-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, lWBjUPOGGxeeVbyhJdJr7wUCalVueCN0Cz/i+ld+2sWzNmKgxuJHA0m6DAXGTiZ9 wMfQMDYUuXMwl8winlq9RA== 0000950147-94-000013.txt : 19940302 0000950147-94-000013.hdr.sgml : 19940302 ACCESSION NUMBER: 0000950147-94-000013 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19940214 ITEM INFORMATION: 7 FILED AS OF DATE: 19940222 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GREYHOUND FINANCIAL CORP CENTRAL INDEX KEY: 0000043960 STANDARD INDUSTRIAL CLASSIFICATION: 6153 IRS NUMBER: 941278569 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: 34 SEC FILE NUMBER: 001-07543 FILM NUMBER: 94510914 BUSINESS ADDRESS: STREET 1: DIAL TOWER STE 1159 CITY: PHOENIX STATE: AZ ZIP: 85077-1159 BUSINESS PHONE: 6022076900 FORMER COMPANY: FORMER CONFORMED NAME: GREYHOUND LEASING & FINANCIAL CORP DATE OF NAME CHANGE: 19870330 8-K/A 1 CURRENT REPORT SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C, 20549 ____________________ FORM 8-K/A AMENDMENT NO. 1 CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): February 14, 1994 ____________________________________________________________________________ GREYHOUND FINANCIAL CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 1-7543 94-1278569 ____________________________________________________________________________ (State or Other Jurisdiction Commission (I.R.S. Employer of Incorporation) File Number) Identification No.) DIAL CORPORATE CENTER, PHOENIX, ARIZONA 85077 ____________________________________________________________________________ (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: 602/207-6900 __________________________ Item 7. Financial Statements and Exhibits. (a) Financial Statements of Business Acquired. (b) Stock Purchase Agreement dated as of February 14, 1994 among GFC Financial Corporation, Greyhound Financial Corporation, a wholly- owned subsidiary of GFC Financial Corporation, and Fleet Financial Group, Inc. for the purchase of Fleet Factors Corp. (c) Fifth Amendment and Restatement, dated as of May 18, 1993, of Credit Agreement dated as of May 31, 1976 among Greyhound Financial Corporation, Bank of America National Trust and Savings Association, Chemical Bank and Citibank, N.A., as agents, and the financial institutions listed. Any Schedules, Annex's and Exhibits to such Agreements not filed herewith will be provided to the Commission upon request. ________ (a) previously filed. 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) Dated: February 18, 1994 By /s/ Bruno A. Marszowski ---------------------------------------------- Bruno A. Marszowski, Vice President-Controller Principal Financial Officer/Authorized Officer EX-2 2 STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT AMONG GFC FINANCIAL CORPORATION, GREYHOUND FINANCIAL CORPORATION AND FLEET FINANCIAL GROUP, INC. Dated as of February 14, 1994 TABLE OF CONTENTS Page ARTICLE I PURCHASE AND SALE OF STOCK; RETENTION OF CERTAIN LIABILITIES 1.1 Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.3 Closing Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4 Retention of Certain Liabilities by Seller . . . . . . . . . . . . . 5 ARTICLE II CLOSING 2.1 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2.2 Closing Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.3 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 3.1 Corporate Organization, Etc. . . . . . . . . . . . . . . . . . . . . 9 3.2 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3.3 Ownership of Stock . . . . . . . . . . . . . . . . . . . . . . . . . 9 3.4 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3.5 Authorization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 11 3.6 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.7 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . 12 3.8 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . 12 3.9 Compliance with Law; Governmental Authorizations . . . . . . . . . . 15 3.10 Proprietary Rights . . . . . . . . . . . . . . . . . . . . . . . . 16 3.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.12 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3.13 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3.14 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3.15 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . 22 3.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . 22 3.17 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . 25 3.18 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 3.19 Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3.20 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3.21 Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 31 3.22 Intercompany Matters . . . . . . . . . . . . . . . . . . . . . . . 31 3.23 Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . 31 3.24 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER AND GFC 4.1 Corporate Organization . . . . . . . . . . . . . . . . . . . . . . . 32 4.2 Authorization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 32 4.3 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.4 Acquisition for Investment . . . . . . . . . . . . . . . . . . . . . 33 4.5 No Brokers or Other Fees . . . . . . . . . . . . . . . . . . . . . 33 ARTICLE V COVENANTS AND AGREEMENTS 5.1 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . 33 5.2 Additional Financial Statements . . . . . . . . . . . . . . . . . . 36 5.3 Access to Books, Records and Properties . . . . . . . . . . . . . . 36 5.4 Filings and Consents . . . . . . . . . . . . . . . . . . . . . . . . 37 5.5 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 5.6 Acquisition Proposals to the Company . . . . . . . . . . . . . . . . 43 5.7 Books, Records and Information . . . . . . . . . . . . . . . . . . . 43 5.8 Supplements to Disclosure Schedule; Notice and Cure . . . . . . . . 44 5.9 Covenant to Satisfy Conditions . . . . . . . . . . . . . . . . . . . 44 5.10 Employee Benefits and Employment . . . . . . . . . . . . . . . . . 44 5.11 Company Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 5.12 Covenant Not to Compete . . . . . . . . . . . . . . . . . . . . . . 47 5.13 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 48 5.14 Employment Agreement . . . . . . . . . . . . . . . . . . . . . . . 49 5.15 Certain Other Agreements . . . . . . . . . . . . . . . . . . . . . 49 5.16 Intercompany Obligations After the Audit Date . . . . . . . . . . . 49 5.17 Certain Appeal Bonds . . . . . . . . . . . . . . . . . . . . . . . 49 ARTICLE VI CONDITIONS TO OBLIGATIONS OF SELLER 6.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . 49 6.2 Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 6.3 Corporate Documents . . . . . . . . . . . . . . . . . . . . . . . . 50 6.4 Officer s Certificate . . . . . . . . . . . . . . . . . . . . . . . 50 6.5 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 6.6 Intercompany Obligations . . . . . . . . . . . . . . . . . . . . . . 50 6.7 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 50 6.8 Governmental Filings and Consents; Third-Party Consents . . . . . . 50 ARTICLE VII CONDITIONS TO OBLIGATIONS OF BUYER 7.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . 51 7.2 Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 7.3 Corporate Documents . . . . . . . . . . . . . . . . . . . . . . . . 51 7.4 Officer s Certificate . . . . . . . . . . . . . . . . . . . . . . . 51 7.5 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 7.6 Termination of Tax Sharing Agreements . . . . . . . . . . . . . . . 51 7.7 Governmental Filings and Consents; Third-Party Consents . . . . . . 51 7.8 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 52 7.9 Employment Agreement . . . . . . . . . . . . . . . . . . . . . . . . 52 7.10 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 7.11 Assumption and Indemnification Agreements . . . . . . . . . . . . . 52 7.12 Environmental Assessments . . . . . . . . . . . . . . . . . . . . . 52 7.13 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . 52 7.14 Intercompany Obligations . . . . . . . . . . . . . . . . . . . . . 52 ARTICLE VIII TERMINATION 8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 8.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . 54 ARTICLE IX INDEMNIFICATION 9.1 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 54 9.2 Survival of Representations and Warranties . . . . . . . . . . . . . 57 9.3 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ARTICLE X MISCELLANEOUS 10.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 59 10.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 10.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 10.4 No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 10.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 10.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 10.7 Complete Agreement . . . . . . . . . . . . . . . . . . . . . . . . 61 10.8 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 10.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 10.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 10.11 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . 62 10.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 TABLE OF ANNEXES Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . Annex A Form of Instrument of Assumption and Indemnification . . . . . . . Annex B Form of Opinions of Counsel for Buyer and GFC . . . . . . . . . . . Annex C Form of Opinions of Counsel for Seller . . . . . . . . . . . . . . Annex D STOCK PURCHASE AGREEMENT This STOCK PURCHASE AGREEMENT ( Agreement ) is made and entered into as of February 14, 1994, by and among Fleet Financial Group, Inc., a Rhode Island corporation ( Seller ), GFC Financial Corporation, a Delaware corporation ( GFC ), and Greyhound Financial Corporation, a Delaware corporation ( Buyer ). Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to such terms in Annex A hereto. WHEREAS, Fleet Factors Corp., a Rhode Island corporation engaged in the business of commercial lending and factoring (the Company ), has 100 issued and outstanding shares of common stock, par value $1.00 per share (the Company Common Stock ), all of which are owned by Seller; and WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all of the Company Common Stock, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual premises and covenants, agreements, representations and warranties contained in this Agreement, Seller and Buyer agree as follows: ARTICLE I PURCHASE AND SALE OF STOCK; RETENTION OF CERTAIN LIABILITIES 1.1 Transfer of Stock. On the Closing Date (as defined in Section 2.1 hereof) and subject to the terms and conditions set forth in this Agreement, Seller will sell, assign, transfer and deliver to Buyer all of the Company Common Stock, free and clear of all Encumbrances (as defined in Annex A hereto). 1.2 Consideration. (a) On the Closing Date and subject to the terms and conditions set forth in this Agreement, in reliance on the repre- sentations, warranties, covenants and agreements of the parties contained herein and in consideration of the sale, assignment, transfer and delivery by Seller to Buyer of the Company Common Stock, Buyer will pay to Seller by wire transfer of immediately available funds to a bank account designated by Seller (which bank account will be so designated not less than two (2) business days prior to the Closing (as defined in Section 2.1 hereof)) an amount equal to one hundred fifty percent (150%) of the Shareholder s Equity (determined as provided in Sections 1.3(b) and 1.3(d) hereof) of the Company at and as of November 30, 1993 (the Purchase Price ). (b) Within two (2) business days after the acceptance and finality of the determination of such amount in accordance with the provisions of Section 1.3(e) hereof, if the Adjusted Net Income (Loss) of the Company (determined as provided in Section 1.3(c) hereof) for the period beginning December 1, 1993 to and including the last day of that calendar month which ends prior to the Closing Date (the Interim Period ) is a positive number, the Company shall pay a cash dividend to Seller in an amount equal to the Adjusted Net Income (Loss) of the Company for such period, or, if the Adjusted Net Income (Loss) of the Company for the Interim Period is a negative number, Seller shall contribute, without consideration therefor, to the Company in cash, an amount equal to the Adjusted Net Income (Loss) of the Company for such period. Such payment shall be made by Buyer or Seller, as the case may be, by wire transfer of immediately available funds to an account designated by Seller or Buyer, respectively. 1.3 Closing Audit. (a) Seller has engaged KPMG Peat Marwick (the Auditor ) to provide the services set forth in this Agreement and will cause the Auditor to conduct an audit of the books and records of the Compa- ny to determine the Shareholder s Equity of the Company at and as of Decem- ber 31, 1992 and November 30, 1993 (the latter date being referred to herein as the Audit Date ) and the Adjusted Net Income (Loss) of the Company for the one-year period ended December 31, 1992 and the eleven-month period ended November 30, 1993 (collectively, the Closing Audit ). Seller shall cause the Auditor to complete the Closing Audit as soon as practicable but in no event later than February 14, 1994. The Closing Audit shall be con- ducted in accordance with United States generally accepted auditing standards, except to the extent set forth in this Section 1.3 or in Schedule 1.3 hereto. The Auditor shall have reasonable access to the books and records (including workpapers) of the Company and of Seller and to all appropriate employees, consultants and advisors of either, in each case which reasonably relate to the performance of the Closing Audit and, as de- scribed below, the review of the Adjusted Net Income (Loss) of the Company for the Interim Period. From time to time prior to delivery of the Closing Audit Report (as defined in Section 1.3(d) hereof), Seller, Buyer and its accountants shall be entitled to discuss with the Auditor the status of the Closing Audit and preliminary determinations of the Auditor with respect thereto and to review and comment upon drafts thereof. (b) The Shareholder s Equity of the Company at and as of a particular date (the Shareholder s Equity ) shall be determined (i) in accordance with United States generally accepted accounting principles ( GAAP ) but without regard to materiality, (ii) subtracting from such resulting amount the increase in the book value of the Company attributable to any extraordinary gains of the Company and the Company Subsidiaries as reflected in the audited financial statements of the Company for such date, and (iii) taking into account any adjustments required pursuant to Schedule 1.3 hereto. (c) The Adjusted Net Income (Loss) of the Company for any particular period shall be determined (i) in accordance with GAAP consistent with the audited financial statements of the Company contained in the Closing Audit Report and without regard to materiality (ii) after provision for federal, state and local income taxes, and (iii) excluding extraordinary gains of the Company and the Company Subsidiaries for such period. (d) Promptly upon completion thereof, the Auditor shall deliver simultaneously to the parties a copy of the Closing Audit, together with its report thereon, and the Auditor s determination of the Shareholder s Equity of the Company at and as of December 31, 1992 and November 30, 1993 and the Adjusted Net Income (Loss) of the Company for the one-year period ended December 31, 1992 and the eleven-month period ended November 30, 1993 (the Closing Audit Report ). Copies of the workpapers used in the preparation of the Closing Audit Report shall be delivered or made fully available to Buyer no later than February 15, 1994. After receipt of the Closing Audit Report, Buyer and Seller shall have seven (7) business days to review the Closing Audit Report. Buyer, Seller and their respective authorized representatives shall have reasonable access to the employees of the Auditor, and Buyer and its authorized representatives shall have access to all relevant books and records (including workpapers) and employees of the Company and Seller, to the extent reasonably required to complete their respective reviews of the Closing Audit Report. Unless Buyer or Seller delivers written notice to the other party and the Auditor on or prior to the seventh (7th) business day after delivery by the Auditor of the Closing Audit Report, specifying in reasonable detail all disputed items and the basis or bases therefor and that such party believes in good faith that the aggregate effect of such disputed items could reasonably result in a change in Shareholder's Equity of at least $1 million, the parties shall be deemed to have accepted and agreed to the Closing Audit Report. If Buyer or Seller notifies the Auditor and the other party in writing of an objection or objections to the Closing Audit Report as provided above within such seven (7) business days (the Preliminary Objection Notice ), Buyer and Seller shall, until the tenth (10th) business day after delivery of the Closing Audit Report, have the opportunity to provide written reports to the Auditor supplementing the basis or bases for disputed items previously iden- tified by such party to the Auditor or responding to the basis or bases set forth by the other party for disputed items. A copy of any such written report to the Auditor by either party shall simultaneously be provided by such party to the other party. Based upon such written reports, the Auditor shall make a final determination, within ten (10) business days after the earlier to occur of receipt thereof from Buyer and Seller or expiration of the ten (10) business day period in which such reports may be provided, of the Shareholder s Equity (without regard to the $1 million threshold for providing a Preliminary Objection Notice) and Adjusted Net Income (Loss) of the Company at and as of such date and for such time period, respectively, which determination shall be binding upon the parties; provided, however, that in the event that either Buyer or Seller delivers to the other party within five (5) business days after such determination a written notice of its disagreement with such determination, the parties shall arbitrate such matter in accordance with the procedures set forth in Section 9.3 hereof. Buyer and Seller agree that in the event the Closing Audit Report does not indicate discrepancies between the Company Financial Statements and the Closing Audit Report in excess of the thresholds set forth in Section 8.1(c) hereof, then the Closing shall occur in accordance with Section 2.1 hereof (without regard to clause (iii) of such Section) prior to the finalization of the Closing Audit Report as contemplated by this Section 1.3(d). In the event the Closing occurs prior to completion and acceptance of the Closing Audit Report pursuant to the immediately preceding sentence and, as a result of the dispute procedures set forth in this Section 1.3(d), the actual Purchase Price is determined to be greater or less than the Purchase Price paid at Closing, a payment in the amount of such difference shall be made within two (2) business days of such final determination by Buyer or Seller, as the case may be, to the other party by wire transfer of immediately available funds to an account designated by such other party. Notwith- standing anything to the contrary contained in this Section 1.3(d), neither Buyer nor Seller shall be entitled to dispute the adjustments reflected in the Closing Audit Report with respect to the calculation of (i) pension accruals or (ii) adjustments related to all intercompany management fees. (e) Promptly after the Closing Date, but in no event later than thirty (30) days thereafter, Buyer shall cause the Company to deliver simultaneously to Buyer and Seller the Company's determination of the Adjusted Net Income (Loss) of the Company for the period beginning on December 1, 1993 to and including the last day of that calendar month which ends immediately prior to Closing (the "Interim Period ), together with the workpapers used in the preparation thereof. The Company shall also instruct the Auditor to deliver at such time a certification of the Auditor stating that, based solely upon its review of the workpapers of the Company used in the preparation thereof and upon any other materials deemed necessary or relevant by the Auditor in connection therewith, nothing has come to the Auditor's attention indicating that such determination does not comply with the provisions of Section 1.3(c) hereof (an Auditor s Review Certifica- tion ). The procedures set forth in Section 1.3(d) hereof shall govern the acceptance and finality of the determination of the Adjusted Net Income (Loss) of the Company with respect to the Interim Period, except that the disputed item threshold shall not be applicable. (f) All fees and expenses relating to the work to be per- formed by the Auditor hereunder shall be borne by Seller. 1.4 Retention of Certain Liabilities by Seller. Seller hereby agrees that Seller and Seller s successors and assigns shall bear all responsibility for all Claims (as defined in Section 9.1(a) hereof) that GFC, Buyer, the Company and each Company Subsidiary may suffer, sustain, incur or become subject to, arising out of, in connection with or due to any and all acts or omissions prior to the Closing, whether known or unknown, of every kind whatsoever (including, without limitation, Claims with respect to those matters referred to in Section 3.14 of the Disclosure Schedule) other than (i) liabilities reflected on the consolidated balance sheet of the Company and the Company Subsidiaries at and as of November 30, 1993 contained in the Closing Audit Report, (ii) liabilities specifically identi- fied and assumed by Buyer pursuant to this Agreement, (iii) claims for refunds of customer credit balances which have been classified or treated as income by the Company after the Closing (provided that Seller shall not be liable to Buyer hereunder for claims for refunds brought by customers of the Company for customer credit balances to the extent of the amount of customer credit balances existing at and as of the Closing), (iv) Environmental Claims (as defined in Section 3.16 hereof) except to the extent covered by the representations and warranties contained herein; provided, however, that Seller shall bear all responsibility for any and all Environmental Claims with respect to all real property owned or leased by the Company or any Company Subsidiary prior to Closing, (v) the first $350,000 of expenses of retention of legal counsel, court fees and other legal costs and expenses incurred in connection with conducting the defense of Claims relating solely to loan portfolio account collection and foreclosure matters and bankruptcy preference claims (collectively, Loan Portfolio Matters ) and of complying with the provisions of Section 5.17 hereof in each of the three (3) twelve (12) month periods immediately following the Closing Date, (vi) the first $500,000 of costs and expenses incurred in connection with adverse judgments or settlements on the part of the Company or any Company Subsidiary with re- spect to Claims relating solely to Loan Portfolio Matters in each of the four (4) twelve (12) month periods immediately following the Closing Date; provided, that such $500,000 annual basket shall not apply with respect to any finding of liability or settlement with respect to Claims insofar as such Claims relate to (a) the violation of any federal, state, local or foreign statute, rule, regulation, ordinance or code or, with respect to the Company or any Company Subsidiary specifically, any order, judgment, writ, injunction, decree or award entered by any federal, state, local or foreign court, arbitrator or other forum of competent jurisdiction, or (b) the enforceability, completeness and accuracy of documentation pertaining to any such Loan Portfolio Matter; provided further, that any unapplied portion of the $500,000 annual basket referred to above in any of the first three (3) twelve (12) month periods immediately following the Closing Date shall be available for application with respect to Claims relating solely to Loan Portfolio Matters during any of the succeeding twelve (12) month periods immediately following the Closing Date up to but not beyond the conclusion of the fourth (4th) twelve (12) month period following the Closing Date; provided further, however, that any unapplied portion of the $500,000 annual basket referred to above in any of the first four (4) twelve (12) month periods immediately following the Closing Date shall be available for application with respect to Claims relating solely to Loan Portfolio Matters after such time solely with respect to such Claims as to which a Buyer Indemnified Party (as defined in Section 9.1(a) hereof) has received reasonable notice prior to the end of such four (4) twelve month periods; (vii) accounts payable of the Company and the Company Subsidiaries arising after November 30, 1993 in the ordinary course of business consistent with past practice of the Company and the Company Subsidiaries, including without limitation salaries, rent, insurance and other obligations; provided, that such amounts have been or will be recognized as expenses in the calculation of the Adjusted Net Income (Loss) of the Company for the Interim Period; provided further, that the recognition of such amounts has not constituted or will not constitute a breach of any representation or warranty contained in this Agreement; (viii) balances due as of the Closing Date to factored and finance clients; and (ix) those obligations arising from acts or omis- sions occurring after the Closing pursuant to any Contract (as defined in Section 3.6 hereof) to which the Company or any Company Subsidiary is a party as of the Closing Date (collectively, the Retained Liabilities ). To more effectively consummate the contemplated transaction in accordance with the intentions of the parties, at the Closing, Seller shall deliver to Buyer an executed instrument of assumption and indemnification in the form attached hereto as Annex B (the Instrument of Assumption and Indemnifica- tion ). ARTICLE II CLOSING 2.1 The Closing. Subject to Section 8.1 hereof, the closing (the Closing ) of the transactions contemplated by this Agreement shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, New York 10022 at 8:30 a.m., local time, on the later of (i) February 14, 1994, (ii) the second business day following the satisfaction or waiver of all of the conditions set forth in Article VI and Article VII hereof, (iii) the second business day after finalization and acceptance of the Closing Audit Report as contemplated by Section 1.3(e) hereof, or (iv) at such other place and time as may be agreed upon by Seller and Buyer (the Closing Date ). 