1
================================================================================
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of February 2, 1996
Among
NATIONAL CITY CORPORATION,
THE LENDERS NAMED HEREIN,
and
CHEMICAL BANK, as Agent
================================================================================
2
TABLE OF CONTENTS
Article Section Page
------- ------- ----
I. DEFINITIONS 1
1.01 Defined Terms 1
1.02 Terms Generally 19
1.03 Accounting Terms 19
II. THE CREDITS 20
2.01 Commitments 20
2.02 Loans 20
2.03 Competitive Bid Procedure 22
2.04 Standby Borrowing Procedure 25
2.05 Conversion and Continuation
of Standby Borrowings 26
2.06 Fees 28
2.07 Repayment of Loans; Evidence
of Debt 28
2.08 Interest on Loans 29
2.09 Default Interest 30
2.10 Alternate Rate of Interest 30
2.11 Termination, Reduction of
Commitments 31
2.12 Prepayment 31
2.13 Reserve Requirements; Change in
Circumstances 32
2.14 Change in Legality 34
2.15 Indemnity 35
2.16 Pro Rata Treatment 36
2.17 Sharing of Setoffs 37
2.18 Payments 38
2.19 Taxes 38
2.20 Duty to Mitigate; Assignment of
Commitments Under Certain
Circumstances 42
2.21 Extension of Maturity Date 43
III. REPRESENTATIONS AND WARRANTIES 44
3.01 Financial Condition 44
3.02 No Change 45
3.03 Corporate Existence; Compliance
with Law 45
3
Article Section Page
------- ------- ----
3.04 Corporate Power; Authorization;
Enforceable Obligations 46
3.05 No Legal Bar 46
3.06 No Material Litigation 46
3.07 Ownership of Property; Liens 46
3.08 Taxes 47
3.09 Federal Reserve Regulations 47
3.10 Employee Benefit Plans 47
3.11 Investment Company Act; Public
Utility Holding Company Act 48
3.12 Use of Proceeds 48
3.13 No Material Misstatements 48
3.14 Environmental and Safety Matters 48
3.15 Capital Commitments 48
IV. CONDITIONS OF LENDING 49
4.01 All Borrowings 49
4.02 Closing Date 49
V. AFFIRMATIVE COVENANTS 51
5.01 Financial Statements 51
5.02 Inspection of Property; Books and
Records; Discussions 53
5.03 Notices 53
5.04 Continuance of Business 53
5.05 Compliance with Regulatory
Standards 54
5.06 Payment of Obligations 54
5.07 Maintenance of Property, Insurance 54
5.08 Employee Benefits 54
5.09 Capital Requirements 55
VI. NEGATIVE COVENANTS 55
6.01 Limitation on Liens 55
6.02 Mergers, Consolidations and
Transfers of Assets 56
6.03 Tier 1 Capital 56
6.04 Nonperforming Assets 56
6.05 Double Leverage 56
6.06 Use of Proceeds 56
6.07 Regulation U 57
6.08 Capital Commitments 57
4
Article Section Page
------- ------- ----
VII. EVENTS OF DEFAULT 57
VIII. THE AGENT 61
IX. MISCELLANEOUS 64
9.01 Notices 64
9.02 Survival of Agreement 65
9.03 Binding Effect 65
9.04 Successors and Assigns 65
9.05 Expenses; Indemnity 69
9.06 Applicable Law 70
9.07 Waivers; Amendment 70
9.08 Entire Agreement 71
9.09 Severability 71
9.10 Counterparts 72
9.11 Headings 72
9.12 Right of Setoff 72
9.13 Jurisdiction; Consent to Service
of Process 72
9.14 Waiver of Jury Trial 73
Exhibits
--------
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject
Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of Counsel for Borrower
Schedules
---------
Schedule 2.01 Lenders and Commitments
Schedule 3.06 Litigation
5
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (the "Agreement") dated as of February 2, 1996, among
NATIONAL CITY CORPORATION, a Delaware corporation (the
"Borrower"), the lenders listed in Schedule 2.01 (the
"Lenders"), and CHEMICAL BANK, a New York banking corporation,
as agent for the Lenders (in such capacity, the "Agent").
The Borrower has requested the Lenders to extend credit to the
Borrower in order to enable it to borrow on a standby revolving credit basis on
and after the date hereof and at any time and from time to time prior to the
Maturity Date (as herein defined) a principal amount not in excess of
$350,000,000 at any time outstanding. The Borrower has also requested the
Lenders to provide a procedure pursuant to which the Borrower may invite the
Lenders to bid on an uncommitted basis on short-term borrowings by the
Borrower. The proceeds of all such borrowings are to be used for general
corporate purposes, including acquisitions and commercial paper backup. The
Lenders are willing to extend such credit to the Borrower on the terms and
subject to the conditions herein set forth.
Accordingly, the Borrower, the Lenders and the Agent agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
6
2
"AGENT FEES" shall have the meaning assigned to such term in Section
2.06(c).
"AFFILIATE" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as effective. "Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day) , or, if such rate shall
not be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00 a.m.,
New York City time, on such day (or, if such day shall not be a Business Day,
on the next preceding Business Day) by the Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by
it. "Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Agent from
7
3
three Federal funds brokers of recognized standing selected by it. If
for any reason the Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability of the Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective on the effective date of such change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"ASSESSMENT RATE" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then current net annual assessment rate that will be employed in
determining amounts payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insurance by such Corporation (or such
successor) of time deposits made in Dollars at the Agent's domestic offices.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee substantially in the form of Exhibit C.
"BANK REGULATORY AUTHORITY" shall mean the Board of Governors of the
Federal Reserve System, the Comptroller of the Currency, the Federal Deposit
Insurance Corporation and all other relevant bank regulatory authorities
(including, without limitation, relevant state bank regulatory authorities).
"BANK SUBSIDIARY" shall mean any Subsidiary which is a commercial
bank, banking corporation, savings and loan association, savings bank, trust
company or Edge Act corporation.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"BORROWING" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose
8
4
Competitive Bids have been accepted pursuant to Section 2.03) on a
single date and as to which a single Interest Period is in effect.
"BUSINESS DAY" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; PROVIDED, HOWEVER, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in Dollar deposits in the
London interbank market.
"CAPITAL COMMITMENT" shall mean any commitment to the Federal
Deposit Insurance Corporation, the Resolution Trust Corporation, the Director
of the Office of Thrift Supervision, the Comptroller of the Currency, or the
Board, or their predecessors or successors, to maintain the capital of an
insured depository institution.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "CHANGE IN CONTROL" shall be deemed to have occurred if (a) any
Person or group (within the meaning of Rule 13d-5 of the Securities and
Exchange Commission as in effect on the date hereof) shall own directly or
indirectly, beneficially or of record, shares representing 25% or more of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower; (b) a majority of the seats (other than vacant
seats) on the board of directors of the Borrower shall at any time be occupied
by Persons who were neither (i) members of the board of directors of the
Borrower on the date hereof, nor (ii) appointed as, or nominated for election
as, directors by a majority of the directors referred to in clause (i) or
appointed or nominated in accordance with this clause (ii); or (c) any Person
or group (other than the board of directors of the Borrower) shall otherwise
directly or indirectly Control the Borrower.
9
5
"CLOSING DATE" shall mean the date hereof.
"CODE" shall mean the Internal Revenue Code of 1986,
as the same may be amended from time to time.
"COMMITMENT" shall mean, with respect to each Lender,
the commitment of such Lender hereunder as set forth in Schedule
2.01 hereto, as such Lender's Commitment may be permanently
terminated or reduced from time to time pursuant to Section
2.11.
"COMPETITIVE BID" shall mean an offer by a Lender to
make a Competitive Loan pursuant to Section 2.03.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a
notification made by the Borrower pursuant to Section 2.03(d) in
the form of Exhibit A-4.
"COMPETITIVE BID RATE" shall mean, as to any
Competitive Bid made by a Lender pursuant to Section 2.03(b),
(i) in the case of a Eurodollar Loan, the Margin, and (ii) in
the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request made
pursuant to Section 2.03 in the form of Exhibit A-i.
"COMPETITIVE BORROWING" shall mean a Borrowing
consisting of a Competitive Loan or concurrent Competitive Loans
from the Lender or Lenders whose Competitive Bids for such
Borrowing have been accepted by the Borrower under the bidding
procedure described in Section 2.03.
"COMPETITIVE LOAN" shall mean a Loan from a Lender to
the Borrower pursuant to the bidding procedure described in
Section 2.03. Each Competitive Loan shall be a Eurodollar
Competitive Loan or a Fixed Rate Loan.
"CONSOLIDATED NET WORTH" at any date shall mean the
Net Worth of the Borrower and the consolidated Subsidiaries on
such date, determined on a consolidated basis in accordance with
GAAP.
"CONTINGENT OBLIGATION" with respect to the Borrower
or any Subsidiary shall mean any obligation of the Borrower or
such Subsidiary, as applicable, guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends
10
6
or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether
or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (d) otherwise to assure or hold harmless the
owner of such primary obligation against loss in respect thereof; PROVIDED,
HOWEVER, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or
guarantees by the Borrower of obligations of any Subsidiary. The amount of any
Contingent Obligation shall be deemed to equal the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good faith.
"CONTRACTUAL OBLIGATION" with respect to the Borrower or any
Subsidiary shall mean any provision of any security issued by the Borrower or
such Subsidiary, as applicable, or of any agreement, instrument or undertaking
to which the Borrower or such Subsidiary, as applicable, is a party or by which
it or any of its property is bound.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, but not including the exercise of investment discretion as an
investment advisor or fiduciary, and "Controlling" and "Controlled" shall have
meanings correlative thereto.
"DEFAULT" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
11
7
"EQUITY INVESTMENT" shall mean the aggregate equity investment of
the Borrower in the Subsidiaries as determined in accordance with GAAP.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414 of the Code.
"EUROCURRENCY RESERVE REQUIREMENTS" shall mean the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board and any
other banking authority to which the Agent is subject and applicable to
"Eurocurrency Liabilities", as such term is defined in Regulation D of the
Board, or any similar category of assets or liabilities relating to
eurocurrency fundings. Eurocurrency Reserve Requirements shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
"EURODOLLAR COMPETITIVE LOAN" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"EURODOLLAR LOAN" shall mean any Eurodollar Competitive Loan or
Eurodollar Standby Loan.
"EURODOLLAR STANDBY LOAN" shall mean any Standby Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VII.
"FACILITY FEE" shall have the meaning assigned to such term in
Section 2.06 (a).
12
8
"FACILITY FEE PERCENTAGE" shall mean on any date the
applicable percentage set forth below based upon the ratings by
S&P and Xxxxx'x, respectively, applicable on such date to the
type of Index Debt described below:
CATEGORY 1 Percentage
---------- ----------
Rating
------
AA- or higher by S&P 0.0800
Aa3 or higher by Xxxxx'x
CATEGORY 2
----------
Rating
------
A+ or A by S&P 0.1000
A1 or A2 by Xxxxx'x
CATEGORY 3
----------
Rating
------
A- or BBB+ by S&P 0.1500
A3 or Baa1 by Xxxxx'x
CATEGORY 4
----------
Rating
------
BBB or below by S&P 0.1875
Baa2 or below by Xxxxx'x
For purposes of the foregoing, (i) if there shall
exist no Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then each
rating agency shall be deemed to have established a rating with
respect to Index Debt in Category 4; (ii) if the ratings
established or deemed to have been established by S&P and
Xxxxx'x for the Index Debt shall fall within different
Categories, the Facility Fee Percentage shall be based on the
Category containing the higher of such ratings; and (iii) if any
rating for Index Debt established or deemed to have been
established by S&P or Xxxxx'x shall be changed (other than as a
result of a change in the rating system of S&P or Xxxxx'x), such
change shall be effective (A) if the Index Debt is not publicly
13
9
rated, as of the date of the applicable Ratings Review Letter
indicating such change or (B) if the Index Debt is publicly rated, as
of the date on which such change is first announced by the applicable
rating agency. Each change in the Facility Fee Percentage shall apply
during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of S&P or Xxxxx'x shall change, or if any such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders, acting through the Administrative
Agent, shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system or the
nonavailability of ratings from such rating agency, and pending agreement on
such amendment, the Facility Fee Percentage most recently determined in
accordance with this definition shall continue in effect.
"FEES" shall mean the Facility Fee, the Utilization Fee and the
Agent Fees.
"FINANCIAL OFFICER" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer, Assistant Treasurer
or Controller of such corporation.
"FIXED RATE BORROWING" shall mean a Borrowing comprised of Fixed
Rate Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing interest
at a fixed percentage rate per annum (expressed in the form of a decimal to no
more than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles in the
United States, applied on a basis consistent with those employed in the
financial statements referred to in Section 3.01.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"GUARANTEE" of or by any Person shall mean any obligation,
contingent or otherwise (whether or not denominated as a guarantee) , of such
Person guaranteeing any Indebtedness or any other obligation of any other
Person
14
10
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness (or other obligation) or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such Indebtedness
(or other obligation), (b) to purchase property, securities or services for the
purpose of assuring the owner of such Indebtedness (or other obligation) of the
payment of such Indebtedness (or other obligation) or (c) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness (or other obligation); PROVIDED, HOWEVER, that the term
"Guarantee" shall not include endorsements for collection or deposit, in either
case in the ordinary course of business.
