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EXHIBIT 4.6
[EXECUTION COPY]
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CREDIT AGREEMENT
dated as of
August 8, 1995
among
FIRSTAR CORPORATION
THE LENDERS NAMED HEREIN
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
CHEMICAL BANK
and
NBD BANK,
as Co-Agents
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 1
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 13
2.1. Description of Facility. . . . . . . . . . . . . . . . . . . . . . .. . . . . 13
2.2. Availability of Facility. . . . . . . . . . . . . . . . . . . . . . . .. . . . . 13
2.3. Committed Advances. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 13
2.3.1. Commitment. . . . . . . . . . . . . . . . . . . . . . . .. . . . . 13
2.3.2. Ratable Loans; Types of Advances . . . . . . . . . . . .. . . . . 13
2.3.3. Minimum Amount of Each Committed Advance. . . . . . . .. . . . . 13
2.3.4. Applicable Margin . . . . . . . . . . . . . . . . . . . .. . . . . 14
2.3.5. Method of Selecting Types and Interest
Periods for New Committed Advances. . . . . . . . . . . .. . . . . 15
2.3.6. Conversion and Continuation of
Outstanding Committed Advances . . . . . . . . . . . . .. . . . . 15
2.4. Competitive Bid Advances. . . . . . . . . . . . . . . . .. . . . . 16
2.4.1. Competitive Bid Option; Repayment of
Competitive Bid Advances. . . . . . . . . . . . . . . . .. . . . . 16
2.4.2. Competitive Bid Quote Request. . . . . . . . . . . . . .. . . . . 16
2.4.3. Invitation for Competitive Bid Quotes. . . . . . . . . .. . . . . 17
2.4.4. Submission and Contents of Competitive
Bid Quotes . . . . . . . . . . . . . . . . . . . . . . .. . . . . 17
2.4.5. Notice to Borrower. . . . . . . . . . . . . . . . . . .. . . . . 19
2.4.6. Acceptance and Notice by Borrower. . . . . . . . . . .. . . . . 19
2.4.7. Allocation by the Agent . . . . . . . . . . . . . . . . .. . . . . 20
2.4.8. Administration Fee. . . . . . . . . . . . . . . . . . .. . . . . 20
2.5. Method of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 20
2.6. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 21
2.6.1. Facility Fee . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 21
2.6.2. Usage Fee . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 21
2.6.3. Agent's Fees . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 21
2.7. Reductions in Aggregate Commitment;
Principal Payments. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 21
2.7.1. Reductions in Aggregate Commitment. . . . . . . . . . . .. . . . . 21
2.7.2. Principal Payments . . . . . . . . . . . . . . . . . . .. . . . . 21
2.8. Changes in Interest Rate, etc. . . . . . . . . . . . . . . . . . . . .. . . . . 22
2.9. Rates Applicable After Default . . . . . . . . . . . . . . . . . . . .. . . . . 22
2.10. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 22
2.11. Notes; Telephonic Notices . . . . . . . . . . . . . . . . . . . . . . .. . . . . 23
2.12. Interest Payment Dates; Interest and Fee Basis . . . . . . . . . . . .. . . . . 23
2.13. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions . . . . . . . . . . . . . . . . .. . . . . 24
2.14. Lending Installations . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 24
2.15. Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . . . .. . . . . 24
2.16. Withholding Tax Exemption . . . . . . . . . . . . . . . . . . . . . . .. . . . . 24
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2.17. Extension of Termination Date . . . . . . . . . . . . . . . . . . . . .. . . . . 25
2.17.1 Extension Procedures. . . . . . . . . . . . . . . . . . . .. . . . . 25
2.17.2. Termination of Lenders. . . . . . . . . . . . . . . . . . .. . . . . 25
2.17.3. Successor Lenders. . . . . . . . . . . . . . . . . . . . .. . . . . 26
ARTICLE III CHANGE IN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 27
3.1. Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 27
3.2. Changes in Capital Adequacy Regulations . . . . . . . . . . . . . . . .. . . . . 28
3.3. Availability of Types of Advances . . . . . . . . . . . . . . . . . . .. . . . . 28
3.4. Funding Indemnification . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 28
3.5. Lender Statements; Survival of Indemnity . . . . . . . . . . . . . . .. . . . . 29
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 29
4.1. Initial Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 29
4.2. Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 30
ARTICLE V REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 31
5.1. Corporate Existence and Standing . . . . . . . . . . . . . . . . . . .. . . . . 31
5.2. Authorization and Validity . . . . . . . . . . . . . . . . . . . . . .. . . . . 31
5.3. No Conflict; Government Consent . . . . . . . . . . . . . . . . . . . .. . . . . 32
5.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 32
5.5. Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 32
5.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 32
5.7. Litigation and Contingent Obligations . . . . . . . . . . . . . . . . .. . . . . 32
5.8. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 33
5.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 33
5.10. Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 33
5.11. Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 33
5.12. Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 33
5.13. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 33
5.14. Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 34
5.15. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 34
5.16. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . .. . . . . 34
ARTICLE VI COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 34
6.1. Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 34
6.2. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 37
6.3. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 38
6.4. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 38
6.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 38
6.6. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 38
6.7. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 38
6.8. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . .. . . . . 38
6.9. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 38
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6.10. Merger . . . . . . . . . . . . . . . . . . . . . . . . 39
6.11. Sale of Assets . . . . . . . . . . . . . . . . . . . . 39
6.12. Acquisitions . . . . . . . . . . . . . . . . . . . . . 39
6.13. Liens . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.14. Capitalization . . . . . . . . . . . . . . . . . . . . 42
6.15. Consolidated Non-Performing Assets
to Total Equity Capital . . . . . . . . . . . . . . . . 42
6.16. Debt to Total Equity Capital . . . . . . . . . . . . . 42
ARTICLE VII DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES . . . . . . . 45
8.1. Acceleration . . . . . . . . . . . . . . . . . . . . . 45
8.2. Amendments . . . . . . . . . . . . . . . . . . . . . . 45
8.3. Preservation of Rights . . . . . . . . . . . . . . . . 46
ARTICLE IX GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 46
9.1. Survival of Representations . . . . . . . . . . . . . . 46
9.2. Governmental Regulation . . . . . . . . . . . . . . . . 46
9.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.4. Headings . . . . . . . . . . . . . . . . . . . . . . . 47
9.5. Entire Agreement . . . . . . . . . . . . . . . . . . . 47
9.6. Several Obligations; Benefits of this Agreement . . . . 47
9.7. Expenses; Indemnification . . . . . . . . . . . . . . . 47
9.8. Numbers of Documents . . . . . . . . . . . . . . . . . 48
9.9. Accounting . . . . . . . . . . . . . . . . . . . . . . 48
9.10. Severability of Provisions . . . . . . . . . . . . . . 48
9.11. Nonliability of Lenders . . . . . . . . . . . . . . . . 48
9.12. CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . 48
9.13. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . 48
9.14. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . 49
9.15. Confidentiality . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.1. Appointment . . . . . . . . . . . . . . . . . . . . . . 49
10.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . 49
10.3. General Immunity . . . . . . . . . . . . . . . . . . . 50
10.4. No Responsibility for Loans, Recitals, etc. . . . . . . 50
10.5. Action on Instructions of Lenders . . . . . . . . . . . 50
10.6. Employment of Agents and Counsel . . . . . . . . . . . 50
10.7. Reliance on Documents; Counsel . . . . . . . . . . . . 51
10.8. Agent's Reimbursement and Indemnification . . . . . . . 51
10.9. Rights as a Lender . . . . . . . . . . . . . . . . . . 51
10.l0. Lender Credit Decision . . . . . . . . . . . . . . . . 51
10.11. Successor Agent . . . . . . . . . . . . . . . . . . . . 52
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10.12. Co-Agents . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XI SETOFF; RATABLE PAYMENTS . . . . . . . . . . . . . . . . . . . 53
11.1. Setoff . . . . . . . . . . . . . . . . . . . . . . . . 53
11.2. Ratable Payments . . . . . . . . . . . . . . . . . . . 53
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . . . . 53
12.1. Successors and Assigns . . . . . . . . . . . . . . . . 53
12.2. Participations . . . . . . . . . . . . . . . . . . . . 54
12.2.1 Permitted Participants; Effect . . . . . . . . 54
12.2.2. Voting Rights . . . . . . . . . . . . . . . . 54
12.2.3. Benefit of Setoff . . . . . . . . . . . . . . 54
12.3. Assignments . . . . . . . . . . . . . . . . . . . . . . 55
12.3.1. Permitted Assignments . . . . . . . . . . . . 55
12.3.2. Effect; Effective Date . . . . . . . . . . . . 55
12.4. Dissemination of Information . . . . . . . . . . . . . 56
12.5. Tax Treatment . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XIII NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
13.1. Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . 56
13.2. Change of Address . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XIV COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . 56
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EXHIBIT "A-1" COMMITTED NOTE . . . . . . . . . . . . . . . . . 60
EXHIBIT "A-2" COMPETITIVE BID NOTE . . . . . . . . . . . . . . . 62
EXHIBIT "B" COMPETITIVE BID QUOTE REQUEST . . . . . . . . . . 64
EXHIBIT "C" INVITATION FOR COMPETITIVE BID QUOTES . . . . . . 66
EXHIBIT "D" COMPETITIVE BID QUOTE . . . . . . . . . . . . . . 67
EXHIBIT "E" FORM OF OPINION . . . . . . . . . . . . . . . . . 69
EXHIBIT "F" COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . 71
EXHIBIT "G" LOAN/CREDIT RELATED MONEY
TRANSFER INSTRUCTION . . . . . . . . . . 75
EXHIBIT "H" ASSIGNMENT AGREEMENT . . . . . . . . . . . . . . . 76
SCHEDULE "1" LITIGATION . . . . . . . . . . . . . . . . . . . . 86
SCHEDULE "2" SUBSIDIARIES . . . . . . . . . . . . . . . . . . . 87
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CREDIT AGREEMENT
This Agreement, dated as of August 8, 1995, is among Firstar Corporation,
the Lenders, Bank of America National Trust and Savings Association, Chemical
Bank and NBD Bank, as Co-Agents and The First National Bank of Chicago, as
Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Absolute Rate" means, with respect to a Loan made by a given Lender for
the relevant Absolute Rate Interest Period, the rate of interest per annum
(rounded to the nearest 1/100 of 1%) offered by such Lender and accepted by the
Borrower pursuant to Section 2.4.6.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Borrower at the same time and for the same Absolute Rate
Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.4.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance or an Absolute Rate Loan, a period of not less than 7 and not more than
180 days commencing on a Business Day selected by the Borrower pursuant to this
Agreement, but in no event extending beyond the Termination Date. If such
Absolute Rate Interest Period would end on a day which is not a Business Day,
such Absolute Rate Interest Period shall end on the next succeeding Business
Day.
"Absolute Rate Loan" means a Loan which bears interest at an Absolute
Rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of
the outstanding ownership interests of a partnership, association, joint
venture or similar business organization.
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"Adequately Capitalized" means "adequately capitalized" for purposes of
12 U.S.C. 1831(o) and any rules and regulations issued thereunder (including,
without limitation, 12 C.F.R. 565.4), as amended, supplemented or otherwise
modified from time to time.
"Advance" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made by some or all of the Lenders to the Borrower of the
same Type (or on the same interest basis in the case of Competitive Bid
Advances) and, in the case of Fixed Rate Advances, for the same Interest Period
and includes both a Committed Advance and a Competitive Bid Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as agent
for the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the
sum of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means, at any date of determination thereof with
respect to any Eurodollar Committed Advance and the facility fees payable
pursuant to Section 2.6.1, the respective rates per annum for such Eurodollar
Committed Advance and facility fees calculated in accordance with the terms of
Section 2.3.4.
"Article" means an article of this Agreement unless another document is
specifically referenced.
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"Authorized Officer" means any of the Chairman of the Board, President,
or Senior Vice President - Finance and Treasurer of the Borrower, acting
singly.
"Banking Subsidiary" means any insured depository institution (within the
meaning of 12 U.S.C. 1813(c), as amended, supplemented or otherwise modified
from time to time), which is controlled (within the meaning of 12 U.S.C. 1841,
as amended, supplemented or otherwise modified from time to time) by the
Borrower.
"Borrower" means Firstar Corporation, a Wisconsin corporation, and its
successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Closing Date" means the date upon which all of the conditions set forth
in Section 4.1 have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or
as set forth in any Notice of Assignment relating to any assignment that has
become effective pursuant to Section 12.3.2, as such amount may be modified
from time to time pursuant to the terms hereof.
"Committed Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Committed Loans made by the Lenders to the
Borrower at the same time, of the same Type and, in the case of Eurodollar
Committed Advances, for the same Interest Period.
"Committed Borrowing Notice" is defined in Section 2.3.5.
"Committed Loan" means a Loan made by a Lender pursuant to Section 2.3.
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"Committed Note" means a promissory note in substantially the form of
Exhibit "A-1" hereto, with appropriate insertions, duly executed and delivered
to the Agent by the Borrower for the account of a Lender and payable to the
order of such Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of
the Lenders to the Borrower at the same time, at the same interest basis, and
for the same Interest Period.
"Competitive Bid Acceptance Notice" is defined in Section 2.4.6.
