<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C, 20549
____________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 23, 1994
______________________________________________________________________________
GFC FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1-11011 86-0695381
______________________________________________________________________________
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
</TABLE>
<TABLE>
<S> <C>
DIAL CORPORATE CENTER, PHOENIX, ARIZONA 85077
______________________________________________________________________________
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: 602/207-6900
___________________________
<PAGE> 2
Item 5. Other Events.
On May 23, 1994, GFC Financial Corporation completed
its sale of 8,050,000 shares of common stock to the public.
The Company thereafter contributed the net proceeds from
that offering, approximately $226 million, to its wholly-
owned subsidiary, Greyhound Financial Corporation.
On May 24, 1994, Greyhound Financial Corporation
expanded its credit facilities with various lenders to $1.9
billion, divided between a three-year and one-year facility
for $950 million each. Those facilities principally
support the Company's sale of commercial paper.
Item 7. Financial Statements and Exhibits.
(c) The following exhibits are attached to this filing:
Exhibit 10.1 Sixth Amendment and Restatement dated as of
May 16, 1994 to Credit Agreement dated as of
May 31, 1976 among Greyhound Financial
Corporation, the Lender parties thereto, Bank
of America National Trust and Savings
Association, Bank of Montreal, Chemical Bank,
Citibank, N.A. and National Westmister Bank,
USA, as Agents, and Citibank, N.A., as
Administrative Agent.
Exhibit 10.2 Credit Agreement (Short-Term Facility) dated
as of May 16, 1994, among the same parties as
noted in Exhibit 10.1 above.
1
<PAGE> 3
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.
GFC FINANCIAL CORPORATION
(Registrant)
<TABLE>
<S> <C> <C>
Dated: May 27, 1994 By /s/ Bruno A. Marszowski
_________________________________________________
Bruno A. Marszowski, Vice President - Controller
Principal Financial Officer/Authorized Officer
</TABLE>
2
<PAGE> 1
EXHIBIT 10.1
SIXTH AMENDMENT AND RESTATEMENT
DATED AS OF MAY 16, 1994 OF
CREDIT AGREEMENT
DATED AS OF MAY 31, 1976,
AS HERETOFORE AMENDED
GREYHOUND FINANCIAL CORPORATION (formerly Greyhound Leasing
& Financial Corporation), a Delaware corporation (herein called
the "Company"), the undersigned lenders (together with each
lender which becomes a Lender hereunder pursuant to Sections 8.02
and 8.04, collectively the "Lenders"), the undersigned Agents,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, BANK OF
MONTREAL, CHEMICAL BANK, CITIBANK, N.A., and NATIONAL WESTMINSTER
BANK USA, individually and as agents (the "Agents") for the
Lenders hereunder, and CITIBANK, N.A., a national banking
association, as administrative agent (the "Administrative Agent")
for the Lenders hereunder, agree that the Credit Agreement, dated
as of May 31, 1976, as heretofore amended, among the Company, the
Lenders and the Administrative Agent, is hereby restated and
amended to read in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
____________
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to
the singular and plural forms of the terms defined):
"A Advance" shall mean an advance by a Lender to the
Company as part of an A Borrowing and refers to a Base Rate
Advance or a Eurodollar Advance (each of which shall be a
"Type" of A Advance).
"A Borrowing" shall mean a borrowing consisting of
A Advances of the same Type made on the same day by the
Lenders pursuant to Section 2.01.
"Advance" shall mean an A Advance or a B Advance.
"Applicable Lending Office" shall mean, with respect
to each Lender, (i) such Lender's Domestic Lending Office
in the case of a Base Rate Advance and (ii) such Lender's
Eurodollar Lending Office in the case of a Eurodollar
Advance, and, in the case of a B Advance, the office of such
Lender notified by such Lender to the Administrative Agent
as its Applicable Lending Office with respect to such B
Advance.
<PAGE> 2
"Assignment and Acceptance" has the meaning assigned to
that term in Section 8.04.
"B Advance" shall mean an advance by a Lender to the
Company as part of a B Borrowing resulting from the auction
bidding procedure described in Section 2.03.
"B Borrowing" shall mean a borrowing consisting of B
Advances made on the same day pursuant to the same Notice
of B Borrowing by each of the Lenders whose offer to make
one or more B Advances as part of such borrowing has been
accepted by the Company under the auction bidding procedure
described in Section 2.03.
"B Reduction" has the meaning specified in Section
2.01.
"Base Rate" shall mean, for any period (including any
Interest Period or portion thereof), a fluctuating interest
rate per annum as shall be in effect from time to time which
rate per annum shall at all times be equal to the sum of (i)
the highest of:
(a) The rate of interest announced publicly by
Citibank in New York, New York from time to time as
Citibank's base rate; or
(b) the sum of (A) 1/2 of one percent plus
(B) the rate obtained by dividing (x) the latest three-
week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks (such three-week moving average being
determined weekly by Citibank on the basis of such
rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or,
if such publication shall be suspended or terminated,
on the basis of quotations for such rates received by
Citibank, in either case adjusted to the nearest 1/4 of
one percent or, if there is no nearest 1/4 of one
percent, to the next higher 1/4 of one percent), by
(y) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve
System for determining the maximum reserve requirement
(including, but not limited to, any marginal reserve
requirements for Citibank in respect of liabilities
consisting of or including (among other liabilities)
three-month nonpersonal time deposits of at least
$100,000), plus (C) the average during such three-week
period of the daily net annual assessment rates
estimated in good faith by Citibank for determining the
current annualassessment payable by Citibank to the
Federal Deposit
2
<PAGE> 3
Insurance Corporation for insuring three-month deposits
in the United States; or
(c) 1/2 of one percent above the Federal Funds
Rate,
plus (ii) the applicable Margin; provided that the Base
Rate shall at no time exceed the maximum rate permitted
by law. Each change in the Base Rate shall take effect
simultaneously with the corresponding change in the
applicable rate described above in clause (a), (b) or
clause (c) and any change in the applicable Margin.
"Base Rate Advance" shall mean an A Advance which bears
interest as provided in Section 2.05(a)(i).
"BofA" shall mean Bank of America National Trust and
Savings Association, a national banking association.
"BofM" shall mean Bank of Montreal.
"Borrowing" shall mean an A Borrowing or a B Borrowing.
"Business Day" shall mean any day of the year on which
banks are not required or authorized to close in New York,
New York or Los Angeles, California, and, if the applicable
Business Day relates to any Eurodollar Advance, a day of the
year on which dealings are carried on in the London
interbank market.
"Capital Stock" shall mean, with respect to any
corporation, common stock and preferred stock of any class
or classes (however designated).
"Carrying Value" shall mean the sum of (i) Receivables
plus (ii) the residual value (as determined pursuant to the
relevant leases) of all equipment of the Company and the
Subsidiaries under lease, less Unearned Income.
"Chemical" shall mean Chemical Bank, a New York banking
corporation.
"Citibank" shall mean Citibank, N.A., a national
banking association.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commercial Paper" shall mean instruments for the
payment of money which mature within 270 days from the date of issue,
are commonly known as commercial paper and are of a character
customarily traded in the money market.
3
<PAGE> 4
"Commitment" has the meaning assigned to that term in
Section 2.01.
"Commitment Reallocation Event" means the occurrence,
or proposed occurrence, of (i) the non-ratable termination
of any Lender's Commitment pursuant to Section 2.11(b),
(ii) any extension of the Termination Date pursuant to
Section 2.17 as to less than all of the Lenders, or
(iii) the addition of a New Lender pursuant to Section 8.02.
"Consolidated Net Income" for any period shall mean the
amount of net income (or net loss) of the Company and the
Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided, however, that
Consolidated Net Income shall not include (i) any net income
(or net loss) of a Subsidiary for any period during which it
was not a Subsidiary, (ii) any net income (or net loss) of
any business, properties or assets acquired (by way of
merger, consolidation, purchase or otherwise) by the Company
or any Subsidiary for any period prior to the acquisition
thereof, or (iii) the equity of the Company or any
Subsidiary in the undistributed earnings of any entity other
than a Subsidiary.
"D&P" shall mean Duff & Phelps Credit Rating Co. and
any successor thereto.
"Domestic Lending Office" shall mean, with respect
to any Lender, the office of such Lender specified as its
"Domestic Lending Office" on Schedule 1 hereto or such other
office of such Lender as such Lender may from time to time
specify to the Company and the Administrative Agent.
"Effective Date" shall mean the date on or before
August 29, 1994 on which all of the conditions in Section
5.01 shall have been satisfied or waived.
"Eligible Assignee" means any financial institution or
entity engaged in the business of extending revolving credit
and having consolidated assets of $500,000,000 or more;
excluding, however, any insurance companies or commercial
finance companies.
"Environmental Laws" shall mean any and all federal,
state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or
other governmental restrictions applicable to the Company or
any Subsidiary relating to the environment or to emissions,
discharges or releases of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water,
4
<PAGE> 5
ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the
clean-up or other remediation thereof.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate", as applied to any Person, shall mean
any trade or business (whether or not incorporated) which
is a member of a group of which that Person is a member and
which is under common control within the meaning of Section
414(b) and (c) of the Code.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Advance" shall mean an A Advance which
bears interest as provided in Section 2.05(a)(ii).
"Eurodollar Lending Office" shall mean, with respect
to each Lender, the office of such Lender specified as its
"Eurodollar Lending Office" on Schedule 1 hereto or such
other office of such Lender as such Lender may from time to
time specify to the Company and the Administrative Agent.
"Eurodollar Rate" shall mean, in respect of any
Interest Period or portion thereof for any Eurodollar
Advance, the sum of the applicable LIBO Rate and the Margin
applicable to such Interest Period or portion thereof.
"Eurodollar Reserve Percentage" of any Lender for the
Interest Period for any Eurodollar Advance shall mean the
reserve percentage applicable during such Interest Period
under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or if more than one
such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable)
for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect
to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning assigned to that
term in Section 6.01.
5
<PAGE> 6
"Exposure" shall mean the aggregate Carrying Value
of all transactions in respect of any Person which is a
customer of the Company or any Subsidiary, any subsidiary of
such Person or any other Person, the obligations of which
are guaranteed by a Person that is a customer of the Company
or such Subsidiary.
"Extension Request" shall mean a Request for Extension
delivered by the Company to the Lenders to request an
extension of the Termination Date in accordance with the
provisions of Section 2.17, in substantially the form of
Exhibit E hereto.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board,
or any analogous opinions, statements or pronouncements of
any successor thereto, which are applicable in the United
States to the circumstances as of the date of determination.
"GFC Financial" shall mean GFC Financial Corporation, a
Delaware corporation.
"Greyhound European Financial Group" shall mean
Greyhound Financial & Leasing Corporation AG, a Switzerland
corporation, Greyhound Financial Services Limited, a United
Kingdom corporation, and their subsidiaries.
"Guaranty", as applied to any Person, shall mean any
direct or indirect liability, contingent or otherwise, of
that Person with respect to any obligation of another
including, without limitation, the endorsement (otherwise
than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another. The
amount of any Guaranty shall be equal to the amount of the
obligation so guaranteed or otherwise supported.
6
<PAGE> 7
"Indebtedness", as applied to any Person, shall mean
(i) all indebtedness for borrowed money which is properly
classified as a liability on a balance sheet in conformity
with GAAP, (ii) that portion of obligations with respect to
capital leases which is properly classified as a liability
on a balance sheet in conformity with GAAP, (iii) notes
payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed
money, except, in any case, unfunded lines of credit, and
(iv) any obligation owed for all or any part of the deferred
purchase price of property or services which purchase price
is (A) due more than six months from the date of incurrence
of the obligation in respect thereof, or (B) evidenced by a
note or similar written instrument, excluding, in any case,
indebtedness secured by equipment or property where the
recourse of the payee of such indebtedness is limited to the
lessor's interest in leases thereof, the rents and other
amounts due thereunder and such equipment or property and
proceeds therefrom.
"Interest Period" has the meaning assigned to that term
in Section 2.05(b).
"Level 1" shall mean that Long-term Debt carries two or
more of the following ratings:
"A-" or higher by S&P
"A3" or higher by Moody's
"A-" or higher by D&P
"Level 2" shall mean that the criteria of Level 1 are
not satisfied and Long-term Debt carries two or more of the
following ratings:
"BBB+" or higher by S&P
"Baa1" or higher by Moody's
"BBB+" or higher by D&P
"Level 3" shall mean that the criteria of neither Level
1 nor Level 2 are satisfied and Long-term Debt carries two
or more of the following ratings:
"BBB" or higher by S&P
"Baa2" or higher by Moody's
"BBB" or higher by D&P
"Level 4" shall mean that none of the criteria of Level
1, Level 2 or Level 3 are satisfied and Long-term Debt
carries two or more of the following ratings:
"BBB-" or higher by S&P
"Baa3" or higher by Moody's
"BBB-" or higher by D&P
7
<PAGE> 8
"Level 5" shall mean that none of the criteria of
Level 1, Level 2, Level 3 or Level 4 are satisfied.
"Lien" shall mean any lien, mortgage, charge, claim,
security interest, pledge, hypothecation, right of another
under any conditional sale or other title retention
agreement, or any other encumbrance affecting title to
property. Without limiting the generality of the foregoing,
the sale of property used or useful in the business of the
seller with the intention of retaining the use thereof under
a lease, or any other comparable arrangement commonly
referred to as a "sale and leaseback", shall be deemed to
create a Lien on such property.
"LIBO Rate" shall mean, for any Interest Period for a
Eurodollar Advance comprising part of the same Borrowing, an
interest rate per annum equal to the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum
at which deposits in United States dollars are offered by
the principal office of each of the Reference Banks in
London, England, to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days prior
to the first day of such Interest Period for a period equal
to such Interest Period and in an amount substantially equal
to the amount of such Eurodollar Advance comprising part of
such Borrowing to be outstanding during such Interest Period
from such Reference Bank. The LIBO Rate for the Interest
Period for each Eurodollar Advance comprising part of the
same Borrowing shall be determined by the Administrative
Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.07.
"Long-term Debt" shall mean senior, unsecured, public
long-term debt securities of the Company.
"Majority Lenders" shall mean at any time Lenders
holding at least 66-2/3% of the then aggregate unpaid
principal amount of the A Advances (or, if an Event of
Default shall have occurred and the Total Commitments shall
have been terminated, the Advances) held by Lenders or, if
no such principal amount is then outstanding, Lenders having
at least 66-2/3% of the Total Commitments.
"Margin" shall mean with respect to any day in any
Interest Period in relation to any Advance, the percentages
set forth in Table A below, with respect to determinations
of the Base Rate, or Table B below, with respect to
determinations of the Eurodollar Rate:
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<PAGE> 9
Table A
Base Rate Margins
(in basis points)
<TABLE>
<S> <C>
Outstanding Advances as a
Percentage of Commitments
(without giving effect
to any B Reduction)
__________________________
</TABLE>
<TABLE>
<CAPTION>
Greater than
Level Less than 50% or equal to 50%
_____ _____________ _______________
<S> <C> <C>
Level 1 -15.00 -15.00
Level 2 -22.50 -22.50
Level 3 -30.00 -30.00
Level 4 -27.50 -2.50
Level 5 0.00 50.00
</TABLE>
Table B
Eurodollar Margins
(in basis points)
<TABLE>
<S> <C>
Outstanding Advances as a
Percentage of Commitments
(without giving effect
to any B Reduction)
__________________________
</TABLE>
<TABLE>
<CAPTION>
Greater than
Level Less than 50% or equal to 50%
_____ _____________ _______________
<S> <C> <C>
Level 1 35.00 47.50
Level 2 33.75 46.25
Level 3 45.00 70.00
Level 4 72.50 97.50
Level 5 100.00 150.00
</TABLE>
The applicable Margin shall be adjusted daily to reflect
changes in the outstanding principal amount of the Advances
(determined for any day as of the close of business) and the
Level applicable to Long-term Debt in accordance with
Section 2.07.
"Moody's" shall mean Moody's Investors Service, Inc.
and any successor thereto.
"NatWest" shall mean National Westminster Bank USA.
"New Lender" shall have the meaning assigned to that
term in Section 8.02.
"Note" has the meaning specified in Section 2.18(d).
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<PAGE> 10
"Notice of A Borrowing" has the meaning specified in
Section 2.02.
"Notice of B Borrowing" has the meaning specified in
Section 2.03.
"Notice of Borrowing" shall mean the Notice of A
Borrowing or the Notice of B Borrowing or both, as the
context may require.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation established under ERISA or any successor thereto
under ERISA.
"Person" shall mean an individual, corporation,
partnership, joint venture, trust or unincorporated
organization, any nation, state or government or political
subdivision thereof or any agency of such nation, state,
government or political subdivision.
"Plan" shall mean an employee benefit plan (other than
a multiemployer plan as defined in Section 4001(a)(3) of
ERISA) maintained for employees of the Company or any of its
ERISA Affiliates and covered by Title IV of ERISA.
"Receivables" shall mean the sum of (i) the aggregate
amounts then due or to become due to the Company and the
Subsidiaries under all contracts receivable and equipment
leases then in effect, less all lease rental deposits
received by the Company and the Subsidiaries under such
leases and (ii) the aggregate amounts paid or payable by the
Company and the Subsidiaries for equipment not yet
delivered, provided there is then in effect a written
agreement (not subject to any assignment, lien, security
interest or other encumbrance) to lease or obtain financing
for such equipment from the Company or the Subsidiaries upon
delivery, but only to the extent that the agreed-upon
rentals or payments by the customer for such equipment cover
such amounts.
"Reference Banks" shall mean Citibank, BofA, Chemical,
NatWest and BofM.
"S&P" shall mean Standard & Poor's Corporation and any
successor thereto.
"Secured Indebtedness" shall mean all Senior
Indebtedness and Subordinated Indebtedness secured by any
Lien (including the Lien of a conditional vendor) upon or
with respect to any of the property or assets of the Company
or the Subsidiaries, including, for purposes of Section
4.02(b) of this Agreement, obligations incurred in
transactions in
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<PAGE> 11
which the Company is the lessee and sublessor of the property
securing such obligations.
"Senior Indebtedness" shall mean all Indebtedness of
the Company and the Subsidiaries, and including any direct
or contingent liability in connection with the assumption or
Guaranty of, or undertaking with respect to, the obligations
of any Person other than the Company or the Subsidiaries,
but excluding Subordinated Indebtedness.
"Short Term Facility Credit Agreement" shall mean that
certain Credit Agreement (Short Term Facility) of even date
herewith among the Company, the Lenders thereunder, the
Agents and the Administrative Agent, as it may be amended,
supplemented or otherwise modified from time to time.
"Stockholders' Equity" shall mean stockholders' equity
determined in accordance with GAAP.
"Subordinated Indebtedness" shall mean Indebtedness of
the Company which is issued and outstanding on the date
hereof or issued after the date hereof which is, in the sole
opinion of the Majority Lenders, subordinated by its terms
in right of payment to all Indebtedness hereunder, on terms
satisfactory to the Majority Lenders.
"Subsidiaries" shall mean corporations of which the
Company shall directly or indirectly own 51% of the
outstanding capital stock, other than directors' qualifying
shares.
"Surviving Corporation" has the meaning assigned to
that term in Section 4.02(f).
"Tangible Net Worth" shall mean Stockholders' Equity
less all assets of the Company and consolidated subsidiaries
that would be classified as intangible assets under GAAP.
"Termination Date" shall mean the date that occurs
three years from the Effective Date; provided, however,
that, if any Lender has consented to an Extension Request
in accordance with Section 2.17, with regard to the then
existing Termination Date, the then existing Termination
Date as to such Lender shall be automatically extended for
one year from the then existing Termination Date; provided,
however, that, notwithstanding any other provisions of this
Agreement to the contrary, the Termination Date shall occur
upon the earlier termination in whole of the Commitments
pursuant to Section 2.11 or 6.01.
"Termination Event" shall mean (i) a "Reportable Event"
described in Section 4043 of ERISA and the regulations
issued thereunder (other than a "Reportable Event" not
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<PAGE> 12
subject to the provision for 30-day notice to the PBGC under
such regulations), or (ii) the withdrawal of the Company or
any of its ERISA Affiliates from a Plan during a plan year
in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (iii) the filing of a notice
of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or
(iv) the institution of proceedings to terminate a Plan by
the PBGC, or (v) any other event or condition which
constitutes grounds under ERISA for the termination of, or
the appointment of a trustee to administer, any Plan, or
(vi) the imposition of a lien pursuant to Section 412(n) of
the Code.
"Total Commitments" shall mean, at the time for any
determination thereof, the aggregate of the Commitments of
the Lenders.
"TriCon" shall mean TriCon Capital Corporation, a
Delaware corporation.
"TriCon Acquisition Date" shall mean April 30, 1994,
the date upon which the Company consummated its acquisition
of all of the outstanding capital stock of TriCon.
"Type" shall mean, with reference to an A Advance, a
Base Rate Advance or a Eurodollar Rate Advance.
"Unearned Income" shall mean those amounts carried on
the books of the Company and its Subsidiaries from time to
time of the type identified as "unearned income" in the
audit report, certified by Deloitte & Touche, of the Company
and its Subsidiaries for the year ended December 31, 1993.
ARTICLE II
Amount and Terms of the Credit
SECTION 2.01. The A Advances.
_______________
(a) Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make A Advances to the
Company from time to time on any Business Day during the period
from the Effective Date to but excluding the Termination Date, as
in effect for such Lender, in an aggregate principal amount at
any one time outstanding not to exceed the amount set opposite
such Lender's name on the signature pages hereof, as such
amount may be reduced pursuant to Section 2.11 (such Lender's
"Commitment"), provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to
time to the extent of the aggregate amount of the B Advances
then outstanding at any time of determination, such deemed use
of the aggregate amount of the Commitments shall be applied to
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<PAGE> 13
the Lenders ratably according to their respective Commitments
in effect at such time of determination (such deemed use of the
aggregate amount of the Commitments being a "B Reduction").
The aggregate of all Commitments hereunder on the Effective Date
is $950,000,000. Within the limits of each Lender's Commitment,
the Company may from time to time borrow, repay pursuant to
Section 2.08 or prepay pursuant to Section 2.04, and reborrow
under this Section 2.01.
(b) Each A Borrowing shall be (i) in the case of Base
Rate Advances, in an aggregate principal amount of not less than
$5,000,000 or, if greater, in an aggregate principal amount which
is an integral multiple of $1,000,000, and (ii) in the case of
Eurodollar Advances, in an aggregate principal amount of not less
than $15,000,000 or, if greater, an aggregate principal amount
which is an integral multiple of $1,000,000 (except that any
Borrowing consisting of Base Rate Advances may be in an aggregate
principal amount equal to the unused portion of the Total
Commitments) and shall consist of A Advances of the same Type and
Interest Period, in each case made on the same day simultaneously
by the Lenders ratably according to their respective Commitments.
SECTION 2.02. Making the A Advances.
______________________
(a) Each Borrowing shall be made on notice given not
later than (i) 11:00 A.M. (New York City time) in the case of an
A Borrowing which is to consist of Base Rate Advances, on the
Business Day of such A Borrowing, and (ii) 12:00 Noon (New York
City time) in the case of an A Borrowing which is to consist of
Eurodollar Advances, on the third Business Day prior to such A
Borrowing, from the Company to the Administrative Agent (which
shall give prompt notice thereof to each Lender). Each such
notice (a "Notice of A Borrowing") shall be by telex or telecopy
facsimile, confirmed immediately in writing, in substantially the
form of Exhibit A-1 hereto and shall specify (i) the date of such
A Borrowing, which shall be a Business Day, (ii) the Type of A
Advances comprising such A Borrowing, (iii) the aggregate amount
of the proposed A Borrowing, and (iv) the Interest Period for the
A Advances to be made as part of such A Borrowing. Each Lender
through its Applicable Lending Office shall, before (x) in the
case of an A Borrowing which is to consist of Base Rate Advances,
1:00 P.M. (New York City time), and (y) in the case of an A
Borrowing which is to consist of Eurodollar Advances, 12:00 Noon
(New York City time) on the date of such A Borrowing, make
available to the Administrative Agent at its address provided for
in Section 8.03 such Lender's ratable portion of such A Borrowing
in same day funds. Upon fulfillment of the applicable conditions
set forth in Article V and after receipt by the Administrative
Agent of such funds, the Administrative Agent will make such
funds available to the Company at the Administrative Agent's
aforesaid address.
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<PAGE> 14
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) if any Lender shall notify (which notice
shall, if given in relation to a proposed A Borrowing, be
given at least one Business Day before the date of the
proposed A Borrowing) the Administrative Agent that the
introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or that any central
bank or other governmental authority asserts that it is
unlawful, for such Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar
Advances or to fund or maintain Eurodollar Advances
hereunder, the Commitment of such Lender to make Eurodollar
Advances shall forthwith be suspended until the
Administrative Agent shall notify the Company that such
Lender has determined that the circumstances causing such
suspension no longer exist and such Lender's then
outstanding Eurodollar Advances, if any, shall be converted
to Base Rate Advances; to the extent that such affected
Eurodollar Advances become Base Rate Advances, all payments
of principal that would have been otherwise applied to such
Eurodollar Advances shall be applied instead to such
Lender's Base Rate Advances; provided that if Majority
Lenders are subject to the same illegality or assertion of
illegality, then the right of the Company to select
Eurodollar Advances for such A Borrowing or any subsequent A
Borrowing shall forthwith be suspended until the
Administrative Agent shall notify the Company that the
circumstances causing such suspension no longer exist, and
each A Advance comprising such A Borrowing shall be
converted to a Base Rate Advance;
(ii) if fewer than two Reference Banks furnish
timely information to the Administrative Agent pursuant to
Section 2.07 for determining the LIBO Rate for Eurodollar
Advances comprising any requested A Borrowing, the right
of the Company to select Eurodollar Advances for such A
Borrowing or any subsequent A Borrowing shall be suspended
until the Administrative Agent shall notify the Company and
the Lenders that the circumstances causing such suspension
no longer exist, and each A Advance comprising such A
Borrowing shall be converted to a Base Rate Advance; and
(iii) if the Majority Lenders shall, at least
one Business Day before the date of any requested A
Borrowing, notify the Administrative Agent that the LIBO
Rate for Eurodollar Advances comprising such A Borrowing
will not adequately reflect the cost to such Majority
Lenders of making or funding their respective Eurodollar
Advances for such A Borrowing, the right of the Company to
select Eurodollar Advances for such A Borrowing or any
subsequent A Borrowing shall be suspended until the
Administrative Agent shall notify the Company and the
Lenders that the circum-
14
<PAGE> 15
stances causing such suspension no longer exist, and each A Advance
comprising such A Borrowing shall be converted to a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable
and binding on the Company and, in respect of an A Borrowing
consisting of Eurodollar Advances specified in any such notice,
the Company shall, in accordance with Section 2.13, indemnify
each Lender against any loss or expense incurred by such Lender
as a result of any failure to fulfill on or before the date
specified for such A Borrowing the applicable conditions set
forth in Article V, including, without limitation, any loss
(including loss of anticipated profits) or expense incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund the A Advance to be made by
such Lender as part of such A Borrowing when such A Advance, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have been
notified by a Lender before 12:00 Noon (New York City time) on
the Business Day of the making of a Base Rate Advance and 11:00
A.M. (New York City time) one Business Day prior to the date of
the making of any Eurodollar Advance that such Lender does not
intend to make available to the Administrative Agent such
Lender's portion of the A Advances to be made on such date, the
Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date for the
making of such A Advances and the Administrative Agent may, in
reliance upon such assumption, make available to the Company a
corresponding amount. If such portion is not in fact made
available to the Administrative Agent by such Lender and the
Administrative Agent shall have made such portion available to
the Company as aforesaid, the Administrative Agent shall be
entitled to recover such portion on demand from such Lender,
which demand shall be made in a reasonably prompt manner. If
such Lender does not pay such amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent
shall promptly notify the Company and the Company shall repay
such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such
Lender or the Company, as the case may be, interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative
Agent to the Company to the date such corresponding amount is
recovered by the Administrative Agent, at (i) in the case of the
Company, the interest rate applicable at the time to A Advances
comprising such A Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment
hereunder or to prejudice any rights which the Company may have
against any Lender as a result of any default by such Lender
hereunder.
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<PAGE> 16
(e) The failure of any Lender to make the A Advance to
be made by it as part of any A Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its A
Advance on the date of such A Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A
Borrowing.
SECTION 2.03. Making the B Advances.
______________________
(a) Each Lender severally agrees that the Company may
make B Borrowings under this Section 2.03 from time to time on
any Business Day during the period from the date hereof until the
date occurring 30 days prior to the latest Termination Date of
any Lender then in effect in the manner set forth below; provided
that, (i) following the making of each B Borrowing, (1) the
aggregate amount of the Advances then outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders
then in effect (computed without regard to any B Reduction), and
(2) the aggregate amount of the B Advances scheduled to be
outstanding at any time through the maturity of such B Advances
shall not exceed the aggregate amount of the Commitments of the
Lenders scheduled to be in effect at such time (computed without
regard to any B Reduction), and (ii) no Lender may make a B
Advance if the maturity date of such B Advance occurs after the
Termination Date of such Lender.
(i) The Company may request a B Borrowing under
this Section 2.03 by delivering to the Administrative Agent,
by telecopier, telex or cable, confirmed immediately in
writing, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit A-2
hereto, specifying the date and aggregate amount of the
proposed B Borrowing, the maturity date for repayment of
each B Advance to be made as part of such B Borrowing (which
maturity date (x) in the case of a fixed rate B Borrowing
may not be earlier than the date occurring 14 days after the
date of such B Borrowing or later than the date occurring
180 days after the date of such B Borrowing, and (y) in the
case of any other B Borrowing may not be earlier than the
date occurring 30 days after the date of such B Borrowing
or later than the date occurring 180 days after the date
of such B Borrowing), the interest payment date or dates
relating thereto, and any other terms to be applicable to
such B Borrowing, not later than 11:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the
proposed B Borrowing, if the Company shall specify in the
Notice of B Borrowing that the rates of interest to be
offered by the Lenders shall be fixed rates per annum and
(B) at least four Business Days prior to the date of the
proposed B Borrowing, if the Company shall instead specify
in the Notice of B Borrowing the basis to be used by the
Lenders in determining the rates of interest to be offered
16
<PAGE> 17
by them. The Company may not select a maturity date for any
B Borrowing which ends after the latest Termination Date of
any Lender then in effect. The Administrative Agent shall
in turn promptly notify each Lender of each request for a B
Borrowing received by it from the Company by sending such
Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion,
it elects to do so, irrevocably offer to make one or more B
Advances to the Company as part of such proposed B Borrowing
at a rate or rates of interest specified by such Lender in
its sole discretion, by delivering a B Advance Offer Notice,
in the form of Exhibit A-3 hereto, to the Administrative
Agent (which shall give prompt notice of receipt thereof to
the Company), before 11:00 A.M. (New York City time) (A) on
the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of
paragraph (i) above and (B) three Business Days before the
date of such proposed B Borrowing, in the case of a Notice
of B Borrowing delivered pursuant to clause (B) of paragraph
(i) above, which notice shall include the minimum amount and
maximum amount of each B Advance which such Lender would be
willing to make as part of such proposed B Borrowing (which
amounts may, subject to the proviso to the first sentence of
this Section 2.03(a), exceed such Lender's Commitment), the
rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such B Advance;
provided that if the Administrative Agent in its capacity as
a Lender shall, in its sole discretion, elect to make any
such offer, it shall notify the Company of such offer before
10:00 A.M. (New York City time) on the date on which notice
of such election is to be given to the Administrative Agent
by the other Lenders.
(iii) The Company shall, in turn, (A) before
12:00 noon (New York City time) on the date of such proposed
B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (A) of paragraph (i) above and
(B) before 1:00 P.M. (New York City time) three Business
Days before the date of such proposed B Borrowing, in the
case of a Notice of B Borrowing delivered pursuant to clause
(B) of paragraph (i) above, either
(x) cancel such B Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept, in whole or in part (but
not less than the minimum amount indicated by the
applicable Lender) one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii) above
(which acceptance shall be irrevocable) in its sole
discretion, by giving notice to the Administrative
Agent of the amount of each B Advance (which amount
17
<PAGE> 18
shall be equal to or greater than the minimum amount,
and equal to or less than the maximum amount, notified
to the Company by the Administrative Agent on behalf of
such Lender for such B Advance pursuant to paragraph
(ii) above) to be made by each Lender as part of such
B Borrowing (provided that the aggregate amount of
such B Borrowing shall not exceed the amount specified on
the Notice of B Borrowing delivered by the Company pursuant
to paragraph (i) above), and reject any remaining offers
made by Lenders pursuant to paragraph (ii) above by giving
the Administrative Agent notice to that effect; provided
that acceptance of offers may only be made on the basis of
ascending rates for B Borrowings of the same type and
duration for up to the maximum amounts offered by Lenders;
and provided further that if offers are made by two or more
Lenders for the same type of B Borrowing for the same
duration and with the same rate of interest, in an aggregate
amount which is greater than the amount requested, the
principal amount of B Borrowings in respect of which such
offers are accepted shall be allocated by the Company among
such Lenders as nearly as possible (in multiples of
$1,000,000, as the Company may deem appropriate) on a pro
rata basis based on the maximum amounts offered by such
Lenders at such rate of interest.
(iv) If the Company notifies the Administrative
Agent that such B Borrowing is cancelled pursuant to
paragraph (iii)(x) above or if the Company rejects any
offers made by Lenders pursuant to paragraph (iii)(y) above,
the Administrative Agent shall give prompt notice thereof to
the Lenders or affected Lenders, as the case may be, and in
the case of a cancellation, such B Borrowing shall not be
made.
(v) If the Company accepts, in whole or in part,
one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Administrative
Agent shall in turn promptly notify (A) each Lender that has
made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such B Borrowing and whether or
not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by the Company,
(B) each Lender that is to make a B Advance as part of such
B Borrowing, of the amount of each B Advance to be made by
such Lender as part of such B Borrowing, and (C) each Lender
that is to make a B Advance as part of such B Borrowing,
upon receipt, that the Administrative Agent has received
forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to
make a B Advance as part of such B Borrowing shall, before
1:00 P.M. (New York City time) on the date of such B
Borrow-
18
<PAGE> 19
ing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have
received notice from the Administrative Agent pursuant to
clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 8.03 such Lender's
portion of such B Borrowing, in same day funds. Upon fulfillment of
the applicable conditions set forth in Article III and after
receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the
Company at the Administrative Agent's aforesaid address.
Promptly after each B Borrowing, the Administrative Agent
will notify each Lender of the amount of the B Borrowing,
the consequent B Reduction and the dates upon which such
B Reduction commenced and will terminate.
(vi) The Company agrees to pay to the
Administrative Agent for the Administrative Agent's account
an auction fee of $2,500 for each Notice of B Borrowing
delivered by the Company to the Administrative Agent
pursuant to this Section 2.03(a), whether or not a B
Borrowing is made pursuant thereto.
(b) Each B Borrowing shall be in an aggregate amount
not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof and, following the making of each B Borrowing, the
Company and each Lender shall be in compliance with the
limitations set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth
in this Section 2.03, the Company may from time to time borrow
under this Section 2.03, repay or prepay pursuant to subsection
(d) below, and reborrow under this Section 2.03, and more than
one B Borrowing may be made on a Business Day; provided that,
except for B Borrowings made on the same Business Day, a B
Borrowing shall not be made within three Business Days of the
date of any other B Borrowing.
(d) The Company shall repay to the Administrative
Agent for the account of each Lender which has made a B Advance,
on the maturity date of each B Advance (such maturity date being
that specified by the Company for repayment of such B Advance in
the related Notice of B Borrowing delivered pursuant to
subsection (a)(i) above), the then unpaid principal amount of
such B Advance. The Company shall have no right to prepay any
principal amount of any B Advance unless, and then only on the
terms, specified by the Company for such B Advance in the related
Notice of B Borrowing delivered pursuant to subsection (a)(i)
above.
(e) The Company shall pay interest on the unpaid
principal amount of each B Advance from the date of such B
19
<PAGE> 20
Advance to the date the principal amount of such B Advance is
repaid in full, at the rate of interest for such B Advance
specified by the Lender making such B Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the
Company for such B Advance in the related Notice of B Borrowing
delivered pursuant to subsection (a)(i) above; provided that any
principal amount of any B Advance which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall
bear interest from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per
annum equal at all times to (A) until the stated maturity date of
such B Advance, the greater of (x) 2% per annum above the Base
Rate in effect from time to time and (y) 2% above the stated rate
per annum of such B Advance, and (B) after the stated maturity of
such B Advance, 2% per annum above the Base Rate in effect from
time to time.
SECTION 2.04. Prepayments of Advances.
________________________
(a) The Company shall have no right to prepay any
principal amount of any A Advances other than as provided in this
subsection (a). The Company may, upon at least one Business
Day's notice to the Administrative Agent in the case of Base Rate
Advances and at least three Business Days' notice to the
Administrative Agent in the case of Eurodollar Advances stating
the proposed date and the aggregate principal amount of the
prepayment, and if such notice is given the Company shall, prepay
the outstanding principal amounts of the A Advances comprising
part of the same A Borrowing in whole or ratably in part;
provided, however, that (x) each partial prepayment shall be
in an aggregate principal amount not less than $5,000,000 and
integral multiples of $1,000,000 in excess thereof and (y) the
Company shall pay all accrued interest to the date of such
prepayment on the portion of any A Advance being prepaid and
shall, in the case of any such prepayment of any Eurodollar
Advance, be obligated to reimburse the Lenders in respect thereof
pursuant to Section 2.13. Base Rate Advances may be prepaid
without premium or penalty.
(b) (i) The Lenders may require prepayment of the
Advances and termination of the Commitments in the manner
set forth in subsection (b)(ii) below, upon the occurrence
(or, as set forth in subsection (b)(ii) below, the proposed
occurrence) of either of the following events (the events
described in clauses (x) or (y) are sometimes hereinafter
referred to as a "Change of Control"):
(x) any Person or two or more Persons acting
in concert shall have acquired beneficial ownership or
the right to acquire beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934),
20
<PAGE> 21
directly or indirectly, of securities of GFC Financial
or the Company (or other securities convertible into
such securities) representing 25% or more of the
combined voting power of all securities of GFC Financial or
the Company entitled to vote in the election of directors,
other than securities having such power only by reason of
the happening of a contingency ("Share Acquisition"); or
(y) individuals who either (1) have been
directors of GFC Financial or the Company for the prior
24-month period or (2) were nominated or elected by
directors in office during such period (but prior to
any Share Acquisition) shall cease for any reason to
constitute a majority of the board of directors of GFC
Financial or the Company.
(ii) The Company shall give prompt written notice
to each Lender ("Company Notice") of any proposed or actual
Change of Control as follows: (x) if the Company has
knowledge of and the board of directors consents to (or does
not oppose) a proposed Change of Control, the Company shall
notify the Lenders of such Change of Control not more than
60 days nor less than 30 days prior to the consummation of
the Change of Control and (y) with respect to a Change of
Control to which the Company's board of directors does not
consent and opposes, the Company shall notify the Lenders of
such Change of Control immediately after the Company
receives notice of such Change of Control. For a period of
90 days following receipt of the Company Notice by each
Lender, each Lender shall have the right by written notice
to the Company ("Lender Notice") to terminate its Commitment
and to require the Company to prepay in whole, but not in
part, without premium or penalty, all Advances of such
Lender, with accrued interest and fees to the date of such
prepayment on the amount of such Advances prepaid. The date
of prepayment and termination of any Commitments following
the Company's receipt of any Lender Notices shall be
determined by the Company and shall not be less than 60 or
more than 90 days after the date of receipt by the Company
of the first Lender Notice. The Company agrees to make such
prepayment if so required.
