SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended Commission File No.
March 31, 1994 1-10534
FIRST OF AMERICA BANK CORPORATION
(Exact name of Registrant as specified in its Charter)
Michigan 38-1971791
(State or other jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
211 South Rose St., Kalamazoo, Michigan 49007
(Address of principal Executive Offices) (Zip Code)
Registrant's telephone number, including
area code 616-376-9000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at April 30, 1994
Common Stock, $10 Par Value 59,353,678
<PAGE>
FIRST OF AMERICA BANK CORPORATION
INDEX
Page No.
PART I. FINANCIAL INFORMATION
Consolidated Balance Sheets, (Unaudited) - March 31, 1994
and December 31, 1993 . . . . . . . . . . . . . . . . . . 3
Consolidated Statements of Income (Unaudited) -
Three Months Ended March 31, 1994 and 1993 . . . . . . . 4
Consolidated Statements of Cash Flows (Unaudited) -
Three Months Ended March 31, 1994 and 1993 . . . . . . . 5
Notes to Consolidated Financial Statements (Unaudited) . . 6
Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . . . 8
PART II. OTHER INFORMATION . . . . . . . . . . . . . . . . . 20
<PAGE>
<TABLE> FIRST OF AMERICA BANK CORPORATION Consolidated Balance Sheet (Unaudit
<CAPTION>
March 31, December 31,
($ in thousands) 1994 1993
ASSETS
<S> <C> <C> <C>
Cash and due from banks $ 850,884 903,517
Federal funds sold and other short term investments 67,855 74,909
Securities:
Held to maturity, market value of $2,801,183 at March 31, 1994
and $1,872,326 at December 31, 1993 2,839,982 1,856,623
Available for sale, amortized cost of $2,335,332 at March 31, 1994
and $3,212,687 at December 31, 1993 2,342,690 3,261,481
Loans (net of unearned income):
Consumer 5,177,213 5,062,173
Commercial 2,161,978 2,148,663
Commercial real estate 3,067,435 2,902,549
Residential real estate 3,805,893 3,914,914
Loans held for sale, market value of $169,065 at March 31, 1994
and $368,846 at December 31, 1993 168,721 365,856
Total loans 14,381,240 14,394,155
Less: Allowance for loan losses 194,745 188,664
Net loans 14,186,495 14,205,491
Premises and equipment, net 436,537 432,256
Other assets 489,327 496,194
Total assets $ 21,213,770 21,230,471
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Deposits:
Non-interest bearing $ 2,575,113 2,682,621
Interest bearing 15,578,168 15,561,082
Total deposits 18,153,281 18,243,703
Securities sold under repurchase agreements 475,973 664,531
Short term borrowings 596,897 330,047
Long term debt 220,974 254,193
Other liabilities 242,043 214,560
Total liabilities 19,689,168 19,707,034
SHAREHOLDERS' EQUITY
Common Equity 1,524,602 1,523,437
Total Liabilities and Shareholders' Equity $ 21,213,770 21,230,471
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE>
FIRST OF AMERICA BANK CORPORATION
Consolidated Statements of Income
(Unaudited)
<CAPTION>
Three Months Ended
($ in thousands) March 31,
1994 1993
<S> <C> <C> <C>
INTEREST INCOME
Loans and fees on loans $ 294,699 303,628
Investment securities 67,032 72,269
Other interest income 709 1,201
Total interest income 362,440 377,098
INTEREST EXPENSE
Deposits 124,654 148,767
Short term borrowings 6,174 2,641
Long term debt 4,631 5,234
Total interest expense 135,459 156,642
NET INTEREST INCOME 226,981 220,456
Provision for loan losses 20,608 23,773
NET INTEREST INCOME AFTER PROVISION FOR LOAN LOSSES 206,373 196,683
NON-INTEREST INCOME
Service charges on deposit accounts 20,308 20,093
Trust and financial services income 20,313 18,602
Investment securities transactions, net 7,499 7,222
Other operating income 28,481 25,850
Total non-interest income 76,601 71,767
NON-INTEREST EXPENSE
Personnel 104,622 98,690
Occupancy, net 15,336 14,221
Equipment 13,005 13,498
Outside data processing 4,259 3,581
Amortization of intangibles 2,561 2,047
Other operating expense 58,075 53,376
Total non-interest expense 197,858 185,413
Income before taxes 85,116 83,037
Income tax expense 26,796 24,439
NET INCOME $ 58,320 58,598
PER COMMON AND COMMON EQUIVALENT SHARE
Primary $ 0.98 0.99
Fully Diluted 0.98 0.98
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE> FIRST OF AMERICA BANK CORPORATION Statements of Cash Flows
<CAPTION>
($ in thousands) March 31,
1994 1993
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income 58,320 $ 58,598
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 10,777 9,313
Provision for loan losses 20,608 23,773
Provision for deferred taxes (1,209) (6,056)
Amortization of intangibles 2,561 2,047
(Gain) loss on sale of investment securities -- --
(Gain) loss on the sale of loans -- --
(Gain) loss on the sale of securities available
for sale (7,499) --
(Gain) loss on the sale of mortgage loans held for sale (6,099) (13,592)
(Gain) loss on the sale of other assets 165 (35)
Proceeds from the sales of mortgage loans held for sale 498,964 543,903
Net other decrease (increase) in mortgage loans held
for sale (295,730) 0
Proceeds from the sale of securities available for sale 910,419 0
Proceeds from the maturities of securities available
for sale 388,439 0
Purchases of securities available for sale (439,963) 0
Change in assets and liabilities net of acquisitions:
(Increase)decrease in interest and other
income receivable 15,529 (37,361)
(Increase)decrease in other assets 18,397 165,872
Increase(decrease) in taxes payable 26,796 10,996
Increase(decrease) in interest and
other expense payable 44,310 88,0
Increase(decrease) in other liabilities (42,419) (64,699)
Net cash from operating activities 1,202,366 780,840
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sales of investment securities -- 0
Proceeds from maturities of investment securities 92,647 287,968
Purchases of investment securities (1,057,925) (1,072,482)
Proceeds from sales of loans -- --
Net other (increase) decrease in loans & leases (198,747) (22,225)
Premises and equipment purchased (15,545) (11,892)
Proceeds from the sale of premises and equipment 322 60
(Acquisition)/Sale of affiliates, net of cash 0 --
Payment of acquisition costs and acquired
affiliate liabilities 0 --
Net cash provided by investing activities (1,179,248) (818,571)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net increase(decrease) in short term deposits (116,857) (375,395)
Net increase(decrease) in time deposits 26,435 260,077
Net increase(decrease) in short term borrowings 78,292 117,170
Proceeds from issuance of long term debt 41,000 40,594
Repayments of long term debt (74,219) (30,170)
Payments for redemption of preferred stock -- --
Proceeds from issuance of common stock 97 334
Payments for purchase and retirement of common stock (6,691) (51)
Dividends paid (23,808) (21,537)
Net cash provided by financing activities (75,751) (8,978)
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (52,633) (46,709)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 903,517 918,960
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 850,884 872,251
</TABLE>
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1: General
The accompanying interim financial statements are unaudited. In
the opinion of management, all adjustments necessary for a fair
presentation of the consolidated financial statements have been
included. Certain amounts included in the prior period financial
statements have been reclassified to conform with the current
financial statement presentation.
Note 2: Non-Performing Assets
<TABLE>
<CAPTION>
March 31,
(in thousands) 1994 1993
__________________
<S> <C> <C>
Non-accrual loans $ 118,317 112,810
Restructured lonas 9,886 19,186
------- -------
Other real estate owned 46,417 46,321
------- -------
Non-performing assets $ 174,620 178,317
======= =======
</TABLE>
Note 3: Allowance for Loan Losses
<TABLE>
<CAPTION>
Three Months Ended
March 31,
(in thousands) 1994 1993
__________________
<S> <C> <C>
Balance, beginning of period $ 188,664 176,793
Provision charged against income 20,608 23,773
Recoveries 8,673 7,795
Loans charged off (23,200) (30,850)
-------- --------
Balance, end of period $ 194,745 177,511
======== ========
</TABLE>
Note 4: Borrowings
First of America entered into a 364-Day and Three-Year
Competitive Advance and Revolving Credit Facility Agreements on
March 25, 1994 with several lenders. Each of the agreements
allows First of America to borrow on a standby revolving credit
basis and at uncommitted competitive interest rates up to
$150,000,000, totalling $300,000,000. The proceeds of all such
borrowings will be used to provide working capital and for other
general corporate purposes.
Note 5: Common Stock and Calculation of Earnings Per Share
At March 31, 1994 and 1993, there were 59,351,610 and 57,029,347
common shares outstanding, respectively. At the same dates,
there were 100,000,000 authorized shares of $10 par value common
stock. Common and common equivalent earnings per share amounts
were calculated by dividing net income applicable to common stock
by the weighted average number of common shares outstanding
during the respective periods adjusted for outstanding stock
options. Fully diluted earnings per share calculation for March
31, 1993 was based on the assumption that all outstanding
preferred stock was converted into common stock and the preferred
dividends on these shares were eliminated.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
Average Shares Outstanding 1994 1993
--------------------
<S> <C> <C>
Common and common equivalents 59,773,756 57,343,381
Fully diluted 59,773,756 59,726,092
</TABLE>
Note 6: Mergers and Acquisitions
<TABLE> <CAPTION> Financia
Date of Total Assets Reporting
($ in thousands) Acquisition Acquired Value ________________
<S> <C> <C> <C>
Citizens Federal Bank
(Illinois Branches) August 26, 1993 498,000 $ 19,902
Kewanee Investing Company, Inc. April 1, 1993 28,700 3,982
</TABLE>
Note 7: Pending Acquisition
On April 15, 1994, First of America entered into a definitive
agreement to acquire First Park Ridge Corporation, a $323 million
in assets bank holding company based in Park Ridge, Illinois. It
is anticipated First Park Ridge's 65,139 common shares will be
exchanged tax-free for shares of First of America Common Stock.
The exchange ratio and the number of shares issued will be based
on the average price of First of America Common Stock over the
period of 20 consecutive trading days ending on the tenth day
prior to the effective date, with the transaction having an
indicated value of $80 million. First of America intends to
account for the acquisition as a purchase and repurchase a
substantial portion of the shares to be issued in the
transaction. The acquisition, subject to approval by First Park
Ridge's shareholders and regulatory authorities, is expected to
be completed by the end of 1994, with the merger of First Park
Ridge's subsidiary banks into First of America Bank - Northeast
Illinois, N.A.
Note 8: Subsequent Event
On April 15, 1994, First of America acquired the Florida offices
of Goldome Federal Savings Bank from the Resolution Trust
Corporation. This acquisition allows First of America access to
the rapidly expanding Florida market. First of America purchased
assets and assumed liabilities, including approximately $390
million in deposits and 36 full banking offices in ten counties
of southern Florida.
On May 1, 1994, First of America completed the acquisition of LGF
Bancorp, Inc. ("LGF") and its principal subsidiary, LaGrange
Federal Savings & Loan Association, based in LaGrange, Illinois.
Each share of LGF common stock was converted into 0.8754 share of
First of America Common Stock and each certain option rights to
purchase LGF common stock were each converted into 0.6322 share
of First of America Common Stock. This transaction resulted in
the issuance of 1,645,585 shares of First of America Common
Stock. The transaction was accounted for as a purchase. At
March 31, 1994, LGF had total assets of $408 million.
<TABLE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
Summary: The following table sets forth the period to period changes in the
principal items included in the consolidated statement of income for the three
months ended March 31, 1994 compared to the corresponding 1993 period. The
bracketed amounts represent decreases.
<CAPTION>
Three Months Ended
March 31,
($ in thousands) 1994 vs 1993
Change Percent
<S> <C> <C>
Interest and fee income on loans $ (8,929) (2.9)%
Interest income on investments (5,237) (7.2)
Interest income on federal funds sold and
other short term investments (492) (41.0)
Total interest income (14,658) (3.9)
Interest expense on deposits (24,113) (16.2)
Interest expense on borrowed funds 2,930 37.2
Total interest expense (21,183) (13.5)
Net interest income 6,525 3.0
Provision for loan losses (3,165) (13.3)
Non-interest income 4,834 6.7
Non-interest expense 12,445 6.7
Income before tax expense 2,079 2.5
Applicable income tax expense 2,357 9.6
Net income $ (278) (0.5)%
</TABLE>
HIGHLIGHTS
Net income for the first quarter was $58.3 million, or $0.98 per
fully diluted share, compared with $58.5 million, or $0.98 per
fully diluted share a year ago.
Return on average assets for the quarter was 1.13 percent versus
1.19 percent a year ago. The increase in non-interest expense
offset the reduction in the provision for loan losses due to
improving asset quality and growth in non-interest income.
Return on average equity, also lower for the quarter-to-quarter
comparison, was 15.47 percent versus 17.54 percent in the first
quarter of 1993.
Total assets were $21.2 billion, up 5.0 percent from a year ago.
Total loans increased 6.1 percent from the year ago quarter. The
largest growth was seen in the consumer portfolio which increased
22.0 percent over a year ago. Included in this group are indirect
installment loans, up 22.2 percent, direct installment loans, up
22.3 percent, and credit cards which increased 21.9 percent. The
other component of this portfolio, other consumer revolving
loans, decreased 8.2 percent over a year ago.
<PAGE>
INCOME ANALYSIS
FIRST QUARTER 1994 COMPARED WITH FIRST QUARTER 1993
Net interest income (FTE) increased 2.6 percent, over the prior
year's quarter, due to the 4.6 percent increase in average
earning assets. The net interest margin for the first quarter of
1994 was 4.81 percent versus 4.92 percent a year ago. The
quarter's margin did, however, represent an increase over the
fourth quarter of 1993 margin of 4.77 percent, as First of
America was able to reprice the deposits acquired from Citizens
Federal in line with the company's current liability structure.
Tables 1 and 2 summarize the yields on earning assets and rates
paid on interest-bearing liabilities and the impact that changes
in rates and volumes have had on net interest income for the
first quarter of 1994 versus the first quarter 1993 and the
fourth quarter of 1993.
The provision for loan losses was down 13.3 percent, compared
with the 1993 quarter in response to improving asset quality.
One indicator of asset quality, net charge-offs as a percent of
average loans, was 0.41 percent compared with 0.69 percent
reported in the year ago quarter. The current quarter's ratio of
0.41 percent represented the lowest quarterly figure reported
over the last three years. The largest area of improvement was
in commercial loan charge-offs, which decreased 53.6 percent or
$4.6 million. Charge-offs and recoveries by type are detailed in
Table 3.