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute
Rate Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form
of Exhibit "A-2" hereto, with appropriate insertions, duly executed and
delivered to the Agent by the Borrower for the account of a Lender and payable
to the order of such Lender, including any amendment, modification, renewal or
replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
the form of Exhibit "D" hereto completed and delivered by a Lender to the Agent
in accordance with Section 2.4.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "B" hereto completed and delivered by the
Borrower to the Agent in accordance with Section 2.4.2.
"Consolidated Financial Statements" means the Consolidated Financial
Statements for Bank Holding Companies With Total Consolidated Assets of $150
Million or More, or With More Than One Subsidiary Bank--FR Y-9 C, as such
report may be amended or modified from time to time, and any similar report
required to be filed by the Borrower.
"Consolidated Reports of Condition and Income" means the Consolidated
Reports of Condition and Income for A Bank With Domestic and Foreign
Offices--FFIEC 031, Consolidated Reports of Condition and Income for A Bank
With Domestic Offices Only and
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Total Assets of $300 Million or More--FFIEC 032, Consolidated Reports of
Condition and Income for A Bank With Domestic Offices Only and Total Assets of
$100 Million or More But Less Than $300 Million--FFIEC 033, and Consolidated
Reports of Condition and Income for A Bank With Domestic Offices Only and Total
Assets of Less Than $100 Million--FFIEC 034, as such reports may be amended or
modified from time to time, and any similar report required to be filed by any
Banking Subsidiary.
"Conversion/Continuation Notice" is defined in Section 2.3.6.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries,
are treated as a single employer under Section 414 of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when
and as said corporate base rate changes.
"Default" means an event described in Article VII.
"ERISA" means the Employee Retirement Income Security Act of l974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means a Eurodollar Committed Advance or a Eurodollar
Bid Rate Advance, as applicable.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.4.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, the rate determined by the Agent to be
the rate at which deposits in U.S. dollars are offered by First Chicago to
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Eurodollar
Interest Period, (i) in the case of a Eurodollar Committed Advance, in the
approximate amount of First Chicago's relevant Eurodollar Committed Loan, or
(ii) in the case of a Eurodollar Bid Rate Advance, in the approximate amount of
such Eurodollar Bid Rate Advance requested by the Borrower, and in each case
having a maturity approximately equal to such Interest Period.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan
made by a given Lender for the relevant Eurodollar Interest Period, the sum of
(i) the quotient of (a) the Eurodollar Base Rate applicable to such Eurodollar
Interest Period, divided by
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(b) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Eurodollar Interest Period, plus (ii) the Competitive Bid Margin offered
by such Lender and accepted by the Borrower pursuant to Section 2.4.6.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Competitive Bid Loan which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Committed Advance" means an Advance which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.3.
"Eurodollar Committed Loan" means a Loan which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.3.
"Eurodollar Interest Period" means, with respect to a Eurodollar Advance
or a Eurodollar Loan, a period of one, two, three or six months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such
Eurodollar Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter, provided,
however, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Eurodollar Interest Period shall
end on the last Business Day of such next, second, third or sixth succeeding
month. If a Eurodollar Interest Period would otherwise end on a day which is
not a Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Eurodollar Interest Period
shall end on the immediately preceding Business Day. In no event shall any
Eurodollar Interest Period extend beyond the Termination Date.
"Eurodollar Loan" means a Eurodollar Committed Loan or a Eurodollar Bid
Rate Loan, as applicable.
"Eurodollar Rate" means, with respect to a Eurodollar Committed Advance
or a Eurodollar Committed Loan for the relevant Eurodollar Interest Period, the
sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such
Eurodollar Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Eurodollar Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on
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overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published for such day (or,
if such day is not a Business Day, for the immediately preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10 a.m. (Chicago time) on such day on such transactions received
by the Agent from three Federal funds brokers of recognized standing selected
by the Agent in its sole discretion.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors.
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or the
Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, changing when and as the Alternate Base Rate
changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Indebtedness" means (i) total deposits, (ii) securities sold under
agreements to repurchase, (iii) borrowings with an original maturity of one
year or less, (iv) other borrowed funds with an original maturity of greater
than one year, (v) mandatory convertible securities, (vi) subordinated notes
and debentures, and (vii) other liabilities, in each case determined for the
Borrower only in a manner consistent with that used in preparing the Borrower's
March 31, 1995 Parent Company Only Financial Statements.
"Interest Period" means a Eurodollar Interest Period or an Absolute Rate
Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit "C" hereto,
completed and delivered by the Agent to the Lenders in accordance with Section
2.4.3.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
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"Lending Installation" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement and the Notes.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agent or the Lenders thereunder.
"Material Banking Subsidiary" means, at any time, any one or more Banking
Subsidiaries having aggregate consolidated assets equal to or greater than 5%
of the consolidated assets of the Borrower and its Subsidiaries at such time.
"Moody's" means Xxxxx'x Investors Service Inc. or any successor
corporation thereto.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non-Performing Assets" means the total of (i) Non-Performing Loans, (ii)
Other Real Estate Owned and (iii) without duplication for amounts included as
Other Real Estate Owned, property acquired pursuant to in substance
foreclosures.
"Non-Performing Loans" means (i) the total of loans which are placed on a
nonaccural status, (ii) the total of loans which are past due 90 days or more
and are still accruing, and (iii) the total of loans and leases restructured
and in compliance with
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modified terms, in each case determined for the Borrower and its Subsidiaries
on a consolidated basis in a manner consistent with that used in preparing the
Borrower's March 31, 1995 Consolidated Financial Statements.
"Notes" means, collectively, the Committed Notes and the Competitive Bid
Notes; and "Note" means any one of such Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the
Lenders or to any Lender, the Agent or any indemnified party hereunder arising
under the Loan Documents.
"Other Real Estate Owned" means Other Real Estate Owned as defined in 12
C.F.R. Section 7.3025 (1989), as such regulation may be amended or supplemented
from time to time, determined for the Borrower and its Subsidiaries on a
consolidated basis in a manner consistent with that used in preparing the
Borrower's Consolidated Financial Statements.
"Parent Company Only Financial Statements" means the Parent Company Only
Financial Statements for Bank Holding Companies With Total Consolidated Assets
of $150 Million or More, or With More Than One Subsidiary Bank--FR Y-9 LP, as
such report may be amended or modified from time to time, and any similar
report required to be filed by the Borrower.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Banking Subsidiary Indebtedness" means obligations incurred by
any Banking Subsidiary in the ordinary course of business in such circumstances
as may be incidental or usual in carrying on the banking or trust business of a
bank or trust company, including, without limitation, obligations incurred in
connection with (i) any deposits with or funds collected by such Subsidiary,
(ii) any banker's acceptance credit of such Subsidiary, (iii) any check, note,
certificate of deposit, instrument, money or Letter of Credit issued by such
Subsidiary, (iv) any check, note, certificate of deposit, money order,
traveler's check, draft or xxxx of exchange issued, accepted or endorsed by
such Subsidiary, (v) any discount with, borrowing from, or other obligation to,
any Federal Reserve Bank or any Federal Home Loan Bank, (vi) any agreement made
by such Subsidiary to purchase or repurchase
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securities, loans or Federal funds or any interest or participation in any
thereof, (vii) any guarantee or similar obligation incurred by such Subsidiary
in the ordinary course of its banking or trust business, (viii) any transaction
in the nature of an extension of credit, whether in the form of a commitment or
otherwise, undertaken by such Subsidiary for the account of a third party with
the application of the same banking considerations and legal lending limits
that would be applicable if the transaction were a loan to such party, (ix) any
transaction in which such Subsidiary acts solely in the fiduciary or agency
capacity, (x) Rate Hedging Obligations incurred in the ordinary course of
business, and (xi) other short-term liabilities similar to those enumerated in
clauses (i) and (vi) above, including United States Treasury tax and loan
borrowings.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of
the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
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"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, and excluding any event described in Section
4043(b)(3) of ERISA.
"Required Lenders" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a Eurodollar Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurocurrency liabilities.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Standard & Poor's" means Standard & Poor's Ratings Group or any
successor corporation thereto.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Notwithstanding
the foregoing, "Subsidiary" of the Borrower shall also mean any Banking
Subsidiary. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the Borrower and its
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Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made, or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries as reflected in
the financial statements referred to in clause (i) above.
"Termination Date" means the earlier of (i) August 7, 1999 or such later
date as shall have been agreed to by the Lenders pursuant to Section 2.17, and
(ii) the date on which the Commitments shall have been reduced to zero or
terminated pursuant to Section 2.7.1 or 8.1.
"Thrift Financial Report" means the Thrift Financial Report, as such
report may be amended or modified from time to time, and any similar report
required to be filed by any Banking Subsidiary.
"Total Equity Capital" means total equity capital determined for the
Borrower and its Subsidiaries on a consolidated basis in a manner consistent
with that used in preparing the Borrower's March 31, 1995 Consolidated
Financial Statements.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance or Loan, its nature as an
Alternate Base Rate Advance or Loan, Eurodollar Committed Advance or Loan,
Eurodollar Bid Rate Advance or Loan or Absolute Rate Advance or Loan.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Well-Capitalized" means "well-capitalized" for purposes of 12 U.S.C.
1831(o) and any rules and regulations issued thereunder (including, without
limitation, 12 C.F.R. 565.4), as amended, supplemented or otherwise modified
from time to time.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint
venture or similar ordinary voting power of which shall at the time be so
owned or controlled.
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The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Description of Facility. Upon the terms and subject to the
conditions set forth in this Agreement, the Lenders hereby grant to the
Borrower a revolving credit facility pursuant to which: (i) each Lender
severally agrees to make Committed Loans to the Borrower in accordance with
Section 2.3; and (ii) each Lender may, in its sole discretion, make bids to
make Competitive Bid Loans to the Borrower in accordance with Section 2.4;
provided, however, that in no event may the aggregate principal amount of all
outstanding Advances (including both Committed Advances and Competitive Bid
Advances) exceed the Aggregate Commitment.
2.2. Availability of Facility. Subject to all of the terms and
conditions of this Agreement, the facility is available from the Closing Date
to the Termination Date, and the Borrower may borrow, repay and reborrow at any
time prior to the Termination Date.
2.3. Committed Advances.
2.3.1. Commitment. From and including the Closing
Date and prior to the Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Committed Loans to
the Borrower from time to time in amounts not to exceed in the aggregate at any
one time outstanding the amount of its Commitment. The Commitments to lend
hereunder shall expire on the Termination Date.
2.3.2. Ratable Loans; Types of Advances. Each
Committed Advance hereunder shall consist of Loans made from the several
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment. The Committed Advances may be Floating Rate
Advances or Eurodollar Committed Advances, or a combination thereof, selected
by the Borrower in accordance with Sections 2.3.5 and 2.3.6. The Committed
Advances shall be evidenced by the Committed Notes.
2.3.3. Minimum Amount of Each Committed Advance.
Each Committed Advance shall be in the minimum amount of $5,000,000 (and in
multiples of $500,000 in excess thereof); provided, however,
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that any Floating Rate Advance may be in the aggregate amount of the unused
Aggregate Commitment.
2.3.4. Applicable Margin.
(i) The Applicable Margin for Eurodollar Committed Advances
and for facility fees payable pursuant to Section 2.6.1 hereunder, shall
be subject to adjustment (upwards or downwards, as appropriate) based on
the Borrower's Rating and shall be determined in accordance with the
table set forth below. The Applicable Margin shall be adjusted on the
earlier of the date of announcement or the date of publication by the
respective rating agencies of a change in the Rating or, in the absence
of such announcement or publication, on the effective date of such
changed Rating (the "Adjustment Date"), and shall apply to all
outstanding Eurodollar Committed Advances and the facility fees from and
after such Adjustment Date to the next Adjustment Date. In the event
that the Borrower shall at any time cease to be rated by Standard &
Poor's and Moody's, the maximum Applicable Margin shall apply.
Applicable Margin
(basis points per annum)
------------------------
Eurodollar Committed
Rating Advances Facility Fees
------ -------------------- -------------
Level I 20.00 b.p. 10.00 b.p.
Level II 25.00 b.p. 12.50 b.p.
Level III 30.00 b.p. 15.00 b.p.
Level IV 41.25 b.p. 18.75 b.p.
Level V 45.00 b.p. 25.00 b.p.
(ii) For purposes of this Agreement, the Borrower's Rating
shall be determined in accordance with the following definitions:
"Level I" means the level applicable at any time when the
Borrower's Rating from Standard & Poor's is at least A or better or at
least A2 or better from Moody's.
"Level II" means the level applicable at any time when the
Borrower's Rating from Standard & Poor's is A- or A3 from Moody's.
"Level III" means the level applicable at any time when the
Borrower's Rating from Standard & Poor's is BBB+ or Baa1 from Moody's.
"Level IV" means the level applicable at any time when the
Borrower's Rating from Standard & Poor's is BBB or Baa2 from Moody's.
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"Level V" means the level applicable at any time when the
Borrower's Rating from Standard & Poor's is BBB- or less or Baa3 or less
from Xxxxx'x.
"Rating" means the rating assigned by Standard & Poor's or
Moody's to the Borrower's senior unsecured debt or if the Borrower ceases
to have such a rating, then the Rating shall be the Borrower's implied
long-term senior debt rating (i.e., the rating that is one rating level
higher than the rating assigned by Standard & Poor's or Moody's to the
Borrower's publicly issued subordinated debt). The Rating shall be based
on the applicable Xxxxx X, Xxxxx XX, Xxxxx XXX, Xxxxx XX or Level V;
provided, however, that if (i) such rating is received from one such
rating agency, then that rating will be the Rating, (ii) such rating is
received from both rating agencies, then the higher rating will be the
Rating, and (iii) if there is a difference of two or more levels between
such Ratings, then the Rating which is one below the higher Rating will
be the Rating.