"INDEBTEDNESS" of any Person shall mean, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property or assets purchased by such Person, (e) all obligations of such Person
issued or assumed as the deferred purchase price of property or services, (f)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (g) all Contingent Obligations
of such Person, (h) all Capital Lease Obligations of such Person, (i) all
obligations of such Person in respect of interest rate protection agreements,
foreign currency exchange agreements or other interest or exchange rate hedging
arrangements and (j) all obligations of such Person as an account party in
respect of letters of credit and bankers' acceptances. The Indebtedness of any
Person shall include the Indebtedness of any partnership in which such Person
is a general partner.
"INDEX DEBT" shall mean (i) senior, unsecured noncredit-enhanced,
long-term debt of the Borrower (whether or not any such debt shall be
outstanding) publicly rated by both S&P and Xxxxx'x or (ii) if the debt
described in
15
11
clause (i) shall not exist, long-term subordinated debt of the Borrower
(whether or not any such debt shall be outstanding) rated by both S&P and
Xxxxx'x or (iii) if the debt described in clauses (i) and (ii) shall not exist,
senior, unsecured, noncredit-enhanced, long-term debt of the Borrower (whether
or not any such debt shall be outstanding) with respect to which the Borrower
has delivered to the Agent a Ratings Review Letter dated not earlier than the
most recent Ratings Review Date (or which has been publicly rated by only one
of S&P or Xxxxx'x and as to which a Ratings Review Letter from the other rating
agency has been delivered to the Agent not earlier than such date).
"INSURED SUBSIDIARY" shall mean any insured depositary institution
(as defined in 12 U.S.C. Section 1813(c) (2) (or any successor provision), as
amended, reenacted or designated from time to time) that is controlled (within
the meaning of 12 U.S.C. Section 1841 (or any successor provision), as amended,
reenacted or redesignated from time to time) by the Company.
"INTANGIBLES" with respect to any Person at any date shall mean the
amount of all assets of such Person that would be classified as intangible
assets in accordance with GAAP, but in any event including unamortized debt
discount and expense, unamortized organization and reorganization expense,
costs in excess of the net asset value of acquired companies, patents,
copyrights, trade or service marks, franchises, trade names, goodwill and the
amount of any write-up in the book value of any assets resulting from any
revaluation (other than (a) revaluations of tangible assets arising out of
purchase accounting adjustments, (b) revaluations arising out of foreign
currency valuations in accordance with GAAP, and (c) revaluations pursuant to
the Statement of Financial Accounting Standards No. 115) thereof after December
31, 1993.
"INTEREST PAYMENT DATE" SHALL mean, with respect to any Loan, the
last day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of more than three months' duration or
a Fixed Rate Loan with an Interest Period of more than 90 days' duration, each
day that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months' duration or 90 days duration, as the case may
be, been applicable to such Loan and, in addition, the date of any refinancing
or conversion of such Loan with or to a Loan of a different Type.
16
12
"INTEREST PERIOD" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect, (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the next succeeding March 31, June 30,
September 30 or December 31, or, if earlier, on the Maturity Date or the date
of prepayment of such Borrowing and (c) as to any Fixed Rate Borrowing, the
period commencing on the date of such Borrowing and ending on the date
specified in the Competitive Bids in which the offer to make the Fixed Rate
Loans comprising such Borrowing were extended, which shall not be earlier than
seven days after the date of such Borrowing or later than 360 days after the
date of such Borrowing; PROVIDED, HOWEVER, that if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless, in the case of Eurodollar Loans
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day. Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum equal to the arithmetic mean
(rounded upwards, if necessary, to the next 1/16 of 1%) of the offered rates
for dollar deposits with a maturity comparable to such Interest Period which
appears on the Telerate British Bankers Assoc. Interest Settlement Rates Page
(as hereinafter defined) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period; PROVIDED, HOWEVER, that
if there shall no longer exist a Telerate British Bankers Assoc. Interest
Settlement Rates Page, "LIBO Rate" shall mean an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the rate at
which dollar deposits approximately equal in principal amount to (i) in the
case of a Eurodollar Standby Loan, the Agent's portion of such Standby
Borrowing and (ii) in the case of a Eurodollar Competitive Loan, a principal
amount that would have been the Agent's portion of such Competitive Borrowing
had such Competitive Borrowing been a Eurodollar Standby Loan, and for a
maturity comparable to such Interest Period are
17
13
offered to the principal London office of the Agent in immediately
available funds in the London interbank market at approximately 11:00
a.m, London time, two Business Days prior to the commencement of such
Interest Period. "Telerate British Bankers Assoc. Interest Settlement
Rates Page" shall mean the display designated as Page 3750 on
Teleratesystem Incorporated (or such other page as may replace the LIBO page on
that service for the purpose of displaying London interbank offered rates of
major banks).
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset
and (c) in the case of securities, any purchase option, call or similar right
of a third party with respect to such securities, other than redemption or
prepayment rights of the issuers of such securities.
"LOAN" shall mean a Competitive Loan or a Standby Loan, whether made
as a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as permitted hereby.
"LOAN DOCUMENTS" shall mean (i) this Agreement and the letter
agreements referred to in Section 2.06(c) and (ii) any amendment, supplement,
modification, consent or waiver of, to or in respect of the foregoing.
"LOAN LOSS RESERVES" with respect to the Borrower at any date shall
mean the aggregate reserves for loan losses of the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"MARGIN" shall mean, as to any Eurodollar Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) to be added to or subtracted from the LIBO Rate
in order to determine the interest rate applicable to such Loan, as specified
in the Competitive Bid relating to such Loan.
"MARGIN STOCK" shall have the meaning given such term under
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
the business, assets, operations or
18
14
condition, financial or otherwise, of the Borrower and its subsidiaries taken
as a whole.
"MATURITY DATE" shall mean the date that is four years less one day
after the Closing Date, as the same may be extended pursuant to Section 2.21.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc., and its
successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a) (3) of ERISA.
"NET WORTH" with respect to any Person at any date shall mean (i) all
amounts which would be included under shareholders' equity on a balance sheet
of such Person determined in accordance with GAAP, less (ii) such Person's
treasury stock, to the extent reflected in (i).
"NONPERFORMING ASSETS" shall mean, as at any date, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of the following: (a) nonaccrual loans
plus (b) accruing loans past due 90 days or more plus (c) restructured loans
and leases plus (d) other real estate owned.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PERSON" shall mean any natural Person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency
or political subdivision thereof.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code that is maintained for current or former employees, or any
beneficiary thereof, of the Borrower or any ERISA Affiliate.
"RATINGS REVIEW DATE" shall mean (a) the Closing Date, (b) each
anniversary of the Closing Date and (c) any date after the most recent date
referred to in (a) or (b) above which shall have been designated in a notice
delivered by the Required Lenders to the Borrower not fewer than 60 days prior
to such designated date.
19
15
"RATINGS REVIEW LETTERS" shall mean, on any date, the letters of
each of S&P and Moody's that set forth the ratings of the Index Debt by such
rating agencies, which letters shall not be dated earlier than 10 days prior to
the date of delivery thereof to the Agent.
"REGULATION D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION Y" shall mean Regulation Y of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"REQUIRED LENDERS" shall mean, at any time, Lenders having
Commitments representing at least a majority of the Total Commitment or, for
purposes of action taken to accelerate the maturity of Loans under Article VII,
Lenders holding Loans representing at least a majority of the aggregate
principal amount of the Loans outstanding.
"REQUIREMENT OF LAW" as to any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person and any law, treaty, rule, regulation, regulatory guideline or
pronouncement or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
20
16
"RESPONSIBLE OFFICER" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"RESTRICTED SUBSIDIARY" shall mean any Subsidiary that is a
Significant Subsidiary under Rule 1-02 of Regulation S-X of the Securities and
Exchange Commission, 17 C.F.R. Section 210.1-02.
"RISK ADJUSTED ASSETS" shall mean, with reference to the Borrower,
at any time, the Borrower's total weighted risk assets at such time as defined
and determined in accordance with Regulation Y.
"SIGNIFICANT SUBSIDIARY" shall mean any Subsidiary which, at the
time any determination is being made, constitutes a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X of the Securities and Exchange
Commission, 17 C.F.R. Section 210.1-02, as in effect on the date hereof.
"S&P" shall mean Standard and Poor's Corporation, and its
successors.
"SPREAD" shall mean on any date, with respect to Eurodollar Standby
Loans or ABR Loans, the applicable percentage set forth below based upon the
ratings by S&P and Moody's, respectively, applicable on such date to the Index
Debt:
CATEGORY 1 LIBOR Spread ABR Spread
---------- ------------ ----------
Rating
------
AA- or higher by S&P .1700 0
Aa3 or higher by Moody's
CATEGORY 2
----------
Rating
------
A+ or A by S&P .2250 0
A1 or A2 by Moody's
21
17
CATEGORY 3
----------
Rating
------
A- or BBB+ by S&P .2750 0
A3 or Baa1 by Moody's
CATEGORY 4
----------
Rating
------
BBB or below by S&P .3125 0
Baa2 or below by Moody's
For purposes of the foregoing, (i) if there shall exist no Index
Debt (other than by reason of the circumstances referred to in the last
sentence of this definition), then each rating agency shall be deemed to have
established a rating with respect to Index Debt in Category 4; (ii) if the
ratings established or deemed to have been established by S&P and Moody's for
the Index Debt shall fall within different Categories, the Spread shall be
based on the Category containing the higher of such ratings; and (iii) if any
rating for Index Debt established or deemed to have been established by S&P or
Moody's shall be changed (other than as a result of a change in the rating
system of S&P or Moody's), such change shall be effective (A) if the Index Debt
is not publicly rated, as of the date of the applicable Ratings Review Letter
indicating such change or (B) if the Index Debt is publicly rated, as of the
date on which such change is first announced by the applicable rating agency.
Each change in the Spread shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of S&P or Moody's
shall change, or if any such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders, acting through
the Administrative Agent, shall negotiate in good faith to amend the references
to specific ratings in this definition to reflect such changed rating system or
the nonavailability of ratings from such rating agency, and pending agreement
on such amendment, the Spread most recently determined in accordance with this
definition shall continue in effect.
22
18
"STANDBY BORROWING" shall mean a Borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"STANDBY BORROWING REQUEST" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-5.
"STANDBY LOAN" shall mean a revolving loan made by the Lenders to the
Borrower pursuant to Section 2.04. Each Standby Loan shall be a Eurodollar
Standby Loan or an ABR Loan.
"STATUTORY RESERVES" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board and any other banking authority to which the
Agent is subject for new negotiable nonpersonal time deposits in Dollars of
over $100,000 with maturities approximately equal to three months. Statutory
Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"SUBSIDIARY" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, other than in a
fiduciary capacity, or (b) which is, at the time any determination is made,
otherwise Controlled by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" shall mean any subsidiary of the Borrower.
"TIER 1 CAPITAL" shall mean, with reference to the Borrower, at any
time, the Borrower's Tier 1 capital at such time as defined and determined in
accordance with Regulation Y.
23
19
"TOTAL COMMITMENT" shall mean at any time the aggregate amount of
the Lenders' Commitments, as in effect at such time.
"TYPE", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate, the Adjusted CD Rate, the Alternate Base Rate and any
fixed rate.
"UTILIZATION FEE" shall have the meaning assigned to such term in
Section 2.06(b).
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require.
SECTION 1.03. ACCOUNTING TERMS. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED,
HOWEVER, that if the Borrower notifies the Agent that the Borrower wishes to
amend any covenant in Article VI or any related definition to eliminate the
effect of any change in GAAP occurring after the Closing Date on the operation
of such covenant (or if the Agent notifies the Borrower that the Required
Lenders wish to amend Article VI or any related definition for such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before such change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
24
20
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Standby Loans to the Borrower, at
any time and from time to time on and after the date hereof and until the
earlier of the Maturity Date or the termination of the Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding not to exceed such Lender's Commitment minus the amount by
which the Competitive Loans outstanding at such time shall be deemed to have
used such Commitment pursuant to Section 2.16, subject, however, to the
conditions that (a) at no time shall (i) the sum of (x) the outstanding
aggregate principal amount of all Standby Loans made by all Lenders plus (y)
the outstanding aggregate principal amount of all Competitive Loans made by all
Lenders exceed (ii) the Total Commitment and (b) at all times the outstanding
aggregate principal amount of all Standby Loans made by each Lender shall equal
the product of (i) the percentage which its Commitment represents of the Total
Commitment times (ii) the outstanding aggregate principal amount of all Standby
Loans made pursuant to Section 2.04. Each Lender's Commitment is set forth
opposite its respective name in Schedule 2.01. Such Commitments may be
terminated or reduced from time to time pursuant to Section 2.11.
Within the foregoing limits, the Borrower may borrow, pay or prepay
and reborrow hereunder, on and after the Closing Date and prior to the Maturity
Date, subject to the terms, conditions and limitations set forth herein.
SECTION 2.02. LOANS. (a) Each Standby Loan shall be made as part of
a Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitments; PROVIDED, HOWEVER, that the failure of any Lender to make
any Standby Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. The Standby Loans or Competitive
Loans comprising any Borrowing shall be in an
25
21
aggregate principal amount which is an integral multiple of $1,000,000 and not
less than $5,000,000.
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurodollar Standby Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement. Borrowings of
more than one Type may be outstanding at the same time; PROVIDED, HOWEVER, that
the Borrower shall not be entitled to request any Borrowing which, if made,
would result in an aggregate of more than seven separate Standby Loans of any
Lender being outstanding hereunder at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.05 and paragraph (d) below, each Lender
shall make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds to the Agent in New York, New
York, not later than 1:00 p.m., New York City time, and the Agent shall by 3:00
p.m., New York City time, credit or wire transfer the amounts so received to
the general deposit account of the Borrower with the Agent or to such other
account as the Borrower may designate or, if a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been
met, return the amounts so received to the respective Lenders. Competitive
Loans shall be made by the Lender or Lenders whose Competitive Bids therefor
are accepted pursuant to Section 2.03 in the amounts so accepted and Standby
Loans shall be made by the Lenders pro rata in accordance with Section 2.16.
