EXHIBIT 10.2
FOURTH AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT (the "Amendment") dated as of June 29, 2000 by and among NEW
CENTURY MORTGAGE CORPORATION, a California corporation ("NCMC" or
"Borrower"), NC CAPITAL CORPORATION, a California corporation ("NCCC" or
"Borrower" and together with NCMC, the "Borrowers"), the lenders party to the
Credit Agreement referred to below (collectively, the "Lenders" and
individually, a "Lender") and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, in its capacity as agent for the Lenders (in such
capacity, together with any successor agents appointed thereunder, the
"Agent").
WITNESSETH THAT:
WHEREAS, NCMC, the Lenders and the Agent are parties to a Fourth
Amended and Restated Credit Agreement dated as of May 26, 1999, a First
Amendment to Fourth Amended and Restated Credit Agreement, a Second Amendment
to Fourth Amended and Restated Credit Agreement and a Third Amendment to
Fourth Amended and Restated Credit Agreement (as amended, the "Credit
Agreement"), pursuant to which the Lenders provide NCMC with a revolving
mortgage warehousing credit facility; and
WHEREAS, the Borrowers and the Lenders have agreed to amend the
Credit Agreement upon the terms and conditions herein set forth;
NOW, THEREFORE, for value received, the receipt and sufficiency of
which are hereby acknowledged, the Borrowers and the Lenders agree as follows:
1. CERTAIN DEFINED TERMS. Each capitalized term used herein without
being defined herein that is defined in the Credit Agreement shall have the
meaning given to it therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended as follows:
(a) Except as otherwise provided in this Amendment, all
references in the Agreement to "the Company" shall mean and refer to
"the Borrowers", "any Borrower", "each Borrower", or "either Borrower",
as the context may require; provided, however, all references to "the
Company" in the definitions of "Borrowing Date," "Change of Control,"
"Collateral Account," "Eligible Servicing Portfolio," "Eligible
Servicing Rights," "Residual Finance Subsidiaries," "Salomon REO
Agreement," "Servicing Contract," "Servicing Rights," "Total
Liabilities" and "Underwriting Guidelines" and Sections 2.01(a), (b),
(c), (d), (f)(iv), (g) and (i), 2.02(c), 3.01, 3.02, 3.03, 3.05, 3.06,
4.01(a), 4.01(b), 4.01(c), 4.02, 4.03, 4.05, 4.07, 4.08(b), 4.08(e),
4.08(f), 4.08(j), 4.10(d), 4.10(h), 4.10(j), 4.10(l), 4.10(m), 4.11(c)
(as
amended by the First Amendment to Credit Agreement), 4.11(d), 4.12(d),
4.14, 4.16, 4.18(d), 4.18(e), 4.21, 6.01(b), 6.01(d), 6.01(e), 6.01(f),
6.01(g), 6.01(h), 6.01(i) of the Credit Agreement shall mean and
refer to NCMC. Without limitation, the generality of the foregoing,
NCCC hereby agrees that it will, as of the Effective Date of this
Agreement, become jointly and severally liable for all Advances and
other Obligations outstanding.
(b) Except as otherwise provided in this Amendment, all
references in the Agreement to "NCCC Guaranty" and surrounding language
and punctuation, as the context may require, shall be deleted from the
Credit Agreement.
(c) References to "NCCC" contained in Section 4.09 and
surrounding language and punctuation, as the context may require, shall
be deleted from the Credit Agreement.
(d) Section 1.01 of the Credit Agreement is hereby amended to
add the following definitions thereto in the appropriate alphabetical
order:
"BORROWERS": NCMC and NCCC.
"GREENWICH": Greenwich Capital Financial Products,
Inc.
"NCMC": New Century Mortgage Corporation, a
California corporation.
"NCRC": NC Residual II Corporation ("NCRC").
"XXXXX XXXXXX": Xxxxx Xxxxxx Real Estate Securities
Inc.
