject to a Lien in favor of the Person
providing the related Warehouse Facility if such Lien was created in connection
with the provision of such Warehouse Facility and secures the performance of
assets relating to such Warehouse Facility).
"Eligible Cash & Cash Equivalents" means all cash and all
Investments of the Company and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP, specified in any of clauses (a)
through (d) of the definition of Permitted Investments.
"Eligible Excess Spread Receivables" means Excess Spread
Receivables of the Company and its Restricted Subsidiaries on a consolidated
basis created after the date hereof; provided, however, that "Eligible Excess
Spread Receivables" shall not include any Excess Spread Receivables created as
the result of the securitization or sale of other Excess Spread Receivables.
"Eligible Fixed Income Investments" means all Investments of
the Company and its Restricted Subsidiaries, determined on a consolidated basis
in accordance with GAAP, of the type specified in clause (e) of the definition
of Permitted Investments.
"Eligible I/O Strip Securities" means the book value of all
I/O Strip Securities of the Company and its Restricted Subsidiaries, determined
on a consolidated basis in accordance with GAAP, that are rated at least Baa3 by
Moody's or BBB- by S&P, Duff & Phelps Credit Rating Co. or Fitch.
"Eligible Performance Deposits" means the aggre gate amount of
all Performance Deposits of the Company and its Restricted Subsidiaries,
determined on a consolidated basis, other than Performance Deposits relating to
Warehouse Facilities if the Company or a Restricted Subsidiary has determined
(a) in the case of purchase and sale Warehouse Facilities, not to repurchase and
subsequently securitize or sell the related Receivables or assets, and (b) in
the case of Warehouse Facilities in the form of a loan, not to securitize or
sell the related Receivables or assets.
"Eligible Performance Guarantees" means the aggregate amount
of all Performance Guarantees of the Company and its Restricted Subsidiaries,
determined on a consolidated basis, other than Performance Guarantees relating
to Warehouse Facilities if the Company or a Restricted Subsidiary has determined
(a) in the case of purchase and sale Warehouse Facilities, not to repurchase and
subsequently securitize or sell the related Receivables or assets, and (b) in
the case of Warehouse Facilities in the form of a loan, not to securitize or
sell the related Receivables or assets.
"Eligible Receivables" shall mean all Receivables (excluding
Performance Deposits, Capitalized Servicing Fees and Excess Spread Receivables)
of the Company and its Restricted Subsidiaries, determined on a consolidated
basis in accordance with GAAP, which are held for sale and are not past due by
more than 90 days; provided, however, that the aggregate amount of Eligible
Receivables at any time shall exclude (a) Eligible Receivables that are past due
by more than 30 days but less than 60 days to the extent that Eligible
Receivables past due by more than 30 days but less than 60 days would otherwise
constitute more than 7% of such aggregate amount of Eligible Receivables at such
time, and (b) Eligible Receivables that are past due by 60 days or longer to the
extent that Eligible Receivables past due by 60 days or longer would otherwise
constitute more than 3% of such aggregate amount of Eligible Receivables at such
time.
"Eligible Residuals" shall mean all Excess Spread Receivables
(other than Eligible I/O Strip Securities) of the Company and its Restricted
Subsidiaries, determined on a consolidated basis, and carried at fair value, in
accordance with GAAP, excluding any such Excess Spread Receivables created as
the result of the securitization of existing Excess Spread Receivables or the
sale of Excess Spread Receivables.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promul gated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Restricted
Subsidiary directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials,(d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Net Proceeds" means the cash proceeds from the
issuance or sale by the Company or any Restricted Subsidiary (other than the
issuance or sale to the Company or any Wholly Owned Restricted Subsidiary) of
any equity security (or any option, warrant or right to subscribe for or
security convertible into or exchangeable for any equity security) of the
Company or any Restricted Subsidiary (other than sales of Capital Stock of the
Company to directors, officers, consultants or employees of the Company or any
Restricted Subsidiary, in connection with permitted employee compensation and
incentive arrangements), net of all taxes applicable to and customary fees,
commissions, costs and other expenses incurred in connection with such issuance
or sale.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Company or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Reserve Requirements" means for any day as
applied to a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board) maintained by a member bank of the Federal Reserve
System of the United States of America.
"Eurodollar", when used in reference to any Loan, refers to
whether such Loan bears interest at a rate determined by reference to the
Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Spread" means, over the life of a "pool" of
Receivables that have been sold by a Person to a trust or other Person in a
securitization or sale, the rights retained by such Person or a Restricted
Subsidiary at or subsequent to the closing of such securitization or sale to
receive for its benefit cash flows attributable to such "pool".
"Excess Spread Receivables" of a Person means the contractual
or certificated right to Excess Spread capitalized on such Person's consolidated
balance sheet (the amount of which shall be the present value of the Excess
Spread, calculated in accordance with GAAP).
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Excluded Taxes" means, with respect to the Agent, any
Participating Bank, or any other recipient of any payment to be made by or on
account of any obligation of the Company hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Participating Bank, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Company is located and (c) in the
case of a Foreign Partici pating Bank (other than an assignee pursuant to a
request by the Company under Section 9.04(i)), any withholding tax that is
imposed on amounts payable to such Foreign Participating Bank at the time such
Foreign Participating Bank becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Participating Bank's
failure to comply with Section 2.14(e), except to the extent that such Foreign
Participating Bank (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Company with respect to such withholding tax pursuant to
Section 2.14(a).
"Face Amount" means, with respect to any Commer cial Paper,
(a) the aggregate face amount (if issued on a discount basis) of such Commercial
Paper or (b) the aggre gate principal amount (if issued on an interest-bearing
basis) of such Commercial Paper together with the aggregate amount of interest
to the stated maturity date thereof.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
the day of such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"Fitch" means Fitch Investors Service, L.P. or any successor
thereto.
"Foreign Participating Bank" means any Partici pating Bank
that is organized under the laws of a jurisdic tion other than that in which the
Company is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided that the term Guarantee shall not include
endorse ments for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Person at the time it becomes a Restricted Subsidiary. The
term "Incurrence" when used as a noun shall have a correlative meaning. The
accretion of principal of a non-interest bearing or other discount security
shall be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication), (a) the principal of and premium (if
any) in respect of (i) indebtedness of such Person for money borrowed and (ii)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable; (b) all Capital
Lease Obligations of such Person; (c) all obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable and expense accruals
arising in the ordinary course of business); (d) all obligations of such Person
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction (other than obligations with respect to
letters of credit securing obligations (other than obligations described in (a)
through (c), above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the tenth Business
Day following receipt by such Person of a demand for reimbursement following
payment on the letter of credit); (e) the amount of all obligations of such
Person with respect to the redemption, repayment or other repurchase of any
Disquali fied Stock (but excluding any accrued dividends); (f) Warehouse
Indebtedness; (g) in connection with each sale by such Person of any Excess
Spread Receivables, the maximum aggregate contractual claim (if any) that the
purchaser thereof could have against such Person if the amounts anticipated at
the time of such sale to be received by such purchaser in connection with such
Excess Spread Receivables are not received by such purchaser; (h) all
obligations of the type referred to in clauses (a) through (g) of other Persons
and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee; (i) all obligations
of the type referred to in clauses (a) through (h) of other Persons secured by
any Lien on any property or asset of such Person (whether or not such obligation
is assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured and (j) to the extent not otherwise included in this definition,
Hedging Agreements of such Person. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, upon the occurrence of
the contingency giving rise to the obligation, of any contingent obligations at
such date. Notwithstanding the foregoing, any securities issued in a
securitization by a special purpose owner trust or similar entity formed by or
on behalf of a Person and to which Receivables or Excess Spread Receivables have
been sold or otherwise transferred by or on behalf of such Person or its
Subsidiaries shall not be treated as Indebtedness of such Person or its
Subsidiaries under this Agreement, regardless of whether such securities are
treated as indebtedness for tax purposes.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of any Person that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" has the meaning assigned to it in
Section 2.15(b).
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to such Eurodollar Loan.
"Interest Period" means, with respect to any Eurodollar Loan,
the period commencing on the date of such Loan and ending on the numerically
corresponding day in the calendar month that is one, two or three months
thereafter, as the Company may elect.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as trade accounts on the balance sheet of the lender)
or other exten sions of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebted
ness or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary", (a) "Investment" shall include the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of any Subsidiary at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however, that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company
shall be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (i) the Company's "Investment" in
such Subsidiary at the time of such redesignation less (ii) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the fair
market value of the net assets of such Subsidiary at the time of such
redesignation; and (b) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"Investment Grade" means, when used with reference to the
Company's Index Debt, that such Index Debt shall be rated (a) at or above Baa3
(or the equivalent) by Moody's and (b) at or above BBB- (or the equivalent) by
S&P. Each rating of the Company's Index Debt will be effective on the date on
which such rating is publicly announced by the applicable rating agency. If the
rating system of Moody's or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obli gations, the
Company and the Participating Banks shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the applicable rating shall be deter mined by reference to the rating
most recently in effect prior to such change or cessation.
"I/O Strip Securities" means a certificate issued to the
Company or a Restricted Subsidiary in a securitiza tion of a pool of Receivables
(other than Excess Spread Receivables) in the ordinary course of business of the
Company which pays a fixed or floating rate of interest on a notional principal
amount.
"Issuing and Paying Agency and Depositary Agree ment" means an
issuing and paying agency and depositary agreement dated as of the Effective
Date between the Issuing and Paying Agent and Depositary and the Company
substantially in the form of Exhibit C.
"Issuing and Paying Agent and Depositary" means The Chase
Manhattan Bank, a New York banking corporation, as issuing and paying agent and
depositary under the Issuing and Paying Agency and Depositary Agreement, or any
successor issuing and paying agent and depositary appointed in accor dance with
this Agreement and the Issuing and Paying Agency and Depositary Agreement.
"Issuing Bank" means Dresdner Bank AG, New York Branch, in its
capacity as the issuer of the Letter of Credit hereunder, and its successors in
such capacity as provided in Section 9.04(j). The Issuing Bank may, in its
discretion, arrange for the Letter of Credit to be issued by an Affiliate of the
Issuing Bank, in which case the term "Issuing Bank" shall include such
Affiliate.
"Letter of Credit" has the meaning assigned to that term in
the fourth Introductory Statement thereto.
"LIBO Rate" means the rate per annum determined by the Agent
at approximately 11:00 a.m. (London time), on the date which is two Business
Days prior to the beginning of the relevant Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in dollars
(as set forth by any service selected by the Agent which has been nominated by
the British Bankers' Association as an authorized information vendor for the
purpose of displaying such rates, which is currently equivalent to such rate
appearing on Page 3750 of Dow Jones Markets) for a period equal to such Interest
Period (rounded upward to the nearest whole multiple of 1/16th of 1%, if such
rate is not such a multiple); provided that to the extent that an interest rate
is not ascertainable pursuant to the foregoing provisions of this definition,
the "LIBO Rate" shall be the interest rate per annum determined by the Agent to
be the average (rounded upward to the nearest whole multiple of 1/16th of 1% per
annum, if such average is not such a multiple) of the rates per annum at which
deposits in dollars are offered for such relevant Interest Period to major banks
in the London interbank market in London, England by the Reference Banks, at
approximately 11:00 a.m. (London time) on the date which is two Business Days
prior to the beginning of such Interest Period. If any of the Reference Banks
shall be unable or shall otherwise fail to supply such rates to the Agent upon
its request, the rate of interest shall, subject to the provisions of Section
2.04(d), be determined on the basis of the quotations of the remaining Reference
Banks or Reference Bank.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset, (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such securities
and (d) any claim (whether direct or indirect through subordination or other
structural encum brance) against any Excess Spread Receivable sold unless the
seller is not liable for any losses thereon.
"Loan" has the meaning assigned to such term in Section 2.04.
"Margin Stock" has the meaning given such term under
Regulation U.
"Material Adverse Effect" means (a) a material adverse effect
on the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and the Restricted Subsidiaries taken as a whole, (b)
a material adverse effect on the ability of the Company to perform any of its
obligations under this Agreement or (c) a material adverse effect on the rights
of or benefits available to the Participating Banks under this Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans and the Letter of Credit), or obligations in respect of one or more
Hedging Agreements, of any one or more of the Company and its Restricted
Subsidiaries in an aggregate principal amount exceeding $5,000,000 (or the
equivalent amount in any other currency). For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Company or any
Restricted Subsidiary in respect of any Hedging Agreement at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that the
Company or such Restricted Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Cash" from an Asset Disposition means cash
payments received therefrom (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or
other obligations relating to such properties or assets or received in any other
non-cash form) in each case net of (a) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
under GAAP, as a consequence of such Asset Disposition, (b) all payments made on
any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms,
or in order to obtain a neces sary consent to such Asset Disposition, or by
applicable law, be repaid out of the proceeds from such Asset Disposition, (c)
all distributions and other payments required to be made to minority interest
holders in Subsi diaries or joint ventures as a result of such Asset Disposition
and (d) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with the
property or other assets disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition; provided
that "Net Available Cash" will be increased by the amount of any such reserve to
the extent such reserve is reversed.
"Non-Default Disruption" shall have the meaning assigned to
such term in Section 2.04(a).
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforce ment of, or otherwise with respect to, this Agreement, other than
Excluded Taxes.
"Outstanding" means, with respect to Commercial Paper, all
Commercial Paper issued at any time under the Issuing and Paying Agency and
Depositary Agreement except (a) Commercial Paper which has been paid through the
Issuing and Paying Agent and Depositary and (b) matured Commercial Paper and
unmatured Commercial Paper which is deemed paid pursuant to Sections 8(d) and
10(b), respectively, of the Issuing and Paying Agency and Depositary Agreement.
"Outstanding Funded Indebtedness" means all outstanding
Indebtedness of the Company and its Restricted Subsidiaries on a consolidated
basis excluding, without duplication, (a) the aggregate principal amount of all
loans outstanding under the Credit Agreement, (b) any Indebtedness constituting
Hedging Agreement obligations, (c) 80% of the aggregate amount of Eligible
Performance Guarantees, (d) all Permitted Warehouse Indebtedness, (e) the
payment obliga tions of the Company, whether or not contingent, under this
Agreement and (f) the aggregate Face Amount of the Outstanding Commercial Paper.
"Participant" has the meaning assigned to such term in Section
9.04(e).
"Participating Banks" means the banks listed on Schedule 2.01
hereof under the caption "Participating Banks" and any other Person which
becomes a Participating Bank pursuant to Section 9.04.
"Participation Percentage" means, as of any date of
determination, (a) with respect to a Participating Bank initially a party
hereto, the percentage set forth opposite such Participating Bank's name on
Schedule 2.01 hereof, except as provided in clause (c) below and as adjusted
pursuant to Section 2.11(e), (b) with respect to a Participating Bank that
became a party hereto after the date hereof by operation of Section 9.04, the
percentage partici pation interest assumed by such assignee Participating Bank
as set forth in the instrument of assignment referred to in Section 9.04, except
as provided in clause (c) below and as adjusted pursuant to Section 2.11(e), and
(c) with respect to any Participating Bank described in clause (a) or (b) above
that assigns a percentage of its interests after the date hereof in accordance
with Section 9.04, its participation percentage as reduced by the percentage so
assigned and as adjusted pursuant to Section 2.11(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Performance Deposits" means the right of the Company or any
Restricted Subsidiary to receive from the purchaser or lender providing any
Warehouse Facility an amount equal to (a) the face value of the assets which are
the subject of such Warehouse Facility less (b) the sum of (i) the amount of
cash actually received by the Company or such Restricted Subsidiary as proceeds
of such Warehouse Facility and (ii) the aggregate amount of all Performance
Guarantees provided in connection with such Warehouse Facility; provided that no
such Performance Deposit shall, when taken together with the aggregate amount of
all Performance Guarantees relating to the applicable Warehouse Facility, in any
event exceed 10% of the face value of the assets which are the subject of such
Warehouse Facility.