SECTION 2.05. Interest on A Advances.
_______________________
(a) The Company shall pay interest accrued on the
principal amount of each A Advance (i) in the case of Base Rate
Advances at the Base Rate and (ii) in the case of Eurodollar
Advances at the Eurodollar Rate until the final payment in full
thereof as herein provided. Interest in respect of Base Rate
Advances shall be payable on the last day of each Interest Period
and, in the case of each Interest Period of greater than 30 days
duration, on each day which occurs every 30 days from the first
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<PAGE> 22
day of such Interest Period and interest in respect of Eurodollar
Advances shall be payable on the last day of each Interest Period
and, in the case of each Interest Period of greater than three
months duration, on each day which occurs during such Interest
Period every three months from the first day of such Interest
Period. Interest in respect of any A Advances, with respect to
any Lender, shall also be payable on the Termination Date for
such Lender and upon prepayment of any A Advance to the extent
accrued on the amount so prepaid. Overdue principal and, to the
extent permitted by law, overdue interest in respect of each A
Advance and all other overdue amounts owing hereunder shall,
except in the case of a Eurodollar Advance or B Advance, bear
interest for each day such amount is overdue at a rate per annum
equal to 2% per annum in excess of the Base Rate in effect from
time to time and shall in the case of a Eurodollar Advance bear
interest for each day such amount is overdue at a rate per annum
equal to (A) during the Interest Period applicable to such
Eurodollar Advance, the greater of (x) 2% per annum above the
Base Rate in effect from time to time and (y) 2% per annum above
the rate per annum required to be paid on such amount immediately
prior to the date on which such amount became due and (B) after
the expiration of such Interest Period, 2% per annum above the
Base Rate in effect from time to time. In no event shall
interest payable hereunder to any Lender exceed the maximum rate
of interest payable to such Lender under applicable law.
(b) For each A Advance the Company shall select an
interest period (each such period being an "Interest Period") to
be applicable to such Advance. The Interest Period for each A
Advance shall begin on the last day of the immediately preceding
Interest Period, if any. The duration of each Interest Period
shall be (i) in the case of a Base Rate Advance, 30 or 60 days
(or such shorter period as shall extend to and end on the
Termination Date for any Lender) and (ii) in the case of a
Eurodollar Advance, one, two, three or six months, in each case
as the Company may select upon notice received by the
Administrative Agent (y) not later than 11:00 A.M. on the first
Business Day of such Interest Period, in the case of a Base Rate
Advance, or (z) at least three Business Days, in the case of a
Eurodollar Advance, prior to the first day of such Interest
Period; provided, however, that:
(i) if the Company fails to select the duration
of any Interest Period, on the day immediately following the
last day of the then current Interest Period for such A
Advance, the Company shall be deemed to have requested a
Base Rate Advance in the amount of such A Advance with an
Interest Period of 30 days;
(ii) Interest Periods commencing on the same date
for A Advances comprising part of the same A Borrowing shall
be of the same duration;
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<PAGE> 23
(iii) the Company may not select any Interest
Period in respect of A Advances which ends after the
Termination Date then in effect for any Lender; and
(iv) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day; provided, in the
case of any Interest Period for a Eurodollar Advance, that
if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day.
The Administrative Agent shall promptly advise each Lender by
telex or telecopy facsimile of each Interest Period selected by
the Company.
SECTION 2.06. Additional Interest on Eurodollar Advances.
___________________________________________
The Company shall pay to each Lender, so long as
such Lender shall be required under regulations of the Board
of Governors of the Federal Reserve System to maintain reserves
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Advance of such Lender,
from the date of such Eurodollar Advance until maturity of such
Eurodollar Advance, at an interest rate per annum equal at all
times during the Interest Period for such Eurodollar Advance to
the remainder obtained by subtracting (i) the LIBO Rate for such
Interest Period from (ii) the rate obtained by dividing such LIBO
Rate referred to in clause (i) above by that percentage equal to
100% minus the Eurodollar Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is
payable on such Eurodollar Advance. Such additional interest
shall be determined by such Lender and notified to the Company
through the Administrative Agent.
SECTION 2.07. Interest Rate Determination.
____________________________
(a) Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of
determining each LIBO Rate. Subject to the provisions of Section
2.02(b)(ii), if any one or more of the Reference Banks shall not
furnish such timely information to the Administrative Agent for
determination of any such interest rate, the Administrative Agent
shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice
to the Company and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of this
Agreement and, if requested by any Lender, the applicable rate,
23
<PAGE> 24
if any, furnished by each Reference Bank for determining the
applicable interest rate.
(c) The Margin applicable to each interest rate shall
be determined by the Administrative Agent on the basis of timely
information furnished to it by the Company, D&P, Moody's or S&P
with respect to the rating on Long-term Debt; any change in the
Margin shall be effective on the earlier of the date on which
such rating change is publicly announced or on the date written
confirmation of a change in the rating on Long-term Debt or
Commercial Paper is sent to the Company by D&P, Moody's or S&P.
SECTION 2.08. Repayment of A Advances.
________________________
(a) Except as provided in Section 2.05(b)(i), the
Company shall repay the unpaid principal amount of each A Advance
made by each Lender on the last day of the Interest Period for
such A Advance, and the Company shall repay the unpaid principal
amount of all A Advances made by any Lender, together with all
accrued and unpaid interest thereon and any other amount due
hereunder to such Lender, on the Termination Date as in effect
for such Lender.
(b) On the later of each date when any reduction
in the Lenders' Commitment is made by the Company pursuant to
Section 2.11(a) or the last day of the current Interest Periods
for the A Advances to be repaid, the Company shall repay the
A Advances in an amount equal to the excess, if any, of (x) the
aggregate principal amount of the A Advances outstanding on such
date over (y) the Total Commitments as reduced on such date
pursuant to Section 2.11(a) (computed after giving effect to
any B Reductions).
(c) On the date when any Lender's Commitment is
terminated pursuant to Section 2.11, the Company shall repay
the amount of all A Advances owing to such Lender.
SECTION 2.09. Increased Costs.
________________
If, due to (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve
requirements referred to in Section 2.06) in or in the
interpretation of any law or regulation, (ii) the compliance
with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law)
or (iii) the imposition, modification or application of any
capital adequacy or similar requirement (A) against assets
(funded or contingent) of, or credit or commitments to extend
credit extended by, any Lender or (B) otherwise applicable to
the obligations of any Lender under this Agreement, there shall
be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Advances (or, in the case of any
capital adequacy or similar requirement, having the effect of
reducing the rate of return on such Lender's capital or increasing
the amount of capital
24
<PAGE> 25
required or expected to be maintained by such Lender or any
corporation controlling such Lender, taking into consideration
such Lender's policies with respect to capital adequacy), which
such Lender is not otherwise compensated for by other provisions
of this Agreement, then the Company shall from time to time,
upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for
account of such Lender additional amounts sufficient to indemnify
such Lender against such increased cost (or reduced rate of
return or increased amount of capital, to the extent such Lender
reasonably determines such reduction or increase to be allocable
to the maintenance of this Agreement). A certificate as to the
amount of such increased cost (providing an explanation thereof
and the calculation thereof, all in reasonable detail, and using
reasonable averaging and attribution methods), submitted to the
Company (with a copy to the Administrative Agent) by such Lender
shall, absent manifest error, be conclusive and binding for all
purposes.
SECTION 2.10. Facility Fee.
_____________
The Company agrees to pay to the Administrative Agent for the
account of each Lender a facility fee on the daily amount of such
Lender's Commitment (determined without regard to the amount of
Advances outstanding thereunder and without giving effect to any
B Reduction and after giving effect to any reduction thereof pursuant
to Section 2.11) from the Effective Date (in the case of each Lender
party hereto as of the Effective Date) or from the effective date
specified in the applicable Assignment and Acceptance (in the case
of any Lender becoming a Lender after the Effective Date), until the
Termination Date, as in effect for such Lender, payable in
arrears on the last day of each March, June, September and
December during the term of such Lender's Commitment, commencing
June 30, 1994, and on any such Termination Date, at the rate of:
with respect to each day that (i) Level 1 is applicable, 0.15%
per annum, (ii) Level 2 is applicable, 0.225% per annum,
(iii) Level 3 is applicable, 0.30% per annum, (iv) Level 4 is
applicable, 0.40% per annum, or (v) Level 5 is applicable, 0.50%
per annum. If any change in the rating by D&P, S&P or Moody's
shall result in a change in the Level, the change in the facility
fee shall be effective on the earlier of the date on which such
rating change is publicly announced or on the date written
confirmation of such rating is sent to the Company by D&P,
Moody's or S&P.
SECTION 2.11. Reduction of the Commitments.
_____________________________
(a) The Company may, upon at least five Business Days'
notice to the Administrative Agent, terminate in whole or reduce
ratably in part the respective unused Commitments of the Lenders;
provided that each partial reduction shall be in an aggregate
amount of not less than $5,000,000 or, if greater, in an
aggregate amount which is an integral multiple of $1,000,000.
25
<PAGE> 26
(b) At any time, if no event has occurred and is
continuing which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both, the Company may, with the
consent of the Administrative Agent (which consent shall not be
unreasonably withheld), terminate the Commitment of any one of
the Lenders (each an "Old Lender") upon at least five Business
Days' notice to the Administrative Agent and the Old Lender, and,
effective upon the date of termination of the entire Commitment
of, and repayment of all amounts hereunder owing to, the Old
Lender, may replace that Lender with a New Lender pursuant to
the provisions of Section 8.02; provided however, that, as to
outstanding Eurodollar Advances and B Advances, a Commitment may
be terminated only at the end of an Interest Period or maturity
of such B Advances such that the Commitment of an Old Lender may
be terminated in stages, a portion terminating as specified by
the Company in its notice and the remainder, equal to the
outstanding Eurodollar Advances or B Advances, as applicable,
terminating at the end of the relevant Interest Period or
maturity of such B Advances; provided, further, that, the Company
may terminate the Commitment of a Lender under this Section
2.11(b) only if the Company shall also terminate such Lender's
Commitment under and as defined in the Short Term Facility Credit
Agreement.
SECTION 2.12. Payments and Computations.
__________________________
(a) The Company shall make each payment hereunder not
later than 12:00 Noon (New York City time) on the day when due
in United States dollars to the Administrative Agent in same day
funds at the Administrative Agent's address provided for in
Section 8.03. The Administrative Agent will promptly thereafter
make appropriate distribution of like funds to the Lenders for
the account of their respective Applicable Lending Offices.
(b) The Company hereby authorizes each Lender, if and
to the extent payment owed to such Lender is not made when due
hereunder, to charge from time to time against any or all of the
Company's accounts with such Lender any amount so due.
(c) All computations of interest in respect of
Eurodollar Advances and interest pursuant to Section 2.06 shall
be made on the basis of a year of 360 days, and all computations
of facility fees and of interest in respect of Base Rate Advances
shall be made on the basis of a year of 365 or 366 days, as the
case may be, in each case for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent (or, in the case
of Section 2.06, by a Lender) of an interest rate hereunder
shall, absent manifest error, be conclusive and binding for all
purposes.
26
<PAGE> 27
(d) Whenever any payment hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment
of interest or facility fee, as the case may be; provided,
however, if such extension would cause a payment in respect of
Eurodollar Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business
Day.
(e) Unless the Administrative Agent shall have
received notice from the Company prior to the date on which any
payment is due to the Lenders hereunder that the Company will not
make such payment in full, the Administrative Agent may assume
that the Company has made such payment in full to the
Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Company shall not have
so made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the rate per annum equal
to the rate customarily used by member banks of the Federal
Reserve System to settle net balances due each other.
SECTION 2.13. Compensation.
_____________
The Company shall compensate each Lender, upon written request by
that Lender (which request shall be submitted to the Company
(with a copy to the Administrative Agent) and shall set forth in
reasonable detail the calculation of such amounts requested, which
shall be based upon a method of determination selected in good faith)
for all losses, reasonable expenses and liabilities (including,
without limitation, any interest paid by that Lender to lenders
of funds borrowed by it to make or carry its Eurodollar Advances
or B Advances and any loss sustained by that Lender in connection
with re-employment of such funds), which that Lender may sustain:
(i) if for any reason (including without limitation the
circumstances set forth in Section 2.02(c) but other than a
default by that Lender) a borrowing of any Eurodollar Advance or
B Advance does not occur on a date specified therefor in a Notice
of Borrowing, (ii) if any repayment of any of its Eurodollar
Advances or B Advances occurs on a date which is not the last day
of any Interest Period for Eurodollar Rate Advances and maturity
date for B Advances, or (iii) as a consequence of any other
default by the Company to repay its Eurodollar Advances when
required by the terms of this Agreement; it being agreed and
understood that each Lender shall use its reasonable efforts to
mitigate any such loss or expense.
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<PAGE> 28
SECTION 2.14. Taxes.
______
(a) Any and all payments by the Company hereunder
shall be made, in accordance with Section 2.12, free and clear
of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (1) in the case of
each Lender and the Administrative Agent, taxes imposed on its
net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any
political subdivision thereof, (2) in the case of each Lender,
taxes imposed on its net income and franchise taxes imposed on it
by the jurisdiction of such Lender's Applicable Lending Office or
any political subdivision thereof and (3) in the case of each
Lender and the Administrative Agent, any taxes imposed by the
United States by means of withholding at the source if and to the
extent that such taxes shall be in effect and shall be
applicable, on the date hereof, to payments to be made to the
Administrative Agent or such Lender's Applicable Lending Office
(all taxes, levies, imposts, deductions, charges, withholdings
and liabilities, other than those excluded pursuant to the
preceding clauses (1), (2) and (3), being hereinafter referred to
as "Taxes"). If the Company shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.14) such Lender or the
Administrative Agent (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 taxing authority or other authority in accordance with
applicable law.
(b) In addition, the Company agrees to pay any present
or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.14)
paid by such Lender or the Administrative Agent (as the case may
be) or any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such
Lender or the Administrative Agent (as the case may be) makes
written demand therefor. Each Lender agrees to provide
reason-
28
<PAGE> 29
ably prompt notice to the Administrative Agent and the
Company of any imposition of Taxes or Other Taxes against such
Lender; provided that failure to give such notice shall not
affect such Lender's right to indemnification hereunder. Each
Lender agrees it will promptly upon request by the Company
furnish to the Company such evidence as is reasonably available
to such Lender as to the payment of the relevant Taxes or Other
Taxes, and that it will, if requested by the Company, cooperate
to the extent reasonable under the circumstances with the Company
in its efforts to obtain a refund or similar release in respect
of such payment.
(d) Within 30 days after the date of any payment of
Taxes, the Company will furnish to the Administrative Agent upon
request of any Lender transmitted through the Administrative
Agent, at its address referred to in Section 8.03, the original
or a certified copy of a receipt evidencing payment thereof. If
no Taxes are payable in respect of any payment hereunder, the
Company will furnish to the Administrative Agent upon request of
any Lender transmitted through the Administrative Agent, at such
address, a certificate from each appropriate taxing authority, or
an opinion of counsel acceptable to the Administrative Agent, in
either case stating that such payment is exempt from or not
subject to Taxes.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement (in the case of
each Lender party hereto on the Effective Date) and on the
effective date specified in the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing
by the Company (but only so long as such Lender remains lawfully
able to do so), shall provide the Company with Internal Revenue
Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such
Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the
income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United
States.
(f) Without prejudice to the survival of any other
agreement of the Company hereunder, the agreements and
obligations of the Company contained in this Section 2.14 shall
survive the payment in full of principal and interest hereunder.
SECTION 2.15. Sharing of Payments, Etc.
_________________________
If any Lender shall obtain any payment (whether voluntarily,
involuntarily, through the exercise of any right of set-off,
or otherwise) on account of the A Advances made by it (other
than pursuant to Section 2.06, 2.09, 2.11(b), 2.13 or 2.14) in
excess of its
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<PAGE> 30
ratable share of payments on account of the A Advances of the
same type obtained by all the Lenders in the same category, such
Lender shall forthwith purchase from such other Lenders such
participations in the A Advances made by them as shall be
necessary to cause such purchasing Lender to share the excess
payment ratably with each of them, provided, however, that on and
after the date that an Event of Default has occurred and the
Total Commitments have been terminated, the foregoing provisions
shall apply to payments on account of, and shall be shared on the
basis of, all Advances outstanding, provided, further, that if
all or any portion of such excess payment is thereafter recovered
from such purchasing Lender, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but
without interest. The Company agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such
Lender were the direct creditor of the Company in the amount of
such participation.
SECTION 2.16. Status of Prior Agreement.
__________________________
The Company, the Administrative Agent and each Lender agree that
the rights of each (if any) under the Fifth Amendment and
Restatement dated as of May 18, 1993 of the Credit Agreement
dated as of May 31, 1976, as amended by the First Amendment dated
as of January 31, 1994 and the Second Amendment dated as of
March 8, 1994 (the "Prior Agreement"), shall (except, as to
outstanding Advances, commitment fees and interest accrued to the
Effective Date, and rights to indemnification and reimbursement of
costs and expenses arising prior to the Effective Date which shall
be governed by the provisions of the Prior Agreement) (i) continue to be
governed by the Prior Agreement until the earlier of the
Effective Date and the termination of the Prior Agreement in
accordance with its terms and (ii) cease and terminate as of
the Effective Date and the rights of each such party shall be
governed by this Agreement on and after such date.
SECTION 2.17. Extension of Commitments.
_________________________
At any time at not more than twenty-seven (27) months nor less than ninety
(90) days prior to the Termination Date applicable to all or any
Lenders, the Company may, at its option, deliver to the
Administrative Agent (which shall promptly deliver to each Lender
that has not theretofore rejected any Extension Request delivered
pursuant to this Section 2.17) a signed copy of an Extension
Request requesting an extension of such Termination Date to a
date one year after such Termination Date. Each Lender may, in its
sole discretion, consent or not consent to any such Extension
Request and, if such Lender so consents, such Lender shall
deliver its consent to such Extension Request to the
Administrative Agent (which shall promptly notify the Company of
such consent) within forty-five (45) days of the date of the
Extension Request. Any Lender that fails to consent to any
Extension
30
<PAGE> 31
Request within such forty-five-day period shall be
deemed to have rejected such Extension Request. If the
Administrative Agent shall not have received, within such forty-
five-day period, consents to such Extension Request from the
Majority Lenders (determined for purposes of this Section 2.17 by
disregarding any Lender which has theretofore rejected any
Extension Request), the Company may elect either (i) to withdraw
the Extension Request by promptly notifying the Administrative
Agent (which shall promptly notify the Lenders originally
receiving the Extension Request) by telephone, telex or telecopy
facsimile of such withdrawal or (ii) to proceed with such
Extension Request by immediately notifying the Administrative
Agent (which shall promptly notify each Lender which consented to
the Extension Request) by telephone, telex or telecopy facsimile,
of the fact that the Majority Lenders have not consented to the
Extension Request and that the Company nonetheless desires such
extension, and any such Lender may, within five (5) Business Days
of its receipt of such notice from the Administrative Agent, by
telephone, telex or telecopy facsimile notice to the
Administrative Agent (which shall promptly notify the Company),
withdraw its consent to such Extension Request. If the Company
withdraws any Extension Request, such Extension Request shall
thereafter be disregarded for all purposes, including the
determination of whether any Lender has rejected an Extension
Request. In the event any Lenders finally consent to any
Extension Request, the Termination Date to be extended pursuant
to such request shall be extended for one year from the then
current Termination Date but only as to such consenting Lenders.
No Interest Period shall extend beyond any Termination
Date, regardless of any Lender's consent to any extension
thereof. The Commitment of any Lender rejecting an Extension
Request with respect to a Termination Date shall expire on such
Termination Date, and the Company shall pay all Advances of such
Lender, and all other amounts due hereunder to such Lender, in
full on such Termination Date.
SECTION 2.18. Evidence of Debt.
_________________
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness
of the Company to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder.
(b) The Register maintained by the Administrative
Agent pursuant to Section 8.04(d) shall include a control
account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date, amount
and tenor, as applicable, of each Borrowing, the Type of Advances
comprising such Borrowing and the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance
deliv-
31
<PAGE> 32
ered to and accepted by it, (iii) the amount of any
principal or interest due and payable or to become due and
payable from the Company to each Lender hereunder, and (iv) the
amount of any sum received by the Administrative Agent from the
Company hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be
conclusive and binding for all purposes, absent manifest error.
(d) Any Lender may at any time request that the
Borrower execute and deliver to such Lender a promissory note (a
"Note"), substantially in the form of Exhibit F annexed hereto,
to evidence such Lender's Advances hereunder. The Borrower
agrees promptly upon its receipt of any such request from a
Lender to execute and deliver a Note to such Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Company.
______________________________________________
The Company represents and warrants as follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, and each of the Subsidiaries is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation. The Company and each of the
Subsidiaries have the corporate power, authority and legal right
to own and operate the assets and properties and conduct the
business now, and proposed to be, owned, operated and conducted
by it. All necessary consents, licenses, permits, approvals or
authorizations of, exemptions by, notices and reports to,
registrations, filings and declarations with, and any other act
by or in respect of, any Person requisite for such ownership,
operation and conduct have been obtained or performed except such
of the foregoing the failure to obtain or perform which would
not, in the aggregate, have a material adverse effect on the
business, operations, assets or financial or other condition of
the Company and the Subsidiaries taken as a whole. The Company
and each of the Subsidiaries are duly qualified as a foreign
corporation and in good standing under the laws of each
jurisdiction where its ownership or leasing of property or
conduct of business requires such qualification and where the
failure to be so qualified or in good standing would, in the
aggregate, have a material adverseeffect on the business, operations,
assets or financial or other condition of the Company and the
Subsidiaries taken as a whole.
(b) The Company has full corporate power, corporate
authority and legal right to execute and deliver this Agreement,
to borrow hereunder and to perform and observe the terms and
provisions hereof.
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<PAGE> 33
(c) The execution and delivery and performance by the
Company of this Agreement have been duly authorized by all
necessary corporate action, require no governmental registrations
or filings or approvals and do not violate or contravene any law
or any order of any court or governmental agency or any
indenture, agreement or other instrument to which the Company is
a party or by which it or any of its properties may be bound.
(d) This Agreement is a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency and reorganization laws and
other similar laws governing the enforcement of lessors' or
creditors' rights and by the effects of specific performance,
injunctive relief and other equitable remedies.
(e) There is no action, suit or proceeding at law
or in equity or by or before any court, governmental agency
or arbitrator now pending or to the knowledge of the Company
threatened against or affecting the Company or the Subsidiaries
or its or their properties which might reasonably be expected to
materially adversely affect the financial condition or operations
of the Company and its consolidated subsidiaries, taken as a
whole, or purports to affect the legality, validity or
enforceability of this Agreement or the Company's ability to
repay any Advances hereunder.
(f) The consolidated balance sheets of the Company
and its consolidated subsidiaries as at December 31, 1992 and
December 31, 1993, and the related consolidated statements of
earnings and surplus for the years then ended, certified by
Deloitte & Touche, independent public accountants, copies of
which have been furnished to each Lender, are complete and
correct in all material respects and fairly set forth the
consolidated financial condition of the Company and its
consolidated subsidiaries as at such dates and the consolidated
results of operations of the Company and its consolidated
subsidiaries for the periods ended on such dates, all in
accordance with GAAP applied on a consistent basis, and since
December 31, 1993, there has been no material adverse change in
such condition or operations which has not been disclosed in
writing to the Lenders prior to the date of this Agreement.
(g) No proceeds of any Advance will be used to acquire
any security of a class which is registered pursuant to Section
12 of the Securities Exchange Act of 1934.
(h) The Company is not engaged principally, or as one
of its important activities, in the business of extending credit
for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance will
be used to purchase or carry any margin stock or to extend credit
33
<PAGE> 34
to others for the purpose of purchasing or carrying any margin
stock, or in any manner which might cause such Advance or the
application of such proceeds to violate (or require any
regulatory filing under) Regulation G, Regulation U or Regulation
X of the Board of Governors of the Federal Reserve System, in
each case as in effect on the date or dates of such Advance and
such use of proceeds.
(i) The Company and its ERISA Affiliates are in
substantial compliance with ERISA, none of the Company or any of
its ERISA Affiliates has incurred any material funding deficiency
within the meaning of ERISA and none of the Company or any of its
ERISA Affiliates has incurred any material liability to the PBGC
in connection with any employee benefit plan (or other class of
benefit plan which the PBGC has elected to insure) established or
maintained by the Company or any of its ERISA Affiliates. To the
knowledge of the Company, after due inquiry made at the time of
the spin off referred to below, The Dial Corp, an Arizona
corporation ("Dial"), was at the time of its distribution of 100%
of the Capital Stock of the Company and the Subsidiaries to the
shareholders of Dial (the "spin off"), in substantial compliance
with ERISA, and the Company had no material liability to the PBGC
in connection with any employee benefit plan (or other class of
benefit plan which the PBGC has elected to insure) established or
maintained by Dial or any of its ERISA Affiliates at such time.
(j) Neither the Company nor any Subsidiary is an
"investment company" or a company controlled by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended.
(k) Except for limited recourse indebtedness and
Secured Indebtedness permitted hereunder (and, during the period
from the date of this Agreement to the later of (i) the date
occurring 45 days after the Effective Date and (ii) June 30,
1994, except for indebtedness incurred in connection with the
acquisition of TriCon), the obligations of the Company under this
Agreement to pay the principal of and interest on the Advances
and any and all other amounts due hereunder rank and will rank,
as to payment and security, at least pari passu with the highest
ranking indebtedness of the Company for borrowed money or under
guarantees or in respect of any indenture, contract, agreement or
other instrument to which the Company is a party or by which it
is bound evidencing or securing any obligation of the Company for
borrowed money whether now existing or incurred hereafter.
(l) Neither the Company nor any Subsidiary has any
liabilities or incurs any costs with respect to compliance with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or
operating expenditures required to achieve or maintain compliance
with environmental protection standards imposed by law or as a
condi-
34
<PAGE> 35
tion to any license, permit or contract, any related
constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of
or change in the nature of operations conducted thereat and any
actual or potential liabilities to third parties, including
employees, and any related costs and expenses) which will have,
and the Company otherwise believes that Environmental Laws are
unlikely to have, a material adverse effect on the business,
financial condition, results of operations or prospects of the
Company and the Subsidiaries, taken as a whole.
ARTICLE IV
COVENANTS
SECTION 4.01. Affirmative Covenants.
______________________
During the period of this Agreement and so long as any Commitment
or Advance is outstanding, the Company will, unless the Majority Lenders
shall otherwise consent in writing:
(a) Furnish to each Lender (i) within 45 days after
the close of each of the first three quarters of the Company's
fiscal year, a consolidated balance sheet, surplus statement and
income statement of the Company and its consolidated
subsidiaries, as of the end of such quarter, certified by an
authorized officer of the Company, together with (A) a statement
of such authorized officer of compliance with the provisions of
Section 4.02 hereof (which shall be substantially in the form of
Exhibit B hereto and which shall be completed in accordance with
GAAP (except as otherwise expressly specified herein) applied on
a consistent basis) and (B) a statement of such authorized
officer that as of the end of such period no Event of Default, or
event which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, exists
(or, if the same exists, a description thereof), (ii) within 90
days after the close of the Company's fiscal year, a copy of the
annual audit report of the Company and its consolidated
subsidiaries, certified by independent public accountants of
recognized standing acceptable to the Administrative Agent, and
a statement of such accountants of compliance with the provisions
of Section 4.02 hereof (completed as specified in clause (A)
above) together with audited financial statements consisting of
a consolidated balance sheet of the Company and its consolidated
subsidiaries, as of the end of such fiscal year, and consolidated
statements of income, cash flows and shareholders' equity of the
Company and its consolidated subsidiaries, for such fiscal year,
and (iii) such other information respecting the financial
condition and operations of the Company and its consolidated
subsidiaries as any Lender may from time to time reasonably
request.
(b) Furnish to each Lender (i) promptly upon
becoming aware of the occurrence of any (A) Termination Event,
or (B) "prohibited transaction," as such term is defined in
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<PAGE> 36
Section 4975 of the Code, or Section 406 of ERISA, in connection
with any Plan or any trust created thereunder, a written notice
specifying the nature thereof, what action the Company has taken,
is taking or proposes to take with respect thereto, and, when
known, any action taken or threatened by the Internal Revenue
Service, the Department of Labor, or the PBGC with respect
thereto and (ii) with reasonable promptness, copies of (A) all
notices received by the Company or any of its ERISA Affiliates
of the PBGC's intent to terminate any Plan or to have a trustee
appointed to administer any Plan; (B) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by the
Company or GFC Financial with the Internal Revenue Service with
respect to each Plan; and (C) all notices received by the Company
or any of its ERISA Affiliates from a multiemployer plan sponsor
concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA.
(c) Use all proceeds of Advances for general corporate
purposes, including, without limitation, the repayment of
maturing Commercial Paper.
(d) Duly pay and discharge or cause to be paid and
discharged, and cause the Subsidiaries to duly pay and discharge
or cause to be paid and discharged, all taxes, assessments
and governmental charges or levies imposed upon it or the
Subsidiaries or against its properties or the properties of
the Subsidiaries prior to the date on which penalties become due
and payable, unless and to the extent only that the same shall
be contested in good faith and by appropriate proceedings by the
Company, the Subsidiaries or any other Person liable with respect
thereto, and the Company shall set aside, and cause the
Subsidiaries to set aside, on its books or the books of the
Subsidiaries, adequate reserves with respect to any such tax,
assessment, charge or levy so contested.
(e) Immediately notify the Administrative Agent of
(i) any litigation or other proceedings commenced or threatened
affecting the Company or any of the Subsidiaries that, in the
opinion of the Company's counsel materially adversely affects
the Company and the Subsidiaries, taken as a whole, or (ii) the
occurrence of any Event of Default, or event which would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
(f) Immediately notify the Administrative Agent of
any change in the ratings of the Company's Long-term Debt by S&P,
Moody's or D&P.
(g) Promptly upon any account receivable, in an
outstanding principal amount exceeding $20,000,000, becoming more
than 90 days past due, provide to the Administrative Agent, for
distribution to the Lenders, a written statement detailing the
status of the account, the most recent valuation of any
collat-
36
<PAGE> 37
eral security therefor and any factors the Company believes
are reasonably likely to mitigate or contribute to credit losses
from such account.
(h) Perform and comply, and cause the Subsidiaries to
perform and comply, with all material obligations of the Company
and the Subsidiaries under all laws applicable to the Company or
the Subsidiaries and all indentures, agreements or other
instruments to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries or any
of its or their properties is bound.
(i) Maintain, and cause each Subsidiary to maintain,
insurance with responsible and reputable insurance companies or
associations in such amount and covering such risks as is usually
carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company
or such Subsidiary operates, and/or require each lessee of
equipment to maintain insurance for the benefit of the Company
or any Subsidiary which is the lessor of such equipment, with
responsible and reputable insurance companies or associations in
an amount not less than the book value of such equipment to the
lessor; provided, however, the Company or any such lessee may
itself insure or retain risks if and to the extent such risks
can be, under common industry practice, self-insured.
(j) Preserve and maintain, and cause each of the
Subsidiaries to preserve and maintain, its corporate existence,
rights (charter and statutory) and franchises; and maintain and
preserve, all of its properties which are used or useful in the
conduct of its business in good working order and condition,
ordinary wear and tear excepted; provided, however, that this
subsection (j) shall not apply in any case when, in the good
faith business judgment of the Company, such preservation or
maintenance is either not necessary or not appropriate for the
prudent management of the business of the Company.
(k) Permit any authorized representative designated
by the Administrative Agent or any Lender at the expense of the
Administrative Agent or such Lender, to visit and inspect any
of the properties of the Company or any of the Subsidiaries,
including its and their financial and accounting records, and to
take extracts therefrom, and to discuss its and their affairs,
finances and accounts with its and their officers and independent
public accountants, all as reasonably deemed necessary or
appropriate by the Administrative Agent or such Lender, during
normal business hours, upon reasonable notice and as often as
may be reasonably requested.
(l) Comply, and cause each of the Subsidiaries to
comply, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, complying with
all Environmental Laws and employee benefit laws, except where
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<PAGE> 38
failure to so comply would not have a material adverse effect on
the business, condition (financial or otherwise), operations or
properties of the Company and the Subsidiaries, taken as a whole.
(m) Cause TriCon to merge into the Company on or
before the later of (i) the date occurring 45 days after the
Effective Date and (ii) June 30, 1994.
SECTION 4.02. Negative Covenants.
___________________
During the period of this Agreement and so long as any Commitment
or Advance is outstanding, the Company will not, without the prior written
consent of the Majority Lenders:
(a) Permit the ratio of total outstanding Indebtedness
of the Company and its consolidated subsidiaries to Stockholders'
Equity to be greater than (i) 6.50 to 1.00 at any time on or
after the Effective Date through June 29, 1995, (ii) 6.75 to 1.00
at any time on or after June 30, 1995 through March 30, 1996 and
(iii) 7.00 to 1.00 at any time on or after March 31, 1996;
provided that, notwithstanding anything to the contrary above,
(x) at any time that Long-term Debt is rated such that Level 4 or
Level 5 would apply to the determination of the applicable Margin
hereunder, then the permitted maximum ratio shall be the then
current permitted maximum ratio at all times thereafter and
(y) at any time that Long-term Debt is rated such that Level 1 or
Level 2 would apply to the determination of the applicable Margin
hereunder, then the permitted ratio shall be 7.00 to 1.00 at all
times thereafter; provided further, that, if the circumstances
set forth in clause (x) and clause (y) occur, the operative and
controlling clause shall be the clause which first became
operative and controlling.
(b) Create, incur, assume or suffer to exist any
Secured Indebtedness of the Company or any Subsidiary, except
(i) Indebtedness secured by assignments of leases where the
recourse of the payee of such Indebtedness is expressly limited
to the lessor's interest in such leases, the rents and other
amounts due thereunder and/or the equipment or property leased
thereunder or proceeds therefrom, (ii) Secured Indebtedness
incurred in transactions in which the Company is the lessee and
sublessor of the equipment or property securing such Secured
Indebtedness where the recourse of the payee of such Secured
Indebtedness is expressly limited to the lessor's interest in
leases, the rents and other amounts due thereunder and/or the
equipment or property leased thereunder; provided that the
amounts due under the sublease of the equipment or property are
not less than the amounts due under the lease for such equipment
or property, and (iii) other Secured Indebtedness in an amount
not to exceed an aggregate of $15,000,000 at any one time
outstanding which may be secured by assets or property having any
aggregate fair market value, as reasonably determined by the
Company, not exceeding $30,000,000.
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<PAGE> 39
(c) Permit the ratio of (A) the sum of Consolidated
Net Income (but exclusive of extraordinary, unusual or
non-recurring gains or losses not incurred in the ordinary course
of business of the Company and the Subsidiaries) plus income
taxes plus interest expense of the Company and the Subsidiaries
to (B) interest expense of the Company and the Subsidiaries, in
each case for the twelve-month period ending on the last day of
any fiscal quarter of the Company to be less than 1.25:1.00.
(d) Permit the greatest Exposure of the Company and
the Subsidiaries to exceed 15% of Stockholders' Equity; provided
that the Company shall not be liable for violations of this
covenant if such violation occurs as a result of the merger or
consolidation of one or more non-affiliated Persons so long as
the Company does not take any action thereafter to increase its
Exposure to such Person other than within the context of a
workout or insolvency where the Company believes such increase is
necessary to protect its financial interests or within the
context of an extension of the scheduled maturity of an existing
credit.
(e) Permit the aggregate unpaid principal amount of
Commercial Paper or other short-term Indebtedness supported by
committed lines of credit of the Company and the Subsidiaries (or
of any one or more of them) to exceed at any time the sum of the
unused portion of (i) the Total Commitments and (ii) the Total
Commitments under (and as defined in) the Short Term Facility
Credit Agreement and (iii) other commitments and committed lines
of credit containing provisions for the renewal and repayment,
over a period of at least 364 days, of the Indebtedness
thereunder from commercial banks and other financial
institutions, which banks and financial institutions shall be
reasonably acceptable to the Administrative Agent.
(f) Merge or consolidate, nor will it permit or suffer
any Subsidiary to merge or consolidate with or into any Person
and will not, nor permit any Subsidiary to, sell, lease or
otherwise dispose of all, or in excess of 10% of, the
consolidated gross assets (determined in accordance with GAAP but
excluding intangibles) of the Company and the Subsidiaries to any
Person in a single transaction or series of related transactions;
provided, however, that (i) any Subsidiary may merge into, or
sell, lease or otherwise dispose of all, or any part, of its
assets to any other Subsidiary or the Company if such merger or
such sale, lease or other disposition does not result in a
default by the survivor or transferee under any agreement
(including this Agreement) to which any party to such merger or
such sale, lease or other disposition is then a party, (ii) the
Company may sell all or part of its properties to, or merge or
consolidate with, another corporation if: (A) the corporation
(herein called the "Surviving Corporation") to which such sale is
made, or which results from such merger or consolidation, is
organized under the laws of the United States of America or a
jurisdiction thereof;
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<PAGE> 40
(B) the due and punctual performance and observance of all the provisions
of this Agreement to be performed or observed by the Company are
expressly assumed in a writing by the Surviving Corporation satisfactory
to the Administrative Agent; (C) the beneficial interest in and control
of 100% of the issued and outstanding Capital Stock of the
Company (if it is the Surviving Corporation) or 100% of the
issued and outstanding Capital Stock of the Surviving
Corporation shall, immediately after such merger, consolidation,
sale or other disposition, be owned by GFC Financial, free and
clear of all liens, security interests, charges or other
encumbrances; (D) the Surviving Corporation shall be engaged in
the finance business; (E) immediately after the consummation of
the transaction, and after giving effect thereto, no default by
the Surviving Corporation exists under any agreement (including
this Agreement) by which it is then bound; and (F) immediately
after the consummation of the transaction, and after giving
effect thereto, the Surviving Corporation shall have a Tangible
Net Worth equal to or exceeding 95% of the Tangible Net Worth of
the Company immediately preceding the consummation of the
transaction; (iii) the Company or any Subsidiary may sell or
discount receivables for fair value in arms length transactions;
and (iv) the Company may sell, transfer or otherwise dispose of
Greyhound European Financial Group or the assets thereof.
(g) Declare or pay any dividends, purchase, redeem,
retire or otherwise acquire for value any of its Capital Stock
now or hereafter outstanding, return any capital to its
stockholders as such, or make any distribution of assets to its
stockholders as such, or permit any Subsidiary to do any of the
foregoing, except that with respect to its Capital Stock:
(i) the Subsidiaries may declare and make payment of cash and
stock dividends, return capital and make distributions of assets
to other Subsidiaries or to the Company and (ii) the Company may
(A) declare and deliver stock dividends, and (B) declare and pay
any cash dividends on its Capital Stock to its stockholders and
purchase, redeem, retire or otherwise acquire shares of its own
outstanding Capital Stock if, after giving effect thereto, the
aggregate payments for all such purposes subsequent to
December 31, 1991 would not exceed 50% of Consolidated Net Income
subsequent to December 31, 1991.
(h) Permit Stockholders' Equity to be less than the
sum of (i) the greater of (x) Stockholders' Equity on the
Effective Date less $100,000,000 and (y) $600,000,000, plus
(ii) 50% of cumulative consolidated net income for all fiscal
quarters ending after the TriCon Acquisition Date (determined
without making any reduction in the amount thereof by reason of
any net loss arising in any fiscal quarter) plus (iii) 50% of the
net proceeds received by the Company or any Subsidiary after the
Effective Date through the sale of any equity of the Company
(other than stock sold to employees of the Company or any
Subsid-
40
<PAGE> 41
iary upon such employees' exercise of employee or executive
stock options).