Total non-interest income continued its steady growth, up 6.7
percent from last year. Trust and financial services income, the
largest component of non-interest income, increased 9.2 percent
to $20.3 million for the first quarter of 1994 versus $18.6
million for the first quarter of 1993. Sales of the Parkstone
Mutual Funds were up 28 percent over a year ago, totalling $58.8
million for the quarter versus $46.0 million.
Service charges and gains on the sale of investment securities
both remained relatively flat in the quarter-to-quarter
comparison, increasing 1.1 percent and 3.8 percent, respectively.
Other components of non-interest income continued to show growth.
Credit card fees increased 11.4 percent versus a year ago, as the
credit card portfolio increased 21.9 percent in the year-to-year
comparison. The total number of credit cards serviced increased
to 1.9 million, or 30.0 percent from 1.5 million accounts at
March 31, 1993. Credit cards outstanding, however, declined 8.2
percent annualized from year-end, following seasonal patterns
within this portfolio.
Gains on sale of residential mortgages was level over a year ago,
contributing $.07 per fully diluted share for each quarter. The
other component of mortgage banking revenue, servicing income,
increased 16.1 percent as the residential mortgage servicing
portfolio increased to $6.4 billion at March 31, 1994, up 11.8
percent over a year ago. Residential mortgage originations
totalled $613 million for the quarter, an increase of 35.9
percent over the year ago quarter.
Total non-interest expense increased from the year ago quarter to
$197.9 million versus $185.4 million. A portion of the growth in
non-interest expense can be attributed to initiatives and
developmental costs incurred to promote long term growth in fee
income. Examples of these intiatives include 53 percent growth
in the mutual fund sales force over the last year and the
acquisition of six mortgage origination offices located in North
and South Carolina. As a percent of average assets, personnel
costs increased to 2.03 percent versus 2.01 percent in the year
ago quarter. Income tax expense also increased to 0.53 percent
of average assets versus the 0.50 percent reported a year ago.
The burden and efficiency ratios both increased over a year ago
due to the increased expense levels. The burden ratio while
higher than a year ago remained within an acceptable level at
2.35 percent versus 2.32 percent. The efficiency ratio increased
to 64.20 percent from 62.32 percent, yet First of America's long
term goal for the efficiency ratio remains 60 percent or lower.
The burden and efficiency ratio are shown in Table 4.
Return on average assets (ROA) was 1.13 percent for 1994's first
quarter versus 1.19 percent a year ago. Non-interest income grew
to 1.49 percent of average assets, up three basis points from
first quarter 1993, while non-interest expense increased to 3.84
percent of average assets, offsetting the positive non-interest
income impact on ROA. The other components of ROA are shown in
Table 4.
ASSET QUALITY AND CREDIT RISK PROFILE
First of America's loan portfolio has no significant industry
concentrations of credit, thereby minimizing credit risk
exposure. Also minimizing credit risk are First of America's
conservative lending policies and stringent loan review process.
In addition, First of America's loan customers are largely
individual homeowners and small to mid-sized businesses. At
March 31, 1994, the loan portfolio was made up of residential
mortgages (26.5 percent), consumer loans (36.0 percent),
commercial mortgages (21.3 percent) and commercial loans (15.0
percent). Investor/developer loans, defined as loans for non-
owner occupied real estate, were $1.4 billion, slightly more than
10 percent of total gross loans.
Total non-performing assets, which include non-accrual loans,
renegotiated loans and other real estate owned decreased $3.7
million from a year ago and $8.0 million from year end (see Table
5). This reduction in non-performing assets, combined with lower
net charge-offs for the current quarter, improved First of
America's already strong asset quality ratios. Allowance
coverage of non-performing loans increased to 152 percent at
March 31, 1994 from 134 percent a year ago, while nonperforming
assets as a percent of total assets also improved to 0.82 percent
from 0.88 percent at March 31, 1993.
FUNDING, LIQUIDITY AND INTEREST RATE RISK
First of America continues to monitor and ensure appropriate
interest rate risk, provide liquidity and avoid material
deterioration in the market value of the investment securities
portfolio through a centralized funds management division.
Liquidity is measured by a financial institution's ability to
raise funds through deposits, borrowed funds, capital and the
sale of assets. First of America relies primarily upon core
deposits for its liquidity. At March 31, 1994, core deposits
equalled 94.8 percent of total deposits.
First of America entered into a 364-Day and Three-Year
Competitive Advance and Revolving Credit Facility Agreements on
March 25, 1994 with several lenders. Each of the agreements
allows First of America to borrow on a standby revolving credit
basis and at uncommitted competitive interest rates up to
$150,000,000, totalling $300,000,000. The proceeds of all such
borrowings will be used to provide working capital and for other
general corporate purposes.
First of America's interest rate risk policy is to minimize the
effect on net income resulting from a change in interest rates
through asset/liability management at all levels in the company.
Each banking affiliate completes an interest analysis every month
using an asset/liability model, and a consolidated analysis is
then completed using the affiliates' data. The Asset and
Liability Committees, which exist at each banking affiliate and
at the consolidated level, review the analysis and as necessary,
appropriate action is taken to maintain the net interest spread,
even in periods of rapid interest rate movement.
Interest rate swap transactions generally involve the exchange of
fixed and floating rate interest payment obligations without the
exchange of the underlying financial instrument. The company
becomes a principal in the exchange of interest payments with
other parties and, therefore, is exposed to the loss of future
interest payments should the counterparty default. The company
minimizes this risk by performing normal credit reviews of its
counterparties and collateralizing its exposure when it exceeds a
predetermined limit. First of America had outstanding interest
rate swap agreements at March 31, 1994, totalling $522.3 million
in notional amounts. This total included amounts of $125 million
as a hedge against long term debt and the remainder as a hedge
against certain deposits. First of America had no outstanding
interest rate swap agreements at March 31, 1993. At December 31,
1993, First of America had interest swap agreements totalling
$291.6 million in notional amounts, of which $125 million was a
hedge against long term debt and the remainder against certain
deposits.
The difference between rate sensitive assets and liabilities is
presented in Table 6. The GAP reports' reliability in
measuring the risk to income from a change in interest rates is
tested through the use of simulation models. The most recent
simulation models show that less than one percent of First of
America's annual net income is at risk if interest rates were to
move up or down an immediate one percent. Management has
determined that these simulation models provide a more accurate
measurement of the company's interest rate risk positions than
the GAP tables.
CAPITAL STRENGTH
Total shareholders' equity increased 11.1 percent to $1.5 billion
at March 31, 1994, the result of earnings retention. The
quarter-end balance also included a market value adjustment of
$4.8 million, net of tax, in compliance with the Financial
Accounting Standards Board's Statement No. 115, "Accounting for
Certain Investments in Debt and Equity Securities." The fully
diluted book value per share rose to $25.69 from $23.11 primarily
due to the retention of earnings.
First of America continues to maintain, both on a consolidated
level and an affiliate basis, capital levels which qualify as
"well capitalized" based on regulatory guidelines. All twenty of
First of America's depository affiliates were well capitalized at
March 31, 1994. First of America's tier one risk based capital
and tier one leverage ratios improved to 9.43 percent and 6.57
percent, respectively, due to the retention of earnings. The
total risk based capital ratio, however, decreased to 11.78
percent from 11.80 percent. On February 7, 1994, First of
America exercised the right to prepay its 9.25% Senior Notes
totalling $21.4 million. The prepayment of this debt, which had
previously qualified as tier two capital, and the increase in
risk-weighted assets year over year combined to offset any
earnings retention in the total risk based capital ratio.
IN CONCLUSION
Management's long term goals for the company remain a return on
assets of 1.25 percent or higher, an efficiency ratio of 60
percent or lower and a return on equity of between 17 percent and
18 percent. As a result of first quarter earnings, which were
slightly lower than investment analysts' estimates, and the
recently announced acquisitions in Florida and Illinois, current
full year estimates for 1994 earnings per share made by
investment analysts who follow First of America were lowered to
$4.25 to $4.60 versus the $4.40 to $4.70 estimated at year-end
1993.
<TABLE> CONSOLIDATED YIELDS (a)
<CAPTION> 1994 1993 1992
1stQtr. 4thQtr. 3rdQtr. 2ndQtr. 1stQtr. 4thQtr.
Mar. 31 Dec. 31 Sept. 30 June 30 Mar. 31 Dec. 31
<S> <C> <C> <C> <C> <C> <C> <C>
Average Prime Rate (b) 6.0 % 6.0 6.0 6.0 6.0 6.0
EARNING ASSETS
Money Market Investments 2.95 % 3.37 2.94 2.88 3.09 3.39
U.S. Government and agencies securities 5.45 5.40 5.68 5.83 6.12 6.18
State and municipal securities 7.56 6.62 8.74 8.72 8.74 9.04
Other securities 6.40 8.29 8.29 8.04 6.82 7.71
Total securities 5.67 5.60 6.05 6.12 6.39 6.55
Consumer loans 9.29 9.50 10.11 10.45 10.71 10.86
Commercial loans 7.48 7.66 7.46 7.49 7.84 7.97
Commercial real estate loans 8.24 8.37 8.46 8.54 8.59 8.79
Residential real estate loans 7.79 8.00 8.20 8.45 8.48 8.92
Total loans 8.39 8.53 8.88 9.04 9.11 9.31
Total earning assets 7.66 % 7.75 7.99 8.18 8.36 8.61
INTEREST-BEARING LIABILITIES
Time deposits:
CD's - less than 12 months 4.28 % 4.53 4.63 4.68 4.72 4.80
CD's - 12 months or more 4.56 4.69 4.91 5.23 5.56 5.83
CD's - $100,000 or more 3.30 3.30 3.33 3.39 3.55 3.64
Other time deposits 5.02 5.10 5.32 5.35 5.62 5.71
Other core deposits:
Savings deposits and NOW 1.55 1.76 2.09 2.23 2.38 2.57
Money market savings and checking 2.17 2.28 2.44 2.53 2.66 2.71
Total deposits 3.24 3.41 3.58 3.72 3.90 4.05
Short term borrowings 3.38 3.22 3.25 3.14 3.42 3.25
Long term debt 7.02 6.78 6.81 7.37 8.42 8.58
Total borrowed funds 4.35 4.14 4.50 4.39 5.65 5.43
Total interest-bearing liabilities 3.31 % 3.46 3.62 3.76 3.97 4.10
NET INTEREST MARGIN
Interest income to average earning 7.66 % 7.75 7.99 8.18 8.36 8.61
Interest expense to average earning 2.85 % 2.98 3.13 3.26 3.44 3.56
Net interest margin 4.81 % 4.77 4.86 4.92 4.92 5.05
<FN> (a) Fully taxable equivalent, based on a marginal federal income tax rate of 35%.
(b) The First National Bank of Chicago corporate Base Rate.
</TABLE>
<TABLE> FIRST OF AMERICA BANK CORPORATION
Analysis of Net Interest Income
First Quarter 1994 Versus First Quarter 1994 Versus
First Quarter 1993 Fourth Quarter 1993
($ in thousands) Total Change Due To Total Change Due To
CHANGES IN RATE AND VOLUME Change Volume Rate Change Volume Rate
<S> <C> <C> <C> <C> <C> <C> <C>
INCREASE (DECREASE) :
Interest Income
Loans (FTE) $ (8,959) 16,027 (24,986) (9,039) 862 (9,901)
Taxable securities (4,212) 24,377 (28,589) (1,134) (1,242) 108
Tax exempt securities (FTE) (1,719) (456) (1,263) (3,532) (5,007) 1,475
Money market investments (492) (440) (52) 376 419 (43)
Total (15,382) 39,508 (54,890) (13,329 (4,968) (8,361)
Interest Expense
Interest-bearing deposits (24,113) 1,401 (25,514) (10,846) (1,547) (9,299)
Short term borrowings 3,533 3,558 (25) (490) (713) 223
Long term borrowings (603) 307 (910) (313) (375) 62
Total (21,183) 5,266 (26,449) (11,649 (2,635) (9,014)
Change in net interest income (FTE) $ 5,801 34,242 (28,441) (1,680) (2,333) 653
<FN>
NOTE: The change in income attributable to volume is calculated by multiplying the change
in volume times the prior year's rate. The change in income attributable to rate is
calculated by multiplying the change in rate times the prior year's volume. Any variance
attributable jointly to volume and rate changes is allocated to volume and rate in proportion
to the relationship of the absolute dollar amount of the change in each. Fully taxable
equivalent income on certain tax exempt loans and securities is calculated using a 35% tax
rate.
</TABLE>
<TABLE> SUMMARY OF LOAN LOSS EXPERIENCE
<CAPTION> ($ in thousands) 1994 1993 1992
1st Qtr. 4th Qtr. 3rd Qtr. 2nd Qtr. 1st Qtr. 4thQtr.
Mar. 31 Dec. 31 Sept. 30 June 30 Mar. 31 Dec.
ALLOWANCE FOR LOAN LOSSES
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, at beginning of period $ 188,664 186,579 181,729 177,511 176,793 176,475
Provision charged against income 20,608 20,386 20,526 20,029 23,773 21,028
Allowance of acquired (sold) banks -- -- (203) 253 -- --
Recoveries:
Commercial 1,213 1,707 2,762 2,209 2,014 2,359
Commercial mortgage 862 744 379 635 465 173
Residential mortgage 75 126 92 105 69 59
Consumer installment 4,804 4,521 4,235 5,283 4,048 4,589
Consumer revolving 1,719 1,592 1,740 1,938 1,199 1,272
Total recoveries 8,673 8,690 9,208 10,170 7,795 8,452
Charge-offs:
Commercial 3,938 3,690 2,933 4,646 8,495 6,504
Commercial mortgage 1,199 2,584 2,620 2,101 1,760 2,472
Residential mortgage 245 275 233 287 679 368
Consumer installment 8,410 9,922 8,534 9,182 10,138 10,946
Consumer revolving 9,408 10,520 10,361 10,018 9,778 8,872
Total charge-offs 23,200 26,991 24,681 26,234 30,850 29,162
Net charge-offs 14,527 18,301 15,473 16,064 23,055 20,710
Balance, at end of period $ 194,745 188,664 186,579 181,729 177,511 176,793
Average loan outstanding (net of
unearned income) $ 14,292,647 14,252,372 13,924,461 13,757,416 13,558,214 13,685,672
CHARGE-OFFS AND RECOVERIES RATIOS
Net charge-offs to average loans (a) 0.41 % 0.51 0.44 0.47 0.69 0.61
Net charge-offs to period end allowance 30.25 % 38.48 32.90 35.45 52.67 46.86
Earnings coverage of net charge-offs 7.28 x 6.07 6.90 6.60 4.63 4.17
Recoveries to total charge-offs 37.38 % 32.20 37.31 38.77 25.27 28.98
Provision to average loans (a) 0.58 % 0.57 0.58 0.58 0.71 0.61
Allowance to total period end loans 1.35 % 1.31 1.32 1.31 1.31 1.29
<FN>
(a) Annualized
</TABLE> <TABLE> <CAPTION> ALLOWANCE FOR LOAN LOSS SUMMARY
At December 31, 1993 1992 1991 1990 1989 1988
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, at beginning of period $ 176,793 174,882 137,012 126,175 133,609 127,453
Provision charged against income 84,714 78,809 71,030 44,782 43,805 37,601
Allowance of acquired/(sold) banks 50 (372) 27,094 11,185 2,324 8,045
Recoveries 35,863 33,640 30,280 28,470 27,728 25,235
Less: Charge-offs 108,756 110,166 90,534 73,600 81,291 64,725
Balance, at end of period $ 188,664 176,793 174,882 137,012 126,175 133,609
</TABLE>
<TABLE> MEASUREMENT OF ASSET QUALITY
<CAPTION> ($ in thousands)
1994 1993 1992
1st Qtr. 4th Qtr. 3rd Qtr. 2nd Qtr. 1st Qtr. 4thQtr.