"RESIDUAL FINANCING AGREEMENTS": Collectively, (i)
the Global Master Repurchase Agreement dated as of December
11, 1998 by and between Xxxxxxx Xxxxx Barney, Inc., as Agent
for Salomon Brothers International, Inc., and NCCC, (ii) the
Global Master Repurchase Agreement dated as of December 11,
1998 by and between Xxxxxxx Xxxxx Xxxxxx, Inc., as Agent for
Salomon Brothers International, Inc., and NCRC, (iii) the
Master Loan and Security Agreement dated as of July 20, 1999
by and among NCMC, NCCC and Xxxxx Xxxxxx Real Estate
Securities Inc., (iv) the Residual Financing Facility
Agreement dated as of June 23, 1999 by and between NCCC and
Greenwich Capital Financial Products, Inc., and (v) any
similar agreements pursuant to which "Residual Financing" (as
defined in the Residual Security Agreement) is hereafter
provided to any Borrower or any Subsidiary of any Borrower.
"RESIDUAL SECURITY AGREEMENT": That certain Amended
and Restated Security Agreement dated as of April 30, 2000 by
and between NCCC, NCRC, and U.S. Bank National Association, as
collateral agent for (A) the Lenders (as
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defined therein), (B) U.S. Bancorp Leasing & Financial,
successor in interest to FBS Business Finance Corp. (the
"Lessor"), as lessor under any present or future leases of
equipment by the Lessor, as the lessor, to NCMC or NCFC, as
lessee, or as lender under any present or future loan by the
Lessor, as lender, to NCMC or NCFC, as borrower, secured by
equipment, and (C) the Subordinated Noteholder (as defined
therein).
(e) The definition of "Termination Date" in Section 1.01 of
the Credit Agreement is hereby amended by deleting "June 30, 2000"
therein and inserting therefor "May 23, 2001".
(f) The definitions of "Company Securitization Transaction,"
"Pledge and Security Agreement," "Servicing Contract," "Servicing
Rights," "Servicing Security Agreement" and "Solomon REO Agreement" in
Section 1.01 of the Agreement are amended in their entirety to read as
follows:
"COMPANY SECURITIZATION TRANSACTION": an issuance of
Mortgage-backed Securities by either Borrower, or by SBRC,
Xxxxx Xxxxxx, or Greenwich or an Affiliate of any of them on
behalf of either Borrower, through a trust or other entity
created by either Borrower, SBRC, Xxxxx Xxxxxx or Greenwich,
which Mortgage-backed Securities are either secured (in whole
or in part) by Mortgage Loans originated or acquired by such
Borrower or evidence the entire beneficial ownership interest
therein, and in connection with which one or more Junior
Securitization Interests are issued to such Borrower or an
Affiliate of such Borrower.
"PLEDGE AND SECURITY AGREEMENT": the Amended and
Restated Pledge and Security Agreement dated as of April 30,
2000, as the same may have been and may hereafter be amended,
supplemented, reaffirmed or restated from time to time.
"SERVICING CONTRACT": a contract or agreement
purchased by NCMC or entered into by NCMC for its own account
(and not as nominee or subservicer), whether now existing or
hereafter purchased or entered into, pursuant to which NCMC
services Mortgage Loans or Mortgage Loan pools for Persons
other than itself or the other Borrower.
"SERVICING RIGHTS": any and all rights of NCMC held
for its own account (and not as nominee or subservicer),
whether pursuant to a Servicing Contract or otherwise, to
service Mortgage Loans or Mortgage Loan pools for Persons
other than itself or the other Borrower, including, without
limitation, (i) all rights to collect payments due and enforce
the rights of the mortgagee under any Mortgage Loans, (ii) all
rights to receive compensation and termination fees under any
Servicing Contract, and (iii) all rights to
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receive the proceeds from any sale or other transfer of NCMC's
interest in the Servicing Contract.
"SERVICING SECURITY AGREEMENT": the Amended and
Restated Servicing Security Agreement dated as of April 30,
2000, as the same may have been and may hereafter be amended,
supplemented, reaffirmed or restated from time to time.