2.3.5. Method of Selecting Types and Interest Periods for
New Committed Advances. The Borrower shall select the Type of Committed
Advance, and in the case of each Eurodollar Committed Advance the Eurodollar
Interest Period applicable thereto, for each such Committed Advance. The
Borrower shall give the Agent irrevocable notice (a "Committed Borrowing
Notice") not later than 10:00 a.m. (Chicago time) on the Borrowing Date for
each Floating Rate Advance and three Business Days before the Borrowing Date
for each Eurodollar Committed Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Committed Advance,
(ii) the aggregate amount of such Committed Advance,
(iii) the Type of Committed Advance selected, and
(iv) in the case of each Eurodollar Committed Advance, the
Eurodollar Interest Period applicable thereto.
2.3.6. Conversion and Continuation of Outstanding Committed
Advances. Floating Rate Advances shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into Eurodollar
Committed Advances. Each Eurodollar Committed Advance shall continue as a
Eurodollar Committed Advance until the end of the then applicable Eurodollar
Interest Period therefor, at which time such Eurodollar Committed Advance shall
be automatically converted into a Floating Rate Advance unless such Eurodollar
Committed Advance is paid by the Borrower or the Borrower shall have given the
Agent a Conversion/Continuation Notice requesting that, at the end of such
Eurodollar Interest Period, such Eurodollar Committed Advance continue as a
Eurodollar
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Committed Advance for the same or another Eurodollar Interest Period. Subject
to the terms of Section 2.3.3, the Borrower may elect from time to time to
convert all or any part of a Floating Rate Advance into a Eurodollar Committed
Advance. The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of Floating Rate Advance
or continuation of a Eurodollar Committed Advance not later than 10:00 a.m.
(Chicago time) at least three Business Days prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Committed Advance
which is to be converted or continued; and
(iii) the amount and Type(s) of Committed Advance(s) into which
such Committed Advance is to be converted or continued
and, in the case of a conversion into or continuation of a
Eurodollar Committed Advance, the duration of the
Eurodollar Interest Period applicable thereto.
2.4. Competitive Bid Advances.
2.4.1. Competitive Bid Option; Repayment of Competitive Bid
Advances. In addition to Committed Advances pursuant to Section 2.3, but
subject to all of the terms and conditions of this Agreement (including,
without limitation, the limitation set forth in Section 2.1 as to the maximum
aggregate principal amount of all outstanding Advances hereunder), the Borrower
may, as set forth in this Section 2.4, request the Lenders, prior to the
Termination Date, to make offers to make Competitive Bid Advances to the
Borrower. Each Lender may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers
in the manner set forth in this Section 2.4. The Competitive Bid Advances
shall be evidenced by the Competitive Bid Notes. Each Competitive Bid Advance
shall be repaid in full by the Borrower on the last day of the Interest Period
applicable thereto.
2.4.2. Competitive Bid Quote Request. When the Borrower
wishes to request offers to make Competitive Bid Loans under this Section 2.4,
the Borrower shall transmit to the Agent by telecopy a Competitive Bid Quote
Request so as to be received no later than (x) 10:00 a.m. (Chicago time) at
least five Business Days prior to the Borrowing Date proposed therein, in the
case of a Eurodollar Auction, or (y) 9:00 a.m. (Chicago time) at least one
Business Day prior to the Borrowing Date proposed therein, in the case of an
Absolute Rate Auction, specifying in accordance with all of the terms of this
Agreement:
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(i) the proposed Borrowing Date, which shall be a Business Day, for
the proposed Competitive Bid Advance;
(ii) the aggregate principal amount of such Competitive Bid Advance;
(iii) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or an Absolute Rate, or both; and
(iv) the Interest Period applicable thereto.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and for a Eurodollar Auction and an Absolute Rate Auction in a
single Competitive Bid Quote Request. No Competitive Bid Quote Request shall
be given within five Business Days (or upon reasonable prior notice to the
Lenders, such other number of days as the Borrower and the Agent may agree) of
any other Competitive Bid Quote Request. Each Competitive Bid Quote Request
shall be in a minimum amount of $5,000,000 (and in multiples of $500,000 in
excess thereof). A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit "B" hereto shall be rejected, and the
Agent shall promptly notify the Borrower of such rejection by telecopy.
2.4.3. Invitation for Competitive Bid Quotes. Promptly upon
receipt of a Competitive Bid Quote Request that is not rejected pursuant to
Section 2.4.2, the Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes which shall constitute an invitation by
the Borrower to each Lender to submit Competitive Bid Quotes offering to make
the Competitive Bid Loans to which such Competitive Bid Quote Request relates
in accordance with this Section 2.4.
2.4.4. Submission and Contents of Competitive Bid Quotes.
(a) Each Lender may, in its sole discretion, submit a Competitive
Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Invitation for Competitive Bid
Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.4.4 and must be submitted to
the Agent by telecopy at its offices specified in or pursuant
to Article XIII not later than (i) (A) 12:45 p.m. (Chicago
time) in the case of First Chicago and (B) 1:00 p.m. (Chicago
time) in the case of each other Lender, at least four Business
Days prior to the proposed Borrowing Date in the case of a
Eurodollar Auction, or (ii) (A) 8:45 a.m. (Chicago time) in
the case of First Chicago and (B) 9:00 a.m. (Chicago time) in
the case of each other Lender, on the proposed Borrowing Date
in the case of an Absolute Rate Auction
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(or, in either such case upon reasonable prior notice to the Lenders,
such other time and date as the Borrower and the Agent may agree;
provided that First Chicago shall always be required to submit its
Competitive Bid Quotes not less than fifteen minutes prior to the
other Lenders). Subject to Articles IV and VIII, any Competitive Bid
Quote so made shall be irrevocable except with the written consent of
the Agent given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall in any case specify:
(i) the proposed Borrowing Date, which shall be the same
as that set forth in the applicable Invitation for
Competitive Bid Quotes;
(ii) the principal amount of the Competitive Bid Loan for
which each such offer is being made, (1) which
principal amount may be greater than, less than or
equal to the Commitment of the quoting Lender, but
in no case greater than the unutilized Aggregate
Commitment, (2) which principal amount must be at
least $5,000,000 (and in multiples of $500,000 in
excess thereof) and (3) which principal amount may
not exceed the principal amount of Competitive Bid
Loans for which offers were requested;
(iii) in the case of a Eurodollar Auction, the
Competitive Bid Margin offered for each such
Competitive Bid Loan;
(iv) the minimum or maximum amount, if any, of the
Competitive Bid Loan which may be accepted by the
Borrower and/or the limit, if any, as to the
aggregate principal amount of the Competitive Bid
Loans from such Lender which may be accepted by the
Borrower;
(v) in the case of an Absolute Rate Auction, the
Absolute Rate offered for each such Competitive Bid
Loan;
(vi) the applicable Interest Period; and
(vii) the identity of the quoting Lender.
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(c) The Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit
"D" hereto or does not specify all of the
information required by Section 2.4.4(b);
(ii) contains qualifying, conditional or similar
language, other than any such language
contained in Exhibit "D" hereto;
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation
for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section
2.4.4(a).
(d) If any Competitive Bid Quote shall be rejected pursuant to
Section 2.4.4(c), then the Agent shall notify the relevant
Lender of such rejection as soon as practicable.
2.4.5. Notice to Borrower. The Agent shall promptly notify
the Borrower of the terms (i) of any Competitive Bid Quote submitted by a
Lender that is in accordance with Section 2.4.4 and (ii) of any Competitive Bid
Quote that is in accordance with Section 2.4.4 and amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted by such
Lender with respect to the same Competitive Bid Quote Request. Any such
subsequent Competitive Bid Quote shall be disregarded by the Agent unless such
subsequent Competitive Bid Quote specifically states that it is submitted
solely to correct a manifest error in such former Competitive Bid Quote. The
Agent's notice to the Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Quote Request and the
respective principal amounts and Competitive Bid Margins or Absolute Rates, as
the case may be, so offered.
2.4.6. Acceptance and Notice by Borrower. Subject to the
receipt of the notice from the Agent referred to in Section 2.4.5, not later
than (i) 10:00 a.m. (Chicago time) at least three Business Days prior to the
proposed Borrowing Date, in the case of a Eurodollar Auction or (ii) 10:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of an Absolute Rate
Auction, the Borrower shall notify the Agent of the Borrower's acceptance or
rejection of the offers so notified to it pursuant to Section 2.4.5; provided,
however, that the failure by the Borrower to give such notice to the Agent
shall be deemed to be a rejection by the Borrower of all such offers. In the
case of acceptance, such notice (a "Competitive Bid Acceptance Notice") shall
specify the aggregate principal amount of offers for each Interest Period that
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are accepted. The Borrower may accept or reject any Competitive Bid Quote in
whole or in part (subject to the terms of Section 2.4.4(b)(iv)); provided that:
(i) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in
the related Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Absolute Rates, as
the case may be; and
(iii) the Borrower may not accept any offer of the type
described in Section 2.4.4(c) or that otherwise fails to
comply with the requirements of this Agreement for the
purpose of obtaining a Competitive Bid Loan under this
Agreement.
2.4.7. Allocation by the Agent. Subject to Section 2.4.6,
if offers are made by two or more Lenders with the same Competitive Bid Margins
or Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are permitted to be accepted for the
related Interest Period, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated by the Agent among
such Lenders as nearly as possible (in such multiples as the Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers;
provided, however, that no Lender shall be allocated a portion of any
Competitive Bid Advance which is less than the minimum amount which such Lender
has indicated that it is willing to accept. Allocations by the Agent of the
amounts of Competitive Bid Loans shall be conclusive in the absence of manifest
error. The Agent shall promptly, but in any event on the same Business Day in
the case of Eurodollar Bid Rate Advances, and by 11:00 a.m. (Chicago time) on
the same Business Day in the case of Absolute Rate Advances, notify each Lender
of its receipt of a Competitive Bid Acceptance Notice and the aggregate
principal amount of each Competitive Bid Advance allocated to each
participating Lender.
2.4.8. Administration Fee. The Borrower hereby agrees to
pay to the Agent, for its sole account, an administration fee of $1,000 per
Competitive Bid Quote Request transmitted by the Borrower to the Agent pursuant
to Section 2.4.2. Such administration fee shall be payable in arrears on each
Payment Date and on the Termination Date for any period then ending for which
such fee, if any, shall not have been theretofore paid.
2.5. Method of Borrowing. Not later than 12:00 noon (Chicago time)
on each Borrowing Date, each Lender shall make available its Loan or Loans, if
any, in funds immediately available to the Agent, in Chicago, Illinois at its
address specified
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pursuant to Article XIII. The Agent will make the funds so received from the
Lenders available to the Borrower at the Agent's aforesaid address.
Notwithstanding the foregoing provisions of this Section 2.5, to the extent
that a Loan made by a Lender matures on the Borrowing Date of a requested Loan,
such Lender shall apply the proceeds of the Loan it is then making to the
repayment of principal of the maturing Loan.
2.6. Fees. The Borrower agrees to pay the following fees:
2.6.1. Facility Fee. The Borrower agrees to pay to the Agent
for the account of each Lender, for the period from the Closing Date to and
including the Termination Date, a facility fee equal to the product of (i) such
Lender's Commitment (whether used or unused), and (ii) the amount (expressed in
basis points per annum) specified as the Applicable Margin for facility fees
pursuant to Section 2.3.4(i), payable on each Payment Date and on the
Termination Date.
2.6.2. Usage Fee. In the event that during any
calendar quarter, the average daily principal amount of the Loans outstanding
is greater than $62,500,000, the Borrower agrees to pay to the Agent for the
account of each Lender a usage fee equal to 5 basis points per annum on the
average daily principal amount of the Loans outstanding during such quarter,
payable on each Payment Date and on the Termination Date.
2.6.3. Agent's Fees. The Borrower agrees to pay to the
Agent, for its own account, the fees agreed to by the Borrower and the Agent
pursuant to that certain Letter Agreement dated June 28, 1995.
2.7. Reductions in Aggregate Commitment; Principal Payments.
2.7.1. Reductions in Aggregate Commitment. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably among
the Lenders in a minimum aggregate amount of $5,000,000 (and multiples of
$500,000 in excess thereof), upon at least three Business Days' written notice
to the Agent, which notice shall specify the amount of any such reduction;
provided, however, that the amount of the Aggregate Commitment may not be
reduced below the aggregate principal amount of the outstanding Advances.
2.7.2. Principal Payments.
(i) Optional Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate
Advances, or, in a minimum aggregate amount of $5,000,000 (and
multiples of $500,000 in excess thereof), any portion of the
outstanding Floating Rate Advances upon one Business Days'
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prior notice to the Agent. A Fixed Rate Advance may not be paid prior
to the last day of the applicable Interest Period.
(ii) Termination. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Termination
Date.
2.8. Changes in Interest Rate, etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a
Eurodollar Committed Advance into a Floating Rate Advance pursuant to Section
2.3.6 to but excluding the date it becomes due or is converted into a
Eurodollar Committed Advance pursuant to Section 2.3.6 hereof, at a rate per
annum equal to the Floating Rate for such day. Changes in the rate of interest
on that portion of any Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each Fixed
Rate Advance shall bear interest from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such Fixed
Rate Advance. No Interest Period may end after the Termination Date.