Unless the Agent shall have received notice from a Lender prior to the date
(or, in the case of ABR Borrowings, on the date) of any Borrowing that such
Lender will not make available to the Agent such Lender's portion of such
Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Borrowing in accordance with this
paragraph (c) and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such
26
22
Lender shall not have made such portion available to the Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, in the case of the Borrower and such Lender, at
the Federal Funds Effective Rate; PROVIDED, HOWEVER, that the Borrower shall
not in any event have any liability to the extent the Agent has recovered such
funds from such Lender. The Agent, after receiving knowledge of such Lender's
failure to make such portion available to the Agent, shall promptly provide
notice of such to the Borrower. If such Lender shall repay to the Agent such
corresponding amount with such interest, such amount shall constitute such
Lender's Loan as part of such Borrowing (from the date such Loan was made by
the Agent on behalf of such Lender to the Borrower) for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. COMPETITIVE BID PROCEDURE. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the Agent a
duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Agent (i) in the case of a Eurodollar Competitive Borrowing,
not later than 10:00 a.m., New York City time, four Business Days before a
proposed Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing,
not later than 10:00 a.m., New York City time, one Business Day before a
proposed Competitive Borrowing. No ABR Loan shall be requested in, or made
pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the format of Exhibit A-1 may be rejected in the
Agent's sole discretion, and the Agent shall promptly notify the Borrower of
such rejection by telecopier. Such request shall in each case refer to this
Agreement and specify (x) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or a Fixed Rate Borrowing, (y) the date of such Borrowing
(which shall be a Business Day) and the aggregate principal amount thereof
which shall be in a minimum principal amount of $10,000,000 and in an integral
multiple of $1,000,000, and (z) the Interest Period with respect thereto (which
may not end after the Maturity Date). Promptly after its receipt of a
27
23
Competitive Bid Request that is not rejected as aforesaid, the Agent
shall invite by telecopier (in the form set forth in Exhibit A-2
hereto) the Lenders to bid, on the terms and conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive Bid
Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Agent via telecopier, in
the form of Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Agent after conferring with, and upon the instruction
of, the Borrower, and the Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each Competitive
Bid shall refer to this Agreement and specify (x) the principal amount (which
shall be in a minimum principal amount of $5,000,000 and in an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make to the Borrower, (y) the Competitive
Bid Rate or Rates at which the Lender is prepared to make the Competitive Loan
or Loans and (z) the Interest Period and the last day thereof. If any Lender
shall elect not to make a Competitive Bid, such Lender shall so notify the
Agent via telecopier (I) in the case of Eurodollar Competitive Loans, not later
than 9:30 a.m., New York City time, three Business Days before a proposed
Competitive Borrowing, and (II) in the case of Fixed Rate Loans, not later than
9:30 a.m., New York City time, on the day of a proposed Competitive Borrowing;
PROVIDED, HOWEVER, that failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a Lender pursuant to this
paragraph (b) shall be irrevocable.
(c) The Agent shall promptly (but in no event later than 10:00 a.m.,
New York City time) notify the Borrower by telecopier of all the Competitive
Bids made in accordance with paragraph (b) above, the Competitive Bid
28
24
Rate and the principal amount of each Competitive Loan in respect of
which a Competitive Bid was made and the identity of the Lender that
made each bid. The Agent shall send a copy of all Competitive Bids to
the Borrower for its records as soon as practicable after completion of the
bidding process set forth in this Section 2.03.
(d) The Borrower may in its sole and absolute discretion, subject
only to the provisions of this paragraph (d), accept or reject any Competitive
Bid referred to in paragraph (c) above. The Borrower shall notify the Agent by
telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter in the form of Exhibit A-4 hereto, whether and to what
extent it has decided to accept or reject any of or all the bids referred to in
paragraph (c) above, (x) in the case of a Eurodollar Competitive Borrowing, not
later than 1:00 p.m., New York City time, three Business Days before a proposed
Competitive Borrowing, and (y) in the case of a Fixed Rate Borrowing, not later
than 10:30 a.m., New York City time, on the day of a proposed Competitive
Borrowing; PROVIDED, HOWEVER, that (i) the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
paragraph (c) above, (ii) the Borrower shall not accept a bid made at a
particular Competitive Bid Rate if the Borrower has decided to reject a bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (iv) if the Borrower shall accept a
bid or bids made at a particular Competitive Bid Rate but the amount of such
bid or bids shall cause the total amount of bids to be accepted by the Borrower
to exceed the amount specified in the Competitive Bid Request, then the
Borrower shall accept a portion of such bid or bids in an amount equal to the
amount specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such
Competitive Bid Rate, and (v) except pursuant to clause (iv) above, no bid
shall be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $10,000,000 and an integral multiple of $1,000,000;
PROVIDED FURTHER, HOWEVER, that if a Competitive Loan must be in an amount less
than $10,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 or any
29
25
integral multiple thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple bids at a particular Competitive Bid
Rate pursuant to clause (iv) the amounts shall be rounded to integral multiples
of $1,000,000 in a manner which shall be in the discretion of the Borrower. A
notice given by the Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Agent shall promptly notify each bidding Lender whether or
not its Competitive Bid has been accepted (and if so, in what amount and at
what Competitive Bid Rate) by telecopy sent by the Agent, and each successful
bidder will thereupon become bound, subject to the other applicable conditions
hereof, to make the Competitive Loan in respect of which its bid has been
accepted.
(f) A Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request.
(g) If the Agent shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to the Agent pursuant to paragraph (b) above.
(h) All Notices required by this Section 2.03 shall be given in
accordance with Section 9.01.
SECTION 2.04. STANDBY BORROWING PROCEDURE. In order to request a
Standby Borrowing, the Borrower shall hand deliver or telecopy a Standby
Borrowing Request to the Agent in the form of Exhibit A-S hereto (a) in the
case of a Eurodollar Standby Borrowing, not later than 10:30 a.m., New York
City time, three Business Days before a proposed borrowing and (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the day
of a proposed borrowing. No Fixed Rate Loan shall be requested or made pursuant
to a Standby Borrowing Request. Such notice shall be irrevocable and shall in
each case specify (i) whether the Borrowing then being requested is to be a
Eurodollar Standby Borrowing or an ABR Borrowing; (ii) the date of such Standby
Borrowing (which shall be a Business Day) and the amount thereof; and (iii) if
such Borrowing is to be a Eurodollar Standby Borrowing, the Interest Period
with respect thereto. If no election as to the Type of Standby Borrowing is
specified in any such notice, then the
30
26
requested Standby Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Standby Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Agent shall promptly advise the Lenders of
any notice given pursuant to this Section 2.04 and of each Lender's portion of
the requested Borrowing.
SECTION 2.05. CONVERSION AND CONTINUATION OF STANDBY BORROWINGS. The
Borrower shall have the right at any time upon prior irrevocable notice to the
Agent (i) not later than 11:00 a.m., New York City time, one Business Day prior
to conversion, to convert any Borrowing consisting of Eurodollar Standby Loans
into a Borrowing consisting of ABR Loans, (ii) not later than 10:30 a.m., New
York City time, three Business Days prior to conversion or continuation, to
convert any Standby Borrowing consisting of ABR Loans into a Borrowing
consisting of Eurodollar Standby Loans or to continue any Borrowing consisting
of Eurodollar Standby Loans for an additional Interest Period and (iii) not
later than 10:30 a.m., New York City time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Borrowing
consisting of Eurodollar Standby Loans to another permissible Interest Period,
subject in each case to the following:
(a) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(b) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, the aggregate principal amount
of such Borrowing converted or continued shall be an integral multiple of
$1,000,000 and not less than $5,000,000.
(c) accrued interest on a Loan (or portion thereof) being converted
shall be paid by the Borrower at the time of conversion;
(d) if any Borrowing consisting of Eurodollar Standby Loans is
converted at a time other than the end of the Interest Period applicable
thereto, the Borrower shall pay, upon demand, any amounts due to the
Lenders pursuant to Section 2.15 as a result of such conversion;
31
27
(e) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Borrowing
consisting of Eurodollar Standby Loans;
(f) any portion of a Borrowing consisting of Eurodollar Standby
Loans which cannot be continued as such by reason of clause (e) above
shall be automatically converted at the end of the Interest Period in
effect for such Borrowing into a Standby Borrowing consisting of ABR
Loans;
(g) no Interest Period may be selected for any Borrowing consisting
of Eurodollar Standby Loans that would end later than the Maturity Date;
and
(h) at any time when there shall have occurred and be continuing any
Default or Event of Default, no Borrowing may be converted into or
continued as a Eurodollar Standby Borrowing.
Each notice pursuant to this Section 2.05 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Standby Borrowing that the Borrower requests be converted or continued, (ii)
whether such Borrowing is to be converted to or continued as a Borrowing
consisting of Eurodollar Standby Loans or ABR Loans, (iii) if such notice
requests a conversion, the date of such conversion (which shall be a Business
Day) and (iv) if such Borrowing is to be converted to or continued as a
Borrowing consisting of Eurodollar Standby Loans, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Borrowing consisting of
Eurodollar Standby Loans, the Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Agent shall advise the other
Lenders of any notice given pursuant to this Section 2.05 and of each Lender's
portion of any converted or continued Borrowing. If the Borrower shall not have
given notice in accordance with this Section 2.05 to continue any Borrowing
into a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.05 to convert such Borrowing) , such Borrowing
shall, at the end of the Interest Period applicable thereto (unless repaid
pursuant to the terms hereof) , automatically be continued into a new Interest
Period as an ABR Borrowing.
32
28
SECTION 2.06. FEES. (a) The Borrower agrees to pay to each Lender,
through the Agent, on each March 31, June 30, September 30 and December 31 and
on the date on which the Commitment of such Lender shall be terminated as
provided herein, a facility fee (a "Facility Fee"), at a rate per annum equal
to the Facility Fee Percentage from time to time in effect on the amount of the
Commitment of such Lender, whether used or unused, during the preceding quarter
(or other period commencing on the date of this Agreement or ending with the
Maturity Date or any date on which the Commitment of such Lender shall be
terminated). All Facility Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Facility Fee due to each
Lender shall commence to accrue on the date hereof and shall cease to accrue on
the earlier of the Maturity Date and the date of termination of the Commitment
of such Lender as provided herein.
(b) For any day during which the outstanding principal amount of the
Loans shall be greater than 50% of the Total Commitment under this Agreement,
the Borrower shall pay a utilization fee equal to 0.0500% per annum (computed
on the basis of the actual number of days elapsed in a year of 360 days). Each
fee described in this paragraph (b) is referred to herein as a "Utilization
Fee". The Utilization Fee, if any, in respect of any quarter shall be paid in
arrears to each Lender, through the Agent, on each March 31, June 30, September
30 and December 31 and on the Maturity Date (based on the amount of such
Lender's outstanding Loans during such period) and in the event such Lender's
Commitment is terminated other than on one of the aforementioned quarterly
dates, then such Fee shall be prorated and paid on the next succeeding
quarterly date.
(c) The Borrower agrees to pay the Agent, for its own account, agent
and administrative fees (the "Agent Fees") at the times and in the amounts
agreed upon in the letter agreement dated May 27, 1994 between the Borrower and
the Agent, as supplemented by a letter agreement dated December 5, 1995.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
outstanding principal balance of each
33
29
Competitive Loan shall be payable on the last day of the Interest Period
applicable to such Loan, and the outstanding principal balance of each Standby
Loan shall be payable on the Maturity Date. Each Competitive Loan and each
Standby Loan shall bear interest from the date of the Borrowing of which such
Loan is a part on the outstanding principal balance thereof as set forth in
Section 2.08.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made hereunder, the Type of each Loan made and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) and (c) of this Section 2.07 shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; PROVIDED, HOWEVER,
that the failure of any Lender or the Agent to maintain such accounts or any
error therein shall not in any manner affect the obligations of the Borrower to
repay the Loans in accordance with their terms.
SECTION 2.08. INTEREST ON LOANS. (a) Subject to the provisions of
Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to (i) in the case of each
Eurodollar Standby Loan, (a) the LIBO Rate for the Interest Period in effect
for such Borrowing plus (b) the Spread applicable to Eurodollar Loans from time
to time in effect and (ii) in the case of each Eurodollar Competitive Loan, (a)
the LIBO Rate for the Interest Period in effect for such Borrowing plus (b) the
Margin (which may be negative) offered by the Lender making such Loan and
accepted by the Borrower pursuant to Section 2.03. Interest on each Eurodollar
Borrowing shall be payable on each applicable Interest Payment Date except as
otherwise
34
30
provided in this Agreement. The LIBO Rate shall be determined by the
Agent, and such determination shall be conclusive absent manifest
error. The Agent shall promptly advise the Borrower and each Lender of such
determination.
(b) Subject to the provisions of Section 2.09, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate. Interest on
each ABR Borrowing shall be payable on each applicable Interest Payment Date
except as otherwise provided in this Agreement. The Alternate Base Rate shall
be determined by the Agent, and such determination shall be conclusive absent
manifest error. The Agent shall promptly advise the Borrower and each Lender of
such determination.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03. Interest on each Fixed Rate Loan shall be payable on
the Interest Payment Dates applicable to such Loan except as otherwise provided
in this Agreement.
SECTION 2.09. DEFAULT INTEREST. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, whether at scheduled maturity, by notice of prepayment,
acceleration or otherwise, the Borrower shall on demand from time to time from
the Agent pay interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the Alternate Base
Rate plus 2% per annum.