Mar 31 Dec 31 Sep 30 Jun 30 Mar 31 Dec 31
NON-PERFORMING ASSETS
<S> <C> <C> <C> <C> <C> <C> <C>
Non-accrual loans:
Commercial $ 26,485 28,483 22,340 24,356 19,613 26,663
Commercial mortgage 76,911 76,129 70,581 65,086 73,697 79,464
Residential mortgage 13,469 15,727 15,678 17,242 18,642 18,950
Revolving mortgage 331 71 99 88 257 422
Consumer installment 1,121 776 1,533 804 588 1,103
Consumer revolving -- -- -- -- 13 17
Total non-accrual loans $ 118,317 121,186 110,231 107,576 112,810 126,619
Renegotiated loans:
Commercial $ 477 257 302 382 480 859
Commercial mortgage 8,303 9,272 9,087 11,527 17,310 17,643
Residential mortgage 1,106 1,350 431 69 -- 2,038
Revolving mortgage -- -- 1,360 -- -- 129
Consumer installment -- -- -- 59 162 --
Consumer revolving -- -- -- -- 1,234 --
Total renegotiated loans $ 9,886 10,879 11,180 12,037 19,186 20,669
Total non-performing loans $ 128,203 132,065 121,411 119,613 131,996 147,288
Other real estate owned $ 46,417 50,595 50,486 53,950 46,321 48,699
Total non-performing assets $ 174,620 182,660 171,897 173,563 178,317 195,987
Loans past due 90 days or more:
Commercial $ 2,756 2,351 4,688 9,505 1,688 2,209
Commercial mortgage 10,289 4,589 17,895 12,565 5,199 4,756
Residential mortgage 8,955 8,951 7,901 7,192 5,738 7,239
Revolving mortgage 521 611 496 416 74 70
Consumer installment 1,093 1,683 2,132 1,537 1,214 1,598
Consumer revolving 4,980 5,277 4,477 5,313 4,908 5,015
Total loans past due 90 $ 28,594 23,462 37,589 36,528 18,821 20,887
ASSET QUALITY RATIOS
Non-performing assets as a % of total 0.82 % 0.86 0.82 0.85 0.88 0.97
Non-performing assets as a % of
total loans + OREO 1.21 % 1.26 1.21 1.25 1.31 1.42
Allowance coverage of non-performing 151.90 % 142.86 153.68 151.9
</TABLE>
<TABLE>
NONPERFORMING ASSET SUMMARY
<CAPTION>
At December 31, 1993 1992 1991 1990 1989 1988
<S> <C> <C> <C> <C> <C> <C> <C>
Non-accrual loans $ 121,186 126,619 116,995 76,533 55,556 51,071
Renegotiated loans 10,879 20,669 16,837 12,234 4,762 14,289
Other real estate owned 50,595 48,699 34,601 17,620 16,759 24,519
Total non-performing assets $ 182,660 195,987 168,433 106,387 87,077 89,879
Loans past due 90 days or more $ 23,462 20,887 32,499 31,380 20,901 20,084
</TABLE>
<TABLE> FIRST OF AMERICA BANK CORPORATION Interest Rate Sensitivity March 31, 1994
<CAPTION>
0 to 0 to 0 to 0 to 0 to
30 Days 60 Days 90 Days 180 Days 365 Days
<S> <C><C> <C> <C> <C> <C>
($ in millions)
Assets:
Other earning assets $ 68 68 68 68 68
Investment securities 296 423 601 1,050 1,702
Loans, net of unearned income 4,466 4,898 5,270 6,224 7,999
Total rate sensitive assets $ 4,830 5,389 5,939 7,342 9,769
(RSA)
Liabilities and equity:
Money market type deposits $ 1,253 1,733 1,818 1,825 1,825
Other core savings and time deposits 1,123 2,300 3,100 4,833 6,194
Negotiated deposits 454 625 750 846 924
Borrowings 1,032 1,043 1,045 1,048 1,112
Total rate sensitive $ 3,862 5,701 6,713 8,552 10,055
liabilities (RSL)
Off balance sheet (349) (444) (444) (449) (419)
GAP (RSA - RSL) $ 619 (756) (1,218) (1,659) (705)
RSA divided by RSL 125.06% 94.53% 88.47% 85.85% 97.16%
GAP divided by equity 40.59 -49.57 -79.87 -108.79 -46.23
RSA divided by total assets 22.77 25.40 28.00 34.61 46.05
RSL divided by total assets 18.20 26.87 31.64 40.31 47.40
GAP divided by total assets 2.92 -3.56 -5.74 -7.82 -3.32
</TABLE>
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
(10) Material Contracts
A copy of the $150,000,000 364-Day Competitive Advance
and Revolving Credit Facility Agreement among the
Registrant and the lenders listed in schedule 2.01
thereto, dated March 25, 1994, is filed herewith.
A copy of the $150,000,000 Three-Year Competitive Advance
and Revolving Credit Facility Agreement among the
Registrant and the lenders listed in schedule 2.01
thereto, dated March 25, 1994, is filed herewith.
(11) Statement regarding computation of per share
earnings.
The computation of primary and fully diluted
earnings per share is described in Note 4 to the
Consolidated Financial Statements in this report.
b) Reports on Form 8-K
No reports on Form 8-K were filed by the
Registrant during the three months ended March 31,
1994.
<PAGE>
PART II - OTHER INFORMATION
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, First of America has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
FIRST OF AMERICA BANK CORPORATION
REGISTRANT
Date: May 6, 1994 /s/ Thomas W. Lambert
Thomas W. Lambert
Executive Vice President
and Chief Financial Officer
(Principal Financial and Accounting
Officer)
CONFORMED COPY
364-DAY COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 25, 1994
Among
FIRST OF AMERICA BANK CORPORATION,
THE LENDERS NAMED HEREIN,
and
CHEMICAL BANK, as Agent
[CS&M Ref. No. 6700-199]
TABLE OF CONTENTS
Article Section Page
I. DEFINITIONS
1.01 Defined Terms . . . . . . . . . . . 1
1.02 Terms Generally . . . . . . . . . . 20
1.03 Accounting Terms . . . . . . . . . . 20
II. THE CREDITS
2.01 Commitments . . . . . . . . . . . . 21
2.02 Loans . . . . . . . . . . . . . . . 21
2.03 Competitive Bid Procedure . . . . . 23
2.04 Standby Borrowing Procedure . . . . 26
2.05 Refinancings . . . . . . . . . . . 27
2.06 Fees . . . . . . . . . . . . . . . 28
2.07 Repayment of Loans; Evidence
of Debt . . . . . . . . . . . . . . 29
2.08 Interest on Loans . . . . . . . . . 30
2.09 Default Interest . . . . . . . . . 31
2.10 Alternate Rate of Interest . . . . 31
2.11 Termination, Reduction of
Commitments . . . . . . . . . . . . 32
2.12 Prepayment . . . . . . . . . . . . 34
2.13 Reserve Requirements; Change in
Circumstances . . . . . . . . . . . 35
2.14 Change in Legality . . . . . . . . . 36
2.15 Indemnity . . . . . . . . . . . . . 37
2.16 Pro Rata Treatment . . . . . . . . . 38
2.17 Sharing of Setoffs . . . . . . . . . 39
2.18 Payments . . . . . . . . . . . . . . 39
2.19 Taxes . . . . . . . . . . . . . . . 40
2.20 Duty to Mitigate; Assignment of
Commitments Under Certain
Circumstances . . . . . . . . . . . 43
III. REPRESENTATIONS AND WARRANTIES
3.01 Financial Condition . . . . . . . . 44
3.02 No Change . . . . . . . . . . . . . 45
3.03 Corporate Existence; Compliance with
Law . . . . . . . . . . . . . . . . 45
3.04 Corporate Power; Authorization;
Enforceable Obligations . . . . . . 46
3.05 No Legal Bar . . . . . . . . . . . 46
3.06 No Material Litigation . . . . . . 46
3.07 No Default . . . . . . . . . . . . 46
3.08 Ownership of Property; Liens . . . . 46
3.09 No Contractual Restrictions . . . . 46
3.10 Taxes . . . . . . . . . . . . . . . 47
3.11 Federal Reserve Regulations . . . . 47
3.12 Employee Benefit Plans . . . . . . . 47
3.13 Investment Company Act; Public
Utility Holding Company Act . . . . 48
3.14 Subsidiaries . . . . . . . . . . . . 48
3.15 Use of Proceeds . . . . . . . . . . 48
3.16 No Material Misstatements . . . . . 48
3.17 Environmental and Safety Matters . . 48
3.18 Capital Commitments . . . . . . . . 49
IV. CONDITIONS OF LENDING
4.01 All Borrowings . . . . . . . . . . . 49
4.02 Closing Date . . . . . . . . . . . . 49
V. AFFIRMATIVE COVENANTS
5.01 Financial Statements . . . . . . . . 51
5.02 Inspection of Property; Books and
Records; Discussions . . . . . . . . 53
5.03 Notices . . . . . . . . . . . . . . 53
5.04 Continuance of Business . . . . . . 54
5.05 Compliance with Regulatory
Standards . . . . . . . . . . . . . 54
5.06 Payment of Obligations . . . . . . . 54
5.07 Maintenance of Property, Insurance . 54
5.08 Employee Benefits . . . . . . . . . 55
5.09 Capital Requirements . . . . . . . . 55
VI. NEGATIVE COVENANTS
6.01 Limitation on Liens . . . . . . . . 56
6.02 Prohibition of Fundamental Changes 56
6.03 Consolidated Net Worth . . . . . . . 56
6.04 Nonperforming Assets . . . . . . . . 57
6.05 Double Leverage . . . . . . . . . . 57
6.06 Use of Proceeds . . . . . . . . . . 57
6.07 Regulation U . . . . . . . . . . . . 57
6.08 Capital Commitments . . . . . . . . 57
VII. EVENTS OF DEFAULT 57
VIII. THE AGENT 61
IX. MISCELLANEOUS
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 . . . . . . . . . . . . 71
9.11 Headings . . . . . . . . . . . . . . 71
9.12 Right of Setoff . . . . . . . . . . 71
9.13 Jurisdiction; Consent to Service
of Process . . . . . . . . . . . . 72
9.14 Waiver of Jury Trial . . . . . . . . 73
9.15 Confidentiality . . . . . . . . . . 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
Schedules
Schedule 2.01 Lenders and Commitments
Schedule 3.06 Litigation
Schedule 3.14 Subsidiaries of the Borrower
CONFORMED COPY
COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT (the "Agreement") dated as of
March 25, 1994, among FIRST OF AMERICA BANK
CORPORATION, a Michigan 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 $150,000,000 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 to provide working capital and for other general corporate
purposes. 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.
"Adjusted CD Rate" shall mean, with respect to any
CD Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the sum of (a) a rate per annum equal to the product of (i) the
Fixed CD Rate in effect for such Interest Period and
(ii) Statutory Reserves, plus (b) the Assessment Rate. For
purposes hereof, the term "Fixed CD Rate" shall mean the
arithmetic average (rounded upwards, if necessary, to the next
1/100 of 1%) of the prevailing rates per annum bid at or about
10:00 a.m., New York City time, to the Agent on the first
Business Day of the Interest Period applicable to such
CD Borrowing by three New York City negotiable certificate of
deposit dealers of recognized standing selected by the Agent for
the purchase at face value of negotiable certificates of deposit
of major United States money center banks in a principal amount
approximately equal to the Agent's portion of such CD Borrowing
and with a maturity comparable to such Interest Period.
"Administrative Questionnaire" shall mean an
Administrative Questionnaire in the form of Exhibit B hereto.
"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 pub-
lished for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent
from 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 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 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.
"CD Borrowing" shall mean a Borrowing comprised of
CD Loans.
"CD Loan" shall mean any Standby Loan bearing interest
at a rate determined by reference to the Adjusted CD Rate in
accordance with the provisions of Article II.
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) nominated by
the board of directors of the Borrower (or a nominating committee
thereof), nor (ii) appointed by directors so nominated; or
(c) any Person or group (other than the board of directors of the
Borrower) shall otherwise directly or indirectly Control the
Borrower.
"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-1.
"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 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.
"Equity Investment in Subsidiaries" shall mean the
Borrower's aggregate equity investment in the Subsidiaries,
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.
"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 B Credit Agreement" shall mean the
$150,000,000 Competitive Advance and Revolving Credit Facility
Agreement dated the date hereof among the parties hereto.
"Facility Fee" shall have the meaning assigned to such
term in Section 2.06(a).
"Facility Fee Percentage" shall mean on any date the
applicable percentage set forth below based upon the ratings by
S&P and Moody's, respectively, applicable on such date to the
type of Index Debt described below:
<TABLE>
Index Debt Described in Clause (i) or (iii)
of the Definition of Index Debt
<CAPTION>
Category 1 Facility Fee Percentage
<S> <C>
A+ or higher by S&P .110%
A1 or higher by Moody's
Category 2
A or A- by S&P .140%
A2 or A3 by Moody's
Category 3
BBB+ by S&P .170%
Baa1 by Moody's
Category 4
BBB by S&P .210%
Baa2 by Moody's
Category 5
BBB- by S&P .375%
Baa3 by Moody's
Category 6
BB+ or lower by S&P .500%
Ba1 or lower by Moody's
</TABLE>
<TABLE>
Index Debt Described in Clause (ii)
of the Definition of Index Debt
<CAPTION>
Category 1 Facility Fee Percentage
<S> <C>
A or higher by S&P .110%
A2 or higher by Moody's
Category 2
A- or BBB+ by S&P .140%
A3 or Baa1 by Moody's
Category 3
BBB by S&P .170%
Baa2 by Moody's
Category 4
BBB- by S&P .210%
Baa3 by Moody's
Category 5
BB+ by S&P .375%
Ba1 by Moody's
Category 6
BB or lower by S&P .500%
Ba2 or lower by Moody's
</TABLE>
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 6; (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 Facility Fee
Percentage shall be based on the Category containing the lower of
such ratings; and (iii) if any rating 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
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 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 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, applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"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) rated by both S&P and
Moody's or (ii) if the debt described in 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
Moody's 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 Ratings Review Letters dated not earlier
than the most recent Ratings Review Date (or which has been
publicly rated by only one of S&P or Moody's and as to which a
Ratings Review Letter from the other rating agency has been
delivered to the Agent not earlier than such date).