2.9. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.3.5 or 2.3.6, during the continuance of a
Default or Unmatured Default, the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurodollar Committed
Advance. During the continuance of a Default, the Required Lenders may, at
their option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Fixed Rate Advance shall bear interest for the remainder
of the applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum and (ii) each Floating Rate Advance shall bear
interest at a rate per annum equal to the Floating Rate plus 2% per annum.
2.10. Method of Payment. Subject to the last sentence of Section
2.5, all payments of the Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds to the Agent at the
Agent's address specified pursuant to Article XIII, or at any other Lending
Installation of the Agent specified in writing by the Agent to the Borrower, by
noon (local time) on the date when due and shall be applied ratably by the
Agent among all Lenders in the case of fees and payments in respect of
Committed Advances and ratably among the applicable Lenders in respect of
Competitive Bid Advances. Each payment
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delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds that the Agent
received at its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent from such Lender. The
Agent is hereby authorized to charge the account of the Borrower maintained
with First Chicago for each payment of principal, interest and fees as it
becomes due hereunder.
2.11. Notes; Telephonic Notices. Each Lender is hereby authorized
to record the principal amount of each of its Loans and each repayment on the
schedule attached to its Notes; provided, however, that the failure to so
record shall not affect the Borrower's obligations under any Loan Document.
The Borrower hereby authorizes the Lenders and the Agent to extend, convert or
continue Advances, effect selections of Types of Advances, transfer funds and
submit Competitive Bid Quotes, in each case based on telephonic notices made by
any person or persons the Agent or any Lender in good faith believes to be
acting on behalf of the Borrower. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the
Agent or any Lender, of each telephonic notice signed by an Authorized Officer.
If the written confirmation differs in any material respect from the action
taken by the Agent and the Lenders, the records of the Agent and the Lenders
shall govern absent manifest error.
2.12. Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof, on any date
on which the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on each Fixed Rate Advance shall
be payable on the last day of its applicable Interest Period, on any date on
which the Fixed Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on each Fixed Rate Advance having
an Interest Period longer than three months shall also be payable on the last
day of each three-month interval (in the case of Eurodollar Committed Advances
or Eurodollar Bid Rate Advances) or 90-day interval (in the case of Absolute
Rate Advances) during such Interest Period. Interest and fees shall be
calculated for actual days elapsed on the basis of a 360-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon (local time) at
the place of payment. If any payment of principal of or interest on an Advance
shall become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
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2.13. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Committed Borrowing Notice, Competitive Bid Acceptance Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Agent will notify each Lender of the interest rate applicable to each Fixed
Rate Advance promptly upon determination of such interest rate and will give
each Lender prompt notice of each change in the Alternate Base Rate.
2.14. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.15. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption.
If such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a
Lender, the Federal Funds Effective Rate for such day or (ii) in the case of
payment by the Borrower, the interest rate applicable to the relevant Loan.
2.16. Withholding Tax Exemption. At least five Business Days prior
to the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver
to each of the Borrower and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 (or a successor form),
certifying in either case that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes. Each Lender which so delivers a Form 1001
or 4224 further undertakes to deliver to each
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of the Borrower and the Agent two additional copies of such form (or a
successor form) on or before the date that such form expires (currently, three
successive calendar years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by the Borrower or the
Agent, in each case certifying that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises the
Borrower and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
2.17. Extension of Termination Date.
2.17.1. Extension Procedures. The Commitment of each Lender,
and this Agreement as between such Lender and the Borrower, may be extended for
one period of one year upon mutual agreement of such Lender and the Borrower in
the manner provided in this Section 2.17, to the effect that the Termination
Date with respect to such Lender for all purposes under this Agreement and the
Notes shall be extended by one year to August 7, 2000. The request for such an
extension shall be made by the Borrower in writing and delivered to the Agent
no later than 60 days but not sooner than 90 days prior to the second
anniversary of this Agreement. Promptly following the Agent's receipt of any
such request, the Agent shall notify each Lender thereof. Each Lender may, in
its sole discretion, agree to such extension by giving written notice of such
agreement to the Agent and the Borrower within 30 days following the Borrower's
request for such extension (each Lender which so consents to a requested
extension is herein called a "Consenting Lender" and each Lender which does not
so consent to a requested extension is herein called a "Non-consenting
Lender"). If any Lender fails to respond to any such request, such Lender
shall be deemed to be a Non-consenting Lender. If Consenting Lenders hold 66
2/3% or more of the Aggregate Commitment, then the Termination Date of each
Consenting Lender shall be so extended and the Termination Date of each
Non-consenting Lender, if any, shall remain unchanged. If Consenting Lenders
hold less than 66 2/3% of the Aggregate Commitment, then the Termination Date
shall not be extended for any of the Lenders.
2.17.2. Termination of Lenders. If there are any
Non-consenting Lenders pursuant to Section 2.17.1 and an extension has occurred
for Consenting Lenders, the Borrower may, at its option, terminate the
Commitment of a Non-consenting Lender and pay or
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prepay all outstanding Loans of such Non-consenting Lender (each a "Terminated
Lender"). The Borrower shall, by giving written notice thereof to the
Terminated Lender and to the Agent, specify the proposed effective date of
termination of the Terminated Lender's Commitment (the "Lender Termination
Date"), which date shall not in any event be less than five nor more than
thirty days following the date of such notice of termination. The Borrower may
not elect to terminate and prepay any Lender under this Section 2.17.2 if a
Default or Unmatured Default exists. On the Lender Termination Date (i) the
Borrower shall pay or prepay all outstanding Loans of such Terminated Lender,
together with accrued interest thereon and all fees due such Terminated Lender
under this Agreement, in each case accrued through the Lender Termination Date,
together with all amounts, if any, payable under Section 3.4 in connection with
prepayment of such Loans, and (ii) the Terminated Lender shall have no further
Commitment under this Agreement and shall no longer be a "Lender" under this
Agreement for any purpose except insofar as it shall be entitled to any payment
or indemnification, or be obligated to make any indemnification, on account of
any event which shall have occurred, or any right or liability which shall have
arisen, on or prior to the date of repayment in full of such Loans. The
termination of any Terminated Lender's Commitment and the prepayment of a
Terminated Lender's Loans pursuant to this Section 2.17.2 shall not relieve or
satisfy the obligations of the Borrower to make any such prepayments free and
clear of all taxes, to reimburse such Terminated Lender for all increased costs
pursuant to Section 3.4, or to comply with all other terms and conditions of
this Agreement (including, without limitation, Section 9.7).
2.17.3. Successor Lenders. If, from time to time, any
Non-consenting Lender's Commitment is terminated pursuant to Section 2.17.2,
the Borrower may, at its option, specify one or more commercial banks
(including any Lender) (each a "Successor Lender"), each of which Successor
Lenders (i) shall be acceptable to the Agent, (ii) have a combined capital,
surplus (or its equivalent) and undivided profits in an amount not less than
U.S. $250,000,000 (or its equivalent in another currency), and (iii) shall
have agreed, in the aggregate, to succeed to the entire Commitment of such
Terminated Lender on the applicable Lender Termination Date. Effective as of
such Lender Termination Date, the Borrower, the Agent and such Successor Lender
shall enter into an appropriate Assignment Agreement to so assign the entire
Commitment of the applicable Terminated Lender to the Successor Lender.
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ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from
payments due from the Borrower (excluding federal taxation
of the overall net income of any Lender or applicable
Lending Installation, income taxes imposed on any Lender
in the jurisdiction in which such Lender's home office is
located, and the Illinois personal property replacement
tax), or changes the basis of taxation of payments to any
Lender in respect of its Loans or other amounts due it
hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Fixed Rate Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining loans or
reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans,
or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference
to the amount of loans held or interest received by it, by
an amount deemed material by such Lender,
then, within 15 days of demand by such Lender pursuant to the written statement
required under Section 3.5, the Borrower shall pay such Lender that portion of
such increased expense incurred or reduction in an amount received which such
Lender determines is attributable to making, funding and maintaining its Loans
and its Commitment. Each Lender will notify the Borrower of any event occurring
after the date of this Agreement which will entitle such Lender to compensation
pursuant to this Section 3.1, as promptly as practicable after such Lender
obtains knowledge thereof and determines to request such compensation.
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3.2. Changes in Capital Adequacy Regulations. If a Lender
reasonably determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change, then,
within 15 days of demand by such Lender pursuant to the written statement
required under Section 3.5, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Loans or its obligation to make Loans
hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in
the Risk-Based Capital Guidelines, or (ii) any adoption of or change in any
other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines"
means (i) the risk-based capital guidelines in effect in the United States on
the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International
Convergence of Capital Measurements and Capital Standards," including
transition rules, and any amendments to such regulations adopted prior to the
date of this Agreement. Each Lender will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to this Section 3.2, as promptly as practicable after
such Lender obtains knowledge thereof and determines to request such
compensation.
3.3. Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or
not having the force of law, or if the Required Lenders (or in the case of any
Competitive Bid Loan, the Lender making such Loan) determine that (i) deposits
of a type and maturity appropriate to match fund Fixed Rate Advances are not
available or (ii) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance and
require any Fixed Rate Advances of the affected Type to be repaid.
3.4. Funding Indemnification. If any payment of a Fixed Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a Fixed
Rate Advance is not made, continued or converted on the date specified by the
Borrower for
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any reason other than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Fixed Rate Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Fixed Rate Loans to reduce any liability of
the Borrower to such Lender under Sections 3.1 and 3.2 or to avoid the
unavailability of a Type of Advance under Section 3.3, so long as such
designation is not disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender as to the amount due, if any, under Sections
3.1, 3.2 or 3.4. Such written statement shall set forth in reasonable detail
the calculations upon which such Lender determined such amount and shall be
final, conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a Fixed
Rate Loan shall be calculated as though each Lender funded its Fixed Rate Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Fixed Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement shall be payable on
demand after receipt by the Borrower of the written statement. The obligations
of the Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance.
4.1.1. The Lenders shall not be required to make the initial
Advance hereunder and this Agreement shall not become effective unless the
Borrower has furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the articles of incorporation of the Borrower,
together with all amendments, and a certificate of status,
both certified by the appropriate governmental officer in
its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of its by-laws and of its Board of
Directors' resolutions (and resolutions of
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other bodies, if any are deemed necessary by counsel for
any Lender) authorizing the execution of the Loan
Documents.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify
by name and title and bear the signature of the officers
of the Borrower authorized to sign the Loan Documents and
to make borrowings hereunder, upon which certificate the
Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of
the Borrower, stating that on the initial Borrowing Date
no Default or Unmatured Default has occurred and is
continuing.
(v) A written opinion of the Borrower's counsel, addressed to
the Lenders in substantially the form of Exhibit "E"
hereto.
(vi) Notes payable to the order of each of the Lenders.
(vii) Written money transfer instructions, in substantially the
form of Exhibit "G" hereto, addressed to the Agent and
signed by an Authorized Officer, together with such other
related money transfer authorizations as the Agent may
have reasonably requested.
(viii) Such other documents as any Lender or its counsel may have
reasonably requested.
4.1.2. The Lenders shall not be required to make the initial
Advance hereunder, unless prior to or concurrently with the making of the
initial Advance hereunder, the Loan Agreement, dated as of July 27, 1995,
between the Borrower and First Chicago shall have been terminated and the
Borrower shall have paid to First Chicago any and all unpaid principal of and
accrued and unpaid interest on the notes evidencing the obligations thereunder,
and any and all other obligations of the Borrower to First Chicago thereunder
arising under or in connection with such Loan Agreement.
4.2. Each Advance. No Lender shall be required to make any Advance
(other than a Committed Advance that, after giving effect thereto and to the
application of the proceeds thereof, does not increase the aggregate amount of
outstanding Committed Advances), unless on the applicable Borrowing Date:
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(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V
are true and correct as of such Borrowing Date except to
the extent any such representation or warranty is stated
to relate solely to an earlier date, in which case such
representation or warranty shall be true and correct on
and as of such earlier date.
(iii) All legal matters incident to the making of such Advance
shall be satisfactory to the Lenders and their counsel.
Each Committed Borrowing Notice and Competitive Bid Quote Request with
respect to each such Advance shall constitute a representation and warranty by
the Borrower that the conditions contained in Sections 4.2(i) and (ii) have
been satisfied. Any Lender may require a duly completed compliance certificate
in substantially the form of Exhibit "F" hereto as a condition to making an
Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Borrower and
its Subsidiaries is a corporation or a national or state banking association
duly incorporated or organized, as applicable, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, except where such failure to obtain all requisite
authority would not, with respect to any individual failure or any failures in
the aggregate, have a Material Adverse Effect.
5.2. Authorization and Validity. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan Documents
and to perform its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate proceedings, and the
Loan Documents constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
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5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries or the
Borrower's or any Subsidiary's articles of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which the Borrower or
any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any Lien in, of or on the Property of
the Borrower or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by,
any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
5.4. Financial Statements. The December 31, 1994 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
5.5. Material Adverse Change. Since December 31, 1994 through and
including the Closing Date, there has been no change in the business, Property,
prospects, condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries which could have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all
United States federal tax returns and all other tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The United States income tax returns of the
Borrower and its Subsidiaries have been audited by the Internal Revenue Service
through the fiscal year ended December 31, 1991. No tax liens have been filed
and no claims are being asserted with respect to any such taxes. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set forth on
Schedule "1" hereto, there is no litigation,
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arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could have a Material Adverse Effect.