2.2 Closing Deliveries. (a) Deliveries by Seller. At or prior to the Closing, Seller shall deliver or cause to be delivered to Buyer the following: (i) certificates evidencing the Company Common Stock free and clear of any Encumbrances, which certificates shall be properly endorsed for transfer or accompanied by duly executed stock powers, in either case executed in blank or in favor of Buyer or its nominee as Buyer may have directed prior to the Closing Date, and otherwise in a form acceptable for transfer on the books of the Company; (ii) copies of resolutions of the Board of Directors of Seller, certified by the corporate secretary or assistant secretary of Seller, authorizing the execution, delivery and performance by Seller of this Agreement and the transactions contemplated hereby as required by Section 7.3 hereof; (iii) the Seller s certificate required by Section 7.4 hereof; (iv) all books and records of the Company and each Company Subsidiary, including each such company s corporate minute book, seal and stock ledger book; (v) instruments evidencing termination of the tax sharing agreements as required by Section 7.6 hereof; (vi) all licenses, permits, orders, consents, approvals, registrations, authorizations, qualifications, filings and waivers required to be obtained and delivered by Seller pursuant to Section 7.7 hereof; (vii) the opinions of counsel for Seller required by Section 7.8 hereof; (viii) the resignations of the members of the Board of Directors and those officers of the Company and of each Company Subsidiary that are also officers of Seller or any affiliate (as prescribed by Rule 12b-2 of the regulations promulgated pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act )) (an Affiliate ) of Seller (other than the Company or any Company Subsidiary) as required by Section 7.10 hereof; (ix) the Assumption and Indemnification Agreement as required by Sections 1.4 and 7.11 hereof; and (x) all other previously undelivered documents re- quired to be delivered by Seller to Buyer at or prior to the Closing Date in connection with the transactions contemplated hereby. (b) Deliveries by Buyer. At or prior to the Closing, Buyer shall deliver or cause to be delivered to Seller the following: (i) the Purchase Price, by wire transfer of imme- diately available funds, as provided in Section 1.2 hereof; (ii) copies of resolutions of the Board of Directors of Buyer, certified by the corporate secretary or assistant secretary of Buyer, authorizing the execution, delivery and performance by Buyer of this Agreement and the transactions contemplated hereby as required by Section 6.3 hereof; (iii) the Buyer s certificate required by Section 6.4 hereof; (iv) the opinions of counsel for Buyer required by Section 6.7 hereof; and (v) all other previously undelivered documents required to be delivered by Buyer to Seller at or prior to the Closing Date in connection with the transactions contemplated hereby. 2.3 Further Assurances. After the Closing, each party hereto shall from time to time, at the request of the other party and without further cost or expense to such other party, execute and deliver such other instruments and take such other actions as such other party may reasonably request to more effectively consummate the transactions contemplated hereby and to vest in Buyer good and valid title to the Company Common Stock free and clear of Encumbrances. ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Buyer as follows: 3.1 Corporate Organization, Etc. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Rhode Island and has full corporate power and authority to conduct its business as it is now being conducted and own and lease its properties, including the Company Common Stock. The Company is a corporation duly orga- nized, validly existing and in good standing under the laws of the State of Rhode Island and has full corporate power and authority to carry on its business as it is now being conducted and to own the properties and assets it now owns and is duly qualified or otherwise authorized as a foreign corporation to conduct the business conducted by it and is in good standing in each jurisdiction in which such qualification or authorization is required under applicable law, except jurisdictions in which the Company s failure to be so qualified or otherwise authorized would not or could not reasonably be expected to, individually or in the aggregate, result in an adverse change of $350,000 or more in the business, condition (financial or otherwise), assets, liabilities or results of operations (a Material Adverse Effect ) of the Company and the Company Subsidiaries taken as a whole. Section 3.1 of the Disclosure Schedule sets forth each jurisdiction in which the Company is duly qualified or otherwise authorized as a foreign corporation to conduct business. Seller has delivered to Buyer complete and correct copies of the charter and by-laws of each of Seller, the Company and each Company Subsidiary as presently in effect. 3.2 Capital Stock. The authorized capital stock of the Company consists of 8,000 shares of common stock, $1.00 par value per share, of which only the Company Common Stock is issued and outstanding, and no other shares of any other class or series of capital stock are authorized, issued or outstanding. All of the shares of Company Common Stock have been validly issued and are fully paid, nonassessable and free of preemptive rights. Except as set forth in Section 3.2 of the Disclosure Schedule, there are no subscriptions, options, convertible or exchangeable securities or instruments, warrants, calls, rights, contracts, commitments, understandings, restrictions or arrangements relating to or providing for the issuance, sale, purchase, redemption, transfer or voting of any shares of Company Common Stock or other capital stock or ownership interests in the Company. 3.3 Ownership of Stock. Seller has good, valid and marketable title to the Company Common Stock free and clear of all Encumbrances, other than the restrictions imposed by federal and state securities laws. Upon consummation of the transactions contemplated hereby, Buyer will acquire good and valid title to the Company Common Stock, free and clear of all Encumbrances, other than the restrictions imposed by federal and state securities laws. 3.4 Subsidiaries. Section 3.4 of the Disclosure Schedule sets forth the name, jurisdiction of incorporation and capitalization of each Company Subsidiary and each jurisdiction in which each Company Subsidiary is duly qualified to conduct business. Except for security interests in collateral consisting of capital stock or other equity securities of any corporation (including, but not limited to, a cooperative corporation) or in any partnership, joint venture, trust, unincorporated organization or any other entity or as disclosed in Section 3.4 of the Disclosure Schedule, neither the Company nor any Company Subsidiary owns, directly or indirectly, any capital stock or other equity securities of any corporation or has any direct or indirect equity or ownership interest in any partnership, joint venture, corporation, trust, unincorporated organization, or any other entity not listed in Section 3.4 of the Disclosure Schedule. All the out- standing capital stock of each Company Subsidiary is owned directly or indirectly by the Company (as set forth in Section 3.4 of the Disclosure Schedule) free and clear of all Encumbrances, and is validly issued, fully paid, nonassessable and free of preemptive rights. There are no subscrip- tions, options, convertible or exchangeable securities or instruments, war- rants, calls, rights, contracts, commitments, understandings, restrictions or arrangements relating to or providing for the issuance, sale, purchase redemption, transfer or voting of any shares of capital stock or other ownership interests in any Company Subsidiary. Each Company Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation, has full corporate power and authority to carry on its business as it is now being conducted and to own the properties and assets it now owns, and is duly qualified or otherwise autho- rized as a foreign corporation to conduct the business conducted by it and is in good standing in each jurisdiction in which such qualification or authorization is required under applicable law, except jurisdictions in which the failure to be so qualified or otherwise authorized would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. On January 6, 1994, the Company dissolved Flamb Corporation, a former Florida corporation and wholly owned subsidiary of the Company ( Flamb ). Immediately prior to such dissolution, Flamb was a shell corporation with no assets or liabilities of any consequence. Neither the Company nor any Company Subsidiary retains any liability as a result of the prior ownership or operations of Flamb or as a result of its dissolution. 3.5 Authorization, Etc. Seller has full corporate power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby. The Board of Directors of Seller has authorized the execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby and no shareholder approval or other corporate proceedings on the part of Seller is necessary to approve and authorize the execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Seller. This Agreement constitutes a valid and binding agreement of Seller, assuming the due execution of the Agreement by Buyer and GFC, enforceable against Seller in accordance with its terms, except that (a) such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. 3.6 No Violation. The execution and delivery of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby will not (a) conflict with or result in a violation of any provision of the charter or bylaws of Seller, the Company or any Company Subsidiary, (b) except as specified in Section 3.6 of the Disclosure Schedule, conflict with, violate, or constitute a breach or default (with or without notice or lapse of time or both), or give rise to any right of termination, cancellation or acceleration under or otherwise impair any contract, commit- ment, Credit Arrangement (as defined in Section 3.12(b) hereof), policy, indenture, mortgage, note, deed or other agreement of any nature, including, without limitation, those specified in Section 3.12(a) of the Disclosure Schedule (each a Contract ) but excluding any oral Contract involving loan or financial commitments or obligations or advances under factoring contracts equal to or less than $300,000 individually or $1,000,000 in the aggregate, in each case as to which Seller, the Company or any Company Subsidiary is a party or by which Seller, the Company or any Company Subsid- iary is bound, or to which the assets or employees of the Company or any Company Subsidiary are subject, which breach or default would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole, or interfere in any material way with the ability of Seller or Buyer to consummate the transactions contemplated by this Agreement, (c) conflict with or result in a violation by Seller, the Company or any Company Subsidiary of any federal, state, local or foreign law, statute, rule, regulation, ordinance or code or any order, judgment, writ, injunction, decree or award entered by any federal, state, local or foreign court, arbitrator or other forum of competent jurisdiction ( Laws or Law ), (d) result in or give rise to the imposition of any Encumbrance, restriction or charge on the business of the Company or any Company Subsidiary or on any assets of the Company or the Company Subsidiaries, or (e) except as set forth in Section 3.6 of the Disclosure Schedule, conflict with, violate or constitute a breach or default (with or without notice or lapse of time or both), or give rise to any right of termination, cancellation or accelera- tion under, or otherwise impair, any license, permit, order, consent, approval, registration, authorization, qualification or filing with or under any federal, state, local or foreign laws and governmental or regulatory bodies (collectively, Permits ). 3.7 Financial Statements. (a) Seller has heretofore delivered to Buyer complete copies of (i) the consolidated balance sheets of the Company at December 31, 1988, 1989, 1990, 1991 and 1992, November 30, 1992 and November 30, 1993, and (ii) the consolidated statements of income and statements of retained earnings of the Company for each of the years ended December 31, 1988, 1989, 1990, 1991 and 1992, and (iii) the consolidated statement of income of the Company for the eleven-month period ended November 30, 1993 (collectively, the Company Financial Statements ). Seller has also heretofore delivered to Buyer complete copies of (i) the consolidated balance sheet of the Company at September 30, 1993 and (ii) the consolidated statement of income of the Company for the ten-month period then ended (together, the Interim Company Financial Statements ). (b) When finally prepared and delivered in accordance with Section 1.3(e) hereof, the financial statements contained in the Closing Audit Report (the Closing Audit Financial Statements ) will be prepared in accordance with GAAP, will be true and correct in all material respects and will fairly present the consolidated financial condition and results of operation of the Company and the Company Subsidiaries at and as of the dates and for the periods indicated therein. Subject to the parameters set forth in the last sentence of Section 9.1(a), at and as of November 30, 1993, neither the Company nor any Company Subsidiary had any material indebtedness, obligation or liability of any kind (whether accrued, absolute, contingent or otherwise, and whether due or to become due) which will not be reflected in the Closing Audit Financial Statements. 3.8 Absence of Certain Changes. Except as set forth in Sec- tion 3.8 of the Disclosure Schedule, since September 30, 1993 there has been no change in the business, condition (financial or otherwise), assets, liabilities or results of operations of the Company and the Company Subsid- iaries which would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. Except as and to the extent set forth in Section 3.8 of the Disclosure Schedule (or any subsection thereof) and as otherwise provided herein, since September 30, 1993: (a) the business of the Company and the Company Subsidiaries has been conducted only in the ordinary course and consistent with past practices; (b) there has been no change in the Permits of the Company or any Company Subsidiary, except for changes which would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole; (c) neither the Company nor any Company Subsidiary has lost any factoring client or borrower or been advised that it will likely lose any factoring client or borrower which would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole; (d) there has been no purchase of assets by the Company or any Company Subsidiary, and no sale, assignment or transfer of any of the assets of the Company or any Company Subsidiary (other than purchases of assets from, or sales, assignments or transfers of assets to, non-Affiliates (as defined in Section 2.2 hereof) of the Company or any of the Company Subsidiaries except in the ordinary course of business and consistent with past practices, or between or among the Company and any of the Company Subsidiaries); (e) except as reflected in the Closing Audit Report or in Schedule 1.3 hereto, there has been no change in the financial reporting or accounting methods or practices by the Company or any Company Subsidiary (including without limitation any change with respect to establishment of reserves for losses or the determination of non-accruing loans (including without limitation incurred but not reported losses with respect to loan losses or factoring losses) or any material change in depreciation or amortization policies or rates adopted by it); (f) neither the Company nor any Company Subsidiary has made any change in any of its factoring, asset-based lending or tax or accounting practices or policies; (g) determination of nonaccruing loans and delinquency reporting practices of the Company and Company Subsidiaries were conducted consistent with past practices; (h) neither the Company nor any Company Subsidiary has discharged or satisfied any indebtedness, obligation or liability or cancelled or compromised any claim or waived or released any right, except for such discharges, satisfactions, cancellations, compromises, waivers, or releases made in the ordinary course of business which would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole; (i) neither the Company nor any Company Subsidiary has made any capital expenditures or any commitments therefor in excess of $100,000 individually or $200,000 in the aggregate; (j) neither the Company nor any Company Subsidiary has entered into or has proposed entering into any other transactions or Contracts other than in the ordinary course of business consistent with past practices; (k) neither the Company nor any Company Subsidiary has (A) suffered any extraordinary loss or extraordinary losses (as defined in Opinion No. 30 of the Accounting Principles Board of the American Institute of Certified Public Accountants) or (B) suffered any damage, destruction or casualty loss without regard to coverage by insurance, which would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole; (l) except as set forth in Section 5.1(d) of the Disclosure Schedule, neither the Company nor any Company Subsidiary has (A) made or agreed to make any increase in the compensation payable or to become payable to any employee, agent, consultant or other similar representative of the Company or any Company Subsidiary, or made or agreed to make any increase in any bonus or incentive compensation or commission plan or in any Plan (as defined in Section 3.17 hereof) except in each case for any such increases pursuant to agreements in existence on December 31, 1992 with respect to such plans or for increases that were made in the ordinary course of business consistent with past practice and that did not result in an increase of more than 6% of the respective salary, wages or compensation of any such person or entity, or (B) created any Plan or made any contribution, amendment or modification to any Plan; (m) neither the Company nor any Company Subsidiary failed promptly to pay and discharge current liabilities, except where disputed in good faith (each such disputed claim is listed in Section 3.8 (m) of the Disclosure Schedule) or where such failure would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole; (n) except as specifically disclosed in the Company Finan- cial Statements and as will be specifically disclosed in the Closing Audit Report, neither of the Company nor any Company Subsidiary has entered into any transaction or arrangement under which the Company or any Company Sub- sidiary directly or indirectly paid, lent or advanced any amount to or for the account of, or purchased, sold, transferred or leased any properties or services to (A) Seller, (B) any officer or director of the Company, of any Company Subsidiary, or of Seller or of any affiliate of Seller or (C) any Affiliate of Seller or the Company, any Company Subsidiary or of any such officer of director; each outstanding transaction and arrangement of the type described in this Section 3.8(n), including each such outstanding transaction and arrangement specifically disclosed in the Company Financial Statements and each such outstanding transaction entered into on or prior to September 30, 1993, is set forth and described in Section 3.8(n) of the Disclosure Schedule; and (o) neither the Company nor any Company Subsidiary has agreed or committed to do any of the foregoing, except as specifically contemplated by this Agreement. 3.9 Compliance with Law; Governmental Authorizations. (a) Neither the Company nor any Company Subsidiary is in violation of any applicable Law relating to or affecting the operation, conduct or ownership of the property or businesses of the Company or any of the Company Subsidiaries, except for any violation or violations which would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. (b) Except to the extent set forth in Section 3.16 of the Disclosure Schedule, set forth in Section 3.9 of the Disclosure Schedule is a true and complete list of each material Permit held or used by or for the benefit of the Company or any Company Subsidiary, containing the date of issuance and scheduled expiration date of each Permit and a description of the scope of each Permit. Except as set forth in Section 3.9 of the Disclosure Schedule, (i) no proceeding is pending nor, to the best knowledge of Seller, the Company and each Company Subsidiary (each, an Attributable Person ) after due inquiry, is any proceeding threatened, in which any Person is seeking to revoke or deny the renewal of any material Permit and no Attributable Person has reasonable ground to believe that any material Permit will not in the ordinary course be renewed upon its expiration or that the transactions contemplated hereby will make it more difficult for the Company or any Company Subsidiary to renew or obtain each material Permit, (ii) each material Permit is in full force and effect without any default thereunder by the Company or any Company Subsidiary and in the aggregate are sufficient for the conduct of their business as currently conducted by the Company and the Company Subsidiaries in all material respects, and (iii) neither the Company nor any Company Subsidiary has received notice of any claim or charge that the Company or any Company Subsidiary has breached any material Permit. 3.10 Proprietary Rights. Section 3.10 of the Disclosure Sched- ule contains an accurate and complete list of all of the domestic and foreign letters patent, patent applications, computer programs and software, patent licenses and know-how licenses, trade names, common law trademarks, service marks, trademark registrations and applications, service mark registrations and applications and copyright registrations and applications of the Company and the Company Subsidiaries (the Intellectual Property ) other than any property rights (including, but not limited to, customer lists or other intangible property) as to which the Company or any Company Subsidiary only has a security interest pursuant to the applicable Uniform Commercial Code. Unless otherwise indicated therein, the Company or the applicable Company Subsidiary, as the case may be, owns the entire right, title and interest in and to the Intellectual Property listed in Section 3.10 of the Disclosure Schedule, and their use thereof does not infringe upon the rights of any Person nor, to the best knowledge of each Attributable Person after due inquiry, has any Person asserted or alleged that their use thereof infringes upon the rights of any Person. Except as set forth in Section 3.10 of the Disclosure Schedule, none of the Intellectual Property is subject to any outstanding order, decree, judge- ment, stipulation, settlement or Encumbrance. Except as set forth in Section 3.10 of the Disclosure Schedule, there are no suits, actions, pro- ceedings or other adverse claims pending or, to the best knowledge of each Attributable Person after due inquiry, threatened, affecting or with respect to the Intellectual Property. Except as set forth in Section 3.10 of the Disclosure Schedule, upon consummation of the transactions contemplated by this Agreement, each of the Company and the Company Subsidiaries will be entitled to continue to use all Intellectual Property listed in Section 3.10 of the Disclosure Schedule upon the same terms applicable to the Company s and each of the Company Subsidiary s use of such Intellectual Property prior to consummation of the transaction. The computer programs and software listed in Section 3.10 of the Disclosure Schedule constitute all of the computer programs and software used by the Company and the Company Subsid- iaries and are sufficient for the conduct of their businesses as currently conducted by the Company and Company Subsidiaries. Except as set forth in Section 3.10 of the Disclosure Schedule, Seller and its Affiliates (other than the Company and the Company Subsidiaries) have no right or title to or interest in any Intellectual Property or any trade secrets and other proprietary rights used in the business of the Company or any of the Company Subsidiaries as their businesses have been conducted prior to the date hereof. 