"SALOMON REO AGREEMENT": a Master Loan and Security
Agreement dated as of April 1, 2000 by and between the
Borrowers and SBRC, as the same may be amended, supplemented,
restated or otherwise modified in accordance with this
Agreement and in effect from time to time.
(g) Sections 4.01(f) and (h) of the Agreement are hereby
amended in their entirety to read as follows:
(f) within ten Business Days following each Company
Securitization Transaction or other issuance of
Mortgage-backed Securities by NCFC or any Subsidiary, a copy
of the due diligence report prepared in connection with such
issuance by KPMG Peat Marwick or other independent certified
public accountants selected by NCFC or such Subsidiary and
reasonably satisfactory to the Agent;
(h) as soon as available and in any event within 30
days after the end of each fiscal quarter of the Borrowers,
management reports containing such information with respect to
each Junior Securitization Interest owned by either Borrower
or an Affiliate of either Borrower, and the related Company
Securitization Transaction, as the Agent may request,
including, without limitation, information concerning reserve
account balances, cash receipts, prepayment and credit loss
experience, REO inventory status and loss projections and
relevant gain on sale assumptions;
(h) Section 4.11(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
(b) Guarantees by NCFC of Indebtedness of the
Borrowers secured by liens described in Section 4.09(e), in an
amount not to exceed $10,000,000;
(i) Section 4.13 of the Credit Agreement is hereby
amended in its entirety to read as follows:
4.13 RESTRICTED PAYMENTS. NCMC and NCFC will not make
any Restricted Payments, other than (a) dividends paid by NCFC
on its Series 1998A Convertible Preferred Stock and it Series
1999A Convertible Preferred Stock in an amount not to
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exceed $3,000,000 per annum, and (b) dividends paid by NCMC
to NCFC to enable NCFC to pay such dividends in an amount not
to exceed $3,000,000 per annum.
(j) Section 4.14 of the Credit Agreement is hereby
amended in its entirety to read as follows:
4.14 TANGIBLE NET WORTH. NCMC will at all times
during each fiscal year maintain Tangible Net Worth of not
less than (a) the greater of (i) $85,000,000 or (ii)
eighty-five percent (85%) of the Tangible Net Worth at the end
of its most recently completed fiscal year (or, in the case of
the Tangible Net Worth at the end of any fiscal year, its
prior fiscal year) PLUS (b) ninety percent (90%) of capital
contributions made during such fiscal year PLUS (c) fifty
percent (50%) of positive year-to-date net income. NCFC will
at all times during each fiscal year maintain Tangible Net
Worth of not less than (a) the greater of (i) $130,000,000 or
(ii) eighty-five percent (85%) of the Tangible Net Worth at
the end of its most recently completed fiscal year (or, in the
case of Tangible Net Worth at the end of any fiscal year, its
prior fiscal year) PLUS (b) ninety percent (90%) of capital
contributions made during such fiscal year PLUS (c) fifty
percent (50%) of positive year-to-date net income. NCCC will
at all times during each fiscal year maintain Tangible Net
Worth of not less than $1.00.
(k) Section 4.15 of the Credit Agreement is hereby
amended in its entirety to read as follows:
4.15 MINIMUM LIQUIDITY. NCMC will not permit the sum
of (a) Cash PLUS (b) the lesser of the Borrowing Base and the
sum of the Commitment Amounts MINUS, in either case, the
outstanding principal balance of all Loans, (i) as of the end
of each month and (ii) both before or after giving effect to
any mandatory prepayment of principal (or the equivalent)
under any Residual Financing Agreement, to be less than
$10,000,000.
(l) Section 4.17 of the Credit Agreement is hereby
amended in its entirety to read as follows:
4.17 SUBSIDIARIES. (a) The Borrowers will not create
or acquire any Subsidiaries other than (i) the Subsidiaries
listed on Schedule 3.01 hereto, (ii) Residual Finance
Subsidiaries, and (iii) Subsidiaries acquired as a result of
Investments permitted pursuant to Section 4.10(j), and (b)
NCFC will not create or acquire any Subsidiaries
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other than (i) NCMC, (ii) the Subsidiaries listed on
Schedule 3.01 hereto, (iii) Residual Finance Subsidiaries,
and (iv) Subsidiaries engaged solely in any business involving
the origination, acquisition, servicing and sale of consumer
obligations.