Other than any liability incident to such litigation, arbitration or
proceedings, the Borrower has no material contingent obligations not provided
for or disclosed in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule "2" hereto contains an accurate list
of all of the existing Subsidiaries of the Borrower as of the date hereof,
setting forth their respective jurisdictions of incorporation and the
percentage of their respective capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of
such Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable, except as provided in Wisconsin Business Corporation Law
Section 180.0622(2)(b).
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans
do not in the aggregate exceed $50,000,000. Each Plan complies in all material
respects with all applicable requirements of law and regulations and no
Reportable Event has occurred with respect to any Plan. Neither the Borrower
nor any other member of the Controlled Group has incurred or reasonably expects
to incur any liability under Title IV of ERISA with respect to any Plan (other
than premiums due under Section 4007 of ERISA).
5.10. Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein
not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules,
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regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property,
except where any individual noncompliance or any noncompliance in the aggregate
would not have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary has received any notice to the effect that its operations are not in
material compliance with any of the requirements of applicable federal, state
and local environmental, health and safety statutes and regulations or the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste or
substance into the environment, which non-compliance or remedial action could
have a Material Adverse Effect.
5.14. Ownership of Properties. On the date of this Agreement, the
Borrower and its Subsidiaries will have good title, free of all Liens other
than those permitted by Section 6.13, to all of the Property and assets
reflected in the financial statements as owned by it.
5.15. Investment Company Act. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.16. Public Utility Holding Company Act. Neither the Borrower nor
any Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 90 days after the close of each of its fiscal
years, an unqualified audit report certified by
independent certified public accountants, acceptable to the
Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated and
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consolidating basis (consolidating statements need not be certified by
such accountants) for itself and the Subsidiaries, including balance
sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows,
accompanied by (a) any management letter prepared by said accountants,
and (b) a certificate of said accountants that, in the course of their
examination necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Unmatured Default, or if,
in the opinion of such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof (for purposes of
this Section 6.1(i), Form 10-K filed with the Securities and Exchange
Commission and delivered by the Borrower to the Lenders hereunder in
respect of each such fiscal year shall be deemed to satisfy the
financial statements required hereby).
(ii) Within 45 days after the close of the first three
quarterly periods of each of its fiscal years, for itself and the
Subsidiaries, consolidated and consolidating unaudited balance sheets
as at the close of each such period and consolidated and consolidating
profit and loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning of such
fiscal year to the end of such quarter, all certified by its chief
financial officer (for purposes of this Section 6.1(ii), Form 10-Q
filed with the Securities and Exchange Commission and delivered to the
Lenders hereunder in respect of each such quarterly period shall be
deemed to satisfy the financial statements required hereby).
(iii) Together with the financial statements required hereunder,
a compliance certificate in substantially the form of Exhibit "F"
hereto signed by its chief financial officer showing the calculations
necessary to determine compliance with this Agreement and stating that
no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) Simultaneously with the preparation thereof, and not more
than 45 days after the close of each of the first three fiscal quarters
of the Borrower and not more than 90 days after the close of the
last fiscal quarter of the Borrower in each fiscal year (a) call
reports for Firstar Bank Milwaukee N.A. in the form delivered to the
Federal Reserve District Bank, the Comptroller of the Currency or The
Federal Deposit
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Insurance Corporation, as the case may be, such reports to include the
Consolidated Reports of Condition and Income and all schedules
thereto, and (b) the Consolidated Financial Statements and the Parent
Company Only Financial Statements of the Borrower as at the end of
such quarter, each in the form delivered to the appropriate Federal
Reserve District Bank and each to include all schedules thereto.
(v) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer
Plan, certified by an actuary enrolled under ERISA.
(vi) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with respect to
any Plan, a statement, signed by the chief financial officer of the
Borrower, describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto.
(vii) As soon as possible and in any event within 10 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect that
the Borrower or any of its Subsidiaries is or may be liable to
any Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries,
which, in either case, could have a Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(ix) Promptly upon the filing thereof (and in the case of any registration
statement, upon the effectiveness thereof), copies of all registration
statements (excluding S-8 registration statements) and annual,
quarterly, monthly or other regular reports which the Borrower files
with the Securities and Exchange Commission (including, without
limitation, reports on Forms 10-K, 10-Q and 8-K or their equivalents).
(x) Promptly after the Borrower's or any Subsidiary's receipt thereof,
unless disclosure is prohibited by the terms thereof and after the
Borrower or such Subsidiary has in good faith attempted to obtain the
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consent of the relevant regulatory authority and such authority will
not consent to the disclosure thereof, copies of any (i) notice of
charges, (ii) notice of intent to revoke deposit insurance, (iii)
cease and desist order, (iv) suspension or removal order, (v)
memorandum of understanding, (vi) assessment of civil money penalties,
(vii) directive relating to holding company activities constituting a
risk to any Bank Subsidiary, (viii) directive, order or disapproval of
any exception or exemption request, plan or proposal related to
capital requirements, (ix) request that the Borrower guarantee any
capital restoration plan of any Banking Subsidiary, (x) notification
that any Bank Subsidiary is, or is to be treated as if it were, not
Well-Capitalized or Adequately Capitalized; or (xi) request or
directive from any regulatory authority requiring any Banking
Subsidiary to submit a capital restoration plan or restricting the
payment of dividends by any Subsidiary to the Borrower or any other
Subsidiary.
(xi) Promptly after the later to occur of the creation of any new
Subsidiary and the consummation of any Acquisition (if applicable), the
Borrower shall furnish an updated schedule of Subsidiaries to the
Agent and the Lenders in the form of Schedule "2" hereto, which
schedule shall set forth the respective jurisdictions of incorporation
of the Subsidiaries and the percentage of their respective capital
stock owned by the Borrower or other Subsidiaries.
(xii) Such other information (including non-financial information) as the
Agent or any Lender may from time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances for general corporate purposes,
including, without limitation, working capital needs; the funding of
investments in, or extensions of credit to, Subsidiaries, Acquisitions (subject
to clause (y) of the next sentence) of other financial institutions or other
businesses or their assets; the reduction or repayment of outstanding
Indebtedness; the repurchase of outstanding equity securities of the Borrower;
and pending such uses, temporary investments in investment grade securities.
The Borrower will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Advances (x) to purchase or carry any "margin stock" (as
defined in Regulation U) in violation of Regulation U, or (y) to make any
Acquisition which has not been approved by the board of directors of the entity
being acquired.
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6.3. Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted or as permitted by its regulators and to do all things necessary to
remain duly incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where such failure to obtain all requisite authority would
not, with respect to any individual failure or any failures in the aggregate,
have a Material Adverse Effect.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
pay when due all taxes, assessments and governmental charges and levies upon it
or its income, profits or Property, except those which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies insurance
on all their Property in such amounts and covering such risks as is consistent
with sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, except
where any individual noncompliance or any noncompliance in the aggregate would
not have a Material Adverse Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause each Subsidiary
to, permit the Lenders, by their respective representatives and agents, and
upon five Business Days' written notice to the Agent, to inspect any of the
Property, corporate books and financial records of the Borrower and each
Subsidiary, to
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examine and make copies of the books of accounts and other financial records of
the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers at such reasonable times and intervals as
the Lenders may designate; provided, however, that, unless a Default or
Unmatured Default has occurred and is continuing, the Borrower shall not be
required to discuss any matter if the Borrower determines, in its reasonable
judgment, that such discussion would adversely affect the competitive position
of the Borrower or any Subsidiary.
6.10. Merger. The Borrower will not, nor will it permit
any Subsidiary to, merge or consolidate with or into any other Person, except
that:
(i) any Subsidiary may merge with the Borrower or a Wholly-Owned
Subsidiary provided that the Borrower or such Wholly-Owned
Subsidiary is the continuing or surviving corporation; or
(ii) the Borrower may merge with another Person; provided that (x)
the Borrower is the continuing or surviving corporation; and
(y) immediately after the consummation of the transaction, and
after giving effect thereto, no Default or Unmatured Default
exists.
6.11. Sale of Assets. The Borrower will not, nor will it
permit any Subsidiary to, lease, sell or otherwise dispose of its Property, to
any other Person except for (i) sales of inventory in the ordinary course of
business and (ii) leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than inventory in the ordinary
course of business) as permitted by this Section during the twelve-month period
ending with the month in which any such lease, sale or other disposition
occurs, do not constitute a Substantial Portion of the Property of the Borrower
and its Subsidiaries.
6.12. Acquisitions. If, at any time, any Material Banking
Subsidiary of the Borrower ceases to be Well-Capitalized, then the Borrower
will not, nor will it permit any Subsidiary to, make any Acquisition of any
Person, except:
(i) if such Acquisition is of a (w) bank holding company and one
or more banks, such bank holding company shall have a
composite BOPEC rating of 3 or better, (x) bank only, such
bank shall have a composite CAMEL rating of 3 or better, (y)
savings and loan association or a branch thereof, either (1)
such savings and loan association or branch thereof has a
composite MACRO rating of 3 or better, or (2) such Acquisition
is being made from the
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Federal Deposit Insurance Corporation, the Resolution Trust
Corporation or any successor thereof and is being assisted by
any such regulatory agency; or
(ii) Acquisitions which do not satisfy the foregoing rating
requirements in an aggregate amount not to exceed 10% of the
consolidated assets of the Borrower and its Subsidiaries,
calculated during the twelve-month period ending with the
month in which any such Acquisition is consummated.
Notwithstanding the foregoing, immediately after the consummation of any
Acquisition by the Borrower or any Subsidiary, and after giving effect thereto,
no Default or Unmatured Default shall exist.
6.13. Liens. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time
be delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with
generally accepted principles of accounting shall have been
set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits,
or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries.
(v) Liens on Property of the Borrower and its Subsidiaries
(other than the capital stock of any Subsidiary)
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existing on the date hereof and securing Indebtedness in
an aggregate principal amount not to exceed $10,000,000.
(vi) Liens granted by a Banking Subsidiary in the ordinary
course of its banking and trust business in connection
with any Permitted Banking Subsidiary Indebtedness.
(vii) Liens to secure public funds or other pledges of funds
required by law to secure deposits.
(viii) Repurchase agreements, reverse repurchase agreements and
other similar transactions entered into by any Banking
Subsidiary in the ordinary course of its banking or trust
business.
(ix) Liens granted by (1) any Subsidiary to the Borrower or any
other Subsidiary, or (2) the Borrower to any Subsidiary,
in each case as required pursuant to 12 U.S.C. 371c, as
amended, supplemented or otherwise modified from time to
time.
(x) Liens securing Indebtedness incurred after the date of
this Agreement to finance the cost of Acquisition,
construction or improvement of any Property useful and
intended to be used in carrying out the business of the
Borrower or any Subsidiary; provided, however, that (1)
any such Lien shall attach solely to the Property
acquired, constructed or improved or to substantially
unimproved real property on which real property so
acquired, constructed or improved is located, and (2) any
such Lien attaches within 90 days of the date such
Property was acquired, constructed or improved.
(xi) Liens on Property useful and intended to be used in
carrying out the business of the Borrower or any
Subsidiary which were existing at the time of Acquisition
of such property, or at the time of Acquisition by the
Borrower or any Subsidiary of any business entity then
owning such Property; provided, however, that (1) any such
Lien was not incurred, extended or renewed in the
contemplation of or in connection with such Acquisition by
the Borrower or any Subsidiary, and (2) any such Lien
shall attach solely to the Property acquired.
(xii) Extensions or renewals of Liens permitted by clauses (x)
and (xi) above; provided, however, that at the time of
such transaction and after giving effect thereto and to
the application of the proceeds thereof, (1) the aggregate
unpaid principal amount of
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Indebtedness of the Borrower and its Subsidiaries which is
secured pursuant to this clause (xii) and clauses (x) and
(xi) above shall be no greater than the aggregate unpaid
principal amount of such Indebtedness secured pursuant to
such clauses immediately preceding such transaction, and
(2) any such Lien shall attach solely to the Property
which was subject thereto immediately preceding such
transaction.
(xiii) Liens securing Rate Hedging Obligations incurred by the
Borrower and any Subsidiary in the ordinary course of
business solely for asset/liability management purposes
and not for speculative purposes.
6.14. Capitalization. The Borrower will ensure that each Banking
Subsidiary will at all times be, and will at all times be treated by the
relevant regulatory authorities as if they were, Well-Capitalized or
Adequately Capitalized. The Borrower and its Banking Subsidiaries shall comply
at all times with any and all minimum risk-based capital guidelines, leverage
measure capital guidelines and any other capital guidelines now or hereafter
published by any federal or state regulatory authorities having jurisdiction
over them.
6.15. Consolidated Non-Performing Assets to Total Equity Capital.
The Borrower will maintain as at the last day of each fiscal quarter a ratio of
(i) Non-Performing Assets to (ii) Total Equity Capital of not greater than 0.65
to 1.00.
6.16. Debt to Total Equity Capital. The Borrower will maintain as
at the last day of each fiscal quarter a ratio of (i) Indebtedness to (ii)
total equity capital (determined for the Borrower only in a manner consistent
with that used in preparing the Borrower's March 31, 1995 Parent Company Only
Financial Statements) which is less than 0.45 to 1.00.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the Agent
under or in connection with this Agreement, any Loan, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made or deemed made.