3.11 Taxes. Except as set forth in Section 3.11 of the Disclo- sure Schedule: (a) Seller has filed as part of a consolidated return, has caused the Company to file, or will file or cause to be filed on or prior to the Closing Date, all federal, state, local and foreign Tax (as defined in Section 3.11(g) hereof) returns and Tax reports that are required to be filed by, or with respect to, the Company or any Company Subsidiary on or prior to the Closing Date (taking into account any extension of time to file granted to or on behalf of the Company) (collectively, the Tax Returns ). At the time filed, such Tax Returns were, or will be when filed, true, complete and correct in all material respects. Seller, the Company and each Company Subsidiary has timely paid all Taxes shown as due on each such Tax Return. The accruals and reserves reflected in the Company s financial statements for the period ended on the Closing Date are adequate to cover all Taxes of the Company and each Company Subsidiary accrued through such date for that and any prior periods in accordance with GAAP. There are no liens for Taxes upon the assets of the Company or any Company Subsidiary except liens for Taxes not yet due. There are no outstanding deficiencies, assessments or proceedings for the collection of Taxes against or involving the Company or any Company Subsidiary or any of their respective assets except as listed in Section 3.11 of the Disclosure Schedule. Except for this Agreement, all Tax-sharing, Tax indemnity or Tax allocation agreements or similar Contracts or arrangements with respect to or involving the Company or any Company Subsidiary shall be terminated as to the Company and each Company Subsidiary on or prior to the Closing Date, and after such date, neither the Company nor any Company Subsidiary shall be bound thereby or have any liability thereunder. All federal, state, local and foreign Taxes due and payable by or with respect to the Company and each Company Subsidiary have been, or prior to the Closing Date will be, paid. Except as disclosed in Section 3.11 of the Disclosure Schedule (a) there are no waivers in effect of the applicable statutory period of limitation for Taxes of the Company or any Company Subsidiary for any taxable period, (b) no deficiency assessment or proposed adjustment with respect to any Tax liability of the Company or any Company Subsidiary for any Taxable period is pending or, to the best knowledge of each Attributable person after due inquiry, threatened, and (c) the statute of limitations for the collection or assessment of federal income Taxes due from the Company and the Company Subsidiaries for all periods prior to 1985 are closed. (b) No election under any of Section 108, 168, 338, 441, 472, 1017, 1033, or 4977 of the Internal Revenue Code of 1986, as amended (the Code ) (or any predecessor provisions) has been made or filed by or with respect to the Company or any Company Subsidiary. No consent to the application of Section 341(f)(2) of the Code (or any predecessor provision) has been made or filed by or with respect to the Company or any Company Subsidiary or any of its assets. None of the assets of the Company or any Company Subsidiary is an asset or property that is or will be required to be treated as being (i) owned by any individual, partnership, joint venture, corporation, trust, unincorporated organization, government or any department or agency thereof and any other entity (a Person ) (other than the Company or the Company Subsidiaries) pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately before the enactment of the Tax Reform Act of 1986, or (ii) tax-exempt use property within the meaning of Section 168(h)(1) of the Code. (c) Neither the Company nor any Company Subsidiary has agreed to or is required to make any adjustment pursuant to Section 481(a) of the Code or under any similar provision relating to Subchapter L of the Code (or any predecessor provisions) or any similar provisions of Law, and there is no application pending with any governmental authority, domestic or foreign, having jurisdiction over the assessment, determination, collection or other imposition of Taxes (each, a Taxing Authority ) requesting permis- sion for any changes in any accounting method of the Company or any Company Subsidiary. Neither the United States Internal Revenue Service (including any successor agency, the IRS ) nor any other Taxing Authority has proposed any such adjustment or change in accounting method. (d) For all Tax years through the taxable years ended Decem- ber 31, 1992, the Company and the Company Subsidiaries have been included in a consolidated federal income Tax Return which includes Seller. For the 1993 Tax year and the taxable period ending on the Closing Date, the Company and the Company Subsidiaries will be included in the consolidated federal income Tax Return which includes Seller. (e) Section 3.11 of the Disclosure Schedule sets forth all state, local and foreign consolidated, combined and unitary Tax Returns for the 1992 Tax years filed by or with respect to the Company or any Company Subsidiary. (f) Seller is not a foreign person within the meaning of Section 1445(b)(2) of the Code. (g) Tax (including with correlative meaning, the terms Taxes and Taxable ) means (i) any income, gross receipts, ad valorem, premium, excise, value-added, sales, use, transfer, franchise, license, severance, stamp, occupation, service, lease, withholding, employment, payroll, premium, property or windfall profits tax, alternative or add-on minimum tax, or other tax, fee or assessment, together with any interest and any penalty, addition to tax or additional amount imposed by any governmental authority responsible for the imposition of any such tax, with respect to the Company or any Company Subsidiary and (ii) any liability of the Company or any Company Subsidiaries for the payment of any amount of the type described in clause (i) as a result of the Company or any Company Subsidiary being a member of an affiliated or combined group with, or a successor to, or transferee of, any other corporation at any time on or prior to the Closing Date. 3.12 Contracts. (a) Except for business brokerage commitments entered into in the ordinary course of business consistent with past practice or as set forth in Section 3.12(a) of the Disclosure Schedule, neither the Company nor any Company Subsidiary has, participates in or is bound by or subject to (i) any Contract that contains any severance, parachute or similar payment liabilities or obligations, (ii) any employment, consultation or similar Contract, (iii) any Contract relating to the disposition or acquisition of the stock or assets of, or any interest in, any business enterprise other than with respect to collateral sold in the normal course of business consistent with past practice in amounts not to exceed $25,000 individually or $500,000 in the aggregate in any twelve (12) month period, (iv) any Contract relating to capital expenditures by the Company or any of the Company Subsidiaries and involving or likely to involve future payments which, together with future payments under all other Contracts relating to the same capital project, exceeds $100,000 in any one year or exceeds $500,000 in the aggregate and is not cancelable by the Company or a Company Subsidiary without penalty within 30 days, (v) any other Contract which involves payments by the Company or any of the Company Subsidiaries of $100,000 or more and is not cancelable without penalty within 30 days, (vi) any lease, sublease, installment purchase or similar Contract for personal property calling for annualized payments with respect to such personal property in excess of $100,000, (vii) any indebtedness for borrowed money or any indebtedness evidenced by any promissory notes, (viii) any indebtedness of whatsoever nature (including without limitation open account indebtedness) to Seller or any Affiliate of Seller (other than the Company or any Company Subsidiary), or any Contract with Seller or any Affiliate of Seller (other than the Company or any Company Subsidiary), (ix) any Contract containing any covenant limiting the freedom of the Company or any Company Subsidiary to engage in any line of business or compete with any Person or in any geographic area (other than as may be set forth in the respective corporate charters of the Company or any Company Subsidiary), (x) any Contract limiting the right of the Company or any Company Subsidiary to pay dividends or make distributions, or (xi) any other Contract which involves payments by the Company and/or any Company Subsid- iary(ies) of $100,000 or more. Seller has previously delivered to Buyer each Contract set forth in Section 3.12(a) of the Disclosure Schedule. Each Contract set forth in Section 3.12(a) of the Disclosure Schedule (and each other material Contract to which the Company or any of the Company Subsidiaries is a party) is (A) valid, binding and enforceable in accordance with its terms against the Company and the Company Subsidiaries, as applicable, and, to the best knowledge of each Attributable Person after due inquiry, is valid, binding and enforceable in accordance with its terms against the other parties thereto, in each case except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors rights generally and the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and (B) except as otherwise noted in Section 3.12(a) of the Disclosure Schedule, is in full force and effect without any default thereunder by the Company or any Company Subsidiary or, to the best knowledge of each Attributable Person after due inquiry, by any other party thereto, except to the extent that such default or failure to be valid, binding and enforceable would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. Except as otherwise set forth in Section 3.12(a) of the Disclosure Schedule, none of Seller, the Company or any Company Subsidiary has received written notice of any claim or charge that the Company or any Company Subsidiary has breached any Contract, including those set forth in Section 3.12(a) of the Disclosure Schedule. (b) Each currently existing factoring arrangement and each currently outstanding loan or extension of credit by the Company and each Company Subsidiary (each, a Credit Arrangement ) was solicited, originated and serviced and currently exists in full compliance with all applicable requirements of Law, except where the failure to so comply would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. Each note and instrument evidencing a Credit Arrangement and each loan agreement, credit agreement and security instrument related to each Credit Arrangement constitutes a valid, legal and binding obligation of the obligor thereunder, enforceable in accordance with the terms thereof, except where the failure thereof would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and Company Subsidiaries taken as a whole. Except as set forth in Section 3.12(b) of the Disclosure Schedule, each Credit Ar- rangement is documented to accurately reflect the terms of such Credit Ar- rangement and there are no oral modifications or amendments or additional agreements related to any Credit Arrangement that are not reflected in the records (including in the general financial reporting, factoring and loan administration systems of the Company) of the Company or any Company Subsid- iary which established or services such Credit Arrangement. Except with respect to counterclaims raised in connection with legal actions initiated by the Company as set forth in Section 3.14 of the Disclosure Schedule, no claims of defense as to the enforcement of any Credit Arrangement have been asserted, nor would any act or omission on the part of the Company or any Company Subsidiary give rise to any claim or right of rescission, set-off, counterclaim or defense, except in each case where such modifications, amendments, agreements, claims, defenses, acts or omissions would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. Seller does not make any representation or warranty to Buyer as to the collectibility of amounts owing under any of the Credit Arrangements to the extent that such failure or inability to collect arises out of the insolvency or bankruptcy of customers or borrowers or the inability of customers or borrowers to pay. Section 3.12(b) of the Disclosure Schedule contains true and correct copies of (i) the 1992 and 1993 factoring client annual volume summary (in the case of factoring arrangements), (ii) the finance client summary for the month ended January 31, 1994, (iii) the factoring client sales summary for the month ended December 31, 1993 and (iv) the factoring client daily aging summary for the month ended December 31, 1993. 3.13 Insurance. (a) Section 3.13 of the Disclosure Schedule contains an accurate and complete list of all liability, property, fidelity, workers compensation, directors and officers liability and other policies of insurance, bonds or surety arrangements that insure the business, properties, employees, operations or affairs of the Company or any Company Subsidiary or affect or relate to the ownership, use or operations of any of the properties of any of the Company or any Company Subsidiary. Except as set forth in Section 3.13 of the Disclosure Schedule, to the best knowledge of each Attributable Person after due inquiry, since January 1, 1990 neither the Company nor any Company Subsidiary has been denied any insurance coverage which it has requested. (b) Neither the Company nor any Company Subsidiary is in default with respect to any provision of any insurance policy issued for its benefit nor has the Company or any Company Subsidiary failed to give any notice or present any claim thereunder in due or timely fashion or as required by any of such insurance policies which would result in failure to recover any material amount in full under such policies. 3.14 Litigation. Except as set forth in Sections 3.11 or 3.14 of the Disclosure Schedule, there is no claim, action, suit, inquiry, proceeding, arbitration or investigation by or before any court or governmental or other regulatory, Tax or administrative agency or commission, arbitrator or other tribunal pending or, to the best knowledge of each Attributable Person after due inquiry, threatened, against the Company or any Company Subsidiary, where the amount sought to be recovered is in excess of $100,000 (or is unspecified) or in which punitive or multiple damages or injunctive relief is being sought. Except as set forth in Section 3.14 of the Disclosure Schedule, none of Seller, the Company or any Company Subsidiary has received any written, or, to the best knowledge of each Attributable Person after due inquiry, any other, notice of any claim or assertion of liability on the part of the Company or any Company Subsidiary, the realization of which would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. Except as set forth in Section 3.14 of the Disclosure Schedule, neither the Company nor any Company Subsidiary has been the subject of any proceeding or, to the best knowledge of each Attributable Person after due inquiry, investigation by or before any regulatory authority with jurisdiction over the Company or any Company Subsidiary relating to such company s business practices, from January 1, 1992 through the date hereof. 3.15 Consents and Approvals. Except for the requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act ) or as set forth in Section 3.15 of the Disclosure Schedule, no consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental or regulatory authority or any other Person is required to be made or obtained by Seller, the Company or any Company Subsidiary, or any Affiliate thereof, in connection with the execu- tion, delivery and performance of this Agreement by Seller or the consum- mation by Seller of the transactions contemplated hereby. 3.16 Environmental Matters. (a) Except as set forth in Section 3.16 of the Disclosure Schedule, the Company and each Company Subsidiary is in compliance with all applicable Environmental Laws (as defined in Section 3.16 (j) hereof), which compliance includes, but is not limited to, the possession by the Company Company and each Company Subsidiary of all Permits and other governmental authorizations required under applicable Environmental Laws, and compliance with the terms and conditions thereof, except for any noncompliance or the the absence of any Permits that would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. Except as set forth in Section 3.16 of the Disclosure Schedule, neither the Company nor any Company Subsidiary has received any communication (written or oral), whether from a domestic or foreign governmental authority, citi- zens group, employee or otherwise, that alleges that the Company or any Company Subsidiary is not in compliance with applicable Environmental Laws. All Permits and other domestic or foreign governmental authorizations currently held or used by the Company or any Company Subsidiary pursuant to Environmental Laws are identified in Section 3.16 of the Disclosure Sched- ule. (b) Except as set forth in Section 3.16 of the Disclosure Schedule, there is no Environmental Claim (as defined in Section 3.16(h) hereof) pending or threatened against the Company or any Company Subsidiary or, to the best knowledge of each Attributable Person after due inquiry, against any Person or entity whose liability for any Environmental Claim the Company or any Company Subsidiary has or may have retained or assumed either contractually or by operation of Law, except for any Environmental Claim or Claims that would not or could not reasonably be expected to have, individu- ally or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. (c) Except as set forth in Section 3.16 of the Disclosure Schedule, to the best knowledge of each Attributable Person after due inqui- ry, there are no past or present actions, activities, circumstances, condi- tions, events or incidents, including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental Concern (as defined in Section 3.16(i) hereof), that could form the basis of any Environmental Claim against the Company or any Company Subsidiary as a result of the past or present ownership, or participation in the management (as such phrase is used in Section 3.16(f) hereof), by the Company or any Company Subsidiary (or predecessor to any of them) of any real property, which Environmental Claim or Claims would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. (d) Except as set forth in Section 3.16 of the Disclosure Schedule, neither the Company nor any Company Subsidiary has released, emitted, discharged or disposed of any Material of Environmental Concern at, in, on, under, over or from any property owned or operated by the Company or any Company Subsidiary, except where such release, emission, discharge or disposal would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Compa- ny Subsidiaries taken as a whole. (e) Except as set forth in Section 3.16 of the Disclosure Schedule, neither the Company nor any Company Subsidiary has engaged in activities that could result in the Company or any Company Subsidiary forfeiting a secured creditor exemption in any Environmental Claim brought pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., or an analogous Law, except where such forfeiture would not or could not reasonably be expected to have individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. (f) There exists no facility in which the Company or any Company Subsidiary participates in or may be deemed to participate in the management (as that term has been defined by the United States Environmental Protection Agency in its recently vacated rule found at 40 C.F.R. 300.1100(c) (1993)) based exclusively upon acts or events which occur prior to the Closing. In the event that Seller breaches or has breached the representation set forth in the immediately preceding sentence, then each reference to "Loan Property", the "Company" or any "Company Subsidiary" in this Section 3.16 shall be deemed to include a reference to the property or properties, the existence of and conduct with respect to which results in a breach of the immediately preceding sentence. (g) For purposes of this Agreement, Environmental Claim shall mean any claim, action, cause of action, investigation conducted pursuant to an order, directive or similar demand issued by a domestic or foreign governmental authority or third party, demand, suit, order or notice (written or oral) by any person or entity alleging potential liability (including, without limitation, potential liability for or requirement to incur investigatory costs, cleanup costs, governmental response costs, natu- ral resources damages, property damages, personal injuries, or penalties) arising out of, based on or resulting from (i) the presence, or release into the environment, of any Material of Environmental Concern at any location, whether or not owned or operated by the Company, any Company Subsidiary or any Participation Facility or (ii) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law. (h) For purposes of this Agreement, Environmental Laws shall mean all Laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata), including, without limitation, Laws relating to emissions, discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern. (i) For purposes of this Agreement, Materials of Envi- ronmental Concern shall mean chemicals, pollutants, contaminants, wastes, hazardous or toxic substances, radionuclides, petroleum and petroleum products. (j) For purposes of this Agreement, Loan Property means any property in which the Company or any Company Subsidiary presently holds a security interest. Section 3.16 of the Disclosure Schedule contains an accurate and complete list of all Loan Properties. 3.17 Employee Benefit Plans. (a) Section 3.17(a) of the Disclosure Schedule contains a true and complete list or description of each bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement or arrangement, sponsored, maintained or contributed to or required to be contributed to by Seller, the Company, any Company Subsidiary or by any trade or business, whether or not incorporated (an ERISA Affiliate ), that together with the Company would be deemed a single employer within the meaning of section 4001(b) of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ( ERISA ), for the benefit of any em- ployee or former employee of the Company or any Company Subsidiary, whether formal or informal and whether legally binding or not (the Plans ). Section 3.17 of the Disclosure Schedule identifies each of the Plans that is an employee welfare benefit plan or employee pension benefit plan, as such terms are defined in sections 3(1) and 3(2) of ERISA (such plans being hereinafter referred to collectively as the ERISA Plans ). Except as disclosed in Section 3.17 of the Disclosure Schedule, neither Seller, the Company, any Company Subsidiary nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Plan or modify or change any existing Plan that would affect any employee or terminated or retired employee of the Company or any Company Subsidiary and is not required by Law. (b) With respect to each of the Plans, Seller has heretofore delivered to Buyer true and complete copies of each of the following documents: (i) a copy of the Plan (including all amendments thereto); (ii) a copy of the actuarial report, if required under ERISA, with respect to each such Plan for the last three years; (iii) a copy of the most recent Summary Plan Description ( SPD ), together with all Summaries of Material Modi- fication issued with respect to such SPD, required under ERISA with respect to such Plan, and all other material employee commu- nications relating to such Plan; (iv) all Contracts relating to the Plans with respect to which the Company or any Company Subsidiary may have any liability, including without limitation insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; and (v) the most recent determination letter received from the IRS with respect to each Plan that is intended to be qualified under Section 401 of the Code. (c) No liability under Title IV of ERISA has been incurred by Seller, the Company, any Company Subsidiary or any ERISA Affiliate since the effective date of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to any such party of incurring a liability under such Title, other than liability for premiums due the Pension Benefit Guaranty Corporation ( PBGC ), which payments have been or will be made when due. To the extent this representation applies to sections 4064, 4069 or 4204 of Title IV of ERISA, it is made not only with respect to the ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which Seller, the Company, any Company Subsidiary or any ERISA Affiliate made, or was required to make, contributions during the five (5)-year period ending on the last day of the Company's most recent fiscal year. (d) The PBGC has not instituted proceedings to terminate any of the ERISA Plans and no condition exists that presents a material risk that such proceedings will be instituted. (e) With respect to each of the ERISA Plans that is subject to Title IV of ERISA, the present value of accrued benefits under such Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Plan's actuary with respect to such Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Plan allocable to such accrued benefits. (f) Neither the Company nor any Company Subsidiary, any of the ERISA Plans, any trust created thereunder, nor any trustee or adminis- trator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company or any Company Subsidiary could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (g) Full payment has been made, or will be made in accordance with section 404(a)(6) of the Code, of all amounts which Seller, the Company, any Company Subsidiary or any ERISA Affiliate is required to pay under the terms of each of the ERISA Plans and section 412 of the Code, and all such amounts properly accrued through the Closing with respect to the current plan year thereof will be paid, or be caused to be paid, by Seller on or prior to the Closing or will be properly recorded on the Closing Audit Report; and none of the ERISA Plans or any trust established thereunder has incurred any accumulated funding deficiency (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each of the ERISA Plans ended prior to the date of this Agreement. (h) None of the ERISA plans is a multiemployer plan, as such term is defined in section 3(37) of ERISA. (i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Laws, including but not limited to ERISA and the Code. (j) Each of the ERISA Plans that is intended to be quali- fied within the meaning of section 401(a) of the Code is so qualified or will be so qualified by Seller within the applicable remedial amendment period. (k) Each of the ERISA Plans that is intended to satisfy the requirements of section 501(c)(9) of the Code has so satisfied such require- ments. (l) No amounts payable under the Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. (m) No leased employee, as that term is defined in section 414(n) of the Code, performs services for the Company or any Company Subsidiary. (n) No Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than (i) coverage mandated by applicable Law, (ii) death benefits or retirement benefits under any employee pension benefit plan, as that term is defined in section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the Company Financial Statements and the books of Seller, the Company, a Company Subsidiary or the ERISA Affiliates, or (iv) benefits the full cost of which is borne by the current or former employee (or his beneficiary). (o) With respect to each Plan that is funded wholly or partially through an insurance policy, there will be no liability of Seller, the Company, any Company Subsidiary or an ERISA Affiliate, as of the Closing Date, under any such insurance policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the Closing Date. 3.18 Labor Matters. (a) Section 3.18(a) of the Disclosure Schedule sets forth a list containing the name, position, date of hire, current base salary or wage rate and aggregate annual compensation (including salary, wages, bonuses and commissions) for each full-time and part-time employee of the Company and each Company Subsidiary. Section 3.18(a) of the Disclosure Schedule also sets forth the Company s and Company Subsidiaries policy regarding holiday, accrued holiday, vacation and accrued vacation, sick leave and long-service entitlement (if any), and permitted time off due as compensation for additional time worked for each full-time and part-time employee of the Company and each Company Subsidiary. (b) Neither the Company nor any Company Subsidiary is party to any labor or collective bargaining agreement and there are no labor or collective bargaining agreements which pertain to employees of the Company or any Company Subsidiary. (c) No employees of the Company or any Company Subsidiary are represented by any labor organization. No labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the best knowledge of each Attributable Person after due inquiry, there are no organizing activities involving the Company or any Company Subsidiary pending with any labor organization or group of employees of the Company or any Company Subsidiary. (d) There are no strikes, work stoppages, slowdowns, lockouts, material arbitrations or material grievances or other material labor disputes pending or threatened against or involving the Company or any Company Subsidiary. Except as disclosed in Section 3.18(d) of the Disclo- sure Schedule, there are no unfair labor practice charges, grievances or complaints pending or threatened by or on behalf of any employee or group of employees of the Company or any Company Subsidiary which, if resolved against the Company or such Company Subsidiary, as the case may be, would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. (e) Except as set forth in Section 3.18(e) of the Disclosure Schedule, there are no complaints, charges or claims against the Company or any Company Subsidiary pending or threatened to be brought or filed, with the Company, any Company Subsidiary or any public or governmental authority, arbitrator or court based on, arising out of, in connection with, or otherwise relating to the failure to hire, employment or termination of employment by the Company or any Company Subsidiary, of any individual. (f) The Company and each Company Subsidiary is in compliance with all Laws relating to the employment of labor, including all such Laws relating to wages, hours, collective bargaining, discrimination, civil rights, safety and health, workers compensation and the collection and payment of withholding and/or social security, Medicare and similar Taxes except for non-compliance which would not or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. (g) There has been no mass layoff or plant closing as defined by the Worker Adjustment and Retraining Notification Act or any similar state or local plant closing Law ( WARN ) prior to Closing. (h) Copies of all policy manuals, handbooks, notices to employees and related materials applicable to employees of the Company or any Company Subsidiary have been provided by Seller to Buyer on or prior to the date hereof. (i) Section 3.18(i) of the Disclosure Schedule contains a list of each employee of the Company and of each Company Subsidiary who is on probation, subject to disciplinary action or participating in any employee assistance or counseling program and a description of the nature of and basis for such probation, disciplinary action or participation. 