(m) Sections 6.01(d), (j) and (k) of the Credit
Agreement are hereby amended in their entirety to read as follows:
(d) NCMC, NCFC, NCCC or NCRC shall fail to comply
with any other agreement, covenant, condition, provision or
term contained in this Agreement or any other Loan Document
then in effect (other than those hereinabove set forth in this
Section 6.01) and such failure to comply is not remedied
within 30 calendar days after the earliest of (i) the date the
Agent has given the Borrowers written notice of the occurrence
thereof, (ii) the date the Borrowers give notice of such
failure to the Agent or (iii) the date the Borrowers should
have given such notice of such failure to the Agent pursuant
to Section 4.01(e)(ii); or
(j) Any execution or attachment shall be issued
whereby any substantial part of the property of NCMC, NCFC,
NCCC or any of their Subsidiaries shall be taken or attempted
to be taken and the same shall not have been vacated or stayed
within 30 days after the issuance thereof; or
(k) The Pledge and Security Agreement, the Servicing
Security Agreement, the Residual Security Agreement or the
Guaranty shall, at any time, cease to be in full force and
effect or shall be judicially declared null and void, or the
validity or enforceability thereof shall be contested by NCMC,
NCFC, NCCC or any of their Subsidiaries or the Agent for the
benefit of the Lenders shall cease to have a valid and
perfected security interest having the priority contemplated
under the Pledge and Security Agreement, the Residual Security
Agreement, or the Servicing Security Agreement in any part of
the Collateral described therein, other than by action or
inaction of the Agent, unless the Borrowers shall, within two
Business Days after the earlier of the date they receives
notice of any such cessation under the Pledge and Security
Agreement from the Agent or the date an officer of the
Borrowers has knowledge thereof, repay the outstanding Loans
in an amount sufficient to reduce the aggregate outstanding
principal balance of the Loans to the aggregate Warehousing
Collateral Value of the Collateral; or
(n) The Credit Agreement is hereby amended by adding
a new Section 8.17 thereto to read as follows:
8.17 JOINT AND SEVERAL OBLIGATIONS. Each Borrower
shall be jointly and severally liable for the
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Obligations arising in connection with Loans made to it and
the Obligations arising in connection with Loans made to the
other Borrower; PROVIDED, HOWEVER, that if it is at any time
determined that either Borrower is liable as a guarantor (and
not as a co-obligor or co-borrower) with respect to such
Obligations arising in connection with Loans made to the other
Borrower (the "Guaranteed Obligations"), each Borrower hereby
agrees to the terms set forth on Exhibit P hereto with respect
to the Guaranteed Obligations.
(p) The Credit Agreement is hereby amended by adding a new
Exhibit L thereto to read as set forth on Exhibit L hereto.
(q) Schedule 1.01(b) to the Credit Agreement is hereby
amended in its entirety to read as set forth on Schedule 1.01(b)
hereto.
3. CONSENT. Pursuant to Section 5(g) of the Residual Security
Agreement, NCCC and NCRC agreed to cause "GCFPI" and "PWRESI" (as defined
therein) to enter into intercreditor and agency agreements, in form and
substance reasonably satisfactory to the Collateral Agent, on or before May 31,
2000, concerning the Collateral Agent's security interest in certain Junior
Securitization Interests. The Borrowers have requested that the Lenders (a)
waive this requirement with respect to the Junior Securitization Interests
described on Schedule 3 to the Residual Security Agreement (but not with respect
to any future Junior Securitization Interests that may be financed by PWRESI),
and (b) extend the deadline for the delivery of such intercreditor and agency
agreement by GCFPI until June 30, 2000. Upon the date on which this Amendment
becomes effective, the Lenders hereby agree to such waiver and extension.