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7.2. Nonpayment of principal of any Note when due, or nonpayment of
interest upon any Note or of any fee or other obligations under any of the Loan
Documents within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions
of Section 6.2 and Sections 6.10 through and including 6.16.
7.4. The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after
written notice from the Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness in excess of $10,000,000 when due; or the default by the Borrower
or any of its Subsidiaries in the performance of any term, provision or
condition contained in any agreement under which any Indebtedness in excess of
$10,000,000 was created or is governed, or any other event shall occur or
condition exist, the effect of which is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any Indebtedness of the Borrower or any of its
Subsidiaries in excess of $10,000,000 shall be declared to be due and payable
or required to be prepaid (other than by a regularly scheduled payment) prior
to the stated maturity thereof; or the Borrower or any of its Subsidiaries
shall not pay, or admit in writing its inability to pay, its debts generally as
they become due.
7.6. The Borrower or any of its Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws
as now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section
7.7.
7.7. Without the application, approval or consent of the Borrower
or any of its Subsidiaries, a receiver, trustee, examiner,
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liquidator or similar official shall be appointed for the Borrower or any of
its Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or any of
its Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive days.
7.8. The Borrower or any of its Subsidiaries shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $25,000,000, which is not stayed on appeal or otherwise
being appropriately contested in good faith.
7.9. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $50,000,000 or any Reportable Event shall occur in
connection with any Plan.
7.10. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal
liability (determined as of the date of such notification), exceeds $10,000,000
or requires payments exceeding $1,000,000 per annum.
7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $1,000,000.
7.12. Any Banking Subsidiary shall cease to be insured under the
Federal Deposit Insurance Act and any rules and regulations issued thereunder,
as amended, supplemented or otherwise modified from time to time; or a cease
and desist order shall be issued against the Borrower or any Subsidiary
pursuant to 12 U.S.C. 1818(b) or (c) or any similar applicable provision of
state law and any rules and regulations issued thereunder, as amended,
supplemented or otherwise modified from time to time; or there shall occur,
with respect to any Banking Subsidiary, any event which is grounds for the
required submission of a capital restoration plan under 12 U.S.C. Section
1831(o)(e)(2) and any rules and regulations issued thereunder, as amended,
supplemented or
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otherwise modified from time to time, or for seeking the appointment of a
receiver or conservator under 12 U.S.C. 1821(c) and any rules and regulations
issued thereunder, as amended, supplemented or otherwise modified from time to
time; or any conservator or receiver shall be appointed for any Banking
Subsidiary under any such provisions or any other state or federal law.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part
of the Agent or any Lender. If any other Default occurs, the Required Lenders
may terminate or suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable, or both, whereupon
the Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
If, within fourteen (14) days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII,
the Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving
any Default hereunder; provided, however, that no such supplemental agreement
shall, without the consent of each Lender affected thereby:
(i) Extend the maturity of any Loan or Note or forgive all or any
portion of the principal amount thereof, or reduce the rate or
extend the time of payment of interest or fees thereon.
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(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Termination Date, or increase the amount of the
Commitment of any Lender hereunder, or permit the Borrower to
assign its rights or obligations under this Agreement.
(iv) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive
payment of the fee required under Section 12.3.2 without obtaining the consent
of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders
or the Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein,
and the making of a Loan notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall
be valid unless in writing signed by the Lenders required pursuant to Section
8.2, and then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be cumulative
and all shall be available to the Agent and the Lenders until the Obligations
have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery
of the Notes and the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Taxes. Any taxes (excluding federal income taxes on the
overall net income of any Lender, income taxes imposed on any
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Lender in the jurisdiction in which such Lender's home office is located, and
the Illinois personal property replacement tax) or other similar assessments or
charges made by any governmental or revenue authority in respect of the Loan
Documents shall be paid by the Borrower, together with interest and penalties,
if any.
9.4. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
9.5. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent
and the Lenders relating to the subject matter thereof.
9.6. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and
no Lender shall be the partner or agent of any other (except to the extent to
which the Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. This Agreement shall not be construed
so as to confer any right or benefit upon any Person other than the parties to
this Agreement and their respective successors and assigns.
9.7. Expenses; Indemnification. Subject to the Letter Agreement,
dated June 28, 1995, between the Borrower and the Agent, the Borrower shall
reimburse the Agent for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, negotiation, execution, delivery, review,
amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent and the Lenders for any costs,
internal charges and out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Agent and the Lenders, which attorneys may be
employees of the Agent or the Lenders) paid or incurred by the Agent or any
Lender in connection with the collection and enforcement of the Loan Documents.
The Borrower further agrees to indemnify the Agent and each Lender, its
directors, officers and employees (each an "Indemnified Party") against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent or any Lender is a party thereto) which any
Indemnified Party may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or
the direct or indirect application or proposed application of the proceeds of
any Loan hereunder, except that any such Indemnified Party shall not be
indemnified for any such losses, claims,
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damages, penalties, judgments, liabilities and expenses to the extent that they
arise from the gross negligence or willful misconduct of such Indemnified
Party. The obligations of the Borrower under this Section shall survive the
termination of this Agreement.
9.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles; provided, however, that compliance with Sections 6.15 and 6.16
shall be interpreted and all determinations thereunder shall be made in
accordance with regulatory accounting principles as in effect from time to
time, applied in a manner consistent with that used in preparing the financial
statements and reports referred to in Section 6.1(iv) for the fiscal quarter
ended March 31, 1995.
9.10. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11. Nonliability of Lenders. The relationship between the
Borrower and the Lenders and the Agent shall be solely that of borrower and
lender. Neither the Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
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IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
9.15. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement
in confidence, except for disclosure (i) to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other professional advisors
to that Lender or to a Transferee, (iii) to regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which
that Lender is a party, and (vi) permitted by Section 12.4.
ARTICLE X
THE AGENT
10.1. Appointment. The First National Bank of Chicago is hereby
appointed Agent hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Agent to act as the agent of such Lender.
The Agent agrees to act as such upon the express conditions contained in this
Article X. The Agent shall not have a fiduciary relationship in respect of the
Borrower or any Lender by reason of this Agreement.
10.2. Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
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10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
for its or their own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent
nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (i) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered to the Agent; (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; or (v) the value, sufficiency,
creation, perfection or priority of any interest in any collateral security.
The Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Agent at such time, but is
voluntarily furnished by the Borrower to the Agent (either in its capacity as
Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders and on all holders
of Notes. The Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any
of its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
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10.7. Reliance on Documents; Counsel. The Agent shall be entitled
to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the Agent,
which counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith
or the transactions contemplated thereby, or the enforcement of any of the
terms thereof or of any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. The obligations of the Lenders
under this Section 10.8 shall survive payment of the Obligations and
termination of this Agreement.
10.9. Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is
a Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Agent, in its individual capacity, is not obligated to remain a Lender.
10.l0. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time,
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continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
10.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of
its intention to resign. Upon any such resignation, the Required Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders within thirty days after the resigning Agent's giving notice
of its intention to resign, then the resigning Agent may appoint, on behalf of
the Borrower and the Lenders, a successor Agent. If the Agent has resigned and
no successor Agent has been appointed, the Lenders may perform all the duties
of the Agent hereunder and the Borrower shall make all payments in respect of
the Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $250,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning Agent. Upon the effectiveness of the resignation of the Agent, the
resigning Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the resignation of an
Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents.
10.12. Co-Agents. None of the Lenders identified in this Agreement
or any other Loan Document as a "Co-Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement or any other
Loan Document other than those applicable to all Lenders as such. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders
so identified in deciding to enter into this Agreement or any other Loan
Document or in taking or refraining from taking any action hereunder or
thereunder or pursuant hereto or thereto.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or
not collected or available) and any other Indebtedness at any time held or
owing by any Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Sections 3.1, 3.2 or 3.4) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff
or otherwise, receives collateral or other protection for its Obligations or
such amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and
the Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower or the Agent, assign all or
any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
such
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payee complies with Section 12.3 in the case of an assignment thereof or, in
the case of any other transfer, a written notice of the transfer is filed with
the Agent. Any assignee or transferee of a Note agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in
the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with
respect to any Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the
interest rate or fees payable with respect to any such Loan or
Commitment, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan or
Commitment, releases any guarantor of any such Loan or releases any
substantial portion of collateral, if any, securing any such Loan.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff
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provided in Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with
each Participant, and each Participant, by exercising the right of
setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such
amounts to be shared in accordance with Section 11.2 as if each
Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time assign to one or more banks or other entities
("Purchasers") all or any part of its rights and obligations under the
Loan Documents. Such assignment shall be substantially in the form of
Exhibit "H" hereto or in such other form as may be agreed to by the
parties thereto. The consent of the Borrower and the Agent, which
consent in each case shall not be unreasonably withheld, shall be
required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof; provided,
however, that if a Default has occurred and is continuing, the consent
of the Borrower shall not be required.
12.3.2. Effect; Effective Date. Upon (i) delivery to the
Agent of a notice of assignment, substantially in the form attached as
Exhibit "I" to Exhibit "H" hereto (a "Notice of Assignment"), together
with any consents required by Section 12.3.1, and (ii) payment of a
$2,500 fee to the Agent for processing such assignment, such
assignment shall become effective on the effective date specified in
such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans
under the applicable assignment agreement are "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On
and after the effective date of such assignment, such Purchaser shall
for all purposes be a Lender party to this Agreement and any other
Loan Document executed by the Lenders and shall have all the rights
and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent
or action by the Borrower, the Lenders or the Agent shall be required
to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agent and the Borrower shall make
appropriate arrangements so that replacement Notes are issued
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62
to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Commitment, as adjusted pursuant to
such assignment.
12.4. Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser, which, if required pursuant
to Section 12.3.1, the Borrower has consented to in accordance with the terms
thereof, or any other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the creditworthiness of
the Borrower and its Subsidiaries; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.15 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.16.
ARTICLE XIII
NOTICES
13.1. Giving Notice. Except as otherwise permitted by Section 2.11
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage prepaid, shall be
deemed given when received; any notice, if transmitted by telex or facsimile,
shall be deemed given when transmitted (answerback confirmed in the case of
telexes).
13.2. Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by telex or
telephone, that it has taken such action.
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63
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
FIRSTAR CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Print Name: Xxxxxxx X. Xxxxx
----------------------------------------
Title: Senior Vice President-Finance and Treasurer
--------------------------------------------
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Senior Vice President -
Finance and Treasurer
Commitment
$20,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ R.C. English
-----------------------------------------------
Print Name: Xxxxxx X. English
----------------------------------------
Title: Vice President
--------------------------------------------
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. English
Vice President
$20,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
Individually and as Co-Agent
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Print Name: Xxxxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
--------------------------------------------
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxx
Vice President
Page 57
64
$20,000,000 CHEMICAL BANK,
Individually and as Co-Agent
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Print Name: Xxxxxx Xxxxxxx
-----------------------------------
Title: Vice President
---------------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Vice President
$20,000,000 NBD BANK,
Individually and as Co-Agent
By: /s/ Xxxxxx X. Xxxx'
------------------------------------------
Print Name: Xxxxxx X. Xxxx'
-----------------------------------
Title: Vice President
---------------------------------------
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxx
Vice President
$15,000,000 THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------------
Print Name: Xxxxxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
---------------------------------------
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Vice President
Page 58
65
$15,000,000 DEUTSCHE BANK AG - NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Print Name: Xxxxx X. Xxxxxxxxxx
-----------------------------------
Title: Vice President
---------------------------------------
By: /s/ Xxxxxxxxxxx xx Xxxxxxx
------------------------------------------
Print Name: Xxxxxxxxxxx xx Xxxxxxx
-----------------------------------
Title: Vice President
---------------------------------------
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxxxx xx Xxxxxxx
Assistant Vice President
$15,000,000 MELLON BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Print Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: Vice President
---------------------------------------
One Mellon Bank Center
Room 400
Xxxxxxxxxx, Xxxxxxxxxxxx
00000
Attention: Xx. Xxxxxxx Xxxxxxx
Vice President
$125,000,000
============
Page 59
66
EXHIBIT "A-1"
COMMITTED NOTE
$___________
August 8, 1995
Firstar Corporation, a Wisconsin corporation (the "Borrower"), promises to
pay to the order of ___________ (the "Lender") the lesser of the principal sum
of __________ Dollars or the aggregate unpaid principal amount of all Committed
Loans made by the Lender to the Borrower pursuant to Section 2.3 of the Credit
Agreement (as the same may be amended, supplemented or otherwise modified from
time to time, the "Agreement") hereinafter referred to, in immediately
available funds at the main office of The First National Bank of Chicago in
Chicago, Illinois, as Agent, or as otherwise directed by the Agent pursuant to
the terms of the Agreement, together with interest on the unpaid principal
amount hereof at the rates and on the dates set forth in the Agreement. The
Borrower shall pay the principal of and accrued and unpaid interest on all
Committed Loans in full on the Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Committed Loan and the date and amount of each
principal payment hereunder, provided, however, that any failure to so record
shall not affect the Borrower's obligations under any Loan Document.