SECTION 2.10. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Agent shall have determined that
Dollar deposits in the principal amounts of the Eurodollar Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which
35
31
such Dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such
Interest period, or that reasonable means do not exist for ascertaining the
LIBO Rate, the Agent shall, as soon as practicable thereafter, give written or
telecopied notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any request by the Borrower for a Eurodollar Competitive
Borrowing pursuant to Section 2.03 shall be of no force and effect and shall be
denied by the Agent and (ii) any request by the Borrower for a Eurodollar
Standby Borrowing pursuant to Section 2.04 shall be deemed to be a request for
an ABR Borrowing; PROVIDED, HOWEVER, that any request for such a Eurodollar
Standby Borrowing may be revoked by the Borrower, as soon as is practicable
after receiving the aforementioned notice from the Agent. Each determination by
the Agent hereunder shall be conclusive absent manifest error.
SECTION 2.11. TERMINATION, REDUCTION OF COMMITMENTS. (a) The
Commitments shall be automatically and permanently terminated on the Maturity
Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopied notice to the Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Total Commitment; PROVIDED, HOWEVER, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $1,000,000 and in a
minimum principal amount of $5,000,000 and (ii) no such termination or
reduction shall be made which would reduce the Total Commitment to an amount
less than the aggregate outstanding principal amount of the Competitive Loans
and the Standby Loans.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Borrower shall pay to the Agent for the account of the Lenders, on the date of
each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the right at
any time and from time to time to prepay any Standby Borrowing, in whole or in
part, upon
36
32
giving written or telecopied notice (or telephone notice promptly confirmed by
written or telecopied notice) to the Agent: (i) before 10:30 a.m., New York
City time, three Business Days prior to prepayment, in the case of Eurodollar
Loans; and (ii) before 10:00 a.m., New York City time, one Business Day prior
to prepayment in the case of ABR Loans; PROVIDED, HOWEVER, that each partial
prepayment shall be in an amount which is an integral multiple of $1,000,000
and not less than $5,000,000. The Borrower shall not have the right to prepay
any Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11, the Borrower shall pay or prepay so much of the
Standby Borrowings as shall be necessary in order that the aggregate principal
amount of the Competitive Loans and Standby Loans outstanding will not exceed
the Total Commitment after giving effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Section 2.15 but
otherwise without premium or penalty. All prepayments under this Section 2.12
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a) If
any Lender shall give notice to the Agent and the Borrower at any time to the
effect that Eurocurrency Reserve Requirements are, or are scheduled to become,
effective and that such Lender is or will be generally subject to such
Eurocurrency Reserve Requirements as a result of which such Lender will incur
additional costs, then such Lender shall, for each day from the later of the
date of such notice and the date on which such Eurocurrency Reserve
Requirements become effective, be entitled to additional interest on each
Eurodollar Loan made by it at a rate per annum determined for such day (rounded
upward to the nearest 100th of 1%) equal to the remainder obtained by
subtracting (i) the LIBO Rate for such Eurodollar Loan from (ii) the rate
obtained by dividing such LIBO Rate by a percentage equal to 100% minus the
then-applicable Eurocurrency Reserve Requirements. Such additional interest
will be payable in arrears to the Agent,
37
33
for the account of such Lender, on each Interest Payment Date relating to such
Eurodollar Loan and on any other date when interest is required to be paid
hereunder with respect to such Loan. Any Lender which gives a notice under this
paragraph (a) shall promptly withdraw such notice (by written notice of
withdrawal given to the Agent and the Borrower) in the event Eurocurrency
Reserve Requirements cease to apply to it or the circumstances giving rise to
such notice otherwise cease to exist.
(b) Notwithstanding any other provision herein, if after the date of
this Agreement any change in applicable law, rule or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall result in the imposition, modification or applicability of
any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of or credit extended by any Lender (except for any
such reserve requirement which is included in Eurocurrency Reserve Requirements
covered by paragraph (a) of this Section), or shall result in the imposition on
any Lender or the London interbank market of any other condition affecting this
Agreement, such Lender's Commitment or any Eurodollar Loan or Fixed Rate Loan
made by such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan
or Fixed Rate Loan or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender to be material, then such additional amount or
amounts as will compensate such Lender for such additional costs or reduction
will be paid by the Borrower to such Lender upon demand. Notwithstanding the
foregoing, no Lender shall be entitled to request compensation under this
paragraph with respect to any Competitive Loan if the change giving rise to
such request was applicable to such Lender at the time of submission of the
Competitive Bid pursuant to which such Competitive Loan was made.
(c) If any Lender shall have determined that the adoption after the
date hereof of any law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any Lender
(or any lending office
38
34
of such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) made or
promulgated after the date hereof by any such Governmental Authority has or
would have the effect of reducing the rate of return on such Lender's capital
or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender pursuant hereto to a level
below that which such Lender or such Lender's holding company could have
achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(d) A certificate of a Lender setting forth such amount or amounts as
shall be necessary to compensate such Lender as specified in paragraph (b) or
(c) above, as the case may be, and, in reasonable detail, the method by which
such amount or amounts shall have been determined, shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
each Lender the amount shown as due on any such certificate delivered by it
within 10 days after the receipt of the same.
(e) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written
notice to the Borrower and to the Agent, such Lender may:
39
35
(i) declare that Eurodollar Loans will not thereafter
be made by such Lender hereunder, whereupon such Lender
shall not submit a Competitive Bid in response to a request
for Eurodollar Competitive Loans and any request by the
Borrower for a Eurodollar Standby Borrowing shall, as to
such Lender only, be deemed a request for an ABR Loan unless
such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all
such Eurodollar Loans shall be automatically converted to
ABR Loans as of the effective date of such notice as
provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or
(ii) above, all payments and prepayments of principal which would
otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar
Loans of such Lender shall instead be applied to repay the ABR
Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the
Borrower by any Lender shall be effective as to each Eurodollar
Loan, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
SECTION 2.15. Indemnity. The Borrower shall indemnify
each Lender against any loss or expense which such Lender may
sustain or incur as a consequence of (a) any failure by the
Borrower to fulfill on the date of any borrowing hereunder the
applicable conditions set forth in Article IV, (b) any failure by
the Borrower to borrow or to convert or continue any Loan
hereunder after irrevocable notice of such borrowing, conversion
or continuation has been given pursuant to Section 2.03 or 2.04,
(c) any payment, prepayment or conversion of a Eurodollar Loan or
Fixed Rate Loan required by any other provision of this Agreement
or otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (d) any default in
payment or prepayment of the principal amount of any Loan or any
part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, whether at scheduled maturity,
by acceleration,
40
36
irrevocable notice of prepayment or otherwise), (e) the occurrence of
any Event of Default, or (f) any transfer or assignment pursuant to
Section 2.20(b), including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan or Fixed Rate Loan.
Such loss or expense shall exclude any loss of margin hereunder, but shall
include an amount equal to the excess, if any, as reasonably determined by such
Lender, of (i) its cost of obtaining the funds for the Loan being paid,
prepaid, converted or not borrowed (assumed to be the LIBO Rate or, in the case
of a Fixed Rate Loan, the fixed rate of interest applicable thereto) for the
period from the date of such payment, prepayment or failure to borrow to the
last day of the Interest Period for such Loan (or, in the case of a failure to
borrow, the Interest Period for such Loan which would have commenced on the
date of such failure) over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in reemploying
the funds so paid, prepaid or not borrowed for such period or Interest Period,
as the case may be. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this Section and,
in reasonable detail, the method by which such amount or amounts shall have
been determined, shall be delivered to the Borrower and shall be conclusive
absent manifest error.
SECTION 2.16. PRO RATA TREATMENT. Except as required under Section
2.14, each Standby Borrowing, each payment or prepayment of principal of any
Standby Borrowing, each payment of interest on the Standby Loans, each payment
of Facility Fees and Utilization Fees, each reduction of the Commitments and
each conversion or continuation of any Borrowing with a Standby Borrowing of
any Type, shall be allocated pro rata among the Lenders in accordance with
their respective Commitments (or, if such Commitments shall have expired or
been terminated, in accordance with the respective principal amounts of their
outstanding Standby Loans). Each payment of principal of any Competitive
Borrowing shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of
interest on any Competitive Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
amounts of accrued and
41
37
unpaid interest on their outstanding Competitive Loans comprising such
Borrowing. For purposes of determining the available Commitments of the Lenders
at any time, each outstanding Competitive Borrowing shall be deemed to have
utilized the Commitments of the Lenders (including those Lenders which shall
not have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Agent may, in its discretion, round each Lender's percentage of such Borrowing
to the next higher or lower whole Dollar amount.
SECTION 2.17. SHARING OF SETOFFS. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, including, but not limited to, a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Standby Loan or Loans as a result of which the unpaid principal portion of the
Standby Loans shall be proportionately less than the unpaid principal portion
of the Standby Loans of any other Lender, it shall be deemed simultaneously to
have purchased from such other Lender at face value, and shall promptly pay to
such other Lender the purchase price for, a participation in the Standby Loans
of such other Lender, so that the aggregate unpaid principal amount of the
Standby Loans and participations in the Standby Loans held by each Lender shall
be in the same proportion to the aggregate unpaid principal amount of all
Standby Loans then outstanding as the principal amount of its Standby Loans
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Standby Loans outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; PROVIDED,
HOWEVER, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Standby Loan deemed to have been so purchased may exercise any and all rights
of
42
38
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower to such Lender by reason thereof as fully as if such Lender had
made a Standby Loan directly to the Borrower in the amount of such
participation.
SECTION 2.18. PAYMENTS. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in Dollars to the Agent at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.19. TAXES. (a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.18, free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, EXCLUDING
(i) income taxes imposed on the net income of the Agent or any Lender (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")), (ii) franchise taxes imposed on the net income of the
Agent or any Lender (or Transferee) and (iii) all other taxes of general
applicability to the Agent or any Lender that are not payable solely as a
result of the transactions contemplated by this Agreement, in each case by the
jurisdiction under the laws of which the Agent or such Lender (or Transferee)
is organized or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities,
collectively or individually, "Taxes"). If the Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender
(or any Transferee) or the Agent, (i) the sum payable shall be increased by the
amount (an "additional amount") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.19) such Lender (or Transferee) or the Agent (as
43
39
the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document ("Other Taxes") .
(c) The Borrower will indemnify each Lender (or Transferee) and the
Agent for the full amount of Taxes and Other Taxes paid by such Lender (or
Transferee) or the Agent, as the case may be, and any liability (including
penalties, interest and expenses (including reasonable attorney's fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by a Lender, or the Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Lender (or Transferee) or the Agent, as the
case may be, makes written demand therefor. Each Lender (or Transferee) or the
Agent shall, as a prerequisite to such indemnity, make written demand for such
indemnification no later than 180 days after the earlier of (i) the date on
which such Lender (or Transferee) or the Agent makes such payment of Taxes or
Other Taxes and (ii) the date on which such relevant taxing authority or other
Governmental Authority makes written demand upon such Lender (or Transferee) or
the Agent for payment of such Taxes or Other Taxes.
(d) If a Lender (or Transferee) or the Agent shall become aware that
it is entitled to claim a refund from a Governmental Authority in respect of
Taxes or Other Taxes as to which it has been indemnified by the Borrower, or
with respect to which the Borrower has paid additional amounts, pursuant to
this Section 2.19, it shall promptly notify the Borrower of the availability of
such refund claim and shall, within 30 days after receipt of a request by the
Borrower, make a claim to such Governmental Authority for
44
40
such refund at the Borrower's expense. If a Lender (or Transferee) or
the Agent receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) in respect of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower has paid additional amounts pursuant to this Section
2.19, it shall within 30 days from the date of such receipt pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.19 with respect
to the Taxes or Other Taxes giving rise to such refund) , net of all
out-of-pocket expenses of such Lender (or Transferee) or the Agent and without
interest (other than interest paid by the relevant Governmental Authority with
respect to such refund); PROVIDED, HOWEVER, that the Borrower, upon the request
of such Lender (or Transferee) or the Agent, agrees to repay the amount paid
over to the Borrower (plus penalties, interest or other charges) to such Lender
(or Transferee) or the Agent in the event such Lender (or Transferee) or the
Agent is required to repay such refund to such Governmental Authority .
(e) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrower to the relevant Governmental Authority, the
Borrower will deliver to the Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(g) Each Lender (or Transferee) that is organized under the laws of
a jurisdiction other than the United States, any State thereof or the District
of Columbia (a "Non-U.S. Bank") shall deliver to the Borrower and the Agent two
copies of either United States Internal Revenue Service Form 1001 or Form 4224,
or, in the case of a Non-U.S. Bank claiming exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Bank delivers a Form W-8,
a certificate representing that such Non-U.S. Bank is not a bank for
45
41
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h) (3) (B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864 (d) (4) of the Code)), properly completed and duly executed by such
Non-U.S. Bank claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower under this Agreement and
the other Loan Documents. Such forms shall be delivered by each Non-U.S. Bank
on or before the date it becomes a party to this Agreement (or, in the case of
a Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Bank changes its applicable lending office by designating
a different lending office (a "New Lending Office") . In addition, each
Non-U.S. Bank shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Bank.
Notwithstanding any other provision of this Section 2.19(g), a Non-U.S. Bank
shall not be required to deliver any form pursuant to this Section 2.19(g) that
such Non-U.S. Bank is not legally able to deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S.