Nothing herein shall be deemed a waiver by the Lenders of any other term,
condition, representation or covenant applicable to the Borrowers under the Loan
Documents (including, but not limited to, the foregoing requirement of Section
5(g) of the Residual Security Agreement with respect to GCFPUI, as so extended,
or any requirement of Section 5(l) of the Residual Security Agreement, whether
PWRESI, GCFPI or any other Person provides Residual Financing) or any of the
other agreements, documents, or instruments executed and delivered in connection
therewith. The consent set forth herein shall not constitute a course of action
with respect thereto upon which the Borrowers may rely in the future, and the
Borrowers expressly waive any such claim.
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall
become effective when the Agent shall have received at least thirteen (13)
counterparts of this Amendment, duly executed by the Borrowers and the Required
Lenders, provided the following conditions are satisfied:
(a) Before and after giving effect to this Amendment, the
representations and warranties of the Borrowers in Section 3 of the
Credit Agreement, Section 5 of the Pledge and Security Agreement and
Section 4 of the Servicing Security Agreement, of NCCC and NC Residual
II Corporation in Section 4 of the Residual Security Agreement, and of
NCFC in Section 15 of the Guaranty shall be true and correct as though
made on the date hereof, except for changes that are permitted by the
terms of the Credit Agreement.
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(b) After giving effect to this Amendment, no Event of Default
and no Unmatured Event of Default shall have occurred and be
continuing.
(c) No material adverse change in the business, assets,
financial condition or prospects of NCMC or NCFC shall have occurred
since December 31, 1999.
(d) The Agent shall have received the following, each duly
executed or certified, as the case may be, and dated as of the date of
delivery thereof:
(i) copy of resolutions of the Board of Directors of
each Borrower, certified by its respective Secretary
or Assistant Secretary, authorizing or ratifying the
execution, delivery and performance of this Amendment
and the other agreements, documents and instruments
related hereto;
(ii) a certified copy of any amendment or restatement
of the Articles of Incorporation or the By-laws of
each Borrower made or entered following the date of
the most recent certified copies thereof furnished to
the Lenders;
(iii) certified copies of all documents evidencing
any necessary corporate action, consent or
governmental or regulatory approval (if any) with
respect to this Amendment;
(iv) a Reaffirmation of NCFC Guaranty duly executed
by NCFC; and
(v) such other documents, instruments, opinions and
approvals as the Agent may reasonably request.
(e) The Agent shall have received the amendment fee required
by Section 8.16 of the Credit Agreement.
(f) The Agent shall have received an up-front fee (each an
"Up-front Fee") for the benefit of each Lender, based on a percentage
of such Lender's initial commitment amount as specified below.
Initial Commitment Amount Up-Front Fee
------------------------- ------------
Equal to or greater than 0.09%
$60,000,000
Less than $60,000,000 and 0.075%
equal to or greater than $45,000,000
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Less that $45,000,000 and 0.06%
equal to or greater than $30,000,000
Less than $30,000,000 0.05%
5. ACKNOWLEDGMENTS. Each Borrower and each Lender acknowledge that, as
amended hereby, the Credit Agreement remains in full force and effect with
respect to the Borrowers and the Lenders, and that each reference to the Credit
Agreement in the Loan Documents shall refer to the Credit Agreement as amended
hereby. Each Borrower confirms and acknowledges that it will continue to comply
with the covenants set out in the Credit Agreement and the other Loan Documents,
as amended hereby, and that its representations and warranties set out in the
Credit Agreement and the other Loan Documents, as amended hereby, are true and
correct as of the date of this Amendment. Each Borrower represents and warrants
that (i) the execution, delivery and performance of this Amendment is within its
corporate powers and has been duly authorized by all necessary corporate action;
(ii) this Amendment has been duly executed and delivered by each Borrower and
constitutes the legal, valid and binding obligation of such Borrower,
enforceable against such Borrower in accordance with its terms (subject to
limitations as to enforceability which might result from bankruptcy, insolvency,
or other similar laws affecting creditors' rights generally and general
principles of equity) and (iii) no Events of Default or Unmatured Events of
Default exist.