"Performance Guarantee" means any Guarantee of the Company or
any Restricted Subsidiary for the benefit of the provider of a Warehouse
Facility of obligations relating to Receivables which are the subject of a
Warehouse Facility in an amount which, when taken together with the aggregate
amount of all Performance Deposits relating to the appli cable Warehouse
Facility, is no greater than 10% of the face value of the Receivables which are
the subject of such Warehouse Facility; provided that such Guarantee has the
same economic effect as a Performance Deposit.
"Permitted Holders" means lineal descendants of Jules
Fribourg, including any individual legally adopted; spouses of such descendants;
trusts, the beneficiaries of which are any of the foregoing; partnerships,
corporations, or other entities in which any of the foregoing (individu ally or
collectively) has a controlling interest; and charitable organizations
established by any of the foregoing.
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by,
the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date
of acquisition thereof;
(b) investments in commercial paper, maturing not
more than 180 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Company) organized and in
existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the
time as of which any investment therein is made of "P-1" (or higher)
according to Moody's or "A-1" (or higher) according to S&P;
(c) investments in time deposit accounts,
certificates of deposit and money market deposits maturing within 180
days of the date of acquisition thereof issued by a bank or trust
company that is not an Affiliate of the Company and which is organized
under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America, and
which bank or trust company has capital, surplus and undivided profits
aggregating in excess of $200,000,000 (or the foreign currency
equivalent thereof) and has outstanding debt which is rated "A" (or
such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436
under the Securities Act of 1933, as amended) or any money-market fund
sponsored by a registered broker dealer or mutual fund distributor;
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (a)
above and entered into with a financial institution satisfying the
criteria described in clause (c) above; and
(e) investments in securities with maturities of six
months or less from the date of acquisition issued or fully guaranteed
by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof,
and rated at least "A" by S&P or "A2" by Moody's.
"Permitted Warehouse Indebtedness" means Warehouse
Indebtedness in connection with a Warehouse Facility; provided, however, that
(i) the assets as to which such Warehouse Indebtedness relates are or, prior to
any funding under the related Warehouse Facility with respect to such assets
were, eligible to be recorded as held for sale on the balance sheet of the
Company and its Restricted Subsidiaries in accordance with GAAP, (ii) such
Warehouse Indebtedness will be deemed to be Permitted Warehouse Indebtedness
except to the extent the holders of such Warehouse Indebtedness have contractual
recourse to the Company or its Restricted Subsidiaries to satisfy claims in
respect of such Warehouse Indebtedness in excess of, without duplication, (a)
the realizable value of the assets to which such Warehouse Indebtedness relates
and (b) any Performance Deposit securing such Warehouse Indebtedness or any
Performance Guarantee supporting such Warehouse Indebtedness and (iii) any such
Indebtedness has not been outstanding in excess of 364 days.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, associa tion, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Credit Suisse as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Receivables" means consumer and commercial loans, leases and
receivables purchased or originated by the Company, any Restricted Subsidiary or
a Strategic Alliance Client in the ordinary course of business; provided,
however, that for purposes of determining the amount of a Receivable at any
time, such amount shall be determined in accordance with GAAP, consistently
applied, as of the most recent practicable date.
"Reference Banks" means Credit Suisse, Dresdner Bank AG and
The Bank of New York.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Company or any Restricted Subsidiary existing on the
date hereof or Incurred in compliance with this Agreement (including
Indebtedness that Refinances Refinancing Indebtedness); provided, however, that
(a) such Refinancing Indebtedness has a Stated Maturity no earlier than the
Stated Maturity of the Indebtedness being Refinanced, (b) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (c) such Refinan cing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; provided further,
however, that Refinancing Indebtedness shall not include (i) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company or another Subsidiary or
(ii) Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Related Business" means any consumer or commer cial finance
business or any financial service business.
"Related Documents" means the Letter of Credit, the Dealer
Agreement, the Issuing and Paying Agency and Depositary Agreement and any other
agreement or instrument relating thereto.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Banks" means, on any date of determina tion,
Participating Banks which, collectively on such date, have Participation
Percentages in the aggregate of more than 50%.
"Restricted Subsidiary" means any Subsidiary that is not an
Unrestricted Subsidiary.
"Rolling Period" means, at any time, the fiscal quarter most
recently ended and the three immediately preceding fiscal quarters, considered
as a single accounting period.
"S&P" means Standard & Poor's Rating Group, a division of The
McGraw-Hill Companies Inc., or any successor thereto.
"Stated Amount" means the amount of the Letter of Credit, as
determined pursuant to Section 2.01, as such amount shall be, from time to time,
(a) reduced by each payment made pursuant to paragraph 2(a) of the Letter of
Credit, (b) increased by each reimbursement made pursuant to paragraphs 3(a) and
(d) of the Letter of Credit (subject, in the case of any increase pursuant to
Section 3(d) of the Letter of Credit, to the expiration and non-duplication
provisions set forth in the proviso therein), (c) reduced or increased as
provided in Section 2.11 or (d) reduced or increased as provided in Section
2.06.
"Stated Maturity" means, with respect to any security or
Indebtedness, the date specified in such security or Indebtedness as the fixed
date on which the final payment of principal of such security is due and
payable, including pursuant to any mandatory redemption provision (but excluding
any provision providing for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency unless such contingency has
occurred).
"Strategic Alliance Client" means any Person (other than a
Restricted Subsidiary) engaged in a Related Business to which the Company
provides, or reasonably expects to provide, financing or asset securitization
expertise in return for asset-backed underwriting or placement agent
commitments.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" means August 20, 1999, as such date may be
extended from time to time pursuant to Section 2.11.
"Transactions" means the execution, delivery and performance
by the Company of this Agreement, the borrowing of the Loans, the issuance of
the Letter of Credit and the issuance of the Commercial Paper and the use of the
proceeds thereof.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (b) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may desig nate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital
Stock or Indebtedness of, or holds any Lien on any property of, the Company or
any other Subsidiary that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that no Default shall have occurred and be
continuing or would occur as a result thereof and each representation and
warranty of the Company contained in Article III shall be true and correct in
all material respects after giving effect to such designation. Any such
designation by the Board of Directors shall be evidenced by the Company to the
Agent by promptly filing with the Agent a copy of the board resolution giving
effect to such designa tion and a certificate, signed by two executive officers,
certifying that such designation complied with the foregoing provisions.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests or membership interests) of
such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Warehouse Facility" means any funding arrangement with a
financial institution or other lender or purchaser exclusively to finance the
purchase or origination of Receivables by the Company, a Subsidiary or a
Strategic Alliance Client for the purpose of pooling such Receivables prior to
securitization or sale in the ordinary course of business, including purchase
and sale facilities pursuant to which the Company or a Subsidiary sells
Receivables or debt of a Strategic Alliance Client secured by Receivables owned
or financed by such Strategic Alliance Client to a financial institution and
retains a right of first refusal upon the subsequent resale of such Receivables
or debt by such financial institution.
"Warehouse Indebtedness" means the greater of (a) the
consideration received by the Company or its Restricted Subsidiaries under a
Warehouse Facility and (b) the book value of the assets financed under a
Warehouse Facility with respect to Receivables or debt of a Strategic Alliance
Client secured by Receivables owned or financed by such Strategic Alliance
Client until such time as such Receivables or debt are (i) securitized, (ii)
repurchased by the Company or its Restricted Subsidiaries or (iii) sold by the
counterparty under the Warehouse Facility to a Person who is not an Affiliate of
the Company.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares and shares
held by other Persons to the extent such shares are required by applicable law
to be held by a Person other than the Company or a Restricted Subsidiary) is
owned by the Company or one or more Wholly Owned Subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement,
in the computation of a period of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
mascu line, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifi cations set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's succes sors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and intan
gible assets and properties, including cash, securities, accounts and contract
rights. The phrase "the date of this Agreement" or "the date hereof" or words to
similar effect shall mean the Amendment Effective Date.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accor dance with GAAP, as in effect from time to time; provided
that if the Company notifies the Agent that the Company requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Agent notifies the Company that the Required Banks request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the applica
tion thereof, then such provision shall be interpreted on the basis of GAAP as
in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
Amount and Terms of
the Letter of Credit
SECTION 2.01. The Letter of Credit. The Issuing Bank agrees,
on the terms and conditions hereinafter set forth, to issue the Letter of Credit
to the Issuing and Paying Agent and Depositary on any Business Day during the
period from the Effective Date to but excluding the earlier of the Termination
Date and the date of termination of the Commitment, which date of issuance shall
be specified in a notice delivered by the Company to the Issuing Bank and the
Agent not fewer than one Business Day prior to such date (unless such date is
the Effective Date). The Agent shall promptly transmit copies of such notice, if
any, to the Participating Banks. The Letter of Credit shall be in a Stated
Amount not to exceed the sum of $275,000,000 and (b) the aggregate amount of any
increases pursuant to Section 2.11(e), shall not exceed the Borrowing Base in
effect at the time of issuance and shall expire on the Cancelation Date.
SECTION 2.02. Commissions and Fees. (a) The Company agrees to
pay the Agent, for the account of the Participating Banks, to be allocated among
them ratably in accordance with their respective Participation Percentages, a
fee on the Stated Amount, without regard to reductions thereof pursuant to
Section 2.06(c)(iii), from the Amendment Effective Date until the Termination
Date, at a rate per annum equal to the Applicable Percentage as in effect from
time to time during such period, payable quarterly in arrears on the last day of
each March, June, September and December, commencing on the first such day after
the Amendment Effective Date, and on any expiration or termination of the
Commitment or the Letter of Credit or reduction of the Stated Amount.
(b) The Company agrees to pay to the Agent for its own account
and that of the Issuing Bank fees in the amounts and at the times set forth in
the fee letter dated as of July 21, 1997, between the Company, the Issuing Bank
and the Agent.
SECTION 2.03. Reimbursement. Except as otherwise specified in
Section 2.04, the Company will unconditionally pay to the Issuing Bank the
amount of each disbursement made by the Issuing Bank under the Letter of Credit,
together with accrued interest thereon, if any, not later than one Business Day
after the Company shall have received notice from the Issuing Bank that such
disbursement has been made. Unless the Company shall reimburse the Issuing Bank
for any such disbursement in full or convert such disbursement into a Loan
pursuant to Section 2.04 on the date of such disbursement, the unpaid amount
thereof shall bear interest, payable on demand, (a) until the date on which such
amount is due pursuant to the first sentence of this Section 2.03, at the rate
per annum that would apply to such amount if such amount were an ABR Loan and
(b) thereafter, until payment in full, at a fluctuating interest rate per annum
equal to the Default Rate. Upon request from the Issuing and Paying Agent and
Depositary, the Issuing Bank shall promptly notify the Issuing and Paying Agent
and Depositary of all amounts due from the Company to the Issuing Bank pursuant
to this Section 2.03. Upon receipt of repayment for any such disbursement,
together with accrued interest, if any, thereon, pursuant to this Section 2.03,
the Issuing Bank shall promptly deliver to the Issuing and Paying Agent and
Depositary a notice in accordance with paragraph 3(a) of the Letter of Credit.
SECTION 2.04. Loans. (a) If either (i) the market for
commercial paper is disrupted or (ii) the rating by either S&P or Moody's
applicable to the Issuing Bank's Index Debt falls below AA or Aa2, respectively,
and, as a result, either (A) the Company is unable to sell Commercial Paper to
replace maturing Commercial Paper or (B) pricing conditions render it
economically disadvantageous in any material respect for the Company to issue
the Commercial Paper to replace maturing Commercial Paper (each of clauses (A)
and (B), individually, a "Non-Default Disruption"), the Company may request the
Issuing Bank to convert any amount due under Section 2.03 into a loan by the
Issuing Bank (a "Loan"). Each such Loan shall initially be an ABR Loan. More
than one Loan may be outstanding at the same time, and, subject to the terms and
conditions set forth herein, the Company may prepay the Loans. The Issuing Bank
agrees to make any Loan so requested; provided that (x) the Agent shall have
received a request therefor pursuant to and in accordance with Section 4.03(b),
(y) the Company shall have satisfied the conditions precedent specified in
Section 4.03 on and as of the date of such requested Loan and (z) all amounts
available in the Reimbursement Account (as defined in the Issuing and Paying
Agency and Depositary Agreement) shall have first been applied to the repayment,
to the extent not otherwise provided for, of amounts due under Section 2.03. The
Issuing Bank shall promptly provide notice of any such Loan to the Issuing and
Paying Agent and Depositary.
(b) The principal amount of each Loan shall be due and payable
no later than the Termination Date. Interest on each Loan shall be due and
payable initially in accordance with Section 2.04(c)(i) and thereafter in
accordance with Section 2.04(c)(i) or (ii), as applicable. The Interest Period
for each Eurodollar Loan shall begin on the effective date of the most recent
conversion or continuation of such Eurodollar Loan and shall have the duration
specified by the Company in its notice given with respect thereto pursuant to
Section 2.15(b). No Interest Period for a Eurodollar Loan shall end after the
Termination Date, and any Interest Period for a Loan that would other wise end
after the Termination Date shall be deemed to end on the Termination Date.
(c) The Company shall pay interest on the unpaid principal
amount of each Loan from the date of such Loan until the principal amount
thereof is paid in full at the applicable rate set forth below:
(i) ABR Loans. The Company shall pay interest on each
ABR Loan from the date of such ABR Loan until such ABR Loan is paid in
full or converted to a Eurodollar Loan, payable in arrears on each
Interest Payment Date for such ABR Loan at a fluctuating interest rate
per annum equal to the Alternate Base Rate in effect from time to time;
and
(ii) Eurodollar Loans. The Company shall pay interest
on each Eurodollar Loan at the Adjusted LIBO Rate for the Interest
Period for such Eurodollar Loan, payable in arrears on each Interest
Payment Date for such Eurodollar Loan;
provided that (A) in the event of any repayment or prepay ment of any Loan,
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment, (B) in the event of any conversion of
any Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion and (C) all accrued interest shall be payable upon the expiration or
termination of the Letter of Credit.
(d) If, prior to the commencement of any Interest Period for a
Eurodollar Loan:
(i) the Agent determines in good faith (which
determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or
(ii) the Agent is advised by the Required Banks that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Banks of making or maintaining such
Eurodollar Loan for such Interest Period;
then the Agent shall give notice thereof to the Company and the Participating
Banks by telephone or telecopy as promptly as practicable thereafter and, until
the Agent notifies the Company and the Participating Banks that the
circumstances giving rise to such notice no longer exist, any Interest Election
Request that requests the conversion of any ABR Loan to, or continuation of any
Eurodollar Loan as, a Eurodollar Loan shall be ineffective.
(e) On and after the date on which the unpaid principal amount
of any Eurodollar Loan shall be reduced, by payment or prepayment or otherwise,
to less than $1,000,000, the rate of interest applicable on each day to the
unpaid principal amount of such Loan shall be the higher of the Adjusted LIBO
Rate in effect for such Loan and the Alternate Base Rate.
SECTION 2.05. Reimbursement of Issuing Bank, Etc. (a) (i) By
the issuance of the Letter of Credit and without any further action on the part
of the Issuing Bank or the Participating Banks, the Issuing Bank hereby grants
to each Participating Bank, and each such Participating Bank hereby acquires
from the Issuing Bank, a participation in the Letter of Credit equal to such
Participating Bank's Participation Percentage from time to time of the Stated
Amount, effective upon the issuance of the Letter of Credit. In consideration
and in furtherance of the foregoing, each Participating Bank hereby absolutely
and unconditionally agrees to pay to the Agent, for the account of the Issuing
Bank, the amounts set forth in this Section 2.05.