"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 or a CD 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.
"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 CD Borrowing, a period of 30,
60, 90 or 180 days' duration, as the Borrower may elect,
commencing on the date of such Borrowing, (c) 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 (d) 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 the 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 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, a CD Loan, an ABR Loan or a
Fixed Rate Loan, as permitted hereby.
"Loan Documents" shall mean (i) this Agreement and the
letter agreement referred to in Section 2.06(c) and (ii) any
amendment, supplement, modification, consent or waiver of, to or
in respect of either 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 condition,
financial or otherwise, of the Borrower and its subsidiaries
taken as a whole.
"Maturity Date" shall mean March 24, 1995, subject to
the provisions of Section 2.11(d).
"Moody's" shall mean Moody's 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.
"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.
"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 66-2/3% of the Total
Commitment or, for purposes of Article VII, Lenders holding Loans
representing at least 66-2/3% 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.
"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
would be a Significant Subsidiary if all references to 10% in
Rule 1-02 of Regulation S-X of the Securities and Exchange
Commission, 17 C.F.R. 210.1-02 were instead references to 7.5%.
"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. 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 CD 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:
<TABLE>
Index Debt Described in Clause (i) or (iii)
of the Definition of Index Debt
<CAPTION>
Category 1 LIBOR Spread CD Spread
<S> <C> <C>
A+ or higher by S&P .290% .415%
A1 or higher by Moody's
Category 2
A or A- by S&P .360% .485%
A2 or A3 by Moody's
Category 3
BBB+ by S&P .430% .555%
Baa1 by Moody's
Category 4
BBB by S&P .540% .665%
Baa2 by Moody's
Category 5
BBB- by S&P .375% .500%
Baa3 by Moody's
Category 6
BB+ or lower by S&P .500% .625%
Ba1 or lower by Moody's;
</TABLE>
<TABLE>
Index Debt Described in Clause (ii)
of the Definition of Index Debt
<CAPTION>
Category 1 LIBOR Spread CD Spread
<S> <C> <C>
A or higher by S&P .290% .415%
A2 or higher by Moody's
Category 2
A- or BBB+ by S&P .360% .485%
A3 or Baa1 by Moody's
Category 3
BBB by S&P .430% .555%
Baa2 by Moody's
Category 4
BBB- by S&P .540% .665%
Baa3 by Moody's
Category 5
BB+ by S&P .375% .500%
Ba1 by Moody's
Category 6
BB or lower by S&P .500% .625%
Ba2 or lower by Moody's;
</TABLE>
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 6; (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 lower of such ratings; and
(iii) if any rating 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 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.
"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, a CD 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 (i) the applicable Interest Period, in the case of the
Adjusted CD Rate, and (ii) three months, in the case of the Base
CD Rate (as such term is used in the definition of "Alternate
Base Rate"). 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.
"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.
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 Sec-
tion 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 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, CD 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 five 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 para-
graph (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 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 at
(i) in the case of the Borrower, the interest rate applicable at
the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. 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 CD Loan or 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 $5,000,000 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
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 para-
graph (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 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 $5,000,000 and an integral
multiple of $1,000,000; provided further, however, that if a
Competitive Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such Competitive
Loan may be for a minimum of $1,000,000 or any 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-5 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, (b) in the case of a
CD Borrowing, not later than 12:00 (noon), New York City time,
two Business Days before a proposed borrowing and (c) in the case
of an ABR Borrowing, not later than 12:00 (noon), 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, a CD 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 or CD 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 requested Standby Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Standby Borrowing
or CD Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of
one month's duration, in the case of a Eurodollar Borrowing, or
30 days' duration, in the case of a CD Borrowing. If the
Borrower shall not have given notice in accordance with this Sec-
tion 2.04 and Section 2.05 of its election to refinance a Standby
Borrowing prior to the end of the Interest Period in effect for
such Borrowing, then the Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have
given notice of an election to refinance such Borrowing with an
ABR Borrowing. 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. Refinancings. The Borrower may
refinance all or any part of any Borrowing with a Borrowing of
the same or a different Type made pursuant to Section 2.03 or
Section 2.04, subject to the conditions and limitations set forth
herein and elsewhere in this Agreement, including refinancings of
Competitive Borrowings with Standby Borrowings and Standby
Borrowings with Competitive Borrowings. Any Borrowing or part
thereof so refinanced shall be deemed to be repaid in accordance
with Section 2.07 with the proceeds of a new Borrowing hereunder
and the proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced,
shall not be paid by the Lenders to the Agent or by the Agent to
the Borrower pursuant to Section 2.02(c); provided, however, that
(i) if the principal amount extended by a Lender in a refinancing
is greater than the principal amount extended by such Lender in
the Borrowing being refinanced, then such Lender shall pay such
difference to the Agent for distribution to the Lenders described
in (ii) below, (ii) if the principal amount extended by a Lender
in the Borrowing being refinanced is greater than the principal
amount being extended by such Lender in the refinancing, the
Agent shall return the difference to such Lender out of amounts
received pursuant to (i) above, and (iii) to the extent any
Lender fails to pay the Agent amounts due from it pursuant to
(i) above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with
Section 2.07 and shall be payable by the Borrower.
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 quarter during which the average daily
outstanding principal amount of the Loans plus the amount of the
Loans under the Facility B Credit Agreement shall be greater than
50% but less than or equal to 75% of the Total Commitment under
this Agreement plus the Total Commitment under the Facility B
Credit Agreement, the Borrower shall pay a utilization fee equal
to .0625% per annum (computed on the basis of the actual number
of days elapsed in a year of 360 days) of the average daily
outstanding principal amount of the Loans for that quarter. For
any quarter during which the average daily outstanding principal
amount of the Loans plus the amount of the Loans under the
Facility B Credit Agreement shall be greater than 75% of the
Total Commitment under this Agreement plus the Total Commitment
under the Facility B Credit Agreement, the Borrower shall pay a
utilization fee equal to .125% (computed as aforesaid) of the
average daily outstanding principal amount of the Loans for that
quarter. 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 February 7, 1994 between the Borrower and the Agent.
(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 Borrower hereby agrees that the outstanding principal
balance of each Loan shall be payable on the last day of the
Interest Period applicable thereto (and in any event not later
than the Maturity Date). Each Loan shall bear interest 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, to
the extent permitted by applicable law, 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 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 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 CD 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 (a) the Adjusted CD Rate
for the Interest Period in effect for such Borrowing plus (b) the
Spread applicable to CD Loans from time to time in effect.
Interest on each CD Borrowing shall be payable on each applicable
Interest Payment Date except as otherwise provided in this
Agreement. The Adjusted CD 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, 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.
(d) 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. (a) 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 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 practi-
cable 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.
(b) In the event, and on each occasion, that on or
before the day on which the Adjusted CD Rate for a CD Borrowing
is to be determined the Agent shall have determined that such
Adjusted CD Rate cannot be determined for any reason, including
the inability of the Agent to obtain sufficient bids in
accordance with the terms of the definition of Fixed CD Rate, or
the Agent shall determine that the Adjusted CD Rate for such
CD Borrowing will not adequately and fairly reflect the cost to
any Lender of making or maintaining its CD Loan during such
Interest Period, 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, any request by the Borrower for a
CD Borrowing pursuant to Section 2.04 shall, until the Agent
shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, be
deemed to be a request for an ABR Borrowing; provided, however,
that any request by the Borrower for such a CD 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 or Extension 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.
(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 termina-
tion or reduction.
(d) The Maturity Date may be extended at the request
of the Borrower and with the consent of all the Lenders as
provided in this Section 2.11(d). Not earlier than the date
90 days and not later than the date 60 days prior to (x) the
first anniversary of the date hereof or (y) the date to which the
Maturity Date has previously been extended pursuant to this
Section 2.11(d), the Borrower may deliver to the Agent (which
shall promptly transmit to each Lender) a notice requesting that
the Commitments be extended to a date specified in such notice,
which date shall not be later than 364 days after the Maturity
Date at the time in effect. Within 20 days after its receipt of
any such notice, each Lender shall deliver to the Agent a
preliminary indication of its willingness or unwillingness to
extend its Commitment to the proposed new Maturity Date. Not
more than 30 and not fewer than 15 days prior to the Maturity
Date each Lender shall deliver to the Agent a notice confirming
its willingness or unwillingness to extend its Commitment to the
proposed new Maturity Date, which notice may be revoked by such
Lender, in its sole and absolute discretion of such Lender, at
any time prior to the Maturity Date then in effect. Any Lender
which shall fail so to notify the Agent within such period shall
be deemed to have declined to extend its Commitment. If (but
only if) Lenders whose aggregate Commitments account for at least
66 2/3% of the Total Commitment shall notify the Borrower through
the Agent of their willingness to extend their Commitments (and
shall not revoke such notices), then the Commitments of the
Lenders so notifying the Borrower shall be extended to the
Maturity Date specified in such request, and the term "Maturity
Date" as used herein with respect to such Lenders shall
thenceforth mean such extended Maturity Date. The Borrower, with
the consent of the Agent, shall have the right, but not the
obligation, at the Borrower's expense, to replace any such
declining Lender (in this Agreement and in the Facility B Credit
Agreement) with an assignee willing to consent to such extension
(in accordance with and subject to the restrictions contained in
Section 9.04), and such declining Lender shall 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 and the Facility B Credit
Agreement to such assignee; provided, however, that (i) no such
assignment shall conflict with any law or any rule, regulation or
order of any Governmental Authority, and (ii) such assignee or
the Borrower, as the case may be, shall pay to the declining
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 such Lender hereunder and all other
amounts accrued for such declining Lender's account or owed to it
hereunder. Notwithstanding any provision of this Agreement, the
Maturity Date shall not be extended pursuant to this
paragraph (d) on more than two occasions.
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 giving written or
telecopied notice (or telephone notice promptly confirmed by
written or telecopied notice) to the Agent: (i) before
10:00 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) 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 require-
ment against assets of, deposits with or for the account of or
credit extended by any Lender, or shall result in the imposition
on any Lender or the London interbank market of any other condi-
tion 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.
(b) 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 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.
(c) A certificate of a Lender setting forth such
amount or amounts as shall be necessary to compensate such Lender
as specified in paragraph (a) or (b) 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.
(d) 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) Notwith-
standing 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:
(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 (as defined below) 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 refinance or
continue any Loan hereunder after irrevocable notice of such
borrowing, refinancing or continuation has been given pursuant to
Section 2.03 or 2.04, (c) any payment, prepayment or conversion
of a Eurodollar Loan, CD 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,
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, CD Loan or Fixed Rate
Loan. As used herein, "Loss or Expense" shall mean an amount
equal to the excess, 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 Adjusted CD 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
of a failure to boreow, 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 the Facility Fees,
each reduction of the Commitments and each refinancing 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 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 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 270 Park
Avenue, New York, New York, 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")) and
(ii) franchise taxes imposed on the net income of the Agent or
any Lender (or Transferee), 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 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.
(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 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 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 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 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 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.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the
Lenders that:
SECTION 3.01. Financial Condition. The consolidated
balance sheet of the Borrower and its consolidated Subsidiaries
as at December 31, 1993, and the related consolidated statements
of income and cash flows and changes in shareholders' equity of
the Borrower and its consolidated Subsidiaries for the fiscal
year ended on such date, reported on by KPMG Peat Marwick 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). Neither the Borrower nor any of its consolidated
Subsidiaries had as of December 31, 1993 any material Contingent
Obligation, contingent liabilities or liability for taxes, long-
term lease or unusual forward or long-term commitment, which is
not reflected in the foregoing balance sheet as of such date or
in the notes thereto.
SECTION 3.02. No Change. Since December 31, 1993,
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 and the legal right 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.
SECTION 3.04. Corporate Power; Authorization;
Enforceable Obligations. The Borrower has the corporate power
and authority and the legal right to make, deliver and perform
its obligations under this Agreement and to borrow hereunder and
has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and 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. No Default. Neither the Borrower nor
any Subsidiary is in default under or with respect to any
Contractual Obligation in any respect which could result in a
Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
SECTION 3.08. 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.
SECTION 3.09. No Contractual Restrictions. No
Contractual Obligation of the Borrower or any Subsidiary has
resulted, or insofar as the Borrower may reasonably foresee may
result in a Material Adverse Effect.
SECTION 3.10. 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 3.11. Federal Reserve Regulations.
(a) Neither the Borrower nor any of the Subsidiaries is engaged
principally, or as one of its important activities, 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.
SECTION 3.12. 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
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 3.13. 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 3.14. Subsidiaries. Schedule 3.14 sets forth
a complete and correct list, as of the date hereof, of all
Subsidiaries. Except as set forth in Schedule 3.14, all the
issued and outstanding shares of capital stock or the partnership
interests, as the case may be, of each of the Subsidiaries have
been validly issued and are fully paid and nonassessable and are
owned directly or indirectly by the Borrower free and clear of
all Liens whatsoever, and there are no options, warrants, calls,
conversion or exchange rights, commitments or agreements of any
character obligating any of the Subsidiaries to issue, deliver or
sell additional shares of capital stock of any class or any
securities convertible into or exchangeable for any such capital
stock or any additional partnership interests.
SECTION 3.15. Use of Proceeds. The Borrower will use
the proceeds of the Loans only for the purposes specified in the
preamble to this Agreement.
SECTION 3.16. 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 3.17. 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 3.18. Capital Commitments. The Borrower is
not a party to any Capital Commitment.
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, in the case of a refinancing of
any Loan pursuant to Section 2.05 that does not increase the
aggregate principal amount of Loans of any Lender
outstanding, the representations set forth in Sections 3.02
and 3.06) 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 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 Howard & Howard, counsel for the Borrower, dated
the Closing Date and addressed to the Lenders and
satisfactory to Cravath, Swaine & Moore, counsel for the
Agent, and the Borrower hereby instructs such counsel to
deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and
the borrowings hereunder shall be satisfactory to the
Lenders and to Cravath, Swaine & Moore, 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 & Moore, 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.