Bank, or to pay any additional amounts to any Non-U.S. Bank, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above to
the extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Bank became a
party to this Agreement (or, in the case of a Transferee that is a
participation holder, on the date such participation holder became a Transferee
hereunder) or, with respect to payments to a New Lending Office, the date such
Non-U.S. Bank designated such New Lending Office with respect to a Loan;
PROVIDED, HOWEVER, that this clause (i) shall not apply to any Transferee or
New Lending Office that becomes a Transferee or New Lending Office as a result
of an assignment, participation, transfer or designation made at the request of
the Borrower; and PROVIDED FURTHER, HOWEVER, that this clause (i) shall not
apply to the extent the indemnity payment or additional amounts any Transferee,
or Lender (or Transferee) through a New Lending Office, would be entitled to
receive (without regard to this clause (i)) do not exceed the indemnity payment
or additional amounts that the person making the assignment, participation or
transfer to such Transferee, or Lender (or
46
42
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Bank to comply with the
provisions of paragraph (g) above.
(i) Nothing contained in this Section 2.19 shall require any Lender (or
Transferee) or the Agent to make available any of its tax returns (or any other
information that it deems to be confidential or proprietary) .
SECTION 2.20. DUTY TO MITIGATE; ASSIGNMENT OF COMMITMENTS UNDER CERTAIN
CIRCUMSTANCES. (a) Any Lender (or Transferee) claiming any indemnity payment or
additional amounts payable pursuant to Section 2.13 or Section 2.19 shall use
reasonable efforts (consistent with legal and regulatory restrictions) to file
any certificate or document reasonably requested in writing by the Borrower or
to change the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such indemnity payment or additional amounts that may thereafter accrue or
avoid the circumstances giving rise to such exercise and would not, in the sole
reasonable determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice or
certificate pursuant to Section 2.13 (other than pursuant to paragraph (a) of
Section 2.13) or 2.14, or the Borrower shall be required to make additional
payments to any Lender under Section 2.19, the Borrower shall have the right,
at its own expense, upon notice to such Lender and the Agent, to require such
Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 9.04) all its interests, rights and
obligations under this Agreement to another financial institution approved by
the Agent (which approval shall not be unreasonably withheld) which shall
assume such obligations; PROVIDED that (i) no such assignment shall conflict
with any law, rule or regulation or order of any Governmental Authority and
(ii) the assignee shall pay to the affected Lender in immediately available
funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account or owed to it hereunder.
47
43
SECTION 2.21. EXTENSION OF MATURITY DATE. (a) The Company may, by
notice to the Agent (which shall promptly deliver a copy to each of the
Lenders) not less than 45 days and not more than 60 days prior to the first
anniversary of the Closing Date or with respect to such second additional
extension, the second anniversary of the Closing Date (in each case, the
"Anniversary Date") , request that the Lenders extend the Maturity Date for an
additional year from the Maturity Date then in effect hereunder (the "Existing
Maturity Date"); PROVIDED that the Borrower may request only two extensions
pursuant to this Section 2.21. Each Lender, acting in its sole discretion,
shall, by notice to the Borrower and the Agent given not less than 20 days and
not more than 30 days prior to the Anniversary Date (the "Consent Date"),
advise the Borrower whether or not such Lender agrees to such extension;
PROVIDED that each Lender that determines not to extend the Maturity Date (a
"Nonextending Lender") shall notify the Agent (which shall notify the Borrower)
of such fact promptly after such determination (but in any event no later than
the Consent Date) and any Lender that does not advise the Borrower on or before
the Consent Date shall be deemed to be a Nonextending Lender. The election of
any Lender to agree to such extension shall not obligate any other Lender to
agree.
(b) The Borrower shall have the right on or before the Anniversary
Date to replace any Non-extending Lender with, and otherwise add to this
Agreement, one or more other banks (which may include any Lender, each prior to
the Anniversary Date an "Additional Commitment Lender") with the approval of
the Agent (which approval shall not be unreasonably withheld), each of which
Additional Commitment Lenders shall have entered into an agreement in form and
substance satisfactory to the Borrower and the Agent pursuant to which such
Additional Commitment Lender shall, effective as of the Anniversary Date,
undertake a Commitment (if any such Additional Commitment Lender is a Lender,
its Commitment shall be in addition to such Lender's Commitment hereunder on
such date) .
(c) If (and only if) Lenders holding Commitments that, together with
the additional Commitments of the Additional Commitment Lenders that will
become effective on the Anniversary Date, aggregate at least 66-2/3% of the
aggregate amount of the Commitments (not including the additional Commitments
of the Additional Commitment Lenders) on the Consent Date shall have agreed to
extend the Existing Maturity Date, then, effective as of the Anniversary Date,
48
44
the Existing Maturity Date shall be extended to the first anniversary
of the Existing Maturity Date (provided, if such date is not a Business Day,
then such Maturity Date as so extended shall be the next preceding Business
Day) and each Additional Commitment Lender shall thereupon become a
"Lender" for all purposes of this Agreement.
Notwithstanding the foregoing, the extension of the Existing
Maturity Date shall not be effective with respect to any Lender unless:
(i) no Default shall have occurred and be continuing on each of the
date of the notice requesting such extension, on the Consent Date or on
the Existing Maturity Date;
(ii) each of the representations and warranties of the Borrower in
Article III hereof shall be true and correct in all material respects on
and as of each of the date of the notice requesting such extension, the
Consent Date and the Existing Maturity Date with the same force and effect
as if made on and as of each date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as
of such specific date); and
(iii) each Non-extending Lender shall have been paid in full by the
Borrower all amounts owing to such Lender hereunder on or before the
Existing Maturity Date.
Even if the Existing Maturity Date is extended as aforesaid, the
Commitment of each Non-extending Lender shall terminate on the Existing
Maturity Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. FINANCIAL CONDITION. Both (i) the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at December
31, 1994, and the related consolidated statements of income and cash flows and
changes in shareholders' equity of the Borrower and its
49
45
consolidated Subsidiaries for the fiscal year ended on such date,
reported on by Ernst & Young and (ii) the consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at September 30, 1995, and the
related consolidated statements of income and cash flows and changes in
shareholders' equity of the Borrower and its consolidated Subsidiaries for the
quarter ended on such date are complete and correct in all material respects
and present fairly the consolidated financial condition of the Borrower and the
consolidated results of the operations and changes in financial condition of
the Borrower and its consolidated Subsidiaries for the fiscal year then ended.
Such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants and as disclosed
therein) .
SECTION 3.02. NO CHANGE. Since December 31, 1994, there has
occurred no Material Adverse Effect.
SECTION 3.03. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Borrower
and each corporate Subsidiary which is not a Bank Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation. Each Bank Subsidiary which is a national bank is duly organized,
validly existing and in good standing under the National Bank Act, and each
Bank Subsidiary (other than any Edge Act corporation) which is not a national
bank is a corporation duly organized, validly existing, chartered as a state
bank or trust company and in good standing under the laws of the state in which
it is chartered. The Borrower and each Subsidiary (a) has all requisite power
and authority to own and operate its property and assets and to conduct the
business in which it is currently engaged, (b) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to comply
therewith could not, in the aggregate, result in a Material Adverse Effect, and
(c) is in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, result in a Material
Adverse Effect. The Borrower is a bank holding company duly registered with the
Board under the Bank Holding Company Act of 1956, as amended.
50
46
SECTION 3.04. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
The Borrower has the corporate power and authority to execute, deliver and
perform its obligations under this Agreement and to borrow hereunder and has
taken all necessary corporate action to authorize the execution, delivery and
performance by the Borrower of this Agreement and the borrowings hereunder. No
consent or authorization of, filing with, or other act by or in respect of any
Governmental Authority, is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of
this Agreement. This Agreement has been duly executed and delivered on behalf
of the Borrower and constitutes a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equity principles (whether
enforcement is sought by proceedings in equity or at law) .
SECTION 3.05. NO LEGAL BAR. The execution, delivery and performance of
this Agreement, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or any Contractual Obligation of the
Borrower or any Subsidiary, and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any Requirement of Law or Contractual Obligation.
SECTION 3.06. NO MATERIAL LITIGATION. Except as set forth in Schedule
3.06, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or to the knowledge of the Borrower
threatened against the Borrower or any Subsidiary or against any of its or
their respective properties (a) with respect to the Loan Documents or any of
the transactions contemplated thereby, or (b) which could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.07. OWNERSHIP OF PROPERTY; LIENS. The Borrower and each
Subsidiary has good record and marketable title in fee simple to or valid
leasehold interests in substantially all its real property, and good title to
substantially all its other property, and none of such property is subject to
any Lien which is prohibited by Section 6.01.
51
47
SECTION 3.08. TAXES. Each of the Borrower and the Subsidiaries has
filed or caused to be filed all tax returns which to the knowledge of the
Borrower are required to be filed, and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than those the amount or validity
of which is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided
on the books of the Borrower or the Subsidiaries, as the case may be); and no
tax liens have been filed and, to the knowledge of the Borrower, no claims are
being asserted with respect to any such taxes, fees or other charges.
SECTION 3.09. FEDERAL RESERVE REGULATIONS. (a) Neither the Borrower
nor any of the Subsidiaries is engaged principally in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board, including Regulation G, U or X.
(c) After giving effect to the application of the proceeds of each
Loan, Margin Stock will not account for more than 25% of the value (i) of the
assets of the Borrower subject to Section 6.01 or (ii) of the assets subject to
the provisions of Section 6.02.
SECTION 3.10. EMPLOYEE BENEFIT PLANS. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No Reportable Event has occurred in respect of any
Plan of the Borrower or any ERISA Affiliate. The present value of all benefit
liabilities under each Plan (based on those assumptions used to fund such Plan)
did not, as of the last annual valuation date applicable thereto, exceed by
more than $5,000,000 the value of the assets of such Plan, and the present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of the last annual
valuation dates applicable thereto, exceed by
52
48
more than $5,000,000 the value of the assets of all such underfunded Plans.
Neither the Borrower nor any ERISA Affiliate is required to contribute to any
Multiemployer Plan or has withdrawn from any Multiemployer Plan where such
withdrawal has resulted or would result in any Withdrawal Liability that has
not been fully paid.
SECTION 3.11. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. The Borrower is not (a) an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935 as amended.
SECTION 3.12. USE OF PROCEEDS. The Borrower will use the proceeds
of the Loans only for the purposes specified in the preamble to this Agreement.
SECTION 3.13. NO MATERIAL MISSTATEMENTS. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto contained,
contains or will contain any material misstatement of fact or omitted, omits or
will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were, are or will be made,
not misleading.
SECTION 3.14. ENVIRONMENTAL AND SAFETY MATTERS. The Borrower is aware
of no events, conditions or circumstances involving environmental pollution or
contamination or employee health or safety that could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.15. CAPITAL COMMITMENTS. The Borrower and the
Subsidiaries are not a party to any Capital Commitment.
53
49
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans hereunder are subject to
the satisfaction of the following conditions:
SECTION 4.01. ALL BORROWINGS. On the date of each Borrowing:
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article III
hereof (except the representations set forth in Section 3.02) shall be
true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate
to an earlier date.
(c) The Borrower shall be in compliance in all material respects with
all the terms and provisions set forth herein and in each other Loan
Document on its part to be observed or performed, and at the time of and
immediately after such Borrowing no Event of Default or Default shall have
occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. CLOSING DATE. On the Closing Date:
(a) The Agent shall have received a favorable written opinion of
Xxxxx X. Xxxxxxx, Esq., General Counsel and Secretary of the Borrower,
substantially in the form of Exhibit D hereto, dated the Closing Date and
addressed to the Lenders and satisfactory to the Lenders and to Cravath,
Swaine & Xxxxx, counsel for the Agent, and the Borrower hereby instructs
such counsel to deliver such opinion to the Agent.
54
50
(b) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Lenders and to Cravath, Swaine & Xxxxx,
counsel for the Agent.
(c) The Agent shall have received (i) a copy of the certificate or
articles of incorporation, including all amendments thereto, of the Borrower,
certified as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of the Borrower as of a
recent date, from such Secretary of State; (ii) a certificate of the Secretary
or Assistant Secretary of the Borrower dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of the
Borrower as in effect on the Closing Date and at all times since a date prior
to the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors of the Borrower authorizing the execution, delivery and performance
of the Loan Documents and the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect,
(C) that the certificate or articles of incorporation of the Borrower have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and (D) as
to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
the Borrower; (iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Lenders or Cravath, Swaine & Xxxxx, counsel for the Agent, may reasonably
request.
(d) The Agent shall have received a certificate, dated the Closing Date
and signed by a Financial Officer of the Borrower, confirming compliance with
the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The Agent shall have received all Fees and other amounts due and
payable on or prior to the Closing Date.