(ii) If the Issuing Bank (A) shall not have been reimbursed in
full for any payment made by the Issuing Bank under the Letter of Credit on the
date of such payment or (B) shall make any Loan to the Company, the Issuing Bank
shall give the Agent prompt notice thereof (an "LC Payment Notice") no later
than 12:00 noon (New York City time) on the Business Day immediately succeeding
the date of such payment by the Issuing Bank or the date of the payment that
gave rise to such Loan, as applicable, and the Agent shall give each
Participating Bank prompt notice thereof (an "Agent Payment Notice") no later
than two hours following the Agent's receipt of the LC Payment Notice at such
Participating Bank's address referred to in Section 9.01.
(iii) Upon receipt of an Agent Payment Notice, each
Participating Bank severally agrees to pay to the Agent, for the account of the
Issuing Bank, an amount equal to such Participating Bank's ratable portion
(according to such Participating Bank's Participation Percentage) of such
unreimbursed amount or Loan paid or made by the Issuing Bank, plus interest on
such amount at a rate per annum equal to the Federal Funds Effective Rate from
the date of payment by the Issuing Bank to the date of payment to the Issuing
Bank by such Participating Bank; provided that, with respect to any such
unreimbursed amount, to the extent that the Participating Banks have made
payments pursuant to this paragraph to reimburse the Issuing Bank, the Issuing
Bank shall, promptly following receipt by the Issuing Bank of any payment by the
Company to reimburse such unreimbursed amount, distribute such payment
(including any amounts received with respect to interest on such unreimbursed
amount from the date of payment of such unreimbursed amount by the Issuing Bank)
to the Participating Banks as their interests may appear. The failure of the
Issuing Bank, the Agent or the Company to give such LC Payment Notice, the Agent
Payment Notice or the notice referred to in Section 4.03(b), as the case may be,
shall not affect any Participating Bank's obligations pursuant to this Section
2.05(a).
(iv) Each such payment by a Participating Bank shall be made
to the Agent, for the account of the Issuing Bank, at its address referred to in
Section 9.01 in dollars in same day funds (A) not later than 2:30 p.m. (New York
City time) on the day any such Agent Payment Notice is received by such
Participating Bank, if such notice is received at or prior to 12:00 noon (New
York City time) on a Business Day; (B) not later than 4:30 p.m. (New York City
time) on the day any such Agent Payment Notice is received by such Participating
Bank, if such notice is received after 12:00 noon (New York City time) but at or
prior to 2:30 p.m. (New York City time) on a Business Day; or (C) not later than
12:00 noon (New York City time) on the Business Day next succeeding the day any
such Agent Payment Notice is received by such Participating Bank, if such notice
is received after 2:30 p.m. (New York City time) on a Business Day. Each
Participating Bank's obligation to make each such payment to the Agent, for the
account of the Issuing Bank, and the Agent's right to receive the same, for the
account of the Issuing Bank, shall be absolute and unconditional and shall not
be affected by any circumstance whatsoever, including, without limiting the
foregoing or the circum stances set forth in Section 2.13, the occurrence or
continuance of an Event of Default or the failure of any other Participating
Bank to make any payment under this Section 2.05. Each Participating Bank
further agrees that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(b) The failure of any Participating Bank to make any payment
to the Agent, for the account of the Issuing Bank, in accordance with Section
2.05(a) shall not relieve any other Participating Bank of its obligation to make
payment, but neither the Issuing Bank nor any Participating Bank shall be
responsible for the failure of any other Participating Bank to make such
payment. If any Participating Bank shall fail to make any payment to the Agent,
for the account of the Issuing Bank, in accordance with Section 2.05(a)(iv),
then such Participating Bank agrees to pay to the Agent, for the account of the
Issuing Bank, forthwith on demand by the Agent or the Issuing Bank such
corresponding amount together with interest thereon for the first two days
following the day upon which any such payment shall have been due and payable at
the Federal Funds Effective Rate and thereafter until the date such amount is
paid to the Agent, for the account of the Issuing Bank, at the Alternate Base
Rate plus 1% per annum.
(c) If any Participating Bank shall fail to make any payment
to the Agent, for the account of the Issuing Bank, in accordance with Section
2.05(a), then, in addition to other rights and remedies which the Issuing Bank
may have, the Agent is hereby authorized, at the request of the Issuing Bank, to
withhold that portion of any payments received by the Agent that would otherwise
be payable to such Participating Bank and to apply such portion to the payment
of amounts owing by such Participating Bank to the Issuing Bank and any related
interest thereon.
SECTION 2.06. Prepayments. (a) The Company may, subject to
prior notice in accordance with Section 2.06(b), prepay the outstanding amount
of any Loan in whole or in part, together with accrued interest to the date of
such prepayment on the amount prepaid to the extent required by Section 2.04(c).
(b) The Company shall give notice to the Agent of any
prepayment hereunder (i) in the case of prepayment of a Eurodollar Loan, not
later than 12:00 noon (New York City time) three Business Days before the date
of prepayment and (ii) in the case of prepayment of an ABR Loan, not later than
12:00 noon (New York City time) one Business Day before the date of prepayment.
Each such notice shall be irrevoc able and shall specify the prepayment or
payment date and the principal amount of each Loan or portion thereof to be
prepaid or repaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Letter of Credit as
contemplated by Section 2.11, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.11. Promptly
following receipt of any such notice relating to a Loan, the Agent shall advise
the Participating Banks of the contents thereof. Each partial prepayment of any
Loan (other than any prepayment pursuant to Section 2.06(c)(i)) shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000.
(c) If at any time the aggregate principal amount of any Loans
outstanding plus any principal of amounts due pursuant to Section 2.03 plus the
Stated Amount exceeds the Borrowing Base, the Company shall forthwith either (i)
pre pay the Loans in accordance with this Section 2.06 or pay such principal of
amounts due pursuant to Section 2.03 by an amount as shall be necessary to
eliminate such excess, (ii) deposit an amount in cash (or a cash equivalent that
is satisfactory in form and substance to the Issuing Bank and the Required
Banks) in an account with the Agent (the "Account"), in the name of the Agent
and for the benefit of the Issuing Bank and the Participating Banks, equal to
such excess as of such date plus any accrued and unpaid interest thereon;
provided that such cash shall not include any assets which constituted Eligible
Assets in the most recent Borrowing Base Certificate or any proceeds thereof, or
(iii) reduce the Stated Amount by such excess by delivery to the Issuing Bank
(with a copy to the Agent) of a certificate in accordance with paragraph 2(b) of
the Letter of Credit; provided that the Stated Amount shall not be reduced to an
amount less than the aggregate Face Amount of all the Commercial Paper
Outstanding at such time; provided further that, if at any time the Borrowing
Base exceeds the aggre gate principal amount of any Loans outstanding plus the
Stated Amount, the Company may so notify the Issuing Bank, whereupon the Issuing
Bank shall, subject to satisfaction of the conditions set forth in Section 4.02,
increase the Stated Amount by an amount equal to such excess by delivery to the
Issuing and Paying Agent and Depositary (with a copy to the Agent) of a notice
in accordance with paragraph 3(c) of the Letter of Credit. Notwithstanding the
foregoing, the Stated Amount shall not be so increased to an amount greater than
(A) the sum of (1) the original Stated Amount and (2) the aggregate amount of
all increases of the Stated Amount pursuant to Section 2.11(e) minus (B) the
aggregate amount of all reductions of the Stated Amount pursuant to Section 2.11
(excluding reductions required by clause (iii) above). Each reduction or
increase of the Stated Amount pursuant to this Section 2.06(c) shall be applied
ratably among the Participating Banks in accordance with their respective
Participation Percentages.
(d) The Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over the Account. Other than any
interest earned on the invest ment of such deposits, which investments shall be
made at the option and sole discretion of the Agent and at the Company's risk
and expense (except as a result of acts or omissions constituting the wilful
misconduct or gross negligence of the Agent), such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in
the Account. Moneys in the Account shall be applied by the Agent to reimburse
the Issuing Bank for payments under Section 2.03 for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Company for the Letter of Credit at such
time or, if the maturity of any Loans has been accelerated, be applied to
satisfy other obligations of the Company under this Agreement. If at any time
the Borrowing Base exceeds the aggregate principal amount of any Loans
outstanding plus the Stated Amount, the Agent shall return to the Company an
amount of cash (to the extent not applied as aforesaid) equivalent to such
excess within three Business Days.
(e) The Company shall promptly notify the Agent of the
cessation of any Non-Default Disruption and, so long as no other Non-Default
Disruptions are continuing, shall prepay all outstanding Loans, in accordance
with this Section 2.06, (i) within 10 Business Days after any such cessation, in
the case of all ABR Loans, or (ii) at the end of the then current Interest
Period for any such Loan, in the case of all Eurodollar Loans. The Agent shall
promptly notify the Issuing and Paying Agent and Depositary of all prepayments
required to be made by the Company pursuant to this Section 2.06(e). Upon
receipt of any prepayment pursuant to this Section 2.06, the Agent shall
promptly notify the Issuing Bank of the amount of such prepayment with respect
to the principal of Loans, whereupon the Issuing Bank shall promptly deliver to
the Issuing and Paying Agent and Depositary a notice in accordance with
paragraph 3(b) of the Letter of Credit.
SECTION 2.07. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against letters of credit (or
participatory interests therein) issued by, commitments or assets of,
or deposits with or for the account of, or credit extended by, the
Issuing Bank or any Participating Bank (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on the Issuing Bank or any Partici pating
Bank or the London interbank market any other condition affecting this
Agreement, the Letter of Credit, any amount outstanding hereunder or
any Eurodollar Loan or participatory interests therein;
and the result of any of the foregoing shall be to increase the cost to the
Issuing Bank or such Participating Bank, as applicable, of issuing, maintaining
or participating in this Agreement, the Letter of Credit or any Eurodollar Loan
(or agreeing to make or making, funding or maintaining any Eurodollar Loan or
participatory interest therein) or to reduce the amount of any sum received or
receivable (whether of principal, interest or otherwise) by the Issuing Bank or
such Participating Bank, as applicable, then the Company shall pay to the Agent
for the account of the Issuing Bank or such Participating Bank, as applicable,
such additional amount or amounts as will compensate the Issuing Bank or such
Participating Bank, as applicable, for such additional costs incurred or
reduction suffered (excluding the effect of any Excluded Taxes).
(b) If the Issuing Bank or any Participating Bank determines
that any Change in Law regarding capital require ments has or would have the
effect of reducing the rate of return on the Issuing Bank's or such
Participating Bank's capital, as applicable, or on the capital of the Issuing
Bank's or such Participating Bank's holding company, as applicable, if any, as a
consequence of this Agreement, the Letter of Credit, any amount outstanding
hereunder or any Loan or participating interest therein, to a level below that
which the Issuing Bank or such Participating Bank, as applicable, or the Issuing
Bank's or such Participating Bank's holding company, as applicable, could have
achieved but for such Change in Law (taking into consideration the Issuing
Bank's or such Participating Bank's policies, as applicable, and the policies of
the Issuing Bank's or such Participating Bank's holding company, as applicable,
with respect to capital adequacy), then from time to time the Company will pay
to the Issuing Bank or such Participating Bank, as applicable, such additional
amount or amounts as will compensate the Issuing Bank or such Participating
Bank, as applicable, or the Issuing Bank's or such Participating Bank's holding
company, as applicable, for any such reduction suffered.
(c) A certificate of the Issuing Bank or a Participating Bank
setting forth the amount or amounts necessary to compensate the Issuing Bank or
such Partici pating Bank, as applicable, or its holding company, as the case may
be, as specified in Section 2.07(a) or (b) shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay the Issuing
Bank or such Participating Bank, as applicable, the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of the Issuing Bank or any
Participating Bank to demand compensation pursuant to this Section 2.07 shall
not constitute a waiver of the Issuing Bank's or such Participating Bank's
right, as applicable, to demand such compensation; provided that the Company
shall not be required to compensate the Issuing Bank or a Participating Bank, as
applicable, pursuant to this Section 2.07 for any increased costs or reductions
incurred more than 270 days prior to the date that the Issuing Bank or such
Participating Bank, as applicable, notifies the Company of the Change in Law
giving rise to such increased costs or reductions and of the Issuing Bank's or
such Participating Bank's intention, as applicable, to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.08. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.06(b) and is revoked in accordance therewith), or (d) the assignment of any
Euro dollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 9.04(i),
then, in any such event, the Company shall compensate each Participating Bank
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Participating Bank shall be
deemed to include an amount determined by such Participating Bank to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Participating Bank would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any
Participating Bank setting forth any amount or amounts (and, in reasonable
detail, the calculations relating thereto) that such Participating Bank is
entitled to receive pursuant to this Section 2.08 shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Participating Bank the amount shown as due on any such certificate within
10 days after receipt thereof.
SECTION 2.09. Payments and Computations. (a) The Company shall
make each payment hereunder to the Agent, at its address referred to in Section
9.01, on the day when due without setoff or counterclaim in dollars in same day
funds not later than 12:00 noon (New York City time); provided that payments
pursuant to Sections 2.03, 2.07, 2.08, 2.14 and 9.03 shall be made directly to
the Persons entitled thereto. Any amounts received after such time on any date
may, in the discretion of the Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal, interest, fees or other amounts payable to the
Participating Banks to whom the same are payable at their respective addresses
referred to in Section 9.01.
(b) If, after the Agent has paid to any Participating Bank any
amount pursuant to Section 2.09(a), such payment is rescinded or must otherwise
be returned or must be paid over by the Agent or the Issuing Bank to any Person,
whether pursuant to any bankruptcy or insolvency law, Section 9.08(d) or
otherwise, such Participating Bank shall, at the request of the Agent or the
Issuing Bank, promptly repay to the Agent or the Issuing Bank, as the case may
be, an amount equal to such payment, together with any interest required to be
paid by the Agent or the Issuing Bank with respect to such payment.
(c) If at any time insufficient funds are received by and
available to the Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, towards amounts to
reimburse the Issuing Bank for payments under Section 2.03 for which it has not
been reimbursed by the Company (but excluding any amounts with respect to which
the Issuing Bank has been reimbursed by the Participating Banks or with respect
to which a Participating Bank has failed to reim burse the Issuing Bank), (ii)
second, towards payment of interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(d) Computations of the Alternate Base Rate shall be made by
the Agent on the basis of a year of 360 days (or 365 or 366 days, as the case
may be, at times when the Alternate Base Rate is based on the Prime Rate) for
the actual number of days (including the first day but excluding the last day)
elapsed. Computations of the Adjusted LIBO Rate and the commissions and fees
under Section 2.02 shall be made by the Agent on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) elapsed.
(e) Notwithstanding any provision to the contrary herein, the
Company shall pay interest on all past-due amounts of principal and (to the
fullest extent permitted by law) interest, costs, commissions, fees and expenses
here under, from the date when such amounts became due until paid in full,
payable on demand, at the Default Rate in effect from time to time.
SECTION 2.10. Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due, or whenever the last day of any
Interest Period would otherwise occur, on a day which is not a Business Day,
such payment shall be made, and the last day of such Interest Period shall
occur, on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest, commission or fee, as the
case may be; provided, however, that (a) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (b) any Interest Period pertaining to a
Eurodollar Loan that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last calen
dar month of such Interest Period) shall end on the last Business Day of the
last calendar month of such Interest Period.
SECTION 2.11. Termination; Reduction; Extension; Increase.
(a) Unless previously terminated,
the Commitment and the Letter of Credit shall terminate on the Termination Date.