3.19 Bank Accounts. Section 3.19 of the Disclosure Schedule sets forth a list of all bank and other financial institution accounts maintained by the Company or any Company Subsidiary. 3.20 Real Property. Section 3.20 of the Disclosure Schedule contains an accurate and complete list of all interests in real property and buildings and structures of the Company and each Company Subsidiary, includ- ing a brief description of each such parcel, the record title holder of the owned property or the lessor of the leased real property, a list of the deeds or leases and any other instruments under which such real property is held (or which pertain to the title to such real property or the possession or use thereof), the location thereof, the improvements thereon and all Encumbrances which pertain to the interests of each of the Company and each Company Subsidiary in such real property. Except as lien holder or secured party or except as described in Section 3.20 of the Disclosure Schedule, the Company and each Company Subsidiary, as the case may be, has good and indefeasible title in fee simple to all of the real property and buildings specified as owned by it in Section 3.20 of the Disclosure Schedule, owns all leasehold estates and other rights purported to be granted by the leases or other agreements listed therein and has such title or such leasehold estate in all such listed real property and buildings as is required for the conduct of its businesses, as presently conducted, in each case free and clear of all Encumbrances, except: (i) Liens for Taxes, easements or governmental charges or levies if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith by appropriate proceedings and would not or could not reasonably be expected to have, individually or in the aggre- gate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole; (ii) such imperfections of title, if any, as do not individually or in the aggregate materially detract from the value or marketability of such real property as presently used or materially interfere with such real property s present, or to the best knowledge of each Attributable Person after due inquiry, proposed, use; and except as set forth in Section 3.20 to the Disclosure Schedule, all of the buildings and structures to the extent owned or leased by the Company or any Company Subsidiary are in good operating condition and repair, suitable for the purposes for which they are being used and each has adequate rights of ingress and egress for the operation of the businesses of the Company and each Company Subsidiary in the ordinary course of business. All leases of real property and improvements (if any) thereon which are listed in Section 3.20 of the Disclosure Schedule are in full force and effect according to their terms and there are no outstanding defaults by the Company or any Company Subsidiary (nor, to the best knowledge of each Attributable Person after due inquiry, are any of the other parties thereto in default) thereun- der, which default in either case would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. Except as set forth in Section 3.20 of the Disclosure Schedule, upon consummation of the transactions contemplated by this Agreement, each of the Company and the Company Subsidiaries will be entitled to continue to use or possess all real property currently owned or leased by them and used in their respective businesses. 3.21 Personal Property. Section 3.21 of the Disclosure Schedule sets forth a list of all personal property owned by the Company and each Company Subsidiary and identifies and sets forth the tax basis for each item of personal property with a book value equal to or greater than $25,000. Except as indicated in Section 3.21 of the Disclosure Schedule, each of the Company and the Company Subsidiaries has good and valid title to all tangible personal property owned by it, free and clear of all Encumbrances, except for those referred to in clause (i) or (ii) of Section 3.20 hereof. All leases of tangible personal property which are material to the proper- ties, business, operations, prospects or financial condition of each of the Company and the Company Subsidiaries are in full force and effect according to their terms and there are no outstanding defaults by the Company or any Company Subsidiary (nor, to the best knowledge of each Attributable Person after due inquiry, are any of the other parties thereto in default) thereunder, which default in either case would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. 3.22 Intercompany Matters. Except as set forth in Section 3.22 of the Disclosure Schedule, since January 1, 1993, Seller and Seller's Affiliates have conducted their respective business relationships with the Company and the Company Subsidiaries only in the ordinary course of business and have not dealt with or entered into any Contracts with the Company or any of the Company Subsidiaries on terms and conditions less favorable to the Company or any of the Company Subsidiaries than the terms and provisions with respect to similar dealings or Contracts with third parties. Except as set forth in Section 3.22 of the Disclosure Schedule, since January 1, 1993, neither Seller nor any of its Affiliates has provided or has caused to be provided to the Company or any Company Subsidiary, any products, services, equipment, facilities or similar items. 3.23 Brokers and Finders. No broker, finder, investment banker or other Person is entitled to any brokerage, finder or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of Seller, the Company or any Company Subsidiary. 3.24 Disclosure. No representation or warranty by Seller con- tained in this Agreement and no statement contained in the Disclosure Sched- ule or any certificate, instrument or other document delivered by or on behalf of Seller to Buyer pursuant to this Agreement contains or will contain any untrue statement of a material fact, or, to the best knowledge of each Attributable Person after due inquiry, omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, to make the statements herein or therein not mis- leading. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER AND GFC Buyer and GFC hereby represent and warrant to Seller as follows: 4.1 Corporate Organization. Each of Buyer and GFC is a corpora- tion duly organized, validly existing and in good standing under the laws of its respective state of incorporation. 4.2 Authorization, Etc. Each of Buyer and GFC has full corpo- rate power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby. The Board of Directors of each of Buyer and GFC has duly approved and authorized the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and no shareholder approval or other corporate proceedings on the part of Buyer or GFC are necessary to approve and authorize the execution and delivery of this Agreement by Buyer and GFC and the consummation by Buyer and GFC of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Buyer and GFC. This Agreement constitutes a valid and binding obligation of each of Buyer and GFC, assuming the due execution of the Agreement by Seller, enforceable against each of Buyer and GFC in accordance with its terms, except that (a) such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any preceding therefor may be brought. 4.3 No Violation. The execution and delivery of this Agreement by Buyer and GFC will not (a) conflict with or result in a violation of any provision of the charter or bylaws of either of Buyer or GFC, (b) conflict with or result in a violation by Buyer or GFC of any Law, or (c), except as set forth in Section 4.3 of the Disclosure Schedule or except for the applicable requirements of the HSR Act, require any consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental or regulatory authority or any other Person in connection with the execution, delivery and performance of this Agreement by Buyer or GFC or the consummation by Buyer or GFC of the transactions contemplated hereby. 4.4 Acquisition for Investment. Buyer is acquiring the Company Common Stock solely for its own account and not with a view to any distribu- tion or other disposition of such stock or any part thereof, or interest therein, except in accordance with the Securities Act of 1933, as amended (the Securities Act ). 4.5 No Brokers or Other Fees. Except for fees payable to Salomon Brothers Inc which will be paid by Buyer, no broker, finder, invest- ment banker or other Person is entitled to any brokerage, finder or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of Buyer or GFC. ARTICLE V COVENANTS AND AGREEMENTS 5.1 Conduct of Business. Seller will conduct, and cause its Affiliates to conduct, their respective business relationships with each of the Company and each Company Subsidiary only in the ordinary course; provided, however, that except as specifically provided for by the terms of this Agreement, without the prior written consent of Buyer, in no event will Seller permit, and in no event has Seller permitted since the Audit Date, the Company or any Company Subsidiary to enter into any Contract or transac- tion with Seller or any Affiliate of Seller on terms and conditions less favorable to such company than the terms and conditions which could be obtained by such company with respect to similar Contracts or transactions with third parties. Seller further represents and covenants that, except (i) as disclosed in Section 5.1 of the Disclosure Schedule or (ii) as con- sented to by Buyer in writing, from and after the Audit Date and until the Closing Date, Seller has and shall: (a) use(d) reasonable efforts consistent with good business judgment to: (i) preserve intact the present business organization of the Company and the Company Subsidiaries, (ii) keep (kept) available the services of the employees of the Company and each Company Subsidiary, (iii) maintain(ed) in full force and effect all Permits of the Company and the Company Subsidiaries and (iv) preserve(d) the present relationships of the Company and the Company Subsidiaries with Persons having business dealings with them; (b) cause(d) the Company and the Company Subsidiaries to be operated in the ordinary course of business consistent with prior practices; (c) not permit(ted) the Company or any Company Subsidiary to (i) issue or sell, or commit to issue or sell, any shares of capital stock or other securities of the Company or any Company Subsidiary, any options, warrants or commitments or rights of any kind with respect thereto or any convertible or exchangeable securities, (ii) directly or indirectly purchase, redeem or otherwise acquire or dispose of any shares of capital stock or other securities of the Company or any Company Subsidiary, (iii) except in accordance with past practices as described in Section 5.1 of the Disclosure Schedule or as specifically provided in this Agreement, declare, set aside or pay, or commit to pay, any dividend or other distribu- tion on the capital stock of the Company or any Company Subsidiary, (iv) borrow or agree to borrow any funds or incur, whether directly or by way of guarantee, any obligation for borrowed money, other than in the ordinary course of business and consistent with past practices, (v) permit any of the property or assets of the Company or any Company Subsidiary (real, personal or mixed, tangible or intangible) to be subjected to any Encumbrance or otherwise permit or allow the disposition of any property or assets of the Company or any Company Subsidiary (real, personal or mixed, tangible or intangible), other than in the ordinary course of business and consistent with past practices, (vi) make any capital expenditure or execute any lease, lease renewal or lease amendment or incur any commitment or liability therefor, (vii) make or permit to be made any amendment to its charter or bylaws, (viii) make any change in financial reporting or account- ing methods or practices of the Company or any Company Subsidiary (including without limitation any change with respect to establishment of reserves, losses (including without limitation incurred but not reported losses) or any change in depreciation or amortization policies or rates adopted by it), except as required by Law or GAAP and as set forth in Section 5.1 of the Disclosure Schedule and except to the extent required by the Closing Audit or Schedule 1.3 hereto, (ix) knowingly waive or commit to waive any rights the waiver of which would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole, (x) make any change in any of its factoring, asset-based lending or tax or accounting practices or policies, (xi) effect any amendment, termination, waiver, disposal or lapse of, or other failure to preserve, any material Permit of the Company or any Company Subsidiary, or (xii) agree to do any of the foregoing; (d) except as set forth in Section 5.1(d) of the Disclosure Schedule or as specifically provided in this Agreement, cause(d) the Company and the Company Subsidiaries not to (i) make or agree to make any increase in the compensation payable or to become payable to any employee, agent, consultant or other similar representative of the Company or any Company Subsidiary, or make or agree to make any increase in any bonus or incentive compensation or commission Plan, except in each case for any such increases pursuant to agreements in existence on January 1, 1993 with respect to any such Plan or for increases that were made in the ordinary course of business consistent with past practices and that, since January 1, 1993, did not result in an increase of more than 6% of the respective salary, wages or compensation of any such Person, (ii) pay or agree to pay to any employee welfare, pension, retirement, profit-sharing or similar payment or arrangement for any personnel except pursuant to existing Plans and arrange- ments described in Section 3.17 of the Disclosure Schedule, or (iii) enter into any new employment, management or consulting agreement; (e) cause(d) the Company and the Company Subsidiaries not to add to or modify any of the Plans, arrangements or practices described in Section 3.17 of the Disclosure Schedule which addition or modification would affect any of the employees of the Company or the Company Subsidiaries other than (i) contributions in accordance with the normal practices of the Company and the Company Subsidiaries, (ii) the extension of coverage to any other employees who become eligible in accordance with the terms thereof or (iii) amendments or modifications reasonably necessary to comply with applicable Law, in each case, other than in the normal course of business consistent with past practice; (f) maintain(ed) the books and records of the Company and each Company Subsidiary; (g) cause(d) the Company and the Company Subsidiaries not to make any single loan in excess of $5 million or loans exceeding $20 million in the aggregate, in each case without the prior written consent of Buyer; (h) cause(d) the Company and the Company Subsidiaries not to classify or treat as income customer credit balances in excess of $80,000 for each of the months ending December 31, 1993 and January 31 and Febru- ary 28; (i) cause(d) all reserves and other similar amounts reflected in the books and records of the Company and each Company Subsidiary to be established and reflected on a basis consistent with those reserves and other similar amounts and reserving methods followed by the Company or such Company Subsidiary at January 1, 1993 and maintain loan loss reserves of the Company at not less than $6.4 million; (j) maintain(ed) net nonperforming assets at a level not greater than $15.0 million without a corresponding dollar-for-dollar increase in loss reserves; and (k) cause(d) the Company and each Company Subsidiary not to participate in or take any action which may be deemed to constitute participation in the management of any collateral comprised of an interest in real property or from commencing foreclosure proceedings with respect to or undertaking any other action to take possession of any collateral comprised of an interest in real property. 5.2 Additional Financial Statements. As soon as is reasonably practicable, Seller shall furnish to Buyer all monthly and quarterly financial statements of the Company and the Company Subsidiaries prepared in the ordinary course of Seller's and Company's business for each month and all quarterly periods subsequent to September 30, 1993, which shall be prepared on a basis consistent with the Company Financial Statements and Interim Company Financial Statements, subject to normal year-end adjustments and the absence of footnote disclosure. 5.3 Access to Books, Records and Properties. (a) Seller agrees that from the date hereof through the Closing Date, it will give or cause to be given (at no charge, cost or expense to Buyer) to Buyer and its auditors and other representatives and agents full access to all the premises, properties, books, records and employees of the Company and each Company Subsidiary, and to the extent that the same pertain to the Company or any Company Subsidiary, the premises, properties, books and records of Seller and Seller s Affiliates, and to cause their respective officers and employees to furnish to Buyer such financial and operating data and other information with respect to the properties and the conduct of the businesses of the Company and each Company Subsidiary, and to the extent the same pertain to any Participation Facility or Loan Property, the opportunity, at Buyer s expense, to conduct phase I environmental assessments and to the extent Seller can provide access, the premises, properties, books and records of each Participation Facility and each Loan Property securing a non-performing Credit Arrangement, as Buyer shall from time to time request; provided, however, that any such investi- gation shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the operation of the businesses of Sell- er, the Company, any Company Subsidiary, any Participation Facility or any non-performing Loan Property. (b) Except in accordance with Seller s record retention policy (the Record Retention Policy ), a copy of which has previously been provided to Buyer, Seller agrees not to destroy (or permit the Company or any Company Subsidiary to destroy) at any time any files or records which are referred to in this Section 5.3 without giving reasonable notice to Buyer and within thirty (30) days of receipt of such notice Buyer may cause to be delivered to it the records intended to be destroyed, at Buyer s expense. (c) Any investigation conducted by or on behalf of Buyer pursuant to this Section 5.3 or otherwise shall not affect Buyer s right to rely on the representations and warranties of Seller set forth herein. 5.4 Filings and Consents. (a) To the extent not already so done, as soon as practicable after execution and delivery of this Agreement, Buyer and Seller shall make all additional filings required under the HSR Act relating to the transactions contemplated hereby. The parties hereto will cooperate with each other with respect to obtaining, as promptly as practicable, all necessary consents, approvals, authorizations and agree- ments of, and the giving of all notices and make all other filings with, any third parties, including governmental authorities, necessary to authorize, approve or permit the consummation of the transactions contemplated hereby. (b) Seller will take (and will cause each of the Company and Company Subsidiaries to take), (i) all commercially reasonable steps neces- sary or desirable, and proceed diligently and in good faith and use all commercially reasonable efforts, to obtain as promptly as practicable the approvals, authorizations and consents listed in Section 3.6 of the Disclosure Schedule and (ii) provide such information and communications to the Persons requiring such approvals, authorizations and consents as Buyer or such Persons may reasonably request. 5.5 Tax Matters. (a) Section 338 Elections and Forms. With respect to Buyer s acquisition of the Company Common Stock hereunder, at Buyer s option Seller and Buyer shall jointly make all available Section 338(h)(10) Elec- tions (as defined in Section 5.5(k)(iv) hereof) in accordance with applica- ble Tax Laws on a timely basis and as set forth herein. Seller and Buyer will supply in advance to one another copies of all correspondence, filings or communications (or memoranda setting forth the substance thereof) to be sent or made by Buyer or Seller or their respective representatives to or with the IRS relating to any Section 338 Elections (as defined in Section 5.5(k)(ii) hereof). Buyer and Seller agree to report the transfers under this Agreement consistent with any Section 338(h)(10) Elections, and shall take no position contrary thereto unless required to do so by applicable Tax Laws pursuant to a determination (as described in Section 1313 of the Code). (b) Buyer shall be responsible for the preparation and filing of all Section 338 Forms (as defined in Section 5.5(k) (i) hereof) in accordance with applicable Tax Laws and the terms of this Agreement, and Buyer shall deliver such forms and related documents to Seller at least forty (40) days prior to the date such Section 338 Forms are required to be filed under applicable Tax Laws for Seller s review and approval (such approval not to be unreasonably withheld). If reasonably acceptable to Seller in all respects, Seller shall execute and deliver to Buyer such docu- ments or forms as are reasonably requested by Buyer and are required by any Tax Laws to properly complete the Section 338 Forms, no more than twenty (20) days after the date such documents or forms are requested by Buyer. (c) If the Section 338(h)(10) Election is made, Seller and Buyer will allocate the Modified Aggregate Deemed Sale Price, as computed under applicable Treasury Regulations (or similar state law provisions), among the Company s and the Company Subsidiaries assets for tax purposes in accordance with Buyer s and Seller's joint reasonable determination of their fair market values. (d) Taxable Periods Ending On or Before the Closing Date. Seller shall be liable for, shall pay and shall indemnify and hold Buyer and the Company and Company Subsidiaries harmless against, all Taxes of the Company and Company Subsidiaries for any taxable year or taxable period ending on or before the Closing Date due or payable with respect to the operations, assets or business of Seller, the Company and Company Subsidiaries on or before the Closing Date, including any Taxes resulting from the making of the Section 338 Elections and any liability for Taxes pursuant to Treasury Regulation Section 1.1502 6, (or any similar provision of Law), but only to the extent that the amount of such Taxes exceeds the amount of Taxes currently payable that have been reserved for on the Audit Date balance sheet included in the Closing Audit Report. Seller shall determine the amount of taxable income of the Company and Company Subsidiaries for the taxable year ending on the Closing Date on the basis of its permanent records (including workpapers) in a manner consistent with Treasury Regulation Section 1.1502-76(b)(4)(i) and (ii). Such determination shall be subject to the dispute resolution procedures of subsection (j) of this Section 5.5. (e) Taxable Periods Commencing After the Closing Date. Buyer shall be liable for, shall pay and shall indemnify and hold Seller or any Affiliate harmless against, any and all Taxes of the Company and Company Subsidiaries for any taxable year or taxable period commencing after the Closing Date and for any Taxes accrued on the Audit Date balance sheet included in the Closing Audit Report other than any Taxes resulting from Section 338 Elections. (f) Taxable Periods Commencing On or Before the Closing Date and Ending After the Closing Date. Any Taxes for a taxable period beginning on or before the Closing Date and ending after the Closing Date (the Clos- ing Period ) with respect to the Company and Company Subsidiaries shall be apportioned between Seller and Buyer based on the actual operations of the Company and Company Subsidiaries during the portion of such period ending on the Closing Date (the Pre-Closing Period ) and the portion of such period beginning on the day following the Closing Date but with Seller bearing the effect of all Section 338 Elections, and for purposes of subsections (d), (e), and (g) of this Section 5.5, each portion of such period shall be deemed to be a taxable period. With respect to any Taxes for the Closing Period: (i) at least thirty days prior to the due date for the payment of Taxes with respect to the Closing Period, Buyer shall present Seller with a schedule detailing the computation of the Pre-Closing Period Tax; (ii) twenty-five (25) days after Buyer presents Seller with the schedule described in clause (i) above, Seller shall pay the Company and Company Subsidiaries the amount of the undisputed Pre-Closing Period Tax as computed by Buyer to the extent such Taxes have not been reserved for on the Audit Date balance sheet included in