(i) Create, assume, incur or suffer to be created,
assumed or incurred or to exist, or permit any Subsidiary to
create, assume, incur or suffer to be created, assumed or
incurred or to exist, any Lien upon any of the properties of any
character of the Company or any Subsidiary without making
effective provision whereby all Advances shall be secured equally
and ratably with (or prior to) any other obligation or
indebtedness so secured, so long as any such other obligation or
indebtedness remains secured; except, however, that,
notwithstanding the foregoing, the Company or any Subsidiary,
without so securing the Advances, may
(i) lease property to others in the ordinary
course of the business of the Company or any Subsidiary
or lease or sublease any property if the property subject
thereto is not needed by the Company or any Subsidiary
in the operation of its business;
(ii) create, incur or assume Liens or permit Liens
to be created, assumed, incurred or to exist if the Liens
are created, incurred and assumed in connection with Secured
Indebtedness permitted under Section 4.02(b);
(iii) make any deposit with or give any form
of security to any governmental agency or other body created
or approved by law or governmental regulation to enable the
Company or such Subsidiary to maintain self-insurance, or to
participate in any fund in connection with workmen's
compensation, unemployment insurance, old-age pensions, or
other social security, or to share in any privileges or
other benefits available to corporations participating in
any such arrangement, or for any other purpose at any time
required by law or regulation promulgated by any
governmental agency or office as a condition to the transaction of
any business or the exercise of any privilege or license, or deposit
assets of the Company or such Subsidiary with any surety
company or clerk of any court, or in escrow, as collateral
in connection with, or in lieu of, any bond on appeal by
the Company or such Subsidiary from any judgment or decree
against it, or in connection with any other proceedings in
actions at law or suits in equity by or against the Company
or such Subsidiary;
(iv) incur or suffer to be incurred or to exist
upon any of its property or assets (a) Liens for taxes,
assessments or other governmental charges or levies which
are not yet due or are payable without penalty or of which
the amount, applicability or validity is being contested by
the Company or such Subsidiary in good faith by appropriate
proceedings and the Company or such Subsidiary shall have
41
<PAGE> 42
set aside on its books reserves which it deems to be
adequate with respect thereto (segregated to the extent
required by GAAP), provided that foreclosure, distraint,
sale or similar proceedings have not been commenced, (b) the
Liens of any judgment, if such judgment shall not have
remained undischarged, or unstayed on appeal or otherwise,
for more than six months, (c) undetermined Liens or charges
incident to construction, (d) materialmen's, mechanics',
workmen's, repairmen's or other like Liens arising in the
ordinary course of business in respect of obligations which
are not overdue or which are being contested by the Company
or such Subsidiary in good faith by appropriate proceedings,
or deposits to obtain the release of such Liens, or (e) any
encumbrances consisting of zoning restrictions, licenses,
easements and restrictions on the use of real property and
minor defects and irregularities in the title thereto, which
do not materially impair the use of such property by the
Company or such Subsidiary in the operation of its business
or the value of such property for the purpose of such
business;
(v) create other Liens incidental to the conduct
of its business or the ownership of its property and assets
which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit, and which do
not in the aggregate materially detract from the value of
its property or assets or materially impair the use thereof
in the operation of its business;
(vi) create or suffer to be created or to exist in
favor of any lender of moneys or holder of commercial paper
of the Company or a Subsidiary in the ordinary course of
business a banker's lien or right of offset in the holder of
such indebtedness or moneys of the Company or a Subsidiary
deposited with such lender or holder in the ordinary course
of business; and
(vii) create or suffer to be created or to
exist with respect to any of its property leasehold or
purchase rights, exercisable for a fair consideration, in
favor of any Person which arise in transactions entered into
in the ordinary course of business.
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. Conditions Precedent to Effectiveness.
______________________________________
The effectiveness of this Agreement is subject to the prior or
concurrent satisfaction of the following conditions and the
Administrative Agent shall have received for the account of each
Lender the following, each, unless otherwise noted, dated the
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<PAGE> 43
Effective Date, and in form and substance satisfactory to the
Administrative Agent and Agents:
(a) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement and of all
other documents evidencing necessary corporate or governmental
action with respect to this Agreement, together with a signed
copy of a certificate of the Secretary or an Assistant Secretary
of the Company, certifying the name(s) of the officer(s) of
the Company authorized to sign on behalf thereof this Agreement,
together with the true signature(s) of such officer(s) and, with
respect to the Company, the name(s) and/or title(s) of the
officer(s) authorized to make requests for Advances pursuant
to Section 2.02 or Section 2.03 hereof. Each Lender may
conclusively rely on such certificate of the Company until it
shall receive a further certificate of a Secretary or Assistant
Secretary of the Company cancelling or amending the prior
certificate and submitting the true signatures of the officers
named in such further certificate.
(b) A signed copy of a favorable opinion of W. J.
Hallinan, Vice President-General Counsel and Secretary of the
Company, substantially in the form of Exhibit D hereto and as
to such other matters as any Lender through the Administrative
Agent may reasonably request, which opinion the Company hereby
authorizes and instructs such counsel to prepare and deliver.
(c) A signed copy of an opinion of O'Melveny & Myers,
counsel for Citibank, to the effect that while they have not
independently considered the matters covered by the opinion
furnished pursuant to paragraph (b) of this Section 5.01 to the
extent necessary to enable them to express the conclusions stated
therein, (i) such opinion, this Agreement and the other documents
furnished pursuant to the preceding provisions of this Section
5.01 and pursuant to Section 5.02 appear to be in substantially
acceptable legal form, and (ii) such opinion and other documents
are substantially responsive to the requirements of this
Agreement.
(d) The representations and warranties contained in
Section 3.01 hereof shall be true and accurate on and as of the
day hereof, and no event shall have occurred and be continuing
which constitutes an Event of Default hereunder or which would
constitute such an Event of Default but for the requirement that
notice be given or time elapse or both, and the Company shall
deliver a certificate of the President, any Vice President or the
Chief Financial Officer of the Company to such effect.
(e) A certificate of an authorized officer of the
Company to the effect that since December 31, 1993, there has
been no material adverse change in the operations, business or
financial or other condition or properties of the Company and its
Subsidiaries, taken as a whole.
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<PAGE> 44
(f) The Company and the lenders thereunder shall have
executed and delivered the Short Term Facility Credit Agreement
and all conditions precedent to the effectiveness of the Short
Term Facility Credit Agreement shall have been satisfied.
(g) (i) The TriCon Acquisition Date shall have
occurred, (ii) any notes, indentures or other instruments or
agreements relating to the financing of the TriCon acquisition by
Bell Atlantic Corporation or its affiliates shall be in form and
substance satisfactory to each of the Lenders and (iii) after the
TriCon Acquisition Date, GFC Financial shall have received at
least $200,000,000 of gross proceeds from the offer and sale of
its common and/or preferred stock (of which at least $150,000,000
shall have been from the offer and sale of its common stock), and
GFC Financial shall have applied the net proceeds from such
$200,000,000 gross proceeds as a contribution to the common
stock equity of the Company.
(h) Such other documents, certificates, information
and agreements as any Lender may require.
(i) Each of the Agents and the Lenders shall have
received all fees previously agreed by the Company as being
payable on the Effective Date to it.
SECTION 5.02. Conditions Precedent to Each A Advance.
_______________________________________
The obligation of each Lender to make an Advance on the occasion
of each Borrowing is subject to the further conditions precedent
that, on the date of such Borrowing,
(a) the following statements shall be true, and the
Administrative Agent shall have received (or will receive with
the Notice of A Borrowing as set forth in Section 2.02(a) hereof
or Notice of B Borrowing as set forth in Section 2.03(a) hereof,
as applicable) for the account of such Lender a certificate
signed by a duly authorized officer of the Company, dated the
date of such Borrowing, stating that:
(i) The representations and warranties contained
in Section 3.01 hereof (excluding those contained in
paragraphs (e) and (f) thereof) are true and accurate on and
as of the date of such borrowing as though made on and as of
such date;
(ii) No circumstances exist that in the Company's
reasonable opinion would materially impair the Company's
ability to repay all outstanding Advances; and
(iii) No event has occurred and is continuing
or would result from such Borrowing which constitutes an
Event of Default hereunder or which would constitute such an
Event of Default but for the requirement that notice be
given or time elapse or both; and
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<PAGE> 45
(b) the Administrative Agent shall have received such
other approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request.
SECTION 5.03. Conditions Precedent to Certain Borrowings.
___________________________________________
The obligation of each Lender to make a B Advance or
that portion of an A Advance on the occasion of any A Borrowing
which would increase the aggregate outstanding amount of A
Advances owing to such Lender over the aggregate amount of such
A Advances outstanding immediately prior to the making of such
A Advance shall be subject to the further conditions precedent
that on the date of such Borrowing (i) the representation and
warranty contained in subsection (e) of Section 3.01 are correct
on and as of the date of such Advance as though made on and as of
such date and (ii) the certificate furnished pursuant to Section
5.02 shall include a statement to the effect of clause (i) above;
provided, however, that, if the Company is unable to make the
representation and warranty contained in subsection (e) of
Section 3.01 on the date of an Advance by reason of there being
an action, suit or proceeding at law or in equity pending or
threatened against the Company or the Subsidiaries which purports
to affect the legality, validity or enforceability of this
Agreement or the Company's ability to repay any Advances
hereunder, such representation and warranty shall be deemed to be
made for purposes of this Section 5.03 if the certificate
furnished pursuant to Section 5.02 shall be accompanied by an
opinion of counsel to the Company in form and substance
reasonably satisfactory to the Administrative Agent, stating that
such litigation, in the opinion of such counsel, is of no merit
insofar as itconcerns the legality, validity or enforceability of this
Agreement or the Company's ability to repay any Advances
hereunder.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
__________________
If any of the following Events of Default shall occur and be continuing:
(a) The Company shall fail to pay when due (i) any
interest or principal in respect of any Advance or (ii) any fee
payable pursuant to Section 2.10; or
(b) Any representation or warranty made in connection
with the execution and delivery of this Agreement or in any
certificate or instrument furnished pursuant hereto shall prove
to have been incorrect in any material respect when made or
deemed made; or
(c) The Company shall default in the performance of
any other term, covenant or agreement contained herein, and such
default shall continue unremedied for a period of ten days after
written notice thereof shall have been given to the Company by
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<PAGE> 46
the Administrative Agent (which shall give such notice only with
the consent of, or if requested by, Lenders having at least 51%
of the Total Commitments); or
(d) The Company or any Subsidiary (other than Pine Top Insurance
Company, Ltd.) shall fail to pay any indebtedness for borrowed money or any
other obligation (other than hereunder) (including any final or nonappealable
and unstayed judgment or order for the payment of money) which is outstanding
in a principal amount exceeding $15,000,000 owing by the Company or such
Subsidiary (as the case may be), or any interest or premium thereon when due
(or if permitted by the terms of the relevant document, within any applicable
grace period), whether such indebtedness or obligation shall become due by
scheduled maturity, by required prepayment, by acceleration, by demand or
otherwise; or the Company or any Subsidiary (other than Pine Top Insurance
Company, Ltd.) shall fail to perform any term, covenant or agreement on its
part to be performed under any agreement or instrument (other than this
Agreement) evidencing or securing or relating to any indebtedness for borrowed
money or any other obligation which is outstanding in a principal amount
exceeding $15,000,000 owing by the Company or any Subsidiary (as the case may
be) when required to be performed (or, if permitted by the terms of the
relevant document, within any applicable grace period) or any other event shall
occur, if the effect of such failure or other event is to accelerate, or to
permit the holder or holders of such indebtedness or obligations or the trustee
ortrustees under any such agreement or instrument to accelerate, the maturity
of such indebtedness; or
(e) An "Event of Default" under and as defined in the
Short Term Facility Credit Agreement shall have occurred and be
continuing.
(f) This Agreement shall, at any time after its
execution and delivery and for any reason attributable to the
Company, cease to be in full force and effect or shall be
declared to be null and void, or the validity or enforceability
hereof shall be contested by the Company, or the Company shall
deny that it has any further liability or obligation under this
Agreement; or
(g) The Company shall make an assignment for the
benefit of creditors, or shall admit in writing its inability
or shall be unable to pay its debts as they become due, or
shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or shall file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution, order for relief or similar relief
under any present or future statute, law or regulation, or shall
file any answer admitting or not contesting the material
allegations of a petition filed against the Company in any such
proceeding, or
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<PAGE> 47
shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of the Company or of all or any substantial part
of the properties of the Company, or if the Company shall take any action
looking to the dissolution or liquidation of the Company or a court having
jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under
federal bankruptcy laws now or hereafter in effect or any
proceeding shall be instituted by or against the Company seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of
a receiver, trustee, or other similar official for it or for any
substantial part of its property, and if instituted against the
Company, remains undismissed and unstayed for a period of 60
days; or the Company shall take any corporate action to authorize
any of the actions set forth above in this subsection (g); or
(h) (i) The Company or any of its ERISA Affiliates
shall fail to make full payment when due of all amounts
which, under the provisions of any Plan or Section 412 of
the Code, the Company or any of its ERISA Affiliates is
required to pay as contributions thereto;
(ii) Any accumulated funding deficiency (as
defined in Section 412 of the Code) occurs or exists,
whether or not waived, with respect to any Plan; or
(iii) Any Termination Event with respect to a
Plan shall have occurred, and, 30 days after notice thereof
shall have been given to the Company by the Administrative
Agent or any Lender, (i) such Termination Event (if
correctable) shall not have been corrected and (ii) the then
present value of such Plan's vested benefits exceeds the sum
of (A) the fair market value of the assets accumulated in
such Plan and (B) any related balance sheet accruals, by
more than $1,000,000 (or, in the case of a Termination Event
involving a "substantial employer" (as defined in Section
4001(a)(2) of ERISA), the withdrawing employer's
proportionate share of such excess shall exceed such
amount);
then, and in any such event (other than an event described in
subsection (g) hereof), the Administrative Agent shall at the
request, or may with the consent, of the Majority Lenders, by
notice to the Company, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against
the Company, (i) declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) cause all of the Advances, all interest
thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon all Advances, all such
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<PAGE> 48
interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by
the Company. If an Event of Default described in subsection (g)
hereof occurs, any obligation on the part of the Lenders
hereunder shall automatically terminate and all sums of
principal, interest and fees remaining on the Advances shall be
immediately due and payable without notice, presentment, demand
or notices of any kind, all of which are expressly waived.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND AGENTS
SECTION 7.01. Authorization and Action.
_________________________
Each Lender hereby appoints and authorizes the Administrative Agent and
Agents to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the
Administrative Agent and Agents by the terms hereof, together
with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement, the
Administrative Agent and Agents shall not be required to exercise
any discretion or take any action, but shall be required to act
or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of
Lenders having at least 51% of the Total Commitments and such
instruction shall be binding upon all Lenders; provided, however,
that neither the Administrative Agent nor any Agent shall be
required to take any action which exposes the Administrative
Agent or such Agent, as the case may be, to personal liability
or which is contrary to this Agreement or applicable law.
SECTION 7.02. Agents' Reliance, Etc.
______________________
None of the Administrative Agent, any Agent or any of their respective
directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, each of the Administrative Agent
and Agents: (i) may treat the Lender making any Advance as the
holder thereof until the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by such Lender,
as assignor, and an Eligible Assignee, in accordance with Section
8.04; (ii) may consult with legal counsel (including counsel for
the Company), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions
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<PAGE> 49
of this Agreement on the part of the Company or to inspect the property
(including the books and records) of the Company, except as expressly set
forth herein; (v) shall not be responsible to any Lender for the due
execution (other than its own due execution), legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telegram, telex or telecopy
facsimile) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION 7.03. Citibank, BofA , Chemical, BofM, NatWest
________________________________________
and Their Affiliates.
_____________________
With respect to its Commitment and the Advances made by it, Citibank,
BofA, BofM, Chemical, NatWest or any Agent, as the case may be, shall
have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Administrative Agent or an
Agent, as the case may be; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include each of
Citibank, BofA, BofM, Chemical, NatWest and any Agent in its
individual capacity. Citibank, BofA, BofM, Chemical, NatWest and
each Agent and their respective affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Company, any
of the Subsidiaries and any person or entity who may do business
with or own securities of the Company or any Subsidiary, all as
if Citibank, BofA, BofM, Chemical, NatWest or such Agent were not
the Administrative Agent or an Agent, as the case may be, and
without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision.
_______________________
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, any Agent or any other Lender and based
on the financial statements referred to in Section 3.01 and such
other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent,
any Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05. Indemnification.
________________
The Lenders agree to indemnify the Administrative Agent and each Agent
(to the extent not reimbursed by the Company), ratably according to the
respective amounts of the A Advances then held by each of them (or if no
A Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments, or, if an Event of Default shall have occurred
and the Total Commitments shall have been terminated, ratably according to
the respective amounts of
49
<PAGE> 50
the Advances then held by each of them), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Administrative Agent or
such Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Administrative Agent or such Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's or such Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent and each Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent or such Agent in connection with the preparation,
execution, administration, or enforcement of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent or such Agent is not reimbursed for such expenses by the
Company.
SECTION 7.06. Successor Agent.
________________
The Administrative Agent and any Agent may resign at any time by giving
written notice thereof to the Lenders and the Company and the
Administrative Agent may be removed at any time with or without
cause by Majority Lenders. Upon any such resignation or removal
of the Administrative Agent, Majority Lenders shall have the
right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by
Majority Lenders, and if no successor Administrative Agent shall
have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
removal of the retiring Administrative Agent by Majority Lenders,
then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States
of America or of any State thereof and having combined capital
and surplus of at least $500,000,000 or a Lender. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. Except as otherwise
specifically designated herein, none of the Lenders identified on
the signature pages of this Agreement as an Agent shall have any
right, power, obligation, liability, responsibility or duty under
this Agreement other than
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<PAGE> 51
those applicable to all Lenders as such. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders so identified
as an Agent in deciding to enter into this Agreement or in taking or not
taking action hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. No Waiver; Amendments.
______________________
No failure or delay on the part of the Administrative Agent or any Lender
or the Company in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right or power preclude any other or further
exercise thereof or the exercise of any other right or power
hereunder. No amendment, modification or waiver of any provision
of this Agreement, nor consent to any departure by any party
therefrom, shall in any event be effective unless the same shall
be in writing and consented to by the Majority Lenders and the
Company (except that no such amendment, modification, waiver or
consent which would increase any Lender's Commitment, reduce, or
postpone any date fixed for any payment of, principal of, or
interest on, the A Advances or any fees or other amounts payable
hereunder or change the percentage of the Commitments or of the
aggregate unpaid principal amount of the A Advances which shall
be required for the Lenders or any of them to take action
hereunder (including, without limitation, any amendment to the
definition of "Majority Lenders" or this Section 8.01) or which
would affect any provision contained in Section 5.01, Section
5.02 (if and to the extent that the Borrowing which is the
subject of such amendment, waiver or consent would involve an
increase in the aggregate amount of Advances over the aggregate
amount of Advances outstanding immediately prior to such
Borrowing), Section 5.03, this Section 8.01 or Section 8.05 shall
be effective unless consented to by all Lenders then having a
Commitment) and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which
given; provided, however, that the amount of any Lender's
Commitment may be raised by agreement in writing between the
Company and such Lender, with notice thereof to each other Lender
then having a Commitment and to the Administrative Agent;
provided further, that any amendment, modification, termination
or waiver of the principal amount of any B Advance or payments or
prepayments by the Company in respect thereof, the scheduled
maturity dates of any B Advance, the dates on which interest is
payable and decreases in interest rates borne by B Advances shall
not be effective without the written concurrence of the Lender
which has funded such B Advance. No amendment, modification or
waiver of or consent with respect to any provision contained in
Article VII shall be effective unless consented to by the
Administrative Agent. No notice to or demand on any party in any
case shall entitle such party to any other or further notice or
demand in similar or other circumstances.
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<PAGE> 52
SECTION 8.02. New Lenders.
____________
At any time when any Lender shall have a Commitment, if no event
has occurred and is continuing which constitutes an Event of
Default or which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, the Company
may notify the Administrative Agent and the Lenders that it desires to add
one or more additional lenders to the Lenders hereunder;
provided, however, that no such new lender will have a Commitment
larger than the largest Commitment of a Lender. Such notice
shall identify each such lender, the amount of its proposed
Commitment and the proposed effective date of its inclusion
hereunder (which shall be the last day of all then current
Interest Periods if there are Base Rate Advances or Eurodollar
Advances then outstanding from the Lenders). Upon such proposed
date, such lender shall become a Lender hereunder for all
purposes and to the same effect as if set forth on the signature
pages hereof, subject to its execution where indicated below and
delivery to the Administrative Agent of at least one counterpart
of this Agreement (which shall be deemed to include all
amendments thereto) and the execution and delivery by the
Administrative Agent and the Company of each such counterpart.
SECTION 8.03. Notices, Etc.
_____________
All communications and notices provided for hereunder, unless
otherwise specified in this Agreement, shall be in writing
(including telecopier, telegraphic, telex or cable communication)
and, if to the Company, mailed, telecopied, telegraphed, telexed, cabled or
delivered to it, addressed to it at Dial Tower, Phoenix, Arizona
85077-1215 (Telecopier Number: (602) 207-5543), Attention of
Treasurer's Department, and if to any Lender, mailed, telecopied,
telegraphed, telexed, cabled or delivered to it, addressed to it
at its Domestic Lending Office as set forth on the signature
pages hereof, and, if to the Administrative Agent, mailed,
telecopied, telegraphed, telexed, cabled or delivered to it,
addressed to it c/o Citicorp USA, Inc., 1 Sansome Street, San
Francisco, California 94104 (Telecopier Number: (415) 433-0307),
Attention: Cindy Lee; or, as to each party, at such other
address as shall be designated by such party in a written notice
to each other party. All such notices and communications shall,
when mailed, telecopied, telegraphed, telexed or cabled, be
effective 5 days after deposited in the mails, when telecopied,
when delivered to the telegraph company, when confirmed by telex
answerback or when delivered to the cable company, respectively,
except that notices and communications to the Administrative
Agent pursuant to Article II or VII shall not be effective until
received by the Administrative Agent.
SECTION 8.04. Assignments, Participations etc.
________________________________
(a) Any Lender may, with notice to the Administrative
Agent and the Company, assign to any other current Lender, or,
with notice to the Administrative Agent and with the prior
written consent of the Company and the Administrative Agent, each
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<PAGE> 53
of which consents shall not be unreasonably withheld (it being
understood and agreed that it shall not be considered
unreasonable to fail to consent to the assignment of all or any
part of the A Advances or the Commitments or any other rights or
obligations of such Lender hereunder if such Lender's interests
under the Short Term Facility Credit Agreement are not
proportionately assigned), assign to any Eligible Assignee (each
an "Assignee") all or any part of the A Advances or the
Commitments or any other rights or obligations of such Lender
hereunder in a minimum amount of $5,000,000; provided, however,
that the amount of the A Advances and the Commitment of the
assignor Lender being assigned may be in an amount equal to such
assignor Lender's entire Commitment and such Lender's entire
outstanding A Advances provided, further, that the Company and
the Administrative Agent may continue to deal solely and directly
with such Lender in connection with the interests so assigned to
an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with
respectto the Assignee, shall have been given to the Company and the
Administrative Agent by such Lender and the Assignee and
(ii) such Lender and its Assignee shall have delivered to the
Company and the Administrative Agent an Assignment and Acceptance
in the form of Exhibit C ("Assignment and Acceptance"); and
(iii) the processing fees of $2,500 shall have been paid to the
Administrative Agent (which fees shall also cover concurrent
assignments of such Lender's interests under the Short Term
Facility Credit Agreement). Any assignment hereunder shall be
of a constant, and not a varying, percentage of all rights and
obligations of the assignor under this Agreement.
Notwithstanding any of the preceding limitations on any Lender's
ability to assign any part of the Advances or the Commitments to
any other Person, each Lender may assign its rights (including,
without limitation, rights to payment) under this Agreement to
any Federal Reserve Bank without notice to or consent of, and
without payment of any processing fee to, the Company or the
Administrative Agent. To facilitate any such pledge to a Federal
Reserve Bank, the Company will, as provided in Section 2.18(d),
execute and deliver to such Lender a Note to evidence such
Advances.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the Assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assignor Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made
in or in connection with any of this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assignor Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the
53
<PAGE> 54
performance or observance by the Company of any of its
obligations under this Agreement or any instrument or document
furnished pursuant hereto; (iii) such Assignee confirms that it
has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such Assignee will, independently
and without reliance upon the Administrative Agent, any Agent
or such assignor Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such Assignee confirms
that it is an Eligible Assignee; (vi) such Assignee appoints and
authorizes the Administrative Agent and the Agents to take such
action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent and
the Agents by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such Assignee agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(c) From and after the date that the Administrative
Agent notifies the assignor Lender that it has received the
Assignment and Acceptance (which notice shall be promptly given
by the Administrative Agent), (i) the Assignee thereunder shall
be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, shall have the rights and obligations of a Lender
under this Agreement and (ii) the assignor Lender shall, to the
extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all
or the remaining portion of the assignor Lender's rights and
obligations under this Agreement, such Lender shall cease to
be a party hereto).
(d) The Administrative Agent shall maintain at its
address referred to in Section 8.03 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by
the Company or any Lender at any reasonable time and from time
to time upon reasonable prior notice. Immediately upon each
assignee's making its payment under the Assignment and
Accep-
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<PAGE> 55
tance, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition
of the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee
shall reduce such Commitments of the assignor Lender pro tanto.
(e) Notwithstanding anything to the contrary in
paragraph (a) of this Section 8.04, each Lender may assign to one
or more Eligible Assignees or insurance companies any B Advance
or B Advances made by it.
(f) Any Lender may at any time sell to one or more
Eligible Assignees or insurance companies (a "Participant")
participating interests in any Advances, the Commitment of that
Lender or any other interest of that Lender hereunder; provided,
however, that (i) the Lender's obligations under this Agreement
shall remain unchanged, (ii) the Lender shall remain solely
responsible for the performance of such obligations, (iii) the
Company and the Administrative Agent shall continue to deal
solely and directly with the Lender in connection with the
Lender's rights and obligations under this Agreement, and (iv) no
Lender shall transfer or grant any participating interest under
which the Participant shall have rights to approve any amendment
to, or any consent or waiver with respect to this Agreement
except to the extent such amendment, consent or waiver would:
(A) extend the Termination Date; or (B) reduce the interest rate
or the amount of principal or fees applicable to Advances or the
Commitments in which such participant is participating. In the
case of any such participation, the Participant shall not have
any rights under this Agreement and all amounts payable by the
Company hereunder shall be determined as if such Lender had not
sold such participation, except that if amounts outstanding under
this Agreement are due and unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement.
(g) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 8.04, disclose to the Assignee or participant or
proposed assignee or participant, any information relating to the
Company and any Subsidiary furnished to such Lender by or on
behalf of the Company; provided that, prior to any such
disclosure, the Assignee or Participant or proposed assignee or
participant shall agree to preserve the confidentiality of any
confidential information relating to the Company or any
Subsidiary received by it from such Lender.
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SECTION 8.05. Costs, Expenses and Taxes.
__________________________
(a) The Company agrees to pay all out-of-pocket costs
and expenses of the Administrative Agent and each Agent in
connection with the preparation, execution and delivery of this
Agreement and any amendment, waiver or consent relating thereto
(including the reasonable fees and out-of-pocket expenses of
O'Melveny & Myers and the allocated costs of internal counsel)
and out-of-pocket costs and expenses of the Administrative Agent,
if any, including reasonable legal fees in connection with the
administration thereof and out-of-pocket costs and expenses of
the Administrative Agent and the Lenders, if any, including
reasonable legal fees in connection with the enforcement thereof.
In addition, the Company shall pay any and all stamp and other
taxes payable or determined to be payable in connection with the
execution and delivery of this Agreement and the other documents
to be delivered hereunder, and agrees to save the Administrative
Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying
or omission to pay such taxes.
(b) Whether or not the transactions contemplated
hereby shall be consummated, the Company agrees to indemnify,
pay and hold the Administrative Agent, each Agent, each Lender,
and the officers, directors, employees and agents of the
Administrative Agent, the Agents and the Lenders, harmless from
and against any and all claims, liabilities, losses, damages,
costs and expenses (whether or not any of the foregoing Persons
is a party to any litigation), including without limitation
reasonable attorneys' fees and costs and costs of investigation,
with respect to any acquisition or proposed acquisition or
any other use or proposed use of proceeds of the Advances
(collectively, the "Indemnified Liabilities"), provided that
the Company shall have no obligation hereunder with respect to
Indemnified Liabilities arising from the gross negligence or
willful misconduct of any such Persons. If any claim is made,
or any action, suit or proceeding is brought against any Person
indemnified pursuant to this Section 8.05(b), the indemnified
Person shall notify the Company of such claim or of the
commencement of such action, suit or proceeding, and the Company
will assume the defense of such action, suit or proceeding,
employing counsel selected by the Company and reasonably
satisfactory to the indemnified Person, and pay the fees and
expenses of such counsel; provided, however, that if counsel to
the Administrative Agent or the Person seeking indemnification
hereunder shall reasonably determine that, due to conflicts in
the liabilities or defenses of the Company and the Administrative
Agent, the Agents and the Lenders, the Administrative Agent, the
Agents or the Lenders should retain their own counsel, the
Administrative Agent, the Agents and the Lenders shall have the
right to retain their own counsel and the reasonable fees and
expenses of such counsel shall be for the account of the Company.
The obligations of the Company under this Section 8.05(b) shall
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<PAGE> 57
survive the termination of this Agreement and the discharge of
the Company's other obligations hereunder.
SECTION 8.06. Right of Set-off.
_________________
Upon the occurrence and during the continuance of any Event of
Default, each Lender is hereby authorized at any time and from
time to time, without notice to the Company (any such notice being
expressly waived by the Company) and 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
indebtedness at any time owing by such Lender to or for the
credit or the account of the Company against any and all of the
obligations of the Company now or hereafter existing under this
Agreement irrespective of whether or not such Lender shall have
made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to
notify the Company andthe Administrative Agent after any such
set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this
Section 8.06 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Lender may have.
SECTION 8.07. Accounting Terms.
_________________
All accounting terms not specifically defined herein shall be construed
in accordance with GAAP applied on a consistent basis.
SECTION 8.08. Effectiveness of Action by, or Consent of, Lenders.
___________________________________________________
With respect to any provision of this Agreement under which action may
be taken or consent or approval given by holders of a specified percentage
of the Lenders, the action taken or consent or approval given by such
percentage shall be binding upon all of the Lenders to the same extent and
with the same effect as if each Lender had joined therein.
SECTION 8.09. Several Obligations.
____________________
Subject to Section 8.10 hereof, the obligation of each Lender hereunder
is several, and neither the Administrative Agent nor any Lender shall be
responsible for the obligation or Commitment of any other Lender
hereunder, nor will the failure of any Lender to perform any of
its obligations hereunder relieve the other Lenders from the
performance of their respective obligations hereunder. Nothing
contained in this Agreement and no action taken by the Lenders
pursuant hereto shall be deemed to constitute the Lenders a
partnership, association, joint venture or other entity.
SECTION 8.10. Binding Effect.
_______________
This Agreement shall become effective, upon satisfaction of the
conditions set forth in Section 5.01, when it shall have been executed
by the Company and when the Administrative Agent shall have been notified by
each Lender that such Lender has executed it and thereafter shall
be binding upon and inure to the benefit of the Company, the
Administrative Agent hereunder and each of the Lenders and their
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respective successors and assigns, except that the Company shall
not have the right to assign its rights hereunder or any interest
herein without the prior written consent of each of the Lenders.
SECTION 8.11. Severability of Provisions.
___________________________
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provisions in any
other jurisdiction.
SECTION 8.12. Descriptive Headings.
_____________________
The descriptive headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this
Agreement.
SECTION 8.13. Governing Law.
______________
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
SECTION 8.14. Execution in Counterparts.
__________________________
This Agreement may be executed in any number of counterparts and by
the several parties hereto on separate counterparts, each of
which when so executed shall be an original, but all such
separate counterparts shall together constitute but one and the
same instrument.
SECTION 8.15. Waiver of Trial by Jury.
________________________
THE COMPANY, THE LENDERS, THE AGENTS AND THE ADMINISTRATIVE AGENT EACH
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach
of duty claims and all other common law and statutory claims.
The Company, the Lenders, the Agents and the Administrative Agent
each (i) acknowledges that this waiver is a material inducement
for the Company, the Lenders, the Agents and the Administrative
Agent to enter into a business relationship, that the Company,
the Lenders, the Agents and the Administrative Agent have already
relied on this waiver in entering into this Agreement or
accepting the benefits thereof, as the case may be, and that each
will continue to rely on this waiver in their related future
dealings and (ii) further warrants and represents that it has
reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER MAY NOT BE MODIFIED
ORALLY AND MAY ONLY BE MODIFIED IN WRITING EXPRESSLY REFERRING TO
THIS SECTION 8.15, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
58
<PAGE> 59
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT EXCEPT TO THE EXTENT ANY SUCH AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION EXPRESSLY PROVIDES OTHERWISE. In the
event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
[Remainder of page intentionally left blank]
59
<PAGE> 60
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the date first above written.
<TABLE>
<S> <C>
GREYHOUND FINANCIAL
CORPORATION
By__________________________
Title_______________________
By__________________________
Title_______________________
Commitments
___________
$60,500,000 CITIBANK, N.A. (Individually
and as an Agent and
Administrative Agent)
By ___________________________
Title_________________________
399 Park Avenue
New York, New York 10043
Telecopy: (212) 793-3824
$60,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By ___________________________
Title __________________________
555 South Flower Street,
Credit Products #5618
Los Angeles, California 90071
Telecopy: (213) 228-2756
</TABLE>
S-1
<PAGE> 61
<TABLE>
<S> <C>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (as an
Agent)
By ___________________________
Title __________________________
Bank of America
Global Agency #5596
1455 Market Street
San Francisco, California 94103
Telecopy: (510) 675-7531
$60,500,000 BANK OF MONTREAL (Individually
and as an Agent)
By ___________________________
Title __________________________
115 South LaSalle Street,
12 West
Chicago, Illinois 60603
Telecopy: (312) 750-3702
$60,500,000 CHEMICAL BANK (Individually
and as an Agent)
By ___________________________
Title __________________________
270 Park Avenue
New York, New York 10017
Telecopy: (212) 270-2111
$35,500,000 NATIONAL WESTMINSTER BANK USA
(Individually and as an Agent)
By ___________________________
Title _________________________
175 Water Street
New York, New York 10038
Telecopy: (212) 602-2149
</TABLE>
S-2
<PAGE> 62
<TABLE>
<S> <C>
$50,000,000 CONTINENTAL BANK N.A.
(Individually and as an Agent)
By ___________________________
Title __________________________
231 South LaSalle Street
Chicago, Illinois 60697
Telecopy: (312) 765-2080
$50,000,000 THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By ___________________________
Title __________________________
One Chase Manhattan Plaza
New York, New York 10081
Telecopy: (212) 552-1372
$50,000,000 CREDIT SUISSE
By ___________________________
Title __________________________
By ___________________________
Title __________________________
633 West Fifth Street,
64th Floor
Los Angeles, California 90071
Telecopy: (213) 955-8245
$37,500,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By ___________________________
Title __________________________
350 South Grand Avenue
Suite 1500
Los Angeles, California 90071
Telecopy: (213) 488-9840
</TABLE>
S-3
<PAGE> 63
$32,500,000 NATIONSBANK OF GEORGIA, N.A.
By ___________________________
Title __________________________
Nationsbank Plaza
600 Peachtree Street, N.E.,
21st Floor
Atlanta, Georgia 30308-2213
Telecopy: (404) 607-6318
$27,500,000 UNION BANK OF SWITZERLAND
LOS ANGELES BRANCH
By____________________________
Title __________________________
By____________________________
Title __________________________
444 South Flower Street
Los Angeles, California 90071
Telecopy: (213) 489-0637
$27,500,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE-NEW YORK AND CAYMAN
ISLANDS BRANCHES
By____________________________
Title __________________________
By____________________________
Title __________________________
1211 Avenue of the Americas
New York, New York 10036
Telecopy: (212) 852-6300
S-4
<PAGE> 64
$25,000,000 CREDIT LYONNAIS
SAN FRANCISCO BRANCH
By ___________________________
Title __________________________
By ___________________________
Title __________________________
3 Embarcadero Center
Suite 1640
San Francisco, California 94111
Telecopy: (415) 956-7008
$25,000,000 FIRST INTERSTATE BANK
OF ARIZONA, N.A.
By ___________________________
Title __________________________
First Interstate Bank Plaza
100 West Washington
Phoenix, Arizona 85038
Telecopy: (602) 440-1549
$25,000,000 NATIONAL WESTMINSTER BANK PLC
By ___________________________
Title _________________________
175 Water Street
New York, New York 10038
Telecopy: (212) 602-2149
$25,000,000 ROYAL BANK OF CANADA
By ___________________________
Title __________________________
600 Wilshire Boulevard
Suite 800
Los Angeles, California 90017
Telecopy: (213) 955-5350
S-5
<PAGE> 65
$25,000,000 SOCIETE GENERALE
By ___________________________
Title __________________________
2029 Century Park East,
Suite 2900
Los Angeles, California 90067
Telecopy: (310) 551-1537
$20,000,000 BANK ONE, ARIZONA, N.A.
By ___________________________
Title __________________________
241 North Central
U.S. Corp. Banking, A-714
Phoenix, Arizona 85004
Telecopy: (602) 221-2632
$17,500,000 DRESDNER BANK AG LOS ANGELES
AGENCY
By ___________________________
Title __________________________
By ___________________________
Title __________________________
725 South Figueroa Street
Suite 3950
Los Angeles, California 90017
Telecopy: (213) 627-3819
$17,500,000 UNION BANK
By ___________________________
Title __________________________
350 California Street,
11th Floor
San Francisco, California 94104
Telecopy: (415) 705-7037
S-6
<PAGE> 66
$15,000,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By____________________________
Title __________________________
444 South Flower Street,
Suite 3700
Los Angeles, California 90071
Telecopy: (213) 622-6908
$15,000,000 THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By ___________________________
Title __________________________
801 South Figueroa Street
Suite 2400
Los Angeles, California 90017
Telecopy: (213) 687-4631
$12,500,000 ARAB BANKING CORPORATION
By ___________________________
Title __________________________
444 S. Flower Street
Los Angeles, California 90071
Telecopy: (213) 689-1048
$12,500,000 THE BANK OF NOVA SCOTIA
By ___________________________
Title __________________________
101 California Street,
48th Floor
San Francisco, California 94111
Telecopy: (415) 397-0791
S-7
<PAGE> 67
$12,500,000 FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
By __________________________
Title _________________________
Broad & Walnut Street
PMB007
Philadelphia, Pennsylvania 19109
Telecopy: (215) 985-7794
$10,000,000 BANK HAPOALIM, B.M.,
LOS ANGELES BRANCH
By____________________________
Title __________________________
By____________________________
Title __________________________
6222 Wilshire Blvd.
Los Angeles, CA 90048
Telecopy: (213) 937-1439
$10,000,000 BANK OF AMERICA ARIZONA
By ___________________________
Title __________________________
101 North First Avenue #8211
Phoenix, Arizona 85003
Telecopy: (602) 594-2511
$10,000,000 BANK OF HAWAII
By ___________________________
Title __________________________
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Telecopy: (808) 537-8301
S-8
<PAGE> 68
$10,000,000 BANQUE NATIONALE DE PARIS
By____________________________
Title __________________________
By____________________________
Title __________________________
725 South Figueroa Street
Suite 2090
Los Angeles, California 90017
Telecopy: (213) 488-9602
$10,000,000 COMERICA BANK
By ___________________________
Title _________________________
Comerica Tower at Detroit Center
500 Woodward Avenue, MC 3281
Detroit, Michigan 48226
Telcopy: (313) 222-3330
$10,000,000 CREDIT AGRICOLE
By ___________________________
Title _________________________
55 E. Monroe Street, Suite 4700
Chicago, Illinois 60603
Telecopy: (312) 372-3724
$10,000,000 DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By ___________________________
Title _________________________
By ___________________________
Title _________________________
609 5th Avenue
New York, New York 10017-1021
Telecopy: (212) 745-1556
S-9
<PAGE> 69
$10,000,000 KREDIETBANK N.V.