(b) The Commitment shall terminate upon issuance of the Letter
of Credit and may be terminated by the Company at any time prior to issuance of
the Letter of Credit. The Company may (x) at any time cause the Issuing and
Paying Agent and Depositary to terminate the Letter of Credit by causing the
Issuing and Paying Agent and Depositary to deliver to the Issuing Bank (with a
copy to the Agent) the Letter of Credit and a certificate in accordance with
paragraph (1) of the Letter of Credit or (y) from time to time reduce the Stated
Amount by delivering to the Issuing Bank (with a copy to the Agent) a
certificate in accordance with paragraph 2(b) of the Letter of Credit; provided
that each such reduction pursuant to this Section 2.11(b) shall be in an amount
that is an integral multiple of $5,000,000 and not less than $10,000,000;
provided further that (i) the Company shall not cause the Issuing and Paying
Agent and Depositary to terminate the Letter of Credit so long as any Loans are
outstanding or any Commercial Paper is Outstanding at such time, any amounts are
due pursuant to Section 2.03 or any other amounts are due hereunder and (ii) the
Company shall not reduce the Stated Amount if, after giving effect to any
concurrent prepayment of any Loans in accordance with Section 2.06 and any
concurrent payment of principal due pursuant to Section 2.03, (A) the sum of (1)
the aggregate principal amount of, and accrued interest on, the Loans
outstanding at such time plus (2) the aggregate Face Amount of any Commercial
Paper Outstanding at such time plus (3) the aggregate principal amount of, and
accrued interest on, any disbursements due pursuant to Section 2.03 and any
other amounts due hereunder would exceed (B) the difference of (1) the sum of
the original Stated Amount of the Letter of Credit and the aggregate amount of
all increases of the Stated Amount pursuant to Section 2.11(e) minus (2) the
aggregate amount of all reductions (including the current reduction) of the
Stated Amount pursuant to this Section 2.11.
(c) The Company shall give notice to the Agent of any election
to (i) cause the Issuing and Paying Agent and Depositary to terminate the Letter
of Credit or (ii) reduce the Stated Amount under Section 2.11(b) at least five
Busi ness Days prior to the effective date of such termination or reduction,
specifying the effective date of such election. Promptly following receipt of
any notice, the Agent shall advise the Issuing Bank and the Participating Banks
of the contents thereof. Each notice delivered by the Company pursuant to this
Section 2.11(c) shall be irrevocable; provided that a notice of termination of
the Letter of Credit delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination of the Letter of Credit or reduction of the Stated Amount pursuant
to this Section 2.11 shall be perma nent. Each reduction of the Stated Amount
pursuant to this Section 2.11 shall be applied ratably among the Partici pating
Banks in accordance with their respective Participation Percentages.
(d)(i) Not less than 60 days and not more than 75 days before
the Termination Date at any time in effect (the "Current Termination Date"), the
Company may request (each such request being irrevocable) the Agent and the
Issuing Bank in writing (with copies of such request simultaneously provided to
each Participating Bank) to extend (a) the Termination Date so that it will
occur 364 days after the Current Termination Date and (b) the Letter of Credit
to a date that is 364 days after the Current Termination Date; provided that the
Company may request no more than five such extensions pursuant to this Section
2.11(d). The Agent shall notify each Participating Bank of the receipt of such
request within five Business Days. The Issuing Bank and each Participating Bank
shall, by notice to the Agent given not less than 30 days and not more than 60
days prior to the Current Termination Date, advise the Agent in writing whether
it agrees to such extension. The Agent shall, no later than 30 days prior to the
Current Termination Date, notify the Company (with a copy of such notice to the
Issuing and Paying Agent and Depositary) which of the Agent, the Issuing Bank
and each Participating Bank consents to such request and the conditions to any
such consent (including conditions relating to legal documentation). The
granting of any such consent shall be in the sole and absolute discretion of the
Agent, the Issuing Bank and each Participating Bank, and the election of any
such party to such extension shall not obligate any other such party to agree.
If the Issuing Bank or any Participating Bank shall not have notified the Agent
of its agreement to such extension, it shall be deemed not to have agreed
thereto. In the event there is at least one Participating Bank that has not
agreed to such extension, the Company may at its option revoke its request by
giving notice of such revocation to the Agent not later than three Business Days
prior to the Current Termination Date, in which case no extension of the
Termination Date shall be effected pursuant to such request. The Agent shall
promptly advise the Issuing Bank and the Participating Banks of any such
revocation.
(ii) If (and only if) the Agent, the Issuing Bank and
Participating Banks (including Additional Participating Banks (as defined
below)) with aggregate Participation Percentages which, when multiplied by the
Stated Amount (as reduced only by any irrevocable reductions by the Company
pursuant to Section 2.11(b) and any reductions in previous years pursuant to
this Section 2.11(d) and as increased only by any increases pursuant to Section
2.11(e)), will equal or exceed $200,000,000 shall have agreed to extend the
Termina tion Date (and the Company has not revoked its request pursuant to
subparagraph (i) above), then the Termination Date applicable to all such
parties that have so agreed shall be the day that is 364 days after the Current
Termination Date; provided that (A) no Non-Default Disrup tion shall be
continuing on the Current Termination Date, (B) the Termination Date shall not
be extended with respect to any Loans outstanding at such time, (C) no such
extension shall occur if, after giving effect to such extension, any
Participating Bank shall have a Participation Percentage in excess of 25% and
(D) no such extension shall occur if, after giving effect to such extension and
the following sentence, (1) the sum of (I) the aggregate principal amount of,
and accrued interest on, the Loans outstanding at such time plus (II) the
aggregate Face Amount of any Commercial Paper Outstanding at such time plus
(III) the aggregate principal amount of, and accrued interest on, any disburse
ments due pursuant to Section 2.03 and any other amounts due hereunder would
exceed (2) the difference of (I) the original Stated Amount of the Letter of
Credit minus (II) the aggregate amount of all reductions (including the current
reduction) of the Stated Amount pursuant to Sections 2.11(b) and 2.11(d)(ii). In
the event of such extension, (x) the participation of each Participating Bank
that has not so agreed shall terminate on the Current Termination Date and all
amounts payable hereunder to such Participating Bank shall become due and
payable by the Company (or by the relevant Additional Participating Bank, if
applicable, pursuant to subparagraph (iii) below) on the Current Termination
Date and (y) the Stated Amount shall be irrevocably reduced by an amount equal
to the product of (1) the aggregate Participation Percentages of all such
non-extending Participating Banks (to the extent not assumed by Additional
Participating Banks) and (2) the Stated Amount. Notwithstanding the foregoing,
no extension of the Termination Date shall become effective unless, on the
Current Termination Date, the conditions set forth in Section 4.02 shall be
satisfied (with all references in such Section to the date of such issuance or
increase being deemed to be references to the Current Termination Date), the
Agent shall have received a certificate to that effect dated the Current
Termination Date and executed by a Financial Officer of the Company and the
Company shall have delivered to the Issuing Bank a certificate in accordance
with paragraph 2(b) of the Letter of Credit setting forth any reduction in the
Stated Amount required by the immediately preceding sentence. Upon the
occurrence of any such extension, the Issuing Bank shall deliver to the Issuing
and Paying Agent and Depositary a certificate setting forth the new Termination
Date in accordance with paragraph 5 of the Letter of Credit.
(iii) In the event that the conditions of paragraph (ii) above
have been satisfied, the Company shall have the right on or before the Current
Termination Date, at its own expense, to require any Participating Bank that has
not agreed to extend the Termination Date to transfer and assign without
recourse (except as to title and the absence of Liens created by it) (in
accordance with and subject to the restrictions contained in Section 9.04) all
its interests, rights and obligations under this Agreement to one or more other
banks or other financial institutions (which may include any Participating Bank,
each prior to the Current Termination Date an "Additional Participating Bank");
provided that (x) such Additional Participating Bank, if not already a
Participating Bank hereunder, shall be subject to the approval of the Agent, the
Issuing Bank and the Company (such consent not to be unreasonably withheld), (y)
such assignment shall become effective as of the Current Termination Date and
(z) the Additional Participating Bank shall pay to such Participating Bank that
has not agreed to extend the Termination Date in immediately available funds on
the effective date of such assignment all amounts accrued for its account or
owed to it hereunder. The Agent shall, if requested by the Company, use its
reasonable efforts to assist the Company in finding Additional Participating
Banks.
(e) Subject only to the consent of the Agent and the Issuing
Bank and each Participating Bank whose Alloca tion is to be increased, the
Company may on one or more occasions, upon not less than 30 days' notice to the
Agent and the Issuing Bank, increase the Stated Amount by up to an amount equal
to (i) $50,000,000 minus (ii) the aggregate amount of all prior increases in the
Stated Amount pursuant to this clause (e). Any such increase in the Stated
Amount shall be effected by the execution and delivery of such documentation as
the Agent shall reasonably specify (which documentation, to be effective, need
be executed only by the Company, the Agent and each Participating Bank whose
Allocation is to be increased), and shall be subject to the delivery of such
evidence of the Company's corporate authority, legal opinions and other closing
documentation as the Agent or its counsel shall reasonably request. Upon any
increase in the Stated Amount after the date hereof pursuant to this clause (e),
the Participation Percentage of each Participating Bank immediately following
such increase shall be deemed equal to a percentage that causes the Allocation
of such Participating Bank immediately following such increase to be equal to
the Allocation of such Participating Bank immediately prior to such increase
(or, in the case of any Participating Bank which has consented to an increase in
its Allocation, equal to such increased Allocation). Any increase in the Stated
Amount on the date hereof pursuant to this section 2.11(e) shall be reflected on
Schedule 2.01 hereof.
SECTION 2.12. Evidence of Debt. The Agent shall maintain, in
accordance with its usual practice, an account or accounts evidencing the
indebtedness of the Company resulting from each drawing under the Letter of
Credit and from each Loan made from time to time hereunder and the amounts of
principal and interest payable and paid from time to time hereunder. In any
legal action or proceeding in respect of this Agreement, the entries made in
such account or accounts shall, in the absence of manifest error, be conclusive
evidence of the existence and amounts of the obligations of the Company therein
recorded.
SECTION 2.13. Obligations Absolute. (a) The obligations of the
Company hereunder shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement (as the same may be
amended from time to time) under all circumstances, including the following
circumstances; provided, however, that the same shall not limit, diminish,
preclude or otherwise adversely affect any claim that may be brought by the
Company under Section 2.13(d):
(i) any lack of validity or enforceability of the
Related Documents;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Company in respect of the Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the Related
Documents;
(iii) the existence of any claim, setoff, defense or
other right which the Company may have at any time against the Issuing
and Paying Agent and Depositary or any other beneficiary, or any
transferee, of the Letter of Credit (or any Persons for whom the
Issuing and Paying Agent and Depositary, any such beneficiary or any
such transferee may be acting), the Issuing Bank, any Participating
Bank, or any other Person, whether in connection with this Agreement,
the Transactions, or any unrelated transaction;
(iv) any statement or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by the Issuing Bank under the Letter of
Credit against presentation of a draft or certifi cate which does not
comply with the terms of the Letter of Credit;
(vi) any exchange of, release of or non-perfection of
any interest in any collateral, or any release or amendment or waiver
of or consent to departure from any guarantee, for all or any of the
obligations of the Company in respect of the Letter of Credit;
(vii) the use of the proceeds of any drawing under
the Letter of Credit by the Issuing and Paying Agent and Depositary; or
(viii) any other circumstance or happening whatso
ever, whether or not similar to any of the foregoing.
(b) The obligations of each Participating Bank under Section
2.05 shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement (as the same may be amended from
time to time) under all circumstances, including the following circumstances:
(i) any lack of validity or enforceability of the
Related Documents;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Company in respect of the Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the Related
Documents;
(iii) the existence of any claim, setoff, defense or
other right which the Company may have at any time against the Issuing
and Paying Agent and Depositary or any other beneficiary, or any
transferee, of the Letter of Credit (or any Persons for whom the
Issuing and Paying Agent and Depositary, any such beneficiary or any
such transferee may be acting), the Issuing Bank, any Participating
Bank, or any other Person, whether in connection with this Agreement,
the Transactions, or any unrelated transaction;
(iv) any statement or any other document presented
under the Letter of Credit proving to be forged, fraud ulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by the Issuing Bank under the Letter of
Credit against presentation of a draft or certifi cate which does not
comply with the terms of the Letter of Credit;
(vi) any exchange of, release of or non-perfection of
any interest in any collateral, or any release or amendment or waiver
of or consent to departure from any guarantee, for all or any of the
obligations of the Company in respect of the Letter of Credit;
(vii) the use of the proceeds of any drawing under
the Letter of Credit by the Issuing and Paying Agent and Depositary; or
(viii) any other circumstance or happening whatso
ever, whether or not similar to any of the foregoing.
(c) Without limiting the effect of Section 2.13(a) or (b) or
any other provision hereof, the Company and each Participating Bank agree with
the Issuing Bank that the Issuing Bank is authorized to make payments under the
Letter of Credit upon the presentation of the documents provided for therein and
without regard to whether the Company has failed to fulfill any of its
obligations with respect to any Related Document or other default has occurred
thereunder or hereunder.
(d) As between the Issuing Bank and the Partici pating Banks
on the one hand, and the Company on the other, the Company assumes all risks of
the acts or omissions of the Issuing and Paying Agent and Depositary and any
other beneficiary or transferee of the Letter of Credit with respect to its use
of the Letter of Credit. None of the Issuing Bank, any Participating Bank and
any of their officers or directors shall be liable or responsible for: (i) the
use which may be made of the Letter of Credit or any acts or omissions of the
Issuing and Paying Agent and Depositary and any other beneficiary or transferee
in connection therewith; (ii) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the Issuing Bank against presentation of documents which do not
comply with the terms of the Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (iv) any other circumstances whatsoever in making or failing to make payment
under the Letter of Credit, except that the Company shall have a claim against
the Issuing Bank, and the Issuing Bank shall be liable to the Company, to the
extent of any direct, as opposed to consequential, damages suffered by the
Company which were caused by (A) the Issuing Bank's wilful misconduct or gross
negligence, as determined by a court of competent jurisdiction, in determining
whether documents presented under the Letter of Credit are genuine or comply
with the terms of the Letter of Credit or (B) the Issuing Bank's wilful or
grossly negligent failure, as determined by a court of competent jurisdiction,
to make lawful payment under the Letter of Credit after the presentation to it
by the Issuing and Paying Agent and Depositary of a draft and certificate
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank may accept
original or facsimile (including telecopy) sight drafts and accompanying
certificates presented under the Letter of Credit that appear on their face to
be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
SECTION 2.14. Taxes. (a) Any and all payments by or on account
of any obligation of the Company hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Company shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) the Agent or such Participating
Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount deducted to the
relevant Governmental Authority in accor dance with applicable law.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Company shall indemnify the Agent and each
Participating Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Agent or such
Participating Bank, as the case may be, on or with respect to any payment by or
on account of any obligation of the Company hereunder (inclu ding Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section 2.14) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability (showing in reasonable detail the calculation of such amount)
delivered to the Company by a Participating Bank, or by the Agent on its own
behalf or on behalf of a Participating Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Company to a Governmental Authority, the Company
shall deliver to the Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Agent.
(e) Any Foreign Participating Bank that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Company is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Company (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
appli cable law or reasonably requested by the Company as will permit such
payments to be made without withholding or at a reduced rate.
SECTION 2.15. Interest Elections. (a) Each Loan initially
shall be an ABR Loan. Thereafter, the Company may elect to convert such Loan to
a different type or to continue such Loan and, in the case of a Eurodollar Loan,
may elect Interest Periods therefor, all as provided in this Section 2.15;
provided that (i) no Loan with a principal amount of less than $1,000,000 shall
be converted to, or continued as, a Eurodollar Loan and (ii) there shall not at
any time be more than a total of three Eurodollar Loans outstanding.
(b) To make an election pursuant to this Section 2.15, the
Company shall give notice to the Agent of such election, specifying the
information required pursuant to Section 2.15(c), (i) if such Loan is to be an
ABR Loan, before 12:00 noon (New York City time) at least one Business Day prior
to the effective date of such conversion or continuance or (ii) if such Loan is
to be a Eurodollar Loan, before 12:00 noon (New York City time) at least three
Business Days prior to the effective date of such conversion or continuance
(each an "Interest Election Request"). Each such Interest Election Request shall
be irrevocable.