the Closing Audit Report, and Buyer shall pay all other Taxes with respect to the Closing Period; and (iii) in the event Seller disputes Buyer s compu- tation of the Pre-Closing Period Tax or any of the payments de- scribed in clause (ii) above, Seller shall not be required to pay any disputed amount requested pending the resolution of such dispute in accordance with subsection (j) of this Section 5.5. If upon such resolution it is determined that any of such disputed amount is payable to Buyer and such disputed amount payable to Buyer has not been paid to Buyer as of the expiration of the period described in clause (ii) above (the Due Date ), Seller shall pay to Buyer, in addition to such disputed amount payable to Buyer, interest computed thereon at the applicable federal rate for large corporate underpayments (within the meaning of Section 6621 of the Code) in effect from time to time from the Due Date to the date of payment. (g) Refunds or Credits. Except as otherwise set forth in this Agreement, any refunds or credits of Taxes, to the extent that such refunds or credits are attributable to taxable periods ending on or before the Closing Date and are in excess of those reflected on the Audit Date balance sheet included in the Closing Audit Report, shall be for the account of Seller, and, to the extent that such refunds or credits are attributable to taxable periods beginning after the Closing Date or are reflected on the Audit Date balance sheet included in the Closing Audit Report, such refunds or credits shall be for the account of Buyer. To the extent that such refunds or credits are attributable to Taxes for the Closing Period that are described in Section 5.5(f), such refunds and credits shall be for the account of the party who bears responsibility for such Taxes pursuant to Section 5.5(f). Buyer shall cause the Company and Company Subsidiaries promptly to forward to Seller or to reimburse Seller for any such refunds or credits due Seller pursuant to this subsection (g) after receipt thereof by any of Buyer, the Company or any Company Subsidiary of an aggregate of at least $10,000 of such refunds or credits that are for the account of Seller hereunder, and Seller shall promptly forward to Buyer or reimburse Buyer for any refunds or credits due Buyer after receipt thereof by Seller of an aggregate of at least $10,000 of such refunds or credits that are for the account of Buyer hereunder; provided, however, that the refunding party shall be entitled to deduct from the amount to be refunded all reasonable costs and expenses incurred by such refunding party in obtaining such refund, but such deduction shall not be included in calculating whether the $10,000 refund and credit threshold noted above has been reached. (h) Mutual Cooperation. As soon as practicable, but in any event within fifteen (15) days after Seller s or Buyer s request, as the case may be, Buyer shall deliver to Seller, or Seller shall deliver to Buyer, as the case may be, such information and other data relating to the Tax Returns and Taxes of the Company and Company Subsidiaries and shall make available such knowledgeable employees of Seller, Buyer, the Company or Company Subsidiaries or any of their Affiliates, as the case may be, as Seller or Buyer, as the case may be, may reasonably request, including providing the information and other data customarily required by Seller or Buyer, as the case may be, to cause the completion and filing of all Tax Returns for which it has responsibility or liability under this Agreement or to respond to audits by any Taxing Authorities with respect to any Tax Returns or Taxes for which it has any responsibility or liability under this Agreement or to otherwise enable Seller or Buyer, as the case may be, to satisfy its accounting or tax requirements. Notwithstanding Sections 5.3(b) and 5.7 hereof, for a period of seven years from and after the Closing, Buyer shall, and shall cause the Company and Company Subsidiaries to, maintain and make available to Seller on Seller s reasonable request, and Seller shall, and shall cause its Affiliates to, maintain and make available to Buyer, on Buyer s reasonable request, copies of any and all information, books and records referred to in this Section 5.5(h). After such seven-year period, Seller, Buyer or the Company and Company Subsidiaries may dispose of such information, books and records, provided that prior to such disposition the other party hereto shall be offered the opportunity to take possession of such information, books and records. (i) Contests. Whenever any Taxing Authority asserts a claim, makes an assessment, or otherwise disputes the amount of Taxes for which Seller is or may be liable under this Agreement, Buyer shall promptly inform Seller and Seller shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute to the extent such proceedings or determinations would materially affect the amount of Taxes for which Seller is liable under this Agreement. Whenever any Taxing Authority asserts a claim, makes an assess- ment or otherwise disputes the amount of taxes for which Buyer is liable under this Agreement, Seller shall promptly inform Buyer, and Buyer shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute to the extent such proceedings would materially affect the amount of Taxes for which Buyer is liable under this Agreement. (j) Resolution of Disagreements between Seller and Buyer. If Seller and Buyer disagree as to the amount of Taxes for which each is liable under this Agreement, Seller and Buyer shall promptly consult each other in an effort to resolve such dispute. If any such point of disagreement cannot be resolved within fifteen (15) days of the date of consultation, Seller and Buyer shall within ten (10) days after such 15-day period jointly engage an auditor (other than the Auditor or Deloitte & Touche) (the Tax Auditor ) to act as an arbitrator to resolve all points of disagreement concerning tax accounting matters with respect to this Agree- ment. If the parties cannot agree on the selection of a Tax Auditor within such 10-day period, then the matter shall be resolved pursuant to Section 9.3, except that the arbitrator shall be an attorney or certified public accountant proficient in relevant Tax matters. All fees and expenses relating to the work performed by any Tax Auditor or arbitrator in accordance with this Section 5.5(j) shall be borne equally by Seller and Buyer, unless otherwise ordered by the Tax Auditor or arbitrator. (k) Certain Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (i) Section 338 Forms shall mean all returns, documents, statements, and other forms that are required to be submitted to any federal, state, county, or other local Taxing Au- thority in connection with a Section 338(g) Election or a Section 338(h)(10) Election. Section 338 Forms shall include, without limitation, any statement of section 338 election and United States Internal Revenue Service Form 8023 (together with any schedules or attachments thereto) that are required pursuant to Treas. Reg. Section 1.338-1T or Treas. Reg. Section 1.338(h)(10)- 1T. (ii) Section 338 Elections means both a Section 338(g) Election and a Section 338(h)(10) Election. (iii) Section 338(g) Election means an election described in Section 338(g) of the Code or deemed election described in Section 338(e) of the Code with respect to Buyer s acquisition of the Company Common Stock pursuant to this Agree- ment. Section 338(g) Election shall also include any substan- tially similar elections under a state or local statute corre- sponding to federal Laws. (iv) Section 338(h)(10) Election means an election described in Section 338(h)(10) of the Code with respect to Seller s sale of the Company Common Stock to Buyer pursuant to this Agreement. Section 338(h)(10) Election shall also include any substantially similar election under a state or local statute corresponding to federal Laws. (v) Tax Laws means the Code and any other Laws relating to Taxes and any official administrative pronouncements released thereunder. (l) Notwithstanding any other provision of this Section 5.5, Buyer or the Company shall pay to Seller with respect to the net income earned by the Company and the Company Subsidiaries for the period February 1, 1994 to the Closing Date, which income shall not include any amount that may be recognized as a result of the transactions contemplated by this Agreement, (x) Hypothetical Federal Income Tax and (y) Actual State Income Tax. Hypothetical Federal Income Tax shall be paid at the time of final settlement of the Adjusted Net Income (Loss) of the Company for the Interim Period as specified in Section 1.3(e) hereof, and Actual State Income Tax shall be paid within two (2) business days after Buyer and Seller reasonably agree to the amount thereof. For purposes of this subsection (i) "Hypothetical Federal Income Tax" shall mean federal income tax payable by Seller and its subsidiaries on the taxable income of the Company and its subsidiaries at an assumed 35% rate if the Company and Company Subsidiaries are included in the consolidated federal income tax return for the applica- ble period as the common parent of an affiliated group (as defined in Section 1504 of the Code) and (ii) "Actual State Income Tax" shall mean the actual state tax liability the Seller must pay on behalf of the Company and the Company Subsidiaries to a Taxing Authority for the applicable period. 5.6 Acquisition Proposals to the Company. Seller shall not, and Seller shall cause the Company and the Company s employees, agents, and representatives (including, without limitation, any investment banker, attorney or accountant retained by or on behalf of Seller or any of Seller s Affiliates) not to, initiate, solicit or encourage, directly or indirectly, any inquiry or the making of any proposal with respect to a merger, consolidation, share exchange or similar transaction involving the Company or any Company Subsidiary, any purchase of all or any significant portion of the assets of the Company or any Company Subsidiary or the sale of the Company Common Stock or any equity interest in the Company or any Company Subsidiary (an Acquisition Proposal ), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal. Seller shall promptly inform Buyer of all Acquisition Proposals received by the Company, any Company Subsidiary, Seller or any representative of any such party after the date hereof and provide a copy of any correspondence or other documentation received in connection therewith. Seller, the Company, each Company Subsidiary and each such company's employees, agents and repre- sentatives have terminated and discontinued all prior discussions and negotiations relating to all Acquisition Proposals other than as contemplated by this Agreement. 5.7 Books, Records and Information. Seller agrees that except in accordance with the Record Retention Policy, all documents that are retained by Seller after the Closing Date and that are related to the Compa- ny or any Company Subsidiary shall be open for inspection by representatives of Buyer at any time during regular business hours until such time as docu- ments are destroyed (after not less than thirty (30) business days prior notice to Buyer during which period Buyer shall have the opportunity to take possession of such records) or possession thereof is given to Buyer and that Buyer may during such period at its expense make such copies thereof as it may reasonably request. Buyer agrees that except in accordance with Buyer s record retention practices, all documents that are retained by Buyer after the Closing Date and that are related solely to the operations of the Company or any Company Subsidiary prior to the Closing Date shall be open for inspection by representatives of Seller at any time during regular business hours until such time as such documents are destroyed (after not less than thirty (30) business days prior notice to Seller during which period Seller shall have the opportunity to take possession of such records) or possession thereof is given to Seller and that Seller may during such period at its expense make such copies thereof as it may reasonably request. 5.8 Supplements to Disclosure Schedule; Notice and Cure. (a) From time to time prior to the Closing, Seller and Buyer will promptly supplement or amend the sections of the Disclosure Schedule relating to their respective representations and warranties in this Agreement with respect to any matter, condition or occurrence hereafter arising which, if existing or occurring at the date of this Agreement, would have been required to be set forth or described in their respective sections of the Disclosure Schedule or would otherwise have been inconsistent with their representations set forth in this Agreement. No supplement or amend- ment by either party shall be deemed to cure (or affect the rights of any party with respect to) any breach of any representation or warranty made in this Agreement or have any effect for the purpose of determining satisfaction of the conditions set forth in Articles VI or VII hereof. (b) Seller and Buyer shall inform the other in writing of, and contemporaneously with such notice will provide to the other true and complete copies of all information and documents relating to, any event, transaction or circumstance occurring after the date hereof that causes or is reasonably likely to cause any of its covenants or agreements under this Agreement to be breached or that renders or is reasonably likely to render untrue any of its representations or warranties contained in this Agreement. Seller and Buyer shall use commercially reasonable efforts to cure, before the Closing, (a) any such breach or misrepresentation by it and (b) any violation or breach of any of its representations, warranties, covenants or agreements in this Agreement, whether occurring or arising before or after the date hereof. 5.9 Covenant to Satisfy Conditions. Seller and Buyer agree to use all reasonable efforts to assure that the conditions to the other party s obligations hereunder set forth in Article VI and Article VII hereof are satisfied, insofar as such matters are within the control of such party. 5.10 Employee Benefits and Employment. (a) Except as otherwise provided in paragraph (c) of this Section 5.10, the Company and Company Subsidiaries shall cease to partici- pate in the Plans as of the Closing Date, and the Company and Company Subsidiaries shall have no liability thereunder subsequent to such date. Seller shall be liable for all obligations to employees, former employees, participants, and their respective dependents and beneficiaries arising under said Plans, including any obligations for severance under any severance plan, policy or Contract, on or before the Closing Date or which arise due to the sale of the Company Common Stock pursuant to the terms hereof. Buyer shall be obligated to pay severance to any Employee (as defined below) whose employment with the Company is terminated by the Company other than for cause during the six-month period immediately following the Closing. In the event that severance benefits payable under the Buyer Plans (as defined below) for such six-month period to any Employees who are terminated subsequent to the Closing is less in amount than the severance benefits such Employees would have been entitled to under the Plans, then Buyer shall cause the Company to supplement the amounts payable under Buyer Plans to the extent necessary such that the total severance benefits paid to each such Employee for such period equals the amount which such Employees would have received under the Plans. There shall be no transfer of assets from any Plan to Buyer or any employee benefit plan maintained by Buyer, and Buyer shall have no right, title or interest in or liability under any Plan except as otherwise provided in paragraph (c) of this Section 5.10. (b) Each employee of the Company and the Company Subsidiaries on the Closing Date (each, an Employee ) shall be eligible for participation in the employee welfare benefit plans and the employee pension benefit plans, as such terms are defined in sections 3(1) and 3(2) of ERISA, maintained by Buyer and as in effect from time to time (the Buyer Plans ). The Employees shall be subject to any eligibility conditions con- tained in the Buyer Plans, except that with respect to life, health and dental plans, Employees participating in Seller medical plans immediately prior to the Closing Date and not subject to the preexisting condition exclusions of such plans shall not be subject to the preexisting condition exclusions of such Buyer Plans. Each Employee shall receive full credit for past service to the Company and the Company Subsidiaries for the purposes of satisfying any eligibility requirements and vesting requirements of the Buyer Plans and for purposes of determining employer contributions under Buyer's Retiree Medical Insurance Plan (but not for benefit accrual or calculation purposes under any plans other than Buyer's Retiree Medical Insurance Plan) to the extent such service is recognized for such purpose under the comparable Plan. Buyer shall give each Employee credit towards the deductible on Buyer s medical and dental plans to the extent such pay- ments were made to a comparable Plan by such Employee during 1994 for expenses incurred during 1994. Buyer shall have no liability or obligation under any employment, consulting or severance arrangements established by Seller. Seller shall give Employees credit for their post-Closing service with the Company and Company Subsidiaries under Buyer's Pension Plan for vesting, but not for accruing additional benefits, and Buyer shall provide appropriate employment information to allow Seller to do so. (c) Seller shall amend its Savings Plan to permit Employees of the Company and the Company Subsidiaries who are participants in Seller's Savings Plan, in their discretion, and in accordance with Treas. Reg. 1.411(d)-4Q&A3(b) and other applicable law, to receive a distribution of their account balances in such plan or to make a direct transfer thereof to Buyer's Savings Plan. Seller shall offer to lend to any such Employee who elects to make a direct rollover to Buyer's Savings Plan and whose account is subject to an outstanding loan as of the Closing Date an amount equal to the balance of such outstanding loan for a period of ninety (90) days after such transfer, and Buyer shall make loans available from its Savings Plan within said period to enable the Employee to repay Seller. Any shares of Seller stock included in an account balance rolled over to Buyer's Savings Plan shall be held in a separate investment account thereunder and may, within two (2) years of the Closing Date, be transferred to another investment option within Buyer's Savings Plan. Buyer and Seller agree to cooperate as reasonably necessary to effectuate the provisions of this Section 5.10(c). (d) Seller shall continue to carry Employees on its payroll and provide them with health and dental benefits in accordance with their existing elections until the end of the month in which the Closing occurs, at which time they shall be transferred to Buyer's payroll and health and dental plans. For the period beginning with the Closing and ending with the end of the month in which the Closing occurs, Buyer shall hold Seller harm- less and reimburse it for (i) all payroll expenses, including, without limiting the generality of the foregoing, wages, payroll taxes and worker's compensation premiums with respect to the employment of Employees after the Closing, and (ii) all liabilities and obligations of Seller for health and dental benefits and administration expenses payable under Seller's plans relating to health and dental services provided to Employees and their dependents after the Closing. 5.11 Company Name. (a) From and after the Closing, Buyer, the Company and the Company Subsidiaries shall not conduct business under the name Fleet Factors Corp. or any other name incorporating the word Fleet; nor shall Buyer use in any manner the Fleet logos or service marks currently used by the Company and the Company Subsidiaries; provided, however, that Buyer, the Company and the Company Subsidiaries shall be permitted to use any such name, logos and service marks (i) in connection with collection and legal proceedings involving Credit Arrangements established on or prior to the Closing Date, (ii) in announcements of the transaction distributed to current or former customers of the Company or any Company Subsidiary or otherwise, (iii) on any document or other materials used in the operation of the businesses of the Company and the Company Subsidiaries, including, without limitation, sales material, forms of agreements, invoices, letterhead and business cards in existence on the Closing Date, until deple- tion, but in no event after the first anniversary of the Closing Date. Notwithstanding the foregoing, Buyer shall not at any time be obligated hereunder to amend Credit Arrangement documents (including financing state- ments or similar documents) to alter the Company s name or any name under which the Company conducts or has conducted business or otherwise. From and after the Closing, Buyer, the Company and each Company Subsidiary shall have the unrestricted right to use the name Ambassador Factors and the names set forth in Section 5.11 of the Disclosure Schedule. (b) From and after the Closing, Seller shall not, and shall not permit Seller s Affiliates to, conduct business under or otherwise use the names Ambassador or Ambassador Factors or any other name incorporat- ing such words. (c) Prior to the Closing, Seller shall cause the Company to change the Company s name to Ambassador Factors Corp. 5.12 Covenant Not to Compete. (a) To more effectively transfer and protect the business and goodwill of the Company and the Company Subsid- iaries, Seller agrees that, for a period beginning immediately after the Closing Date and ending on the third anniversary thereof, neither Seller nor any current or future Affiliate of Seller will, without Buyer's prior written consent (i) directly or indirectly own, manage, operate, participate in, perform marketing, servicing or sales services for or otherwise carry on in a business providing the services currently provided by the Company or any Company Subsidiary in any state in the United States or (ii) directly or indirectly solicit any current employee of Buyer, the Company or any Company Subsidiary to pursue employment opportunities other than with Buyer, the Company or any Company Subsidiary. Notwithstanding the foregoing clause (i), Seller shall not be prohibited from (i) acquiring any bank or bank holding company owning a factoring affiliate providing not more than 25% of such acquired bank or bank holding company s revenue on a consolidated basis in the year preceding such acquisition, (ii) acquiring any Person which generated less than 25% of such Person s revenue by factoring accounts receivable in any of the three years preceding such acquisition, (iii) participating in asset-based financing transactions in the ordinary course of business, (iv) participating in accounts receivable financing transactions in the ordinary course of business, or (v) participating in occasional factoring transactions entered into in connection with the ordinary course of Seller s business. Notwithstanding the foregoing, neither Seller nor Seller's Affiliates shall engage in activities otherwise permitted by this Section 5.12 with existing or prospective customers of the Company or any Company Subsidiary, all of which are identified in Section 5.12 of the Disclosure Schedule, or with any Employee, except for participations with those two customers specifically designated in Section 5.12 of the Disclosure Schedule at levels not to exceed participation levels as of the date of this Agreement. (b) If, at the time of enforcement of this Section 5.12, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, Buyer and Seller agree that the maximum duration, scope or area permissible under such circumstances shall be substituted for the stated duration, scope or area, it being agreed by the parties that the covenant set forth in the first clause (i) above constitutes a separate and independent covenant with respect to each state of the United States. (c) Seller acknowledges that Buyer has no adequate remedy at law and would be irreparably harmed were Seller to breach or threaten to breach the provisions of this Section 5.12, and therefore agrees that in addition to any other legal or equitable remedy it may have, the Company shall be entitled to injunctive relief to prevent any breach or threatened breach of this Section 5.12. 5.13 Confidentiality. Each party hereto will hold and will cause its officers, directors, employees, consultants, advisors and other agents to hold in strict confidence, unless compelled to disclose by judicial or administrative process or, in the opinion of its counsel, by other requirements of Law (collectively, Legal Requirements ), all confidential documents and information concerning the other party furnished it by such other party or its representatives in connection with the trans- actions contemplated by this Agreement (except to the extent that such information (i) is or was previously known by the party to which it was fur- nished, (ii) is or becomes in the public domain through no fault of such party, or (iii) is later lawfully acquired from other sources by the party to which it was furnished), and each party will not release or disclose such information to any other person, except its auditors, attorneys, financial advisors and other consultants and advisors in connection with this Agreement (unless compelled to so disclose by Legal Requirements) and shall not use such information other than in connection with this Agreement or the transactions contemplated hereby until after the Closing Date. If the transactions contemplated by this Agreement are not consummated, such confidence shall be maintained to the extent required above, and such infor- mation shall not be used to the detriment of, or in relation to any investment in, the other party and all such documents (including copies thereof) shall be returned to the other party immediately upon the written request of such other party. Each party shall be deemed to have satisfied its obligation to hold confidential information concerning or supplied by the other party if it exercises the same care as it takes to preserve con- fidentiality for its own similar information. 5.14 Employment Agreement. Seller shall have the opportunity prior to Closing to review the employment agreement required by Section 7.9 hereof (the Employment Agreement ). 5.15 Certain Other Obligations. Seller hereby agrees to perform each obligation of Seller set forth in that certain letter agreement dated November 29, 1993 by and among GFC, Seller, the Company and Mr. Howard Rubin. 