By ___________________________
Title _________________________
By ___________________________
Title _________________________
125 West 55th St., 10th Floor
New York, New York 10019
Telecopy: (212) 956-5580
$10,000,000 NBD BANK, N.A.
By ___________________________
Title _________________________
Financial Institutions Group,
3rd Floor
611 Woodward Avenue
Detroit, Michigan 48226
Telecopy: (313) 225-3074
$10,000,000 ISTITUTO BANCARIO SAN PAOLO DI TORINO S.P.A.
By____________________________
Title __________________________
By____________________________
Title __________________________
444 South Flower Street,
45th Floor
Los Angeles, California 90071
Telecopy: (213) 622-2514
$10,000,000 SANWA BANK, LTD.
By ___________________________
Title _________________________
601 S. Figueroa Street
Los Angeles, California 90017
Telecopy: (213) 896-7475
S-10
<PAGE> 70
$10,000,000 UNITED STATES NATIONAL BANK
OF OREGON
By ___________________________
Title ________________________
111 S.W. Fifth Avenue, T-29
Portland, Oregon 97204
Telecopy: (503) 275-5428
$7,500,000 ABN AMRO BANK N.V., LOS ANGELES
INTERNATIONAL BRANCH
By ___________________________
Title _________________________
By ___________________________
Title _________________________
300 S. Grand Avenue, Suite 1115
Los Angeles, California 90071-7519
Telecopy: (213) 687-2061
$7,500,000 BANK OF IRELAND
By ___________________________
Title _________________________
640 Fifth Avenue
New York, New York 10019
Telecopy: (212) 586-7752
$5,000,000 THE BANK OF CALIFORNIA, N.A.
By ___________________________
Title ________________________
550 S. Hope Street, 5th Floor
Los Angeles, California 90071
Telecopy: (213) 243-3552
S-11
<PAGE> 71
$5,000,000 FUJI BANK, LTD.
By ___________________________
Title _________________________
333 S. Grand Avenue
Los Angeles, California 90071
Telecopy: (213) 253-4198
$5,000,000 THE SAKURA BANK, LTD.
By ___________________________
Title _________________________
515 S. Figueroa Street, Suite 400
Los Angeles, California 90071
Telecopy: (213) 623-8692
Total Commitments
- - -----------------
$950,000,000
S-12
<PAGE> 72
SCHEDULE 1
GREYHOUND FINANCIAL CORPORATION
$950,000,000
CREDIT AGREEMENT
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ ______________
<S> <C> <C>
Citibank, N.A. Citibank, N.A. Citibank, N.A.
399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY 10043
Telex: 691-299 Telex: 691-299
Telecopy 212/793-5300 Telecopy 212/793-5300
Bank of America Bank of America National Bank of America National
National Trust Trust and Savings Association Trust and Savings Association
and Savings Global Payment Operations #5693 Global Payment Operations #5693
Association 1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Telex 34346 Telex 34346
Telecopy 510/675-7532 Telecopy 510/675-7532
Attn: Barbara Garibaldi Attn: Barbara Garibaldi
Chemical Bank Chemical Bank Chemical Bank
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Telex 232337 Telex 232337
Telecopy 212/818-1456 Telecopy 212/818-1456
Bank of Montreal Bank of Montreal Bank of Montreal
115 South LaSalle Street, 11 West 115 South LaSalle Street, 11 West
Chicago, Illinois 60603 Chicago, Illinois 60603
Telex None Telex None
Telecopy 312/750-6061 Telecopy 312/750-6061
Continental Bank N.A. Continental Bank N.A. Continental Bank N.A.
231 S. LaSalle St. 231 S. LaSalle St.
Chicago, IL 60697 Chicago, IL 60697
Telex 25-3412 Telex 25-3412
Telecopy 312/765-2080 Telecopy 312/765-2080
The Chase Manhattan The Chase Manhattan Bank The Chase Manhattan Bank
Bank (National 1 Chase Manhattan Plaza 1 Chase Manhattan Plaza
Association) 5th Floor 5th Floor
New York, NY 10081 New York, NY 10081
Telex 62910 Telex 62910
Telecopy 212/552-1372 Telecopy 212/552-1372
First Interstate Bank First Interstate Bank of First Interstate Bank of
of Arizona, N.A. Arizona, N.A. Arizona, N.A.
P.O. Box 29742 P.O. Box 29742
Phoenix, AZ 85038-9742 Phoenix, AZ 85038-9742
Telex 187-103 Telex 187-103
Telecopy 602/440-1549 Telecopy 602/440-1549
National Westminster National Westminster Bank USA National Westminster Bank USA
Bank USA 175 Water Street 175 Water Street
New York, New York 10038 New York, New York 10038
Telex 232-369NBNA-UR Telex 232-369NBNA-UR
Telecopy 212/602-2590 Telecopy 212/602-2590
National Westminster National Westminster Bank PLC National Westminster Bank PLC
Bank PLC 175 Water Street 175 Water Street
New York, New York 10038 New York, New York 10038
Telecopy 212/602-4113 Telecopy 212/602-4113
Union Bank of Union Bank of Switzerland Union Bank of Switzerland
Switzerland Los Angeles Branch Los Angeles Branch
Los Angeles Branch 444 South Flower Street 444 South Flower Street
Los Angeles, California 90071 Los Angeles, California 90071
Telex 6831878 Telex 6831878
Telecopy 213/489-0637 Telecopy 213/489-0637
Westdeutsche Westdeutsche Landesbank Westdeutsche Landesbank
Landesbank Girozentrale Girozentrale
Girozentrale 1211 Avenue of the Americas 1211 Avenue of the Americas
23rd Floor 23rd Floor
New York, New York 10036 New York, New York 10036
Telex MCI 666668 or ITT 420736 Telex MCI 666668 or ITT 420736
Telecopy 212/302-7946 Telecopy 212/302-7946
Credit Lyonnais, Credit Lyonnais, Credit Lyonnais, Cayman
San Francisco Branch San Francisco Branch Island Branch c/o Credit
3 Embarcadero Center Lyonnais, San Francisco Branch
Suite 3470 3 Embarcadero Center, Suite 3470
</TABLE>
S-I-1
<PAGE> 73
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ _______________
<S> <C> <C>
San Francisco, CA 94111 San Francisco, CA 94111
Telex 6771535 Telex 6771535
Telecopy 415/956-7008 Telecopy 415/956-7008
The Industrial Bank The Industrial Bank of Japan, The Industrial Bank of Japan,
of Japan Limited, Limited, Los Angeles Agency Limited, Los Angeles Agency
Los Angeles Agency 350 South Grand Avenue 350 South Grand Avenue
Suite 1500 Suite 1500
Los Angeles, California 90071 Los Angeles, California 90071
Telex 67356 Telex 67356
Telecopy 213/688-7486 Telecopy 213/688-7486
Bank One, Arizona, Bank One, Arizona, N.A. Bank One, Arizona, N.A.
N.A. 241 North Central 241 North Central
U.S. Corp. Bkng., A-714 U.S. Corp. Bkng., A-714
Phoenix, Arizona 85004 Phoenix, Arizona 85004
Telex 667434 Telex 667434
Telecopy 602/221-2632 Telecopy 602/221-2632
Dresdner Bank AG Dresdner Bank AG Dresdner Bank AG
Los Angeles Agency Los Angeles Agency Los Angeles Agency
75 Wall Street 75 Wall Street
New York, New York 10005 New York, New York 10005
Telex 421750 Telex 421750
Telecopy 212/574-0130 Telecopy 212/574-0130
The Mitsubishi Trust The Mitsubishi Trust and The Mitsubishi Trust and
and Banking Banking Corporation, Banking Corporation,
Corporation, Los Angeles Agency Los Angeles Agency
Los Angeles Agency 801 South Figueroa Street 801 South Figueroa Street
Suite 2400 Suite 2400
Los Angeles, California 90017 Los Angeles, California 90017
Telex 3750342 Telex 3750342
Telecopy 213/687-4631 Telecopy 213/687-4631
Societe Generale Societe Generale Societe Generale
2029 Century Park East 2029 Century Park East
Suite 2900 Suite 2900
Los Angeles, California 90067 Los Angeles, California 90067
Telex 188273 Telex 188273
Telecopy 310/203-0539 Telecopy 310/203-0539
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
101 California Street, 48th Fl. 101 California Street, 48th Fl.
San Francisco, California 94111 San Francisco, California 94111
Telex 00340602 Telex 00340602
Telecopy 415/397-0791 Telecopy 415/397-0791
Credit Suisse Credit Suisse Credit Suisse
633 West Fifth Street 633 West Fifth Street
64th Floor 64th Floor
Los Angeles, California 90071 Los Angeles, California 90071
Telex 67227 Telex 67227
Telecopy 213/955-8245 Telecopy 213/955-8245
Union Bank Union Bank Union Bank
350 California St. 350 California St.
11th Floor 11th Floor
San Francisco, California 94104 San Francisco, California 94104
Telex 188316 Telex 188316
Telecopy 415/705-7037 Telecopy 415/705-7037
Bank of Hawaii Bank of Hawaii Bank of Hawaii
130 Merchant Street 130 Merchant Street
20th Floor 20th Floor
Honolulu, Hawaii 96813 Honolulu, Hawaii 96813
Telex None Telex None
Telecopy 808/484-3606 Telecopy 808/484-3606
Bank Hapoalim B.M., Bank Hapoalim B.M., Bank Hapoalim B.M.,
Los Angeles Branch Los Angeles Branch Los Angeles Branch
6222 Wilshire Blvd. 6222 Wilshire Blvd.
Los Angeles, CA 90048 Los Angeles, CA 90048
Telex 188610 Telex 188610
Telecopy 213/937-1439 Telecopy 213/937-1439
</TABLE>
S-I-2
<PAGE> 74
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ ______________
<S> <C> <C>
Banque Nationale Banque Nationale Banque Nationale
de Paris de Paris de Paris
180 Montgomery Street 180 Montgomery Street
San Francisco, California 94104 San Francisco, California 94104
Telex 9103722007 Telex 9103722007
Telecopy 415/989-9041 Telecopy 415/989-9041
Bank of America Bank of America Arizona Bank of America Arizona
Arizona 101 North First Avenue #8211 101 North First Avenue #8211
Phoenix, Arizona 85003 Phoenix, Arizona 85003
Telex None Telex None
Telecopy 602/594-2323 Telecopy 602/594-2323
The Long-Term Credit The Long-Term Credit Bank The Long-Term Credit Bank
Bank of Japan, of Japan, Ltd., of Japan, Ltd.,
Limited, Los Angeles Los Angeles Agency Los Angeles Agency
Agency 444 South Flower Street 444 South Flower Street
Suite 3700 Suite 3700
Los Angeles, California 90071 Los Angeles, California 90071
Telex 673558 Telex 673558
Telecopy 213/626-1067 Telecopy 213/626-1067
Istituto Bancario Istituto Bancario San Paolo Istituto Bancario San Paolo
San Paolo di Torino di Torino S.p.A. di Torino S.p.A.
S.p.A 444 South Flower Street, 45th Floor 444 South Flower Street, 45th Floor
Los Angeles, California 90071 Los Angeles, California 90071
Telex 4720338 Telex 4720338
Telecopy 213/622/2514 Telecopy 213/622/2514
Caisse Nationale de Caisse Nationale de Caisse Nationale de
Credit Agricole Credit Agricole Credit Agricole
55 East Monroe 55 East Monroe
Suite 4700 Suite 4700
Chicago, Illinois 60603 Chicago, Illinois 60603
Telex 190063 Telex 190063
Telecopy 312/372-3724 Telecopy 312/372-4421
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
Pierrepont Plaza Pierrepont Plaza
300 Cadman Plaza West 300 Cadman Plaza West
14th Floor 14th Floor
Brooklyn, New York 10201 Brooklyn, New York 10201
Telecopy 718/522-6292 Telecopy 718/522-6292
Telex ROYBAN 62519 Telex ROYBAN 62519
Comerica Bank Comerica Bank Comerica Bank
One Detroit Center One Detroit Center
500 Woodward Avenue, MC #3281 500 Woodward Avenue, MC #3281
Detroit, Michigan 48226 Detroit, Michigan 48226
Telecopy 313/222-3330 Telecopy 313/222-3330
Kredietbank, N.V. Kredietbank, N.V. Kredietbank, N.V.
125 W. 55th Street 125 W. 55th Street
10th Floor 10th Floor
New York, New York 10019 New York, New York 10019
Telecopy 212/956-5580 Telecopy 212/956-5580
Telex TRT 177789 Telex TRT 177789
661572 MCI 661572 MCI
United States National United States National Bank United States National Bank
Bank of Oregon of Oregon of Oregon
555 S.W. Oak Street 555 S.W. Oak Street
PL-7 PL-7
Portland, Oregon 97204 Portland, Oregon 97204
Telecopy 503/275-4600 Telecopy 503/275-4600
ABNAMRO Bank N.V. ABNAMRO Bank N.V., ABNAMRO Bank N.V.,
Los Angeles International Branch Los Angeles International Branch
300 S. Grand Avenue, Suite 1115 300 S. Grand Avenue, Suite 1115
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/687-2061 Telecopy 213/687-2061
Telex 822132/ABNLSA Telex 822132/ABNLSA
The Sakura Bank, Ltd. The Sakura Bank, Ltd. The Sakura Bank, Ltd.
515 S. Figueroa Street, #400 515 S. Figueroa Street, #400
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/623-8692 Telecopy 213/623-8692
Telex 188489 Telex 188489
Fuji Bank, Ltd. Fuji Bank, Ltd. Fuji Bank, Ltd.
333 S. Grand Avenue 333 S. Grand Avenue
Suite 2500 Suite 2500
</TABLE>
S-I-3
<PAGE> 75
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ ______________
<S> <C> <C>
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/253-4198 Telecopy 213/253-4198
Telex 215504 Telex 215504
</TABLE>
S-I-4
<PAGE> 76
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ ______________
<S> <C> <C>
Bank of Ireland Bank of Ireland Bank of Ireland
640 Fifth Avenue 640 Fifth Avenue
New York, New York 10019 New York, New York 10019
Telecopy 212/586-7752 Telecopy 212/586-7752
The Bank of California, The Bank of California, N.A. The Bank of California, N.A.
N.A. 550 S. Hope Street, 5th Floor 550 S. Hope Street, 5th Floor
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/243-3552 Telecopy 213/243-3552
NBD Bank, N.A. NBD Bank, N.A. NBD Bank, N.A.
Financial Institutions Group Financial Institutions Group
3rd Floor 3rd Floor
611 Woodward Avenue 611 Woodward Avenue
Detroit, Michigan 48226 Detroit, Michigan 48226
Telecopy 313/225-3074 Telecopy 313/225-3074
DG Bank DG Bank DG Bank
609 5th Avenue 609 5th Avenue
New York, New York 10017-1021 New York, New York 10017-1021
Telecopy 212/745-1556 Telecopy 212/745-1556
Nationsbank of Nationsbank of Georgia, N.A. Nationsbank of Georgia, N.A.
Beorgia, N.A. Nationsbank Plaza Nationsbank Plaza
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2213 Atlanta, Georgia 30308-2213
Telecopy 404/607-6318 Telecopy 404/607-6318
Arab Banking Arab Banking Corporation Arab Banking Corporation
Corporation 444 So. Flower Street 444 So. Flower Street
Suite 1480 Suite 1480
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/689-1048 Telecopy 213/689-1048
Sanwa Bank Sanwa Bank, Ltd. Sanwa Bank, Ltd.
601 S. Figueroa Street 601 S. Figueroa Street
Los Angeles, California 90017 Los Angeles, California 90017
Telecopy 213/896-7475 Telecopy 213/896-7475
First Fidelity Bank, First Fidelity Bank, First Fidelity Bank,
National Association National Association National Association
Broad & Walnut Street Broad & Walnut Street
PMB007 PMB007
Philadelphia, PA 19109 Philadelphia, PA 19109
Telecopy 215/985-7794 Telecopy 215/985-7794
</TABLE>
S-I-5
<PAGE> 77
EXHIBIT A-1
NOTICE OF BORROWING
[DATE]
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
Attention: National Corporate
Division Administration
with a copy to:
Citicorp USA, Inc.
725 South Figueroa Street
Los Angeles, California 90071
Attention: Credit Department
Ladies and Gentlemen:
The undersigned, Greyhound Financial Corporation, refers to the Sixth
Amendment and Restatement, dated as of May 16, 1994, of the Credit Agreement
dated as of May 31, 1976, as theretofore amended (the "Credit Agreement"), the
terms defined therein being used herein as therein defined, among Greyhound
Financial Corporation, the Lenders party thereto, Bank of America National
Trust and Savings Association, Bank of Montreal, Chemical Bank, Citibank, N.A.
and National Westminster Bank USA, as Agents, and Citibank, N.A., as
Administrative Agent, and hereby gives you notice pursuant to Section 2.02 of
the Credit Agreement that the undersigned hereby requests an A Borrowing under
the Credit Agreement, and in that connection sets forth below the information
relating to such A Borrowing (the "Proposed A Borrowing") as required by
Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is
________________ 19___.
(ii) The Type of A Advances comprising the Proposed A
Borrowing is [Base Rate Advances][Eurodollar Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$___________.
(iv) The Interest Period for each A Advance made as part of
the Proposed A Borrowing is ____ [months] [days].
A-1-1
<PAGE> 78
In accordance with Section[s] 5.02 [and 5.03] of the Credit
Agreement, the undersigned hereby certifies, on behalf of the Company, that as
of the date hereof and the date of the Advance hereby requested:
1. The representations and warranties contained in
Section 3.01 of the Credit Agreement (excluding those contained in
paragraph[s (e) and] (f) thereof) are true and accurate as though made
on and as of such dates;
2. No circumstances exist that in the Company's
reasonable opinion would materially impair the Company's ability to
repay all outstanding Advances; and
3. No event has occurred and is continuing or would
re+sult from such Borrowing which constitutes an Event of Default under
the Credit Agreement or which would constitute such an Event of Default
but for the requirement that notice be given or time elapse or both.
Very truly yours,
Greyhound Financial Corporation
By_____________________________
Title:
A-1-2
<PAGE> 79
EXHIBIT A-2
NOTICE OF B BORROWING
Citicorp USA, Inc., as Agent
for the Lenders party
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
Attention: National Corporate
Division Administration
with a copy to:
Citicorp USA, Inc.
725 South Figueroa Street
Los Angeles, California 90071
Attention: Credit Department
Ladies and Gentlemen:
The undersigned, Greyhound Financial Corporation (the "Company"),
refers to the Sixth Amendment and Restatement, dated as of May 16, 1994, of the
Credit Agreement dated as of May 31, 1976, as theretofore amended (the "Credit
Agreement"), the terms defined therein being used herein as therein defined,
among the Company, the Lenders party thereto, Bank of America National Trust
and Savings Association, Bank of Montreal, Chemical Bank, Citibank, N.A. and
National Westminster Bank USA, as Agents, and Citibank, N.A., as Administrative
Agent. The Company hereby gives you notice pursuant to Section 2.03 of the
Credit Agreement that the Company hereby requests a B Borrowing under the
Credit Agreement, and in that connection sets forth the terms on which such B
Borrowing (the "Proposed B Borrowing") is requested to be made:
(A) Date of B Borrowing ____________________
(B) Amount of B Borrowing ____________________
(C) Maturity Date ____________________
(D) Interest Rate Basis ____________________
(E) Interest Payment Date(s) ____________________
(F) __________________ ____________________
(G) __________________ ____________________
(H) __________________ ____________________
Each of the undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed B Borrowing:
1. The representations and warranties contained in Section 3.01
of the Credit Agreement (excluding those contained in paragraph[s (e)
and] (f) thereof) are true and accurate as though made on and as of such
dates;
A-2-1
<PAGE> 80
2. No circumstances exist that in the Company's reasonable
opinion would materially impair the Company's ability to repay all
outstanding Advances; and
3. No event has occurred and is continuing or would result from
such Borrowing which constitutes an Event of Default under the Credit
Agreement or which would constitute such an Event of Default but for
the requirement that notice be given or time elapse or both.
4. The aggregate amount of the Proposed B Borrowing and all
other Borrowings to be made on the same day under the Credit Agreement
is within the aggregate amount of the unused Commitments of the
Lenders;
and
5. The aggregate amount of all B Advances (including the
Proposed B Borrowing) scheduled to be outstanding at any time through
the maturity of such B Advances does not exceed the aggregate amount
of the Commitments of the Lenders scheduled to be in effect at such
time (computed without giving effect to any B Reductions).
The Company hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
Greyhound Financial Corporation
By: _______________________
Title:
A-2-2
<PAGE> 81
EXHIBIT A-3
[FORM OF B ADVANCE OFFER NOTICE]
To: Citibank, N.A.,
as Administrative Agent
Re: B Advance Offer to Greyhound Financial
Corporation (the "Company")
______________________________________
In response to your invitation on behalf of the Company dated
______________, 19__, we hereby make the following offer to make B Advance(s)
to the Company on the following terms:
1. Offering Lender: _________________________________________
2. Person to contact at Offering Lender: ___________________
3. Applicable Lending Office for B Advance: ________________
__________________________________________________________
__________________________________________________________
4. Date of Borrowing: _________________________________*
5. We hereby offer to make B Advance(s) in the following principal
amounts, for the following Interest Periods and at the
following rates:
<TABLE>
<CAPTION>
Minimum Maximum
Principal Principal Interest
Amount Amount Period** [Margin***] [Absolute Rate***]
______ _________ ________ ___________ __________________
<S> <C> <C> <C> <C>
$
$
</TABLE>
[Provided, that the aggregate principal amount
of B Advance(s) for which the above offers may
be accepted shall not exceed $____________.]
_________________
* As specified in the related Notice of B Borrowing.
A-3-1
<PAGE> 82
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Sixth Amendment and Restatement, dated as of May 16, 1994, of Credit
Agreement dated as of May 31, 1976 among the Company, the Lenders party
thereto, the Agents party thereto and yourselves, as Administrative
Agent, irrevocably obligates us to make the B Advance(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: ________________ By _______________________
Authorized Officer
______________
** As specified in the related Notice of B Borrowing.
*** Margin over or under the interest rate basis specified in the related
Notice of B Borrowing. Specify percentage (to the nearest 1/10,000 of 1%) and
specify whether "PLUS" OR "MINUS".
**** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
A-3-2
<PAGE> 83
EXHIBIT B
SECTION 4.01(a) CERTIFICATE
Schedule of Compliance with the Sixth Amendment
and Restatement, dated as of May 16, 1994, of
the Credit Agreement, dated May 31, 1976, as
theretofore amended
Certificate as of _________, 19__
The undersigned, ________________________ of Greyhound
Financial Corporation, pursuant to the provisions of the Sixth Amendment and
Restatement, dated as of May 16, 1994, of the Credit Agreement, dated as of May
31, 1976, as theretofore amended (the "Credit Agreement"), among the aforesaid
corporation (the "Company"), the Lenders named therein, Bank of America
National Trust and Savings Association, Bank of Montreal, Chemical Bank,
Citibank, N.A. and National Westminster Bank USA, as Agents, and Citibank,
N.A., as Administrative Agent, hereby certifies that as of the date first
written above (defined terms in the Credit Agreement being used herein with the
same meanings as in the Credit Agreement), the following computations were true
and correct:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1. RATIO OF INDEBTEDNESS TO STOCKHOLDERS' EQUITY, SECTION 4.02(A)
a. Outstanding Indebtedness . . . . . . . . . . . . . . . . . . $_________
b. Stockholders' Equity. . . . . . . . . . . . . . . . . . . . $_________
c. Ratio of Indebtedness to Stockholders
Equity (ratio of Line 1a to Line 1b). . . . . . . . . . . . . ___:1.00
d. Maximum ratio permitted for period ___:1.00
(initially 6.50:1.00; on or before June 30,
1995 and before March 30, 1996,
6.75:1.00; on or after March 31, 1996,
7.00:1.00; all subject to proviso
to Section 4.02(a))
2. SECURED INDEBTEDNESS TEST, SECTION 4.02(B)
a. Secured Indebtedness. . . . . . . . . . . . . . . . . . . . . $_________
b. limited recourse Secured
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . $_________
c. Line 2a minus Line 2b . . . . . . . . . . . . . . . . . . . . . . . . .$_________
d. maximum permitted amount. . . . . . . . . . . . . . . . . . . . . . . .$15,000,000
3. INTEREST COVERAGE, SECTION 4.02(C)
a. Consolidated Net Income (excluding
extraordinary items). . . . . . . . . . . . . . . . . . . . . $_________
b. taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_________
c. interest expense. . . . . . . . . . . . . . . . . . . . . . . $_________
</TABLE>
______________________
*If negative, will be zero.
B-1
<PAGE> 84
<TABLE>
<CAPTION>
<S> <C> <C> <C>
d. Line 3a plus Line 3b plus
Line 3c . . . . . . . . . . . . . . . . . . . . . . . . . . . $_________
e. ratio of Line 3d to Line 3c . . . . . . . . . . . . . . . . . . . . . . ____:1.00
f. minimum permitted ratio . . . . . . . . . . . . . . . . . . . . . . . . 1.25:1.00
4. EXPOSURE TEST, SECTION 4.02(D)
a. Stockholders' Equity. . . . . . . . . . . . . . . . . . . . $_________
b. greatest Exposure . . . . . . . . . . . . . . . . . . . . . $_________
c. maximum Exposure permitted
(15% of Line 4a). . . . . . . . . . . . . . . . . . . . . . $_________
5. COMMERCIAL PAPER COVENANT TEST,
SECTION 4.02(E)
a. unused but available portion
of Commitments. . . . . . . . . . . . . . . . . . . . . . . . $_________
b. unused but available portion
of Commitments (under and as
defined in the Short Term Facility
Credit Agreement) . . . . . . . . . . . . . . . . . . . . . . $_________
c. other unused but available
commitments or lines of
credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . $_________
d. Commercial Paper outstanding. . . . . . . . . . . . . . . . . . . . . . $_________
e. maximum amount of Commercial
Paper permitted to be outstanding
(Line 5a plus Line 5b plus Line 5c) . . . . . . . . . . . . . . . . . . $_________
6. DIVIDEND TEST, SECTION 4.02(G)
a. Consolidated Net Income
subsequent to December 31, 1991 . . . . . . . . . . . . . . . $_________
b. cash dividends paid subsequent
to December 31, 1991. . . . . . . . . . . . . . . . . . . . . . . . . . $_________
c. maximum amount of dividends
permitted subsequent to
December 31, 1991 (50% of Line 6a). . . . . . . . . . . . . . . . . . . $_________
7. STOCKHOLDERS' EQUITY TEST, SECTION 4.02(H)
a. Stockholders' Equity on Effective Date. . . . . . . . . . . . . . . . $_________
b. Line 7a minus $100,000,000. . . . . . . . . . . . . . . . . . . . . . $_________
c. the greater of Line 7b and $600,000,000 . . . . . . . . . . . . . . . . $_________
d. cumulated consolidated net income
for all fiscal quarters ending after
April 30, 1994. . . . . . . . . . . . . . . . . . . . . . . . . . . . $_________
e. 50% of Line 7d. . . . . . . . . . . . . . . . . . . . . . . . . . . . $_________
f. 50% of cumulative proceeds from issuances
of equity of Company or any
Subsidiary after the Effective Date
g. Stockholders' Equity (Line 1e). . . . . . . . . . . . . . . . . . . . $_________
h. minimum Stockholders' Equity
permitted (Line 7C plus
Line 7e plus Line 7f) . . . . . . . . . . . . . . . . . . . . . . . . $_________
</TABLE>
B-2
<PAGE> 85
<TABLE>
<CAPTION>
<S> <C> <C>
8. RATINGS
a. S&P Long-term Debt rating as of
this report . . . . . . . . . . . . . . . . . . . . . . . . . __________
b. Moody's Long-term Debt rating as
of this report. . . . . . . . . . . . . . . . . . . . . . . . __________
c. D&P Long-term Debt rating as of this report . . . . . . . . . __________
</TABLE>
and hereby further certify that no event is continuing on the date hereof which
constitutes an Event of Default under the Credit Agreement, or which would
constitute such an Event of Default but for the requirement that notice be
given, or time elapse, or both.
IN WITNESS WHEREOF, I have hereunto set my hand as of the date first above
written.
__________________________________
[Name]
__________________________________
of Greyhound Financial Corporation
B-3
<PAGE> 86
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Dated as of _______________, 19___
Reference is made to that certain Sixth Amendment and Restatement
dated as of May 16, 1994 of the Credit Agreement dated as of May
31, 1976 (the "Credit Agreement") among Greyhound Financial Corporation (the
"Company"), the Lenders parties thereto, Bank of America National Trust and
Savings Association, Bank of Montreal, Chemical Bank, Citibank, N.A. and
National Westminster Bank USA, as Agents, and Citibank, N.A., as Administrative
Agent (the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein with same meaning.
[________________] (the "Assignor") and
[______________] (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
without recourse, that interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the date hereof which represents
the percentage interest specified in Section 1 of Schedule 1 of the outstanding
rights and obligations of all Lenders under the Credit Agreement, including,
without limitation, such interest in the Assignor's Commitment and in all
outstanding Advances (if any) owing to the Assignor. After giving effect to
such sale and assignment, the Assignee's Commitment and the aggregate principal
amount of Advances outstanding on the date hereof and owing to the Assignee
will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it
is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim; (ii)
makes no representation or warranty (except as provided in clause (i) above)
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
instrument or document furnished pursuant thereto or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company, any
guarantor or any other person or the performance or observance by the Company,
any guarantor or any other party of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto.
C-1
<PAGE> 87
3. (a) The Assignee (i) confirms and agrees that it
has received a copy of the Credit Agreement, any amendments or waivers thereto
and any other documents furnished pursuant thereto, which in each case have
been requested by it, together with copies of any financial statements
requested by it, and that it has, independently and without reliance on the
Assignor, any Agent, the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Acceptance and
agrees that it shall have no recourse against the Assignor with respect to any
matters relating thereto; (ii) agrees that it will, independently and without
reliance upon the Assignor, any Agent, any Administrative Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement and any other documents or instruments
furnished pursuant thereto; (iii) appoints and authorizes each of the Agents
and Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to Agents or
Administrative Agent, respectively, by the terms thereof, together with such
powers as are reasonably incidental thereto; (iv) confirms that it is an
Eligible Assignee; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender; [and] (vi) specifies as its
Domestic Lending Office and Eurodollar Lending Office and address for notices
the respective offices previously notified to the Administrative Agent pursuant
to the Credit Agreement[; and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for the purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement or such other documents as are necessary to indicate that all such
payments are subject to withholding taxes at a rate reduced by any applicable
tax treaty].
(b) If the Assignee is a person subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Assignee represents and warrants that the execution, delivery and performance
of this Assignment and Acceptance, and the purchase of the interest being
assigned to it hereby, will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), other than a prohibited transaction which is
covered by a currently effective class exemption granted by the U.S. Department
of Labor pursuant to Section 408(a) of ERISA and Section 4975(C)(2) of the
Code.
4. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, the Assignor will deliver this
Assignment and Acceptance to the Administrative
C-2
<PAGE> 88
Agent for acceptance and recording. The effective date for this
Assignment and Acceptance shall be the date of acceptance hereof by the
Administrative Agent unless otherwise specified on Schedule 1 hereto (the
"Assignment Effective Date").
5. Upon such acceptance and recording by the
Administrative Agent, as of the Assignment Effective Date, (i) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in the
Credit Agreement and in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in the Credit Agreement and in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other instruments and documents furnished pursuant thereto.
The Assignee hereby acknowledges that the other parties to the Credit Agreement
are intended third-party beneficiaries of this Assignment and Acceptance
insofar as, after giving effect to this Assignment and Acceptance, the Assignee
shall have the obligations of a Lender thereunder.
6. Upon such acceptance and recording by the
Administrative Agent, from and after the Assignment Effective Date, the
Administrative Agent shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement for periods prior to the Assignment Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Schedule 1 hereto.
C-3
<PAGE> 89
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Dated as of ____________, 19___
Section 1
_________
Percentage interest ______%
(as percentage of total
Credit Agreement Advances/
Commitments of all Lenders)
Section 2
_________
Assignee's Commitment $_______________
Aggregate Outstanding Principal
Amount of Advances Owing to Assignee $_______________
Section 3
_________
Assignment Effective Date: __________, 19___
[_________________],
as Assignor
By______________________
Title:________________
[_________________],
as Assignee
By______________________
Title:________________
Accepted this _______ day of
_____________, 19___
CITIBANK, N.A., as Administrative Agent
By___________________________
Title:_____________________
C-4
<PAGE> 90
EXHIBIT D
[FORM OF OPINION OF COMPANY'S COUNSEL]
[Letterhead of W.J. Hallinan, Esq.]
[Date]
Citibank, N.A., as
Administrative Agent
399 Park Avenue
New York, New York 10022
and
The Lenders
and Agents Listed
on Schedule I Hereto
Re: Greyhound Financial Corporation Sixth Amendment
and Restatement dated as of May 16, 1994 of
Credit Agreement dated as of May 31, 1976
Dear Ladies and Gentlemen:
As Vice President-General Counsel and Secretary of Greyhound
Financial Corporation, a Delaware corporation (the "Company"), I am
familiar with the Sixth Amendment and Restatement dated as of May 16, 1994 of
Credit Agreement dated May 31, 1976, among the Company, the Lenders named
therein, the Agents named therein, Bank of America National Trust and Savings
Association, Bank of Montreal, Chemical Bank and Citibank, N.A. and National
Westminster Bank USA, as Agents, and Citibank, N.A., as Administrative Agent
(the "Credit Agreement"). All terms used herein that are defined in the Credit
Agreement have the respective meanings specified in the Credit Agreement. This
letter is being delivered to you in satisfaction of the condition set forth in
Section 5.01(b) of the Credit Agreement and with the understanding that you are
entering into the Credit Agreement in reliance on the opinions expressed
herein.
In this connection, I have examined such certificates of public
officials, certificates of officers of the Company and the Subsidiaries
and copies certified to my satisfaction of corporate documents and records of
the Company and the Subsidiaries and of other papers, and have made such other
investigations, as I have deemed relevant and necessary as a basis for my
opinion hereinafter set forth. I have relied upon such certificates of public
officials and of officers of the Company and the Subsidiaries with respect to
the accuracy of material factual matters contained therein which were not
independently established.
D-A-3-1
<PAGE> 91
Based on the foregoing and subject to the qualifications,
limitations and assumptions contained herein, it is my opinion that:
1. The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
has qualified to do business as a foreign corporation and is in good standing
under the laws of the State of Arizona. The Company has all requisite
corporate power and corporate authority to own and operate its properties and
to carry on its business as now conducted and as proposed to be conducted and
to execute, deliver and perform the Credit Agreement.
2. The execution, delivery and performance of the Credit
Agreement have been duly authorized by all requisite corporate action on the
part of the Company. The Credit Agreement has been duly executed and delivered
by authorized officers of the Company and constitutes the legally valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by (a)
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3. The Company is not an "investment company" or a company
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
4. The extension, arranging and obtaining of the credit
represented by the Credit Agreement do not result in any violation of
Regulation G, T, U and X of the Board of Governors of the Federal Reserve
System.
5. None of the execution and delivery of the Credit
Agreement, the making of any Advances thereunder or compliance with the
provisions thereof (A) conflicts with, or results in a breach or violation of
the certificate of incorporation or bylaws of the Company, (B) results in a
material breach or violation of, or constitutes a material default under, the
terms, conditions or provisions of (i) any material loan agreement or other
contract to which the Company or any Subsidiary is a party, (ii) any order,
writ judgment or decree that the Company or any Subsidiary is a party to or by
which any of the Company's or any Subsidiary's assets or properties are bound
and which is material to the Company and its Subsidiaries, taken as a whole, or
(iii) any present United States federal, Delaware corporate or Arizona statute,
rule or regulation, known to me to be applicable to or binding on the Company
and of a type commonly applicable to transactions of the type contemplated by
the Credit Agreement or (C) results in the creation of any Lien upon any of the
assets or properties of the Company or any Subsidiary under any agreement or
contract referred to in clause (B)(i) above.
D-A-3-2
<PAGE> 92
6. No governmental consents, approvals, registrations,
declarations or filings are required to be obtained or made by the Company in
connection with the execution and delivery of the Credit Agreement.
7. To the best of my knowledge, there are no actions, suits
or proceedings (administrative, judicial or otherwise) pending or threatened
against the Company or any Subsidiary which have a significant likelihood of
materially and adversely affecting (a) the business, operations, prospects or
condition (financial or otherwise) of the Company and its Subsidiaries, taken
as a whole, or (b) the ability of the Company to perform its obligations under
the Credit Agreement, except as disclosed on Schedule II hereto.
I am admitted to the bar in the State of Arizona, and I express
no opinion as to the laws of any other jurisdiction except the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America. While the Credit Agreement is stated to be governed by the
laws of the State of New York, I have, with your permission, expressed the
opinions herein as if the Credit Agreement were governed by the laws of the
State of Arizona. With respect to such laws, my opinions are what the law is
at the date hereof, and I assume no obligation to supplement this opinion due
to any change in the law, legislative action, judicial decision or otherwise.
To the extent that the obligations of the Company may be
dependent upon such matters, I have assumed for the purposes of this opinion
that each Person who is a party to the Credit Agreement (other than the
Company) is duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation; that the Credit Agreement has been
duly authorized, executed and delivered by each such Person (other than the
Company) and constitutes the legally valid and binding obligation of each such
Person (other than the Company), enforceable in accordance with its terms; the
genuineness of all signatures and the legal capacity of each natural person
executing the Credit Agreement (other than any such person executing the Credit
Agreement on behalf of the Company); the authenticity and completeness of
documents submitted as originals, and the conformity of documents submitted as
copies; that the Credit Agreement accurately describes and contains the
agreement and mutual understandings of the parties, and that there are no
verbal or written statements or agreements that modify, amend or vary, or
purport to modify, amend or vary, any of the terms of the Credit Agreement;
that you will receive no interest, charges, fees or other benefits or
compensation in the nature of interest in connection with the Credit Agreement
or its related transactions other than those that the Company has agreed in
writing to pay; that all parties to the Credit Agreement will enforce their
respective rights thereunder in circumstances and in a manner which are
commercially reasonable and in accordance with applicable law; and that
D-A-3-3
<PAGE> 93
each Person who is a party to the Credit Agreement (other than the
Company) has the requisite corporate or other organizational power and
authority to perform is obligations under the Credit Agreement.