(c) Each Interest Election Request shall specify the following
information:
(i) the Loan to which such Interest Election Request
applies;
(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Loan is to be an ABR Loan
or a Eurodollar Loan; and
(iv) if the resulting Loan is a Eurodollar Loan, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Loan but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Agent shall advise each Participating Bank of the details thereof
and of such Participating Bank's portion of each resulting Loan.
(e) If the Company fails to deliver a timely Interest Election
Request with respect to a Eurodollar Loan prior to the end of the Interest
Period applicable thereto, then, unless such Loan is repaid as provided herein,
at the end of such Interest Period such Loan shall be converted to an ABR Loan.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Agent, at the request of the Required Banks,
so notifies the Company, then, so long as an Event of Default is continuing (i)
no outstanding Loan may be converted to or continued as a Eurodollar Loan and
(ii) unless repaid, each Eurodollar Loan shall be converted to an ABR Loan at
the end of the Interest Period applicable thereto.
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Participating Banks
that:
SECTION 3.01. Organization; Powers. Each of the Company and
its Restricted Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite power and authority to carry on its business as now conducted. Each of
the Company and its Restricted Subsidiaries is qualified to do business in, and
is in good standing in, every jurisdiction where such qualification is required,
except where the failure to be so qualified or in good standing, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within the Company's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement and the
Related Documents have been duly executed and delivered by the Company and
constitute legal, valid and binding obliga tions of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Company or any of its Restricted Subsidiaries or
any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture or material agree ment or other instrument binding
upon the Company or any of its Restricted Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by the Company or
any of its Restricted Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Company or any of its Restricted
Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Participating Banks the balance
sheets and statements of income, stockholders equity and cash flows of the
Company and its Restricted Subsidiaries on a consolidated basis (i) as of and
for each of the fiscal years ended March 31, 1997 and March 31, 1998 reported on
by Arthur Andersen LLP, independent public accountants, and (ii) as of and for
the fiscal quarter and the portion of the fiscal year ended June 30, 1998,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial condition and results of
operations and cash flows of the Company and its Restricted Subsi diaries on a
consolidated basis as of such dates and for such periods in accordance with
GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii), above.
(b) Since June 30, 1997, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and its
Restricted Subsidiaries has good title to, or valid leasehold interests in, all
its real and personal property material to its business, except for minor
defects in title that do not interfere with its ability to conduct its business
as currently conducted or to utilize such properties for their intended
purposes.
(b) Each of the Company and its Restricted Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, service marks, copyrights,
patents and other intellectual property material to its business, and the use
thereof by the Company and its Restricted Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggre gate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Restricted Subsidiaries (i) that
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve
this Agreement, the Related Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company nor any of its Restricted Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environ mental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agree ments. Each of
the Company and its Restricted Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Company nor any of its Restricted Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 (other than any Restricted Subsidiary which is not subject to
regulation under such statute as a result of an exemption therefrom) or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and its Restricted
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Company or such Restricted
Subsidiary, as appli cable, has set aside on its books adequate reserves in
accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $10,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$10,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Company has disclosed to the
Participating Banks all agreements, instruments and corporate or other
restrictions to which it or any of its Restricted Subsidiaries is subject, and
all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. None of the
reports, financial statements, certificates or other information furnished by or
on behalf of the Company to the Agent or any Partici pating Bank in connection
with the negotiation of this Agreement or delivered hereunder (as modified or
supple mented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Company represents only that such information was prepared in
good faith based upon assump tions believed to be reasonable at the time;
provided further that with respect to information about third parties the
Company represents only that it has no actual knowledge that such information is
inaccurate or misleading.
SECTION 3.12. Federal Reserve Regulations. (a) Neither the
Company nor any of the Restricted
Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit
for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any issuance of the Commercial
Paper will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend
credit to others for the purpose of purchasing or carrying Margin Stock or to
refund indebtedness originally incurred for such purpose, or (ii) in any event,
for any purpose which entails a violation of, or is inconsistent with, the
provisions of the Regulations of the Board, including Regulation U or X.
SECTION 3.13. Year 2000. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the computer
systems of the Company and its Restricted Subsidiaries and (ii) equipment
containing embedded microchips (including systems and equipment supplied by
others or with which the systems of the Company and its Restricted Subsidiaries
interface) and the testing of all such systems and equipment, as so
reprogrammed, will be completed by June 30, 1999. The cost to the Company and
its Restricted Subsidiaries of such reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 to the Company and its
Restricted Subsidiaries (including reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the Company and its Restricted Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Company and its Restricted Subsidiaries to conduct its
business without a Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. This amendment and restatement
of the Original Credit Agreement shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 9.02):
(a) The Agent (or its counsel) shall have received
from each party hereto either (i) a counter part of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to
the Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) The Agent shall have received a favorable written
opinion (addressed to the Agent, the Issuing Bank and the Participating
Banks and dated the Amend ment Effective Date) of Pitney, Hardin, Kipp
& Szuch and of Michael R. Mayberry, deputy chief counsel for the
Company, substantially in the forms of Exhibits E and F, respectively,
and covering such other matters relating to the Company, this
Agreement, the Related Documents or the Transactions as the Required
Banks shall reasonably request. The Company hereby requests such
counsel to deliver such opinion.
(c) The Agent shall have received such documents and
certificates as the Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the
Company, the authorization of the Transactions and any other legal
matters relating to the Company, this Agreement, the Related Documents
or the Transactions, all in form and substance satisfactory to the
Agent and its counsel.
(d) The Agent shall have received a certificate,
dated the Amendment Effective Date and signed by the President, a Vice
President or a Financial Officer of the Company, confirming compliance
with the conditions set forth in Section 4.02(a) and (b).
(e) The Agent shall have received all interest fees
and other amounts accrued under the Original Agreement on or prior to
the Amendment Effective Date (whether or not at the time due and
payable), including, to the extent invoiced, reimbursement or payment
of all out-of-pocket expenses required to be reimbursed or paid by the
Company hereunder.
(f) The Agent and each Participating Bank shall have
received (i) the most recent Borrowing Base Certificate required to
have been delivered pursuant to Section 5.01(a), and (ii) such other
supporting documentation and additional reports with respect to the
Borrowing Base as the Agent shall reasonably request in writing prior
to the date hereof.
(g) The Commercial Paper shall have received a short
term rating from S&P, Moody's and Fitch equiva lent to or greater than
the long term rating on the Issuing Bank's Index Debt, and in no event
less than a rating of "A-1" from S&P, "P-1" from Moody's and "F-1" from
Fitch.
(h) The Commercial Paper shall not be required to be
registered with the Securities and Exchange Commis sion, or any
Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange.
SECTION 4.02. Issuance and Increases. The obli gation of the
Issuing Bank to issue the Letter of Credit and the ability of the Company to
increase the Stated Amount pursuant to Section 2.06(c)(iii) or Section 2.11(e)
are subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Company
set forth in this Agreement shall be true and correct in all material
respects on and as of the date of such issuance or increase, as
applicable.
(b) At the time of and immediately after giving
effect to such issuance or increase, as applicable, no Default shall
have occurred and be continuing.
(c) The Agent shall have received the most recent
Borrowing Base Certificate required to have been delivered pursuant to
Section 5.01(g).
The issuance of the Letter of Credit and each increase of the Stated Amount
pursuant to Section 2.06(c)(iii) or Section 2.11(e) shall be deemed to
constitute a representa tion and warranty by the Company on the date thereof as
to the matters specified in paragraphs (a), (b) and (c) of this Section 4.02.
SECTION 4.03. Each Loan. (a) The obligation of the Issuing
Bank to make any Loan is subject
to the satisfaction of the following conditions:
(i) At the time of such making of such Loan, a
Non-Default Disruption shall have occurred and be continuing.
(ii) At the time of and immediately after giving
effect to such making of such Loan, no Default shall have occurred and
be continuing.
(iii) The Agent shall have received the most recent
Borrowing Base Certificate required to have been delivered pursuant to
Section 5.01(g).
Each such making of a Loan shall be deemed to constitute a representation and
warranty by the Company on the date thereof as to the matters specified in
subsections (i), (ii) and (iii) of this Section 4.03(a).
(b) The obligation of the Issuing Bank to make any Loan
pursuant to Section 2.04 shall be subject to the further condition precedent
that the Agent shall have received from the Company a notice not later than
10:00 a.m. (New York City time) on the Business Day on which such Loan is to be
made specifying the principal amount of such Loan.
ARTICLE V
Affirmative Covenants
Until the Commitment and the Letter of Credit have expired or
been terminated and the principal of and interest on each Loan and all fees and
other amounts payable here under shall have been paid in full, the Company
covenants and agrees with the Participating Banks that:
SECTION 5.01. Financial Statements and Other Information.
The Company will furnish to the
Agent and each Participating Bank:
(a) within 90 days after the end of each fiscal year
of the Company, (i) a copy of the audited consoli dated balance sheet
of the Company and its Restricted Subsidiaries on a consolidated basis
and the related statements of operations, stockholders' equity and cash
flows, as of the end of and for such year, setting forth in each case
in comparative form the figures as of the end of and for the previous
fiscal year, all reported on by Arthur Andersen LLP or other
independent public accountants of recognized national standing (without
a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of
the Company and its Restricted Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, and (ii) a letter from such
independent public accountants certifying that during the course of
their audit nothing came to their atten tion that would indicate that
the Borrowing Base Certificate, if any, relating to the last day of
such fiscal year is inaccurate in any material respect;
(b) within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, a copy of the
unaudited consolidated balance sheet of the Company and its Restricted
Subsidiaries on a consolidated basis and the related statements of
operations, stockholders' equity and cash flows, as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of the Company and
its Restricted Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes;
(c) concurrently with any delivery of financial
statements under clause (a) or (b), above, a certifi cate of a
Financial Officer (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto; (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Section 6.09; (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate; and (iv) setting
forth the aggregate amount of all Warehouse Facilities and the
aggregate portions thereof provided on a committed and on an
uncommitted basis;
(d) concurrently with any delivery of financial
statements under clause (a), above, a certificate of the accounting
firm that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited
to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements
and other materials filed by the Company or any Restricted Subsidiary
with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission,
or with any national securities exchange, as the case may be;
(f) promptly following any request therefor, such
other information regarding the operations, business affairs and
financial condition of the Company or any Restricted Subsidiary, or
compliance with the terms of this Agreement, as the Agent, on its own
behalf or on behalf of any Participating Bank, may reasonably request;
(g) unless the Company's Index Debt is Investment
Grade, not later than 12:00 noon (New York City time) on the fifteenth
Business Day of each month, (i) a Borrowing Base Certificate showing
the Borrowing Base as of the close of business on the last day of the
immediately preceding month, each such certificate to be certified by a
Financial Officer as complete and correct in all material respects, and
(ii) such other supporting documentation and additional reports with
respect to the Borrowing Base as the Agent shall from time to time
reasonably request; and
(h) immediately upon (i) any revaluation, or any
event that under GAAP would require a revaluation, in either case
resulting from a change in assumptions, performance or valuation
methodology or any other circumstance not arising in the ordinary
course of the Company's business, of the Excess Spread Receivables on
an aggregate basis on a balance sheet required to be delivered under
clause (a) or (b), above, a certificate of a Financial Officer
describing such revaluation and the reasons therefor and (ii) notice of
any change of the rating of the Company's Index Debt.
SECTION 5.02. Notices of Material Events. The Company will
furnish to the Agent and each
Participating Bank prompt notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Govern mental Authority
against or affecting the Company or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Company and its
Restricted Subsidiaries in an aggregate amount exceeding $5,000,000;
(d) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect; and
(e) the occurrence of any Non-Default Disruption.
Each notice delivered under this Section 5.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of the Company
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of its Restricted Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing shall not
prohibit (a) any merger, consolidation, liquidation or dissolution permitted
under Section 6.03 or (b) any Asset Disposition permitted under Section 6.04.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of its Restricted Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could reasonably be expected to
result in a Material Adverse Effect before the same shall become delinquent or
in default, except where (a) the validity or amount thereof is being contested
in good faith by appropriate proceedings, (b) the Company or such Restricted
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of its Restricted Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.
SECTION 5.06. Books and Records; Inspection and Audit Rights.
(a) The Company will, and will cause each of its Restricted Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. The Company will, and will cause each of its Restricted Subsidiaries
to, permit any representatives designated by the Agent or any Participating
Bank, upon reasonable prior notice, to visit and inspect its prop erties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with officers of the Company and its independent
accountants, all at such reasonable times and as often as reasonably requested;
provided that any such discussions with such independent accountants pursuant to
this paragraph shall be held no more than once in any fiscal year unless (and
shall be at the sole cost and expense of the Company if) a Default shall have
occurred and be continuing. If the Company so elects, on any visit or inspection
or during any discussion pursuant to this Section 5.06, such designated
representatives shall be accompanied by one or more representatives of the
Company.
(b) At any time upon the request of the Agent made with
reasonable prior notice, the Company will permit the Agent or professionals
(including investment bankers, consultants, accountants, lawyers and appraisers)
retained by the Agent to conduct evaluations and appraisals of (i) the Company's
practices in the computation of the Borrowing Base, and (ii) the assets included
in the Borrowing Base, and will pay the reasonable fees and expenses in
connection therewith; provided that such persons shall be entitled to conduct
such evaluations and appraisals only if (A) a Default has occurred and is
continuing or (B) the Agent, or the Required Banks through the Agent, determines
that a Material Adverse Effect has occurred since the Effective Date.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Restricted Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Purpose. The Letter of Credit will be issued
only to support the issuance from
time to time of Commercial Paper to provide for the Company's financing
requirements.
SECTION 5.09. Related Documents. The Company shall comply
in all material respects with the
terms of the Related Documents.
SECTION 5.10. Reimbursement Account. At any time after any
Commercial Paper matures and a disbursement is to be made under the Letter of
Credit in connection therewith, prior to any subsequent issuances of Commercial
Paper, the Company shall deposit in the Reimbursement Account (as defined in the
Issuing and Paying Agency and Depositary Agreement) an amount, to be applied to
the reimbursement of such disbursement or any related Loan, equal to the amount
by which the Face Amount of such Commercial Paper exceeds the proceeds of such
Commercial Paper to be deposited in the Reimbursement Account.
ARTICLE VI
Negative Covenants
Until the Commitment and the Letter of Credit have expired or
been terminated and the principal of and interest on each Loan and all fees and
other amounts payable here under have been paid in full, the Company covenants
and agrees with the Participating Banks that:
SECTION 6.01. Limitation on Indebtedness and Preferred Stock
of Restricted Subsidiaries. The Company will not permit any Restricted
Subsidiary to Incur, or permit to exist with respect to any Restricted
Subsidiary, directly or indirectly, any Indebtedness or Preferred Stock except:
(a) Permitted Warehouse Indebtedness;
(b) Indebtedness or Preferred Stock issued to and
held by the Company or a Wholly Owned Subsidiary; provided, however,
that any subsequent issuance or transfer of any Capital Stock which
results in any such Wholly Owned Subsidiary ceasing to be a Wholly
Owned Subsidiary or any subsequent transfer of such Indebtedness or
Preferred Stock (other than to the Company or a Wholly Owned
Subsidiary) shall be deemed, in each case, to constitute the issuance
of Indebted ness or Preferred Stock by the issuer thereof;
(c) Indebtedness or Preferred Stock of a Subsidiary
Incurred and outstanding on or prior to the date on which such
Subsidiary was acquired by the Company (other than Indebtedness or
Preferred Stock Incurred in connection with, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by the Company);
(d) Indebtedness or Preferred Stock outstanding on
the date hereof and set forth in Schedule 6.01 (other than Indebtedness
described in clause (a), (b) or (c) of this Section 6.01); and
(e) Refinancing Indebtedness Incurred in respect of
Indebtedness or Preferred Stock referred to in clause (c) or (d) of
this Section or this clause (e); provided, however, that to the extent
such Refinancing Indebtedness directly or indirectly Refinances
Indebtedness or Preferred Stock of a Subsidiary described in clause (c)
of this Section, such Refinancing Indebtedness shall be Incurred only
by such Subsidiary.