(f) The Agent shall have received a certificate of a
Financial Officer of the Borrower certifying as to (i) the
termination of (a) the $100,000,000 five-year Credit
Agreement, as amended, dated as of April 21, 1989, between
the Borrower and Security Pacific National Bank, as Agent
and (b) the $35,000,000 Promissory Note, dated December 6,
1993, between the Borrower and Continental Bank, N.A., and
(ii) the payment in full of all obligations of the Borrower
outstanding under such agreement and note.
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. 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 consoli-
dated 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
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 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 ful-
filled 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 specif-
ically indicated, and (ii) showing in detail the calcula-
tions 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, and within five days after the
same are filed, copies of all financial statements and
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; and
(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 any of
its properties and examine and make abstracts from any of its
books and records, other than information as to which the
Borrower may assert the attorney/client privilege where such
privilege would be impaired by disclosure to the Lenders, 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 and employees of the Borrower and
any Subsidiary and with the Borrower's independent public accoun-
tants.
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 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 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 material Indebtedness and
other material obligations (defined for purposes hereof as
Indebtedness and obligations in amounts exceeding $10 million) of
whatever nature, except, without prejudice to the effectiveness
of paragraph (f) of Article VII hereof, for any Indebtedness or
other obligations (including any obligations for taxes) 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; and furnish to each Lender, upon written
request, full information as to the insurance carried.
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 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. The Borrower
will, and will cause each of its 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. 1831o, 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
Subsidiary.
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. Consolidated Net Worth. Permit
Consolidated Net Worth at any time to be less than
$1,295,000,000.
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 1.35 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 (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
(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 Section 6.01 to the extent any default under
such Section results from a Lien not voluntarily created by
the Borrower); 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; 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 $10,000,000, 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
$10 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, other than any default under any covenant
restricting the pledge or transfer of Margin Stock in any
instrument or agreement to which the Lender or any Affiliate
of the Lender is a party; 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, 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 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 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 thereof; 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
(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 $5,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged or stayed
within 30 days from entry thereof; or
(j) there shall have occurred a Change in Control;
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
and 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 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.
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 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 agrees that any allocation made
in good faith by the Agent of expenses or other amounts referred
to in this paragraph between this Agreement and the Facility B
Credit Agreement shall be conclusive and binding for all
purposes.
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 commu-
nications 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 First of America Bank
Corporation, 211 South Rose Street, Kalamazoo, MI 49007,
Attention of Mr. John H. Miner, (Telecopy No. (616) 376-
7016);
(b) if to the Agent, to it at 270 Park Avenue,
9th Floor, New York, New York 10017, Attention of Mr. Robert
J. Juelis (Telecopy No. 212-270-1789); and
(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 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, and
(iii) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance, and a
processing and recordation fee of $2,000. 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 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 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 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 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, 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 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 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 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
been induced to enter into this Agreement by, among other things,
the mutual waivers and certification in this Section.
SECTION 9.15. Confidentiality. Unless otherwise
agreed to in writing by the Borrower, the Agent and each Lender
hereby agrees to keep all Proprietary Information (as defined
below) confidential and not to disclose or reveal any Proprietary
Information to any person other than the Agent's or such Lender's
directors, officers, employees, Affiliates, attorneys,
accountants and agents and to actual or potential assignees and
participants, and then only on a confidential basis and only if
needed in connection with the administration and enforcement of
this Agreement; provided, however, that the Agent or any Lender
may disclose Proprietary Information (a) as required by law, rule
regulation or judicial process, or (b) as requested or required
by any Governmental Authority. Unless prohibited by law or
regulation from doing so, in the case of a formal, written
request for disclosure under either (a) or (b) above, the Agent
or Lender receiving such request shall promptly notify the
Borrower of such request. For purposes of this Agreement, the
term "Proprietary Information" shall include all information
regarding the Borrower or any of its Affiliates which has been
furnished by the Borrower or its representatives before or after
the date hereof, and regardless of the manner in which it is
furnished; provided, however, that Proprietary Information shall
not include information which (x) is or becomes generally
available to the public other than as a result of disclosure by
the Agent or any Lender not permitted by this Agreement, (y) was
available to the Agent or any Lender on a nonconfidential basis
prior to its disclosure to the Agent or such Lender by the
Borrower or any of its Affiliates or (z) becomes available to the
Agent or any Lender on a nonconfidential basis from a person
other than the Borrower or its Affiliates who, to the best
knowledge of the Agent or such Lender, as the case may be, is not
otherwise bound by a confidentiality agreement with the Borrower
or any of its Affiliates and is not otherwise prohibited from
transmitting the information to the Agent or such Lender.
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.
FIRST OF AMERICA BANK CORPORATION,
by
/s/ Samuel G. Stone
Name: Samuel G. Stone
Title: Senior Vice President
and Treasurer
CHEMICAL BANK, individually and as
Agent,
by
/s/ Roger A. Parker
Name: Roger A. Parker
Title: Vice President
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
by
/s/ Paolo Foggini
Name: Paolo Foggini
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ Christine M. Herrick
Name: Christine M. Herrick
Title: Assistant Vice
President
BARCLAYS BANK PLC,
by
/s/ Charles M. Sabino
Name: Charles M. Sabino
Title: Vice President
THE BOATMEN'S NATIONAL BANK OF ST.
LOUIS,
by
/s/ Richard F. Wokoun
Name: Richard F. Wokoun
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.,
by
/s/ Donna B. Brown
Name: Donna B. Brown
Title: Vice President
CITIBANK, N.A.,
by
/s/ Robert V. Masi
Name: Robert V. Masi
Title: Vice President and SCO
CONTINENTAL BANK N.A.,
by
/s/ Jennings F. Werner
Name: Jennings F. Werner
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Renaud d'Herbes
Name: Renaud d'Herbes
Title: First Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH,
by
/s/ Renaud d'Herbes
Name: Renaud d'Herbes
Title: Authorized Signatory
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH,
by
/s/ Masami Tsuboi
Name: Masami Tsuboi
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Phillip J. Hagglund
Name: Phillip J. Hagglund
Title: Vice President
THE FUJI BANK, LIMITED,
by
/s/ Peter L. Chinnici
Name: Peter L. Chinnici
Title: Joint General Manager
HARRIS TRUST & SAVINGS BANK,
by
/s/ Donald J. Boreman
Name: Donald J. Boreman
Title: Vice President
MELLON BANK, N.A.,
by
/s/ Michael Shuster
Name: Michael Shuster
Title: Vice President
THE MITSUBISHI BANK, LIMITED,
by
/s/ Kenichi Tanuma
Name: Kenichi Tanuma
Title: Senior Vice President
and Joint General
Manager
NATIONSBANK OF TEXAS, N.A.,
by
/s/ Catherine G. Galletly
Name: Catherine G. Galletly
Title: Vice President
THE NORTHERN TRUST COMPANY,
by
/s/ Consider W. Ross
Name: Consider W. Ross
Title: Senior Vice President
NORWEST BANK,
by
/s/ John P. Sampson
Name: John P. Sampson
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Wayne G. Evans
Name: Wayne G. Evans
Title: Vice President
SAKURA,
by
/s/ Hajime Miyagi
Name: Hajime Miyagi
Title: Deputy General
Manager
SOCIETE GENERALE,
by
/s/ Emilio Martinez
Name: Emilio Martinez
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK AND CAYMAN
ISLANDS BRANCHES,
by
/s/ Lillian Tung Lum
Name: Lillian Tung Lum
Title: Vice President
by
/s/ Elie B. Khoury
Name: Elie B. Khoury
Title: Vice President
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, CHICAGO BRANCH,
by
/s/ Joseph C. Meek
Name: Joseph C. Meek
Title: Vice President &
Manager
<PAGE>
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
Chemical Bank, as Agent for
the Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, First of America Bank Corporation (the
"Borrower"), refers to the Competitive Advance and Revolving
Credit Facility Agreement dated as of March 25, 1994 (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<F1> ____________________
(C) Interest rate basis<F2> ____________________
(D) Interest Period and the last
day thereof<F3> ____________________
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]
[FN]
<F1> Not less than $5,000,000 (and in integral multiples of
$1,000,000) and not greater than the Total Commitment then
available.
<F2> Eurodollar Loan or Fixed Rate Loan.
<F3> Which shall be subject to the definition of "Interest
Period" and end not later than the Maturity Date.
<PAGE>
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 March 25, 1994 (as it may
hereafter be amended, modified, extended or restated from time to
time, the "Credit Agreement"), among First of America Bank
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 , 19 , 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].<F1> 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:
[FN]
<F1> 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.
<PAGE>
EXHIBIT A-3
FORM OF COMPETITIVE BID
Chemical Bank, as Agent for
the Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Competitive
Advance and Revolving Credit Facility Agreement dated as of March
25, 1994 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among First
of America Bank 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 , 19 , and in that connection sets
forth below the terms on which such Competitive Bid is made:
(A) Principal Amount<F1> ____________________
(B) Competitive Bid Rate<F2> ____________________
(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:
[FN]
<F1> 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.
<F2> I.e., LIBO Rate + or - %, in the case of
Eurodollar Loans or %, in the case of Fixed Rate Loans.
<PAGE>
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
Chemical Bank, as Agent for
the Lenders referred to below
270 Park Avenue
New York, N.Y. 10172
Attention: [ ]
Dear Ladies and Gentlemen:
The undersigned, First of America Bank Corporation (the
"Borrower"), refers to the Credit Agreement dated as of March 25,
1994 (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/MarginLender
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/MarginLender
$ [%]/[+/-. %]
$
The $ should be deposited in the Borrower's
account [account number] on [date].
Very truly yours,
FIRST OF AMERICA BANK CORPORATION
by
___________________________
Name:
Title:
<PAGE>
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
Chemical Bank, as Agent for the
Lenders referred to below,
270 Park Avenue
New York, N.Y. 10172
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, First of America Bank Corporation (the
"Borrower"), refers to the Competitive Advance and Revolving
Credit Facility Agreement dated as of March 25, 1994 (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<F1> ____________________
(C) Interest rate
basis<F2> ____________________
(D) Interest Period
and the last day
thereof<F3> ____________________
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]
[FN]
<F1> Not less than $5,000,000 (and in integral multiples of
$1,000,000) and not greater than the Total Commitment then
available.
<F2> Eurodollar Loan, CD Loan or ABR Loan.
<F3> Which shall be subject to the definition of "Interest
Period" and end not later than the Maturity Date.
<PAGE>
EXHIBIT B
Administrative Questionnaire
First of America Bank Corporation
NOTE TO PARTICIPANTS: PLEASE FORWARD THIS COMPLETED FORM AS
SOON AS POSSIBLE TO
JANET BELDEN, AGENCY GROUP, CHEMICAL BANK, VIA
TELECOPIER TO
(212) 270-0854.
PLEASE TYPE ALL INFORMATION.
AGENT: Chemical Bank
270 Park Avenue
New York, N.Y. 10017
CONTACTS: Mr. John Simonson (212) 270-1063 (fax) Structured
Finance
Mr. Robert J. Juelis (212) 270-1789 (fax) Banking
& Corporate Finance
OPERATIONAL CONTACT: Janet Belden (212) 622-0011
Agency Group
TELEX: NY: 353006 Answerback: ABSCNYK
TELECOPIER: (212) 622-0854
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 Janet Belden at (212) 622-0011 and [Rufus
Kearny] at (212) 701-5658.
Movement of funds to us: Wire Fed Funds to:
Chemical Bank
Wholesale Loan Services Department
52 Broadway, 4th Floor
New York, New York
Attention: [ ]
Reference: First of America Bank Corporation
PLEASE COMPLETE THE FOLLOWING INFORMATION FOR COMPETITIVE
AUCTIONS ONLY
Agent: Chemical Bank
270 Park Avenue - 7th Floor
New York, NY 10017
Attn: Structured Finance Department
Telex: NY: 353006 Answerback: ABSCNYK
Telecopier: (212) 270-1063 Primary
(212) 270-[ ] Backup
Contacts: Janet Belden (212) 622-0011 Agency Group
John Simonson (212) 270-4300 Structured Finance
<PAGE>
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:
<PAGE>
EXHIBIT C
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Competitive Advance and
Revolving Credit Facility Agreement dated as of March 25, 1994
(the "Credit Agreement"), among First of America Bank
Corporation, a Michigan 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, relinquish 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
$2,000.
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:
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
Principal Amount forth, to at least
Assigned (and 8 decimals, as a
identifying percentage of the
information as to Facility and the
Facility individual aggregate
Competitive Loans) Commitments of all
Lenders
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 FIRST OF AMERICA BANK
CORPORATION,
as Borrower,
By:_________________________ By:_________________________
Name: Name:
Title: Title:
[FN]
*/ To be completed only if consents are required under
Section 9.04(a).
<PAGE>
EXHIBIT D
[FORM OF]
OPINION OF COUNSEL FOR
FIRST OF AMERICA BANK CORPORATION<F1>
1. First of America Bank Corporation (i) is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Michigan, (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 First of
America Bank 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 First of
America Bank Corporation of the Agreement and the borrowings of
First of America Bank 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 First
of America Bank Corporation, (2) any order of any governmental
authority or (3) any provision of any indenture, agreement or
other instrument to which First of America Bank 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
First of America Bank Corporation.
3. The Agreement has been duly executed and delivered
by First of America Bank Corporation and constitutes a legal,
valid and binding obligation of First of America Bank Corporation
enforceable against First of America Bank 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.
[FN]
<F1> 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 March 25, 1994, among First of America Bank
Corporation, the lenders listed in Schedule 2.01 thereto, and
Chemical Bank, as Administrative Agent.
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 First of America Bank 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.