This opinion is being delivered upon the express instructions of
the Company to Citibank, N.A., as Administrative Agent, Citibank, N.A., Bank of
America National Trust and Savings Association, Bank of Montreal, National
Westminster Bank USA and Chemical Bank, as Agents and the Lenders under the
Credit Agreement and is solely for their benefit in connection with the
transactions contemplated thereby. This opinion may not be relied upon by,
filed with, disclosed to, quoted in any manner to, referenced in any written
report, financial statement or other document to, or delivered to any other
person, firm or corporation for any purpose, without my prior written consent,
except that the Administrative Agent, each Agent and each Lender may use this
opinion (i) in connection with a review of the Credit agreement and
transactions related thereto by a regulatory agency having supervisory
authority over any such Person for the purpose of confirming the existence of
this opinion, (ii) in connection with the assertion of a defense as to which
this opinion is relevant and necessary, (iii) in response to a court order or
(iv) in connection with any assignment of any Advances or Commitment in
accordance with the provisions of the Credit Agreement, and any permitted
assignee may rely on this opinion as if it were addressed and had been
delivered to such assignee on the date hereof.
Very truly yours,
D-A-3-4
<PAGE> 94
SCHEDULE I
Lenders and Agents
__________________
[conform to signature pages of Credit Agreement]
D-A-3-5
<PAGE> 95
SCHEDULE II
Material Litigation
___________________
None.
D-A-3-6
<PAGE> 96
EXHIBIT E
[LETTERHEAD OF GREYHOUND FINANCIAL CORPORATION]
REQUEST FOR EXTENSION OF TERMINATION DATE
_____________________, 19___
LENDERS PARTY TO THE CREDIT AGREEMENT
REFERRED TO BELOW
Ladies and Gentlemen
In accordance with Section 2.17 of the Sixth Amendment and Restatement,
dated as of May 16, 1994, of the Credit Agreement, dated as of May 31, 1976,
as theretofore amended (the "Credit Agreement"; terms defined therein being
used herein as therein defined), among the undersigned, the Lenders parties
thereto, the Agents parties thereto, Bank of America National Trust and Savings
Association, Bank of Montreal, Chemical Bank, Citibank, N.A. and National
Westminster Bank USA, as Agents, and Citibank, N.A., as Administrative Agent,
the undersigned hereby requests that you consent to extension of the
Termination Date to [INSERT DATE ONE YEAR AFTER CURRENT TERMINATION DATE], or,
if such date is not a Business Day, the next succeeding Business Day.
Please indicate your consent to such extension of the Termination
Date by signing the attached copy of this letter in the space provided below
and returning same to the Administrative Agent, if possible by _____________,
19__ but, in any event, not later than ____________, 19___.
Very truly yours,
GREYHOUND FINANCIAL
CORPORATION
By __________________________
Title:
E-1
<PAGE> 97
The undersigned Lender, party to the Credit Agreement,
consents to the extension of the Termination Date as requested above.
[NAME OF LENDER]
____________________________
By
____________________________
Title:
E-2
<PAGE> 98
EXHIBIT F
[FORM OF PROMISSORY NOTE]
GREYHOUND FINANCIAL CORPORATION
PROMISSORY NOTE
Phoenix, Arizona
________ __, 19__
For value received, Greyhound Financial Corporation, a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
___________________________ (the "Lender"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Advance made by the Lender
to the Borrower pursuant to the Credit Agreement referred to below on the last
day of the Interest Period relating to such Advance. The Borrower promises to
pay interest on the unpaid principal amount of each such Advance on the dates
and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in United States dollars in
same day funds at the Administrative Agent's office, as specified in the Credit
Agreement.
All Advances made by the Lender, the respective maturities thereof
and all repayments of principal thereof shall be recorded by the Lender
and, prior to any transfer hereof, appropriate notations to evidence the
foregoing information with respect to each such Advance then outstanding shall
be endorsed by the Lender on the schedule attached hereto, or on a continuation
of such schedule attached to and made a part hereof, or in the records of such
Lender in accordance with its usual practice; provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This promissory note is one of the promissory notes referred to
in Section 2.18 of the Sixth Amendment and Restatement dated as of
May 16, 1994, of Credit Agreement dated as of May 31, 1976, as theretofore
amended, among the Borrower, the Lenders named therein, the Agents named
therein, Bank of America National Trust and Savings Association, Bank of
Montreal, Chemical Bank, Citibank, N.A. and National Westminster Bank USA, as
Agents, and Citibank, N.A., as Administrative Agent (said Sixth Amendment and
Restatement, as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is hereby made to the Credit Agreement for
provisions relating to this promissory note, including, without limitation, the
mandatory and optional prepayment hereof and the acceleration of the maturity
hereof.
GREYHOUND FINANCIAL CORPORATION
By____________________________
Title:
F-1
<PAGE> 99
Schedule to Promissory Note
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Amount of
Amount of Type of Principal Maturity Notation
Date Advance Advance Repaid Date By
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
</TABLE>
F-2
<PAGE> 100
================================================================================
================================================================================
GREYHOUND FINANCIAL CORPORATION
SIXTH AMENDMENT AND RESTATEMENT
DATED AS OF MAY 16, 1994
OF
CREDIT AGREEMENT
DATED AS OF MAY 31, 1976
================================================================================
================================================================================
Bank of America National Trust and Savings Association,
Bank of Montreal, Chemical Bank, Citibank, N.A.
and National Westminster Bank USA, as Agents
Citibank, N.A., as Administrative Agent
<PAGE> 101
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . 1
___________
ARTICLE II
Amount and Terms of the Credit. . . . . . . . 12
SECTION 2.01. The A Advances. . . . . . . . . . . . . . . . . . 12
______________
SECTION 2.02. Making the A Advances . . . . . . . . . . . . . . 13
_____________________
SECTION 2.03. Making the B Advances . . . . . . . . . . . . . . 16
_____________________
SECTION 2.04. Prepayments of Advances . . . . . . . . . . . . . 20
_______________________
SECTION 2.05. Interest on A Advances. . . . . . . . . . . . . . 21
______________________
SECTION 2.06. Additional Interest on Eurodollar Advances. . . . 23
__________________________________________
SECTION 2.07. Interest Rate Determination . . . . . . . . . . . 23
___________________________
SECTION 2.08. Repayment . . . . . . . . . . . . . . . . . . . . 24
_________
SECTION 2.09. Increased Costs . . . . . . . . . . . . . . . . . 24
_______________
SECTION 2.10. Facility Fee. . . . . . . . . . . . . . . . . . . 25
____________
SECTION 2.11. Reduction of the Commitments. . . . . . . . . . . 25
____________________________
SECTION 2.12. Payments and Computations . . . . . . . . . . . . 26
_________________________
SECTION 2.13. Compensation. . . . . . . . . . . . . . . . . . . 27
____________
SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . 28
_____
SECTION 2.15. Sharing of Payments, Etc. . . . . . . . . . . . . 29
________________________
SECTION 2.16. Status of Prior Agreement . . . . . . . . . . . . 30
_________________________
SECTION 2.17. Extension of Commitments. . . . . . . . . . . . . 30
________________________
SECTION 2.18. Evidence of Debt. . . . . . . . . . . . . . . . . 31
________________
ARTICLE III
Representations and Warranties. . . . . . . . 32
SECTION 3.01. Representations and Warranties of the Company . . 32
_____________________________________________
ARTICLE IV
Covenants . . . . . . . . . . . . . . . . . . 35
SECTION 4.01. Affirmative Covenants . . . . . . . . . . . . . . 35
_____________________
SECTION 4.02. Negative Covenants. . . . . . . . . . . . . . . . 38
__________________
ARTICLE V
Conditions of Lending . . . . . . . . . . . . 42
SECTION 5.01. Conditions Precedent to Effectiveness . . . . . . 42
_____________________________________
SECTION 5.02. Conditions Precedent to Each A Advance. . . . . . 44
______________________________________
SECTION 5.03. Conditions Precedent to Certain Borrowings. . . . 45
__________________________________________
ARTICLE VI
Events of Default. . . . . . . . . . . . .. . 45
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . 45
_________________
ARTICLE VII
The Administrative Agent and Agents . . . . . 48
SECTION 7.01. Authorization and Action. . . . . . . . . . . . . 48
________________________
SECTION 7.02. Agents' Reliance, Etc . . . . . . . . . . . . . . 48
_____________________
</TABLE>
i
<PAGE> 102
SECTION 7.03. Citibank, BofA , Chemical, BofM, NatWest
________________________________________
and Their Affiliates . . . . . . . . . . . . . . . . . . . . 49
____________________
SECTION 7.04. Lender Credit Decision. . . . . . . . . . . . . . 49
______________________
SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . . 49
_______________
SECTION 7.06. Successor Agent . . . . . . . . . . . . . . . . . 50
_______________
ARTICLE VIII
Miscellaneous. . . . . . . . . . . . . . . 51
SECTION 8.01. No Waiver; Amendments . . . . . . . . . . . . . . 51
_____________________
SECTION 8.02. New Lenders . . . . . . . . . . . . . . . . . . . 52
___________
SECTION 8.03. Notices, Etc. . . . . . . . . . . . . . . . . . . 52
____________
SECTION 8.04. Assignments, Participations etc.. . . . . . . . . 52
_______________________________
SECTION 8.05. Costs, Expenses and Taxes . . . . . . . . . . . . 56
_________________________
SECTION 8.06. Right of Set-off. . . . . . . . . . . . . . . . . 57
________________
SECTION 8.07. Accounting Terms. . . . . . . . . . . . . . . . . 57
________________
SECTION 8.08. Effectiveness of Action by, or Consent of,
__________________________________________
Lenders. . . . . . . . . . . . . . . . .. . . . 57
_______
SECTION 8.09. Several Obligations . . . . . . . . . . . . . . . 57
___________________
SECTION 8.10. Binding Effect. . . . . . . . . . . . . . . . . . 57
______________
SECTION 8.11. Severability of Provisions. . . . . . . . . . . . 58
__________________________
SECTION 8.12. Descriptive Headings. . . . . . . . . . . . . . . 58
____________________
SECTION 8.13. Governing Law . . . . . . . . . . . . . . . . . . 58
_____________
SECTION 8.14. Execution in Counterparts . . . . . . . . . . . . 58
_________________________
SECTION 8.15. Waiver of Trial by Jury . . . . . . . . . . . . . 58
_______________________
EXHIBIT A-1 Form of Notice of A Borrowing . . . . . . . . . . . . . . . A-1-1
EXHIBIT A-2 Form of Notice of B Borrowing . . . . . . . . . . . . . . . A-2-1
EXHIBIT A-3 Form of B Advance Offer Notice. . . . . . . . . . . . . . . A-3-1
EXHIBIT B Section 4.01(a) Certificate . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Assignment and Acceptance . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D Form of Opinion of W. J. Hallinan, Esq. . . . . . . . . . . . . D-1
EXHIBIT E Form of Extension Request . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F Form of Promissory Note . . . . . . . . . . . . . . . . . . . . F-1
SCHEDULE 1 Lending Offices
ii
<PAGE> 1
EXHIBIT 10.2
CREDIT AGREEMENT
(SHORT TERM FACILITY)
DATED AS OF MAY 16, 1994
GREYHOUND FINANCIAL CORPORATION, a Delaware corporation
(herein called the "Company"), the undersigned lenders (together with each
lender which becomes a Lender hereunder pursuant to Sections 8.02 and 8.04,
collectively the "Lenders"), the undersigned Agents, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, BANK OF MONTREAL, CHEMICAL BANK, CITIBANK,
N.A., and NATIONAL WESTMINSTER BANK USA, individually and as agents (the
"Agents") for the Lenders hereunder, and CITIBANK, N.A., a national banking
association, as administrative agent (the "Administrative Agent") for the
Lenders hereunder, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
____________
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to the singular and plural
forms of the terms defined):
"Advance" shall mean an advance by a Lender to the Company
pursuant to Article II (and after the making of the Term Loan, the Term
Loan), and refers to a Base Rate Advance or a Eurodollar Advance (each
of which shall be a "Type" of Advance).
"Agreement" means this Credit Agreement (Short Term Facility),
as it may be amended, supplemented or otherwise modified from time to
time.
"Applicable Lending Office" shall mean, with respect to each
Lender, (i) such Lender's Domestic Lending Office in the case of a Base
Rate Advance and (ii) such Lender's Eurodollar Lending Office in the
case of a Eurodollar Advance.
"Assignment and Acceptance" has the meaning assigned to that
term in Section 8.04.
"Base Rate" shall mean, for any period (including any Interest
Period or portion thereof), a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall at all
times be equal to the sum of (i) the highest of:
<PAGE> 2
(a) The rate of interest announced publicly by
Citibank in New York, New York from time to time as Citibank's
base rate; or
(b) the sum of (A) 1/2 of one percent plus (B) the
rate obtained by dividing (x) the latest three-week moving
average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major
United States money market banks (such three-week moving
average being determined weekly by Citibank on the basis of
such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank, in either case
adjusted to the nearest 1/4 of one percent or, if there is no
nearest 1/4 of one percent, to the next higher 1/4 of one
percent), by (y) a percentage equal to 100% minus the average
of the daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement (including, but
not limited to, any marginal reserve requirements for Citibank
in respect of liabilities consisting of or including (among
other liabilities) three- month nonpersonal time deposits of at
least $100,000), plus (C) the average during such three-week
period of the daily net annual assessment rates estimated in
good faith by Citibank for determining the current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation for insuring three-month deposits in the United
States; or
(c) 1/2 of one percent above the Federal Funds Rate,
plus (ii) the applicable Margin; provided that the Base Rate shall at
no time exceed the maximum rate permitted by law. Each change in the
Base Rate shall take effect simultaneously with the corresponding
change in the applicable rate described above in clause (a), (b) or
clause (c) and any change in the applicable Margin.
"Base Rate Advance" shall mean an Advance to which the Base
Rate is or is proposed to be applicable.
"BofA" shall mean Bank of America National Trust and Savings
Association, a national banking association.
"BofM" shall mean Bank of Montreal.
2
<PAGE> 3
"Borrowing" shall mean a borrowing consisting of Advances of
the same Type and Interest Period made on the same day by the Lenders.
"Business Day" shall mean any day of the year on which banks
are not required or authorized to close in New York, New York or Los
Angeles, California, and, if the applicable Business Day relates to any
Eurodollar Advance, a day of the year on which dealings are carried on
in the London interbank market.
"Capital Stock" shall mean, with respect to any corporation,
common stock and preferred stock of any class or classes (however
designated).
"Carrying Value" shall mean the sum of (i) Receivables plus
(ii) the residual value (as determined pursuant to the relevant leases)
of all equipment of the Company and the Subsidiaries under lease, less
Unearned Income.
"Chemical" shall mean Chemical Bank, a New York banking
corporation.
"Citibank" shall mean Citibank, N.A., a national banking
association.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commercial Paper" shall mean instruments for the payment of
money which mature within 270 days from the date of issue, are commonly
known as commercial paper and are of a character customarily traded in
the money market.
"Commitment" has the meaning assigned to that term in Section
2.01.
"Commitment Reallocation Event" means the occurrence, or
proposed occurrence, of (i) the non-ratable termination of any Lender's
Commitment pursuant to Section 2.10(b), (ii) any extension of the
Termination Date pursuant to Section 2.15 as to less than all of the
Lenders, or (iii) the addition of a New Lender pursuant to Section
8.02.
"Consolidated Net Income" for any period shall mean the amount
of net income (or net loss) of the Company and the Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP;
provided, however, that Consolidated Net Income shall not include (i)
any net income (or net loss) of a Subsidiary for any period during
which it was not a Subsidiary, (ii) any net income (or net loss) of any
business, properties or assets acquired (by way of merger,
consolidation, purchase or otherwise) by the Company
3
<PAGE> 4
or any Subsidiary for any period prior to the acquisition thereof,
or (iii) the equity of the Company or any Subsidiary in the undistributed
earnings of any entity other than a Subsidiary.
"D&P" shall mean Duff & Phelps Credit Rating Co. and any
successor thereto.
"Domestic Lending Office" shall mean, with respect to any
Lender, the office of such Lender specified as its "Domestic Lending
Office" on Schedule 1 hereto or such other office of such Lender as
such Lender may from time to time specify to the Company and the
Administrative Agent.
"Effective Date" shall mean the date on or before August 29,
1994 on which all of the conditions in Section 5.01 shall have been
satisfied or waived.
"Eligible Assignee" means any financial institution or entity
engaged in the business of extending revolving credit and having
consolidated assets of $500,000,000 or more; excluding, however, any
insurance companies or commercial finance companies.
"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions applicable to
the Company or any Subsidiary relating to the environment or to
emissions, discharges or releases of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate", as applied to any Person, shall mean any
trade or business (whether or not incorporated) which is a member of a
group of which that Person is a member and which is under common
control within the meaning of Section 414(b) and (c) of the Code.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
4
<PAGE> 5
"Eurodollar Advance" shall mean an Advance to which the
Eurodollar Rate is or is proposed to be applicable.
"Eurodollar Lending Office" shall mean, with respect to each
Lender, the office of such Lender specified as its "Eurodollar Lending
Office" on Schedule 1 hereto or such other office of such Lender as
such Lender may from time to time specify to the Company and the
Administrative Agent.
"Eurodollar Rate" shall mean, in respect of any Interest Period
or portion thereof for any Eurodollar Advance, the sum of the
applicable LIBO Rate and the Margin applicable to such Interest Period
or portion thereof.
"Eurodollar Reserve Percentage" of any Lender for the Interest
Period for any Eurodollar Advance shall mean the reserve percentage
applicable during such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or if more than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such Interest
Period.
"Event of Default" has the meaning assigned to that term in
Section 6.01.
"Exposure" shall mean the aggregate Carrying Value of all
transactions in respect of any Person which is a customer of the
Company or any Subsidiary, any subsidiary of such Person or any other
Person, the obligations of which are guaranteed by a Person that is a
customer of the Company or such Subsidiary.
"Extension Request" shall mean a Request for Extension
delivered by the Company to the Lenders to request an extension of the
Termination Date in accordance with the provisions of Section 2.15, in
substantially the form of Exhibit E hereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so
5
<PAGE> 6
published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board, or any analogous opinions, statements or pronouncements of any
successor thereto, which are applicable in the United States to the
circumstances as of the date of determination.
"GFC Financial" shall mean GFC Financial Corporation, a
Delaware corporation.
"Greyhound European Financial Group" shall mean Greyhound
Financial & Leasing Corporation AG, a Switzerland corporation,
Greyhound Financial Services Limited, a United Kingdom corporation, and
their subsidiaries.
"Guaranty", as applied to any Person, shall mean any direct or
indirect liability, contingent or otherwise, of that Person with
respect to any obligation of another including, without limitation, the
endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another. The amount of
any Guaranty shall be equal to the amount of the obligation so
guaranteed or otherwise supported.
"Indebtedness", as applied to any Person, shall mean (i) all
indebtedness for borrowed money which is properly classified as a
liability on a balance sheet in conformity with GAAP, (ii) that portion
of obligations with respect to capital leases which is properly
classified as a liability on a balance sheet in conformity with GAAP,
(iii) notes payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money,
except, in any case, unfunded lines of credit, and (iv) any obligation
owed for all or any part of the deferred purchase price of property or
services which purchase price is (A) due more than six months from the
date of incurrence of the obligation in respect thereof, or (B)
evidenced by a note or similar written instrument, excluding, in any
case, indebtedness secured by equipment or property where the recourse
of the payee of such indebtedness is limited to the lessor's interest
in leases thereof, the rents and other amounts due thereunder and such
equipment or property and proceeds therefrom.
6
<PAGE> 7
"Interest Period" has the meaning assigned to that term in
Section 2.04(b).
"Level 1" shall mean that Long-term Debt carries two or more of
the following ratings:
"A-" or higher by S&P
"A3" or higher by Moody's
"A-" or higher by D&P
"Level 2" shall mean that the criteria of Level 1 are not
satisfied and Long-term Debt carries two or more of the following
ratings:
"BBB+" or higher by S&P
"Baa1" or higher by Moody's
"BBB+" or higher by D&P
"Level 3" shall mean that the criteria of neither Level 1 nor
Level 2 are satisfied and Long-term Debt carries two or more of the
following ratings:
"BBB" or higher by S&P
"Baa2" or higher by Moody's
"BBB" or higher by D&P
"Level 4" shall mean that none of the criteria of Level 1,
Level 2 or Level 3 are satisfied and Long-term Debt carries two or more
of the following ratings:
"BBB-" or higher by S&P
"Baa3" or higher by Moody's
"BBB-" or higher by D&P
"Level 5" shall mean that none of the criteria of Level 1,
Level 2, Level 3 or Level 4 are satisfied.
"Lien" shall mean any lien, mortgage, charge, claim, security
interest, pledge, hypothecation, right of another under any conditional
sale or other title retention agreement, or any other encumbrance
affecting title to property. Without limiting the generality of the
foregoing, the sale of property used or useful in the business of the
seller with the intention of retaining the use thereof under a lease,
or any other comparable arrangement commonly referred to as a "sale and
leaseback", shall be deemed to create a Lien on such property.
"LIBO Rate" shall mean, for any Interest Period for a
Eurodollar Advance comprising part of the same Borrowing, an interest
rate per annum equal to the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum
7
<PAGE> 8
at which deposits in United States dollars are offered by the principal
office of each of the Reference Banks in London, England, to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a period equal to
such Interest Period and in an amount substantially equal to the amount of
such Eurodollar Advance comprising part of such Borrowing to be
outstanding during such Interest Period from such Reference Bank. The
LIBO Rate for the Interest Period for each Eurodollar Advance comprising
part of the same Borrowing shall be determined by the Administrative Agent
on the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.06.
"Long-term Debt" shall mean senior, unsecured, public long-term
debt securities of the Company.
"Long Term Facility Credit Agreement" shall mean that certain
Sixth Amendment and Restatement, of even date herewith, of the Credit
Agreement, dated as of May 31, 1976, among the Company, the Lenders
thereunder, the Agents and the Administrative Agent, as it may be
amended, supplemented or otherwise modified from time to time.
"Majority Lenders" shall mean at any time Lenders holding at
least 66-2/3% of the then aggregate unpaid principal amount of the
Advances held by Lenders or, if no such principal amount is then
outstanding, Lenders having at least 66-2/3% of the Total Commitments.
"Margin" shall mean with respect to any day in any Interest
Period in relation to any Advance, the percentages set forth in Table A
below, with respect to determinations of the Base Rate, or Table B
below, with respect to determinations of the Eurodollar Rate:
8
<PAGE> 9
Table A
Base Rate Margins
(in basis points)
Outstanding Advances as a Percentage of Commitments
<TABLE>
<CAPTION>
Greater than
Level Less than 50% or equal to 50%
_____ _____________ _______________
<S> <C> <C>
Level 1 -12.50 -12.50
Level 2 -17.50 -17.50
Level 3 -22.50 -22.50
Level 4 -17.50 7.50
Level 5 10.00 60.00
</TABLE>
Table B
Eurodollar Margins
(in basis points)
Outstanding Advances as a Percentage of Commitments
<TABLE>
<CAPTION>
Greater than
Level Less than 50% or equal to 50%
_____ _____________ _______________
<S> <C> <C>
Level 1 37.50 50.00
Level 2 38.75 51.25
Level 3 52.50 77.50
Level 4 82.50 107.50
Level 5 110.00 160.00
</TABLE>
The applicable Margin shall be adjusted daily to reflect changes in the
outstanding principal amount of the Advances (determined for any day as
of the close of business) and the Level applicable to Long-term Debt in
accordance with Section 2.06.
"Moody's" shall mean Moody's Investors Service, Inc. and any
successor thereto.
"NatWest" shall mean National Westminster Bank USA.
"New Lender" shall have the meaning assigned to that term in
Section 8.02.
"Note" has the meaning specified in Section 2.17(d).
"Notice of Borrowing" has the meaning specified in Section 2.02.
9
<PAGE> 10
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established under ERISA or any successor thereto under ERISA.
"Person" shall mean an individual, corporation, partnership,
joint venture, trust or unincorporated organization, any nation, state
or government or political subdivision thereof or any agency of such
nation, state, government or political subdivision.
"Plan" shall mean an employee benefit plan (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA)
maintained for employees of the Company or any of its ERISA Affiliates
and covered by Title IV of ERISA.
"Receivables" shall mean the sum of (i) the aggregate amounts
then due or to become due to the Company and the Subsidiaries under all
contracts receivable and equipment leases then in effect, less all
lease rental deposits received by the Company and the Subsidiaries
under such leases and (ii) the aggregate amounts paid or payable by the
Company and the Subsidiaries for equipment not yet delivered, provided
there is then in effect a written agreement (not subject to any
assignment, lien, security interest or other encumbrance) to lease or
obtain financing for such equipment from the Company or the
Subsidiaries upon delivery, but only to the extent that the agreed-upon
rentals or payments by the customer for such equipment cover such
amounts.
"Reference Banks" shall mean Citibank, BofA, Chemical, NatWest and
BofM.
"S&P" shall mean Standard & Poor's Corporation and any successor
thereto.
"Secured Indebtedness" shall mean all Senior Indebtedness and
Subordinated Indebtedness secured by any Lien (including the Lien of a
conditional vendor) upon or with respect to any of the property or
assets of the Company or the Subsidiaries, including, for purposes of
Section 4.02(b) of this Agreement, obligations incurred in transactions
in which the Company is the lessee and sublessor of the property
securing such obligations.
"Senior Indebtedness" shall mean all Indebtedness of the
Company and the Subsidiaries, and including any direct or contingent
liability in connection with the assumption or Guaranty of, or
undertaking with respect to, the obligations of any Person other than
the Company or the Subsidiaries, but excluding Subordinated
Indebtedness.
10
<PAGE> 11
"Stockholders' Equity" shall mean stockholders' equity
determined in accordance with GAAP.
"Subordinated Indebtedness" shall mean Indebtedness of the
Company which is issued and outstanding on the date hereof or issued
after the date hereof which is, in the sole opinion of the Majority
Lenders, subordinated by its terms in right of payment to all
Indebtedness hereunder, on terms satisfactory to the Majority Lenders.
"Subsidiaries" shall mean corporations of which the Company
shall directly or indirectly own 51% of the outstanding capital stock,
other than directors' qualifying shares.
"Surviving Corporation" has the meaning assigned to that term
in Section 4.02(f).
"Tangible Net Worth" shall mean Stockholders' Equity less all
assets of the Company and consolidated subsidiaries that would be
classified as intangible assets under GAAP.
"Termination Date" shall mean the date that occurs 364 days
from the Effective Date; provided, however, that, if any Lender has
consented to an Extension Request in accordance with Section 2.15, with
regard to the then existing Termination Date, the then existing
Termination Date as to such Lender shall be automatically extended for
364 days from the then existing Termination Date; provided, however,
that, notwithstanding any other provisions of this Agreement to the
contrary, the Termination Date shall occur upon the earlier termination
in whole of the Commitments pursuant to Section 2.10 or 6.01.
"Termination Event" shall mean (i) a "Reportable Event"
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under such regulations), or
(ii) the withdrawal of the Company or any of its ERISA Affiliates from
a Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a notice
of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate a Plan by the PBGC, or (v) any other event or
condition which constitutes grounds under ERISA for the termination of,
or the appointment of a trustee to administer, any Plan, or (vi) the
imposition of a lien pursuant to Section 412(n) of the Code.
"Term Loan" shall have the meaning assigned to that term in
Section 2.16.
11
<PAGE> 12
"Term Loan Maturity Date" shall be the date occurring 364 days
after the date on which the Term Loan was made.
"Total Commitments" shall mean, at the time for any determination
thereof, the aggregate of the Commitments of the Lenders.
"TriCon" shall mean TriCon Capital Corporation, a Delaware
corporation.
"TriCon Acquisition Date" shall mean April 30, 1994, the date upon
which the Company consummated its acquisition of all of the outstanding
capital stock of TriCon.
"Unearned Income" shall mean those amounts carried on the books of
the Company and its Subsidiaries from time to time of the type identified
as "unearned income" in the audit report, certified by Deloitte & Touche,
of the Company and its Subsidiaries for the year ended December 31, 1993.
ARTICLE II
Amount and Terms of the Credit
SECTION 2.01. The Advances.
_____________
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Company from time to
time on any Business Day during the period from the Effective Date to but
excluding the Termination Date, as in effect for such Lender, in an aggregate
principal amount at any one time outstanding not to exceed the amount set
opposite such Lender's name on the signature pages hereof, as such amount may
be reduced pursuant to Section 2.10 (such Lender's "Commitment"). The
aggregate of all Commitments hereunder on the Effective Date is $950,000,000.
Within the limits of each Lender's Commitment, the Company may from time to
time borrow, repay pursuant to Section 2.07 or prepay pursuant to Section 2.03,
and reborrow under this Section 2.01.
(b) Each Borrowing shall be (i) in the case of Base Rate Advances,
in an aggregate principal amount of not less than $5,000,000 or, if
greater, in an aggregate principal amount which is an integral multiple of
$1,000,000, and (ii) in the case of Eurodollar Advances, in an aggregate
principal amount of not less than $15,000,000 or, if greater, an aggregate
principal amount which is an integral multiple of $1,000,000 (except that any
Borrowing consisting of Base Rate Advances may be in an aggregate principal
amount equal to the unused portion of the Total Commitments) and shall consist
of Advances of the same Type and Interest Period, in each case made on the same
day simultaneously by the Lenders ratably according to their respective
Commitments.
12
<PAGE> 13
SECTION 2.02. Making the Advances.
____________________
(a) Each Borrowing shall be made on notice given not later than
(i) 11:00 A.M. (New York City time) in the case of a Borrowing which is to
consist of Base Rate Advances, on the Business Day of such Borrowing, and (ii)
12:00 Noon (New York City time) in the case of a Borrowing which is to consist
of Eurodollar Advances, on the third Business Day prior to such Borrowing, from
the Company to the Administrative Agent (which shall give prompt notice thereof
to each Lender). Each such notice (a "Notice of Borrowing") shall be by telex
or telecopy facsimile, confirmed immediately in writing, in substantially the
form of Exhibit A hereto and shall specify (i) the date of such Borrowing,
which shall be a Business Day, (ii) the Type of Advances comprising such
Borrowing, (iii) the aggregate amount of the proposed Borrowing, and (iv) the
Interest Period for the Advances to be made as part of such Borrowing. Each
Lender through its Applicable Lending Office shall, before (x) in the case of a
Borrowing which is to consist of Base Rate Advances, 1:00 P.M. (New York City
time), and (y) in the case of a Borrowing which is to consist of Eurodollar
Advances, 12:00 Noon (New York City time) on the date of such Borrowing, make
available to the Administrative Agent at its address provided for in Section
8.03 such Lender's ratable portion of such Borrowing in same day funds. Upon
fulfillment of the applicable conditions set forth in Article V and after
receipt by the Administrative Agent of such funds, the Administrative Agent
will make such funds available to the Company at the Administrative Agent's
aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) if any Lender shall notify (which notice shall, if
given in relation to a proposed Borrowing, be given at least one
Business Day before the date of the proposed Borrowing) the
Administrative Agent that the introduction of or any change in or in
the interpretation of any law or regulation makes it unlawful, or that
any central bank or other governmental authority asserts that it is
unlawful, for such Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Advances or to fund or
maintain Eurodollar Advances hereunder, the Commitment of such Lender
to make Eurodollar Advances shall forthwith be suspended until the
Administrative Agent shall notify the Company that such Lender has
determined that the circumstances causing such suspension no longer
exist and such Lender's then outstanding Eurodollar Advances, if any,
shall be converted to Base Rate Advances; to the extent that such
affected Eurodollar Advances become Base Rate Advances, all payments of
principal that would have been otherwise applied to such Eurodollar
Advances shall be applied instead to such Lender's Base Rate Advances;
provided that if
13
<PAGE> 14
Majority Lenders are subject to the same illegality or
assertion of illegality, then the right of the Company to select
Eurodollar Advances for such Borrowing or any subsequent Borrowing
shall forthwith be suspended until the Administrative Agent shall
notify the Company that the circumstances causing such suspension no
longer exist, and each Advance comprising such Borrowing shall be
converted to a Base Rate Advance;
(ii) if fewer than two Reference Banks furnish timely
information to the Administrative Agent pursuant to Section 2.06 for
determining the LIBO Rate for Eurodollar Advances comprising any
requested Borrowing, the right of the Company to select Eurodollar
Advances for such Borrowing or any subsequent Borrowing shall be
suspended until the Administrative Agent shall notify the Company and
the Lenders that the circumstances causing such suspension no longer
exist, and each Advance comprising such Borrowing shall be converted to
a Base Rate Advance; and
(iii) if the Majority Lenders shall, at least one Business
Day before the date of any requested Borrowing, notify the
Administrative Agent that the LIBO Rate for Eurodollar Advances
comprising such Borrowing will not adequately reflect the cost to such
Majority Lenders of making or funding their respective Eurodollar
Advances for such Borrowing, the right of the Company to select
Eurodollar Advances for such Borrowing or any subsequent Borrowing
shall be suspended until the Administrative Agent shall notify the
Company and the Lenders that the circumstances causing such suspension
no longer exist, and each Advance comprising such Borrowing shall be
converted to a Base Rate Advance.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Company and, in respect of a Borrowing consisting of Eurodollar
Advances specified in any such notice, the Company shall, in accordance with
Section 2.12, indemnify each Lender against any loss or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified for such Borrowing the applicable conditions set forth in Article V,
including, without limitation, any loss (including loss of anticipated profits)
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(d) Unless the Administrative Agent shall have been
notified by a Lender before 12:00 Noon (New York City time) on the Business Day
of the making of a Base Rate Advance and 11:00 A.M. (New York City time) one
Business Day prior to the date of the making of any Eurodollar Advance that
such Lender does not
14
<PAGE> 15
intend to make available to the Administrative Agent such Lender's
portion of the Advances to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on the date for the making of such Advances and the Administrative Agent
may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such portion is not in fact made available to the
Administrative Agent by such Lender and the Administrative Agent shall have
made such portion available to the Company as aforesaid, the Administrative
Agent shall be entitled to recover such portion on demand from such Lender,
which demand shall be made in a reasonably prompt manner. If such Lender does
not pay such amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Company and the Company
shall repay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Lender or the
Company, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Administrative Agent to the Company to the date such corresponding amount is
recovered by the Administrative Agent, at (i) in the case of the Company, the
interest rate applicable at the time to Advances comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall
be deemed to relieve any Lender from its obligation to fulfill its Commitment
hereunder or to prejudice any rights which the Company may have against any
Lender as a result of any default by such Lender hereunder.
(e) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. Prepayments of Advances.
________________________
(a) The Company shall have no right to prepay any
principal amount of any Advances other than as provided in this subsection (a).
The Company may, upon at least one Business Day's notice to the Administrative
Agent in the case of Base Rate Advances and at least three Business Days'
notice to the Administrative Agent in the case of Eurodollar Advances stating
the proposed date and the aggregate principal amount of the prepayment, and if
such notice is given the Company shall, prepay the outstanding principal
amounts of the Advances comprising part of the same Borrowing in whole or
ratably in part; provided, however, that (x) each partial prepayment shall be
in an aggregate principal amount not less than $5,000,000 and integral
multiples of $1,000,000 in excess thereof and (y) the Company
15
<PAGE> 16
shall pay all accrued interest to the date of such prepayment on the
portion of any Advance being prepaid and shall, in the case of any such
prepayment of any Eurodollar Advance, be obligated to reimburse the Lenders in
respect thereof pursuant to Section 2.12. Base Rate Advances may be prepaid
without premium or penalty. Amounts prepaid in respect of the Term Loan may not
be reborrowed.
(b)(i) The Lenders may require prepayment of the Advances and
termination of the Commitments in the manner set forth in subsection
(b)(ii) below, upon the occurrence (or, as set forth in subsection
(b)(ii) below, the proposed occurrence) of either of the following
events (the events described in clauses (x) or (y) are sometimes
hereinafter referred to as a "Change of Control"):
(x) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership or the right
to acquire beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of
securities of GFC Financial or the Company (or other securities
convertible into such securities) representing 25% or more of
the combined voting power of all securities of GFC Financial or
the Company entitled to vote in the election of directors,
other than securities having such power only by reason of the
happening of a contingency ("Share Acquisition"); or
(y) individuals who either (1) have been directors
of GFC Financial or the Company for the prior 24- month period
or (2) were nominated or elected by directors in office during
such period (but prior to any Share Acquisition) shall cease
for any reason to constitute a majority of the board of
directors of GFC Financial or the Company.
(ii) The Company shall give prompt written notice to each Lender
("Company Notice") of any proposed or actual Change of Control as follows: (x)
if the Company has knowledge of and the board of directors consents to (or does
not oppose) a proposed Change of Control, the Company shall notify the Lenders
of such Change of Control not more than 60 days nor less than 30 days prior to
the consummation of the Change of Control and (y) with respect to a Change of
Control to which the Company's board of directors does not consent and opposes,
the Company shall notify the Lenders of such Change of Control immediately
after the Company receives notice of such Change of Control. For a period of
90 days following receipt of the Company Notice by each Lender, each Lender
shall have the right by written notice to the Company ("Lender Notice") to
terminate its Commitment
16
<PAGE> 17
and to require the Company to prepay in whole, but not in part, without
premium or penalty, all Advances of such Lender, with accrued interest
and fees to the date of such prepayment on the amount of such Advances
prepaid. The date of prepayment and termination of any Commitments
following the Company's receipt of any Lender Notices shall be
determined by the Company and shall not be less than 60 or more than 90
days after the date of receipt by the Company of the first Lender
Notice. The Company agrees to make such prepayment if so required.
SECTION 2.04. Interest.
_________
(a) The Company shall pay interest accrued on the principal amount
of each Advance (i) in the case of Base Rate Advances at the Base Rate and
(ii) in the case of Eurodollar Advances at the Eurodollar Rate until the
final payment in full thereof as herein provided. Interest in respect of
Base Rate Advances shall be payable on the last day of each Interest
Period and, in the case of each Interest Period of greater than 30 days
duration, on each day which occurs every 30 days from the first day of such
Interest Period and interest in respect of Eurodollar Advances shall be payable
on the last day of each Interest Period and, in the case of each Interest
Period of greater than three months duration, on each day which occurs during
such Interest Period every three months from the first day of such Interest
Period. Interest in respect of any Advances, with respect to any Lender, shall
also be payable on the Termination Date for such Lender and upon prepayment of
any Advance to the extent accrued on the amount so prepaid. Overdue principal
and, to the extent permitted by law, overdue interest in respect of each
Advance and all other overdue amounts owing hereunder shall, except in the case
of a Eurodollar Advance, bear interest for each day such amount is overdue at a
rate per annum equal to 2% per annum in excess of the Base Rate in effect from
time to time and shall in the case of a Eurodollar Advance bear interest for
each day such amount is overdue at a rate per annum equal to (A) during the
Interest Period applicable to such Eurodollar Advance, the greater of (x) 2%
per annum above the Base Rate in effect from time to time and (y) 2% per annum
above the rate per annum required to be paid on such amount immediately prior
to the date on which such amount became due and (B) after the expiration of
such Interest Period, 2% per annum above the Base Rate in effect from time to
time. In no event shall interest payable hereunder to any Lender exceed the
maximum rate of interest payable to such Lender under applicable law.