SECTION 6.02. Limitation on Liens. The Company will not, and
will not permit any Subsidiary to, Incur or permit to exist any Lien on any of
its properties (including Capital Stock of a Restricted Subsidiary), whether
owned on the date hereof or thereafter acquired, or on any income or revenues or
rights in respect of any thereof, or assign or transfer any income or revenues
or rights in respect thereof except:
(a) pledges or deposits by such Person under worker's
compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States
government bonds to secure surety or appeal bonds to which such Person
is a party, or deposits as security for contested taxes or import
duties or for the payment of rent, in each case Incurred in the
ordinary course of business;
(b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens, in each case for sums not yet due
or being contested in good faith by appropriate proceedings or other
Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be proceeding with an appeal or
other proceedings for review;
(c) Liens for property taxes not yet subject to
penalties for non-payment or which are being contested in good faith
and by appropriate proceedings;
(d) Liens in favor of issuers of surety bonds or
letters of credit issued pursuant to the request of and for the account
of such Person in the ordinary course of its business; provided,
however, that such letters of credit do not constitute Indebtedness;
(e) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses, rights
of way, sewers, electric lines, tele graph and telephone lines and
other similar purposes, or zoning or other restrictions as to the use
of real property or Liens incidental to the conduct of the business of
such Person or to the ownership of its properties which were not
Incurred in connection with Indebtedness and which do not in the
aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such
Person;
(f) Liens securing Indebtedness Incurred to finance
the construction, purchase or lease of, or repairs, improvements or
additions to, property, plant or equipment of such Person (and in any
event excluding Capital Stock of another Person); provided, however,
that the Lien may not extend to any other asset owned by such Person or
any of its Subsidiaries at the time the Lien is Incurred, and the
Indebtedness secured by the Lien may not be Incurred more than 180 days
after the later of the acquisition, completion of construc tion,
repair, improvement, addition or commencement of full operation of the
property subject to the Lien;
(g) Liens on Performance Deposits and any Receivables
or other assets referred to in clause (ii)(a) of the definition of
Permitted Warehouse Indebtedness, in each case owned by the Company or
a Restricted Subsidiary, as the case may be, to secure Permitted
Warehouse Indebtedness;
(h) Liens on Excess Spread Receivables (or on the
Capital Stock of any Subsidiary of such Person substan tially all the
assets of which are Excess Spread Receivables); provided, however, that
(i)(A) any such Liens shall not pertain to any Excess Spread Receivable
existing on the date hereof, which, if created there after, would have
been an Eligible Excess Spread Receivable unless such Excess Spread
Receivable was subject to a Lien on such date created by the Company in
respect of the financing thereof (a "predecessor Lien"); provided
further, however, that in the case of any such Liens (a "subsequent
Lien") on Excess Spread Receivables which were subject to predecessor
Liens, the sum of (x) the aggregate book value of subordinated
interests created and retained by the Company or its Restricted
Subsidiaries as a result of the sale or financing associated with such
subsequent Liens and (y) the aggregate book value of any Excess Spread
Receivables which were subject to predecessor Liens but which are then
no longer subject to any Lien (other than permitted Liens described
under another clause of this Section) shall equal at least the
aggregate book value at such time of all such Excess Spread Receiv
ables which are then subject to subsequent Liens, as calculated
immediately prior to the creation of each such subsequent Lien,
multiplied by a fraction the numerator of which is the aggregate book
value of the subordinated interests associated with all predecessor
Liens on the date hereof, and the denominator of which is the sum of
(x) such aggregate book value of such subordinated interests and (y)
the outstanding balance on the date hereof, of the related senior
interests; and (B) any such Lien on any Eligible Excess Spread
Receivables shall extend to Eligible Excess Spread Receivables
representing no more than 50% of the amount of Eligible Excess Spread
Receivables shown on the balance sheet of the Company and its
Restricted Subsidiaries on a consolidated basis, determined and
consolidated in accordance with GAAP, as of the later of (x) the date
hereof and (y) the end of the most recent fiscal quarter of the Company
prior to the creation of such Lien for which financial statements are
available; and (ii) for purposes of this clause (h), any Lien on the
Capital Stock of any Person substantially all the assets of which are
Excess Spread Receivables shall be treated as a Lien on the Excess
Spread Receivables of such Person;
(i) Liens existing on the date hereof and listed on
Schedule 6.02;
(j) Liens on property or shares of Capital Stock of
another Person at the time such other Person becomes a Subsidiary of
such Person; provided, however, that such Liens are not created,
incurred or assumed in connection with, or in contemplation of, such
other Person becoming such a Subsidiary; provided further, however,
that such Lien may not extend to any other property owned by such
Person or any of its Subsidiaries;
(k) Liens on property at the time such Person or any
of its Subsidiaries acquires the property, including any acquisition by
means of a merger or consolidation with or into such Person or a
Subsidiary of such Person; provided, however, that such Liens are not
created, incurred or assumed in connection with, or in contemplation
of, such acquisition; provided further, however, that the Liens may not
extend to any other property owned by such Person or any of its
Subsidiaries;
(l) Liens securing Indebtedness or other obligations
of a Subsidiary of such Person owing to such Person or a Restricted
Subsidiary of such Person;
(m) Liens (other than on any Excess Spread
Receivables) securing Hedging Agreements; and
(n) Liens to secure any Refinancing (or successive
Refinancings) as a whole, or in part, of any Indebted ness secured by
any Lien referred to in the foregoing clauses (f), (i), (j) and (k);
provided, however, that (i) such new Lien shall be limited to all or
part of the same property that secured the original Indebted ness (plus
improvements to or on such property), and (ii) the Indebtedness secured
by such Lien at such time is not increased to any amount greater than
the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under the foregoing
clauses (f), (i), (j) or (k), as the case may be, at the time the
original Lien became a Lien permitted by this Section, and (B) an
amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or
replacement.
Notwithstanding the foregoing, clauses (f), (j) or (k), above,
will be deemed to exclude any Lien to the extent such Lien applies to any
Additional Assets acquired directly or indirectly with Net Available Cash
pursuant to Section 6.04.
SECTION 6.03. Limitation on Mergers and Consolidations. The
Company will not consolidate with or merge with or into, or convey, transfer or
lease, in one transaction or a series of related transactions, all or
substantially all its assets to, any Person, unless:
(a) the Company shall be the surviving Person of any
such transaction;
(b) immediately after giving effect to such
transaction, no Default shall have occurred and be continuing;
(c) immediately after giving effect to such
transaction, the successor company shall have Consolidated Net Worth in
an amount which is not less than Consolidated Net Worth immediately
prior to such transaction; and
(d) the Company shall have delivered to the Agent a
certificate, signed by two executive officers, and an opinion of
counsel, each stating that such consolidation, merger or transfer
complies with this Agreement.
Notwithstanding the foregoing clauses (b) and (c), any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company or a Wholly Owned Subsidiary.
SECTION 6.04. Limitation on Sales of Assets and Subsidiary
Stock. The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, consummate any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolida tion or similar transaction (each referred to for the
purposes of this definition as an "Asset Disposition"), of:
(a) any shares of Capital Stock of a Restricted
Subsidiary (other than directors' qualifying shares or shares required
by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary);
(b) all or substantially all the assets of any
division or line of business of the Company or any Restricted
Subsidiary;
(c) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary;
(d) any Investment in a Strategic Alliance Client; or
(e) any Excess Spread Receivables;
other than, in the case of (a), (b), (c), (d) and (e), above, (i) an Asset
Disposition by a Restricted Subsidiary to the Company or by the Company or a
Restricted Subsidiary to a Restricted Subsidiary or (ii) an Asset Disposition
(including related assets) for an aggregate consideration of $1,000,000 or less,
unless (A) the Company or such Restricted Subsidiary receives consideration at
the time of such Asset Disposition at least equal to the fair market value
(including the value of all non-cash consideration), as determined in good faith
by the Board of Directors, of the shares and assets subject to such Asset
Disposition and at least 85% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash or cash
equivalents, and (B) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Restricted Subsidiary, as
the case may be) (x) to the extent the Company elects, to acquire Additional
Assets, either directly or through a Restricted Subsidiary, within 180 days from
the later of the date of such Asset Disposition or the receipt of such Net
Available Cash, and (y) to the extent of the balance of such Net Available Cash
after application in accordance with clause (x), to permanently reduce the
Commitments (as defined in the Credit Agreement) in accordance with Section 2.07
of the Credit Agreement and to make any prepayments required by such Section in
connection with such reduction pursuant to the Credit Agreement.
Notwithstanding the foregoing provisions of this Section, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accor dance with this Section except to the extent that the
aggregate Net Available Cash from all Asset Dispositions which has not been
applied in accordance with this paragraph exceeds $10,000,000. Pending
application of Net Available Cash pursuant to this Section, such Net Available
Cash shall be applied (i) to prepay outstanding Loans under and as defined in
the Credit Agreement and (ii) to the extent of the excess of Net Available Cash
over the principal amount of outstanding Loans (as defined in the Credit
Agreement), in Permitted Investments.
SECTION 6.05. Limitation on Loans and Invest ments. (a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person that
was not a Wholly Owned Subsidiary prior to such merger) any Capital Stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(i) Permitted Investments;
(ii) Investments by the Company or any Restricted
Subsidiary in a Restricted Subsidiary or a Person that will, upon the
making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a
Related Business;
(iii) a Strategic Alliance Client to the extent such
Investment consists of options, warrants or other securities that are
convertible or exchangeable for equity securities of such Strategic
Alliance Client and is received by the Company or a Restricted
Subsidiary without the payment of any consideration other than the
concurrent provision by the Company or such Restricted Subsidiary to
such Strategic Alliance Client of finan cing or asset securitization
expertise on terms deter mined by the Company to be fair and reasonable
to the Company or such Restricted Subsidiary from a financial point of
view without taking into consideration any value that may inhere in
such option, warrant or convertible or exchangeable security;
(iv) another Person if as a result of such Invest
ment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the
Company or a Restricted Subsidiary; provided, however, that such
Person's primary business is a Related Business;
(v) receivables owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of
business and payable or discharge able in accordance with customary
trade terms;
(vi) payroll, travel and similar advances to cover
matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the
ordinary course of business;
(vii) loans or advances to employees in the ordinary
course of business in accordance with the past practices of the Company
or such Restricted Subsidiary, but in any event not to exceed
$10,000,000 in aggregate principal amount outstanding at any one time;
(viii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and
owing to the Company or any Restricted Subsidiary or in satisfaction of
judgments;
(ix) any Person to the extent such Investment
represents the non-cash portion of the consideration received for an
Asset Disposition;
(x) Receivables;
(xi) a Strategic Alliance Client to the extent such
Investment consists of (A) Indebtedness of such Strategic Alliance
Client that is secured by Receivables owned by such Strategic Alliance
Client in an aggregate principal amount at any time outstanding not to
exceed the aggregate market value of such Receivables; provided,
however, that such Receivables are eligible to be characterized under
GAAP as held for sale on the balance sheet of such Strategic Alliance
Client and such Indebtedness has not been outstanding in excess of 364
days; and (B) Indebtedness of such Strategic Alliance Client that is
secured by Excess Spread Receivables owned by such Strategic Alliance
Client; provided, however, that such Excess Spread Receivables are
attributed solely to one or more "pools" of Receivables that were
securitized in one or more transactions in which the Company or its
Restricted Subsidiaries either acted as underwriters or placement agent
or provided all or a portion of the financing for such "pool" prior to
such securitization; and
(xii) Excess Spread Receivables; provided, however,
that such Excess Spread Receivables represent interests in one or more
"pools" of Receivables that were securitized in one or more
transactions in which the Company or its Restricted Subsidiaries acted
as sponsor, underwriter or placement agent or provided all or a portion
of the financing for such "pool" prior to such securitization.
(b) The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Company or any Restricted Subsidiary or any Strategic
Alliance Client is exposed in the conduct of its business or the management of
its liabilities; provided that, in the case of Hedging Agreements relating to a
Strategic Alliance Client, (i) such Hedging Agreements are not for speculative
purposes of the Company or any Restricted Subsidiary, and (ii) such Strategic
Alliance Client is contractually obligated to make the Company or such
Restricted Subsidiary whole for any loss suffered thereby in connection
therewith.
SECTION 6.06. Limitation on Affiliate Trans actions. (a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates (an "Affiliate Transaction")
unless the terms thereof (i) are no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an Affiliate,
(ii) if such Affiliate Transaction involves an amount in excess of $2,000,000
(or the equiva lent amount in any foreign currency) (A) are set forth in writing
and (B) have been approved by a majority of the members of the Board of
Directors having no personal stake in such Affiliate Transaction and (iii) if
such Affiliate Transaction involves an amount in excess of $10,000,000 (or the
equivalent amount in any foreign currency), have been determined by a nationally
recognized investment banking firm to be fair, from a financial standpoint, to
the Company and its Restricted Subsidiaries.
(b) The provisions of Section 6.06(a) shall not prohibit (i)
any Permitted Investment, (ii) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by
the Board of Directors, (iii) the grant of stock options or similar rights to
employees and directors of the Company pursuant to plans approved by the Board
of Directors, (iv) loans or advances to employees in the ordinary course of
business in accordance with the past practices of the Company or its Restricted
Subsidiaries, but in any event not to exceed $10,000,000 (or the equivalent
amount in any foreign currency) in aggregate principal amount outstanding at any
one time, (v) the payment of reasonable fees to directors of the Company and its
Restricted Subsidiaries who are not employees of the Company or its Restricted
Subsidiaries, (vi) any Affiliate Transaction between the Company and a
Restricted Subsidiary or between consolidated Restricted Subsidiaries (in each
case other than any Restricted Subsidiary that is an "affiliate" (as such term
is defined in the Exchange Act) of any Affiliate (other than any Restricted
Subsidiary) of the Company and (vii) transactions pursuant to any agreement as
in existence as of the date hereof and set forth in Schedule 6.06 between the
Company or its Restricted Subsidiaries and Continental Grain or one of its
subsidiaries.
SECTION 6.07. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Company or any Restricted Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets
or (b) the ability of any Restricted Subsidiary to pay dividends or make any
other distributions on its Capital Stock to the Company or a Restricted
Subsidiary or pay any Indebtedness owed to the Company, to make any loans or
advances to the Company or a Restricted Subsidiary or to Guarantee Indebtedness
of or to transfer any of its property or assets to the Company or any other
Restricted Subsidiary that owns Capital Stock therein; provided that the
foregoing shall not apply to (i) restrictions and conditions imposed by law or
by this Agreement; (ii) any encumbrance or restriction pursuant to an agreement
in effect at or entered into on the date hereof identified on Schedule 6.07 (but
shall apply to any extension or renewal of, or any amendment or modifica tion
expanding the scope of, any such restriction or condition); (iii) any
encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement applicable to such Restricted Subsidiary on or prior to the date on
which such Restricted Subsidiary was acquired by the Company (other than an
agreement entered into in connection with, or in anticipation of, the
transaction or series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by the Company) and
outstanding on such date; (iv) any such encumbrance or restriction consisting of
customary non-assignment provisions in leases governing leasehold interests to
the extent such provisions restrict the transfer of the lease or the property
leased thereunder; (v) in the case of a Restricted Subsidiary transferring any
of its property or assets to the Company, restrictions contained in security
agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the
extent such restrictions restrict the transfer of the property subject to such
security agreements or mortgages; and (vi) any restriction with respect to a
Restricted Subsidiary imposed pursuant to an agreement entered into for the sale
or disposition of all or substantially all the Capital Stock or assets of such
Restricted Subsidiary pending the closing of such sale or disposition; and
provided further that clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restric tions or conditions
apply only to the property or assets securing such Indebtedness.