5.16 Intercompany Obligations After the Audit Date. All inter- company liabilities other than intercompany debt as referred to in Section 6.6 hereof (including accrued management expenses, tax obligations and accrued bonuses) outstanding as of the Closing Date with respect to the Interim Period and owed by the Company or any Company Subsidiary to Seller or any Seller Affiliate (other than the Company or any Company Subsidiary) shall be paid to Seller at the time of the payment of the Adjusted Net Income (Loss) of the Company for the Interim Period. An Auditor's Review Certification shall be delivered with respect to the determination of such amount. 5.17 Certain Appeal Bonds. GFC hereby agrees that promptly after the Closing Date it will cause itself or the Company to be substituted for, or will replace, Seller with respect to those three (3) appeal bonds set forth in Section 3.12(a) of the Disclosure Schedule. Notwithstanding anything to the contrary contained in this Agreement, all costs and expenses and other Claims arising in connection with the provisions of the immediately preceding sentence shall be applied against the $350,000 annual threshold described in Section 1.4(v) hereof. ARTICLE VI CONDITIONS TO OBLIGATIONS OF SELLER The obligations of Seller to consummate the transactions contem- plated by this Agreement are subject, in the discretion of Seller, to the fulfillment, at or prior to the Closing, of each of the following condi- tions, unless waived in writing by Seller. 6.1 Representations and Warranties. The representations and warranties made by Buyer in this Agreement shall be true and correct in all material respects as of the date hereof and on and as of the Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date. 6.2 Performance. Buyer shall have performed in all material respects all of its obligations under this Agreement to be so performed by Buyer on or prior to the Closing Date. 6.3 Corporate Documents. Seller shall have received from Buyer resolutions adopted by the Board of Directors of Buyer approving this Agreement and the transactions contemplated hereby, certified by Buyer s corporate secretary or assistant secretary. 6.4 Officer s Certificate. Buyer shall have delivered to Seller a certificate, dated the Closing Date and executed by an appropriate officer of Buyer, certifying to the fulfillment of the conditions specified in Sec- tions 6.1 and 6.2 hereof. 6.5 Injunctions. On the Closing Date, there shall be no injunc- tion, writ, preliminary restraining order or other order in effect of any nature issued by a court or governmental agency of competent jurisdiction directing that the transactions provided for herein not be consummated, and no proceeding seeking such action shall be pending or threatened. 6.6 Intercompany Obligations. Intercompany debt and accrued and unpaid interest thereon outstanding as of the Closing Date and owed by the Company or any Company Subsidiary to Seller or any Seller Affiliate (other than the Company or any Company Subsidiary) (currently estimated to be ap- proximately $180,000,000) shall have been refinanced by Buyer or a Buyer Affiliate at the par value thereof plus accrued and unpaid interest. 6.7 Opinion of Counsel. Seller shall have received the opinions of counsel for Buyer substantially in the forms attached hereto as Annex C. 6.8 Governmental Filings and Consents; Third-Party Consents. All consents, approvals and waivers from governmental authorities or agencies or other Persons necessary to permit Buyer and Seller to consummate the transactions contemplated hereby shall have been obtained. ARTICLE VII CONDITIONS TO OBLIGATIONS OF BUYER The obligations of Buyer to consummate the transactions contem- plated by this Agreement are subject, in the discretion of Buyer, to the fulfillment, at or prior to the Closing, of each of the following condi- tions, unless waived in writing by Buyer. 7.1 Representations and Warranties. The representations and warranties made by Seller in this Agreement shall be true and correct in all material respects as of the date hereof and on and as of the Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date. 7.2 Performance. Seller shall have performed in all material respects all of its obligations under this Agreement to be so performed by Seller on or prior to the Closing Date. 7.3 Corporate Documents. Buyer shall have received from Seller resolutions adopted by the Board of Directors of Seller approving this Agreement and the transactions contemplated hereby, certified by Seller s corporate secretary or assistant secretary. 7.4 Officer s Certificate. Seller shall have delivered to Buyer a certificate, dated the Closing Date and executed by Seller, certifying to the fulfillment of the conditions specified in Sections 7.1 and 7.2 hereof. 7.5 Injunctions. On the Closing Date, there shall be no injunc- tion, writ, preliminary restraining order or other order in effect of any nature issued by a court or governmental agency of competent jurisdiction directing that the transactions provided for herein not be consummated as provided herein, and no proceeding seeking such action shall be pending or threatened. 7.6 Termination of Tax Sharing Agreements. Buyer shall have received instruments in form and substance satisfactory to Buyer, terminating each Tax sharing Contract to which the Company or any Company Subsidiary is a party. 7.7 Governmental Filings and Consents; Third-Party Consents. All consents, approvals and waivers from governmental authorities or agencies or, except with respect to that certain matter referred to in the first item of Section 3.15 of the Disclosure Schedule, other Persons neces- sary to permit Buyer and Seller to consummate the transactions contemplated hereby shall have been obtained. 7.8 Opinion of Counsel. Buyer shall have received the opinions of counsel for Seller substantially in the forms attached hereto as Annex D. 7.9 Employment Agreement. Buyer shall have received the Employ- ment Agreement described in that certain letter agreement dated November 29, 1993 among Buyer, Seller, the Company and Mr. Howard Rubin, in form and sub- stance satisfactory to Buyer and duly executed by Mr. Howard Rubin. 7.10 Resignations. Seller shall have delivered all required resignations of officers and directors of the Company and each Company Subsidiary as required by Section 2.2(a)(iv). 7.11 Assumption and Indemnification Agreement. Seller shall have delivered to Buyer the Assumption and Indemnification Agreement in the form of Annex B. 7.12 Environmental Assessments. Buyer shall have completed Phase I environmental assessments of the property owned or leased by the Company or any Company Subsidiaries, as well as the Participation Facilities and non-Performing Loan Properties, in each case selected by Buyer with results not inconsistent with Seller s representation set forth in Section 3.16 hereof. 7.13 Absence of Certain Changes. Subject to Section 8.1(f) hereof, since the date hereof, there shall not have occurred and no facts or circumstances shall have arisen or been discovered which would or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and the Company Subsidiaries taken as a whole. 7.14 Intercompany Obligations. All intercompany liabilities other than intercompany debt as referred to in Section 6.6 hereof (including accrued management expenses, tax obligations and accrued bonuses) outstand- ing as of the Audit Date and owed by the Company or any Company Subsidiary to Seller or any Seller Affiliate (other than the Company or any Company Subsidiary) shall have been paid by the Company. Notwithstanding anything to the contrary contained in this Agreement, including Section 1.4 hereof, all intercompany liabilities which the Company is required to have paid or caused to have been paid pursuant to this Section 7.14 shall, to the extent not so paid, be deemed waived, discharged and forgiven prior to Closing, and from and after the Closing, neither the Company nor any Company Subsidiary shall have any obligation with respect thereto. ARTICLE VIII TERMINATION 8.1 Termination. This Agreement may be terminated and abandoned at any time prior to Closing: (a) by the mutual written consent of Seller and Buyer; (b) by either Seller or Buyer in the event the Closing has not occurred by April 1, 1994 (the Cut-Off Date ), unless the failure of such consummation shall be due to the failure of the party seeking to terminate this Agreement to fulfill any obligation under this Agreement; provided, however, that in the event the Closing does not occur in accordance with the last sentence of Section 1.3(e) hereof, the Cut-Off Date shall be extended in order to finalize the Closing Audit Report (including determination of the Shareholders Equity and Adjusted Net Income (Loss) of the Company) as provided in the other provisions of Section 1.3(e) hereof, but in no event shall the Cut-Off Date be extended beyond June 30, 1994; (c) by Buyer or Seller in the event that the (x) Sharehold- er s Equity of the Company as set forth in the Closing Audit Report differs from the Shareholder s Equity of the Company as determined from the Company Financial Statements as of November 30, 1993 by ten percent (10%) or more, or (y) Adjusted Net Income (Loss) of the Company as set forth in the Closing Audit Report differs from the Adjusted Net Income (Loss) of the Company as determined from the Company Financial Statements for 1993 by twenty percent (20%) or more; (d) by either Seller or Buyer in the event any court of competent jurisdiction or other federal, state or local governmental body shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the transactions contemplated hereby and such order, decree or ruling or other action shall have become final and nonappealable after the affected party or parties have made all reasonable efforts to contest and appeal the issuance of such order, decree, ruling or other action; (e) by Buyer or Seller if (i) the other party shall have failed to comply in any material respect with any of the covenants or agreements contained in this Agreement to be complied with by such other party at or prior to such date of termination within five business days following receipt by non-complying party of written notice of such failure to comply or (ii) any representation or warranty of the other party shall not be true in all material respects when made (provided such breach has not be cured within five business days following receipt by the breaching party of written notice of the breach) or on and as of the Closing Date, as if made on and as of the Closing Date. Notwithstanding the foregoing, but subject to Section 8.1(c), Buyer shall have no right to terminate this Agreement based upon any increase in the amount of non-performing loans held by the Company so long as the Company is in compliance with Section 5.1(i) and (j). 8.2 Effect of Termination. In the event of any termination and abandonment of this Agreement pursuant to this Article VIII, the terminating party shall promptly give notice thereof to the other party and this Agree- ment shall forthwith become void and have no effect and neither party to this Agreement will have any liability to the other hereunder, except with respect to any breach of any provisions of this Agreement. ARTICLE IX INDEMNIFICATION 9.1 Indemnification. (a) Seller agrees to indemnify, defend and hold Buyer and Buyer s Affiliates including, after the Closing Date, the Company and each Company Subsidiary and their respective directors, officers, employees, agents, counsel and other representatives (each, a Buyer Indemnified Party ), harmless from and against and in respect of: (i) any and all losses, liabilities, Taxes, damages, deficiencies, demands, claims, costs and expenses (including interest, penalties, fees and reason- able attorneys and experts' fees and expenses incurred in connection with any of the foregoing and in seeking indemnification hereunder) (collec- tively, Claims ) that they may suffer, sustain, incur or become subject to, arising out of, in connection with or due to any inaccuracy of any representation or the breach of any warranty of Seller contained in this Agreement (including the Disclosure Schedule), in each case without regard to any materiality, or Material Adverse Effect or similar limitations, thresholds or exceptions contained in such representations and warranties and without regard to whether any such action giving rise to a Claim is initiated prior to or after the Closing, provided, that Seller shall not be required to indemnify a Buyer Indemnified Party for Claims under this clause (i) unless and until the aggregate value of such Claims exceeds $250,000; (ii) all Claims with respect to the breach of any covenant, undertaking or other agreement of Seller contained in this Agreement; (iii) all Claims relating to Retained Liabilities, even in the event that such obligations and liabilities are or may be covered by representations or warranties; (iv) all customer credit balances classified or treated as income prior to the Closing; provided, however, that Seller shall not be liable for indemnifica- tion pursuant to this Section 9.1(a)(iv) with respect to claims for refunds brought by customers of the Company for customer credit balances to the extent of the amount of customer credit balances existing at and as of the Closing; and (v) all Claims with respect to the failure to obtain or make any consent, approval, authorization, notice, declaration, filing or registration set forth in Section 3.15 of the Disclosure Schedule. Notwith- standing anything to the contrary contained in clause (i) of this Section 9.1, Seller shall not be required to indemnify a Buyer Indemnified Party for any misstatement of any line item in the financial statements contained in the Closing Audit Report if such misstatement related to the overstatement of an asset line item by no more than $500,000 or if such misstatement related to the understatement of a liability line item by no more than $500,000, unless in either case any Attributable Person had knowledge before Closing of such overstatement or understatement. (b) Buyer agrees to indemnify, defend and hold Seller, Seller s Affiliates and their respective directors, officers, employees, agents, counsel and other representatives (each, a Seller Indemnified Party ), harmless from and against and in respect of: (i) any and all Claims that they may suffer, sustain, incur or become subject to arising out of, in connection with or due to any inaccuracy of any representation or the breach of any warranty of Buyer contained in this Agreement, in each case without regard to any materiality, Material Adverse Effect or similar limitations, thresholds or exceptions contained in such representations and warranties and without regard to whether any such action giving rise to a Claim is initiated prior to or after the Closing; provided, that Buyer shall not be required to indemnify a Seller Indemnified Party under this clause (i) unless and until the aggregate value of such Claims exceeds $250,000; and (ii) all Claims with respect to the breach of any covenant, undertaking or other agreement of Buyer contained in this Agreement. (c) With respect to breaches of representations and warran- ties only, the indemnification provided pursuant to Section 9.1(a) (i) and Section 9.1(b) shall in each case be limited to the Purchase Price as adjusted pursuant to Section 1.3(f) hereof (the Indemnity Limit ). Neither Seller nor Buyer shall be liable for breaches of representations and warranties for amounts in excess of the Indemnity Limit. (d) Except as provided in Section 9.1(e), if there occurs an event which a party asserts is an indemnifiable event pursuant to Section 9.1(a) or 9.1(b), the Buyer Indemnified Party or, as the case may be, the Seller Indemnified Party (each an Indemnified Party ) shall notify the other party obligated to provide indemnification (the Indemnifying Party ) promptly; provided, that the failure to give prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such failure actually prejudices the Indemnifying Party hereunder. If such event involves the commencement of any action or proceeding by a third person, the Indemnified Party will give such Indemnifying Party prompt written notice of the commencement of such action or proceeding; provided, however, that the failure to provide prompt notice as provided herein will not relieve the Indemnifying Party of its obligations hereunder except to the extent that such failure actually prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnified Party and it shall notify the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall elect to do so in writing within 10 days after such notice, to assume the defense thereof, at its sole cost and expense, with counsel reasonably satisfactory to the Indemnified Party (provided that the Indemnifying Party first agrees in writing to pay the full amount of indemnification with respect to such action to the Indemnified Party, and further provided that Seller shall not be entitled to assume the defense of any action brought against any Indemnified Party identified in Section 9.1(a) by any federal, state, local or foreign govern- mental agency or authority). After notice from the Indemnifying Party to the Indemnified Party of such election so to assume the defense thereof, the Indemnified Party shall have the right to retain its own separate counsel, but the fees and expenses of such counsel shall be at the Indemnified Party s expense unless (a) the Indemnifying Party and the Indemnified Party shall have agreed to the contrary, (b) the Indemnifying Party has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Party, or (c) the named party in any such proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party and representation of both parties by the same counsel could be inappropriate due to actual or potential differing interests between them. In any matter described above where the Indemnified Party has obtained counsel to represent it in addition to counsel obtained by the Indemnifying Party, counsel selected by the Indemnifying Party shall be required to cooperate fully with counsel selected by the Indemnified Party in such matter. So long as the Indemnifying Party is defending in good faith any claim for which indemnification is sought, the Indemnifying Party shall not be liable for any claim settled without its consent, which consent may not be unreasonable withheld. (e) (i) In the event of a Claim by a third Person relating to Loan Portfolio Matters, which Claim could reasonably be likely to relate to pre-Closing periods, the Buyer Indemnified Party shall give Seller prompt written notice of such Claim (whether such Claim involves the commencement of an action or proceeding, a counterclaim or otherwise); provided, however, that the failure to provide prompt notice as provided herein will not relieve Seller of its obligations hereunder except to the extent that such failure actually prejudices Seller hereunder. Notwithstanding the provisions of Section 9.1(d) hereof, the Buyer Indemnified Party shall be entitled to conduct the defense of any such Claim with counsel reasonably satisfactory to Seller. The defense of any such Claim shall be at the sole cost and expense of Seller, subject to the provisions of Section 1.4(v) hereof. Seller shall have the right to participate in the defense of any such Claim and to retain its own separate counsel with respect thereto (and to assume the defense of any such Claim in the event that the Buyer Indemnified Party has failed within a reasonable time to retain counsel reasonably satisfactory to Seller), but the fees and expenses of such counsel shall be borne by the Indemnifying Party, subject to the provisions of Section 1.4 hereof. In any matter described above where Seller has obtained counsel to represent it in addition to counsel obtained by the Buyer Indemnified Party, counsel selected by the Buyer Indemnified Party shall be required to cooperate fully with counsel selected by Seller. (ii) Subject to Section 1.4(vi) hereof, in the event of an adverse judgment or settlement on the part of a Buyer Indemnified Party with respect to Claims referred to in the first sentence of Section 9.1(e) hereof, the Buyer Indemnified Party and Seller promptly shall negotiate in good faith their respective shares of the cost and expense of such resulting liability or settlement based on the extent to which the liability or settlement relates to a Retained Liability(ies). No such settlement shall be effected by any party without the prior written consent of the other party, which consent will not be unreasonably withheld. Seller shall not be entitled to assert inadequate representation as a defense to the sharing of any such liability or settlement, and neither party shall be entitled to call into question the validity of any finding by the relevant court, arbitrator or other forum of competent jurisdiction as a defense to the sharing of any such liability. In the event the parties do not agree how to share the costs and expenses of any such liability or settlement within sixty (60) days thereof, then the parties shall promptly, but in no event later than thirty (30) business days after the end of such sixty (60) day period, submit such matter for determination by a court of competent jurisdiction. The parties hereby irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York. THE PARTIES EXPRESSLY WAIVE THEIR RIGHTS TO A TRIAL BY JURY. 9.2 Survival of Representations and Warranties. The repre- sentations and warranties of Seller and Buyer contained in this Agreement or in any instrument delivered pursuant hereto shall survive the Closing Date and shall remain in full force and effect thereafter until two years after the Closing Date; provided, however, that the representations and warranties contained in Section 3.3, the third sentence of Section 3.4, and Section 3.16 shall survive indefinitely without limitation and the representations and warranties contained in Sections 3.11 and 3.17 shall survive until the applicable statutes of limitations have run. No action or proceeding may be brought with respect to any Claims based on the breach of a representation or warranty unless written notice thereof, setting forth in reasonable detail each such Claim, shall have been delivered to the Seller or Buyer, as the case may be, prior to the expiration of the applicable periods set forth above. 9.3 Arbitration. (a) All controversies or Claims arising among the parties, including without limitation claims arising out of or relating to this Agreement, the subject matter hereof, any other Contract among such Persons, and the arbitrability of any Claim, but excluding those matters that are governed by Sections 5.5(j) and 9.1(e) hereof, shall be settled by arbitration as provided below. The arbitration and all preliminary proceed- ings related thereto shall be conducted in accordance with such rules as may be agreed upon by the parties, or, failing agreement on such rules, in accordance with the Rules for Commercial Arbitration of the American Arbitration Association ( AAA ), as amended from time to time and as modified by this Agreement. The dispute shall be presented to a single arbitrator sitting in New York City. (b) The arbitrator shall be selected jointly by the parties within fifteen (15) days after demand for arbitration is made by a party. If the parties are unable to agree on an arbitrator within that period, then any party may request that the AAA select the arbitrator. The arbitrator shall possess substantive legal experience in the principal issues in dispute. (c) Any discovery permitted shall be limited to information directly relevant to the controversy or Claim in arbitration. In the event of discovery disputes, the arbitrator is directed to issue such orders as are appropriate to limit discovery in accordance with the foregoing and as are reasonable in light of the issues in dispute, the amount in controversy, and other relevant considerations. To the extent the parties are unable to agree on the scope of discovery, the arbitrator shall require the party seeking discovery on an issue to present the legal and factual basis for the Claim and shall permit the party opposing discovery to respond. The arbitrator shall permit discovery on an issue only if the arbitrator concludes that there is a reasonable and good faith basis in Law and in fact for bringing such allegations and that the discovery appears likely to present substantive evidence regarding that Claim. The arbitrator may permit limited discovery to permit investigation of some of the Claims or to determine whether a Claim has sufficient basis in law or in fact to warrant further discovery, but shall issue appropriate orders to restrict the scope of such discovery. The federal or state rules or procedure and evidence shall not apply to the arbitration proceedings, including without limitation the rules of discovery. The arbitrator shall consider claims of privilege, work product and other restrictions on discovery as appear to be warranted. (d) The arbitrator shall award the prevailing party its attorneys and experts fees and disbursements incurred in resolving the dispute and shall award double costs and expenses or other sanctions to the extent the arbitrator finds any Claim advanced in the proceedings to be frivolous or without a good faith basis in fact and in law when such Claim was first presented for arbitration. (e) Except as may otherwise be agreed in writing by the parties or as ordered by the arbitrator upon substantial justification shown, the hearing for the dispute shall be held within ninety (90) days of submission of the dispute to arbitration. The arbitrator shall render its final award within thirty (30) days following conclusion of the hearing and any required post-hearing briefing or other proceedings ordered by the arbitrator. The arbitrator shall state the factual and legal basis for the award. The decision of the arbitrator shall be final and binding, except as provided in the Federal Arbitration Act, 9 U.S.C. Section 1, et seq., and except for errors of law based on the findings of fact. Final judgment may be entered upon such an award in any court of competent jurisdiction, but entry of such judgment shall not be required to make such award effective. The parties hereby irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York. THE PARTIES EXPRESSLY WAIVE THEIR RIGHTS TO A TRIAL BY JURY. ARTICLE X MISCELLANEOUS 10.1 Fees and Expenses. Each of the parties shall bear its own expenses in connection with the negotiation and consummation of the transac- tions contemplated by this Agreement except as expressly provided by any other provision of this Agreement. 10.2 Governing Law. This Agreement shall be construed under and governed by the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. 