(b) For each Base Rate Advance or Eurodollar Advance the
Company shall select an interest period (each such period being an "Interest
Period") to be applicable to such Advance. The Interest Period for each Base
Rate Advance or Eurodollar Advance shall begin on the last day of the
immediately preceding Interest Period, if any. The duration of each Interest
Period
17
<PAGE> 18
shall be (i) in the case of a Base Rate Advance, 30 or 60 days (or such
shorter period as shall extend to and end on the Termination Date for any
Lender) and (ii) in the case of a Eurodollar Advance, one, two, three or six
months, in each case as the Company may select upon notice received by the
Administrative Agent (y) not later than 11:00 A.M. on the first Business Day of
such Interest Period, in the case of a Base Rate Advance, or (z) at least three
Business Days, in the case of a Eurodollar Advance, prior to the first day of
such Interest Period; provided, however, that:
(i) if the Company fails to select the duration of any
Interest Period, on the day immediately following the last day of the
then current Interest Period for such Advance the Company shall be
deemed to have requested a Base Rate Advance in the amount of such
Advance with an Interest Period of 30 days;
(ii) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of the same
duration;
(iii) the Company may not select any Interest Period in
respect of Advances which ends after the Termination Date then in
effect for any Lender (or after the Term Loan Maturity Date if such
Advances will be used to make the Term Loan); and
(iv) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided, in the case of any Interest Period for a
Eurodollar Advance, that if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding
Business Day.
The Administrative Agent shall promptly advise each Lender by telex or telecopy
facsimile of each Interest Period selected by the Company.
SECTION 2.05. Additional Interest on Eurodollar Advances.
___________________________________________
The Company shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Advance of such Lender, from the date of such
Eurodollar Advance until maturity of such Eurodollar Advance, at an interest
rate per annum equal at all times during the Interest Period for such
Eurodollar Advance to the remainder obtained by subtracting (i) the LIBO Rate
for such
18
<PAGE> 19
Interest Period from (ii) the rate obtained by dividing such LIBO Rate
referred to in clause (i) above by that percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest Period, payable
on each date on which interest is payable on such Eurodollar Advance. Such
additional interest shall be determined by such Lender and notified to the
Company through the Administrative Agent.
SECTION 2.06. Interest Rate Determination.
____________________________
(a) Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining each
LIBO Rate. Subject to the provisions of Section 2.02(b)(ii), if any one or
more of the Reference Banks shall not furnish such timely information to the
Administrative Agent for determination of any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to
the Company and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of this Agreement and, if requested by any
Lender, the applicable rate, if any, furnished by each Reference Bank for
determining the applicable interest rate.
(c) The Margin applicable to each interest rate shall be
determined by the Administrative Agent on the basis of timely information
furnished to it by the Company, D&P, Moody's or S&P with respect to the rating
on Long-term Debt; any change in the Margin shall be effective on the earlier
of the date on which such rating change is publicly announced or on the date
written confirmation of a change in the rating on Long-term Debt or Commercial
Paper is sent to the Company by D&P, Moody's or S&P.
SECTION 2.07. Repayment.
__________
(a) Except as provided in Section 2.04(b)(i), the Company
shall repay the unpaid principal amount of each Advance made by each Lender on
the last day of the Interest Period for such Advance, and the Company shall
repay the unpaid principal amount of all Advances (other than the Term Loan)
made by any Lender, together with all accrued and unpaid interest thereon and
any other amount due hereunder to such Lender, on the Termination Date as in
effect for such Lender. The Company shall repay the Term Loan together with
all accrued and unpaid interest thereon on the Term Loan Maturity Date.
Amounts paid in respect of the Term Loan may not be reborrowed.
(b) On the later of each date when any reduction in the
Lenders' Commitment is made by the Company pursuant to Section 2.10(a) or the
last day of the current Interest Periods for the Advances to be repaid, the
Company shall repay the
19
<PAGE> 20
Advances in an amount equal to the excess, if any, of (x) the aggregate
principal amount of the Advances outstanding on such date over (y) the Total
Commitments as reduced on such date pursuant to Section 2.10(a).
(c) On the date when any Lender's Commitment is terminated
pursuant to Section 2.10, the Company shall repay the amount of all Advances
owing to such Lender.
SECTION 2.08. Increased Costs.
________________
If, due to (i) the introduction of or any change (other than any change
by way of imposition or increase of reserve requirements referred to in
Section 2.05) in or in the interpretation of any law or regulation,
(ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) or
(iii) the imposition, modification or application of any capital adequacy
or similar requirement (A) against assets (funded or contingent) of, or
credit or commitments to extend credit extended by, any Lender or (B) otherwise
applicable to the obligations of any Lender under this Agreement, there shall
be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Advances (or, in the case of any capital adequacy or
similar requirement, having the effect of reducing the rate of return on
such Lender's capital or increasing the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender, taking into consideration such Lender's policies with
respect to capital adequacy), which such Lender is not otherwise compensated
for by other provisions of this Agreement, then the Company shall from time to
time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for account of such
Lender additional amounts sufficient to indemnify such Lender against such
increased cost (or reduced rate of return or increased amount of capital, to
the extent such Lender reasonably determines such reduction or increase to be
allocable to the maintenance of this Agreement). A certificate as to the
amount of such increased cost (providing an explanation thereof and the
calculation thereof, all in reasonable detail, and using reasonable averaging
and attribution methods), submitted to the Company (with a copy to the
Administrative Agent) by such Lender shall, absent manifest error, be
conclusive and binding for all purposes.
SECTION 2.09. Facility Fee.
_____________
The Company agrees to pay to the Administrative Agent for the account of
each Lender a facility fee on the daily amount of such Lender's Commitment
(determined without regard to the amount of Advances outstanding thereunder
and after giving effect to any reduction thereof pursuant to Section 2.10)
(and, if the Term Loan shall have been made, such Lender's portion of the
Term Loan) from the Effective Date (in the case of each Lender party hereto
as of the Effective Date) or from the effective date specified in the
applicable
20
<PAGE> 21
Assignment and Acceptance (in the case of any Lender becoming a Lender
after the Effective Date), until the Termination Date, as in effect for such
Lender (or the Term Loan Maturity Date, if the Term Loan shall have been
made), payable in arrears on the last day of each March, June, September and
December during the term of such Lender's Commitment (and the term of such
Lender's participation in the Term Loan if the Term Loan shall have been
made), commencing June 30, 1994, and on any suchTermination Date (and the Term
Loan Maturity Date), at the rate of: with respect to each day that (i) Level 1
is applicable, 0.125% per annum, (ii) Level 2 is applicable, 0.175% per annum,
(iii) Level 3 is applicable, 0.225% per annum, (iv) Level 4 is applicable,
0.30% per annum, or (v) Level 5 is applicable, 0.40% per annum. If any change
in the rating by D&P, S&P or Moody's shall result in a change in the Level, the
change in the facility fee shall be effective on the earlier of the date on
which such rating change is publicly announced or on the date written
confirmation of such rating is sent to the Company by D&P, Moody's or S&P.
SECTION 2.10. Reduction of the Commitments.
_____________________________
(a) The Company may, upon at least five Business Days' notice
to the Administrative Agent, terminate in whole or reduce ratably in part the
respective unused Commitments of the Lenders; provided that each partial
reduction shall be in an aggregate amount of not less than $5,000,000 or, if
greater, in an aggregate amount which is an integral multiple of $1,000,000.
(b) At any time, if no event has occurred and is
continuing which constitutes an Event of Default or which would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both, the Company may, with the consent of the Administrative Agent (which
consent shall not be unreasonably withheld), terminate the Commitment of any
one of the Lenders (each an "Old Lender") upon at least five Business Days'
notice to the Administrative Agent and the Old Lender, and, effective upon the
date of termination of the entire Commitment of, and repayment of all amounts
hereunder owing to, the Old Lender, may replace that Lender with a New Lender
pursuant to the provisions of Section 8.02; provided however, that, as to
outstanding Eurodollar Advances, a Commitment may be terminated only at the end
of an Interest Period such that the Commitment of an Old Lender may be
terminated in stages, a portion terminating as specified by the Company in its
notice and the remainder, equal to the outstanding Eurodollar Advances,
terminating at the end of the relevant Interest Period or Interest Periods;
provided, further, that, the Company may terminate the Commitment of a Lender
under this Section 2.10(b) only if the Company shall also terminate such
Lender's Commitment under and as defined in the Long Term Facility Credit
Agreement.
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SECTION 2.11. Payments and Computations.
__________________________
(a) The Company shall make each payment hereunder not
later than 12:00 Noon (New York City time) on the day when due in United States
dollars to the Administrative Agent in same day funds at the Administrative
Agent's address provided for in Section 8.03. The Administrative Agent will
promptly thereafter make appropriate distribution of like funds to the Lenders
for the account of their respective Applicable Lending Offices.
(b) The Company hereby authorizes each Lender, if and to
the extent payment owed to such Lender is not made when due hereunder, to
charge from time to time against any or all of the Company's accounts with such
Lender any amount so due.
(c) All computations of interest in respect of Eurodollar
Advances and interest pursuant to Section 2.05 shall be made on the basis of a
year of 360 days, and all computations of facility fees and of interest in
respect of Base Rate Advances shall be made on the basis of a year of 365 or
366 days, as the case may be, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or facility fees are payable. Each determination by
the Administrative Agent (or, in the case of Section 2.05, by a Lender) of an
interest rate hereunder shall, absent manifest error, be conclusive and binding
for all purposes.
(d) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, if such extension would cause a payment in respect
of Eurodollar Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received
notice from the Company prior to the date on which any payment is due to the
Lenders hereunder that the Company will not make such payment in full, the
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Company shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the rate per annum equal
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<PAGE> 23
to the rate customarily used by member banks of the Federal Reserve System to
settle net balances due each other.
SECTION 2.12. Compensation.
_____________
The Company shall compensate each Lender, upon written request
by that Lender (which request shall be submitted to the Company (with a copy to
the Administrative Agent) and shall set forth in reasonable detail the
calculation of such amounts requested, which shall be based upon a method of
determination selected in good faith) for all losses, reasonable expenses and
liabilities (including, without limitation, any interest paid by that Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances and
any loss sustained by that Lender in connection with re-employment of such
funds), which that Lender may sustain: (i) if for any reason (including
without limitation the circumstances set forth in Section 2.02(c) but other
than a default by that Lender) a borrowing of any Eurodollar Advance does not
occur on a date specified therefor in a Notice of Borrowing, (ii) if any
repayment of any of its Eurodollar Advances occurs on a date which is not the
last day of any Interest Period, or (iii) as a consequence of any other default
by the Company to repay its Eurodollar Advances when required by the terms of
this Agreement; it being agreed and understood that each Lender shall use its
reasonable efforts to mitigate any such loss or expense.
SECTION 2.13. Taxes.
______
(a) Any and all payments by the Company hereunder shall be
made, in accordance with Section 2.11, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding (1) in the
case of each Lender and the Administrative Agent, taxes imposed on its net
income, and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof, (2) in the case of each Lender,
taxes imposed on its net income and franchise taxes imposed on it by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof and (3) in the case of each Lender and the Administrative
Agent, any taxes imposed by the United States by means of withholding at the
source if and to the extent that such taxes shall be in effect and shall be
applicable, on the date hereof, to payments to be made to the Administrative
Agent or such Lender's Applicable Lending Office (all taxes, levies, imposts,
deductions, charges, withholdings and liabilities, other than those excluded
pursuant to the preceding clauses (1), (2) and (3), being hereinafter referred
to as "Taxes"). If the Company shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (i) the sum payable shall be
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<PAGE> 24
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.13) such Lender or the Administrative Agent (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 taxing authority
or other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) paid by such Lender or the
Administrative Agent (as the case may be) or any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
Each Lender agrees to provide reasonably prompt notice to the Administrative
Agent and the Company of any imposition of Taxes or Other Taxes against such
Lender; provided that failure to give such notice shall not affect such
Lender's right to indemnification hereunder. Each Lender agrees it will
promptly upon request by the Company furnish to the Company such evidence as is
reasonably available to such Lender as to the payment of the relevant Taxes or
Other Taxes, and that it will, if requested by the Company, cooperate to the
extent reasonable under the circumstances with the Company in its efforts to
obtain a refund or similar release in respect of such payment.
(d) Within 30 days after the date of any payment of Taxes,
the Company will furnish to the Administrative Agent upon request of any Lender
transmitted through the Administrative Agent, at its address referred to in
Section 8.03, the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment hereunder, the
Company will furnish to the Administrative Agent upon request of any Lender
transmitted through the Administrative Agent, at such address, a certificate
from each appropriate taxing authority, or an opinion of counsel acceptable to
the Administrative Agent, in either case stating that such payment is exempt
from or not subject to Taxes.
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<PAGE> 25
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement (in the case of each Lender party hereto on the
Effective Date) and on the effective date specified in the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Company
(but only so long as such Lender remains lawfully able to do so), shall provide
the Company with Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on payments
of interest or certifying that the income receivable pursuant to this Agreement
is effectively connected with the conduct of a trade or business in the United
States.
(f) Without prejudice to the survival of any other
agreement of the Company hereunder, the agreements and obligations of the
Company contained in this Section 2.13 shall survive the payment in full of
principal and interest hereunder.
SECTION 2.14. Sharing of Payments, Etc.
_________________________
If any Lender shall obtain any payment (whether voluntarily, involuntarily,
through the exercise of any right of set-off, or otherwise) on account of the
Advances made by it (other than pursuant to Section 2.05, 2.08, 2.10(b), 2.12
or 2.13) in excess of its ratable share of payments on account of the Advances
of the same type obtained by all the Lenders in the same category, such Lender
shall forthwith purchase from such other Lenders such participations in the
Advances made by them as shall be necessary to cause such purchasing Lender
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 Lender, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest. The Company
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company in the amount of such participation.
SECTION 2.15. Extension of Termination Date.
______________________________
(a) The Company may, no earlier than 50 days and not later than 30 days
prior to the then effective Termination Date (as it may be extended from time
to time pursuant hereto), and in any event not earlier than the Company's
delivery to the Lenders of the audited financial statements referred to in
Section 4.01(a)(ii) for the then most recently ended fiscal year, request in
writing that the Termination Date be extended for an additional 364 days.
After
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<PAGE> 26
the Company's request, each Lender may, in its sole discretion, consent or not
consent to such extension by giving written notice thereof to the
Administrative Agent within 21 days after receipt of an Extension Request.
Each Lender's annual decision as to whether to extend the Termination Date
shall be based, in part, on a new credit analysis utilizing then current
information in respect of the Company's business, financial condition and
operations and other information furnished by the Company. Failure of any
Lender to respond on or before such 21 day period shall be deemed to be a
refusal of such request by such Lender. The Administrative Agent shall
promptly notify each Lender and the Company of any Lender's decision to reject
the proposed extension.
(b) If, in accordance with the provisions of this Section
2.15, a Lender consents to the extension to the Termination Date and the
Administrative Agent does not receive a Notice of Borrowing of the Term Loan
pursuant to paragraph (b) of Section 2.16, the Termination Date for such Lender
shall be extended for 364 days from the then current Termination Date, without
any further action by the Company or such Lender.
(c) If any Lender does not consent to a request for an
extension of the Termination Date, or is deemed not to have consented to the
requested extension, and the Termination Date has been extended for the other
Lender(s): (i) the Company may, prior to the end of the nonextended Termination
Date, terminate such Lender's Commitment under this Agreement upon payment in
full of principal and interest on all Advances made by such Lender together
with such other sums, if any, that may be due by reason of such prepayment and
any fees owing to such Lender; (ii) if the Company has not previously
terminated such Lender's Commitment under this Agreement and has not previously
paid principal and interest on the Advances held by such Lender, then such
principal and interest shall be due and payable on the nonextended Termination
Date; and (iii) the Termination Date shall not be extended in so far as such
nonconsenting Lender is concerned.
(d) If any Lender does not consent to a request for an
extension of the Termination Date with respect to its Commitment under this
Agreement, or if any Lender is deemed not to have consented to the requested
extension, and the Administrative Agent receives a Notice of Borrowing of the
Term Loan pursuant to Section 2.16 not later than 11:00 a.m. New York City time
three Business Days prior to the nonextended Termination Date, the Termination
Date for all Lenders shall not be extended and the Term Loan shall be made, in
accordance with the provisions of this Agreement.
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SECTION 2.16. Term Loan.
__________
(a) Each Lender severally agrees on the terms and conditions
set forth in this Agreement to make Advances to the Company (upon request
of the Company pursuant to this Agreement) on the Termination Date in
an amount up to the sum of (i) the outstanding principal amount of the Advances
made by such Lender and outstanding as of the opening of business on the
Termination Date plus (ii) the amount available to be borrowed from such Lender
as of the opening of business on the Termination Date. The aggregate of such
Advances is collectively called the "Term Loan".
(b) The Term Loan shall be made upon the irrevocable
written notice (including notice via facsimile confirmed immediately by a
telephone call) of the Company in the form of a Notice of Borrowing (which
notice must be received by the Administrative Agent not later than 11:00 a.m.
New York City time not less than three Business Days prior to the Termination
Date), specifying: (A) the amount of the Term Loan which shall be in a
principal amount not more than the sum of (i) the aggregate principal amount of
the Advances which will be outstanding as of the opening of business on the
Termination Date, plus (ii) the amount available to be borrowed from the
Lenders as of the opening of business on the Termination Date; (B) whether the
Term Loan is to be comprised of Base Rate Advances or Eurodollar Advances, and
the amounts of such Advances; and (C) the Interest Period applicable to the
Advances included in such notice; provided, that, the Term Loan shall be made
only if the Company, in accordance with Section 2.15, shall have requested that
the then current Termination Date be extended.
(c) The proceeds of the Term Loan, to the extent required,
will be used to pay the principal amount of the Advances outstanding as of the
opening of business on the Termination Date.
SECTION 2.17. Evidence of Debt.
_________________
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Company to such Lender resulting from each Advance owing to such Lender from
time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(b) The Register maintained by the Administrative Agent pursuant
to Section 8.04(d) shall include a control account, and a subsidiary account
for each Lender, in which accounts (taken together) shall be recorded
(i) the date, amount and tenor, as applicable, of each Borrowing, the Type of
Advances comprising such Borrowing and the Interest Period applicable thereto,
(ii) the terms of each Assignment and Acceptance
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<PAGE> 28
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Company to each Lender
hereunder, and (iv) the amount of any sum received by the Administrative
Agent from the Company hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be
conclusive and binding for all purposes, absent manifest error.
(d) Any Lender may at any time request that the Borrower
execute and deliver to such Lender a promissory note (a "Note"),
substantially in the form of Exhibit F annexed hereto, to evidence such
Lender's Advances hereunder. The Borrower agrees promptly upon its receipt of
any such request from a Lender to execute and deliver a Note to such Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Company.
_______________________________________________
The Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Delaware, and each of the Subsidiaries is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation. The Company and each of the
Subsidiaries have the corporate power, authority and legal right to
own and operate the assets and properties and conduct the business
now, and proposed to be, owned, operated and conducted by it.
All necessary consents, licenses, permits, approvals or
authorizations of, exemptions by, notices and reports to,
registrations, filings and declarations with, and any other act by
or in respect of, any Person requisite for such ownership,
operation and conduct have been obtained or performed except such
of the foregoing the failure to obtain or perform which would not, in
the aggregate, have a material adverse effect on the business,
operations, assets or financial or other condition of the Company and
the Subsidiaries taken as a whole. The Company and each of the
Subsidiaries are duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership
or leasing of property or conduct of business requires such
qualification and where the failure to be so qualified or in good
standing would, in the aggregate, have a material adverse effect on
the business, operations, assets or financial or other condition of
the Company and the Subsidiaries taken as a whole.
(b) The Company has full corporate power, corporate
authority and legal right to execute and deliver this
28
<PAGE> 29
Agreement, to borrow hereunder and to perform and observe the terms
and provisions hereof.
(c) The execution and delivery and performance by the
Company of this Agreement have been duly authorized by all
necessary corporate action, require no governmental registrations
or filings or approvals and do not violate or contravene any
law or any order of any court or governmental agency or any
indenture, agreement or other instrument to which the Company is a
party or by which it or any of its properties may be bound.
(d) This Agreement is a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency and reorganization laws and other
similar laws governing the enforcement of lessors' or creditors'
rights and by the effects of specific performance, injunctive relief
and other equitable remedies.
(e) There is no action, suit or proceeding at law or
in equity or by or before any court, governmental agency or
arbitrator now pending or to the knowledge of the Company
threatened against or affecting the Company or the Subsidiaries
or its or their properties which might reasonably be expected to
materially adversely affect the financial condition or operations
of the Company and its consolidated subsidiaries, taken as a whole,
or purports to affect the legality, validity or enforceability of
this Agreement or the Company's ability to repay any Advances
hereunder.
(f) The consolidated balance sheets of the Company and
its consolidated subsidiaries as at December 31, 1992 and December
31, 1993, and the related consolidated statements of earnings and
surplus for the years then ended, certified by Deloitte & Touche,
independent public accountants, copies of which have been furnished
to each Lender, are complete and correct in all material respects and
fairly set forth the consolidated financial condition of the
Company and its consolidated subsidiaries as at such dates and the
consolidated results of operations of the Company and its
consolidated subsidiaries for the periods ended on such dates, all in
accordance with GAAP applied on a consistent basis, and since
December 31, 1993, there has been no material adverse change in
such condition or operations which has not been disclosed in writing
to the Lenders prior to the date of this Agreement.
(g) No proceeds of any Advance will be used to acquire
any security of a class which is registered pursuant to Section 12 of
the Securities Exchange Act of 1934.
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(h) The Company is not engaged principally, or as one
of its important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be
used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock, or
in any manner which might cause such Advance or the application of
such proceeds to violate (or require any regulatory filing under)
Regulation G, Regulation U or Regulation X of the Board of Governors
of the Federal Reserve System, in each case as in effect on the date
or dates of such Advance and such use of proceeds.
(i) The Company and its ERISA Affiliates are in substantial
compliance with ERISA, none of the Company or any of its ERISA
Affiliates has incurred any material funding deficiency within
the meaning of ERISA and none of the Company or any of its ERISA
Affiliates has incurred any material liability to the PBGC in
connection with any employee benefit plan (or other class of
benefit plan which the PBGC has elected to insure) established or
maintained by the Company or any of its ERISA Affiliates. To the
knowledge of the Company, after due inquiry made at the time of
the spin off referred to below, The Dial Corp, an Arizona
corporation ("Dial"), was at the time of its distribution of
100% of the Capital Stock of the Company and the Subsidiaries to the
shareholders of Dial (the "spin off"), in substantial compliance
with ERISA, and the Company had no material liability to the
PBGC in connection with any employee benefit plan (or other class
of benefit plan which the PBGC has elected to insure) established
or maintained by Dial or any of its ERISA Affiliates at such
time.
(j) Neither the Company nor any Subsidiary is an
"investment company" or a company controlled by an "investment
company" within the meaning of the Investment Company Act of 1940,
as amended.
(k) Except for limited recourse indebtedness and Secured
Indebtedness permitted hereunder (and, during the period from
the date of this Agreement to the later of (i) the date occurring
45 days after the Effective Date and (ii) June 30, 1994, except
for indebtedness incurred in connection with the acquisition
of TriCon), the obligations of the Company under this Agreement to pay
the principal of and interest on the Advances and any and all other
amounts due hereunder rank and will rank, as to payment and
security, at least pari passu with the highest ranking indebtedness
of the Company for borrowed money or under guarantees or in
respect of any indenture, contract, agreement or other instrument to
which the Company is a
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party or by which it is bound evidencing or securing any obligation of
the Company for borrowed money whether now existing or incurred hereafter.
(l) Neither the Company nor any Subsidiary has any liabilities
or incurs any costs with respect to compliance with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently
expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition
to any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of
any facility or reduction in the level of or change in the nature of
operations conducted thereat and any actual or potential liabilities
to third parties, including employees, and any related costs and
expenses) which will have, and the Company otherwise believes that
Environmental Laws are unlikely to have, a material adverse effect on
the business, financial condition, results of operations or
prospects of the Company and the Subsidiaries, taken as a whole.
ARTICLE IV
COVENANTS
SECTION 4.01. Affirmative Covenants.
______________________
During the period of this Agreement and so long as any Commitment or Advance
is outstanding the Company will, unless the Majority Lenders shall otherwise
consent in writing:
(a) Furnish to each Lender (i) within 45 days after the
close of each of the first three quarters of the Company's fiscal
year, a consolidated balance sheet, surplus statement and income
statement of the Company and its consolidated subsidiaries, as of
the end of such quarter, certified by an authorized officer of the
Company, together with (A) a statement of such authorized officer of
compliance with the provisions of Section 4.02 hereof (which shall
be substantially in the form of Exhibit B hereto and which shall be
completed in accordance with GAAP (except as otherwise expressly
specified herein) applied on a consistent basis) and (B) a statement
of such authorized officer that as of the end of such period no Event
of Default, or event which would constitute an Event of Default but
for the requirement that notice be given or time elapse or both,
exists (or, if the same exists, a description thereof), (ii) within
90 days after the close of the Company's fiscal year, a copy of the
annual audit report of the Company and its consolidated
subsidiaries, certified by independent public accountants of
recognized standing acceptable to the Administrative Agent, and a
statement of
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such accountants of compliance with the provisions of Section
4.02 hereof (completed as specified in clause (A) above)
together with audited financial statements consisting of a
consolidated balance sheet of the Company and its consolidated
subsidiaries, as of the end of such fiscal year, and consolidated
statements of income, cash flows and shareholders' equity of the
Company and its consolidated subsidiaries, for such fiscal year,
and (iii) such other information respecting the financial condition
and operations of the Company and its consolidated subsidiaries as
any Lender may from time to time reasonably request.
(b) Furnish to each Lender (i) promptly upon becoming
aware of the occurrence of any (A) Termination Event, or (B)
"prohibited transaction," as such term is defined in Section 4975 of
the Code, or Section 406 of ERISA, in connection with any Plan or any
trust created thereunder, a written notice specifying the nature
thereof, what action the Company has taken, is taking or proposes
to take with respect thereto, and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of
Labor, or the PBGC with respect thereto and (ii) with
reasonable promptness, copies of (A) all notices received by the
Company or any of its ERISA Affiliates of the PBGC's intent to
terminate any Plan or to have a trustee appointed to administer any
Plan; (B) each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by the Company or GFC Financial
with the Internal Revenue Service with respect to each Plan; and
(C) all notices received by the Company or any of its ERISA
Affiliates from a multiemployer plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to Section 4202
of ERISA.
(c) Use all proceeds of Advances for general corporate purposes,
including, without limitation, the repayment of maturing Commercial Paper.
(d) Duly pay and discharge or cause to be paid and discharged, and
cause the Subsidiaries to duly pay and discharge or cause to be paid
and discharged, all taxes, assessments and governmental charges or levies
imposed upon it or the Subsidiaries or against its properties or the
properties of the Subsidiaries prior to the date on which penalties become
due and payable, unless and to the extent only that the same shall be
contested in good faith and by appropriate proceedings by the
Company, the Subsidiaries or any other Person liable with respect
thereto, and the Company shall set aside, and cause the
Subsidiaries to set aside, on its books or the books of the
Subsidiaries, adequate reserves with respect to any such tax,
assessment, charge or levy so contested.
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(e) Immediately notify the Administrative Agent of
(i) any litigation or other proceedings commenced or threatened
affecting the Company or any of the Subsidiaries that, in the
opinion of the Company's counsel materially adversely affects the
Company and the Subsidiaries, taken as a whole, or (ii) the
occurrence of any Event of Default, or event which would constitute
an Event of Default but for the requirement that notice be given or
time elapse or both.
(f) Immediately notify the Administrative Agent of any
change in the ratings of the Company's Long-term Debt by S&P,
Moody's or D&P.
(g) Promptly upon any account receivable, in an outstanding
principal amount exceeding $20,000,000, becoming more than 90 days
past due, provide to the Administrative Agent, for distribution
to the Lenders, a written statement detailing the status of the
account, the most recent valuation of any collateral security
therefor and any factors the Company believes are reasonably
likely to mitigate or contribute to credit losses from such
account.
(h) Perform and comply, and cause the Subsidiaries to
perform and comply, with all material obligations of the Company
and the Subsidiaries under all laws applicable to the Company or the
Subsidiaries and all indentures, agreements or other instruments to
which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries or any of its or their
properties is bound.
(i) Maintain, and cause each Subsidiary to maintain,
insurance with responsible and reputable insurance companies or
associations in such amount and covering such risks as is usually
carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company or
such Subsidiary operates, and/or require each lessee of equipment
to maintain insurance for the benefit of the Company or any
Subsidiary which is the lessor of such equipment, with responsible
and reputable insurance companies or associations in an amount not
less than the book value of such equipment to the lessor;
provided, however, the Company or any such lessee may itself
insure or retain risks if and to the extent such risks can be,
under common industry practice, self-insured.
(j) Preserve and maintain, and cause each of the
Subsidiaries to preserve and maintain, its corporate existence,
rights (charter and statutory) and franchises; and maintain and
preserve, all of its properties which are used or useful in the
conduct of its business in good working order and condition, ordinary
wear and tear excepted; provided, however, that this subsection (j) shall
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not apply in any case when, in the good faith business judgment
of the Company, such preservation or maintenance is either not
necessary or not appropriate for the prudent management of the
business of the Company.
(k) Permit any authorized representative designated by
the Administrative Agent or any Lender at the expense of the
Administrative Agent or such Lender, to visit and inspect any of
the properties of the Company or any of the Subsidiaries,
including its and their financial and accounting records, and to
take extracts therefrom, and to discuss its and their affairs,
finances and accounts with its and their officers and independent
public accountants, all as reasonably deemed necessary or appropriate
by the Administrative Agent or such Lender, during normal business
hours, upon reasonable notice and as often as may be reasonably
requested.
(l) Comply, and cause each of the Subsidiaries to
comply, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, complying with all
Environmental Laws and employee benefit laws, except where failure
to so comply would not have a material adverse effect on the
business, condition (financial or otherwise), operations or
properties of the Company and the Subsidiaries, taken as a whole.
(m) Cause TriCon to merge into the Company on or
before the later of (i) the date occurring 45 days after the
Effective Date and (ii) June 30, 1994.
SECTION 4.02. Negative Covenants.
___________________
During the period of this Agreement and so long as any Commitment or
Advance is outstanding, the Company will not, without the prior written
consent of the Majority Lenders:
(a) Permit the ratio of total outstanding Indebtedness of
the Company and its consolidated subsidiaries to Stockholders'
Equity to be greater than (i) 6.50 to 1.00 at any time on or after
the Effective Date through June 29, 1995, (ii) 6.75 to 1.00 at any
time on or after June 30, 1995 through March 30, 1996 and (iii)
7.00 to 1.00 at any time on or after March 31, 1996; provided
that, notwithstanding anything to the contrary above, (x) at any
time that Long-term Debt is rated such that Level 4 or Level 5 would
apply to the determination of the applicable Margin hereunder, then
the permitted maximum ratio shall be the then current permitted
maximum ratio at all times thereafter and (y) at any time that
Long-term Debt is rated such that Level 1 or Level 2 would apply
to the determination of the applicable Margin hereunder, then the
permitted ratio shall be 7.00 to 1.00 at all times thereafter;
provided further, that, if the circumstances set
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forth in clause (x) and clause (y) occur, the operative and controlling
clause shall be the clause which first became operative and controlling.
(b) Create, incur, assume or suffer to exist any Secured
Indebtedness of the Company or any Subsidiary, except (i)
Indebtedness secured by assignments of leases where the recourse of
the payee of such Indebtedness is expressly limited to the lessor's
interest in such leases, the rents and other amounts due thereunder
and/or the equipment or property leased thereunder or proceeds
therefrom, (ii) Secured Indebtedness incurred in transactions in
which the Company is the lessee and sublessor of the equipment or
property securing such Secured Indebtedness where the recourse of
the payee of such Secured Indebtedness is expressly limited to the
lessor's interest in leases, the rents and other amounts due
thereunder and/or the equipment or property leased thereunder;
provided that the amounts due under the sublease of the equipment
or property are not less than the amounts due under the lease for
such equipment or property, and (iii) other Secured Indebtedness in an
amount not to exceed an aggregate of $15,000,000 at any one time
outstanding which may be secured by assets or property having any
aggregate fair market value, as reasonably determined by the
Company, not exceeding $30,000,000.
(c) Permit the ratio of (A) the sum of Consolidated
Net Income (but exclusive of extraordinary, unusual or
non-recurring gains or losses not incurred in the ordinary course
of business of the Company and the Subsidiaries) plus income taxes
plus interest expense of the Company and the Subsidiaries to (B)
interest expense of the Company and the Subsidiaries, in each case
for the twelve-month period ending on the last day of any fiscal
quarter of the Company to be less than 1.25:1.00.
(d) Permit the greatest Exposure of the Company and
the Subsidiaries to exceed 15% of Stockholders' Equity; provided
that the Company shall not be liable for violations of this covenant
if such violation occurs as a result of the merger or consolidation
of one or more non-affiliated Persons so long as the Company does
not take any action thereafter to increase its Exposure to such
Person other than within the context of a workout or insolvency
where the Company believes such increase is necessary to protect its
financial interests or within the context of an extension of the
scheduled maturity of an existing credit.
(e) Permit the aggregate unpaid principal amount of
Commercial Paper or other short-term Indebtedness supported by
committed lines of credit of the Company and the Subsidiaries (or of
any one or more of them) to exceed at
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any time the sum of the unused portion of (i) the Total Commitments and
(ii) the Total Commitments under (and as defined in) the Long Term
Facility Credit Agreement and (iii) other commitments and committed
lines of credit containing provisions for the renewal and repayment,
over a period of at least 364 days, of the Indebtedness thereunder from
commercial banks and other financial institutions, which banks and
financial institutions shall be reasonably acceptable to the
Administrative Agent.
(f) Merge or consolidate, nor will it permit or
suffer any Subsidiary to merge or consolidate with or into any
Person and will not, nor permit any Subsidiary to, sell, lease or
otherwise dispose of all, or in excess of 10% of, the
consolidated gross assets (determined in accordance with GAAP but
excluding intangibles) of the Company and the Subsidiaries to any
Person in a single transaction or series of related transactions;
provided, however, that (i) any Subsidiary may merge into, or sell,
lease or otherwise dispose of all, or any part, of its assets to any
other Subsidiary or the Company if such merger or such sale, lease or
other disposition does not result in a default by the survivor or
transferee under any agreement (including this Agreement) to which
any party to such merger or such sale, lease or other disposition
is then a party, (ii) the Company may sell all or part of its
properties to, or merge or consolidate with, another corporation
if: (A) the corporation (herein called the "Surviving Corporation")
to which such sale is made, or which results from such merger or
consolidation, is organized under the laws of the United States of
America or a jurisdiction thereof; (B) the due and punctual
performance and observance of all the provisions of this Agreement
to be performed or observed by the Company are expressly assumed
in a writing by the Surviving Corporation satisfactory to the
Administrative Agent; (C) the beneficial interest in and control of
100% of the issued and outstanding Capital Stock of the Company (if it
is the Surviving Corporation) or 100% of the issued and outstanding
Capital Stock of the Surviving Corporation shall, immediately
after such merger, consolidation, sale or other disposition, be
owned by GFC Financial, free and clear of all liens, security
interests, charges or other encumbrances; (D) the Surviving
Corporation shall be engaged in the finance business; (E)
immediately after the consummation of the transaction, and after
giving effect thereto, no default by the Surviving Corporation
exists under any agreement (including this Agreement) by which it is
then bound; and (F) immediately after the consummation of the
transaction, and after giving effect thereto, the Surviving
Corporation shall have a Tangible Net Worth equal to or exceeding
95% of the Tangible Net Worth of the Company immediately preceding
the consummation of the transaction; (iii) the Company or any
Subsidiary may sell or discount
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receivables for fair value in arms length transactions; and (iv) the
Company may sell, transfer or otherwise dispose of Greyhound European
Financial Group or the assets thereof.
(g) Declare or pay any dividends, purchase, redeem,
retire or otherwise acquire for value any of its Capital Stock now
or hereafter outstanding, return any capital to its stockholders as
such, or make any distribution of assets to its stockholders as
such, or permit any Subsidiary to do any of the foregoing, except
that with respect to its Capital Stock: (i) the Subsidiaries may
declare and make payment of cash and stock dividends, return capital
and make distributions of assets to other Subsidiaries or to the
Company and (ii) the Company may (A) declare and deliver stock
dividends, and (B) declare and pay any cash dividends on its
Capital Stock to its stockholders and purchase, redeem, retire or
otherwise acquire shares of its own outstanding Capital Stock if,
after giving effect thereto, the aggregate payments for all such
purposes subsequent to December 31, 1991 would not exceed 50% of
Consolidated Net Income subsequent to December 31, 1991.
(h) Permit Stockholders' Equity to be less than the
sum of (i) the greater of (x) Stockholders' Equity on the
Effective Date less $100,000,000 and (y) $600,000,000, plus (ii) 50%
of cumulative consolidated net income for all fiscal quarters ending
after the TriCon Acquisition Date (determined without making any
reduction in the amount thereof by reason of any net loss arising in
any fiscal quarter) plus (iii) 50% of the net proceeds received by
the Company or any Subsidiary after the Effective Date through the
sale of any equity of the Company (other than stock sold to
employees of the Company or any Subsidiary upon such employees'
exercise of employee or executive stock options).
(i) Create, assume, incur or suffer to be created,
assumed or incurred or to exist, or permit any Subsidiary to create,
assume, incur or suffer to be created, assumed or incurred or to
exist, any Lien upon any of the properties of any character of the
Company or any Subsidiary without making effective provision whereby
all Advances shall be secured equally and ratably with (or prior
to) any other obligation or indebtedness so secured, so long as
any such other obligation or indebtedness remains secured; except,
however, that, notwithstanding the foregoing, the Company or any
Subsidiary, without so securing the Advances, may
(i) lease property to others in the ordinary
course of the business of the Company or any Subsidiary or
lease or sublease any property if the property subject
thereto is not needed by the Company or any Subsidiary in the
operation of its business;
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(ii) create, incur or assume Liens or permit
Liens to be created, assumed, incurred or to exist if
the Liens are created, incurred and assumed in connection
with Secured Indebtedness permitted under Section 4.02(b);
(iii) make any deposit with or give any form of
security to any governmental agency or other body created
or approved by law or governmental regulation to enable
the Company or such Subsidiary to maintain self-insurance,
or to participate in any fund in connection with workmen's
compensation, unemployment insurance, old-age pensions, or
other social security, or to share in any privileges or
other benefits available to corporations participating in any
such arrangement, or for any other purpose at any time
required by law or regulation promulgated by any
governmental agency or office as a condition to the
transaction of any business or the exercise of any privilege
or license, or deposit assets of the Company or such
Subsidiary with any surety company or clerk of any court,
or in escrow, as collateral in connection with, or in lieu
of, any bond on appeal by the Company or such Subsidiary
from any judgment or decree against it, or in connection with
any other proceedings in actions at law or suits in
equity by or against the Company or such Subsidiary;
(iv) incur or suffer to be incurred or to
exist upon any of its property or assets (a) Liens for
taxes, assessments or other governmental charges or levies
which are not yet due or are payable without penalty or of
which the amount, applicability or validity is being
contested by the Company or such Subsidiary in good
faith by appropriate proceedings and the Company or such
Subsidiary shall have set aside on its books reserves which
it deems to be adequate with respect thereto (segregated to
the extent required by GAAP), provided that foreclosure,
distraint, sale or similar proceedings have not been
commenced, (b) the Liens of any judgment, if such
judgment shall not have remained undischarged, or unstayed
on appeal or otherwise, for more than six months, (c)
undetermined Liens or charges incident to construction,
(d) materialmen's, mechanics', workmen's, repairmen's or
other like Liens arising in the ordinary course of business
in respect of obligations which are not overdue or which
are being contested by the Company or such Subsidiary in
good faith by appropriate proceedings, or deposits to obtain
the release of such Liens, or (e) any encumbrances
consisting of zoning restrictions, licenses, easements and
restrictions on the use of real property and minor defects
and irregularities in the title thereto, which do not
materially impair the use of such property by
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the Company or such Subsidiary in the operation of its business or
the value of such property for the purpose of such business;
(v) create other Liens incidental to the
conduct of its business or the ownership of its
property and assets which were not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate
materially detract from the value of its property or assets
or materially impair the use thereof in the operation of its
business;
(vi) create or suffer to be created or to exist
in favor of any lender of moneys or holder of commercial
paper of the Company or a Subsidiary in the ordinary
course of business a banker's lien or right of offset in the
holder of such indebtedness or moneys of the Company or a
Subsidiary deposited with such lender or holder in the
ordinary course of business; and
(vii) create or suffer to be created or to
exist with respect to any of its property leasehold or
purchase rights, exercisable for a fair consideration, in
favor of any Person which arise in transactions entered into
in the ordinary course of business.