<PAGE>
SCHEDULE 2.01
Contact Person
Name and Address of Lender and Telecopy Number Commitment
Chemical Bank Mr. Robert J. Juelis $11,250,000
270 Park Avenue (212) 270-1789
New York, NY 10017
Bank of America NT & SA Mr. Paolo Foggini $8,750,000
Financial Institutions (415) 622-1173
Group Unit 5179
555 California Street
San Francisco, CA 94104
The Bank of New York Ms. Christine Herrick $7,500,000
One Wall Street (212) 809-9520
17th Floor
New York, NY 10286
Barclays Bank PLC Mr. Charles Sabino $4,250,000
222 Broadway, 12th Floor (212) 412-7665
New York, NY 10038
Boatmen's National Bank Mr. Richard Wokoun $4,250,000
of St. Louis (314) 466-6499
800 Market Street
Box 236
St. Louis, MO 63166-0326
The Chase Manhattan Bank, Ms. Donna Brown $8,750,000
N.A. (212) 552-7879
One Chase Manhattan Plaza Ms. Susan F. Herzog
5th Floor (212) 552-1372
New York, NY 10081
Citibank, N.A. Ms. Catherine Tomey $6,000,000
399 Park Avenue (212) 793-5904
12th Floor, Zone 12
New York, NY 10043
Continental Bank N.A. Mr. Jennings F. $8,750,000
231 South LaSalle Street Werner
1405 (312) 987-6982
Chicago, IL 60697
Credit Lyonnais Mr. Gregory Raule $6,000,000
1301 Avenue of the (212) 261-3401
Americas
17th Floor
New York, NY 10019
The Dai-Ichi Kangyo Bank, Mr. Brian Cushing $4,250,000
Ltd. (312) 876-2011
10 South Wacker Drive
26th Floor
Chicago, IL 60606
The First National Bank of Mr. Phil Hagglund $8,750,000
Chicago (312) 732-6222
One First National Plaza
Suite 0162
Chicago, IL 60670-0162
The Fuji Bank, Limited Mr. Peter Chinnici $6,000,000
225 West Wacker Drive (312) 621-0539
Suite 2000
Chicago, IL 60606
Harris Trust & Savings Mr. Donald J. Boreman $7,500,000
Bank Ms. Donna Kerpan
111 West Monroe Street (312) 765-8382
4th Floor
Chicago, IL 60690
Mellon Bank, N.A. Mr. Michael Shuster $6,000,000
One Mellon Bank Center (412) 234-9047
151-0400
Pittsburgh, PA 15258
The Mitsubishi Bank, Ms. Diane Tkach $4,250,000
Limited (312) 263-2555
115 South LaSalle Street
Suite 2100
Chicago, IL 60603
Nationsbank of Texas, N.A. Ms. Kate Galletly $6,000,000
901 Main Street (214) 508-0604
66th Floor
Dallas, TX 75202
The Northern Trust Company Mr. Thomas Bernhardt $7,500,000
50 South LaSalle Street (312) 444-3378
Chicago, IL 60675
Norwest Bank Ms. Vicky McEntyre $6,000,000
6th and Marquette Avenues (612) 667-3510
Minneapolis, Minnesota
55479-0015
PNC Bank, N.A. Mr. Mark Merrill $6,000,000
5th Avenue and Wood (412) 762-2784
Streets
Pittsburgh, PA 15265
Sakura Mr. David Wuertz $6,000,000
227 West Monroe Street (312) 332-5345
Suite 4700
Chicago, IL 60606
Societe Generale Mr. Jean-Francois $6,000,000
50 Rockefeller Plaza Hamant
New York, NY 10020 (212) 581-8975
Westdeutsche Landesbank Ms. Lillian Lum $6,000,000
Girozentrale (212) 852-6140
1211 Avenue of the
Americas
23rd Floor
New York, NY 10036
The Yasuda Trust and Mr. David Beatty $4,250,000
Banking Co., Ltd. (312) 683-3899
181 West Madison Street
Suite 4500
Chicago, IL 60602
__________________
TOTAL COMMITMENT $150,000,000
<PAGE>
SCHEDULE 3.06
None.
<PAGE>
SCHEDULE 3.14
Subsidiaries of the Borrower As of March 25, 1994
First of America Bank - Ann Arbor
First of America Bank - Central
First of America Bank - Champaign County, N.A.
First of America Bank - Decatur, N.A.
First of America Bank - Kankakee/Will County, N.A.
First of America Bank - Northeast Illinois, N.A.
First of America Bank - Champion, N.A.
First of America Bank - Michigan, N.A.
First of America Bank - Mid Michigan, N.A.
First of America Bank - Northern Michigan
First of America Bank - Illinois, N.A.
First of America Bank - Quad Cities, N.A.
First of America Bank - North Central Illinois, N.A.
First of America Bank - Southeast Michigan, N.A.
First of America Bank - Springfield, N.A.
First of America Bank - Upper Peninsula, N.A.
First of America Bank - West Michigan
First of America Bank - Security
First of America Community Development Corporation
First of America Insurance Company
First of America Mortgage Company
First of America Bank Corporation - Indiana
First of America Trust Company
First of America Information Systems, Inc.
Secure Data Corporation
[TYPE]
CONFORMED COPY
THREE-YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 25, 1994
Among
FIRST OF AMERICA BANK CORPORATION,
THE LENDERS NAMED HEREIN,
and
CHEMICAL BANK, as Agent
[CS&M Ref. No. 6700-199]
TABLE OF CONTENTS
Article Section Page
I. DEFINITIONS
1.01 Defined Terms . . . . . . . . . . . 1
1.02 Terms Generally . . . . . . . . . . 20
1.03 Accounting Terms . . . . . . . . . . 20
II. THE CREDITS
2.01 Commitments . . . . . . . . . . . . 21
2.02 Loans . . . . . . . . . . . . . . . 21
2.03 Competitive Bid Procedure . . . . . 23
2.04 Standby Borrowing Procedure . . . . 26
2.05 Refinancings . . . . . . . . . . . 27
2.06 Fees . . . . . . . . . . . . . . . 28
2.07 Repayment of Loans; Evidence
of Debt . . . . . . . . . . . . . . 29
2.08 Interest on Loans . . . . . . . . . 30
2.09 Default Interest . . . . . . . . . 31
2.10 Alternate Rate of Interest . . . . 31
2.11 Termination, Reduction of
Commitments . . . . . . . . . . . . 32
2.12 Prepayment . . . . . . . . . . . . 33
2.13 Reserve Requirements; Change in
Circumstances . . . . . . . . . . . 33
2.14 Change in Legality . . . . . . . . . 35
2.15 Indemnity . . . . . . . . . . . . . 36
2.16 Pro Rata Treatment . . . . . . . . . 37
2.17 Sharing of Setoffs . . . . . . . . . 37
2.18 Payments . . . . . . . . . . . . . . 38
2.19 Taxes . . . . . . . . . . . . . . . 39
2.20 Duty to Mitigate; Assignment of
Commitments Under Certain
Circumstances . . . . . . . . . . . 42
III. REPRESENTATIONS AND WARRANTIES
3.01 Financial Condition . . . . . . . . 43
3.02 No Change . . . . . . . . . . . . . 44
3.03 Corporate Existence; Compliance with
Law . . . . . . . . . . . . . . . . 44
3.04 Corporate Power; Authorization;
Enforceable Obligations . . . . . . 44
3.05 No Legal Bar . . . . . . . . . . . 45
3.06 No Material Litigation . . . . . . 45
3.07 No Default . . . . . . . . . . . . 45
3.08 Ownership of Property; Liens . . . . 45
3.09 No Contractual Restrictions . . . . 45
3.10 Taxes . . . . . . . . . . . . . . . 45
3.11 Federal Reserve Regulations . . . . 46
3.12 Employee Benefit Plans . . . . . . . 46
3.13 Investment Company Act; Public
Utility Holding Company Act . . . . 46
3.14 Subsidiaries . . . . . . . . . . . . 47
3.15 Use of Proceeds . . . . . . . . . . 47
3.16 No Material Misstatements . . . . . 47
3.17 Environmental and Safety Matters . . 47
3.18 Capital Commitments . . . . . . . . 47
IV. CONDITIONS OF LENDING
4.01 All Borrowings . . . . . . . . . . . 48
4.02 Closing Date . . . . . . . . . . . . 48
V. AFFIRMATIVE COVENANTS
5.01 Financial Statements . . . . . . . . 50
5.02 Inspection of Property; Books and
Records; Discussions . . . . . . . . 52
5.03 Notices . . . . . . . . . . . . . . 52
5.04 Continuance of Business . . . . . . 52
5.05 Compliance with Regulatory
Standards . . . . . . . . . . . . . 53
5.06 Payment of Obligations . . . . . . . 53
5.07 Maintenance of Property, Insurance . 53
5.08 Employee Benefits . . . . . . . . . 53
5.09 Capital Requirements . . . . . . . . 54
VI. NEGATIVE COVENANTS
6.01 Limitation on Liens . . . . . . . . 55
6.02 Prohibition of Fundamental Changes 55
6.03 Consolidated Net Worth . . . . . . . 55
6.04 Nonperforming Assets . . . . . . . . 55
6.05 Double Leverage . . . . . . . . . . 55
6.06 Use of Proceeds . . . . . . . . . . 56
6.07 Regulation U . . . . . . . . . . . . 56
6.08 Capital Commitments . . . . . . . . 56
VII. EVENTS OF DEFAULT 56
VIII. THE AGENT 60
IX. MISCELLANEOUS
9.01 Notices . . . . . . . . . . . . . . 63
9.02 Survival of Agreement . . . . . . . 63
9.03 Binding Effect . . . . . . . . . . . 64
9.04 Successors and Assigns . . . . . . . 64
9.05 Expenses; Indemnity . . . . . . . . 67
9.06 Applicable Law . . . . . . . . . . . 68
9.07 Waivers; Amendment . . . . . . . . . 68
9.08 Entire Agreement . . . . . . . . . . 69
9.09 Severability . . . . . . . . . . . . 70
9.10 Counterparts . . . . . . . . . . . . 70
9.11 Headings . . . . . . . . . . . . . . 70
9.12 Right of Setoff . . . . . . . . . . 70
9.13 Jurisdiction; Consent to Service
of Process . . . . . . . . . . . . 71
9.14 Waiver of Jury Trial . . . . . . . . 71
9.15 Confidentiality . . . . . . . . . . 72
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
Schedules
Schedule 2.01 Lenders and Commitments
Schedule 3.06 Litigation
Schedule 3.14 Subsidiaries of the Borrower
CONFORMED COPY
COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT (the "Agreement") dated as of
March 25, 1994, among FIRST OF AMERICA BANK
CORPORATION, a Michigan 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 $150,000,000 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 to provide working capital and for other general corporate
purposes. 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.
"Adjusted CD Rate" shall mean, with respect to any
CD Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the sum of (a) a rate per annum equal to the product of (i) the
Fixed CD Rate in effect for such Interest Period and
(ii) Statutory Reserves, plus (b) the Assessment Rate. For
purposes hereof, the term "Fixed CD Rate" shall mean the
arithmetic average (rounded upwards, if necessary, to the next
1/100 of 1%) of the prevailing rates per annum bid at or about
10:00 a.m., New York City time, to the Agent on the first
Business Day of the Interest Period applicable to such
CD Borrowing by three New York City negotiable certificate of
deposit dealers of recognized standing selected by the Agent for
the purchase at face value of negotiable certificates of deposit
of major United States money center banks in a principal amount
approximately equal to the Agent's portion of such CD Borrowing
and with a maturity comparable to such Interest Period.
"Administrative Questionnaire" shall mean an
Administrative Questionnaire in the form of Exhibit B hereto.
"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 pub-
lished for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent
from 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 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 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.
"CD Borrowing" shall mean a Borrowing comprised of
CD Loans.
"CD Loan" shall mean any Standby Loan bearing interest
at a rate determined by reference to the Adjusted CD Rate in
accordance with the provisions of Article II.
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) nominated by
the board of directors of the Borrower (or a nominating committee
thereof), nor (ii) appointed by directors so nominated; or
(c) any Person or group (other than the board of directors of the
Borrower) shall otherwise directly or indirectly Control the
Borrower.
"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-1.
"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 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.
"Equity Investment in Subsidiaries" shall mean the
Borrower's aggregate equity investment in the Subsidiaries,
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.
"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 A Credit Agreement" shall mean the
$150,000,000 Competitive Advance and Revolving Credit Facility
Agreement dated the date hereof among the parties hereto.
"Facility Fee" shall have the meaning assigned to such
term in Section 2.06(a).
"Facility Fee Percentage" shall mean on any date the
applicable percentage set forth below based upon the ratings by
S&P and Moody's, respectively, applicable on such date to the
type of Index Debt described below:
<TABLE>
Index Debt Described in Clause (i) or (iii)
of the Definition of Index Debt
<CAPTION>
Category 1 Facility Fee Percentage
<S> <C>
A+ or higher by S&P .150%
A1 or higher by Moody's
Category 2
A or A- by S&P .180%
A2 or A3 by Moody's
Category 3
BBB+ by S&P .210%
Baa1 by Moody's
Category 4
BBB by S&P .250%
Baa2 by Moody's
Category 5
BBB- by S&P .375%
Baa3 by Moody's
Category 6
BB+ or lower by S&P .500%
Ba1 or lower by Moody's
</TABLE>
<TABLE>
Index Debt Described in Clause (ii)
of the Definition of Index Debt
<CAPTION>
Category 1 Facility Fee Percentage
<S> <C>
A or higher by S&P .150%
A2 or higher by Moody's
Category 2
A- or BBB+ by S&P .180%
A3 or Baa1 by Moody's
Category 3
BBB by S&P .210%
Baa2 by Moody's
Category 4
BBB- by S&P .250%
Baa3 by Moody's
Category 5
BB+ by S&P .375%
Ba1 by Moody's
Category 6
BB or lower by S&P .500%
Ba2 or lower by Moody's
</TABLE>
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 6; (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 Facility Fee
Percentage shall be based on the Category containing the lower of
such ratings; and (iii) if any rating 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
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 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 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, applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"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) rated by both S&P and
Moody's or (ii) if the debt described in 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
Moody's 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 Ratings Review Letters dated not earlier
than the most recent Ratings Review Date (or which has been
publicly rated by only one of S&P or Moody's and as to which a
Ratings Review Letter from the other rating agency has been
delivered to the Agent not earlier than such date).
"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 or a CD 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.
"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 CD Borrowing, a period of 30,
60, 90 or 180 days' duration, as the Borrower may elect,
commencing on the date of such Borrowing, (c) 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 (d) 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 the 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 offered to the principal London office of the
Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m
.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, a CD Loan, an ABR Loan or a
Fixed Rate Loan, as permitted hereby.
"Loan Documents" shall mean (i) this Agreement and the
letter agreement referred to in Section 2.06(c) and (ii) any
amendment, supplement, modification, consent or waiver of, to or
in respect of either 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 condition,
financial or otherwise, of the Borrower and its subsidiaries
taken as a whole.
"Maturity Date" shall mean March 25, 1997.
"Moody's" shall mean Moody's 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.
"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.
"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 66-2/3% of the Total
Commitment or, for purposes of Article VII, Lenders holding Loans
representing at least 66-2/3% 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.
"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
would be a Significant Subsidiary if all references to 10% in
Rule 1-02 of Regulation S-X of the Securities and Exchange
Commission, 17 C.F.R. 210.1-02 were instead references to 7.5%.