6. GENERAL.
(a) The Borrowers agree to reimburse the Agent upon demand for
all reasonable expenses (including reasonable attorneys fees and legal
expenses) incurred by the Agent in the preparation, negotiation and
execution of this Amendment and any other document required to be
furnished herewith, and to pay and save the Lenders harmless from all
liability for any stamp or other taxes which may be payable with
respect to the execution or delivery of this Amendment, which
obligations of the Borrower shall survive any termination of the Credit
Agreement.
(b) This Amendment may be executed in as many counterparts as
may be deemed necessary or convenient, and by the different parties
hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but
one and the same instrument.
(c) Any provision of this Amendment 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 portions hereof or affecting the
validity or enforceability of such provisions in any other
jurisdiction.
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(d) This Amendment shall be governed by, and construed in
accordance with, the internal law, and not the law of conflicts, of the
State of Minnesota, but giving effect to federal laws applicable to
national banks.
(e) This Amendment shall be binding upon the Borrowers, the
Lenders, the Agent and their respective successors and assigns, and
shall inure to the benefit of the Borrowers, the Lenders, the Agent and
the successors and assigns of the Lenders and the Agent.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first above written.
NEW CENTURY MORTGAGE
CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Its EVP/COO
---------------------------------
NC CAPITAL CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Its President
---------------------------------
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxxx
----------------------------------
Its Senior Vice President
---------------------------------
GUARANTY FEDERAL BANK, FSB
By /s/ W. Xxxxx Xxxxxxxx
----------------------------------
Its Vice President
---------------------------------
BANK UNITED
By /s/ Xxxxxxxx Xxxxxx
----------------------------------
Its VP-Mtg Broker Finance
---------------------------------
[Signature Page for Fourth Amendment to
Fourth Amended and Restated Credit Agreement]
RESIDENTIAL FUNDING CORPORATION
By /s/ Xxxx Xxxx
----------------------------------
Its Director
---------------------------------
CHASE BANK OF TEXAS, N.A.
By /s/ Xxxx Xxxxxxx
----------------------------------
Its Vice President
---------------------------------
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxxx Xxxxx
----------------------------------
Its Vice President
---------------------------------
[Signature Page for Fourth Amendment to
Fourth Amended and Restated Credit Agreement]
REAFFIRMATION OF NCFC GUARANTY
THE UNDERSIGNED, NEW CENTURY FINANCIAL CORPORATION, HEREBY (1)
AGREES THAT EACH REFERENCE TO THE CREDIT AGREEMENT, OR WORDS OF SIMILAR IMPORT,
CONTAINED IN THE FOURTH AMENDED AND RESTATED GUARANTY DATED AS OF MAY 28, 1998
(THE "GUARANTY") BY THE UNDERSIGNED TO THE LENDERS AND THE AGENT, SHALL BE A
REFERENCE TO THE CREDIT AGREEMENT AS AMENDED BY THE THIRD AND FOURTH AMENDMENTS
TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT ("FOURTH AMENDMENT"), (2)
CONFIRMS THAT THE GUARANTY SHALL REMAIN IN FULL FORCE AND EFFECT AFTER GIVING
EFFECT TO THE FOURTH AMENDMENT, AND (3) CONFIRMS AND ACKNOWLEDGES THAT ITS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 15 OF THE GUARANTY ARE TRUE
AND CORRECT AS OF THE DATE OF THE FOURTH AMENDMENT.