55
51
(f) The Agent shall have received a certificate of a Financial
Officer of the Borrower certifying as to (i) the termination of the
$300,000,000 Credit Agreement dated as of June 30, 1994, among the
Borrower and the banks party thereto, and (ii) the payment in full of all
obligations of the Borrower outstanding under such agreement.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees or any other expenses or amounts payable under any Loan Document
shall be unpaid, unless the Required Lenders shall otherwise consent in
writing, the Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. FINANCIAL STATEMENTS. In the case of the Borrower,
furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, the consolidated balance sheet of
the Borrower and its consolidated subsidiaries as at the end of such year
and the related consolidated statements of income and cash flows and
changes in shareholders' equity of the Borrower and its consolidated
subsidiaries for such year, audited and reported on by independent
certified public accountants of nationally recognized standing and in a
form reasonably acceptable to the Required Lenders;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, unaudited consolidated balance sheet of the Borrower
and its consolidated subsidiaries as at the end of each such quarter and
the related unaudited consolidated statements of income and cash flows and
changes in shareholders' equity of the Borrower and its consolidated
subsidiaries for such quarter and the portion of the fiscal year through
such date, certified by a Financial Officer as presenting fairly the
financial positions and results of operations of the
56
52
Borrower and its consolidated Subsidiaries and as having been prepared in
accordance with GAAP (subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or officer, as the case may be, and disclosed
therein);
(c) concurrently with the delivery of the financial statements referred to
in clauses (a) and (b) above, a certificate of a Responsible Officer of the
Borrower (i) stating that, to the best of his knowledge, the Borrower during
such period has kept, observed, performed and fulfilled each and every covenant
and condition contained in the Loan Documents and that he has obtained no
knowledge of any Default or Event of Default hereunder, except as specifically
indicated, and (ii) showing in detail the calculations supporting such
statement in respect of Sections 6.03, 6.04, and 6.05;
(d) within five days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders generally,
and within five days after the same are filed, copies of all financial
statements and periodic reports which the Borrower may make to, or file with,
the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(e) as soon as is reasonably practicable after the same becomes available,
the "Parent Company Only Financial Statement for Bank Holding Companies"
(report No. FR Y-9LP or any successor form of the Federal Reserve System) of
the Borrower and the "Consolidated Financial Statements for Bank Holding
Companies" (report no. FR Y-9C or any successor form of the Federal Reserve
System) of the Borrower that the Borrower shall have filed with the Board;
(f) promptly upon the request of the Agent or any Lender, copies of all
call reports of each Significant Subsidiary which is a Bank Subsidiary; and
57
53
(g) promptly, such additional financial and other information as the
Agent or any Lender may from time to time reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and
reasonably permit the Lenders (who shall endeavor to coordinate
the exercise of their rights under this Section in order to minimize the burden
on the Borrower), acting through representatives designated by them, to visit
and inspect (upon 24 hours notice to the Borrower) any of its properties and
examine and make abstracts from any of its books and records, at any reasonable
time during normal business hours and as often as may reasonably be desired,
and to discuss the business, operations, properties and financial and other
condition of the Borrower and any Subsidiary with officers of the Borrower and
any Subsidiary and with the Borrower's independent public accountants.
SECTION 5.03. NOTICES. Promptly give notice to the Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding against the Borrower or any Subsidiary whether
at law or in equity or by or before any Governmental
Authority, which is reasonably likely to result in a
Material Adverse Effect; and
(c) any Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a
statement of the chief executive officer or chief financial
officer or treasurer of the Borrower setting forth details of
the occurrence referred to therein and stating what action the
Borrower proposes take with respect thereto.
SECTION 5.04. CONTINUANCE OF BUSINESS. With respect to
the Borrower, at all times be a bank holding company duly
registered with the Board under the Bank Holding Company Act of
1956, as amended, and continue (and will cause each Subsidiary
to continue) to (a) engage in
58
54
business of the same general type as now conducted by it or any other
business permitted under, and in accordance with, the Bank Holding
Company Act of 1956, as amended, and any regulation of, or ruling or
order by, the Board issued thereunder and (b) unless otherwise
permitted by this Agreement, maintain its corporate existence and keep in full
force and effect all licenses and permits necessary to the proper conduct of
its business.
SECTION 5.05. COMPLIANCE WITH REGULATORY STANDARDS. At all times
substantially comply with all applicable regulatory guidelines, policy
statements, regulations or other Requirements of Law and cause each Bank
Subsidiary (other than any Edge Act corporation) to maintain membership with
the Federal Deposit Insurance Corporation.
SECTION 5.06. PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its taxes and other material obligations of whatever nature, except,
without prejudice to the effectiveness of paragraph (f) of Article VII hereof,
for any taxes or other obligations when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or any Subsidiary, as the case may be.
SECTION 5.07. MAINTENANCE OF PROPERTY, INSURANCE. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability and business interruption insurance) as
are usually insured against in the same or a similar business.
SECTION 5.08. EMPLOYEE BENEFITS. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Agent (i) as soon as possible after, and in any event within 30 days after any
Responsible Officer of the Borrower or any ERISA Affiliate knows or has reason
to know that, any Reportable Event has occurred that alone or together with any
other Reportable Event could reasonably be expected to result in liability of
the Borrower to the PBGC in an aggregate amount exceeding $5,000,000, a
statement of a Financial Officer setting forth details as to such Reportable
Event and the action that the
59
55
Borrower proposes to take with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to the PBGC, (ii) promptly after
receipt thereof, a copy of any notice that the Borrower or any ERISA Affiliate
may receive from the PBGC relating to the intention of the PBGC to terminate
any Plan or Plans (other than a Plan maintained by an ERISA Affiliate that is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) or to appoint a trustee to administer any such Plan and (iii)
within 10 days after the due date for filing with the PBGC pursuant to Section
412(n) of the Code a notice of failure to make a required installment or other
payment with respect to a Plan, a statement of a Financial Officer setting
forth details as to such failure and the action that the Borrower proposes to
take with respect thereto, together with a copy of any such notice given to the
PBGC.
SECTION 5.09. CAPITAL REQUIREMENTS. IN the case of the Borrower and
each of the Bank Subsidiaries to, (a) maintain (at all times 120 days or more
after the date such Person became a Bank Subsidiary) such amount of capital as
may be prescribed from time to time by each Bank Regulatory Authority with
jurisdiction over the Borrower or such Bank Subsidiary, whether by regulation,
agreement or order, and (b) ensure that each Bank Subsidiary shall be
"adequately capitalized" (within the meaning of 12 U.S.C. 18310, as amended,
reenacted or redesignated from time to time) at all times 120 days or more
after the date such Person became a Bank Subsidiary.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the Agent
that, so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Fees or any other expenses or amounts payable under
any Loan Document shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, and will not cause or permit any of
the Subsidiaries to:
SECTION 6.01. LIMITATION ON LIENS. Create, incur, assume or suffer
to exist any Lien upon any of the stock of any Significant Subsidiary.
60
56
SECTION 6.02. MERGERS, CONSOLIDATIONS AND TRANSFERS OF ASSETS. Merge
or consolidate with any other person, or sell, lease or otherwise transfer, in
one transaction or a series of related transactions, assets representing a
substantial part of the consolidated assets of the Borrower or any capital
stock of any Subsidiary; PROVIDED, HOWEVER, that this Section shall not
prohibit (a) any Subsidiary from merging, liquidating into or transferring
assets to the Borrower; (b) any Subsidiary from merging or consolidating with
or transferring assets to another Subsidiary; (c) the Borrower or any
Subsidiary from transferring (including by way of any merger or consolidation)
any assets or capital stock of any Subsidiary which is not a Restricted
Subsidiary, so long as the assets, capital stock and Subsidiaries which are the
subject of such transfers during any period of 12 consecutive months would not,
on a combined basis, have constituted a Significant Subsidiary (it being agreed
that any capital stock of a Subsidiary will be deemed for this purpose to
represent a percentage of the revenues and earnings of such Subsidiary which
corresponds to the percentage such capital stock being so transferred
represents of the Subsidiary's total capital stock) ; or (d) the Borrower or
any Subsidiary from transferring any assets or capital stock the divestiture of
which is required by any Governmental Authority in connection with any
acquisition.
SECTION 6.03. TIER 1 CAPITAL. Permit at any time Tier 1 Capital
divided by Risk Adjusted Assets to be less than 6%.
SECTION 6.04. NONPERFORMING ASSETS. Permit AT any time the ratio of
(a) the sum of Consolidated Net Worth and Loan Loss Reserves to (b)
Nonperforming Assets to be less than 3 to 1.
SECTION 6.05. DOUBLE LEVERAGE. Permit at any time the ratio of (a)
the sum of the Equity Investment in the Subsidiaries and the Intangibles of the
Borrower to (b) Consolidated Net Worth to be more than 1.30 to 1.
SECTION 6.06. USE OF PROCEEDS. Use proceeds of the Loans to purchase
shares of capital stock of any publicly traded company (other than the
Borrower) if, (a) after giving effect to such purchase, the Borrower and its
Subsidiaries would own shares (other than in a fiduciary capacity) representing
more than 5% of the aggregate ordinary voting power of the capital stock of
such company
61
57
(unless such purchase shall have been approved by the board of
directors of such company) or (b) such purchase is part of an
attempted hostile acquisition.
SECTION 6.07. REGULATION U. In the event the proceeds
of any Loans are used to purchase or carry Margin Stock within
the meaning of Regulation U, permit at any time more than 25% of
the value (determined in accordance with Regulation U) of the
assets which are subject to Sections 6.01 and 6.02 to constitute
Margin Stock.
SECTION 6.08. CAPITAL COMMITMENTS. Enter into, assume
or suffer to exist with respect to the Borrower or any of the
Subsidiaries, any Capital Commitment (other than a Capital
Commitment with respect to a Person that became a Bank
Subsidiary after the date of this Agreement, which Capital
Commitment shall be terminated not later than the first
anniversary of the date on which such Person became a Bank
Subsidiary).
ARTICLE VII
EVENTS OF DEFAULT
Upon the occurrence of any of the following events
("Events of Default") :
(a) default shall be made in the payment of any
principal of any Loan when and as the same shall become due
and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or
otherwise; or
(b) default shall be made in the payment of any
interest on any Loan or any Fee or any other amount (other
than an amount referred to in paragraph (a) above) due
hereunder, when and as the same shall become due and
payable, and such default shall continue unremedied for a
period of five days; or
(c) any representation or warranty made or deemed made
by the Borrower herein or which is contained in any
certificate, document or financial or other statement
furnished at any time under or in connection with this
Agreement shall prove to have been false or misleading in
any material respect on or as of the date made, deemed made
or furnished; or
62
58
(d) the Borrower shall default in the observance or performance of any
covenant, condition or agreement contained in Section 5.03, Section 5.09, or
Article VI (other than Sections 6.03, 6.04 and 6.05); or
(e) the Borrower shall default in the observance or performance of any
other covenant, condition or agreement contained in any Loan Document (other
than those specified in (a), (b) or (d) above), and such default shall continue
unremedied for a period of 30 days after such notice by the Agent to the
Borrower; or
(f) the Borrower or any Subsidiary shall (i) default in any payment of any
amount of principal of or interest on any Indebtedness in a principal amount,
which in the aggregate, is in excess of $25,000,000, beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (ii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness (in excess
of $25 million in the aggregate) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders or beneficiary or beneficiaries of
such Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity; or
(g) (i) the Borrower or any Subsidiary shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, liquidation,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a conservator, receiver, trustee,
custodian or other similar official for it or for all or any substantial part
of its assets, or the Borrower or any Subsidiary shall make a general
assignment for the benefit of its
63
59
creditors; or (ii) there shall be commenced against the Borrower or any
Subsidiary any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or in
any such adjudication or appointment or (B) remains undismissed or undischarged
for a period of 90 days; or (iii) there shall be commenced against the Borrower
or any Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such result which shall not have been vacated, discharged or stayed within
90 days from the entry therepf; or (iv) the Borrower or any Subsidiary shall
take any action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii)
above; or (v) the Borrower or any Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(h) (i) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section 412(n) (1)
of the Code) , shall have occurred with respect to any Plan or Plans that
reasonably could be expected to result in liability of the Borrower to the PBGC
or to a Plan in an aggregate amount exceeding $5,000,000 and, within 30 days
after the reporting of any such Reportable Event to the Agent or after the
receipt by the Agent of a statement required pursuant to Section 5.08(b) (iii)
hereof, the Agent shall have notified the Borrower in writing that (A) the
Required Lenders have made a determination that, on the basis of such
Reportable Event or Reportable Events or the failure to make a required
payment, there are reasonable grounds for the termination of such Plan or Plans
by the PBGC, the appointment by the appropriate United States district court of
a trustee to administer such Plan or Plans or the imposition of a lien in favor
of a Plan and (B) as a result thereof an Event of Default exists hereunder; or
(ii) a trustee shall be appointed by a United States district court to
administer any such Plan or Plans; or (iii) the PBGC shall institute
proceedings (including giving notice of intent thereof) to terminate any such
Plan or Plans; or
64
60
(i) one or more judgments or decrees shall be entered against the
Borrower or any Subsidiary involving in the aggregate a liability (not paid or
fully covered by insurance) of $25,000,000 or more and the same shall remain
undischarged for a period of 30 days during which execution shall not be
effectively stayed or any action shall be legally taken by a judgment creditor
to levy upon assets or properties of the Borrower or any Significant Subsidiary
to enforce any such judgment; or
(j) any Bank Subsidiary which is a Significant Subsidiary shall cease
accepting deposits or making commercial loans on the instruction of any
Federal, state or other regulatory body with authority to give such instruction
other than pursuant to an instruction applicable to national banks generally or
a substantial portion thereof or banks located in a particular state or
substantial portion thereof; or
(k) the Comptroller of the Currency shall, pursuant to 12 U.S.C.
Section 55 or any successor statute, notify any bank Subsidiary which is a
Significant Subsidiary and a national bank, or any other Federal or state
regulatory authority having jurisdiction to regulate any other bank Subsidiary
which is a Significant Subsidiary shall, pursuant to any comparable Federal or
state statute, notify such other bank Subsidiary, that such bank Subsidiary's
capital stock has become impaired; or any bank Subsidiary which is a
Significant Subsidiary shall cease to be an insured bank under the Federal
Deposit Insurance Act, as amended, and the rules and regulations promulgated
thereunder; or
(l) any Insured Subsidiary as of the date hereof shall be required
(whether or not the time allowed by the appropriate Federal banking agency for
the submission of such plan has been established or elapsed) to submit a
capital restoration plan of the type referred to in 12 U.S.C. Section 18310(b)
(2) (C) , as amended, reenacted or redesignated from time to time; or
(m) the Borrower shall Guarantee in writing (voluntarily or otherwise)
the capital of any Insured Subsidiary as part of or in connection with any
agreement or arrangement with any Federal banking
65
61
agency other than in connection with obtaining regulatory approval for the
acquisition of such Insured Subsidiary.