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. Conditions Precedent to Effectiveness.
______________________________________
The effectiveness of this Agreement is subject to the prior or concurrent
satisfaction of the following conditions and the Administrative Agent shall
have received for the account of each Lender the following, each, unless
otherwise noted, dated the Effective Date, and in form and substance
satisfactory to the Administrative Agent and Agents:
(a) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement and of all
other documents evidencing necessary corporate or governmental
action with respect to this Agreement, together with a signed copy of
a certificate of the Secretary or an Assistant Secretary of the
Company, certifying the name(s) of the officer(s) of the Company
authorized to sign on behalf thereof this Agreement, together with
the true signature(s) of such officer(s) and, with respect to the
Company, the name(s) and/or title(s) of the officer(s) authorized to
make requests for Advances pursuant to Section 2.02 hereof. Each
Lender may conclusively rely on such certificate of the Company
until it shall receive a further certificate of a Secretary or
Assistant Secretary of the Company cancelling or amending the prior
certificate and
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submitting the true signatures of the officers named in such further
certificate.
(b) A signed copy of a favorable opinion of W. J. Hallinan,
Vice President-General Counsel and Secretary of of the Company,
substantially in the form of Exhibit D hereto and as to such other
matters as any Lender through the Administrative Agent may reasonably
request, which opinion the Company hereby authorizes and instructs such
counsel to prepare and deliver.
(c) A signed copy of an opinion of O'Melveny & Myers, counsel
for Citibank, to the effect that while they have not independently
considered the matters covered by the opinion furnished pursuant to
paragraph (b) of this Section 5.01 to the extent necessary to enable
them to express the conclusions stated therein, (i) such opinion, this
Agreement and the other documents furnished pursuant to the preceding
provisions of this Section 5.01 and pursuant to Section 5.02 appear
to be in substantially acceptable legal form, and (ii) such opinion and
other documents are substantially responsive to the requirements of this
Agreement.
(d) The representations and warranties contained in
Section 3.01 hereof shall be true and accurate on and as of the day
hereof, and no event shall have occurred and be continuing which
constitutes an Event of Default hereunder or which would constitute
such an Event of Default but for the requirement that notice be
given or time elapse or both, and the Company shall deliver a
certificate of the President, any Vice President or the Chief
Financial Officer of the Company to such effect.
(e) A certificate of an authorized officer of the
Company to the effect that since December 31, 1993, there has been
no material adverse change in the operations, business or financial
or other condition or properties of the Company and its Subsidiaries,
taken as a whole.
(f) The Company and the lenders thereunder shall have
executed and delivered the Long Term Facility Credit Agreement and
all conditions precedent to the effectiveness of the Long Term
Facility Credit Agreement shall have been satisfied.
(g) (i) The TriCon Acquisition Date shall have occurred,
(ii) any notes, indentures or other instruments or agreements
relating to the financing of the TriCon acquisition by Bell Atlantic
Corporation or its affiliates shall be in form and substance
satisfactory to each of the Lenders and (iii) after the TriCon
Acquisition Date, GFC Financial shall have received at least
$200,000,000 of gross proceeds from the offer and sale of its
common and/or preferred stock (of which at least $150,000,000 shall
have
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been from the offer and sale of its common stock), and GFC
Financial shall have applied the net proceeds from such
$200,000,000 gross proceeds as a contribution to the common stock
equity of the Company.
(h) Such other documents, certificates, information
and agreements as any Lender may require.
(i) Each of the Agents and the Lenders shall have
received all fees previously agreed by the Company as being payable on
the Effective Date to it.
SECTION 5.02. Conditions Precedent to Each Advance.
_____________________________________
The obligation of each Lender to make an Advance on the occasion of each
Borrowing is subject to the further conditions precedent that, on the date
of such Borrowing,
(a) the following statements shall be true, and the
Administrative Agent shall have received (or will receive with the
Notice of Borrowing as set forth in Section 2.02(a) hereof) for the
account of such Lender a certificate signed by a duly authorized
officer of the Company, dated the date of such Borrowing, stating
that:
(i) The representations and warranties
contained in Section 3.01 hereof (excluding those
contained in paragraphs (e) and (f) thereof) are true and
accurate on and as of the date of such borrowing as though
made on and as of such date;
(ii) No circumstances exist that in the
Company's reasonable opinion would materially impair the
Company's ability to repay all outstanding Advances; and
(iii) No event has occurred and is continuing or
would result from such Borrowing which constitutes an Event
of Default hereunder or which would constitute such an
Event of Default but for the requirement that notice be given
or time elapse or both; and
(b) the Administrative Agent shall have received such
other approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request.
SECTION 5.03. Conditions Precedent to Certain Borrowings.
___________________________________________
The obligation of each Lender to make that portion of an Advance on the
occasion of any Borrowing which would increase the aggregate outstanding
amount of Advances owing to such Lender over the aggregate amount of such
Advances outstanding immediately prior to the making of such Advance shall be
subject to the further conditions precedent that on the date of such
Borrowing (i) the representation and warranty contained in subsection (e) of
Section 3.01 are correct on and as of the
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date of such Advance as though made on and as of such date and (ii) the
certificate furnished pursuant to Section 5.02 shall include a statement to the
effect of clause (i) above; provided, however, that, if the Company is unable
to make the representation and warranty contained in subsection (e) of Section
3.01 on the date of an Advance by reason of there being an action, suit or
proceeding at law or in equity pending or threatened against the Company or the
Subsidiaries which purports to affect the legality, validity or enforceability
of this Agreement or the Company's ability to repay any Advances hereunder,
such representation and warranty shall be deemed to be made for purposes of
this Section 5.03 if the certificate furnished pursuant to Section 5.02 shall
be accompanied by an opinion of counsel to the Company in form and substance
reasonably satisfactory to the Administrative Agent, stating that such
litigation, in the opinion of such counsel, is of no merit insofar as it
concerns the legality, validity or enforceability of this Agreement or the
Company's ability to repay any Advances hereunder.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
__________________
If any of the following Events of Default shall occur and be continuing:
(a) The Company shall fail to pay when due (i) any
interest or principal in respect of any Advance or (ii) any fee
payable pursuant to Section 2.09; or
(b) Any representation or warranty made in connection
with the execution and delivery of this Agreement or in any
certificate or instrument furnished pursuant hereto shall prove to
have been incorrect in any material respect when made or deemed made;
or
(c) The Company shall default in the performance of
any other term, covenant or agreement contained herein, and such
default shall continue unremedied for a period of ten days after
written notice thereof shall have been given to the Company by the
Administrative Agent (which shall give such notice only with the
consent of, or if requested by, Lenders having at least 51% of the
Total Commitments); or
(d) The Company or any Subsidiary (other than Pine Top
Insurance Company, Ltd.) shall fail to pay any indebtedness for
borrowed money or any other obligation (other than hereunder)
(including any final or nonappealable and unstayed judgment or order
for the payment of money) which is outstanding in a principal amount
exceeding $15,000,000 owing by the Company or such Subsidiary (as
the case may be), or any interest or premium thereon when due (or
if permitted by the terms of the relevant document, within any
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applicable grace period), whether such indebtedness or obligation
shall become due by scheduled maturity, by required prepayment,
by acceleration, by demand or otherwise; or the Company or any
Subsidiary (other than Pine Top Insurance Company, Ltd.) shall fail
to perform any term, covenant or agreement on its part to be
performed under any agreement or instrument (other than this
Agreement) evidencing or securing or relating to any indebtedness
for borrowed money or any other obligation which is outstanding in
a principal amount exceeding $15,000,000 owing by the Company
or any Subsidiary (as the case may be) when required to be
performed (or, if permitted by the terms of the relevant document,
within any applicable grace period) or any other event shall occur,
if the effect of such failure or other event is to accelerate,
or to permit the holder or holders of such indebtedness or
obligations or the trustee or trustees under any such agreement or
instrument to accelerate, the maturity of such indebtedness; or
(e) An "Event of Default" under and as defined in
the Long Term Facility Credit Agreement shall have occurred and be
continuing.
(f) This Agreement shall, at any time after its
execution and delivery and for any reason attributable to the
Company, cease to be in full force and effect or shall be declared
to be null and void, or the validity or enforceability hereof shall
be contested by the Company, or the Company shall deny that it has
any further liability or obligation under this Agreement; or
(g) The Company shall make an assignment for the benefit
of creditors, or shall admit in writing its inability or shall be
unable to pay its debts as they become due, or shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall file any petition
or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, order for
relief or similar relief under any present or future statute, law
or regulation, or shall file any answer admitting or not contesting
the material allegations of a petition filed against the Company
in any such proceeding, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of the
Company or of all or any substantial part of the properties of the
Company, or if the Company shall take any action looking to the
dissolution or liquidation of the Company or a court having
jurisdiction in the premises shall enter a decree or order for relief
in respect of the Company in an involuntary case under federal
bankruptcy laws now or hereafter in effect or any proceeding shall be
instituted by or against the Company seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement,
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adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property, and if instituted
against the Company, remains undismissed and unstayed for a period of
60 days; or the Company shall take any corporate action to authorize
any of the actions set forth above in this subsection (g); or
(h) (i) The Company or any of its ERISA Affiliates shall
fail to make full payment when due of all amounts which,
under the provisions of any Plan or Section 412 of the Code,
the Company or any of its ERISA Affiliates is required to pay
as contributions thereto;
(ii) Any accumulated funding deficiency (as
defined in Section 412 of the Code) occurs or exists,
whether or not waived, with respect to any Plan; or
(iii) Any Termination Event with respect to a
Plan shall have occurred, and, 30 days after notice thereof
shall have been given to the Company by the Administrative
Agent or any Lender, (i) such Termination Event (if
correctable) shall not have been corrected and (ii) the then
present value of such Plan's vested benefits exceeds the sum
of (A) the fair market value of the assets accumulated in
such Plan and (B) any related balance sheet accruals, by
more than $1,000,000 (or, in the case of a Termination
Event involving a "substantial employer" (as defined in
Section 4001(a)(2) of ERISA), the withdrawing employer's
proportionate share of such excess shall exceed such amount);
then, and in any such event (other than an event described in subsection
(g) hereof), the Administrative Agent shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Company, without
prejudice to the rights of the Administrative Agent or any Lender to enforce
its claims against the Company, (i) declare the obligation of each Lender
to make Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) cause all of the Advances, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon all Advances, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Company. If an Event of Default described in subsection (g) hereof occurs,
any obligation on the part of the Lenders hereunder shall automatically
terminate and all sums of principal, interest and fees remaining on the
Advances shall be
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immediately due and payable without notice, presentment,
demand or notices of any kind, all of which are expressly waived.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND AGENTS
SECTION 7.01. Authorization and Action.
_________________________
Each Lender hereby appoints and authorizes the Administrative Agent and
Agents to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative Agent
and Agents by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement, the Administrative Agent and Agents shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of Lenders having at least 51%
of the Total Commitments and such instruction shall be binding upon all
Lenders; provided, however, that neither the Administrative Agent nor any
Agent shall be required to take any action which exposes the Administrative
Agent or such Agent, as the case may be, to personal liability or which is
contrary to this Agreement or applicable law.
SECTION 7.02. Agents' Reliance, Etc.
______________________
None of the Administrative Agent, any Agent or any of their respective
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each of the
Administrative Agent and Agents: (i) may treat the Lender making any Advance
as the holder thereof until the Administrative Agent receives and accepts
an Assignment and Acceptance entered into by such Lender, as assignor,
and an Eligible Assignee, in accordance with Section 8.04; (ii) may
consult with legal counsel (including counsel for the Company), independent
public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement on the part of the
Company or to inspect the property (including the books and records) of the
Company, except as expressly set forth herein; (v) shall not be responsible
to any Lender for the due execution (other than its own due execution),
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of this
Agreement by
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<PAGE> 46
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telegram, telex or telecopy facsimile) believed by
it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank, BofA , Chemical, BofM, NatWest,
_________________________________________
any Agent and Their Affiliates.
_______________________________
With respect to its Commitment and the Advances made by it, Citibank, BofA,
BofM, Chemical, NatWest or any Agent, as the case may be, shall have the same
rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Administrative Agent or an Agent, as the
case may be; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include each of Citibank, BofA, BofM, Chemical, NatWest
and any Agent in its individual capacity. Citibank, BofA, BofM, Chemical,
NatWest and each Agent and their respective affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage
in any kind of business with, the Company, any of the Subsidiaries and any
person or entity who may do business with or own securities of the Company or
any Subsidiary, all as if Citibank, BofA, BofM, Chemical, NatWest or such
Agent were not the Administrative Agent or an Agent, as the case may be, and
without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision.
_______________________
Each Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent, any Agent or any other Lender and based on the
financial statements referred to in Section 3.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, any
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification.
________________
The Lenders agree to indemnify the Administrative Agent and each Agent
(to the extent not reimbursed by the Company), ratably according to the
respective amounts of the Advances then held by each of them (or if no
Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent or such
Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Administrative Agent or such Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's
or such
46
<PAGE> 47
Agent's gross negligence or willful misconduct. Without limitation
of the foregoing, each Lender agrees to reimburse the Administrative Agent
and each Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent or such Agent in connection with the preparation,
execution, administration, or enforcement of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent or such Agent is not reimbursed for such expenses by the
Company.
SECTION 7.06. Successor Agent.
________________
The Administrative Agent and any Agent may resign at any time by giving written
notice thereof to the Lenders and the Company and the Administrative Agent may
be removed at any time with or without cause by Majority Lenders. Upon any such
resignation or removal of the Administrative Agent, Majority Lenders shall
have the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by Majority Lenders, and
if no successor Administrative Agent shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the removal of the retiring Administrative Agent by Majority
Lenders, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America
or of any State thereof and having combined capital and surplus of at least
$500,000,000 or a Lender. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. Except as otherwise
specifically designated herein, none of the Lenders identified on the
signature pages of this Agreement as an Agent shall have any right,
power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Each Lender acknowledges
that it has not relied, and will not rely, on any of the Lenders so
identified as an Agent in deciding to enter into this Agreement or in taking
or not taking action hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. No Waiver; Amendments.
______________________
No failure or delay on the part of the Administrative Agent or any Lender or
47
<PAGE> 48
the Company in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
power preclude any other or further exercise thereof or the exercise of
any other right or power hereunder. No amendment, modification or waiver
of any provision of this Agreement, nor consent to any departure by any
party therefrom, shall in any event be effective unless the same shall be in
writing and consented to by the Majority Lenders and the Company (except
that no such amendment, modification, waiver or consent which would increase
any Lender's Commitment, reduce, or postpone any date fixed for any payment
of, principal of, or interest on, the Advances or any fees or other amounts
payable hereunder or change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances which shall be required
for the Lenders or any of them to take action hereunder (including, without
limitation, any amendment to the definition of "Majority Lenders" or this
Section 8.01) or which would affect any provision contained in Section 5.01,
Section 5.02 (if and to the extent that the Borrowing which is the subject of
such amendment, waiver or consent would involve an increase in the aggregate
amount of Advances over the aggregate amount of Advances outstanding
immediately prior to such Borrowing), Section 5.03, this Section 8.01 or
Section 8.05 shall be effective unless consented to by all Lenders then
having a Commitment) and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given;
provided, however, that the amount of any Lender's Commitment may be
raised by agreement in writing between the Company and such Lender, with
notice thereof to each other Lender then having a Commitment and to the
Administrative Agent. No amendment, modification or waiver of or consent with
respect to any provision contained in Article VII shall be effective
unless consented to by the Administrative Agent. No notice to or demand
on any party in any case shall entitle such party to any other or further
notice or demand in similar or other circumstances.
SECTION 8.02. New Lenders.
____________
At any time when any Lender shall have a Commitment, if no event has occurred
and is continuing which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both, the Company may notify the Administrative Agent and the
Lenders that it desires to add one or more additional lenders to the Lenders
hereunder; provided, however, that no such new lender will have a Commitment
larger than the largest Commitment of a Lender. Such notice shall identify
each such lender, the amount of its proposed Commitment and the proposed
effective date of its inclusion hereunder (which shall be the last day of all
then current Interest Periods if there are Base Rate Advances or Eurodollar
Advances then outstanding from the Lenders). Upon such proposed date, such
lender shall become a Lender hereunder for all purposes and to the same effect
as if set forth on the signature pages hereof, subject to its execution where
indicated below and delivery to the Administrative Agent of at least one
counterpart
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<PAGE> 49
of this Agreement (which shall be deemed to include all amendments thereto) and
the execution and delivery by the Administrative Agent and the Company of each
such counterpart.
SECTION 8.03. Notices, Etc.
_____________
All communications and notices provided for hereunder, unless otherwise
specified in this Agreement, shall be in writing (including telecopier,
telegraphic, telex or cable communication) and, if to the Company, mailed,
telecopied, telegraphed, telexed, cabled or delivered to it, addressed to it
at Dial Tower, Phoenix, Arizona 85077-1215 (Telecopier Number: (602) 207-5543),
Attention of Treasurer's Department, and if to any Lender, mailed, telecopied,
telegraphed, telexed, cabled or delivered to it, addressed to it at its
Domestic Lending Office as set forth on the signature pages hereof, and, if to
the Administrative Agent, mailed, telecopied, telegraphed, telexed, cabled or
delivered to it, addressed to it c/o Citicorp USA, Inc., 1 Sansome Street,
San Francisco, California 94104 (Telecopier Number: (415) 433-0307),
Attention: Cindy Lee; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party. All such
notices and communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective 5 days after deposited in the mails, when
telecopied, when delivered to the telegraph company, when confirmed by telex
answerback or when delivered to the cable company, respectively, except that
notices and communications to the Administrative Agent pursuant to Article II
or VII shall not be effective until received by the Administrative Agent.
SECTION 8.04 Assignments, Participations etc.
________________________________
(a) Any Lender may, with notice to the Administrative
Agent and the Company, assign to any other current Lender, or, with notice
to the Administrative Agent and with the prior written consent of the Company
and the Administrative Agent, each of which consents shall not be unreasonably
withheld (it being understood and agreed that it shall not be considered
unreasonable to fail to consent to the assignment of all or any part of
the Advances or the Commitments or any other rights or obligations of
such Lender hereunder if such Lender's interests under the Long Term
Facility Credit Agreement are not proportionately assigned), assign to any
Eligible Assignee (each an "Assignee") all or any part of the Advances
or the Commitments or any other rights or obligations of such Lender
hereunder in a minimum amount of $5,000,000; provided, however, that the
amount of the Advances and the Commitment of the assignor Lender being
assigned may be in an amount equal to such assignor Lender's entire
Commitment and such Lender's entire outstanding Advances provided, further,
that the Company and the Administrative Agent may continue to deal solely
and directly with such Lender in connection with the interests so assigned
to an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Company and the
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<PAGE> 50
Administrative Agent by such Lender and the Assignee and (ii) such
Lender and its Assignee shall have delivered to the Company and the
Administrative Agent an Assignment and Acceptance in the form of Exhibit C
("Assignment and Acceptance"); and (iii) the processing fees of $2,500 shall
have been paid to the Administrative Agent (which fees shall also cover
concurrent assignments of such Lender's interests under the Long Term Facility
Credit Agreement). Any assignment hereunder shall be of a constant, and not a
varying, percentage of all rights and obligations of the assignor under this
Agreement. Notwithstanding any of the preceding limitations on any Lender's
ability to assign any part of the Advances or the Commitments to any other
Person, each Lender may assign its rights (including, without limitation,
rights to payment) under this Agreement to any Federal Reserve Bank without
notice to or consent of, and without payment of any processing fee to, the
Company or the Administrative Agent. To facilitate any such pledge to a
Federal Reserve Bank, the Company will, as provided in Section 2.17(d), execute
and deliver to such Lender a Note to evidence such Advances.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the Assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such
assignor Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any of this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assignor Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Company or the performance or observance by the Company of
any of its obligations under this Agreement or any instrument or document
furnished pursuant hereto; (iii) such Assignee confirms that it has received
a copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such Assignee will,
independently and without reliance upon the Administrative Agent, any Agent or
such assignor Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v)
such Assignee confirms that it is an Eligible Assignee; (vi) such Assignee
appoints and authorizes the Administrative Agent and the Agents to take such
action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent and the Agents by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such Assignee agrees that it will perform in accordance
with their terms all of the
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<PAGE> 51
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(c) From and after the date that the Administrative
Agent notifies the assignor Lender that it has received the Assignment
and Acceptance (which notice shall be promptly given by the
Administrative Agent), (i) the Assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Lender under this Agreement and (ii) the assignor Lender
shall, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights and
be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of
the assignor Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(d) The Administrative Agent shall maintain at its
address referred to in Section 8.03 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Company, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
Immediately upon each assignee's making its payment under the Assignment
and Acceptance, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom.
The Commitment allocated to each Assignee shall reduce such Commitments of
the assignor Lender pro tanto.
(e) Any Lender may at any time sell to one or more
Eligible Assignees or insurance companies (a "Participant") participating
interests in any Advances, the Commitment of that Lender or any other
interest of that Lender hereunder; provided, however, that (i) the
Lender's obligations under this Agreement shall remain unchanged, (ii) the
Lender shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Administrative Agent shall continue to
deal solely and directly with the Lender in connection with the Lender's
rights and obligations under this Agreement, and (iv) no Lender shall
transfer or grant any participating interest under which the Participant
shall have rights to approve any amendment to, or any consent or waiver
with respect to this Agreement except to the extent such amendment,
consent or waiver would: (A) extend the Termination Date; or (B) reduce the
interest rate
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or the amount of principal or fees applicable to Advances or the
Commitments in which such participant is participating. In the case of any
such participation, the Participant shall not have any rights under this
Agreement and all amounts payable by the Company hereunder shall be determined
as if such Lender had not sold such participation, except that if amounts
outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement.
(f) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 8.04, disclose to the Assignee or participant or proposed
assignee or participant, any information relating to the Company and any
Subsidiary furnished to such Lender by or on behalf of the Company;
provided that, prior to any such disclosure, the Assignee or Participant or
proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Company or
any Subsidiary received by it from such Lender.
SECTION 8.05. Costs, Expenses and Taxes.
__________________________
(a) The Company agrees to pay all out-of-pocket costs and
expenses of the Administrative Agent and each Agent in connection with the
preparation, execution and delivery of this Agreement and any amendment,
waiver or consent relating thereto (including the reasonable fees and
out-of-pocket expenses of O'Melveny & Myers and the allocated costs of
internal counsel) and out-of-pocket costs and expenses of the Administrative
Agent, if any, including reasonable legal fees in connection with the
administration thereof and out-of-pocket costs and expenses of the
Administrative Agent and the Lenders, if any, including reasonable legal
fees in connection with the enforcement thereof. In addition, the Company
shall pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement and
the other documents to be delivered hereunder, and agrees to save the
Administrative Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission
to pay such taxes.
(b) Whether or not the transactions contemplated
hereby shall be consummated, the Company agrees to indemnify, pay and
hold the Administrative Agent, each Agent, each Lender, and the officers,
directors, employees and agents of the Administrative Agent, the Agents and
the Lenders, harmless from and against any and all claims, liabilities,
losses, damages, costs and expenses (whether or not any of the foregoing
Persons is a party to any litigation), including without limitation
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<PAGE> 53
reasonable attorneys' fees and costs and costs of investigation, with
respect to any acquisition or proposed acquisition or any other use or proposed
use of proceeds of the Advances (collectively, the "Indemnified Liabilities"),
provided that the Company shall have no obligation hereunder with respect to
Indemnified Liabilities arising from the gross negligence or willful misconduct
of any such Persons. If any claim is made, or any action, suit or proceeding
is brought against any Person indemnified pursuant to this Section 8.05(b), the
indemnified Person shall notify the Company of such claim or of the
commencement of such action, suit or proceeding, and the Company will assume
the defense of such action, suit or proceeding, employing counsel selected by
the Company and reasonably satisfactory to the indemnified Person, and pay the
fees and expenses of such counsel; provided, however, that if counsel to the
Administrative Agent or the Person seeking indemnification hereunder shall
reasonably determine that, due to conflicts in the liabilities or defenses of
the Company and the Administrative Agent, the Agents and the Lenders, the
Administrative Agent, the Agents or the Lenders should retain their own
counsel, the Administrative Agent, the Agents and the Lenders shall have the
right to retain their own counsel and the reasonable fees and expenses of such
counsel shall be for the account of the Company. The obligations of the
Company under this Section 8.05(b) shall survive the termination of this
Agreement and the discharge of the Company's other obligations hereunder.
SECTION 8.06. Right of Set-off.
_________________
Upon the occurrence and during the continuance of any Event of Default, each
Lender is hereby authorized at any time and from time to time, without notice
to the Company (any such notice being expressly waived by the Company) and 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 indebtedness at any time owing by such Lender to or for the credit or the
account of the Company against any and all of the obligations of the Company
now or hereafter existing under this Agreement irrespective of whether or not
such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
Company and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each
Lender under this Section 8.06 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender may
have.
SECTION 8.07. Accounting Terms.
_________________
All accounting terms not specifically defined herein shall be construed in
accordance with GAAP applied on a consistent basis.
SECTION 8.08. Effectiveness of Action by, or Consent of, Lenders.
___________________________________________________
With respect to any provision of this Agreement
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under which action may be taken or consent or approval given by holders
of a specified percentage of the Lenders, the action taken or consent or
approval given by such percentage shall be binding upon all of the Lenders to
the same extent and with the same effect as if each Lender had joined therein.
SECTION 8.09. Several Obligations.
____________________
Subject to Section 8.10 hereof, the obligation of each Lender hereunder is
several, and neither the Administrative Agent nor any Lender shall be
responsible for the obligation or Commitment of any other Lender hereunder,
nor will the failure of any Lender to perform any of its obligations hereunder
relieve the other Lenders from the performance of their respective obligations
hereunder. Nothing contained in this Agreement and no action taken by the
Lenders pursuant hereto shall be deemed to constitute the Lenders a partnership,
association, joint venture or other entity.
SECTION 8.10. Binding Effect.
_______________
This Agreement shall become effective, upon satisfaction of the conditions set
forth in Section 5.01, when it shall have been executed by the Company and when
the Administrative Agent shall have been notified by each Lender that such
Lender has executed it and thereafter shall be binding upon and inure to the
benefit of the Company, the Administrative Agent hereunder and each of the
Lenders and their respective successors and assigns, except that the Company
shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of each of the Lenders.
SECTION 8.11. Severability of Provisions.
___________________________
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions
in any other jurisdiction.
SECTION 8.12. Descriptive Headings.
_____________________
The descriptive headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
SECTION 8.13. Governing Law.
______________
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.14. Execution in Counterparts.
__________________________
This Agreement may be executed in any number of counterparts and by the
several parties hereto on separate counterparts, each of which when so
executed shall be an original, but all such separate counterparts shall
together constitute but one and the same instrument.
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<PAGE> 55
SECTION 8.15. Waiver of Trial by Jury.
________________________
THE COMPANY, THE LENDERS, THE AGENTS AND THE ADMINISTRATIVE AGENT EACH HEREBY
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver
is intended to be all- encompassing of any and all disputes that may be filed
in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. The Company, the
Lenders, the Agents and the Administrative Agent each (i) acknowledges that
this waiver is a material inducement for the Company, the Lenders, the Agents
and the Administrative Agent to enter into a business relationship, that the
Company, the Lenders, the Agents and the Administrative Agent have already
relied on this waiver in entering into this Agreement or accepting the
benefits thereof, as the case may be, and that each will continue to rely
on this waiver in their related future dealings and (ii) further warrants
and represents that it has reviewed this waiver with its legal counsel,
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER MAY NOT BE MODIFIED ORALLY AND
MAY ONLY BE MODIFIED IN WRITING EXPRESSLY REFERRING TO THIS SECTION 8.15,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT EXCEPT TO THE EXTENT ANY SUCH
AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION EXPRESSLY PROVIDES OTHERWISE.
In the event of litigation, this Agreement may be filed as a written consent
to a trial by the court.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized as of the date first above written.
GREYHOUND FINANCIAL
CORPORATION
By__________________________
Title_______________________
By__________________________
Title_______________________
Commitments
___________
$60,500,000 CITIBANK, N.A. (Individually
and as an Agent and
Administrative Agent)
By ___________________________
Title__________________________
399 Park Avenue
New York, New York 10043
Telecopy: (212) 793-3824
$60,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By ___________________________
Title __________________________
555 South Flower Street,
Credit Products #5618
Los Angeles, California 90071
Telecopy: (213) 228-2756
S-1
<PAGE> 57
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (as an Agent)
By ___________________________
Title __________________________
Bank of America
Global Agency #5596
1455 Market Street
San Francisco, California 94103
Telecopy: (510) 675-7531
$60,500,000 BANK OF MONTREAL (Individually
and as an Agent)
By ___________________________
Title __________________________
115 South LaSalle Street,
12 West
Chicago, Illinois 60603
Telecopy: (312) 750-3702
$60,500,000 CHEMICAL BANK (Individually
and as an Agent)
By ___________________________
Title _________________________
270 Park Avenue
New York, New York 10017
Telecopy: (212) 270-2111
$35,500,000 NATIONAL WESTMINSTER BANK USA
(Individually and as an Agent)
By ___________________________
Title _________________________
175 Water Street
New York, New York 10038
Telecopy: (212) 602-2149
S-2
<PAGE> 58
$50,000,000 CONTINENTAL BANK N.A.
(Individually and as an Agent)
By ___________________________
Title __________________________
231 South LaSalle Street
Chicago, Illinois 60697
Telecopy: (312) 765-2080
$50,000,000 THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By ___________________________
Title __________________________
One Chase Manhattan Plaza
New York, New York 10081
Telecopy: (212) 552-1372
$50,000,000 CREDIT SUISSE
By ___________________________
Title __________________________
By ___________________________
Title __________________________
633 West Fifth Street,
64th Floor
Los Angeles, California 90071
Telecopy: (213) 955-8245
$37,500,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By ___________________________
Title __________________________
350 South Grand Avenue
Suite 1500
Los Angeles, California 90071
Telecopy: (213) 488-9840
$32,500,000 NATIONSBANK OF GEORGIA, N.A.
S-3
<PAGE> 59
By ___________________________
Title __________________________
Nationsbank Plaza
600 Peachtree Street, N.E.,
21st Floor
Atlanta, Georgia 30308-2213
Telecopy: (404) 607-6318
$27,500,000 UNION BANK OF SWITZERLAND
LOS ANGELES BRANCH
By____________________________
Title __________________________
By____________________________
Title __________________________
444 South Flower Street
Los Angeles, California 90071
Telecopy: (213) 489-0637
$27,500,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE-NEW YORK AND CAYMAN
ISLANDS BRANCHES
By____________________________
Title __________________________
By____________________________
Title __________________________
1211 Avenue of the Americas
New York, New York 10036
Telecopy: (212) 852-6300
$25,000,000 CREDIT LYONNAIS
SAN FRANCISCO BRANCH
By ___________________________
Title __________________________
By ___________________________
Title __________________________
S-4
<PAGE> 60
3 Embarcadero Center
Suite 1640
San Francisco, California 94111
Telecopy: (415) 956-7008
$25,000,000 FIRST INTERSTATE BANK
OF ARIZONA, N.A.
By ___________________________
Title __________________________
First Interstate Bank Plaza
100 West Washington
Phoenix, Arizona 85038
Telecopy: (602) 440-1549
$25,000,000 NATIONAL WESTMINSTER BANK PLC
By ___________________________
Title _________________________
175 Water Street
New York, New York 10038
Telecopy: (212) 602-2149
$25,000,000 ROYAL BANK OF CANADA
By ___________________________
Title __________________________
600 Wilshire Boulevard
Suite 800
Los Angeles, California 90017
Telecopy: (213) 955-5350
$25,000,000 SOCIETE GENERALE
By ___________________________
Title __________________________
2029 Century Park East,
Suite 2900
Los Angeles, California 90067
Telecopy: (310) 551-1537
S-5
<PAGE> 61
$20,000,000 BANK ONE, ARIZONA, N.A.
By ___________________________
Title __________________________
241 North Central
U.S. Corp. Banking, A-714
Phoenix, Arizona 85004
Telecopy: (602) 221-2632
$17,500,000 DRESDNER BANK AG LOS ANGELES
AGENCY
By ___________________________
Title __________________________
By ___________________________
Title __________________________
725 South Figueroa Street
Suite 3950
Los Angeles, California 90017
Telecopy: (213) 627-3819
$17,500,000 UNION BANK
By ___________________________
Title __________________________
350 California Street,
11th Floor
San Francisco, California 94104
Telecopy: (415) 705-7037
$15,000,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By____________________________
Title __________________________
444 South Flower Street,
Suite 3700
Los Angeles, California 90071
Telecopy: (213) 622-6908
S-6
<PAGE> 62
$15,000,000 THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By ___________________________
Title __________________________
801 South Figueroa Street
Suite 2400
Los Angeles, California 90017
Telecopy: (213) 687-4631
$12,500,000 ARAB BANKING CORPORATION
By ___________________________
Title __________________________
444 S. Flower Street
Los Angeles, California 90071
Telecopy: (213) 689-1048
$12,500,000 THE BANK OF NOVA SCOTIA
By ___________________________
Title __________________________
101 California Street,
48th Floor
San Francisco, California 94111
Telecopy: (415) 397-0791
$12,500,000 FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
By __________________________
Title _________________________
Broad & Walnut Street
PMB007
Philadelphia, Pennsylvania 19109
Telecopy: (215) 985-7794
S-7
<PAGE> 63
$10,000,000 BANK HAPOALIM, B.M.,
LOS ANGELES BRANCH
By____________________________
Title __________________________
By____________________________
Title __________________________
6222 Wilshire Blvd.
Los Angeles, CA 90048
Telecopy: (213) 937-1439
$10,000,000 BANK OF AMERICA ARIZONA
By ___________________________
Title __________________________
101 North First Avenue #8211
Phoenix, Arizona 85003
Telecopy: (602) 594-2511
$10,000,000 BANK OF HAWAII
By ___________________________
Title __________________________
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Telecopy: (808) 537-8301
$10,000,000 BANQUE NATIONALE DE PARIS
By____________________________
Title __________________________
By____________________________
Title __________________________
725 South Figueroa Street
Suite 2090
Los Angeles, California 90017
Telecopy: (213) 488-9602
S-8
<PAGE> 64
$10,000,000 COMERICA BANK
By ___________________________
Title _________________________
Comerica Tower at Detroit Center
500 Woodward Avenue, MC 3281
Detroit, Michigan 48226
Telcopy: (313) 222-3330
$10,000,000 CREDIT AGRICOLE
By ___________________________
Title _________________________
55 E. Monroe Street, Suite 4700
Chicago, Illinois 60603
Telecopy: (312) 372-3724
$10,000,000 DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By ___________________________
Title _________________________
By ___________________________
Title _________________________
609 5th Avenue
New York, New York 10017-1021
Telecopy: (212) 745-1556
$10,000,000 KREDIETBANK N.V.
By ___________________________
Title _________________________
By ___________________________
Title _________________________
125 West 55th St., 10th Floor
New York, New York 10019
Telecopy: (212) 956-5580
$10,000,000 NBD BANK, N.A.
S-9
<PAGE> 65
By ___________________________
Title _________________________
Financial Institutions Group,
3rd Floor
611 Woodward Avenue
Detroit, Michigan 48226
Telecopy: (313) 225-3074
$10,000,000 ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.
By____________________________
Title __________________________
By____________________________
Title __________________________
444 South Flower Street,
45th Floor
Los Angeles, California 90071
Telecopy: (213) 622-2514
$10,000,000 SANWA BANK, LTD.
By ___________________________
Title _________________________
601 S. Figueroa Street
Los Angeles, California 90017
Telecopy: (213) 896-7475
$10,000,000 UNITED STATES NATIONAL BANK
OF OREGON
By ___________________________
Title ________________________
111 S.W. Fifth Avenue, T-29
Portland, Oregon 97204
Telecopy: (503) 275-5428
$7,500,000 ABN AMRO BANK N.V., LOS ANGELES
INTERNATIONAL BRANCH
S-10
<PAGE> 66
By ___________________________
Title _________________________
By ___________________________
Title _________________________
300 S. Grand Avenue, Suite 1115
Los Angeles, California 90071-7519
Telecopy: (213) 687-2061
$7,500,000 BANK OF IRELAND
By ___________________________
Title _________________________
640 Fifth Avenue
New York, New York 10019
Telecopy: (212) 586-7752
$5,000,000 THE BANK OF CALIFORNIA, N.A.
By ___________________________
Title ________________________
550 S. Hope Street, 5th Floor
Los Angeles, California 90071
Telecopy: (213) 243-3552
$5,000,000 FUJI BANK, LTD.
By ___________________________
Title _________________________
333 S. Grand Avenue
Los Angeles, California 90071
Telecopy: (213) 253-4198
$5,000,000 THE SAKURA BANK, LTD.
By ___________________________
Title _________________________
515 S. Figueroa Street, Suite 400
Los Angeles, California 90071
Telecopy: (213) 623-8692
S-11
<PAGE> 67
Total Commitments
$950,000,000
S-12
<PAGE> 68
SCHEDULE 1
GREYHOUND FINANCIAL CORPORATION
$950,000,000
CREDIT AGREEMENT
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ ______________
<S> <C> <C>
Citibank, N.A. Citibank, N.A. Citibank, N.A.
399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY 10043
Telex: 691-299 Telex: 691-299
Telecopy 212/793-5300 Telecopy 212/793-5300
Bank of America National Bank of America National Bank of America National
Trust and Savings Association Trust and Savings Association Trust and Savings Association
Global Payment Operations #5693 Global Payment Operations #5693
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Telex 34346 Telex 34346
Telecopy 510/675-7532 Telecopy 510/675-7532
Attn: Barbara Garibaldi Attn: Barbara Garibaldi
Chemical Bank Chemical Bank Chemical Bank
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Telex 232337 Telex 232337
Telecopy 212/818-1456 Telecopy 212/818-1456
Bank of Montreal Bank of Montreal Bank of Montreal
115 South LaSalle Street, 11 West 115 South LaSalle Street, 11 West
Chicago, Illinois 60603 Chicago, Illinois 60603
Telex None Telex None
Telecopy 312/750-6061 Telecopy 312/750-6061
Continental Bank N.A. Continental Bank N.A. Continental Bank N.A.
231 S. LaSalle St. 231 S. LaSalle St.
Chicago, IL 60697 Chicago, IL 60697
Telex 25-3412 Telex 25-3412
Telecopy 312/765-2080 Telecopy 312/765-2080
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
(National Association) 1 Chase Manhattan Plaza 1 Chase Manhattan Plaza
5th Floor 5th Floor
New York, NY 10081 New York, NY 10081
Telex 62910 Telex 62910
Telecopy 212/552-1372 Telecopy 212/552-1372
First Interstate Bank of First Interstate Bank of First Interstate Bank of
Arizona, N.A. Arizona, N.A. Arizona, N.A.