10.3 Amendment. This Agreement may not be amended, modified or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto. 10.4 No Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either party hereto without the prior written consent of the other party; provided, however, that Buyer shall be entitled to assign any of its rights, interests or obligations hereunder to any of its Affiliates (provided that in the event of any such assignment Buyer shall remain liable for all obligations of Buyer set forth herein). 10.5 Waiver. Any of the terms or conditions of this Agreement which may be lawfully waived may be waived in writing at any time by the party which is entitled to the benefits thereof. Any waiver of any of the provisions of this Agreement by any party hereto shall be binding only if set forth in an instrument in writing signed on behalf of such party. No failure to enforce any provision of this Agreement shall be deemed to or shall constitute a waiver of such provision and no waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 10.6 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given by delivery, by telecopier or by mail (registered or certified by mail, postage prepaid, return receipt requested) to the respective parties as follows: (a) If to Buyer or GFC by telecopier or mail: Greyhound Financial Corporation Dial Tower Dial Corporate Center Phoenix, Arizona 85077-1159 Attention: William J. Hallinan Telecopy: (602) 207-4099 If to Buyer or GFC by hand: Greyhound Financial Corporation 1850 N. Central Avenue, Suite 1159 Phoenix, Arizona 85077-1159 Attention: William J. Hallinan Telecopy: (602) 207-4099 with a copy to: Skadden, Arps, Slate, Meagher & Flom 333 West Wacker Drive Chicago, Illinois 60606 Attention: Gary P. Cullen Telecopy: (312) 407-0411 (b) If to Seller: Fleet Financial Group, Inc. 50 Kennedy Plaza Providence, RI 02903 Attention: Terrence P. Laughlin Telecopy: (401) 278-5801 with a copy to: Edwards & Angell 2800 Hospital Trust Tower Providence, RI 02903 Attention: V. Duncan Johnson Telecopy: (401) 276-6611 or to such other address as any party hereto may, from time to time, designate in a written notice given in like manner. 10.7 Complete Agreement. This Agreement and the other documents and writings referred to herein or delivered pursuant hereto contain the entire understanding of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants or undertakings other than those expressly set forth in such docu- ments with respect to the subject matter hereof. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 10.8 Publicity. No publication, press release or public announcement of any nature shall be issued pertaining to this Agreement or the transactions contemplated hereby without the prior consent of the other party hereto (which shall not be unreasonably withheld) or except as required by applicable Law or by obligations pursuant to any listing agreement with any securities exchange or any securities exchange regulation, in which case the party proposing to issue such publication or press release or make such announcement shall use reasonable efforts to consult with the other party before issuing any such publication or press release. 10.9 Headings. The headings contained in this Agreement are for reference only and shall not affect in any way the meaning or interpretation of this Agreement. 10.10 Severability. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality, or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. 10.11 No Third Party Beneficiaries. Except for Section 9.1, which is intended to benefit and to be enforceable by any party referred to therein as entitled to indemnification thereunder, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. This Agreement shall inure to the benefit of and be enforceable against each the successors and assigns of each party hereto. 10.12 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original. IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written. GFC FINANCIAL CORPORATION By ------------------------------------- Name: Title: GREYHOUND FINANCIAL CORPORATION By ------------------------------------- Name: Title: FLEET FINANCIAL GROUP, INC. By ------------------------------------- Name: Title: ANNEX A DEFINITIONS Defined Terms. As used in this Agreement, the terms below shall have the following meanings, except as otherwise expressly provided or unless the context otherwise requires. Company Subsidiary means (a) any corporation of which an aggregate of more than 50% of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, capital stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by the Company and/or one or more Company Subsidiaries, (b) any partnership in which the Company and/or one or more Company Subsidiaries shall have an interest (whether in the form of voting or participation in profits or capital contribution) of more than 50% and (c) any other corporation or entity a majority of whose shares, interests, participation, equity securities or other equivalents however designated having ordinary voting power to elect a majority of the board of directors (or comparable governing body) of such entity is at the time, directly or indirectly, owned legally or beneficially by the Company and/or one or more Company Subsidiaries. due inquiry includes, among other things, making inquiry of the appropriate Persons having access to relevant facts and documents and review of the appropriate files, books and records of the Company, Company Subsidiaries and any Participation Facility, as applicable. Encumbrances means any lien, option, transfer or other restric- tion, claim, charge, easement, mortgage, pledge, security interest, lease, right-of-way, voting trust or other voting agreement, call or other encum- brance, or any conditional sale agreement, title retention agreement or other agreement to give or to refrain from giving any of the foregoing. Other Defined Terms. As used in this Agreement, the terms below have the meanings defined for such terms in the Sections set forth below: Terms Section Acquisition Proposal 5.6 Actual State Income Tax 5.3 Adjusted Net Income (Loss) 1.3 Affiliate 2.2 Agreement Preamble Allocation Agreement 5.7 Assumption and Indemnification Agreement 1.4 Attributable Person 3.9 Audit Date 1.3 Auditor 1.3 Auditor s Review Certification 1.3 Buyer Preamble Buyer Benefits 5.7 Buyer Plans 5.10 Buyer s Appraisal 5.7 Charges 5.7 Claims 9.1 Closing 2.1 Closing Audit 1.3 Closing Audit Financial Statements 3.7 Closing Audit Report 1.3 Closing Date 2.1 Closing Period 5.7 Code 3.11 Company Preamble Company Common Stock Preamble Company Financial Statement 3.7 Contract 3.6 Credit Arrangement 3.12 Cut-Off Date 8.1 Due Date 5.7 Employee 5.10 Employment Agreement 5.14 Environmental Claim 3.16 Environmental Laws 3.16 ERISA 3.17 ERISA Affiliate 3.17 ERISA Plans 3.17 Exchange Act 2.2 First Interim Period 1.2 Flamb 3.4 GAAP 1.3 GFC Preamble HSR Act 3.15 Hypothetical Federal Income Tax 5.3 Indemnified Party 9.1 Indemnifying Party 9.1 Indemnity Limited 9.1 Intellectual Property 3.10 Interim Company Financial Statements 3.7 IRS 3.11 Laws 3.6 Legal Requirements 5.14 Loan Property 3.16 Material Adverse Effect 3.1 Materials of Environmental Concern 3.16 Participation Facility 3.16 Permits 3.6 Person 3.11 Plans 3.17 PBGC 3.17 Pre-Closing Period 5.5 Preliminary Objection Notice 1.3 Purchase Price 1.2 Record Retention Policy 5.3 Retained Liabilities 1.4 Second Interim Period 1.3 Section 338 Elections 5.5 Section 338 Forms 5.5 Section 338(g) Elections 5.5 Section 338(h)(10) Elections 5.5 Securities Act 4.4 Seller Preamble Shareholder s Equity 1.3 SPD 3.17 Tax Auditor 5.5 Tax Laws 5.7 Tax, Taxable, Taxes 3.11 Taxing Authority 5.7 Tax Returns 3.11 WARN 3.18 EX-10 3 5TH AMENDMENT & RESTATEMENT OF CREDIT AGREEMENT GREYHOUND FINANCIAL CORPORATION FIFTH AMENDMENT AND RESTATEMENT Dated as of May 18, 1993 of CREDIT AGREEMENT Dated as of May 31, 1976 Bank of America National Trust and Savings Association, Chemical Bank and Citibank, N.A., as Agents Citibank, N.A., as Administrative Agent TABLE OF CONTENTS Page ARTICLE I Definitions . . . . . . . . . . . . . . . . . . . . . . 1 SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1 ARTICLE II Amount and Terms of the Credit . . . . . . . . . . 8 SECTION 2.01. The Advances . . . . . . . . . . . . . . . . . 8 SECTION 2.02. The Advance Accounts . . . . . . . . . . . . . 9 SECTION 2.03. Prepayments of Debit Balances . . . . . . . . 9 SECTION 2.04. Making the Advances . . . . . . . . . . . . . 10 SECTION 2.05. Interest . . . . . . . . . . . . . . . . . . . 12 SECTION 2.06. Additional Interest on Eurodollar Advances . . . . . . . . . . . . . . . . . . . 13 SECTION 2.07. Interest Rate Determination . . . . . . . . . 13 SECTION 2.08. Repayment . . . . . . . . . . . . . . . . . . 14 SECTION 2.09. Increased Costs . . . . . . . . . . . . . . . 14 SECTION 2.10. Facility Fee . . . . . . . . . . . . . . . . . 14 SECTION 2.11. Reduction of the Commitments . . . . . . . . . 15 SECTION 2.12. Payments and Computations . . . . . . . . . . 15 SECTION 2.13. Compensation . . . . . . . . . . . . . . . . . 16 SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . . . 16 SECTION 2.15. Sharing of Payments, Etc . . . . . . . . . . . 17 SECTION 2.16. Status of Prior Agreement . . . . . . . . . . 17 SECTION 2.17. Extension of Commitments . . . . . . . . . . . 18 ARTICLE III Representations and Warranties . . . . . . . . . . 18 SECTION 3.01. Representations and Warranties of the Company . . . . . . . . . . . . . . . . . . . 18 ARTICLE IV Covenants . . . . . . . . . . . . . . . . . . . . . 20 SECTION 4.01. Affirmative Covenants . . . . . . . . . . . . 20 SECTION 4.02. Negative Covenants . . . . . . . . . . . . . . 22 ARTICLE V Conditions of Lending . . . . . . . . . . . . . . . . . 26 SECTION 5.01. Conditions Precedent to Effectiveness . . . . 26 SECTION 5.02. Conditions Precedent to Each Advance . . . . . 26 SECTION 5.03. Conditions Precedent to Certain Borrowings . . . . . . . . . . . . . . . . . . 27 ARTICLE VI Events of Default . . . . . . . . . . . . . . . . . 27 SECTION 6.01. Events of Default . . . . . . . . . . . . . . 27 ARTICLE VII The Administrative Agent, Agents and Co-Agents . . 29 SECTION 7.01. Authorization and Action . . . . . . . . . . . 29 SECTION 7.02. Agents' Reliance, Etc . . . . . . . . . . . . 29 SECTION 7.03. Citibank, BofA , Chemical, any Co-Agent and Their Affiliates . . . . . . . . . . . . . 30 SECTION 7.04. Lender Credit Decision . . . . . . . . . . . . 30 SECTION 7.05. Indemnification . . . . . . . . . . . . . . . 30 SECTION 7.06. Successor Agent . . . . . . . . . . . . . . . 30 ARTICLE VIII Miscellaneous . . . . . . . . . . . . . . . . . . . . . 31 SECTION 8.01. No Waiver; Amendments . . . . . . . . . . . . 31 SECTION 8.02. New Lenders . . . . . . . . . . . . . . . . . 31 SECTION 8.03. Notices, Etc . . . . . . . . . . . . . . . . . 31 SECTION 8.04 Assignments, Participations, Etc. . . . . . . 32 SECTION 8.05. Costs, Expenses and Taxes . . . . . . . . . . 34 SECTION 8.06. Right of Set-off . . . . . . . . . . . . . . . 34 SECTION 8.07. Accounting Terms . . . . . . . . . . . . . . . 34 SECTION 8.08. Effectiveness of Action by, or Consent of, Lenders . . . . . . . . . . . . . . . . . . . 35 SECTION 8.09. Several Obligations . . . . . . . . . . . . . 35 SECTION 8.10. Binding Effect . . . . . . . . . . . . . . . . 35 SECTION 8.11 Severability of Provisions . . . . . . . . . . 35 SECTION 8.12 Descriptive Headings . . . . . . . . . . . . . 35 SECTION 8.13. Governing Law . . . . . . . . . . . . . . . . 35 SECTION 8.14. Execution in Counterparts . . . . . . . . . . 35 SECTION 8.15. Waiver of Trial by Jury . . . . . . . . . . . 35 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 SCHEDULE 2 Exceptions to General Limits on Exposure FIFTH AMENDMENT AND RESTATEMENT Dated as of May 18, 1993 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 Co-Agents, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association, CHEMICAL BANK, a New York banking corporation, and CITIBANK, N.A., a national banking association, 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): "Advance Accounts" has the meaning assigned to that term in Section 2.02. "Advance" shall mean an advance by a Lender to the Company pursuant to Article II, and refers to a Base Rate Advance or a Eurodollar Advance (each of which shall be a "Type" of 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. "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: (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. "Base Rate Advance Account" has the meaning assigned to that term in Section 2.02. "BofA" shall mean Bank of America National Trust and Savings Association, a national banking association. "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. "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 2.11(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. "Debit Balance" has the meaning assigned to that term in Section 2.02. "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 May 19, 1993; provided all of the conditions in Section 5.01 shall have been satisfied or waived on or before such date. "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 Internal Revenue Code of 1986, as amended. "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 Advance to which the Eurodollar Rate is or is proposed to be applicable. "Eurodollar Advance Account" has the meaning assigned to that term in Section 2.02. "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 2.17, 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. "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. "Interest Period" has the meaning assigned to that term in Section 2.05(b). "Level" means Level 1, Level 2, Level 3, Level 4, Level 5 or Level 6, as the case may be. "Level 1" shall mean the Company has a rating on its Long- term Debt equal to or greater than A- from S&P or A3 from Moody's. "Level 2" shall mean the Company has a rating on its Long- term Debt equal to BBB+ from S&P or Baa1 from Moody's. "Level 3" shall mean the Company has a rating on its Long- term Debt equal to BBB from S&P or Baa2 from Moody's. "Level 4" shall mean the Company has a rating on its Long- term Debt equal to BBB- from S&P or Baa3 from Moody's. "Level 5" shall mean the Company has a rating on its Commercial Paper below A2 from S&P or P2 from Moody's. "Level 6" shall mean the Company has a rating on its Long- term Debt below BBB- from S&P or Baa3 from Moody's. "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 2.06. "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 Debit Balances 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: Table A Base Rate Margins (in basis points) Outstanding Advances as Percentage of Commitments Less than 33 1/3% to More than Rating Level 33 1/3% 66 2/3% 66 2/3% ------------ --------- ---------- --------- Level 1 -20.00 -20.00 -20.00 Level 2 -25.00 -25.00 -25.00 Level 3 -31.25 -31.25 -31.25 Level 4 -37.50 -12.50 12.50 Level 5 -12.50 12.50 37.50 Level 6 -18.75 6.25 31.25 Table B Eurodollar Margins (in basis points) Outstanding Advances as Percentage of Commitments Less than 33 1/3% to More than Rating Level 33 1/3% 66 2/3% 66 2/3% ------------ --------- ---------- --------- Level 1 42.50 67.50 80.00 Level 2 43.75 68.75 87.50 Level 3 43.75 68.75 93.75 Level 4 62.50 87.50 112.50 Level 5 87.50 112.50 137.50 Level 6 81.25 106.25 131.25 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 rating Level applicable to outstanding debt of the Company in accordance with Section 2.07. "Moody's" shall mean Moody's Investors Service, Inc. "New Lender" shall have the meaning assigned to that term in Section 8.02. "Notice of Borrowing" has the meaning specified in Section 2.04. "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, National Westminster Bank USA and Bank of Montreal. "S&P" shall mean Standard & Poor's Corporation. "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. "Stockholders' Equity" shall mean the excess of (a) the assets of the Company and its consolidated subsidiaries over (b) the sum of liabilities (including without limitation as liabilities all deferred items) plus preferred stock plus minority interests, in each case for the Company and its consolidated subsidiaries, computed 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 May 31, 1996; provided, however, that, if any Lender has consented to an Extension Request in accordance with Section 2.17, the Termination Date as to such Lender shall be automatically extended for one year; 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 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 Internal Revenue Code of 1986, as amended. "Total Commitments" shall mean, at the time for any determination thereof, the aggregate of the Commitments of the Lenders. "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, 1992. 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 date hereof 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"). The aggregate of all Commitments hereunder on the Effective Date is $700,000,000. 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 2.03, and reborrow under this Section 2.01. (b) Each Borrowing shall be (i) in the case of a Base Rate Advance, 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 $500,000, and (ii) in the case of a Eurodollar Advance, 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 $500,000 (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. SECTION 2.02. The Advance Accounts. The Administrative Agent will maintain two separate accounts, the "Base Rate Advance Account" and the "Eurodollar Advance Account" (such accounts to be collectively called the "Advance Accounts") for each Lender on the books of the Administrative Agent each of which shall be in the name of the Company and of such Lender in which, respectively, (i) the amount of each Base Rate Advance made by such Lender shall be debited on the date such Base Rate Advance is made available to the Company or on the date such Base Rate Advance is deemed to arise pursuant to Section 2.05(b)(i), (ii) the amount of each Eurodollar Advance made by such Lender shall be debited on the date such Eurodollar Advance is made available to the Company, (iii) each payment to such Lender in respect of principal of a Base Rate Advance shall be credited on the date on which payment is received, and (iv) each payment (including a payment deemed to have been received pursuant to Section 2.05(b)(i)) to such Lender in respect of a Eurodollar Advance shall be credited on the date on which payment is received. The "Debit Balance" as of any date for a Lender in its Base Rate Advance Account or its Eurodollar Advance Account shall be the amount equal to the excess, if any, of all debit entries over all credit entries recorded pursuant to this Agreement in such Advance Account in the name of such Lender (as set forth in the Register described in Section 8.04(d)) up to and including any date of determination thereof; provided, however that the failure of the Administrative Agent or a Lender to make an entry in any Advance Account shall not limit or otherwise affect the obligation of the Company hereunder with respect to payments of principal of or interest on the Advances. SECTION 2.03. Prepayments of Debit Balances. (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 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 2.13. 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), 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 2.04. 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 a Base Rate Advance, 1:00 P.M. (New York City time), and (y) in the case of a Borrowing which is to consist of a Eurodollar Advance, 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 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 2.07 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 2.13, 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 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 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 2.05. Interest. (a) The Company shall pay interest on the Debit Balance (i) in each Base Rate Advance Account at the Base Rate and (ii) in each Eurodollar Advance Account at the Eurodollar Rate until the final payment in full thereof as herein provided. Interest in respect of Debit Balances in Base Rate Advance Accounts 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 Debit Balances in Eurodollar Advance Accounts 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 Debit Balance in any Advance Account, 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 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, and if (A) the representations and warranties contained in Section 3.01 hereof (excluding those contained in paragraphs (e) and (f) thereof) are true and accurate, (B) no event has occurred or is continuing or would result from the Borrowing of such Base Rate Advance 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 (C) no Commitment Reallocation Event is to occur on the last day of the then current Interest Period, the Advance Accounts of the Lenders for which such Advance is outstanding shall be deemed to have been paid in the amount of such Advance and the Base Rate Advance Accounts of such Lenders shall be deemed debited in the amount of such Base Rate Advance; (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; 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 Advance until maturity of such Advance, at an interest rate per annum equal at all times during the Interest Period for such 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 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 2.04(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, Moody's or S&P with respect to the rating on Long-term Debt or Commercial Paper; 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 either Moody's or S&P. For purposes of determining the appropriate Level and Margin, if the Company's rating satisfies the criteria in two Levels the applicable Level shall be the one with the higher number and lower rating of the two. SECTION 2.08. Repayment. (a) Except as provided in Section 2.05(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 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 Advances to be repaid, the Company shall repay the 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 2.11(a). (c) On the date when any Lender's Commitment is terminated pursuant to Section 2.11, the Company shall repay the amount of all 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 Debit Balances (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 the 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 the 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 after giving effect to any reduction thereof pursuant to Section 2.11) from the date hereof (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, 1993, and on any such Termination Date, at the rate of: with respect to each day that (i) the Company's rating on Long-term Debt is Level 1, .20% per annum, (ii) the Company's rating on Long-term Debt is Level 2, .25% per annum, (iii) the Company's rating on Long-term Debt is Level 3, .3125% per annum, (iv) the Company's rating on Long-term Debt is Level 4 or the Company's rating on Commercial Paper is Level 5, .375% per annum, or (v) the Company's rating on Long-term Debt is Level 6, .4375% per annum. If any change in the rating by 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 ratings is sent to the Company by either Moody's or S&P. If the Company's rating satisfies the criteria in two Levels, the applicable Level shall be the one with the higher number and lower rating of the two Levels. 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. (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. 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. (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 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 2.04(c) but other than a default by that Lender) a borrowing of any Eurodollar Rate 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 2.14. 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 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. (e) 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 any Debit Balance in any of its Advance Accounts (other than pursuant to Section 2.06, 2.09, 2.11(b), 2.13 or 2.14) in excess of its ratable share of payments on account of Debit Balances 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 such Debit Balances 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 2.15 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 Fourth Amendment and Restatement dated as of March 18, 1992 of the Credit Agreement dated as of May 31, 1976, as amended by the First Amendment dated as of October 5, 1992, shall (except, as to outstanding Advances, commitment fees and interest accrued to the date of this Agreement, and rights to indemnification and reimbursement of costs and expenses arising prior to the date hereof which shall be governed by the provisions of such Fourth Amendment and Restatement) cease and terminate as of the date of this Agreement 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 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 shall have the right, in its sole discretion, to 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 Company within forty-five (45) days of the date of the Extension Request (with a copy to the Administrative Agent). Any Lender that fails to consent to any Extension Request within such forty-five-day period shall be deemed to have rejected such Extension Request. If the Company 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 and 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 each Lender which consented to the Extension Request and the Administrative Agent 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 Company, by telephone, telex or telecopy facsimile notice to the Company and the Administrative Agent, 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 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. 