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (g) above with respect to the
Borrower, the Commitments shall immediately and automatically terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under any Loan Document shall immediately become due and payable, and (b) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the Agent
may, or upon the request of the Required Lenders, the Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Agent may, or upon the request of the Required Lenders,
the Agent shall, declare the Loans hereunder (with accrued interest thereon)
and all other amounts owing under the Loan Documents to be due and payable
forthwith, whereupon the same shall immediately become due and payable, in the
case of each of (a) and (b), without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived notwithstanding
anything contained herein or in any other Loan Document.
ARTICLE VIII
THE AGENT
In order to expedite the transactions contemplated by this Agreement,
Chemical Bank is hereby appointed to act as Agent on behalf of the Lenders.
Each of the Lenders hereby irrevocably authorizes the Agent to take such
actions on behalf of such Lender or holder and to exercise such powers as are
specifically delegated to the Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental thereto. The
Agent is hereby expressly authorized by the Lenders, without hereby limiting
any implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Borrower of any Event of Default
66
62
of which the Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices,
financial statements and other materials delivered by the Borrower pursuant to
this Agreement as received by the Agent.
Neither the Agent nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his or her own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by
the Borrower of any of the terms, conditions, covenants or agreements contained
in this Agreement. The Agent shall not be responsible to the Lenders for the
due execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Agent may deem and treat the
Lender which makes any Loan as the holder of the indebtedness resulting
therefrom for all purposes hereof until it shall have received notice from such
Lender, given as provided herein, of the transfer thereof. The Agent shall in
all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders and, except
as otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders. The Agent shall,
in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by
any other Lender or the Borrower of any of their respective obligations
hereunder or in connection herewith. The Agent may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon
the advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good
faith by it in accordance with the advice of such counsel.
67
63
The Lenders hereby acknowledge that the Agent shall be under no duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so
by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Agent acceptable to the Borrower. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500,000,000 or an Affiliate
of any such bank. Upon the acceptance of any appointment as Agent hereunder by
a successor bank, such successor shall succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After the Agent's resignation, the provisions of this Article shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Agent.
With respect to the Loans made by it hereunder, the Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not the Agent, and
the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Agent.
Each Lender agrees (i) to reimburse the Agent, on demand, in the
amount of its pro rata share (based on its Commitment hereunder or, if the
Commitments shall have been terminated, the amount of its outstanding Loans) of
any expenses incurred for the benefit of the Lenders by the Agent, including
counsel fees and compensation of agents and employees paid for services
rendered on behalf of the Lenders, which shall not have been reimbursed by the
Borrower and (ii) to indemnify and hold harmless the Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and
68
64
against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against it in its capacity as the Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by it under this Agreement to
the extent the same shall not have been reimbursed by the Borrower; PROVIDED
that no Lender shall be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of the Agent or any of its directors, officers, employees or
agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 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 from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy as follows:
(a) if to the Borrower, to it at National City
Corporation, National City Center, 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, XX 00000-0000, Attention of Xx. Xxxxxx X.
Xxxxxxxxxx (Telecopy No. 216-575-2983)
(b) if to the Agent, to it at 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxxxxx
X. Xxxxxx (Telecopy No. 212-270-0412); and
69
65
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy, or on the date five
Business Days after dispatch by certified or registered mail if mailed, in each
case delivered, sent or mailed (properly addressed) to such party as provided
in this Section 9.01 or in accordance with the latest unrevoked direction from
such party given in accordance with this Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the
Lenders of the Loans, regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not been terminated.
SECTION 9.03. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have received copies hereof which, when taken together, bear the
signatures of each Lender, and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior consent of
all the Lenders.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, the Agent or the Lenders that
are contained in this Agreement
70
66
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); PROVIDED,
HOWEVER, that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the Borrower and the Agent must give their prior written
consent (except when there exists a Default or an Event of Default) to such
assignment (which consent shall not be unreasonably withheld), (ii) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Lender's rights and obligations under this Agreement, (iii) the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agent) shall not be less than
$5,000,000 and the amount of the Commitment of such Lender remaining after such
assignment shall not be less than $5,000,000 or shall be zero, (iv) the parties
to each such assignment shall execute and deliver to the Agent an Assignment
and Acceptance, and a processing and recordation fee of $2,500 and (v) the
assignee, if it shall not be a Lender, shall deliver to the Agent an
Administrative Questionnaire. Upon acceptance by the Agent of any such
Assignment and Acceptance, from and after the effective date specified in such
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof, (A) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto (but shall
continue to be entitled to the benefits of Sections 2.13, 2.15, 2.19 and 9.05,
as well as to any Fees accrued for its account hereunder and not yet paid)) .
Notwithstanding the foregoing, any Lender assigning its rights and obligations
under this Agreement may retain any Competitive Loans made by it outstanding at
such time, and in such case shall retain its rights hereunder in respect of
71
67
any Loans so retained until such Loans have been repaid in full in accordance
with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrower or the performance or
observance by the Borrower of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Agent shall maintain at one of its offices in the City of New
York a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and the principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time
72
68
to time (the "Register") . The entries in the Register shall be conclusive in
the absence of manifest error and the Borrower, the Agent and the Lenders may
treat each person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by each party hereto, at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder) , the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower to
such assignment, the Agent shall (i) accept such Assignment and Acceptance and
(ii) record the information contained therein in the Register.
(f) Each Lender may sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) each
participating bank or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.13, 2.15 and 2.19 to the same
extent as if it was the selling Lender (and limited to the amount that could
have been claimed by the selling Lender had it continued to hold the interest
of such participating bank or other entity) , except that all claims made
pursuant to such Sections shall be made through such selling Lender, and (iv)
the Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such selling Lender in connection with such Lender's rights and
obligations under this Agreement, and the Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans and to approve,
without the consent of or consultation with any participant, any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers with respect to fees payable hereunder or
an increase in the amount of principal of or a decrease in the rate at which
interest is payable on the Loans, or an extension of the
73
69
dates fixed for payments of principal of or interest on the Loans).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrower furnished to such Lender; PROVIDED that,
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to preserve the
confidentiality of any such information.
(h) The Borrower shall not assign or delegate any rights and duties
hereunder without the prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank; PROVIDED that no such pledge
shall release any Lender from its obligations hereunder or substitute any such
Federal Reserve Bank for such Lender as a party hereto. In order to facilitate
such an assignment to a Federal Reserve Bank, the Borrower shall, at the
request of the assigning Lender, duly execute and deliver to the assigning
Lender a promissory note or notes evidencing the Loans made to the Borrower by
the assigning Lender hereunder.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Agent in connection with the
preparation, negotiation, execution and delivery of this Agreement or any
amendments, modifications or waivers of the provisions hereof, or incurred by
the Agent or any Lender in connection with the enforcement or protection of
their rights in connection with this Agreement or any other Loan Document or in
connection with the Loans made hereunder, including the reasonable fees and
disbursements of counsel for the Agent or, in the case of enforcement or
protection, any Lender (including, without limitation, the allocated costs of
in-house counsel).
(b) The Borrower agrees to indemnify the Agent, each Lender, each of
their Affiliates and the directors, officers, employees and agents of the
foregoing (each such person being called an "Indemnitee") against, and to hold
each Indemnitee harmless from, any and all losses, claims,
74
70
damages, liabilities and related expenses, including reasonable counsel fees
and expenses (including, without limitation, the allocated costs of in-house
counsel) , incurred by or asserted against any Indemnitee arising out
of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto or thereto of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby, (ii) the use of the proceeds of the Loans or (iii) any
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; PROVIDED that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are finally determined
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of such Indemnitee.
(c) The provisions of this Section and of Sections 2.13(d) and 2.15
shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any
investigation made by or on behalf of the Agent or any Lender. All amounts due
under this Section shall be payable on written demand therefor.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. WAIVERS; AMENDMENT. (a) No failure or delay of the
Agent or any Lender in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agent and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in
75
71
the specific instance and for the purpose for which given. No notice or demand
on the Borrower or any Subsidiary in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; PROVIDED, HOWEVER, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior
written consent of each Lender affected thereby, (ii) change the Commitment or
decrease the Facility Fee or Utilization Fee of any Lender without the prior
written consent of such Lender, or (iii) amend or modify the provisions of
Section 2.16 or Section 9.04(h), the provisions of this Section or the
definition of "Required Lenders", in each case without the prior written
consent of each Lender; PROVIDED FURTHER, HOWEVER, that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Agent hereunder
without the prior written consent of the Agent. Each Lender shall be bound by
any waiver, amendment or modification authorized by this Section and any
consent by any Lender pursuant to this Section shall bind any assignee of its
rights and interests hereunder.
SECTION 9.08. ENTIRE AGREEMENT. This Agreement and the letter
agreement referred to in Section 2.06(c) constitute the entire contract among
the parties relative to the subject matter hereof. Any previous agreement among
the parties with respect to the subject matter hereof is superseded by this
Agreement and the letter agreement referred to in Section 2.06(c). Nothing in
this Agreement or the letter agreement referred to in Section 2.06(c),
expressed or implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement or the letter agreement referred to in Section
2.06(c).
SECTION 9.09. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected
76
72
or impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.11. HEADINGS. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured.
Each Lender agrees promptly to notify the Borrower after such setoff and
application made by such Lender, but the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such Lender may have.
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any
77
73
such action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Subject to the foregoing and to
paragraph (b) below, nothing in this Agreement shall affect any right that any
party hereto may otherwise have to bring any action or proceeding relating to
this Agreement against any other party hereto in the courts of any
jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State
or Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND OTHER PARTIES HERETO HAVE
78
74
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATION IN THIS SECTION.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
NATIONAL CITY CORPORATION,
by /s/Xxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
and Treasurer
CHEMICAL BANK, individually and as
Agent,
by
----------------------------------
Name:
Title:
79
75
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
by
------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by
------------------------------------
Name:
Title:
BAYERISCHE LANDESBANK,
by
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.,
by
------------------------------------
Name:
Title:
CITIBANK, N.A.,
by
------------------------------------
Name:
Title:
80
76
COMERICA BANK,
by
------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
------------------------------------
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
by
------------------------------------
Name:
Title:
MELLON BANK
by
------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
by
------------------------------------
Name:
Title:
81
77
THE NORTHERN TRUST CO.,
by
------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
by
------------------------------------
Name:
Title:
SUNTRUST BANK,
by
------------------------------------
Name:
Title:
by
------------------------------------
Name:
Title:
82
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
ChemicaL Bank, as Agent for
the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, NationaL City Corporation (the "Borrower"), refers to
the Competitive Advance and RevoLving Credit Facility Agreement dated as of
February 2, 1996 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrower, the
Lenders named therein and Chemical Bank, as Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Borrower hereby gives you notice
pursuant to Section 2.03(a) of the Credit Agreement that it requests a
Competitive Borrowing under the Credit Agreement, and in that connection sets
forth below the terms on which such Competitive Borrowing is requested to be
made:
(A) Date of Competitive Borrowing
(which is a Business Day) ____________________
(B) Principal Amount of
Competitive Borrowing 1/ ____________________
(C) Interest rate basis 2/ ____________________
(D) Interest Period and the last
day thereof 3/ ____________________
Upon acceptance of any or all of the Loans offered by the Banks in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c)
of the Credit Agreement have been satisfied.
Very truly yours,
by
--------------------------------
Title: [Responsible Officer]
---------------------------
1/ Not less than $10,000,000 (and in integral multiples of
$1,000,000) and not greater than the Total Commitment then available.
2/ Eurodollar Loan or Fixed Rate Loan.
3/ Which shall be subject to the definition of "Interest Period"
and end not Later than the Maturity Date.
83
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
New York, New York
[Date]
Attention:
Dear Ladies and Gentlemen:
Reference is made to the Competitive Advance and Revolving Credit Facility
Agreement dated as of February 2, 1996 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"),
among National City Corporation (the "Borrower"), the Lenders named therein and
Chemical Bank, as Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower made a Competitive Bid Request on [Month] [Day],
[Year], pursuant to Section 2.03(a) of the Credit Agreement, and in that
connection you are invited to submit a Competitive Bid by [Date]/[Time]. 1/
Your Competitive Bid must comply with Section 2.03(b) of the Credit Agreement
and the terms set forth below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing __________________
(B) Principal amount of
Competitive Borrowing __________________
(C) Interest rate basis __________________
(D) Interest Period and the last
day thereof __________________
Very truly yours,
CHEMICAL BANK, as Agent,
By
----------------------
Title:
------------------------
1/ The Competitive Bid must be received by the Agent (i) in the case of
Eurodollar Loans, not later than 9:30 a.m., New York City time, three Business
Days before a proposed Competitive Borrowing, and (ii) in the case of Fixed
Rate Loans, not Later than 9:30 a.m., New York City time, on the Business Day
of a proposed Competitive Borrowing.
84
EXHIBIT A-3
FORM OF COMPETITIVE BID
Chemical Bank, as Agent for
the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Competitive Advance and
Revolving Credit Facility Agreement dated as of February 2, 1996 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among National City Corporation (the "Borrower"), the
Lenders named therein and Chemical Bank, as Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The undersigned hereby makes a Competitive
Bid pursuant to Section 2.03(b) of the Credit Agreement, in response to the
Competitive Bid Request made by the Borrower on [Month] [Day], [Year], and in
that connection Sets forth below the terms on which such Competitive Bid is
made:
(A) Principal Amount 1/ __________________
(B) Competitive Bid Rate 2/ __________________
(C) Interest Period and last
day thereof __________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.03(d)
of the Credit Agreement.