"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. 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 CD 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:
<TABLE>
Index Debt Described in Clause (i) or (iii)
of the Definition of Index Debt
<CAPTION>
Category 1 LIBOR Spread CD Spread
<S> <C> <C>
A+ or higher by S&P .250% .375%
A1 or higher by Moody's
Category 2
A or A- by S&P .320% .445%
A2 or A3 by Moody's
Category 3
BBB+ by S&P .390% .515%
Baa1 by Moody's
Category 4
BBB by S&P .500% .625%
Baa2 by Moody's
Category 5
BBB- by S&P .375% .500%
Baa3 by Moody's
Category 6
BB+ or lower by S&P .500% .625%
Ba1 or lower by Moody's;
</TABLE>
<TABLE>
Index Debt Described in Clause (ii)
of the Definition of Index Debt
<CAPTION>
Category 1 LIBOR Spread CD Spread
<S> <C> <C>
A or higher by S&P .250% .375%
A2 or higher by Moody's
Category 2
A- or BBB+ by S&P .320% .445%
A3 or Baa1 by Moody's
Category 3
BBB by S&P .390% .515%
Baa2 by Moody's
Category 4
BBB- by S&P .500% .625%
Baa3 by Moody's
Category 5
BB+ by S&P .375% .500%
Ba1 by Moody's
Category 6
BB or lower by S&P .500% .625%
Ba2 or lower by Moody's;
</TABLE>
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 6; (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 lower of such ratings; and
(iii) if any rating 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 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.
"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, a CD 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 (i) the applicable Interest Period, in the case of the
Adjusted CD Rate, and (ii) three months, in the case of the Base
CD Rate (as such term is used in the definition of "Alternate
Base Rate"). 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.
"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.
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 Sec-
tion 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 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, CD 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 five 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 para-
graph (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 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 at
(i) in the case of the Borrower, the interest rate applicable at
the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. 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 CD Loan or 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 $5,000,000 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
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 para-
graph (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 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 $5,000,000 and an integral
multiple of $1,000,000; provided further, however, that if a
Competitive Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such Competitive
Loan may be for a minimum of $1,000,000 or any 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-5 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, (b) in the case of a
CD Borrowing, not later than 12:00 (noon), New York City time,
two Business Days before a proposed borrowing and (c) in the case
of an ABR Borrowing, not later than 12:00 (noon), 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, a CD 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 or CD 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 requested Standby Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Standby Borrowing
or CD Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of
one month's duration, in the case of a Eurodollar Borrowing, or
30 days' duration, in the case of a CD Borrowing. If the
Borrower shall not have given notice in accordance with this Sec-
tion 2.04 and Section 2.05 of its election to refinance a Standby
Borrowing prior to the end of the Interest Period in effect for
such Borrowing, then the Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have
given notice of an election to refinance such Borrowing with an
ABR Borrowing. 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. Refinancings. The Borrower may
refinance all or any part of any Borrowing with a Borrowing of
the same or a different Type made pursuant to Section 2.03 or
Section 2.04, subject to the conditions and limitations set forth
herein and elsewhere in this Agreement, including refinancings of
Competitive Borrowings with Standby Borrowings and Standby
Borrowings with Competitive Borrowings. Any Borrowing or part
thereof so refinanced shall be deemed to be repaid in accordance
with Section 2.07 with the proceeds of a new Borrowing hereunder
and the proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced,
shall not be paid by the Lenders to the Agent or by the Agent to
the Borrower pursuant to Section 2.02(c); provided, however, that
(i) if the principal amount extended by a Lender in a refinancing
is greater than the principal amount extended by such Lender in
the Borrowing being refinanced, then such Lender shall pay such
difference to the Agent for distribution to the Lenders described
in (ii) below, (ii) if the principal amount extended by a Lender
in the Borrowing being refinanced is greater than the principal
amount being extended by such Lender in the refinancing, the
Agent shall return the difference to such Lender out of amounts
received pursuant to (i) above, and (iii) to the extent any
Lender fails to pay the Agent amounts due from it pursuant to
(i) above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with
Section 2.07 and shall be payable by the Borrower.
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 quarter during which the average daily
outstanding principal amount of the Loans plus the amount of the
Loans under the Facility A Credit Agreement shall be greater than
50% but less than or equal to 75% of the Total Commitment under
this Agreement plus the Total Commitment under the Facility A
Credit Agreement, the Borrower shall pay a utilization fee equal
to .0625% per annum (computed on the basis of the actual number
of days elapsed in a year of 360 days) of the average daily
outstanding principal amount of the Loans for that quarter. For
any quarter during which the average daily outstanding principal
amount of the Loans plus the amount of the Loans under the
Facility A Credit Agreement shall be greater than 75% of the
Total Commitment under this Agreement plus the Total Commitment
under the Facility A Credit Agreement, the Borrower shall pay a
utilization fee equal to .125% (computed as aforesaid) of the
average daily outstanding principal amount of the Loans for that
quarter. 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 February 7, 1994 between the Borrower and the Agent.
(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 Borrower hereby agrees that the outstanding principal
balance of each Loan shall be payable on the last day of the
Interest Period applicable thereto (and in any event not later
than the Maturity Date). Each Loan shall bear interest 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, to
the extent permitted by applicable law, 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 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 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 CD 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 (a) the Adjusted CD Rate
for the Interest Period in effect for such Borrowing plus (b) the
Spread applicable to CD Loans from time to time in effect.
Interest on each CD Borrowing shall be payable on each applicable
Interest Payment Date except as otherwise provided in this
Agreement. The Adjusted CD 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, 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.
(d) 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. (a) 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 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 practi-
cable 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.
(b) In the event, and on each occasion, that on or
before the day on which the Adjusted CD Rate for a CD Borrowing
is to be determined the Agent shall have determined that such
Adjusted CD Rate cannot be determined for any reason, including
the inability of the Agent to obtain sufficient bids in
accordance with the terms of the definition of Fixed CD Rate, or
the Agent shall determine that the Adjusted CD Rate for such
CD Borrowing will not adequately and fairly reflect the cost to
any Lender of making or maintaining its CD Loan during such
Interest Period, 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, any request by the Borrower for a
CD Borrowing pursuant to Section 2.04 shall, until the Agent
shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, be
deemed to be a request for an ABR Borrowing; provided, however,
that any request by the Borrower for such a CD 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.
(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 termina-
tion 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 giving written or
telecopied notice (or telephone notice promptly confirmed by
written or telecopied notice) to the Agent: (i) before
10:00 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) 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 require-
ment against assets of, deposits with or for the account of or
credit extended by any Lender, or shall result in the imposition
on any Lender or the London interbank market of any other condi-
tion 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.
(b) 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 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.
(c) A certificate of a Lender setting forth such
amount or amounts as shall be necessary to compensate such Lender
as specified in paragraph (a) or (b) 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.
(d) 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) Notwith-
standing 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:
(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 (as defined below) 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 refinance or
continue any Loan hereunder after irrevocable notice of such
borrowing, refinancing or continuation has been given pursuant to
Section 2.03 or 2.04, (c) any payment, prepayment or conversion
of a Eurodollar Loan, CD 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,
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, CD Loan or Fixed Rate
Loan. As used herein, "Loss or Expense" shall mean an amount
equal to the excess, 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 Adjusted CD 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 the Facility Fees,
each reduction of the Commitments and each refinancing 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 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 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 270 Park
Avenue, New York, New York, 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")) and
(ii) franchise taxes imposed on the net income of the Agent or
any Lender (or Transferee), 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 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.
(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 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 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 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 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 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.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the
Lenders that:
SECTION 3.01. Financial Condition. The consolidated
balance sheet of the Borrower and its consolidated Subsidiaries
as at December 31, 1993, and the related consolidated statements
of income and cash flows and changes in shareholders' equity of
the Borrower and its consolidated Subsidiaries for the fiscal
year ended on such date, reported on by KPMG Peat Marwick 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). Neither the Borrower nor any of its consolidated
Subsidiaries had as of December 31, 1993 any material Contingent
Obligation, contingent liabilities or liability for taxes, long-
term lease or unusual forward or long-term commitment, which is
not reflected in the foregoing balance sheet as of such date or
in the notes thereto.
SECTION 3.02. No Change. Since December 31, 1993,
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 and the legal right 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.
SECTION 3.04. Corporate Power; Authorization;
Enforceable Obligations. The Borrower has the corporate power
and authority and the legal right to make, deliver and perform
its obligations under this Agreement and to borrow hereunder and
has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and 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. No Default. Neither the Borrower nor
any Subsidiary is in default under or with respect to any
Contractual Obligation in any respect which could result in a
Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
SECTION 3.08. 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.
SECTION 3.09. No Contractual Restrictions. No
Contractual Obligation of the Borrower or any Subsidiary has
resulted, or insofar as the Borrower may reasonably foresee may
result in a Material Adverse Effect.
SECTION 3.10. 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 3.11. Federal Reserve Regulations.
(a) Neither the Borrower nor any of the Subsidiaries is engaged
principally, or as one of its important activities, 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.
SECTION 3.12. 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
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 3.13. 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 3.14. Subsidiaries. Schedule 3.14 sets forth
a complete and correct list, as of the date hereof, of all
Subsidiaries. Except as set forth in Schedule 3.14, all the
issued and outstanding shares of capital stock or the partnership
interests, as the case may be, of each of the Subsidiaries have
been validly issued and are fully paid and nonassessable and are
owned directly or indirectly by the Borrower free and clear of
all Liens whatsoever, and there are no options, warrants, calls,
conversion or exchange rights, commitments or agreements of any
character obligating any of the Subsidiaries to issue, deliver or
sell additional shares of capital stock of any class or any
securities convertible into or exchangeable for any such capital
stock or any additional partnership interests.
SECTION 3.15. Use of Proceeds. The Borrower will use
the proceeds of the Loans only for the purposes specified in the
preamble to this Agreement.
SECTION 3.16. 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 3.17. 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 3.18. Capital Commitments. The Borrower is
not a party to any Capital Commitment.
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, in the case of a refinancing of
any Loan pursuant to Section 2.05 that does not increase the
aggregate principal amount of Loans of any Lender
outstanding, the representations set forth in Sections 3.02
and 3.06) 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 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 Howard & Howard, counsel for the Borrower, dated
the Closing Date and addressed to the Lenders and
satisfactory to Cravath, Swaine & Moore, counsel for the
Agent, and the Borrower hereby instructs such counsel to
deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and
the borrowings hereunder shall be satisfactory to the
Lenders and to Cravath, Swaine & Moore, 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 & Moore, 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.
(f) The Agent shall have received a certificate of a
Financial Officer of the Borrower certifying as to (i) the
termination of (a) the $100,000,000 five-year Credit
Agreement, as amended, dated as of April 21, 1989, between
the Borrower and Security Pacific National Bank, as Agent
and (b) the $35,000,000 Promissory Note, dated December 6,
1993, between the Borrower and Continental Bank, N.A., and
(ii) the payment in full of all obligations of the Borrower
outstanding under such agreement and note.
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. 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 consoli-
dated 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
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 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 ful-
filled 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 specif-
ically indicated, and (ii) showing in detail the calcula-
tions 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, and within five days after the
same are filed, copies of all financial statements and
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; and
(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 any of
its properties and examine and make abstracts from any of its
books and records, other than information as to which the
Borrower may assert the attorney/client privilege where such
privilege would be impaired by disclosure to the Lenders, 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 and employees of the Borrower and
any Subsidiary and with the Borrower's independent public accoun-
tants.
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 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 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 material Indebtedness and
other material obligations (defined for purposes hereof as
Indebtedness and obligations in amounts exceeding $10 million) of
whatever nature, except, without prejudice to the effectiveness
of paragraph (f) of Article VII hereof, for any Indebtedness or
other obligations (including any obligations for taxes) 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; and furnish to each Lender, upon written
request, full information as to the insurance carried.
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 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. The Borrower
will, and will cause each of its 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. 1831o, 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
Subsidiary.
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. Consolidated Net Worth. Permit
Consolidated Net Worth at any time to be less than
$1,295,000,000.
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 1.35 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 (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
(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 Section 6.01 to the extent any default under
such Section results from a Lien not voluntarily created by
the Borrower); 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; 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 $10,000,000, 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
$10 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, other than any default under any covenant
restricting the pledge or transfer of Margin Stock in any
instrument or agreement to which the Lender or any Affiliate
of the Lender is a party; 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, 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 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 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 thereof; 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
(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 $5,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged or stayed
within 30 days from entry thereof; or
(j) there shall have occurred a Change in Control;
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 and 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 notwith-
standing 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 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.
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 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 agrees that any allocation made
in good faith by the Agent of expenses or other amounts referred
to in this paragraph between this Agreement and the Facility A
Credit Agreement shall be conclusive and binding for all
purposes.
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 commu-
nications 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 First of America Bank
Corporation, 211 South Rose Street, Kalamazoo, MI 49007,
Attention of Mr. John H. Miner, (Telecopy No. (616) 376-
7016);
(b) if to the Agent, to it at 270 Park Avenue,
9th Floor, New York, New York 10017, Attention of Mr. Robert
J. Juelis (Telecopy No. 212-270-1789); and
(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 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, and
(iii) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance, and a
processing and recordation fee of $2,000. 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 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 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 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 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, 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 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 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 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
been induced to enter into this Agreement by, among other things,
the mutual waivers and certification in this Section.
SECTION 9.15. Confidentiality. Unless otherwise
agreed to in writing by the Borrower, the Agent and each Lender
hereby agrees to keep all Proprietary Information (as defined
below) confidential and not to disclose or reveal any Proprietary
Information to any person other than the Agent's or such Lender's
directors, officers, employees, Affiliates, attorneys,
accountants and agents and to actual or potential assignees and
participants, and then only on a confidential basis and only if
needed in connection with the administration and enforcement of
this Agreement; provided, however, that the Agent or any Lender
may disclose Proprietary Information (a) as required by law, rule
regulation or judicial process, or (b) as requested or required
by any Governmental Authority. Unless prohibited by law or
regulation from doing so, in the case of a formal, written
request for disclosure under either (a) or (b) above, the Agent
or Lender receiving such request shall promptly notify the
Borrower of such request. For purposes of this Agreement, the
term "Proprietary Information" shall include all information
regarding the Borrower or any of its Affiliates which has been
furnished by the Borrower or its representatives before or after
the date hereof, and regardless of the manner in which it is
furnished; provided, however, that Proprietary Information shall
not include information which (x) is or becomes generally
available to the public other than as a result of disclosure by
the Agent or any Lender not permitted by this Agreement, (y) was
available to the Agent or any Lender on a nonconfidential basis
prior to its disclosure to the Agent or such Lender by the
Borrower or any of its Affiliates or (z) becomes available to the
Agent or any Lender on a nonconfidential basis from a person
other than the Borrower or its Affiliates who, to the best
knowledge of the Agent or such Lender, as the case may be, is not
otherwise bound by a confidentiality agreement with the Borrower
or any of its Affiliates and is not otherwise prohibited from
transmitting the information to the Agent or such Lender.