This Committed Note is one of the Notes issued pursuant to, and is entitled
to the benefits of, the Credit Agreement, dated as of August 8, 1995, among the
Borrower, Bank of America National Trust and Savings Association, Chemical Bank
and NBD Bank, as Co-Agents, The First National Bank of Chicago, individually
and as Agent, and the lenders named therein, including the Lender, to which
Agreement, as it may be amended from time to time, reference is hereby made for
a statement of the terms and conditions governing this Committed Note,
including the terms and conditions under which this Committed Note may be
prepaid or its maturity date accelerated. Capitalized terms used and not
otherwise defined herein are used with the meanings attributed to them in the
Agreement.
FIRSTAR CORPORATION
By: _______________________________
Print Name: _______________________
Title: ____________________________
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
COMMITTED NOTE OF FIRSTAR CORPORATION
DATED AUGUST 8, 1995
Principal Maturity Principal
Amount of Interest Amount Unpaid
Date of Loan Period Paid Balance
---- ----------- ----------- ----------- -------
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EXHIBIT "A-2"
COMPETITIVE BID NOTE
August 8, 1995
Firstar Corporation, a Wisconsin corporation (the "Borrower"),
promises to pay to the order of ___________ (the "Lender") the aggregate unpaid
principal amount of all Competitive Bid Loans made by the Lender to the
Borrower pursuant to Section 2.4 of the Credit Agreement (as the same may be
amended, supplemented or otherwise modified from time to time, the "Agreement")
hereinafter referred to, in immediately available funds at the main office of
The First National Bank of Chicago in Chicago, Illinois, as Agent, or as
otherwise directed by the Agent pursuant to the terms of the Agreement,
together with interest on the unpaid principal amount hereof at the rates and
on the dates set forth in the Agreement. The Borrower shall pay each
Competitive Bid Loan in full on the last day of the Interest Period applicable
to such Competitive Bid Loan.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Competitive Bid Loan and the date and amount of
each principal payment hereunder, provided, however, that any failure to so
record shall not affect the Borrower's obligations under any Loan Document.
This Competitive Bid Note is one of the Notes issued pursuant to, and
is entitled to the benefits of, the Credit Agreement, dated as of August 8,
1995, among the Borrower, Bank of America National Trust and Savings
Association, Chemical Bank and NBD Bank, as Co-Agents, The First National Bank
of Chicago, individually and as Agent, and the lenders named therein, including
the Lender, to which Agreement, as it may be amended from time to time,
reference is hereby made for a statement of the terms and conditions governing
this Competitive Bid Note, including the terms and conditions under which this
Competitive Bid Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with
the meanings attributed to them in the Agreement.
FIRSTAR CORPORATION
By: ____________________________
Print Name: ____________________
Title: _________________________
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
COMPETITIVE BID NOTE OF FIRSTAR CORPORATION
DATED AUGUST 8, 1995
Principal Maturity Principal
Amount of Interest Amount Unpaid
Date of Loan Period Paid Balance
---- ----------- ----------- ----------- -------
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EXHIBIT "B"
COMPETITIVE BID QUOTE REQUEST
(Section 2.4.2)
__________, 19__
To: The First National Bank of Chicago, as agent (the "Agent")
From: Firstar Corporation (the "Borrower")
Re: Credit Agreement dated as of August 8, 1995 among the
Borrower, the lenders from time to time party thereto, Bank
of America National Trust and Savings Association, Chemical
Bank and NBD Bank, as Co-Agents and The First National Bank of
Chicago, as Agent for such lenders (as amended, supplemented
or otherwise modified from time to time through the date
hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them
in the Agreement.
2. We hereby give notice pursuant to Section 2.4.2 of the Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Advance(s):
Borrowing Date: __________, 19__
Principal Amount(1) Interest Period(2)
------------------- ------------------
3. Such Competitive Bid Quotes should offer [a Competitive Bid
Margin] [an Absolute Rate].
----------------------------------
(1)Amount must be at least $5,000,000 (and multiples of $500,000 in excess
thereof).
(2)One, two, three, or six months (Eurodollar Auction) or at least 7 and
not more than 180 days (Absolute Rate Auction), subject to the provisions of the
definitions of Eurodollar Interest Period and Absolute Rate Interest Period.
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71
4. Upon acceptance by the undersigned of any or all of the
Competitive Bid Advances offered by Lenders in response to this request, the
undersigned shall be deemed to affirm as of the Borrowing Date thereof the
representations and warranties made in Article IV of the Agreement.
FIRSTAR CORPORATION
By: __________________________________
Title: _______________________________
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EXHIBIT "C"
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.4.3)
__________, 19__
To: Each of the Lenders party to the Agreement referred to below
Re: Invitation for Competitive Bid Quotes to Firstar Corporation (the
"Borrower")
Pursuant to Section 2.4.3 of the Credit Agreement dated as of August
8, 1995 among the Borrower, the lenders from time to time party thereto, Bank
of America National Trust and Savings Association, Chemical Bank and NBD Bank,
as Co-Agents and The First National Bank of Chicago, as Agent for such lenders
(as amended, supplemented or otherwise modified from time to time through the
date hereof, the "Agreement"), we are pleased on behalf of the Borrower to
invite you to submit Competitive Bid Quotes to the Borrower for the following
proposed Competitive Bid Advance(s):
Borrowing Date: __________, 19__
Principal Amount Interest Period
---------------- ---------------
Such Competitive Bid Quotes should offer [a Competitive Bid Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.4.4
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than [1:00 p.m.] [9:00
a.m.] (Chicago time) on _________, 19__.
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By: _____________________________
Title: __________________________
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EXHIBIT "D"
COMPETITIVE BID QUOTE
(Section 2.4.4)
_________, 19__
To: The First National Bank of Chicago, as Agent
Re: Competitive Bid Quote to Firstar Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_________, 19__, we hereby make the following Competitive Bid Quote pursuant to
Section 2.4.4 of the Agreement hereinafter referred to and on the following
terms:
1. Quoting Lender: _______________
2. Person to contact at Quoting Lender: _______________
3. Borrowing Date: _______________(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest [Competitive [Absolute Minimum
Amount(2) Period(3) Bid Margin(4)] Rate (5)] Amount(6)
------ ------ ---------- -------- ------
----------------
(1)As specified in the related Invitation For Competitive Bid Quotes.
(2)Principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 (and
multiples of $500,000 in excess thereof).
(3)One, two, three or six months or at least 7 and not more than 180 days,
as specified in the related Invitation For Competitive Bid Quotes.
(4)Competitive Bid Margin over or under the Eurodollar Base Rate
determined for the applicable Interest Period. Specify percentage (rounded to
the nearest 1/100 of 1%) and specify whether "PLUS" or "MINUS".
(5)Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(6)Specify minimum or maximum amount, if any, which the Borrower may
accept (see Section 2.4.4(b)(iv)).
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We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of August 8, 1995 among the Borrower, the lenders from time to time
party thereto, Bank of America National Trust and Savings Association, Chemical
Bank and NBD Bank, as Co-Agents and The First National Bank of Chicago, as
Agent for such lenders (as amended, supplemented or otherwise modified from
time to time through the date hereof, the "Agreement"), irrevocably obligates
us to make the Competitive Bid Loan(s) for which any offer(s) are accepted, in
whole or in part. Capitalized terms used herein and not otherwise defined
herein shall have their meanings as defined in the Agreement.
Very truly yours,
[NAME OF LENDER]
By: __________________________________
Title: _______________________________
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EXHIBIT "E"
FORM OF OPINION
August 8, 1995
To: The Agent and the Lenders who are parties to the Credit Agreement
described below.
Gentlemen/Ladies:
I am counsel for Firstar Corporation (the Borrower"), and have
represented the Borrower in connection with its execution and delivery of a
Credit Agreement among the Borrower, The First National Bank of Chicago,
individually and as Agent, Bank of America National Trust and Savings
Association, Chemical Bank and NBD Bank, as Co-Agents and the Lenders named
therein, providing for Advances in an aggregate principal amount not exceeding
$125,000,000 at any one time outstanding and dated as of August 8, 1995 (the
"Agreement"). All capitalized terms used in this opinion and not otherwise
defined shall have the meanings attributed to them in the Agreement.
We have examined the Borrower's articles of incorporation, by-laws,
resolutions, the Loan Documents and such other matters of fact and law which we
deem necessary in order to render this opinion. Based upon the foregoing, it
is our opinion that:
l. Each of the Borrower and its Subsidiaries is a corporation or
a national or state banking association duly incorporated or organized, as
applicable, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted, except where
such failure to obtain all requisite authority would not, with respect to any
individual failure or any failures in the aggregate, have a Material Adverse
Effect.
2. The execution and delivery of the Loan Documents by the
Borrower and the performance by the Borrower of the Obligations have been duly
authorized by all necessary corporate action and proceedings on the part of the
Borrower and will not:
(a) require any consent of the Borrower's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's articles of
incorporation or by-laws or any indenture, instrument or agreement
binding upon the Borrower or any of its Subsidiaries; or
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76
(c) result in, or require, the creation or imposition of any
Lien pursuant to the provisions of any indenture, instrument or
agreement binding upon the Borrower or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by
the Borrower and constitute legal, valid and binding obligations of the
Borrower enforceable in accordance with their terms except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to
the availability of equitable remedies if equitable remedies are sought.
4. There is no litigation or proceeding against the Borrower or
any of its Subsidiaries which, if adversely determined, could have a Material
Adverse Effect.
5. No approval, authorization, consent, adjudication or order of
any governmental authority, which has not been obtained by the Borrower or any
of its Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement or in connection with the payment
by the Borrower of the Obligations.
This opinion may be relied upon by the Agent, the Lenders and their
participants, assignees and other transferees.
Very truly yours,
____________________________
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EXHIBIT "F"
COMPLIANCE CERTIFICATE
To: The Lenders who are parties to the Credit Agreement described below.
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of August 8, 1995 (as amended, modified, renewed or
extended from time to time, the "Agreement") among Firstar Corporation (the
"Borrower"), the lenders party thereto, Bank of America National Trust and
Savings Association, Chemical Bank and NBD Bank, as Co-Agents and The First
National Bank of Chicago, as Agent for the Lenders. Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
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______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ____ day of
______________, 19__.
________________________________
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SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of with
-------------------
Sections 6.15 and 6.16 of the Agreement
Section 6.15. Consolidated Non-Performing Assets to Total Equity Capital:
A. Consolidated Non-Performing Assets
1. Loans on nonaccrual status $
-------------
2. Loans 90 days or more past
due and still accruing $
-------------
3. Loans and leases restructured and
in compliance with modified terms $
-------------
4. Other Real Estate Owned $
-------------
5. Property acquired pursuant to
in substance foreclosures $
-------------
6. Total Consolidated Non-Performing
Assets (1 + 2 + 3 + 4 + 5) $
-------------
B. Total Equity Capital $
-------------
C. Ratio (A6/B) :1.00
-------------
D. Maximum Permitted 0.65:1.00
-------------
Section 6.16. Debt to Total Equity Capital:
----------------------------
A. Total Indebtedness (Borrower-only)
1. Total deposits $
-------------
2. Securities sold under agreements
to repurchase $
-------------
3. Borrowings with an original
maturity of one year or less $
-------------
4. Other borrowed funds with an
original maturity of greater
than one year $
-------------
5. Mandatory convertible securities $
-------------
6. Subordinated notes and debentures $
-------------
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7. Other liabilities $
----------------
8. Total debt (1 + 2 + 3 + 4 + 5 + 6 + 7) $
----------------
B. Total equity capital (Borrower-only) $
----------------
C. Ratio A/B :1.00
----------------
D. Maximum Permitted 0.45:1.00
----------------
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EXHIBIT "G"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The First National Bank of Chicago, as Agent (the "Agent") under the
Credit Agreement Described Below.
Re: Credit Agreement, dated as of August 8, 1995 (as the same may be
amended or modified, the "Credit Agreement"), among Firstar
Corporation (the "Borrower"), the Agent, Bank of America National
Trust and Savings Association, Chemical Bank and NBD Bank, as Co-
Agents and the Lenders named therein. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned thereto in
the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower;
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.11 of the Credit Agreement.
Facility Identification Number(s) __________________________________________
Customer/Account Name ______________________________________________________
Transfer Funds To __________________________________________________________
__________________________________________________________
__________________________________________________________
For Account No. ____________________________________________________________
Reference/Attention To _____________________________________________________
Authorized Officer (Customer Representative) Date ____________________
_____________________________________ _________________________________
(Please Print) Signature
Bank Officer Name Date ____________________________
_____________________________________ _________________________________
(Please Print) Signature
(Deliver Completed Form to Credit
Support Staff For Immediate Processing)
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EXHIBIT "H"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
__________________________ (the "Assignor") and __________________ (the
"Assignee") is dated as of _________________, 19__. The parties hereto agree
as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1 of Schedule
1 attached hereto ("Schedule 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement such that after giving effect to such assignment the Assignee
shall have purchased pursuant to this Assignment Agreement the percentage
interest specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement relating to the facilities listed in Item
3 of Schedule 1 and the other Loan Documents. The aggregate Commitment (or
Loans, if the applicable Commitment has been terminated) purchased by the
Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period agreed to by
the Agent) after a Notice of Assignment substantially in the form of Exhibit "I"
attached hereto has been delivered to the Agent. Such Notice of Assignment must
include any consents required to be delivered to the Agent by Section [12.3.1]
of the Credit Agreement. In no event will the Effective Date occur if the
payments required to be made by the Assignee to the Assignor on the Effective
Date under Sections 4 and 5 hereof are not made on the proposed Effective Date.