Very truly yours,
[NAME OF LENDER],
by
----------------------------
Title:
-------------------------
1/ Not Less than $5,000,000 and not greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Agent.
2/ I.e., LIBO Rate + or - %, in the case of Eurodollar Loans or %, in the
case of Fixed Rate Loans.
85
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
Chemical Bank, as Agent for
the Lenders referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: [ ]
Dear Ladies and Gentlemen:
The undersigned, National City Corporation (the "Borrower"), refers to the
Credit Agreement dated as of February 2, 1996 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"),
among the Borrower, the Lenders named therein and Chemical Bank, as Agent for
the Lenders.
In accordance with Section 2.03(c) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
__________ and in accordance with Section 2.03(d) of the Credit Agreement, we
hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- ------
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- ------
$ [%]/[+/-. %]
$
The $ should be deposited in the Borrower's account [account number]
on [date].
Very truly yours,
NATIONAL CITY CORPORATION
by
----------------------
Name:
Title:
86
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
Chemical Bank, as Agent for the
Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, National City Corporation (the "Borrower"), refers to
the Competitive Advance and Revolving Credit Facility Agreement dated as of
February 2, 1996 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrower, the
Lenders named therein and Chemical Bank, as Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Borrower hereby gives you notice
pursuant to Section 2.04 of the Credit Agreement that it requests a Standby
Borrowing under the Credit Agreement, and in that connection sets forth below
the terms on which such Standby Borrowing is requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day) __________________
(B) Principal Amount of Standby
Borrowing 1/ __________________
(C) Interest rate basis 2/ __________________
(D) Interest Period and the last
day thereof 3/ __________________
Upon acceptance of any or alL of the Loans made by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c)
of the Credit Agreement have been satisfied.
Very truly yours,
By
----------------------------
Title: [Responsible Officer]
------------------------------
1/ Not less than $5,000,000 (and in integral multiples of
$1,000,000) and not greater than the Total Comnitment then available.
2/ Eurodollar Loan or ABR Loan.
3/ Which shall be subject to the definition of "Interest Period"
and end not later than the Maturity Date.
87
EXHIBIT B
Administrative Questionnaire
----------------------------
National City Corporation
-------------------------
NOTE TO PARTICIPANTS: PLEASE FORWARD THIS COMPLETED FORM AS SOON AS POSSIBLE
TO XXXXX XXXXXX, AGENCY GROUP, CHEMICAL BANK, VIA
TELECOPIER TO (000) 000-0000.
PLEASE TYPE ALL INFORMATION.
---------------------------
AGENT: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
CONTACTS: Xx. Xxxxxx X. Xxxxxx (000) 000-0000 (fax) Banking &
Corporate Finance
OPERATIONAL CONTACT: Xxxxx Xxxxxx (000) 000-0000 Agency Group
TELEX: NY: 353006 Answerback: ABSCNYK
TELECOPIER: (000) 000-0000
Full Legal Name of your Bank: _________________________________________
Exact Name of Signing Officer: _________________________________________
Title of Signing Officer: _________________________________________
Business Address for Delivery
of Execution Copies of Credit
Agreement (Please do not use
P.O. Box address; hand
deliveries cannot be made): _________________________________________
Signing Officer's Phone No.: _________________________________________
Alternate Officer Contact: _________________________________________
Alternate Officer's Phone No.: _________________________________________
PRIMARY CONTACT INFORMATION
---------------------------
These contacts are for critical notification (drawdowns, repayments, rate
setting, etc.)
Bank Name: ______________________________________
Address: ______________________________________
Primary Contact: ______________________________________
Title and Department: ______________________________________
Phone Number: ______________________________________
Primary Telecopier: ______________________________________
Alternate Telecopier: ______________________________________
Primary Telex/Answerback: ______________________________________
ALTERNATE CONTACT INFORMATION
-----------------------------
Alternate Contact: _________________________________________
Title and Department: _________________________________________
Phone Number: _________________________________________
Primary Telecopier: _________________________________________
Alternate Telecopier: _________________________________________
Primary Telex/Answerback: _________________________________________
GENERAL OPERATIONAL INFORMATION
-------------------------------
Wire Instructions to your Bank: Bank Name: ___________________________
Dept :___________________________
ABA #:___________________________
A/C #:___________________________
Attn :___________________________
Ref :___________________________
Telex Information: Contact Name(s):_________________
Number :_________________
Answerback :_________________
If any changes are made to the above information, please notify by telecopier
to Xxxxx Xxxxxx at (000) 000-0000 and [Xxxxx Xxxxxx] at (000) 000-0000.
Movement of funds to us: Wire Fed Funds to:
-----------------------
Chemical Bank
Wholesale Loan Services Department
00 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: [ ]
Reference: National City Corporation
PLEASE COMPLETE THE FOLLOWING INFORMATION FOR COMPETITIVE AUCTIONS ONLY
-----------------------------------------------------------------------
Agent: Chemical Bank
000 Xxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Structured Finance Department
Telex: NY: 353006 Answerback: ABSCNYK
Telecopier: (000) 000-0000 Primary
(212) 270-[ ] Backup
Contacts: Xxxxx Xxxxxx (000) 000-0000 Agency Group
[ ] Structured Finance
88
Primary Contact
---------------
Competitive Auctions
--------------------
Bank Name:_____________________________________________________
Address:_______________________________________________________
Primary Contact:_______________________________________________
Title:_________________________________________________________
Department:____________________________________________________
Telephone Number:______________________________________________
Telex Number and Answerback:___________________________________
Telecopier Number:_____________________________________________
Alternate Contact
-----------------
Competitive Auctions
--------------------
Alternate Contact:_____________________________________________
Title:_________________________________________________________
Department:____________________________________________________
Telephone Number: _____________________________________________
Telex Number and Answerback:___________________________________
Telecopier Number:_____________________________________________
General Information
-------------------
Domestic Lending Office
-----------------------
Institution Name:______________________________________________
Street Address:________________________________________________
City, State, Zip Code:_________________________________________
General Information
-------------------
Eurodollar Lending Office
-------------------------
Institution Name:______________________________________________
Street Address:________________________________________________
City, State, Zip Code:_________________________________________
89
EXHIBIT C
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Competitive Advance and Revolving Credit
Facility Agreement dated as of February 2, 1996 (the "Credit Agreement"), among
National City Corporation, a Delaware corporation (the "Borrower"), the lenders
listed in Schedule 2.01 thereof (the "Lenders") and Chemical Bank, as agent for
the Banks (in such capacity, the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and the Competitive Loans and
Standby Loans owing to the Assignor which are outstanding on the Effective Date,
together with unpaid interest accrued on the assigned Loans to the Effective
Date and the amount, if any, set forth on the reverse hereof of the Fees accrued
to the Effective Date for the account of the Assignor. Each of the Assignor and
the Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 9.04(c) of the Credit Agreement,
a copy of which has been received by each such party. From and after the
Effective Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Loan Documents and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinouish
its rights and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 2.19(g) of the Credit
Agreement, duly completed and executed by such Assignee, (ii) if the Assignee is
not already a Lender under the Credit Agreement, an Administrative Questionnaire
in the form of Exhibit B to the Credit Agreement and (iii) a processing and
recordation fee of $2,500.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
90
2
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of
Facility/Commitment
(set forth, to at
least 8 decimals, as a
Principal Amount percentage of the
Assigned (and Facility and the
identifying information aggregate Commitments
as to individual of all Lenders
Facility Competitive Loans) thereunder)
-------- ----------------- ----------------------
Commitment
Assigned: $ %
Standby Loans:
Competitive
Loans:
Fees Assigned (if
any):
The terms set forth above and on
the reverse side hereof are hereby
agreed to: Accepted */
_______________, as Assignor CHEMICAL BANK, as Agent,
By:_______________________ By:_______________________
Name: Name:
Title: Title:
_______________, as Assignee NATIONAL CITY CORPORATION, as
Borrower,
By:_______________________ By:_______________________
Name: Name:
Title: Title:
*/ To be completed only if consents are required under Section
9.04(a).
EXHIBIT D
[FORM OF]
OPINION OF COUNSEL FOR
NATIONAL CITY CORPORATION 1/
-
1. National City Corporation (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(ii) has all requisite power and authority to own its property and assets and to
carry on its business as now conducted, (iii) is qualified to do business in
every jurisdiction within the United States where such qualification is
required, except where the failure so to qualify would not result in a Material
Adverse Effect on National City Corporation, and (iv) has all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Agreement and to borrow funds thereunder.
2. The execution, delivery and performance by National City
Corporation of the Agreement and the borrowings of National City Corporation
thereunder (collectively, the "Transactions") (i) have been duly authorized by
all requisite corporate action and (ii) will not (a) violate (1) any provision
of law, statute, rule or regulation (including without limitation, the Margin
Regulations), or of the certificate of incorporation or other constitutive
documents or by-laws of National City Corporation, (2) any order of any
governmental authority or (3) any provision of any indenture, agreement or
other instrument to which National City Corporation is a party or by which it
or its property is or may be bound, (b) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or (c) result in the
creation or imposition of any lien upon any property or assets of National City
Corporation.
3. The Agreement has been duly executed and delivered by National
City Corporation and constitutes a legal, valid and binding obligation of
National City Corporation enforceable against National City Corporation in
accordance with its terms, subject as to the enforceability of rights and
remedies to any applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws of general application relating to or affecting the
enforcement of creditors' rights from time to time in effect.
4. No action, consent or approval of, registration or filing with, or
any other action by, any government authority is or will be required in
connection with the Transactions, except such as have been made or obtained and
are in full force and effect.
5. Neither National City Corporation nor any of its subsidiaries is
(a) an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 (the "1940 Act") or (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935.
6. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or to our knowledge threatened
against the Corporation or any Subsidiary or aginst any of its or their
respective properties (a) with respect to the Loan Documents or any of the
transactions contemplated thereby, or (b) could reasonably be expected to
reseult in a Material Adverse Effect.
----------------------------
1/ Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Competitive Advance and Revolving Credit
Facility Agreement (the "Agreement") dated as of February 2, 1996, among
National City Corporation, the lenders listed in Schedule 2.01 thereto, and
Chemical Bank, as Administrative Agent.
91
SCHEDULE 2.01
Contact Person
Name and Address of Lender and Telecopy Number Commitment
-------------------------- ------------------- ----------
Chemical Bank Xx. Xxxxxx X. Xxxxxx $20,000,000
000 Xxxx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000
The Chase Manhattan Bank, N.A. Xx. Xxxxx Xxxxxx $20,000,000
One Chase Manhattan Plaza (000) 000-0000
0xx Xxxxx
Xxx Xxxx, XX 00000
Bank of America Xx. Xxxxxxxx Xxxxxx $30,000,000
000 Xxxxx Xx Xxxxx Xx, Xxxx 0000 (000) 000-0000
Xxxxxxx, XX 00000
The Bank of New York Xx. Xxxxx Xxxxx $25,000,000
Xxx Xxxx Xxxxxx (000) 000-0000
00xx Xxxxx
Xxx Xxxx, XX 00000
Bayerische Landesbank, Dept 7110 Xx. Xxxxxxx Cammaert $30,000,000
Xxxxxxxx Xxxxxxx 00 49-89-2171-3576
Munich GERMANY D-80277
Citibank, N.A. Xx. Xxxxxxxxx Xxxxxx $30,000,000
000 Xxxx Xxxxxx (000) 000-0000
00xx Xxxxx, Xxxx 00
Xxx Xxxx, XX 00000
Comerica Bank-Detroit Xx. Xxxxxxx Judge $25,000,000
000 Xxxxxxxx Xxxxxx (000) 000-0000
MC 3279
Xxxxxxx, XX 00000
The First National Bank of Chicago Xx. Xxxxxxx Xxxxxxxx $30,000,000
One First National Plaza (000) 000-0000
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Xxxxxx Trust & Savings Bank Xx. Xxxxxx X. Xxxxxxx $15,000,000
000 Xxxx Xxxxxx Xxxxxx (000) 000-0000
0xx Xxxxx
Xxxxxxx, XX 00000
Mellon Bank Xx. Xxxxxxx Xxxxxxx $30,000,000
1 Mellon Bank Center (000) 000-0000
Xxxxxxxxxx XX, 00000-0000
92
Contact Person
Name and Address of Lender and Telecopy Number Commitment
-------------------------- ------------------- ----------
NationsBank of Texas, N.A. Xx. X.X. Xxxxx Xxxxx $30,000,000
000 Xxxx Xxxxxx (000) 000-0000
Xxxxx 0000
Xxxxxx, XX 00000
The Northern Trust Company Xx. Xxxxxx Xxxxxxxxx $25,000,000
00 Xxxxx XxXxxxx Xxxxxx, X-0 (000) 000-0000
Xxxxxxx, XX 00000
PNC Bank, N.A. Xx. Xxxxx X. Xxxxx $25,000,000
0xx Xxxxxx xxx Xxxx Xxxxxxx (000) 000-0000
Xxxxxxxxxx, XX 00000
SunTrust Bank, Atlanta Xx. Xxxx xxxxxxx $15,000,000
00 Xxxx Xxxxx (000) 000-0000
Center Code #118
Xxxxxxx, XX 00000
93
SCHEDULE 3.06
Material Litigation
-------------------
None.