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 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, 1991 and December 31, 1992, 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, 1992, 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 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, 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 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 Debit Balance 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 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, has occurred during such quarter (or, if the same has occurred, a description thereof and a statement as to whether it is continuing), (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 Section 4975 of the Internal Revenue Code of 1986, as amended, 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 attach thereto, 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 or Commercial Paper by S&P or Moody's. (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 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. SECTION 4.02. Negative Covenants. During the period of this Agreement and so long as any Commitment or Debit Balance is outstanding, the Company will not, without the prior written consent of the Majority Lenders: (a) Permit the ratio of (1) total assets of the Company and its consolidated subsidiaries, minus deferred income taxes, minus minority interests, minus preferred stock equity, minus Stockholders' Equity, plus Guaranties (not reflected on the Company's most recent consolidated balance sheet) by the Company or any of its consolidated subsidiaries to (2) Stockholders' Equity plus preferred stock equity minus intangible assets shown on the books of the Company and its consolidated subsidiaries (but only to the extent the amount of such intangible assets exceeds $30,000,000), in each case in accordance with GAAP, to be greater than 6.50 to 1.00 at any time on or after the Effective Date through March 31, 1994 or 7.00 to 1.00 at any time after March 31, 1994. (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, (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 and any adverse effect on Consolidated Net Income arising solely from any interaction between increases in the corporate tax rate and the Company's prior accounting for deferred taxes under FASB Statement No. 96) 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 (i) the greatest Exposure (other than Exposure with respect to transactions listed on Schedule 2) of the Company and the Subsidiaries to exceed 15% of Tangible Net Worth; 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) 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 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 the sum of (1) Consolidated Net Income subsequent to December 31, 1991 plus (2) the aggregate net proceeds from the issuance or sale for cash or other property (excluding any unpaid indebtedness under any promissory note) of shares of the Company's Capital Stock subsequent to December 31, 1991 plus (3) the aggregate net proceeds from the issuance or sale subsequent to December 31, 1991, for cash or other property (excluding any unpaid indebtedness under any promissory note), of any Senior Indebtedness or Subordinated Indebtedness of the Company upon its conversion into shares of the Company's Capital Stock; provided, however, that notwithstanding the foregoing, the Company may redeem its preferred stock issued to and held by The Dial Corp or its subsidiaries as of the date hereof in accordance with the provisions of such preferred stock. (h) Permit Stockholders Equity to be less than the sum of $275,000,000 plus 50% of cumulative consolidated net income for all fiscal quarters ending after January 1, 1993 (determined without making any reduction in the amount thereof by reason of any net loss arising in any fiscal quarter) plus 50% of the net proceeds received by the Company or any Subsidiary through the offer and sale of any shares of its common stock (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 Debit Balances 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 Debit Balances, 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 in order 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 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 2.04 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, Secretary and counsel to 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. 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 2.04(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 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 Debit Balance 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 (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) 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 or trustees under any such agreement or instrument to accelerate, the maturity of such indebtedness; or (e) 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 (f) 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, 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 (f); or (g)(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 Internal Revenue Code of 1986, as amended, 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 Internal Revenue Code of 1986, as amended) 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 (f) 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 Debit Balances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon all Debit Balances, 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 (f) 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, Agents and Co-Agents SECTION 7.01. Authorization and Action. Each Lender hereby appoints and authorizes the Administrative Agent, Agents and Co-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, Agents and Co- 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, Agents and Co-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 none of the Administrative Agent, any Agent or any Co-Agent shall be required to take any action which exposes the Administrative Agent, such Agent or such Co-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, any Co-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, Agents and Co-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 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, any Co-Agent and Their Affiliates. With respect to its Commitment and the Advances made by it, Citibank, BofA, Chemical or any Co-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, an Agent or a Co-Agent, as the case may be; and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include each of Citibank, BofA, Chemical and any Co-Agent in its individual capacity. Citibank, BofA, Chemical and each Co-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, Chemical or such Co-Agent were not the Administrative Agent, an Agent or Co- 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, any Co-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, any Co-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, each Agent and each Co-Agent (to the extent not reimbursed by the Company), ratably according to the respective amounts of the Advance Accounts 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, such Agent or such Co-Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent, such Agent or such Co- 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, such Agent's or such Co-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, any Agent and any Co-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 Lender or 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. 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. ARTICLE VIII Miscellaneous SECTION 8.01. No Waiver; Amendments. No failure or delay on the part of the Administrative Agent or any Lender 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 the Company therefrom, shall in any event be effective unless the same shall be in writing and consented to by the Majority Lenders (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 Debit Balances or any fees or other amounts payable hereunder or change the percentage of the Commitments or of the aggregate unpaid Debit Balances 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 the Company in any case shall entitle the Company 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 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 and, if to the Company, mailed or delivered to it, addressed to it at Dial Tower, Phoenix, Arizona 85077, Attention of Treasurer's Department, and if to any Lender, mailed 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 or delivered to it, addressed to it c/o Citicorp USA, Inc., 725 South Figueroa Street, Los Angeles, California 90017, Attention: Desmund Shirazi; or, as to each party, at such other address as shall be designated by such party in a written notice to each other party. 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, which consent shall not be unreasonably withheld, 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 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. 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, upon its receipt of a written request from a Lender stating that such Lender desires to pledge then outstanding Advances to a Federal Reserve Bank, execute and deliver to such Lender a promissory note substantially in the form of Exhibit F 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, any Co-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, the Agents and the Co-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, the Agents and the Co-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 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 banks or other entities (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. (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 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 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 without regard to its conflicts of laws principles. 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 CO-AGENTS, 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 Co-Agents, the Agents and the Administrative Agent each (i) acknowledges that this waiver is a material inducement for the Company, the Lenders, the Co-Agents, the Agents and the Administrative Agent to enter into a business relationship, that the Company, the Lenders, the Co-Agents, 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] 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 $61,700,000 CITIBANK, N.A. (Individually and as an Agent and Administrative Agent) By ___________________________ Title__________________________ 399 Park Avenue New York, New York 10043 $61,650,000 BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION By ___________________________ Title __________________________ 555 South Flower Street, Credit Products #5618 Los Angeles, California 90071 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 $61,650,000 CHEMICAL BANK (Individually and as an Agent) By ___________________________ Title _________________________ 270 Park Avenue New York, New York 10017 $50,000,000 CONTINENTAL BANK N.A. (Individually and as a Co-Agent) By ___________________________ Title __________________________ 231 South LaSalle Street Chicago, Illinois 60693 $50,000,000 BANK OF MONTREAL (Individually and as a Co-Agent) By ___________________________ Title __________________________ 115 South LaSalle Street, 11 West Chicago, Illinois 60603 $35,000,000 THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) By ___________________________ Title __________________________ One Chase Manhattan Plaza New York, New York 10081 $35,000,000 FIRST INTERSTATE BANK OF ARIZONA By ___________________________ Title __________________________ First Interstate Bank Plaza 100 West Washington Phoenix, Arizona 85038 $35,000,000 NATIONAL WESTMINSTER BANK USA By ___________________________ Title __________________________ 175 Water Street New York, New York 10038 $35,000,000 UNION BANK OF SWITZERLAND LOS ANGELES BRANCH By____________________________ Title __________________________ By____________________________ Title __________________________ 444 South Flower Street Los Angeles, California 90071 $35,000,000 WESTDEUTSCHE LANDESBANK GIROZENTRALE- NEW YORK AND CAYMAN ISLANDS BRANCHES By____________________________ Title __________________________ By____________________________ Title __________________________ 633 West Fifth Street, Suite 6750 Los Angeles, California 90071 $25,000,000 CREDIT LYONNAIS SAN FRANCISCO BRANCH By ___________________________ Title __________________________ 4 Embarcadero Center Suite 3470 San Francisco, California 94111 $25,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS ANGELES AGENCY By ___________________________ Title __________________________ 350 South Grand Avenue Suite 1500 Los Angeles, California 90071 $20,000,000 BANK ONE, ARIZONA, N.A. By ___________________________ Title __________________________ 241 North Central U.S. Corp. Banking, A-714 Phoenix, Arizona 85004 $20,000,000 DRESDNER BANK AG LOS ANGELES AGENCY By ___________________________ Title __________________________ By ___________________________ Title __________________________ 725 South Figueroa Street Suite 3950 Los Angeles, California 90017 $20,000,000 THE MITSUBISHI TRUST AND BANKING CORPORATION, acting through its LOS ANGELES AGENCY By ___________________________ Title __________________________ 801 South Figueroa Street Suite 2400 Los Angeles, California 90017 $20,000,000 SOCIETE GENERALE By ___________________________ Title __________________________ 2029 Century Park East, Suite 2900 Los Angeles, California 90067 $15,000,000 CREDIT SUISSE By ___________________________ Title __________________________ By ___________________________ Title __________________________ 800 Wilshire Boulevard, 8th Floor Los Angeles, California 90017 $15,000,000 THE BANK OF NOVA SCOTIA By ___________________________ Title __________________________ 101 California Street San Francisco, California 94111 $10,000,000 UNION BANK By ___________________________ Title __________________________ 350 California Street, 11th Floor San Francisco, California 94104 $10,000,000 BANK OF HAWAII By ___________________________ Title __________________________ 130 Merchant Street, 20th Floor Honolulu, Hawaii 96813 $10,000,000 BANK OF AMERICA ARIZONA By ___________________________ Title __________________________ 101 North First Avenue Phoenix, Arizona 85003 $10,000,000 BANK HAPOALIM, B.M., LOS ANGELES BRANCH By____________________________ Title __________________________ By____________________________ Title __________________________ 6222 Wilshire Blvd. Los Angeles, CA 90048 $10,000,000 BANQUE NATIONALE DE PARIS By____________________________ Title __________________________ By____________________________ Title __________________________ 725 South Figueroa Street Suite 2090 Los Angeles, California 90017 $10,000,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD. LOS ANGELES AGENCY By____________________________ Title __________________________ By____________________________ Title __________________________ 444 South Flower Street, Suite 3700 Los Angeles, California 90071 $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 $10,000,000 CAISSE NATIONALE DE CREDIT AGRICOLE By____________________________ Title __________________________ 55 East Monroe Street, Suite 4700 Chicago, Illinois 60603 ____________ $700,000,000 Total Commitments SCHEDULE 1 GREYHOUND FINANCIAL CORPORATION $700,000,000 CREDIT AGREEMENT
Domestic Lending Eurodollar Bank Office Lending Office 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 #5962 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, 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 312/750-3702 Telecopy 312/750-3702 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 212/552-1999 Telecopy 212/552-1999 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 602/229-4409 Telecopy 602/229-4409 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 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 90017 Los Angeles, California 90017 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 212/852-6300 Telecopy 212/852-6300 Credit Lyonnais, Credit Lyonnais, Credit Lyonnais, San Francisco Branch San Francisco Branch San Francisco Branch 4 Embarcadero Center 4 Embarcadero Center Suite 3470 Suite 3470 San Francisco, CA San Francisco, CA 94111 94111 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 4720286 Telex 4720286 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 213/629-2571 Telecopy 213/629-2571 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 101 California Street 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 800 Wilshire Blvd. 800 Wilshire Blvd. 8th Floor 8th Floor Los Angeles, California Los Angeles, California 90017 90017 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 808/533-4898 Telecopy 808/533-4898 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 Banque Nationale Banque Nationale Banque Nationale Paris 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 101 North First Avenue Phoenix, Arizona 85003 Phoenix, Arizona 85003 Telex None Telex None Telecopy 602/262-2323 Telecopy 602/262-2323 The Long-Term Credit Bank The Long-Term Credit Bank The Long-Term Credit Bank of Japan, Limited, Los Angeles of Japan, Limited, Los Angeles of Japan, Limited, Los Angeles Agency 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 672558 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
SCHEDULE 2 EXPOSURES Greyhound Financial Corporation Transactions excluded from Exposure Test under Credit Agreement (000's Omitted)
Customer Name Date Carrying & Location Commencement Maturity Type of Property Amount D.A.T. Joint Venture 09/1991 11/1994 2: B727-221 aircraft $55,271 New York, NY 6: JT8D-17R engines 1: DC9-30 2: JT8D engines 2: B727-225 aircraft 5: JT8D-15A engines 1: JT8D-15 engine 1: JT8D-217C engine & related equipment Westinghouse 12/1985 12/2010 equity portion of $48,175 Pittsburgh, PA a leveraged lease: 13 office and light industrial buildings totalling 2,408,628 sq. ft. A.I. Leasing II 04/1985 07/2003 equity portion of $44,306 (Airbus) France a leveraged lease: 3 Airbus A300B4 w/ General Electric CF6-50C2 engines Note: Increases in the Carrying Value of any leveraged lease transactions of the Company and any subsidiary which are a result of accounting treatment shall not be used for the purposes of calculating increases of whatever kind or nature in Carrying Value of such leveraged lease transaction.
EXHIBIT A NOTICE OF BORROWING Citibank, N.A., as Administrative Agent [Date] 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 Fifth Amendment and Restatement, dated as of May 17, 1993, 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, Lenders parties thereto, the Co- Agents parties thereto, Bank of America National Trust and Savings Association, Chemical Bank, and Citibank, N.A., as Agents, and Citibank, N.A., as Administrative Agent, and hereby gives you notice pursuant to Section 2.04 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 2.04(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: 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: EXHIBIT B SECTION 4.01(a) CERTIFICATE Schedule of Compliance with the Fifth Amendment and Restatement, dated as of May 17, 1993, 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 Fifth Amendment and Restatement, dated as of May 17, 1993, 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, the Co- Agents named therein, Bank of America National Trust and Savings Association, Chemical Bank and Citibank, N.A., 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: 1. Leverage Test, Section 4.02(a) a. total assets . . . . . . . . . . . . . . . . $_________ b. deferred taxes . . . . . . . . . . . . . . . $_________ c. minority interests . . . . . . . . . . . . . $_________ d. preferred stock equity . . . . . . . . . . . $_________ e. Stockholders' Equity: (i) total assets (Line 1a) . . . $__________ (ii) liabilities . . . . . . . . $__________ (iii) preferred stock (Line 1d). . $__________ (iv) minority interests (Line 1c) $__________ (v) sum of (ii) plus (iii) plus (iv) . . . . . . . . . . . . $__________ excess, if any, of (i) over (v) . . . . . . . $_________ f. lesser of "due to clients" or "due from customers" g. guaranties (to the extent not reflected on balance sheet or included above as liabilities) . . . . . . . $_________ h. intangible assets in excess of $30,000,000 . . . . . . . . . . . . . . . . . $_________ i. Line 1a minus Line 1b minus Line 1c minus Line 1d minus Line 1e minus Line 1f plus Line 1g . . . . . . . . . . . . . $__________ j. Line 1d plus Line 1e minus Line 1h . . . . . . . . . . . . . . . . . . . . . . . $__________ k. leverage ratio: ratio of Line 1i to Line 1j . . . . . ____:1.00 l. maximum leverage ratio permitted for period: . . . . . ____:1.00 (initially 6.50:1.00; after 3-31-94, 7.00:1.00) 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 . . . . . . . . . . . . . . $_________ 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. Tangible Net Worth . . . . . . . . . . . . . $_________ b. greatest Exposure (excluding Exposure relating to transactions listed on Schedule 2 to the Credit Agreement). . . . . . . . . . . . . . . . . $_________ 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. other unused but available commitments or lines of credit . . . . . . . . . . . . . . . . . . . $_________ c. Commercial Paper outstanding . . . . . . . . . . . . . $_________ d. maximum amount of Commercial Paper permitted to be outstanding (Line 5a plus Line 5b) . . . . . . . . . . . . . . . . $_________ 6. Dividend Test, Section 4.02(g) a. Consolidated Net Income subsequent to December 31, 1991 . . . . . . . $_________ b. Proceeds from stock or, upon conversion, convertible debt issues subsequent to December 31, 1991 . . . . . . . . . . . . . . . . . . . . $_________ c. Line 6a plus Line 6b . . . . . . . . . . . . $_________ d. cash dividends paid subsequent to December 31, 1991 . . . . . . . . . . . . . . . . . $_________ e. maximum amount of dividends permitted subsequent to December 31, 1991 (50% of Line 6c) . . . . . . . . . . $_________ 7. Stockholders' Equity Test, Section 4.02(h) a. cumulative net income for fiscal quarters ending after January 1, 1993 (excluding any net loss in any such quarter) . . . . . . . . . . . . . . $_________ b. 50% of Line 7a . . . . . . . . . . . . . . . $_________ c. 50% of cumulative proceeds from issuances of capital stock of Company or any Subsidiary after December 31, 1992 . . . . . . . . . . . . . . . . . . . . $_________ d. Stockholders' Equity (Line 1e) . . . . . . . . . . . . $_________ e. minimum Stockholders' Equity permitted ($275,000,000 plus Line 7b plus Line 7c) . . . . . . . . . . . . . . . . . $_________ 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. S&P Commercial Paper rating as of this report . . . . . . . . . . . . . . . . . . . . __________ d. Moody's Commercial Paper rating as of this report . . . . . . . . . . . . . . . . . . . __________ (*) If negative, will be zero. and hereby further certify that no event has occurred or 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 EXHIBIT C ASSIGNMENT AND ACCEPTANCE Dated as of _______________, 19___ Reference is made to that certain Fifth Amendment and Restatement Dated as of May 17, 1993 of the Credit Agreement Dated as of May 31, 1976 (the "Credit Agreement") among Greyhound Financial Corporation (the "Company"), the Lenders parties thereto, the Co-Agents parties thereto, Bank of America National Trust and Savings Association, Chemical Bank and Citibank, N.A., 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 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 Co-Agent, 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 Co-Agent, 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 Co-Agents, 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 Co- Agents, 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 hereof by the Administrative Agent unless otherwise specified on Schedule 1 hereto (the "Effective Date"). 5. Upon such acceptance and recording by the Administrative Agent, as of the 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 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 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. 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 Effective Date: __________, 19___ [_________________], as Assignor By______________________ Title:________________ [_________________], as Assignee By______________________ Title:________________ Accepted this _______ day of _____________, 19___ CITIBANK, N.A., as Administrative Agent By___________________________ Title:_____________________ EXHIBIT D [FORM OF OPINION OF COMPANY'S COUNSEL] [Letterhead of W.J. Hallinan, Esq.] [Effective Date] Citibank, N.A., as Administrative Agent 399 Park Avenue New York, New York 10022 and The Lenders, Co-Agents and Agents Listed on Schedule I Hereto Re: Greyhound Financial Corporation Fifth Amendment and Restatement dated as of May 18, 1993 of Credit Agreement dated as of May 31, 1976 Dear Ladies and Gentlemen: As Vice President and counsel to Greyhound Financial Corporation, a Delaware corporation (the "Company"), I am familiar with the Fifth Amendment and Restatement dated as of May 18, 1993 of Credit Agreement dated May 31, 1976, among the Company, the Lenders named therein, the Co-Agents named therein, Bank of America National Trust and Savings Association, Chemical Bank and Citibank, N.A., 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. 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 be 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. 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 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, and Chemical Bank, as Agents, the Co-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 Agents, each Co-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 to an Eligible Assignee in accordance with the provisions of the Credit Agreement, and any such Eligible Assignee may rely on this opinion as if it were addressed and had been delivered to such Eligible Assignee on the date hereof. Very truly yours, SCHEDULE I Lenders, Co-Agents and Agents [conform to signature pages of Credit Agreement] SCHEDULE II Material Litigation None. EXHIBIT E [LETTERHEAD OF GREYHOUND FINANCIAL CORPORATION] REQUEST FOR EXTENSION OF TERMINATION DATE _____________________, 19___ [NAME AND ADDRESS OF LENDER] Gentlemen In accordance with Section 2.17 of the Fifth Amendment and Restatement, dated as of May 17, 1993, 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 Co-Agents parties thereto, Bank of America National Trust and Savings Association, Chemical Bank and Citibank, N.A., as Agents, and Citibank, N.A., as Administrative Agent, the undersigned hereby requests that you consent to extension of the Termination Date to May 17, 19___, 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 undersigned, if possible by _____________, 19__ but, in any event, not later than ____________, 19___. Very truly yours, GREYHOUND FINANCIAL CORPORATION By __________________________ Title: The undersigned Lender, party to the Credit Agreement, consents to the extension of the Termination Date as requested above. [NAME OF LENDER] ____________________________ By ____________________________ Title: EXHIBIT F [FORM OF PROMISSORY NOTE] GREYHOUND FINANCIAL CORPORATION PROMISSORY NOTE New York, New York ________ __, 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 8.04 of the Fifth Amendment and Restatement dated as of May 18, 1993, of Credit Agreement dated as of May 31, 1976, as theretofore amended, among the Borrower, the Lenders named therein, the Co-Agents named therein, Bank of America National Trust and Savings Association, Chemical Bank and Citibank, N.A., as Agents, and Citibank, N.A., as Administrative Agent (said Fifth 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: Schedule to Promissory Note ADVANCES AND PAYMENTS OF PRINCIPAL Amount of Amount of Type of Principal Maturity Notation Date Advance Advance Repaid Date By ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ -----END PRIVACY-ENHANCED MESSAGE-----