The Assignor will notify the Assignee of the proposed Effective Date no later
than the Business Day prior to the proposed Effective Date. As of the Effective
Date, (i) the Assignee shall have the rights and obligations of a Lender under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (ii) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all
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83
payments of principal, interest and fees with respect to the interest assigned
hereby. The Assignee shall advance funds directly to the Agent with respect to
all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Floating Rate Loans assigned to the Assignee hereunder and (ii) with respect to
each Fixed Rate Loan made by the Assignor and assigned to the Assignee hereunder
which is outstanding on the Effective Date, (a) on the last day of the Interest
Period therefor or (b) on such earlier date agreed to by the Assignor and the
Assignee or (c) on the date on which any such Fixed Rate Loan either becomes due
(by acceleration or otherwise) or is prepaid (the date as described in the
foregoing clauses (a), (b) or (c) being hereinafter referred to as the "Payment
Date"), the Assignee shall pay the Assignor an amount equal to the principal
amount of the portion of such Fixed Rate Loan assigned to the Assignee which is
outstanding on the Payment Date. If the Assignor and the Assignee agree that
the Payment Date for such Fixed Rate Loan shall be the Effective Date, they
shall agree to the interest rate applicable to the portion of such Loan assigned
hereunder for the period from the Effective Date to the end of the existing
Interest Period applicable to such Fixed Rate Loan (the "Agreed Interest Rate")
and any interest received by the Assignee in excess of the Agreed Interest Rate
shall be remitted to the Assignor. In the event interest for the period from
the Effective Date to but not including the Payment Date is not paid by the
Borrower with respect to any Fixed Rate Loan sold by the Assignor to the
Assignee hereunder, the Assignee shall pay to the Assignor interest for such
period on the portion of such Fixed Rate Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement. In
the event a prepayment of any Fixed Rate Loan which is existing on the Payment
Date and assigned by the Assignor to the Assignee hereunder occurs after the
Payment Date but before the end of the Interest Period applicable to such Fixed
Rate Loan, the Assignee shall remit to the Assignor the excess of the prepayment
penalty paid with respect to the portion of such Fixed Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will
also promptly remit to the Assignor (i) any principal payments received from the
Agent with respect to Fixed Rate Loans prior to the Payment Date and (ii) any
amounts of interest on Loans and fees received from the Agent which relate to
the portion of the Loans assigned to the Assignee hereunder for periods prior to
the Effective Date, in the case of Floating Rate Loans or fees, or the Payment
Date, in the case of Fixed Rate Loans, and not previously paid by the Assignee
to the Assignor.]******* In the event that either party hereto receives any
payment to which the other party
----------------------------------
*******Each Assignor may insert its standard payment provisions in lieu of
the payment terms included in this Exhibit.
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84
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or [commitment] fees
is made under the Credit Agreement with respect to the amounts assigned to the
Assignee hereunder (other than a payment of interest or facility fees for the
period prior to the Effective Date or, in the case of Fixed Rate Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was ___ of 1% less than the interest rate paid
by the Borrower or if the facility fee was ___ of 1% less than the facility fee
paid by the Borrower, as applicable. In addition, the Assignee agrees to pay
___% of the recordation fee required to be paid to the Agent in connection
with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter
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into this Assignment Agreement, (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under
ERISA, [and (vii) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any
United States federal income taxes].*
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right pursuant to Section [12.3.1] of the Credit Agreement to
assign the rights which are assigned to the Assignee hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any of
the terms and conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Loan Documents has been obtained and (ii) unless the prior
written consent of the Assignor is obtained, the Assignee is not thereby
released from its obligations to the Assignor hereunder, if any remain
unsatisfied, including, without limitation, its obligations under [Sections 4, 5
and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar
----------------
*to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
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amount purchased shall be recalculated based on the reduced Aggregate
Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached
Notice of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between
the parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by
the internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement
in the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall
be the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: _______________________________
Title: ____________________________
________________________________
________________________________
[NAME OF ASSIGNEE]
By: _______________________________
Title: ____________________________
________________________________
________________________________
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SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Credit Agreement, dated as
of August 8, 1995, among Firstar Corporation, the Lenders, Bank of
America National Trust and Savings Association, Chemical Bank
and NBD Bank, as Co-Agents and The First National Bank of Chicago, as
Agent
2. Date of Assignment Agreement: _____________, 19__
3. Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility
1* 2* *3 *4
-------- -------- -------- --------
a. Total of Commitments
(Loans)** under
Credit Agreement $ $ $ $
-------- -------- -------- --------
b. Assignee's Percentage
of each Facility purchased
under the Assignment
Agreement*** % % % %
-------- -------- -------- --------
c. Amount of Assigned Share in
each Facility purchased under
the Assignment
Agreement $ $ $ $
-------- -------- -------- --------
4. Assignee's aggregate (Loan
Amount)** Commitment amount
purchased hereunder: $
-------
5. Proposed Effective Date:
-------
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ___________________________ By: _________________________
Title: ___________________________ Title: _________________________
* Insert specific facility names per Credit Agreement
** If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
*** Percentage taken to 10 decimal places
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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which
must include notice address for the Assignor and the Assignee
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EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
____________________, 19__
To: [NAME OF BORROWER]*
__________________________
__________________________
[NAME OF AGENT]
__________________________
__________________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given
and delivered to ****[the Borrower and]**** the Agent pursuant to Section
[12.3.2] of the Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of ___________, 19__ (the "Assignment"),
pursuant to which, among other things, the Assignor has sold, assigned,
delegated and transferred to the Assignee, and the Assignee has purchased,
accepted and assumed from the Assignor the percentage interest specified in
Item 3 of Schedule 1 of all outstandings, rights and obligations under the
Credit Agreement relating to the facilities listed in Item 3 of Schedule 1.
The Effective Date of the Assignment shall be the later of the date specified
in Item 5 of Schedule 1 or two Business Days (or such shorter period as agreed
to by the Agent) after this Notice of Assignment and any consents and fees
required by Sections [12.3.1 and 12.3.2] of the Credit Agreement have been
delivered to the Agent, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee has not been
satisfied.
------------------------------------
*To be included only if consent must be obtained from the Borrower pursuant to
Section 12.3.1 of the Credit Agreement.
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4. The Assignor and the Assignee hereby give to the Borrower and
the Agent notice of the assignment and delegation referred to herein. The
Assignor will confer with the Agent before the date specified in Item 5 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment Agreement
does not become effective on any proposed Effective Date as a result of the
failure to satisfy the conditions precedent agreed to by the Assignor and the
Assignee. At the request of the Agent, the Assignor will give the Agent
written confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent
on or before the Effective Date the processing fee of $2,500 required by
Section 12.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Agent prepare and cause
the Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none
of the funds, monies, assets or other consideration being used to make the
purchase pursuant to the Assignment are "plan assets" as defined under ERISA
and that its rights, benefits, and interests in and under the Loan Documents
will not be "plan assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent
under the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
-----------------------------------
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
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[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ___________________________ By: _________________________
Title: ___________________________ Title: _________________________
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT] BY [NAME OF BORROWER]
By: ___________________________ By: _________________________
Title: ___________________________ Title: _________________________
[Attach photocopy of Schedule 1 to Assignment]
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SCHEDULE "1"
LITIGATION
(See Section 5.7)
None.
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Schedule 2 to Credit Agreement among Firstar Corporation, The First National
Bank of Chicago as Agent and Lenders named therein
Jurisdiction
Parent in which Incorporated
Company Name of Subsidiary or Organized
------- ---------------------------------------- ---------------------
6 Firstar Insurance Services, Inc. Wisconsin
5 Elan Investment Services, Inc. Wisconsin
6 Elan Life Insurance Company, Inc. Arizona
6 Elan Title Services, Inc. Wisconsin
5 Firstar Community Investment Corporation Wisconsin
6 Firstar Development Corporation Delaware
5 Firstar Leasing Services Corporation Wisconsin
5 Firstar Mortgage Corporation Wisconsin
5 FM Properties of Wisconsin, Inc. Wisconsin
5 CSFM Corporation Wisconsin
5 Firstar Home Mortgage Corporation Wisconsin
5 Firstar Information Services Corporation Wisconsin
4 Banks of Iowa Capital Corporation Iowa
4 Banks of Iowa Credit Corporation Iowa
4 Firstar CSC Corporation Iowa
5 DPC of Milwaukee, Inc. Wisconsin
5 Mid States Financial Corp Illinois
1 First Colonial Trust Company Illinois
1 First Colonial Mortgage Corporation Illinois
1 BankersTech, Inc. Illinois
* Appleton Capital Corporation Nevada
* Eau Claire Capital Corporation Nevada
* Fond du Lac Capital Corporation Nevada
* Grantsburg Capital Corporation Nevada
* Green Bay Capital Corporation Nevada
* Madison Capital Corporation Nevada
* Manitowoc Capital Corporation Nevada
* Milwaukee Capital Corporation Nevada
* Minocqua Capital Corporation Nevada
* Oshkosh Capital Corporation Nevada
* Rice Lake Capital Corporation Nevada
* Sheboygan Capital Corporation Nevada
* Wausau Capital Corporation Nevada
* Wisconsin Rapids Capital Corporation Nevada
Notes
1 Subsidiary of Firstar Corporation of Wisconsin
2 Subsidiary of Firstar Corporation of Minnesota
3 Subsidiary of Firstar Corporation of Arizona
4 Subsidiary of Firstar Corporation of Iowa
5 Subsidiary of Firstar Bank Milwaukee, N.A.
6 Subidiary of Firstar Corporation
* All Capital Corporations are subsidiaries of their respective banks
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Jurisdiction
Parent in which Incorporated
Company Name of Subsidiary or Organized
------- ----------------------------------------- ---------------------
0 Xxxxxxx Xxxx Xxxxxxxxx, X.X. Xxxxxx Xxxxxx
1 Firstar Credit Card Bank, N.A. United States
1 Firstar Bank Appleton Wisconsin
0 Xxxxxxx Xxxx Xxx Xxxxxx, X.X. Xxxxxx Xxxxxx
0 Xxxxxxx Xxxx Xxxx xx Xxx, X.X. Xxxxxx Xxxxxx
1 Firstar Bank Grantsburg, N.A. United States
1 Firstar Bank Green Bay Wisconsin
0 Xxxxxxx Xxxx Xxxxxxx, X.X. Xxxxxx Xxxxxx
1 Firstar Bank Manitowoc Wisconsin
1 Firstar Bank Minocqua Wisconsin
1 Firstar Bank Oshkosh, N.A. United States
0 Xxxxxxx Xxxx Xxxx Xxxx, X.X. Xxxxxx Xxxxxx
1 Firstar Bank Sheboygan, N.A. United States
0 Xxxxxxx Xxxx Xxxxxx, X.X. Xxxxxx Xxxxxx
0 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxx, X.X. Xxxxxx Xxxxxx
4 Firstar Bank Ames Iowa
0 Xxxxxxx Xxxx Xxxxxxxxxx, X.X. Xxxxxx Xxxxxx
0 Xxxxxxx Xxxx Xxxxx Xxxxx Xxxx
0 Xxxxxxx Xxxx Xxxxx Xxxxxx, X.X. Xxxxxx Xxxxxx
4 Firstar Bank Council Bluffs Iowa
0 Xxxxxxx Xxxx Xxx Xxxxxx, X.X. Xxxxxx Xxxxxx
0 Xxxxxxx Xxxx Xxxxx Xxxxxxxx Xxxx
4 Firstar Bank Ottumwa Iowa
0 Xxxxxxx Xxxx Xxxx Xxxxxx, X.X. Xxxxxx Xxxxxx
0 Xxxxxxx Xxxx Xxx Xxx, X.X. Xxxxxx Xxxxxx
0 Xxxxxxx Xxxx Xxxxx Xxxx, X.X. Xxxxxx Xxxxxx
2 Firstar Bank of Minnesota, N.A. United States
1 Firstar Bank Illinois Illinois
1 Colonial Bank Illinois
1 Community Bank of Edgewater Illinois
1 York State Bank Illinois
0 Xxx Xxxx Xxxxx Xxxx Xxxxxxxx
1 All American Bank Illinois
1 First Colonial Bank of Lake County Illinois
3 Firstar Metropolitan Bank & Trust Arizona
6 Firstar Corporation of Wisconsin Wisconsin
6 Firstar Corporation of Minnesota Minnesota
6 Firstar Corporation of Arizona Arizona
6 Firstar Corporation of Iowa Iowa
1 Firstar Trust Company Wisconsin
1 Firstar Trust Company of Florida, N.A. United States
1 Firstar Trust Company of Illinois Illinois
2 Firstar Trust Company of Minnesota Minnesota
6 Firstar Investment Research & Management Company Wisconsin
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Each subsidiary shown on this Schedule 2 is 100% owned by its indicated
Firstar parent company, with the following exceptions. The percentage ownership
by the subsidiary's Firstar parent company is indicated next to the name of each
subsidiary:
Firstar Bank Eau Claire, N.A. 97.8%
Firstar Bank Green Bay 99.7%
Firstar Bank Madison, N.A. 99.4%
Firstar Bank Oshkosh, N.A. 99.7%
Firstar Trust Company 99.9%
Elan Life Insurance Company 79.0%
The remaining shares of the four Firstar Banks listed above and of Firstar
Trust Company are owned by the public. All of the remaining shares of Elan Life
Insurance Company are owned by ERCO Services, Inc.
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