NEW CENTURY FINANCIAL
CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Its EVP
---------------------------------
SCHEDULE 1.01(b) TO
FOURTH AMENDMENT TO FOURTH
AMENDED AND RESTATED
CREDIT AGREEMENT
SCHEDULE 1.01(b)
LENDER COMMITMENTS
Lender Commitment
------ -----------
U.S. Bank National Association $75,000,000
Guaranty Federal Bank, F.S.B. $65,000,000
Residential Funding Corporation $50,000,000
Chase Bank of Texas, N.A. $30,000,000
Bank United $25,000,000
Union Bank of California, N.A. $20,000,000
EXHIBIT L TO
FOURTH AMENDMENT TO
FOURTH AMENDED AND
RESTATED CREDIT AGREEMENT
TERMS OF GUARANTEED OBLIGATIONS
Each Borrower hereby agrees to the following terms with respect to Loans
made by the Lenders to the other Borrower and interest thereon:
1. Each Borrower irrevocably, unconditionally and absolutely
guarantees to the Lenders the due and prompt payment, and not just the
collectibility, of the principal of, and interest, fees and late charges and
all other indebtedness, if any, on the Loans made to the other Borrower when
due, whether at maturity, by acceleration or otherwise all at the times and
places and at the rates described in, and otherwise according to the terms of
the Notes and the Credit Agreement, whether now existing or hereafter created
or arising.
2. Each Borrower further hereby irrevocably, unconditionally and
absolutely guarantees to the Lenders the due and prompt performance by the
other Borrower of all duties, agreements and obligations of the other
Borrower contained in the Notes and the Credit Agreement, and the due and
prompt payment of all costs and expenses incurred, including, without
limitation, attorneys' fees, court costs and all other litigation expenses
(including but not limited to expert witness fees, exhibit preparation, and
courier, postage, communication and document copying expenses), in enforcing
the payment and performance of the Notes and the Credit Agreement from the
other Borrower (the payment and performance of the items set forth in
Paragraphs 1 and 2 of this Exhibit P are collectively referred to as the
("Other Borrower Debt").
3. In the event any Borrower shall at any time fail to pay the Lenders
any Other Borrower Debt owed by such Borrower when due, whether by
acceleration or otherwise, the other Borrower promises to pay such amount to
the Lenders forthwith, together with all collection costs and expenses,
including, without limitation, attorneys' fees, court costs and all other
litigation expenses (including but not limited to expert witness fees,
exhibit preparation, and courier, postage, communication and document
copying expenses).
4. Each Borrower does hereby (a) agree to any modifications of any
terms or conditions of any Other Borrower Debt and/or to any extensions or
renewals of time of payment or performance by the other Borrower; (b) agree
that it shall not be necessary for the Lenders to resort to legal remedies
against the other Borrower, or to take any action against any other Person
obligated (an "Obligor") on or against any collateral for payment or
performance of the Other Borrower Debt before preceding against such
Borrower; (c) agree that no release of the other Borrower or any other
guarantor or Obligor, or of any collateral, for the Other Borrower Debt,
whether by operation of law or by any act of the Agent or the Lenders (or any
of them), with or without notice to such Borrower, shall release such
Borrower; and (d) waive presentment, notice of acceptance, notice of demand,
dishonor, notice of dishonor, protest, and
notice of protest and waive, to the extent permitted by law, all benefit of
valuation, appraisement, and exemptions under the laws of the State of
Minnesota or any other state or territory of the United States.
5. The obligations of each Borrower for the Other Borrower Debt shall be
primary, absolute, irrevocable and unconditional, and shall remain in full
force and effect without regard to, and shall not be impaired or affected by:
(a) the genuineness, validity, regularity or enforceability of, or any
amendment or change in the Credit Agreement or the Note, or any change in or
extension of the manner, place or terms of payment of, all or any portion of
the Other Borrower Debt; (b) the taking or failure to take any action to
enforce the Credit Agreement or the Notes, or the exercise or failure to
exercise any remedy, power or privilege contained therein or available at law
or otherwise, or the waiver by the Lenders of any provisions of the Credit
Agreement or the Notes; (c) any impairment, modification, change, release or
limitation in any manner of the liability of the other Borrower or its estate
in bankruptcy, or of any remedy for the enforcement of the other Borrower's
liability, resulting from the operation of any present or future provision of
the bankruptcy laws or any other statute or regulation, or the dissolution,
bankruptcy, insolvency, or reorganization of the other Borrower; (d) the
merger or consolidation of the other Borrower, or any sale or transfer by the
other Borrower of all or part of its assets or property; (e) any claim such
Borrower may have against the other Borrower or any other Obligor, including
any claim of contribution; (f) the release, in whole or in part, of any other
guarantor (if more than one), the other Borrower or any other Obligor; (g)
any other action or circumstance which (with or without notice to or
knowledge of such Borrower) might in any manner or to any extent vary the
risks of such Borrower or otherwise constitute a legal or equitable discharge
or defense, it being understood and agreed by each Borrower that its
obligations for the Other Borrower Debt shall not be discharged except by the
full payment and performance of the Other Borrower Debt.