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.
FIRST OF AMERICA BANK CORPORATION,
by
/s/ Samuel G. Stone
Name: Samuel G. Stone
Title: Senior Vice President
and Treasurer
CHEMICAL BANK, individually and as
Agent,
by
/s/ Roger A. Parker
Name: Roger A. Parker
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
by
/s/ Paolo Foggini
Name: Paolo Foggini
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ Christine M. Herrick
Name: Christine M. Herrick
Title: Assistant Vice
President
BARCLAYS BANK PLC,
by
/s/ Charles M. Sabino
Name: Charles M. Sabino
Title: Vice President
THE BOATMEN'S NATIONAL BANK OF ST.
LOUIS,
by
/s/ Richard F. Wokoun
Name: Richard F. Wokoun
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.,
by
/s/ Donna B. Brown
Name: Donna B. Brown
Title: Vice President
CITIBANK, N.A.,
by
/s/ Robert V. Masi
Name: Robert V. Masi
Title: Vice President and SCO
CONTINENTAL BANK N.A.,
by
/s/ Jennings F. Werner
Name: Jennings F. Werner
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Renaud d'Herbes
Name: Renaud d'Herbes
Title: First Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH,
by
/s/ Renaud d'Herbes
Name: Renaud d'Herbes
Title: Authorized Signatory
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH,
by
/s/ Masami Tsuboi
Name: Masami Tsuboi
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Phillip J. Hagglund
Name: Phillip J. Hagglund
Title: Vice President
THE FUJI BANK, LIMITED,
by
/s/ Peter L. Chinnici
Name: Peter L. Chinnici
Title: Joint General Manager
HARRIS TRUST & SAVINGS BANK,
by
/s/ Donald J. Boreman
Name: Donald J. Boreman
Title: Vice President
MELLON BANK, N.A.,
by
/s/ Michael Shuster
Name: Michael Shuster
Title: Vice President
THE MITSUBISHI BANK, LIMITED,
by
/s/ Kenichi Tanuma
Name: Kenichi Tanuma
Title: Senior Vice President
and Joint General
Manager
NATIONSBANK OF TEXAS, N.A.,
by
/s/ Catherine G. Galletly
Name: Catherine G. Galletly
Title: Vice President
THE NORTHERN TRUST COMPANY,
by
/s/ Consider W. Ross
Name: Consider W. Ross
Title: Senior Vice President
NORWEST BANK,
by
/s/ John P. Sampson
Name: John P. Sampson
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Wayne G. Evans
Name: Wayne G. Evans
Title: Vice President
SAKURA,
by
/s/ Hajime Miyagi
Name: Hajime Miyagi
Title: Deputy General
Manager
SOCIETE GENERALE,
by
/s/ Emilio Martinez
Name: Emilio Martinez
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK AND CAYMAN
ISLANDS BRANCHES,
by
/s/ Lillian Tung Lum
Name: Lillian Tung Lum
Title: Vice President
by
/s/ Elie B. Khoury
Name: Elie B. Khoury
Title: Vice President
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, CHICAGO BRANCH,
by
/s/ Joseph C. Meek
Name: Joseph C. Meek
Title: Vice President &
Manager
<PAGE>
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
Chemical Bank, as Agent for
the Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, First of America Bank Corporation (the
"Borrower"), refers to the Competitive Advance and Revolving
Credit Facility Agreement dated as of March 25, 1994 (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<F1> ____________________
(C) Interest rate basis<F2> ____________________
(D) Interest Period and the last
day thereof<F3> ____________________
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]
[FN]
<F1> Not less than $5,000,000 (and in integral multiples of
$1,000,000) and not greater than the Total Commitment then
available.
<F2> Eurodollar Loan or Fixed Rate Loan.
<F3> Which shall be subject to the definition of "Interest
Period" and end not later than the Maturity Date.
<PAGE>
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 March 25, 1994 (as it may
hereafter be amended, modified, extended or restated from time to
time, the "Credit Agreement"), among First of America Bank
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 , 19 , 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].<F1> 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:
[FN]
<F1> 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.
<PAGE>
EXHIBIT A-3
FORM OF COMPETITIVE BID
Chemical Bank, as Agent for
the Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Competitive
Advance and Revolving Credit Facility Agreement dated as of March
25, 1994 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among First
of America Bank 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 , 19 , and in that connection sets
forth below the terms on which such Competitive Bid is made:
(A) Principal Amount<F1> ____________________
(B) Competitive Bid Rate<F2> ____________________
(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:
[FN]
<F1> 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.
<F2> I.e., LIBO Rate + or - %, in the case of
Eurodollar Loans or %, in the case of Fixed Rate Loans.
<PAGE>
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
Chemical Bank, as Agent for
the Lenders referred to below
270 Park Avenue
New York, N.Y. 10172
Attention: [ ]
Dear Ladies and Gentlemen:
The undersigned, First of America Bank Corporation (the
"Borrower"), refers to the Credit Agreement dated as of March 25,
1994 (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/MarginLender
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/MarginLender
$ [%]/[+/-. %]
$
The $ should be deposited in the Borrower's
account [account number] on [date].
Very truly yours,
FIRST OF AMERICA BANK CORPORATION
by
___________________________
Name:
Title:
<PAGE>
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
Chemical Bank, as Agent for the
Lenders referred to below,
270 Park Avenue
New York, N.Y. 10172
[Date]
Attention:
Dear Ladies and Gentlemen:
The undersigned, First of America Bank Corporation (the
"Borrower"), refers to the Competitive Advance and Revolving
Credit Facility Agreement dated as of March 25, 1994 (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<F1> ____________________
(C) Interest rate basis<F2> ____________________
(D) Interest Period and the
last day thereof<F3> ____________________
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]
[FN]
<F1> Not less than $5,000,000 (and in integral multiples of
$1,000,000) and not greater than the Total Commitment then
available.
<F2> Eurodollar Loan, CD Loan or ABR Loan.
<F3> Which shall be subject to the definition of "Interest
Period" and end not later than the Maturity Date.
<PAGE>
EXHIBIT B
Administrative Questionnaire
First of America Bank Corporation
NOTE TO PARTICIPANTS: PLEASE FORWARD THIS COMPLETED FORM AS
SOON AS POSSIBLE TO
JANET BELDEN, AGENCY GROUP, CHEMICAL BANK, VIA
TELECOPIER TO
(212) 270-0854.
PLEASE TYPE ALL INFORMATION.
AGENT: Chemical Bank
270 Park Avenue
New York, N.Y. 10017
CONTACTS: Mr. John Simonson (212) 270-1063 (fax) Structured
Finance
Mr. Robert J. Juelis (212) 270-1789 (fax) Banking
& Corporate Finance
OPERATIONAL CONTACT: Janet Belden (212) 622-0011
Agency Group
TELEX: NY: 353006 Answerback: ABSCNYK
TELECOPIER: (212) 622-0854
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 Janet Belden at (212) 622-0011 and [Rufus
Kearny] at (212) 701-5658.
Movement of funds to us: Wire Fed Funds to:
Chemical Bank
Wholesale Loan Services Department
52 Broadway, 4th Floor
New York, New York
Attention: [ ]
Reference: First of America Bank Corporation
PLEASE COMPLETE THE FOLLOWING INFORMATION FOR COMPETITIVE
AUCTIONS ONLY
Agent: Chemical Bank
270 Park Avenue - 7th Floor
New York, NY 10017
Attn: Structured Finance Department
Telex: NY: 353006 Answerback: ABSCNYK
Telecopier: (212) 270-1063 Primary
(212) 270-[ ] Backup
Contacts: Janet Belden (212) 622-0011 Agency Group
John Simonson (212) 270-4300 Structured Finance
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:
<PAGE>
EXHIBIT C
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Competitive Advance and
Revolving Credit Facility Agreement dated as of March 25, 1994
(the "Credit Agreement"), among First of America Bank
Corporation, a Michigan 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, relinquish 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
$2,000.
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:
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
Principal Amount forth, to at least
Assigned (and 8 decimals, as a
identifying percentage of the
information as to Facility and the
Facility individual aggregate
Competitive Loans) Commitments of all
Lenders
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 FIRST OF AMERICA BANK
CORPORATION,
as Borrower,
By:_________________________ By:_________________________
Name: Name:
Title: Title:
____________________
[FN]
*/ To be completed only if consents are required under
Section 9.04(a).\
<PAGE>
EXHIBIT D
[FORM OF]
OPINION OF COUNSEL FOR
FIRST OF AMERICA BANK CORPORATION<F1>
1. First of America Bank Corporation (i) is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Michigan, (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 First of
America Bank 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 First of
America Bank Corporation of the Agreement and the borrowings of
First of America Bank 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 First
of America Bank Corporation, (2) any order of any governmental
authority or (3) any provision of any indenture, agreement or
other instrument to which First of America Bank 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
First of America Bank Corporation.
3. The Agreement has been duly executed and delivered
by First of America Bank Corporation and constitutes a legal,
valid and binding obligation of First of America Bank Corporation
enforceable against First of America Bank 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 First of America Bank 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.
[FN]
<F1> 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 March 25, 1994, among First of America Bank
Corporation, the lenders listed in Schedule 2.01 thereto, and
Chemical Bank, as Administrative Agent.
<PAGE>
SCHEDULE 2.01
Contact Person
Name and Address of and Telecopy Number Commitment
Lender
Chemical Bank Mr. Robert J. $11,250,000
270 Park Avenue Juelis
New York, NY 10017 (212) 270-1789
Bank of America NT & SA Mr. Paolo Foggini $8,750,000
Financial Institutions (415) 622-1173
Group Unit 5179
555 California Street
San Francisco, CA 94104
The Bank of New York Ms. Christine $7,500,000
One Wall Street Herrick
17th Floor (212) 809-9520
New York, NY 10286
Barclays Bank PLC Mr. Charles Sabino $4,250,000
222 Broadway, 12th Floor (212) 412-7665
New York, NY 10038
Boatmen's National Bank Mr. Richard Wokoun $4,250,000
of St. Louis (314) 466-6499
800 Market Street
Box 236
St. Louis, MO 63166-0326
The Chase Manhattan Ms. Donna Brown $8,750,000
Bank, N.A. (212) 552-7879
One Chase Manhattan Ms. Susan F. Herzog
Plaza (212) 552-1372
5th Floor
New York, NY 10081
Citibank, N.A. Ms. Catherine Tomey $6,000,000
399 Park Avenue (212) 793-5904
12th Floor, Zone 12
New York, NY 10043
Continental Bank N.A. Mr. Jennings F. $8,750,000
231 South LaSalle Street Werner
1405 (312) 987-6982
Chicago, IL 60697
Credit Lyonnais Mr. Gregory Raule $6,000,000
1301 Avenue of the (212) 261-3401
Americas
17th Floor
New York, NY 10019
The Dai-Ichi Kangyo Mr. Brian Cushing $4,250,000
Bank, Ltd. (312) 876-2011
10 South Wacker Drive
26th Floor
Chicago, IL 60606
The First National Bank Mr. Phil Hagglund $8,750,000
of Chicago (312) 732-6222
One First National Plaza
Suite 0162
Chicago, IL 60670-0162
The Fuji Bank, Limited Mr. Peter Chinnici $6,000,000
225 West Wacker Drive (312) 621-0539
Suite 2000
Chicago, IL 60606
Harris Trust & Savings Mr. Donald J. $7,500,000
Bank Boreman
111 West Monroe Street Ms. Donna Kerpan
4th Floor (312) 765-8382
Chicago, IL 60690
Mellon Bank, N.A. Mr. Michael Shuster $6,000,000
One Mellon Bank Center (412) 234-9047
151-0400
Pittsburgh, PA 15258
The Mitsubishi Bank, Ms. Diane Tkach $4,250,000
Limited (312) 263-2555
115 South LaSalle Street
Suite 2100
Chicago, IL 60603
Nationsbank of Texas, Ms. Kate Galletly $6,000,000
N.A. (214) 508-0604
901 Main Street
66th Floor
Dallas, TX 75202
The Northern Trust Mr. Thomas $7,500,000
Company Bernhardt
50 South LaSalle Street (312) 444-3378
Chicago, IL 60675
Norwest Bank Ms. Vicky McEntyre $6,000,000
6th and Marquette (612) 667-3510
Avenues
Minneapolis, Minnesota
55479-0015
PNC Bank, N.A. Mr. Mark Merrill $6,000,000
5th Avenue and Wood (412) 762-2784
Streets
Pittsburgh, PA 15265
Sakura Mr. David Wuertz $6,000,000
227 West Monroe Street (312) 332-5345
Suite 4700
Chicago, IL 60606
Societe Generale Mr. Jean-Francois $6,000,000
50 Rockefeller Plaza Hamant
New York, NY 10020 (212) 581-8975
Westdeutsche Landesbank Ms. Lillian Lum $6,000,000
Girozentrale (212) 852-6140
1211 Avenue of the
Americas
23rd Floor
New York, NY 10036
The Yasuda Trust and Mr. David Beatty $4,250,000
Banking Co., Ltd. (312) 683-3899
181 West Madison Street
Suite 4500
Chicago, IL 60602
__________________
TOTAL COMMITMENT $150,000,000
<PAGE>
SCHEDULE 3.06
None.
<PAGE>
SCHEDULE 3.14
Subsidiaries of the Borrower As of March 25, 1994
First of America Bank - Ann Arbor
First of America Bank - Central
First of America Bank - Champaign County, N.A.
First of America Bank - Decatur, N.A.
First of America Bank - Kankakee/Will County, N.A.
First of America Bank - Northeast Illinois, N.A.
First of America Bank - Champion, N.A.
First of America Bank - Michigan, N.A.
First of America Bank - Mid Michigan, N.A.
First of America Bank - Northern Michigan
First of America Bank - Illinois, N.A.
First of America Bank - Quad Cities, N.A.
First of America Bank - North Central Illinois, N.A.
First of America Bank - Southeast Michigan, N.A.
First of America Bank - Springfield, N.A.
First of America Bank - Upper Peninsula, N.A.
First of America Bank - West Michigan
First of America Bank - Security
First of America Community Development Corporation
First of America Insurance Company
First of America Mortgage Company
First of America Bank Corporation - Indiana
First of America Trust Company
First of America Information Systems, Inc.
Secure Data Corporation