P.O. Box 29742 P.O. Box 29742
Phoenix, AZ 85038-9742 Phoenix, AZ 85038-9742
Telex 187-103 Telex 187-103
Telecopy 602/440-1549 Telecopy 602/440-1549
National Westminster Bank USA National Westminster Bank USA National Westminster Bank USA
175 Water Street 175 Water Street
New York, New York 10038 New York, New York 10038
Telex 232-369NBNA-UR Telex 232-369NBNA-UR
Telecopy 212/602-2590 Telecopy 212/602-2590
National Westminster Bank PLC National Westminster Bank PLC National Westminster Bank PLC
175 Water Street 175 Water Street
New York, New York 10038 New York, New York 10038
Telecopy 212/602-4113 Telecopy 212/602-4113
Union Bank of Switzerland Union Bank of Switzerland Union Bank of Switzerland
Los Angeles Branch Los Angeles Branch Los Angeles Branch
444 South Flower Street 444 South Flower Street
Los Angeles, California 90071 Los Angeles, California 90071
Telex 6831878 Telex 6831878
Telecopy 213/489-0637 Telecopy 213/489-0637
Westdeutsche Landesbank Westdeutsche Landesbank Westdeutsche Landesbank
Girozentrale Girozentrale Girozentrale
1211 Avenue of the Americas 1211 Avenue of the Americas
23rd Floor 23rd Floor
New York, New York 10036 New York, New York 10036
Telex MCI 666668 or ITT 420736 Telex MCI 666668 or ITT 420736
Telecopy 212/302-7946 Telecopy 212/302-7946
Credit Lyonnais, Credit Lyonnais, Credit Lyonnais, Cayman
San Francisco Branch San Francisco Branch Island Branch c/o Credit
3 Embarcadero Center Lyonnais, San Francisco Branch
Suite 3470 3 Embarcadero Center, Suite 3470
San Francisco, CA 94111 San Francisco, CA 94111
</TABLE> S-I-1
<PAGE> 69
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ ______________
<S> <C> <C>
Telex 6771535 Telex 6771535
Telecopy 415/956-7008 Telecopy 415/956-7008
The Industrial Bank of Japan, The Industrial Bank of Japan, The Industrial Bank of Japan,
Limited, Los Angeles Agency Limited, Los Angeles Agency Limited, Los Angeles Agency
350 South Grand Avenue 350 South Grand Avenue
Suite 1500 Suite 1500
Los Angeles, California 90071 Los Angeles, California 90071
Telex 67356 Telex 67356
Telecopy 213/688-7486 Telecopy 213/688-7486
Bank One, Arizona, N.A. Bank One, Arizona, N.A. Bank One, Arizona, N.A.
241 North Central 241 North Central
U.S. Corp. Bkng., A-714 U.S. Corp. Bkng., A-714
Phoenix, Arizona 85004 Phoenix, Arizona 85004
Telex 667434 Telex 667434
Telecopy 602/221-2632 Telecopy 602/221-2632
Dresdner Bank AG Dresdner Bank AG Dresdner Bank AG
Los Angeles Agency Los Angeles Agency Los Angeles Agency
75 Wall Street 75 Wall Street
New York, New York 10005 New York, New York 10005
Telex 421750 Telex 421750
Telecopy 212/574-0130 Telecopy 212/574-0130
The Mitsubishi Trust and The Mitsubishi Trust and The Mitsubishi Trust and
Banking Corporation, Banking Corporation, Banking Corporation,
Los Angeles Agency Los Angeles Agency Los Angeles Agency
801 South Figueroa Street 801 South Figueroa Street
Suite 2400 Suite 2400
Los Angeles, California 90017 Los Angeles, California 90017
Telex 3750342 Telex 3750342
Telecopy 213/687-4631 Telecopy 213/687-4631
Societe Generale Societe Generale Societe Generale
2029 Century Park East 2029 Century Park East
Suite 2900 Suite 2900
Los Angeles, California 90067 Los Angeles, California 90067
Telex 188273 Telex 188273
Telecopy 310/203-0539 Telecopy 310/203-0539
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
101 California Street, 48th Fl. 101 California Street, 48th Fl.
San Francisco, California San Francisco, California
94111 94111
Telex 00340602 Telex 00340602
Telecopy 415/397-0791 Telecopy 415/397-0791
Credit Suisse Credit Suisse Credit Suisse
633 West Fifth Street 633 West Fifth Street
64th Floor 64th Floor
Los Angeles, California Los Angeles, California
90071 90071
Telex 67227 Telex 67227
Telecopy 213/955-8245 Telecopy 213/955-8245
Union Bank Union Bank Union Bank
350 California St. 350 California St.
11th Floor 11th Floor
San Francisco, California San Francisco, California
94104 94104
Telex 188316 Telex 188316
Telecopy 415/705-7037 Telecopy 415/705-7037
Bank of Hawaii Bank of Hawaii Bank of Hawaii
130 Merchant Street 130 Merchant Street
20th Floor 20th Floor
Honolulu, Hawaii 96813 Honolulu, Hawaii 96813
Telex None Telex None
Telecopy 808/484-3606 Telecopy 808/484-3606
Bank Hapoalim B.M., Bank Hapoalim B.M., Bank Hapoalim B.M.,
Los Angeles Branch Los Angeles Branch Los Angeles Branch
6222 Wilshire Blvd. 6222 Wilshire Blvd.
Los Angeles, CA 90048 Los Angeles, CA 90048
Telex 188610 Telex 188610
Telecopy 213/937-1439 Telecopy 213/937-1439
</TABLE>
S-I-2
<PAGE> 70
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
____ ________________ ______________
<S> <C> <C>
Banque Nationale Banque Nationale Banque Nationale
de Paris de Paris de Paris
180 Montgomery Street 180 Montgomery Street
San Francisco, California San Francisco, California
94104 94104
Telex 9103722007 Telex 9103722007
Telecopy 415/989-9041 Telecopy 415/989-9041
Bank of America Arizona Bank of America Arizona Bank of America Arizona
101 North First Avenue #8211 101 North First Avenue #8211
Phoenix, Arizona 85003 Phoenix, Arizona 85003
Telex None Telex None
Telecopy 602/594-2323 Telecopy 602/594-2323
The Long-Term Credit Bank The Long-Term Credit Bank The Long-Term Credit Bank
of Japan, Limited, Los Angeles of Japan, Ltd., of Japan, Ltd.,
Agency Los Angeles Agency Los Angeles Agency
444 South Flower Street 444 South Flower Street
Suite 3700 Suite 3700
Los Angeles, California 90071 Los Angeles, California 90071
Telex 673558 Telex 673558
Telecopy 213/626-1067 Telecopy 213/626-1067
Istituto Bancario San Paolo Istituto Bancario San Paolo Istituto Bancario San Paolo
di Torino S.p.A. di Torino S.p.A. di Torino S.p.A.
444 South Flower Street, 45th Floor 444 South Flower Street, 45th Floor
Los Angeles, California 90071 Los Angeles, California 90071
Telex 4720338 Telex 4720338
Telecopy 213/622/2514 Telecopy 213/622/2514
Caisse Nationale de Caisse Nationale de Caisse Nationale de
Credit Agricole Credit Agricole Credit Agricole
55 East Monroe 55 East Monroe
Suite 4700 Suite 4700
Chicago, Illinois 60603 Chicago, Illinois 60603
Telex 190063 Telex 190063
Telecopy 312/372-3724 Telecopy 312/372-4421
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
Pierrepont Plaza Pierrepont Plaza
300 Cadman Plaza West 300 Cadman Plaza West
14th Floor 14th Floor
Brooklyn, New York 10201 Brooklyn, New York 10201
Telecopy 718/522-6292 Telecopy 718/522-6292
Telex ROYBAN 62519 Telex ROYBAN 62519
Comerica Bank Comerica Bank Comerica Bank
One Detroit Center One Detroit Center
500 Woodward Avenue, MC #3281 500 Woodward Avenue, MC #3281
Detroit, Michigan 48226 Detroit, Michigan 48226
Telecopy 313/222-3330 Telecopy 313/222-3330
Kredietbank, N.V. Kredietbank, N.V. Kredietbank, N.V.
125 W. 55th Street 125 W. 55th Street
10th Floor 10th Floor
New York, New York 10019 New York, New York 10019
Telecopy 212/956-5580 Telecopy 212/956-5580
Telex TRT 177789 Telex TRT 177789
661572 MCI 661572 MCI
United States National Bank United States National Bank United States National Bank
of Oregon of Oregon of Oregon
555 S.W. Oak Street 555 S.W. Oak Street
PL-7 PL-7
Portland, Oregon 97204 Portland, Oregon 97204
Telecopy 503/275-4600 Telecopy 503/275-4600
ABNAMRO Bank N.V. ABNAMRO Bank N.V., ABNAMRO Bank N.V.,
Los Angeles International Branch Los Angeles International Branch
300 S. Grand Avenue 300 S. Grand Avenue
Suite 1115 Suite 1115
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/687-2061 Telecopy 213/687-2061
Telex 822132/ABNLSA Telex 822132/ABNLSA
The Sakura Bank, Ltd. The Sakura Bank, Ltd. The Sakura Bank, Ltd.
515 S. Figueroa Street, #400 515 S. Figueroa Street, #400
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/623-8692 Telecopy 213/623-8692
Telex 188489 Telex 188489
Fuji Bank, Ltd. Fuji Bank, Ltd. Fuji Bank, Ltd.
333 S. Grand Avenue 333 S. Grand Avenue
Suite 2500 Suite 2500
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/253-4198 Telecopy 213/253-4198
</TABLE>
S-I-3
<PAGE> 71
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
- - ---- ---------------- --------------
<S> <C> <C>
Telex 215504 Telex 215504
</TABLE>
S-I-4
<PAGE> 72
<TABLE>
<CAPTION>
Domestic Lending Eurodollar
Bank Office Lending Office
- - ---- ---------------- --------------
<S> <C> <C>
Bank of Ireland Bank of Ireland Bank of Ireland
640 Fifth Avenue 640 Fifth Avenue
New York, New York 10019 New York, New York 10019
Telecopy 212/586-7752 Telecopy 212/586-7752
The Bank of California, N.A. The Bank of California, N.A. The Bank of California, N.A.
550 S. Hope Street, 5th Floor 550 S. Hope Street, 5th Floor
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/243-3552 Telecopy 213/243-3552
NBD Bank, N.A. NBD Bank, N.A. NBD Bank, N.A.
Financial Institutions Group Financial Institutions Group
3rd Floor 3rd Floor
611 Woodward Avenue 611 Woodward Avenue
Detroit, Michigan 48226 Detroit, Michigan 48226
Telecopy 313/225-3074 Telecopy 313/225-3074
DG Bank DG Bank DG Bank
609 5th Avenue 609 5th Avenue
New York, New York 10017-1021 New York, New York 10017-1021
Telecopy 212/745-1556 Telecopy 212/745-1556
Nationsbank of Georgia, N.A. Nationsbank of Georgia, N.A. Nationsbank of Georgia, N.A.
Nationsbank Plaza Nationsbank Plaza
600 Peachtree Street, N.E. 600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2213 Atlanta, Georgia 30308-2213
Telecopy 404/607-6318 Telecopy 404/607-6318
Arab Banking Corporation Arab Banking Corporation Arab Banking Corporation
444 So. Flower Street 444 So. Flower Street
Suite 1480 Suite 1480
Los Angeles, California 90071 Los Angeles, California 90071
Telecopy 213/689-1048 Telecopy 213/689-1048
Sanwa Bank Sanwa Bank, Ltd. Sanwa Bank, Ltd.
601 S. Figueroa Street 601 S. Figueroa Street
Los Angeles, California 90017 Los Angeles, California 90017
Telecopy 213/896-7475 Telecopy 213/896-7475
First Fidelity Bank, First Fidelity Bank, First Fidelity Bank,
National Association National Association National Association
Broad & Walnut Street Broad & Walnut Street
PMB007 PMB007
Philadelphia, PA 19109 Philadelphia, PA 19109
Telecopy 215/985-7794 Telecopy 215/985-7794
</TABLE>
S-I-5
<PAGE> 73
EXHIBIT A
NOTICE OF BORROWING
[Date]
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
Attention: National Corporate
Division Administration
with a copy to:
Citicorp USA, Inc.
725 South Figueroa Street
Los Angeles, California 90071
Attention: Credit Department
Ladies and Gentlemen:
The undersigned, Greyhound Financial Corporation, refers to
the Credit Agreement (Short Term Facility), dated as of May 16, 1994 (the
"Credit Agreement"), the terms defined therein being used herein as therein
defined, among Greyhound Financial Corporation, the Lenders parties thereto,
Bank of America National Trust and Savings Association, Bank of Montreal,
Chemical Bank, Citibank, N.A. and National Westminster Bank USA, as Agents,
and Citibank, N.A., as Administrative Agent, and hereby gives you notice
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
________________ 19___.
(ii) The Type of Advances comprising the
Proposed Borrowing is [Base Rate Advances][Eurodollar
Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$___________.
(iv) The Interest Period for each Advance made as part of
the Proposed Borrowing is ____ [months] [days].
In accordance with Section[s] 5.02 [and 5.03] of the
Credit Agreement, the undersigned hereby certifies, on behalf of the
Company, that as of the date hereof and the date of the Advance hereby
requested:
A-1
<PAGE> 74
1. The representations and warranties contained in
Section 3.01 of the Credit Agreement (excluding those contained in
paragraph[s (e) and] (f) thereof) are true and accurate as though
made on and as of such dates;
2. No circumstances exist that in the Company's
reasonable opinion would materially impair the Company's ability to
repay all outstanding Advances; and
3. No event has occurred and is continuing or would
result from such Borrowing which constitutes an Event of Default
under the Credit Agreement or which would constitute such an Event of
Default but for the requirement that notice be given or time elapse or
both.
Very truly yours,
Greyhound Financial Corporation
By_____________________________
Title:
A-2
<PAGE> 75
EXHIBIT B
SECTION 4.01(a) CERTIFICATE
Schedule of Compliance with the Credit Agreement
(Short Term Facility), dated as of May 16, 1994
Certificate as of _________, 19__
The undersigned, ________________________ of Greyhound
Financial Corporation, pursuant to the provisions of the Credit Agreement
(Short Term Facility), dated as of May 16, 1994 (the "Credit
Agreement"), among the aforesaid corporation (the "Company"), the Lenders
named therein, Bank of America National Trust and Savings Association,
Bank of Montreal, Chemical Bank, Citibank, N.A. and National Westminster
Bank USA, as Agents, and Citibank, N.A., as Administrative Agent, hereby
certifies that as of the date first written above (defined terms in the
Credit Agreement being used herein with the same meanings as in the Credit
Agreement), the following computations were true and correct:
<TABLE>
1. RATIO OF INDEBTEDNESS TO STOCKHOLDERS' EQUITY, SECTION 4.02(A)
<CAPTION>
<S> <C> <C>
a. Outstanding Indebtedness . . . . . . . . . . . . . . $__________
b. Stockholders' Equity . . . . . . . . . . . . . . .. $__________
c. Ratio of Indebtedness to Stockholders
Equity (ratio of Line 1a to Line 1b) ___:1.00
d. Maximum ratio permitted for period ___:1.00
(initially 6.50:1.00; on or after June 30,
1995 and before March 30, 1996,
6.75:1.00; on or after March 31, 1996,
7.00:1.00; all subject to proviso
to Section 4.02(a))
</TABLE>
<TABLE>
2. SECURED INDEBTEDNESS TEST, SECTION 4.02(B)
<CAPTION>
<S> <C> <C>
a. Secured Indebtedness . . . . . . . . . . . . . . . . $__________
b. limited recourse Secured
Indebtedness . . . . . . . . . . . . . . . . . . . . $__________
c. Line 2a minus Line 2b* . . . . . . . . . . . . . . . $__________
d. maximum permitted amount . . . . . . . . . . . . . . $15,000,000
</TABLE>
<TABLE>
3. INTEREST COVERAGE, SECTION 4.02(C)
<CAPTION>
<S> <C> <C>
a. Consolidated Net Income (excluding
extraordinary items) . . . . . . . . . . . . . . . . $__________
b. taxes . . . . . . . . . . . . . . . . . . . . . . . $__________
c. interest expense . . . . . . . . . . . . . . . . . . $__________
</TABLE>
__________________________________
*If negative, will be zero.
B-1
<PAGE> 76
<TABLE>
<S> <C> <C>
d. Line 3a plus Line 3b plus
Line 3c . . . . . . . . . . . . . . . . . . . . . . $__________
e. ratio of Line 3d to Line 3c . . . . . . . . . . . . ____:1.00
f. minimum permitted ratio . . . . . . . . . . . . . . 1.25:1.00
4. EXPOSURE TEST, SECTION 4.02(D)
a. Stockholders' Equity . . . . . . . . . . . . . . . . $__________
b. greatest Exposure . . . . . . . . . . . . . . . . . $__________
c. maximum Exposure permitted
(15% of Line 4a) . . . . . . . . . . . . . . . . . . $__________
5. COMMERCIAL PAPER COVENANT TEST,
SECTION 4.02(E)
a. unused but available portion of Commitments . . . . $__________
b. unused but available portion
of Commitments (under and as
defined in the Long Term Facility
Credit Agreement) . . . . . . . . . . . . . . . . . $__________
c. other unused but available
commitments or lines of
credit . . . . . . . . . . . . . . . . . . . . . . . $__________
d. Commercial Paper outstanding . . . . . . . . . . . . $__________
e. maximum amount of Commercial
Paper permitted to be outstanding
(Line 5a plus Line 5b plus Line 5c) . . . . . . . . $__________
6. DIVIDEND TEST, SECTION 4.02(G)
a. Consolidated Net Income
subsequent to December 31, 1991 . . . . . . . . . . $__________
b. cash dividends paid subsequent
to December 31, 1991 . . . . . . . . . . . . . . . . $__________
c. maximum amount of dividends
permitted subsequent to
December 31, 1991 (50% of Line 6a) . . . . . . . . . $__________
7. STOCKHOLDERS' EQUITY TEST, SECTION 4.02(H)
a. Stockholders' Equity on Effective Date . . . . . . . $__________
b. Line 7a minus $100,000,000 . . . . . . . . . . . . . $__________
c. the greater of Line 7b and $600,000,000 . . . . . . $__________
d. cumulated consolidated net income
for all fiscal quarters ending after
April 30, 1994 . . . . . . . . . . . . . . . . . . $__________
e. 50% of Line 7d . . . . . . . . . . . . . . . . . . . $__________
f. 50% of cumulative proceeds from issuances
of equity of Company or any
Subsidiary after the Effective Date
g. Stockholders' Equity (Line 1e) . . . . . . . . . . . $__________
h. minimum Stockholders' Equity
permitted (Line 7C plus
Line 7e plus Line 7f) . . . . . . . . . . . . . . . $__________
</TABLE>
B-2
<PAGE> 77
8. RATINGS
<TABLE>
<S> <C> <C>
a. S&P Long-term Debt rating as of
this report . . . . . .. . . . . . . . . . . . . . ___________
b. Moody's Long-term Debt rating as
of this report . . . . . . . . . . . . . . . . . . . ___________
c. D&P Long-term Debt rating as of this report . . . . ___________
</TABLE>
and hereby further certify that no event is continuing on the date hereof
which constitutes an Event of Default under the Credit Agreement, or
which would constitute such an Event of Default but for the requirement
that notice be given, or time elapse, or both.
IN WITNESS WHEREOF, I have hereunto set my hand as of the date
first above written.
__________________________________
[Name]
__________________________________
of Greyhound Financial Corporation
B-3
<PAGE> 78
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Dated as of _______________, 19___
Reference is made to that certain Credit Agreement (Short
Term Facility), dated as of May 16, 1994 (the "Credit Agreement"), among
Greyhound Financial Corporation (the "Company"), the Lenders parties thereto,
Bank of America National Trust and Savings Association, Bank of Montreal,
Chemical Bank, Citibank, N.A. and National Westminster Bank USA, as Agents,
and Citibank, N.A., as Administrative Agent (the "Administrative Agent").
Terms defined in the Credit Agreement are used herein with same meaning.
[________________] (the "Assignor") and [______________] (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
without recourse, that interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the date hereof which
represents the percentage interest specified in Section 1 of Schedule 1 of
the outstanding rights and obligations of all Lenders under the Credit
Agreement, including, without limitation, such interest in the Assignor's
Commitment and in all outstanding Advances (if any) owing to the Assignor.
After giving effect to such sale and assignment, the Assignee's Commitment
and the aggregate principal amount of Advances outstanding on the date hereof
and owing to the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty (except as provided in clause (i) above)
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any
other instrument or document furnished pursuant thereto or with respect to
the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Company, any guarantor or any other person or the performance or observance
by the Company, any guarantor or any other party of any of its obligations
under the Credit Agreement or any other instrument or document furnished
pursuant thereto.
3. (a) The Assignee (i) confirms and agrees that it
has received a copy of the Credit Agreement, any amendments or
C-1
<PAGE> 79
waivers thereto and any other documents furnished pursuant thereto, which in
each case have been requested by it, together with copies of any financial
statements requested by it, and that it has, independently and without
reliance on the Assignor, any Agent, the Administrative Agent or any other
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Acceptance and agrees that it shall have no recourse
against the Assignor with respect to any matters relating thereto; (ii)
agrees that it will, independently and without reliance upon the Assignor,
any Agent, any Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement and any other documents or instruments
furnished pursuant thereto; (iii) appoints and authorizes each of the Agents
and Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to Agents
or Administrative Agent, respectively, by the terms thereof, together
with such powers as are reasonably incidental thereto; (iv) confirms that
it is an Eligible Assignee; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; [and] (vi)
specifies as its Domestic Lending Office and Eurodollar Lending Office and
address for notices the respective offices previously notified to the
Administrative Agent pursuant to the Credit Agreement[; and (vii) attaches the
forms prescribed by the Internal Revenue Service of the United States
certifying as to the Assignee's status for the purposes of determining
exemption from United States withholding taxes with respect to all payments
to be made to the Assignee under the Credit Agreement or such other
documents as are necessary to indicate that all such payments are
subject to withholding taxes at a rate reduced by any applicable tax treaty].
(b) If the Assignee is a person subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the
Assignee represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance, and the purchase of the
interest being assigned to it hereby, will not involve any prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), other than a
prohibited transaction which is covered by a currently effective class
exemption granted by the U.S. Department of Labor pursuant to Section 408(a)
of ERISA and Section 4975(C)(2) of the Code.
4. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, the Assignor will deliver this
Assignment and Acceptance to the Administrative Agent for acceptance and
recording. The effective date for this Assignment and Acceptance shall be the
date of acceptance
C-2
<PAGE> 80
hereof by the Administrative Agent unless otherwise specified on Schedule 1
hereto (the "Assignment Effective Date").
5. Upon such acceptance and recording by the Administrative Agent,
as of the Assignment Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in the Credit Agreement and in
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in the Credit
Agreement and in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement and the other
instruments and documents furnished pursuant thereto. The Assignee hereby
acknowledges that the other parties to the Credit Agreement are intended
third-party beneficiaries of this Assignment and Acceptance insofar as,
after giving effect to this Assignment and Acceptance, the Assignee shall
have the obligations of a Lender thereunder.
6. Upon such acceptance and recording by the
Administrative Agent, from and after the Assignment Effective Date, the
Administrative Agent shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to
the Assignment Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such
execution being made on Schedule 1 hereto.
C-3
<PAGE> 81
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Dated as of ____________, 19___
Section 1
- - ---------
Percentage interest ______%
(as percentage of total
Credit Agreement Advances/
Commitments of all Lenders)
Section 2
- - ---------
Assignee's Commitment $_______________
Aggregate Outstanding Principal
Amount of Advances Owing to Assignee $_______________
Section 3
- - ---------
Assignment Effective Date: __________, 19___
[_________________],
as Assignor
By______________________
Title:________________
[_________________],
as Assignee
By______________________
Title:________________
Accepted this _______ day of
_____________, 19___
CITIBANK, N.A., as Administrative Agent
By___________________________
Title:_____________________
C-4
<PAGE> 82
EXHIBIT D
[FORM OF OPINION OF COMPANY'S COUNSEL]
[Letterhead of W.J. Hallinan, Esq.]
[Date]
Citibank, N.A., as
Administrative Agent
399 Park Avenue
New York, New York 10022
and
The Lenders
and Agents Listed
on Schedule I Hereto
Re: Greyhound Financial Corporation Credit Agreement
(Short Term Facility) dated as of May 16, 1994
Dear Ladies and Gentlemen:
As Vice President-General Counsel and Secretary of
Greyhound Financial Corporation, a Delaware corporation (the "Company"), I
am familiar with the Credit Agreement (Short Term Facility) dated as of May
16, 1994, among the Company, the Lenders named therein, the Agents named
therein, Bank of America National Trust and Savings Association, Bank of
Montreal, Chemical Bank and Citibank, N.A. and National Westminster Bank
USA, as Agents, and Citibank, N.A., as Administrative Agent (the "Credit
Agreement"). All terms used herein that are defined in the Credit
Agreement have the respective meanings specified in the Credit Agreement.
This letter is being delivered to you in satisfaction of the condition
set forth in Section 5.01(b) of the Credit Agreement and with the
understanding that you are entering into the Credit Agreement in reliance on
the opinions expressed herein.
In this connection, I have examined such certificates of
public officials, certificates of officers of the Company and the
Subsidiaries and copies certified to my satisfaction of corporate documents
and records of the Company and the Subsidiaries and of other papers, and have
made such other investigations, as I have deemed relevant and necessary as a
basis for my opinion hereinafter set forth. I have relied upon such
certificates of public officials and of officers of the Company and the
Subsidiaries with respect to the accuracy of material factual matters
contained therein which were not independently established.
D-1
<PAGE> 83
Based on the foregoing and subject to the qualifications,
limitations and assumptions contained herein, it is my opinion that:
1. The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware
and has qualified to do business as a foreign corporation and is in good
standing under the laws of the State of Arizona. The Company has all
requisite corporate power and corporate authority to own and operate its
properties and to carry on its business as now conducted and as proposed to
be conducted and to execute, deliver and perform the Credit Agreement.
2. The execution, delivery and performance of the
Credit Agreement have been duly authorized by all requisite corporate
action on the part of the Company. The Credit Agreement has been duly
executed and delivered by authorized officers of the Company and constitutes
the legally valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by (a) bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and (b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3. The Company is not an "investment company" or a company
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
4. The extension, arranging and obtaining of the credit
represented by the Credit Agreement do not result in any violation of
Regulation G, T, U and X of the Board of Governors of the Federal Reserve
System.
5. None of the execution and delivery of the Credit
Agreement, the making of any Advances thereunder or compliance with the
provisions thereof (A) conflicts with, or results in a breach or violation of
the certificate of incorporation or bylaws of the Company, (B) results in a
material breach or violation of, or constitutes a material default under, the
terms, conditions or provisions of (i) any material loan agreement or other
contract to which the Company or any Subsidiary is a party, (ii) any order,
writ judgment or decree that the Company or any Subsidiary is a party to
or by which any of the Company's or any Subsidiary's assets or properties
are bound and which is material to the Company and its Subsidiaries, taken as
a whole, or (iii) any present United States federal, Delaware corporate or
Arizona statute, rule or regulation, known to me to be applicable to or
binding on the Company and of a type commonly applicable to transactions of
the type contemplated by the Credit Agreement or (C) results in the creation
of any Lien upon any of the assets or properties of the Company or any
Subsidiary under any agreement or contract referred to in clause (B)(i) above.
D-2
<PAGE> 84
6. No governmental consents, approvals, registrations,
declarations or filings are required to be obtained or made by the Company in
connection with the execution and delivery of the Credit Agreement.
7. To the best of my knowledge, there are no actions, suits
or proceedings (administrative, judicial or otherwise) pending or threatened
against the Company or any Subsidiary which have a significant likelihood of
materially and adversely affecting (a) the business, operations,
prospects or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, or (b) the ability of the Company to perform
its obligations under the Credit Agreement, except as disclosed on Schedule II
hereto.
I am admitted to the bar in the State of Arizona, and I
express no opinion as to the laws of any other jurisdiction except the
General Corporation Law of the State of Delaware and the federal laws of
the United States of America. While the Credit Agreement is stated to be
governed by the laws of the State of New York, I have, with your
permission, expressed the opinions herein as if the Credit Agreement were
governed by the laws of the State of Arizona. With respect to such laws, my
opinions are what the law is at the date hereof, and I assume no
obligation to supplement this opinion due to any change in the law,
legislative action, judicial decision or otherwise.
To the extent that the obligations of the Company may be
dependent upon such matters, I have assumed for the purposes of this opinion
that each Person who is a party to the Credit Agreement (other than the
Company) is duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation; that the Credit Agreement has been
duly authorized, executed and delivered by each such Person (other than the
Company) and constitutes the legally valid and binding obligation of each
such Person (other than the Company), enforceable in accordance with its
terms; the genuineness of all signatures and the legal capacity of each
natural person executing the Credit Agreement (other than any such person
executing the Credit Agreement on behalf of the Company); the
authenticity and completeness of documents submitted as originals, and the
conformity of documents submitted as copies; that the Credit Agreement
accurately describes and contains the agreement and mutual understandings of
the parties, and that there are no verbal or written statements or agreements
that modify, amend or vary, or purport to modify, amend or vary, any of the
terms of the Credit Agreement; that you will receive no interest, charges,
fees or other benefits or compensation in the nature of interest in
connection with the Credit Agreement or its related transactions other than
those that the Company has agreed in writing to pay; that all parties to the
Credit Agreement will enforce their respective rights thereunder in
circumstances and in a manner which are commercially reasonable and in
accordance with applicable law; and that
D-3
<PAGE> 85
each Person who is a party to the Credit Agreement (other than the Company)
has the requisite corporate or other organizational power and authority to
perform is obligations under the Credit Agreement.
This opinion is being delivered upon the express instructions of
the Company to Citibank, N.A., as Administrative Agent, Citibank, N.A., Bank
of America National Trust and Savings Association, Bank of Montreal,
National Westminster Bank USA and Chemical Bank, as Agents and the
Lenders under the Credit Agreement and is solely for their benefit in
connection with the transactions contemplated thereby. This opinion may not
be relied upon by, filed with, disclosed to, quoted in any manner to,
referenced in any written report, financial statement or other document
to, or delivered to any other person, firm or corporation for any
purpose, without my prior written consent, except that the Administrative
Agent, each Agent and each Lender may use this opinion (i) in connection
with a review of the Credit agreement and transactions related thereto by a
regulatory agency having supervisory authority over any such Person for the
purpose of confirming the existence of this opinion, (ii) in connection with
the assertion of a defense as to which this opinion is relevant and necessary,
(iii) in response to a court order or (iv) in connection with any assignment
of any Advances or Commitment in accordance with the provisions of the
Credit Agreement, and any permitted assignee may rely on this opinion as if
it were addressed and had been delivered to such assignee on the date
hereof.
Very truly yours,
D-4
<PAGE> 86
SCHEDULE I
Lenders and Agents
[conform to signature pages of Credit Agreement]
D-5
<PAGE> 87
SCHEDULE II
Material Litigation
None.
D-6
<PAGE> 88
EXHIBIT E
[LETTERHEAD OF GREYHOUND FINANCIAL CORPORATION]
REQUEST FOR EXTENSION OF TERMINATION DATE
_____________________, 19___
LENDERS PARTY TO THE CREDIT AGREEMENT
REFERRED TO BELOW
Ladies and Gentlemen
In accordance with Section 2.15 of the Credit Agreement
(Short Term Facility), dated as of May 16, 1994 (the "Credit Agreement";
terms defined therein being used herein as therein defined), among the
undersigned, the Lenders parties thereto, the Agents parties thereto, Bank
of America National Trust and Savings Association, Bank of Montreal,
Chemical Bank, Citibank, N.A. and National Westminster Bank USA, as Agents,
and Citibank, N.A., as Administrative Agent, the undersigned hereby
requests that you consent to extension of the Termination Date to [INSERT
DATE 364 DAYS AFTER CURRENT TERMINATION DATE], or, if such date is not a
Business Day, the next succeeding Business Day.
Please indicate your consent to such extension of the
Termination Date by signing the attached copy of this letter in the space
provided below and returning same to the Administrative Agent, if possible by
_____________, 19__ but, in any event, not later than ____________, 19___.
Very truly yours,
GREYHOUND FINANCIAL
CORPORATION
By __________________________
Title:
E-1
<PAGE> 89
The undersigned Lender, party to the Credit Agreement,
consents to the extension of the Termination Date as requested above.
[NAME OF LENDER]
____________________________
By ____________________________
Title:
E-2
<PAGE> 90
EXHIBIT F
[FORM OF PROMISSORY NOTE]
GREYHOUND FINANCIAL CORPORATION
PROMISSORY NOTE
Phoenix, Arizona
________ __, 19__
For value received, Greyhound Financial Corporation, a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
___________________________ (the "Lender"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Advance made by the
Lender to the Borrower pursuant to the Credit Agreement referred to below on
the last day of the Interest Period relating to such Advance. The Borrower
promises to pay interest on the unpaid principal amount of each such Advance
on the dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in United States
dollars in same day funds at the Administrative Agent's office, as specified
in the Credit Agreement.
All Advances made by the Lender, the respective maturities
thereof and all repayments of principal thereof shall be recorded by the
Lender and, prior to any transfer hereof, appropriate notations to evidence
the foregoing information with respect to each such Advance then outstanding
shall be endorsed by the Lender on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof, or in the
records of such Lender in accordance with its usual practice; provided that
the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This promissory note is one of the promissory notes referred to
in Section 2.17 of the Credit Agreement (Short Term Facility), dated as of May
16, 1994, among the Borrower, the Lenders named therein, the Agents named
therein, Bank of America National Trust and Savings Association, Bank of
Montreal, Chemical Bank, Citibank, N.A. and National Westminster Bank USA,
as Agents, and Citibank, N.A., as Administrative Agent (said Credit
Agreement, as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is hereby made to the Credit
Agreement for provisions relating to this promissory note, including,
without limitation, the mandatory and optional prepayment hereof and the
acceleration of the maturity hereof.
GREYHOUND FINANCIAL CORPORATION
By____________________________
Title:
F-1
<PAGE> 91
Schedule to Promissory Note
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of
Amount of Type of Principal Maturity Notation
Date Advance Advance Repaid Date By
<S> <C> <C> <C> <C> <C>
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
</TABLE>
F-2
<PAGE> 92
================================================================================
================================================================================
GREYHOUND FINANCIAL CORPORATION
CREDIT AGREEMENT
(SHORT TERM FACILITY)
DATED AS OF MAY 16, 1994
================================================================================
================================================================================
Bank of America National Trust and Savings Association,
Bank of Montreal, Chemical Bank, Citibank, N.A.
and National Westminster Bank USA, as Agents
Citibank, N.A., as Administrative Agent
<PAGE> 93
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
___________
ARTICLE II
Amount and Terms of the Credit . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
____________
SECTION 2.02. Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . 13
___________________
SECTION 2.03. Prepayments of Advances . . . . . . . . . . . . . . . . . . . . . . . 15
_______________________
SECTION 2.04. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
________
SECTION 2.05. Additional Interest on Eurodollar Advances . . . . . . . . . . . . . . 18
__________________________________________
SECTION 2.06. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . 19
___________________________
SECTION 2.07. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
_________
SECTION 2.08. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
_______________
SECTION 2.09. Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
____________
SECTION 2.10. Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . 21
____________________________
SECTION 2.11. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . 22
_________________________
SECTION 2.12. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
____________
SECTION 2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
_____
SECTION 2.14. Sharing of Payments, Etc . . . . . . . . . . . . . . . . . . . . . . . 25
________________________
SECTION 2.15. Extension of Termination Date . . . . . . . . . . . . . . . . . . . . 25
_____________________________
SECTION 2.16. Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
_________
SECTION 2.17. Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
________________
ARTICLE III
Representations and Warranties . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.01. Representations and Warranties of the Company . . . . . . . . . . . . 28
_____________________________________________
ARTICLE IV
Covenants . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . 31
_____________________
SECTION 4.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 34
__________________
ARTICLE V
Conditions of Lending . . . . . . . . . . . . . . . . . . . 39
SECTION 5.01. Conditions Precedent to Effectiveness . . . . . . . . . . . . . . . . 39
_____________________________________
SECTION 5.02. Conditions Precedent to Each Advance . . . . . . . . . . . . . . . . . 41
____________________________________
SECTION 5.03. Conditions Precedent to Certain Borrowings . . . . . . . . . . . . . . 41
__________________________________________
ARTICLE VI
Events of Default . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 42
_________________
ARTICLE VII
The Administrative Agent and Agents . . . . . . . . . . . . . . . . 45
SECTION 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . 45
________________________
SECTION 7.02. Agents' Reliance, Etc . . . . . . . . . . . . . . . . . . . . . . . . 45
_____________________
SECTION 7.03. Citibank, BofA, Chemical, BofM,
_______________________________
NatWest, any Agent and Their Affiliates . . . . . . . . . . . . . . . . . . . . 46
_______________________________________
</TABLE>
i
<PAGE> 94
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 7.04. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . 46
______________________
SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
_______________
SECTION 7.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
_______________
ARTICLE VIII
Miscellaneous . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.01. No Waiver; Amendments . . . . . . . . . . . . . . . . . . . . . . . . 47
_____________________
SECTION 8.02. New Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
___________
SECTION 8.03. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
____________
SECTION 8.05. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . 52
_________________________
SECTION 8.06. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
________________
SECTION 8.07. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
________________
SECTION 8.08. Effectiveness of Action by, or Consent of, Lenders . . . . . . . . . . 53
__________________________________________________
SECTION 8.09. Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 54
___________________
SECTION 8.10. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
______________
SECTION 8.11. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . 54
__________________________
SECTION 8.12. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . 54
____________________
SECTION 8.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
_____________
SECTION 8.14. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . 54
_________________________
SECTION 8.15. Waiver of Trial by Jury . . . . . . . . . . . . . . . . . . . . . . . 55
_______________________
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Amount and Terms of the Credit . . . . . . . . . . . . . . . . . 12
SECTION 2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.02. Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.03. Prepayments of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.04. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.05. Additional Interest on Eurodollar Advances . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.06. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.07. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.08. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.09. Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.10. Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.11. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.12. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.14. Sharing of Payments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.15. Extension of Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.16. Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.17. Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE III
Representations and Warranties . . . . . . . . . . . . . . . . . 28
SECTION 3.01. Representations and Warranties of the Company . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IV
Covenants . . . . . . . . . . . . . . . . . . . . . . 31
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SECTION 4.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V
Conditions of Lending . . . . . . . . . . . . . . . . . . . 39
SECTION 5.01. Conditions Precedent to Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.02. Conditions Precedent to Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.03. Conditions Precedent to Certain Borrowings . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VI
Events of Default . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VII
The Administrative Agent and Agents . . . . . . . . . . . . . . . . 45
SECTION 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.02. Agents' Reliance, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.03. Citibank, BofA , Chemical, BofM, NatWest, any Agent and Their Affiliates . . . . . . . . . 46
SECTION 7.04. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VIII
Miscellaneous . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.01. No Waiver; Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.02. New Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.03. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.05. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.06. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.07. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.08. Effectiveness of Action by, or Consent of, Lenders . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.09. Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.10. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.11. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.12. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.14. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.15. Waiver of Trial by Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
EXHIBIT A Form of Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Section 4.01(a) Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Assignment and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D Form of Opinion of W. J. Hallinan, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E Form of Extension Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F Form of Promissory Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
SCHEDULE 1 Lending Offices
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