SECTION 6.08. Limitation on Investment Company Status. The
Company will not take any action, or otherwise permit to exist any circumstance,
that would require the Company to register as an "investment company" under the
Investment Company Act of 1940.
SECTION 6.09. Financial Covenants. (a) Consoli- dated Net
Worth shall not at any time be less than (i) $400,000,000 plus (ii) an amount,
for each fiscal quarter which begins after June 30, 1997 and ends prior to the
date for which compliance with this Section 6.09 is being determined, equal to
the sum of (A) 75% of the aggregate of positive Consolidated Net Income (without
deduction for quarterly losses) and (B) 50% of Equity Net Proceeds.
(b) The Consolidated Leverage Ratio will not at any time
exceed 2.50 to 1.00.
(c) The Consolidated Interest Coverage Ratio for the Rolling
Period shall at no time be less
than 1.50 to 1.00.
SECTION 6.10. Limitation on Business of the Company. The
Company will not engage at any time in any business or business activity other
than the business currently conducted by it and Related Business.
SECTION 6.11. Commercial Paper. (a) The Company shall not
issue Commercial Paper (i) which will mature later than two days prior to the
Termination Date, (ii) if as a result the Stated Amount in effect after giving
effect to the application of the proceeds of such issuance and the application
of funds made available at such time by the Company in the Reimbursement Account
(as defined in the Issuing and Paying Agency and Depositary Agreement) for the
reimbursement of principal of amounts due from the Company to the Issuing Bank
pursuant to Section 2.03 would be less than the aggregate Face Amount of all
Commercial Paper Outstanding after giving effect to such issuance, (iii) during
the continuance of any Non-Default Disruption or Event of Default, (iv) other
than in accordance with the terms of the Issuing and Paying Agency and
Depositary Agreement or (v) unless the condition specified in paragraph (c) of
Section 4.02 is satisfied at the time of such issuance.
(b) The Company shall not issue Commercial Paper or use the
proceeds thereof in any manner that would violate the Securities Act of 1933, as
amended, or any other applicable law or regulation.
(c) The Company shall not amend the offering documents with
respect to the Commercial Paper without the prior written consent of the Issuing
Bank, which consent shall not be unreasonably withheld.
(d) The Company shall not issue any promissory note or other
obligation which could generally or commonly be regarded as commercial paper,
unless such promissory note or other obligation is in such form, and bears such
identification and is issued under such circumstances (with such form,
identification and circumstances to be acceptable to the Issuing Bank), as to
avoid confusion in the hands of the holder thereof or the investing public
between such promissory note or other obligation and the Commercial Paper and so
as not to indicate or imply that such promissory note or other obligation is
entitled to the benefits of the Letter of Credit.
SECTION 6.12. Issuing and Paying Agent and Depositary. The
Company shall not appoint a successor issuing and paying agent and depositary
with respect to the Commercial Paper without the prior written consent of the
Issuing Bank and the Agent, which consents shall not be unreasonably withheld.
SECTION 6.13. Related Documents. The Company shall not amend
the terms of the Related
Documents without the consent of the Issuing Bank and the Agent, which consents
shall not be unreasonably
withheld.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Company shall fail to pay (i) any amount
under Section 2.03 or (ii) any principal of any Loan when and as the
same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise;
(b) the Company shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount referred to
in clause (a) of this Article VII) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three days;
(c) any representation or warranty made or deemed
made by or on behalf of the Company or any Restricted Subsidiary in or
in connection with this Agreement or the Related Documents or any
amendment or modification hereof or thereof or waiver hereunder or
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or
the Related Documents or any amendment or modification hereof or
thereof or waiver hereunder or thereunder, shall prove to have been
materially incorrect when made or deemed made;
(d) the Company shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Company's existence) or 5.08 or in Article VI;
(e) the Company shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article) or any
Related Document, and such failure shall continue unremedied for a
period of 30 days after notice thereof from the Agent to the Company
(which notice will be given at the request of any Participating Bank);
(f) the Company or any Restricted Subsidiary shall
fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or
that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebted
ness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the permitted voluntary
sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or
an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Restricted Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Restricted
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) the Company or any Restricted Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or here
after in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Restricted
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Company or any Restricted Subsidiary shall
become unable, admit in writing or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in
an aggregate amount not covered by insurance in excess of $5,000,000
(or the equivalent amount in any foreign currency) shall be rendered
against the Company, any Restricted Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 60
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Company or any Restricted
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the
opinion of the Required Banks, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in
liability of the Company and its Restricted Subsidiaries in an
aggregate amount exceeding (i) $5,000,000 for any fiscal year of the
Company or (ii) $10,000,000 for all periods;
(m) a Change in Control shall occur; or
(n) any provision of this Agreement or any Related
Document to which the Company is or is to be a party shall at any time
for any reason cease to be valid and binding on the Company, or shall
be declared to be null and void, or the Company shall deny that it has
any further liability or obligation hereunder or thereunder;
then the Agent and the Issuing Bank shall notify the Issuing and Paying Agent
and Depositary of the occurrence and continuance of such Event of Default (and
thereafter of the cessation of any such Event of Default), and in every such
event (other than an event with respect to the Company described in clause (h)
or (i) of this Article), and at any time thereafter during the continuance of
such event, the Agent may, and at the request of the Required Banks shall, take
any or all of the following actions, at the same or different times: (i) if the
Letter of Credit shall not have been issued, by notice to the Issuing Bank and
the Company, declare the Commitment to be terminated, whereupon the same shall
forthwith terminate or (ii) if the Letter of Credit shall have been issued, (A)
by notice to the Company, declare any disbursements by the Issuing Bank that
have not yet been reimbursed by or on behalf of the Company and any Loans then
outstanding to be due and payable in whole (or in part, in which case such
disbursements and any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon such disbursements
and the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Company
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company, and (B) demand the deposit of cash collateral
pursuant to this Article VII, in which case the Company shall immediately
deposit in an account with the Agent an amount in cash (or a cash equivalent
that is satisfactory in form and substance to the Required Banks) equal to the
sum of (x) the Stated Amount at such time, (y) the aggregate amount of all
disbursements by the Issuing Bank that have not yet been reimbursed by or on
behalf of the Company at such time and (z) the aggregate principal amount of any
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Company accrued hereunder (collectively, the
"Exposure"); and in the case of any event with respect to the Company described
in clause (h) or (i) of this Article, the Commitment shall automatically
terminate or any disbursements then outstanding and the principal of any Loans
then outstanding, together with accrued interest thereon, shall automatically
become due and payable and the obligation to deposit such cash collateral shall
become effective immediately and such deposit shall become immediately due and
payable, as applicable, and all fees and other obligations of the Company
accrued hereunder, shall automatically become due and payable, in each case
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Company. Such deposit of cash collateral shall be held
by the Agent as collateral for the payment and performance of the obligations of
the Company under this Agreement. The Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Agent and at the
Company's risk and expense (except as a result of acts or omissions constituting
the wilful misconduct or gross negligence of the Agent), such deposits shall not
bear interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall be applied by the Agent to
reimburse the Issuing Bank for disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Company with respect to the Exposure. If
the Company is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Company within three Business
Days after all Events of Default have been cured or waived. After the occurrence
and during the continuance of any Event of Default, the Issuing Bank may direct
the Issuing and Paying Agent and Depositary in writing to make a drawing under
the Letter of Credit in the amount required to pay in full all Outstanding
Commercial Paper upon maturity and deposit such amount in the Note Redemption
Account (as defined in the Issuing and Paying Agency and Depositary Agreement)
and apply such amount in accordance with the terms of the Issuing and Paying
Agency and Depositary Agreement. Notwithstanding the foregoing, the Issuing
Bank's obligations under the Letter of Credit with respect to any Commercial
Paper Outstanding at the time that the Agent or the Issuing Bank notifies the
Issuing and Paying Agent and Depositary of any Event of Default shall not be
limited in any way by such Event of Default.
ARTICLE VIII
The Agent; the Participating Banks;
and the Issuing Bank
Subject to the further provisions hereof, each of the Issuing
Bank and the Participating Banks hereby irrevocably appoints the Agent as its
agent and authorizes the Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.
The bank serving as the Agent and the bank serving as Issuing
Bank hereunder shall have the same rights and powers in their capacity as
Participating Banks as any other Participating Bank and may exercise the same as
though they were not the Agent and the Issuing Bank, respectively, and such
banks and their Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any Restricted Subsidiary or
other Affiliate thereof as if they were not the Agent or Issuing Bank,
respectively, hereunder.
The Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agent is required to exercise in writing by the
Required Banks (or such other number or percentage of the Participating Banks as
shall be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth herein, the Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Restricted Subsidiaries that is
communicated to or obtained by the bank serving as Agent or any of its
Affiliates in any capacity. The Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Banks (or
such other number or percentage of the Participating Banks as shall be necessary
under the circumstances as provided in Section 9.02) or in the absence of its
own gross negligence or wilful misconduct. The Agent shall be deemed not to have
knowledge of any Default unless and until notice thereof is given to the Agent
by the Company or a Participating Bank, and the Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any Related
Document, (ii) the contents of any certificate, report or other document
delivered hereunder, under any Related Document or in connection therewith,
(iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or under any Related Document, (iv) the
validity, enforce ability, effectiveness or genuineness of this Agreement, any
Related Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Agent.
The Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who shall be counsel for the
Company, internal counsel for the Agent or a Participating Bank, or a nationally
recognized law firm), nationally recognized independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed (after
consultation with the Company) by the Agent. The Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facility provided for herein as
well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent
as provided in this paragraph, the Agent may resign at any time by notifying the
Participating Banks, the Issuing Bank and the Company. Upon any such
resignation, the Required Banks shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Banks and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Participating Banks and Issuing Bank, appoint a successor Agent
which shall be a bank. Upon the acceptance of its appointment as Agent hereunder
by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Company to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such
successor. After the Agent's resignation hereunder, the provisions of this
Article VIII and Section 9.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as Agent.
Each Participating Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Participating
Bank and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Participating Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Participating Bank and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
All notices received by the Issuing Bank pursuant to this
Agreement or any other Related Document (other than the Letter of Credit) shall
be promptly delivered to the Agent for distribution to the Participating Banks.
The Issuing Bank shall not amend or waive any provision or
consent to the amendment or waiver of any Related Document without the consent
of the Required Banks; provided, however, that any waiver or amendment of any
provision of the Letter of Credit or consent to the amendment or waiver of the
Letter of Credit shall require the written consent of all of the Participating
Banks.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at ContiFinancial
Corporation, 277 Park Avenue, New York,
New York 10172, Attention of Chief Counsel and of Director of
Corporate Finance (Telecopy No. (212)
207-2935);
(b) if to the Agent, to Credit Suisse First Boston,
Eleven Madison Avenue, New York, New York 10010 (Telecopy No. (212)
325-8304), Attention of Jonathan Satran;
(c) if to the Issuing Bank, to it at Dresdner Bank
AG, New York Branch, 75 Wall Street, New York, New York 10005,
Attention of Claudia Zoy (Telecopy No. (212) 429-2130); and
(d) if to any Participating Bank, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communica tions given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Agent, the Issuing Bank or any Participating Bank in exercising any right or
power here under shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agent, the Issuing Bank and the Participating Banks
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agree ment or
consent to any departure by the Company therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section
9.02, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, neither the making of a Loan nor issuance of the Letter of Credit
shall be construed as a waiver of any Default, regardless of whether the Agent,
the Issuing Bank or any Participating Bank may have had notice or knowledge of
such Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Company and the Required Banks or by the Company and
the Agent with the consent of the Required Banks; provided that no such
agreement shall (i) increase the Participation Percentage of any Participating
Bank without the written consent of such Participating Bank, (ii) reduce or
forgive any amount due pursuant to Section 2.03 or the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Participating Bank, (iii)
postpone the scheduled date of payment of any amount due pursuant to Section
2.03 or the principal amount of any Loan or any interest thereon, or any fees
payable hereunder, or amend the definition of "Termination Date", or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of the Commitment without the written consent of each Participating
Bank affected thereby, (iv) change Section 2.09(c) or 9.08(c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Participating Bank, (v) except as provided in Section
2.11(e), increase the Stated Amount without the written consent of each
Participating Bank or (vi) change any of the provisions of this Section or the
definition of "Required Banks" or any other provision hereof specifying the
number or percentage of Participating Banks required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Participating Bank; provided further that no
such agreement shall (i) increase any advance rate used in calculating the
Borrowing Base or otherwise change the computation of the Borrowing Base or the
definition of any constituent component of the Borrowing Base, without the prior
written consent of Participating Banks representing 80% of the aggregate
Participation Percentages or (ii) amend, modify or otherwise affect the rights
or duties of the Agent or the Issuing Bank hereunder without the prior written
consent of the Agent or the Issuing Bank, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agent and its Affiliates and the Issuing Bank and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Agent and the
Issuing Bank, in connection with the syndication of the credit facility provided
for herein, the preparation and administration of this Agreement, the Letter of
Credit, any amendments, modifications or waivers of the provisions hereof and
thereof or any increase in the Stated Amount (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of- pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of the Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred
by the Agent, the Issuing Bank or any Participating Bank, including the fees,
charges and disbursements of any counsel for the Agent, the Issuing Bank or any
Participating Bank, in connection with the enforcement or protection of its
rights in connection with this Agreement and any other Related Document,
including its rights under this Section, or in connection with any Loans made or
the issuance of the Letter of Credit hereunder, including all such reasonable
out- of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or such Letter of Credit.
(b) The Company shall indemnify the Agent, the Issuing Bank,
each Participating Bank and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, the Related Documents or any agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Company or any of its
Restricted Subsidiaries, or any Environmental Liability related in any way to
the Company or any of its Restricted Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses have resulted from the
gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to the Agent or the Issuing Bank under paragraph (a)
or (b) of this Section 9.03, each Participating Bank severally agrees to pay to
the Agent or the Issuing Bank, as the case may be, such Participating Bank's
Participation Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Agent or the Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, no party shall
assert, and each party hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, the Related Documents or any agreement or
instrument contem plated hereby, the Transactions, any Loan or the Letter of
Credit or the use of the proceeds thereof; provided that this paragraph (d)
shall in no way limit the rights of any Participating Bank under Section 2.07,
2.08 or 2.14.
(e) All amounts due under this Section shall be payable not
later than 10 days after written
demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues the Letter of Credit), except that
the Company may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Participating
Bank (and any attempted assignment or transfer by the Company without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues the Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agent,
the Issuing Bank and the Participating Banks) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Participating Bank may assign to one or more assignees
all or a portion of its rights and obliga tions under this Agreement (including
all or a portion of its Participation Percentage and any Loans at the time owing
to it); provided that (i) except in the case of an assignment to a Participating
Bank or an Affiliate of a Participating Bank, each of the Company, the Issuing
Bank and the Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Participating Bank or an Affiliate of a Participating Bank or
an assignment of the entire remaining amount of the assigning Participating
Bank's Participation Percentage, the amount of the Participation Percentage of
the assigning Participating Bank subject to each such assignment (deter mined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Agent) shall be an aggregate amount that, when multiplied by
the Stated Amount (without giving effect to any reductions thereto other than
irrevocable reductions), an integral multiple of $1,000,000 and not less than
$10,000,000, unless each of the Company and the Agent otherwise consent, (iii)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Participating Bank's rights and obligations under this
Agreement, (iv) the parties to each assignment shall execute and deliver to the
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500, and (v) the assignee, if it shall not be a Participating Bank,
shall deliver to the Agent an Administrative Questionnaire; and provided further
that any consent of the Company otherwise required under this para graph shall
not be required if an Event of Default under clause (h) or (i) of Article VII
has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section 9.04, from and after the effective
date specified in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Participating Bank under
this Agreement, and the assigning Participating Bank thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Participating Bank's rights and
obligations under this Agreement, such Participating Bank shall cease to be a
party hereto but shall continue to be entitled to the benefits of (and therefore
shall be treated as a Participating Bank for determining entitlement to the
benefits of) Sections 2.07, 2.08, 2.14, 9.03 and 9.04(h)). Any assignment or
transfer by a Participating Bank of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Participating Bank of a participation in such rights
and obligations in accordance with paragraph (e) of this Section.