6. The Lenders shall have the right to determine how, when and what
application of payments and credits, if any, whether derived from either
Borrower or from any other source, shall be made on the Obligations and any
other indebtedness owed by either Borrower and/or any other Obligor to the
Lenders.
7. The obligations of each Borrower hereunder shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
the performance or the payment, as the case may be, in whole or in part, of
any of the Other Borrower Debt is rescinded or must otherwise be restored or
returned by the Lenders (or any of them) (as a preference, fraudulent
conveyance or otherwise) upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of either Borrower or any other person or upon
or as a result of the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to either Borrower or any other
Person, or any substantial part of its property, or otherwise, all as though
such payments had not been made. If an Event of Default shall at any time
have occurred and be continuing or shall exist and declaration of default or
acceleration under or with respect to the Other Borrower Debt shall at such
time be prevented by reason of the pendency against either Borrower or any
other Person of a case or proceeding under a bankruptcy or insolvency law,
each Borrower agrees that its obligations for the Other Borrower Debt shall
be deemed to have been declared in default or accelerated with the same
effect as if such obligations had been declared in default and
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accelerated in accordance with their respective terms and each Borrower shall
forthwith perform or pay, as the case may be, as required hereunder in
accordance with the terms hereunder without further notice or demand.
8. Each Borrower hereby irrevocably waives any claim or other rights
that it may now or hereafter acquire against the other Borrower that arises
from the existence, payment, performance or enforcement of such Borrower's
obligations for the Other Borrower Debt, including any right of subrogation,
reimbursement, exoneration or indemnification, any right to participate in
any claim or remedy of the Lenders against the other Borrower or any
collateral that the Lenders now have or hereafter acquire, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including the right to take or receive from the other Borrower
directly or indirectly, in cash or other property or by set-off or in any
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to either Borrower in violation of the preceding
sentence and the Other Borrower Debt shall not have been paid and performed
in full, such amount shall be deemed to have been paid to such Borrower for
the benefit of, and held in trust for, the Lenders and shall forthwith be
paid to the Lenders to be credited and applied to the Other Borrower Debt,
whether matured or unmatured. Notwithstanding the blanket waiver of
subrogation rights as set forth above, each Borrower hereby specifically
acknowledges that any subrogation rights which it may have against the other
Borrower or any collateral that the Lenders now have or hereafter acquire may
be destroyed by a nonjudicial foreclosure of the collateral. This may give
such Borrower a defense to a deficiency judgment against it. Such Borrower
hereby irrevocably waives such defense. Each Borrower acknowledges that it
will receive direct and indirect benefits from the arrangements contemplated
by the Agreement and the Notes and that the waivers set forth in this Section
are knowingly made in contemplation of such benefits.
9. No postponement or delay on the part of the Lenders (or any of them)
in the enforcement of any right with respect to the Obligations of either
Borrower, including, without limitation, the Other Borrower Debt, shall
constitute a waiver of such right and all rights of the Lenders hereunder
shall be cumulative and not alternative and shall be in addition to any other
rights granted to the Lenders in any other agreement or by law.
10. Any indebtedness of either Borrower now or hereafter held by the
other Borrower is hereby subordinated to the indebtedness of the Borrowers to
the Lenders, and such indebtedness of either Borrower to the other Borrower
shall, if any of the Lenders so requests, be collected, enforced and received
by the Borrower to which it is owed as trustee for the Lenders and be paid
over to the Lenders on account of the indebtedness of the other Borrower to
the Lenders.
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