(c) The Agent, acting for this purpose as an agent of the
Company, shall maintain at one of its offices in the City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the recorda
tion of the names and addresses of the Participating Banks, and the
Participation Percentage of, and principal amount of any Loans owing to, each
Participating Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Company,
the Agent, the Issuing Bank and the Participating Banks may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Participating Bank hereunder for all purposes of this Agreement, notwith
standing notice to the contrary. The Register shall be available for inspection
by the Company, the Issuing Bank and any Participating Bank, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assign ment and
Acceptance executed by an assigning Participating Bank and an assignee, the
assignee's completed Administra tive Questionnaire (unless the assignee shall
already be a Participating Bank hereunder), the processing and recorda tion fee
referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Agent shall accept
such Assignment and Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Participating Bank may, without the consent of the
Company, the Agent or the Issuing Bank, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Participating
Bank's rights and obligations under this Agreement (including all or a portion
of its Participation Percentage and any Loans owing to it); provided that (i)
such Participating Bank's obligations under this Agreement shall remain
unchanged, (ii) such Participating Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Company, the Agent, the Issuing Bank and the other Participating Banks shall
continue to deal solely and directly with such Participating Bank in connection
with such Participating Bank's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Participating Bank sells such a
participation shall provide that such Participating Bank shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Participating Bank will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Company agrees that each
Participant shall be entitled to the benefits of Sections 2.07, 2.08, 2.14 and
9.04(h) to the same extent as if it were a Participating Bank and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.08 as though it were a Participating Bank, provided such
Participant agrees to be subject to Section 9.08(c) as though it were a
Participating Bank.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 9.04(h) than the applicable Participating Bank
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Company's prior written consent. A Participant that would be a
Foreign Participating Bank if it were a Participating Bank shall not be entitled
to the benefits of Section 2.14 unless the Company is notified of the
Participation sold to such Participant and such Participant agrees, for the
benefit of the Company, to comply with Section 2.14(e) as though it were a
Participating Bank.
(g) Any Participating Bank may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Participating Bank, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Participating Bank from any of its obligations hereunder or substitute any
such pledgee or assignee for such Participating Bank as a party hereto.
(h) If any Participating Bank requests compensa tion under
Section 2.07, or if the Company is required to pay any additional amount to any
Participating Bank or any Governmental Authority for the account of any
Participating Bank pursuant to Section 2.14, then such Participating Bank shall
use reasonable efforts, including designating a different lending office for
funding or booking its Loans hereunder, to eliminate or reduce amounts payable
pursuant to Section 2.07 or 2.14, as the case may be, in the future; provided
that any such action would not subject such Participating Bank to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Participating Bank in any respect deemed significant by it. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Participating
Bank in connection with any such action.
(i) If any Participating Bank shall have delivered a notice,
certificate or demand to the Company described in Sections 2.04(d), 2.07 or
2.14, or shall become a non-performing Participating Bank under Section 2.05(b)
or shall not consent to any extension of the Termination Date requested by the
Company under Section 2.11, and if and so long as such Participating Bank shall
not have withdrawn such notice, certificate or demand or corrected such non-
performance in accordance with Section 2.05(b) or consented to such extension,
the Company, at its sole expense and effort, or the Agent may demand that such
Participating Bank assign in accordance with paragraph (b), above, to one or
more assignees designated by either the Company or the Agent (and reasonably
acceptable to the other) all (but not less than all) of such Participating
Bank's participation and other rights and obligations hereunder; provided that
(i) the Company shall have received the prior written consent of the Agent,
which consent shall not be unreasonably withheld, such Participating Bank shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued and unpaid fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.07 or payments required to be made
pursuant to Section 2.14, such assignment will result in a reduction in such
compensation or payments; provided further that the Issuing Bank may also make
such a demand of a Participating Bank as provided in this Section if either (i)
such Participating Bank shall no longer be affiliated with the Organization for
Economic Cooperation and Development or (ii) such Participating Bank's Index
Debt shall be rated less than "A" by S&P or "A2" by Moody's. A Participating
Bank shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Participating Bank or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.
(j) In making any claim under Section 2.07 or 2.14 or
calculating any amounts due thereunder, each Participating Bank shall treat the
Company no less favorably than the treatment afforded by such Participating Bank
to similarly situated borrowers in similar circumstances.
SECTION 9.05. Survival. All covenants, agree ments,
representations and warranties made by the Company herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of the Letter of Credit, regardless of any
investigation made by any such other party or on its behalf and notwith standing
that the Agent, the Issuing Bank or any Participating Bank may have had notice
or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or the
Letter of Credit is outstanding and so long as the Commitment has not expired or
terminated. The provisions of Sections 2.07, 2.08, 2.14 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of any
Loans, the expiration or termination of the Letter of Credit and the Commitment
or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counter parts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Agent and when the Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. (a) If an Event of Default
shall have occurred and be continuing, the Issuing Bank, each Participating Bank
and each of its Affiliates are hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by the Issuing Bank or such
Participating Bank or Affiliate, as applicable, to or for the credit or the
account of the Company against any of and all the obligations of the Company now
or hereafter existing under this Agreement held by the Issuing Bank or such
Participating Bank, as applicable, irrespective of whether or not the Issuing
Bank or such Participating Bank, as applicable, shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of the
Issuing Bank and each Participating Bank under this Section 9.08 are in addition
to other rights and remedies (including other rights of setoff) which the
Issuing Bank or such Participating Bank, as applicable, may have.
(b) The Issuing Bank and each Participating Bank agrees
promptly to notify the Company after any such setoff and application referred to
in paragraph (a), above; provided that the failure to give such notice shall not
affect the validity of such setoff and application.
(c) If any Participating Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of setoff, or
otherwise, but excluding all proceeds received by assignments or sales of
participa tions in accordance with Section 9.04) on account of its participatory
interests in any amounts owed by the Company pursuant to Section 2.03 or any
Loan made by the Issuing Bank pursuant to Section 2.04 (other than pursuant to
Sections 2.07 and 2.08) in excess of its ratable share of payments on account of
such amounts owed by the Company or such Loan obtained by all the Participating
Banks, such Participating Bank shall forthwith purchase from the other
Participating Banks a participation in the portions of such Loan owing to them
as shall be necessary to cause such purchasing Participating Bank to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Participating Bank, such purchase from such Participating Bank shall be
rescinded and such Participating Bank shall repay to the purchasing
Participating Bank the purchase price to the extent of such recovery together
with an amount equal to such Participating Bank's ratable share (according to
the proportion of (i) the amount of such Participating Bank's required repayment
to (ii) the total amount so recovered from the purchasing Participating Bank) of
any interest or other amount paid or payable by the purchasing Participating
Bank in respect of the total amount so recovered.
(d) Notwithstanding the foregoing, if any Participating Bank
shall obtain any such excess payment involuntarily, such Participating Bank may,
in lieu of purchasing participations from the other Participating Banks in
accordance with paragraph (c), above, on the date of receipt of such excess
payment, return such excess payment to the Agent for distribution in accordance
with Section 2.09(b).
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York (without prejudice to the
provisions of Section 5-1401 of the General Obligations Law of the State of New
York, excluding such State's principles of conflicts of law). The Letter of
Credit shall be construed in accordance with and governed by the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce, Publication No. 500 (other than Article 17 thereof) (the "Uniform
Customs") and, as to matters not governed by the Uniform Customs, the laws of
the State of New York, including the Uniform Commercial Code as in effect in the
State of New York.
(b) The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Agent, the Issuing
Bank or any Participating Bank may otherwise have to bring any action or
proceeding relating to this Agreement against the Company or its properties in
the courts of any jurisdiction.
(c) The Company hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section 9.09. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREE MENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agent, the Issuing
Bank and the Participating Banks agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its Affiliates and to its and their directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential) solely for use in connection with this Agreement and the
transactions contemplated hereby and the performance by the parties hereunder,
(b) to the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section
9.12, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Company or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Agent, the Issuing Bank or any Participating Bank on a
nonconfidential basis from a source other than the Company. For the purposes of
this Section, "Information" means all information received from the Company or a
Subsidiary relating to any of the Company or a Restricted Subsidiary or its
business, other than any such information that is available to the Agent, the
Issuing Bank or any Participa ting Bank on a nonconfidential basis prior to
disclosure by the Company or such Subsidiary. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information. The
Participating Banks agree that the rights of the Company under this Section
shall be enforceable by specific performance.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the date first above written.
CONTIFINANCIAL CORPORATION,
by
/s/ Daniel J. Willet Name: Daniel J. Willet
Title: SVP CFO
by
/s/ Frank W. Baier Name: Frank W. Baier
Title: VP & Treasurer
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, Individually,
and as Agent,
by
/s/ Jay Chall Name: Jay Chall
Title: Director
by
/s/ James H. Lee Name: James H. Lee
Title: Assistant Vice
President
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, Individually and as Co-Agent, and DRESDNER BANK AG, NEW
YORK BRANCH, as Issuing Bank,
by
/s/ Jonathan Wallin Name: Jonathan Wallin
Title: Vice President
by
/s/ J. Curtin Beaudouin Name: J. Curtin Beaudouin
Title: First Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective duly authorized officers as of the
date first above written.
CONTIFINANCIAL CORPORATION,
by
---------------------------
Name:
Title:
by
---------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, Individually,
and as Agent,
by
---------------------------
Name:
Title:
by
---------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
Individually, and DRESDNER BANK AG, NEW YORK BRANCH, as Issuing
Bank,
by
---------------------------
Name:
Title:
by
---------------------------
Name:
Title:
<PAGE>
THE BANK OF NEW YORK,
by
/s/ Robert A. Tweed
Name: Robert A. Tweed
Title: Vice President
CREDIT AGRICOLE INDOSUEZ,
by
/s/ Whakyung Lee Name: Whakyung Lee
Title: Vice President
by
/s/ B. Lespinasse Name: B.
Lespinasse
Title: SVP
THE BANK OF NOVA SCOTIA,
by
/s/ Stephen E. Lockhart
Name: Stephen E. Lockhart
Title: Vice President
THE CHASE MANHATTAN BANK,
by
/s/ Gary L. Spevack Name: Gary L.
Spevack
Title: Vice President
NATIONSBANK, N.A.,
by
/s/ Bob Caston Name: Bob Caston
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Vladimir Labun Name: Vladimir
Labun
Title: First Vice President- Manager
<PAGE>
SOCIETE GENERALE,
by
/s/ Janet M. Kagan Name: Janet M. Kagan
Title: Director
COMERICA BANK,
by
/s/ Von L. Ringger Name: Von L. Ringger
Title: First Vice President
UBS AG, NEW YORK BRANCH,
by
/s/ Hunter C. Smith Name: Hunter C. Smith
Title: Associate Director
by
/s/ Roger Liechti
Name: Roger Liechti
Title: Associate Director
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH,
by
/s/ Kazuyoshi Ogawa Name: Kazuyoshi
Ogawa
Title: Joint General Manager
BW CAPITAL MARKETS, INC.
by
/s/ Robert B. Herber Name: Robert B.
Herber
Title: Managing Director
<PAGE>
SOUTHTRUST BANK, NATIONAL ASSOCIATION
by
/s/ Amy J. Nunneley
Name: Amy J. Nunneley
Title: Group Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
by
/s/ Kevin B. Quinn Name: Kevin B. Quinn
Title: Assistant Vice President
<TABLE>
<CAPTION>
SCHEDULE 2.01
THIS SCHEDULE 2.01 IS BASED ON A STATED AMOUNT OF $317,500,000
AS OF AUGUST 21, 1998
Contact Person, Address and Participation
Participating Bank Telephone and Telecopy Numbers Percentage
<S> <C>
Credit Suisse First Boston, Jonathan Satran 11.0236221%
New York Branch 11 Madison Avenue
New York, NY 10010
Tel:(212) 325-9936
Fax:(212) 325-8304
Dresdner Bank AG, New York and Grand Curt Beaudouin 11.0236221%
Cayman Branches 75 Wall Street
New York, NY 10005
Tel:(212) 429-2120
Fax:(212) 429-2524
NationsBank, N.A. Beth Sorensen 9.4488189%
901 Main Street
51st floor
P.O. Box 8301-01
Dallas, TX 75202
Tel:(214) 508-0967
Fax:(214) 508-0338
Credit Lyonnais New York Branch Mary Collier 7.8740157%
NY Corporate Group A
1301 Avenue of the Americas
New York, NY 10019
Tel:(212) 261-7318
Fax:(212) 459-3179
The Bank of Nova Scotia Roger Chu 7.8740157%
One Liberty Plaza, 26th Floor
New York, NY 10006
Tel:(212) 225-5036
Fax:(212) 225-5090
SouthTrust Bank, National Association Amy Nunneley 7.8740157%
420 North 20th Street
Birmingham, AL 35203
Tel: (205) 254-6706
Fax: (205) 581-8927
Credit Agricole I Whakyung Lee 6.6929134%
.ndosuez 520 Madison Avenue
New York, NY 10022
Tel:(212) 418-2229
Fax:(212) 418-2288
The Bank of New York Robert A. Tweed 6.6929134%
One Wall Street
New York, NY 10286
Tel:(212) 635-6465
Fax:(212) 635-6468
The Chase Manhattan Bank Gary L. Spevack 6.2992126%
270 Park Avenue
23rd Floor
New York, NY 10017
Tel:(212) 270-5964
Fax:(212) 270-8963
Manufacturers and Traders Trust Kevin Quinn 6.2992126%
Company One Fountain Plaza,
12th Floor
Buffalo, NY 14203-1495
Tel: (716) 848-7337
Fax: (716) 848-7318
Comercia Bank Von Ringger 4.7244094%
500 Woodward Avenue MC 3256
Detroit, MI 48226
Tel:(313) 222-9285
Fax:(313) 222-9295
UBS AG,New York Branch Eva Rushkevich 4.7244094%
299 Park Avenue
New York, NY 10171
Tel:(212) 821-3366
Fax:(212) 821-4541
BW Captial Markets, Inc. Robert Herber 3.1496063%
630 Fifth Avenue
New York, NY 10111
Tel:(212) 218-1805
Fax:(212) 218-1810
Societe Generale Janet Kagan 3.1496063%
1221 Avenue of the Americas
New York, NY 10020
Tel: (212) 278-7049
Fax: (212) 278-7614
The Sumitomo Bank, Limited, Betsy A. Sprenkle 3.1496063%
New York Branch 277 Park Avenue,
6th Floor
New York, NY 10172
Tel: (212) 224-4154
Fax: (212) 224-5188
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-END> SEP-30-1998
<CASH> 176,040
<SECURITIES> 2,176,109
<RECEIVABLES> 1,251,211
<ALLOWANCES> (3,598)
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 35,614
<DEPRECIATION> (11,027)
<TOTAL-ASSETS> 3,813,446
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 477
<OTHER-SE> 518,996
<TOTAL-LIABILITY-AND-EQUITY> 3,813,446
<SALES> 0
<TOTAL-REVENUES> 152,971
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 203,838
<LOSS-PROVISION> 3,051
<INTEREST-EXPENSE> 121,522
<INCOME-PRETAX> (175,440)
<INCOME-TAX> (67,261)
<INCOME-CONTINUING> (108,231)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (108,231)
<EPS-PRIMARY> (2.33)
<EPS-DILUTED> (2.33)
</TABLE>
