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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15d of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 27, 1995
KEYCORP
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(Exact name of registrant as specified in its charter)
Ohio 0-850 63-0593897
- ------------------------------ ---------------------- -------------------
(State or other jurisdiction of Commission File Number (I.R.S. Employer
incorporation or organization) Identification No.)
127 Public Square, Cleveland, Ohio 44114-1306
- ---------------------------------------- ---------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (216) 689-6300
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ITEM 5. OTHER EVENTS
------------
ACQUISITION OF AUTOFINANCE GROUP, INC.
On September 27, 1995, KeyCorp acquired AutoFinance Group, Inc.
("AFG"), a Chicago-based automobile finance company, in a tax-free
exchange of stock. Under the terms of the merger agreement, 9,554,211
KeyCorp Common Shares, with a value of approximately $325 million, were
exchanged for all of the outstanding shares of AFG common stock (based on
an exchange ratio of .5 common shares for each share of AFG). AFG
operates in 28 states and had total assets of approximately $180.5 million
(unaudited) at the date of acquisition. In addition, immediately prior to
the closing, AFG completed a spin-off to its shareholders of 95.01% of
its common stock interest in Patlex Corporation, a wholly owned patent
exploitation and enforcement subsidiary. Upon consummation of the
acquisition, AFG was merged into Key Auto Inc., a wholly owned subsidiary
of KeyCorp, which simultaneously changed its name to AutoFinance Group,
Inc. In the transaction, which was accounted for as a purchase, KeyCorp
recorded goodwill of approximately $270 million, which is being amortized
using the straight-line method over a period of 25 years.
COMMERCIAL PAPER PROGRAM
KeyCorp and each of CS First Boston Corporation and Society National
Bank have executed 3(a)(3) Commercial Paper Agreements and Private
Placement Letters of Understanding dated as of September 29, 1995, in
connection with the issuance of up to $500 million of commercial paper
under KeyCorp's new Commercial Paper Program. KeyCorp intends that a
portion of the proceeds will be used to fund AFG's ongoing lending
activities, as well as funding for general corporate purposes, including
future acquisitions.
CREDIT AGREEMENT
On October 3, 1995, KeyCorp, certain Banks, and Morgan Guaranty Trust
Company of New York, as Agent, entered into the Credit Agreement dated as
of October 3, 1995, (the "Credit Agreement") pursuant to which the Banks
have agreed to lend collectively up to $500 million to KeyCorp through a
revolving line of credit. A copy of the executed Credit Agreement is
attached to this Form 8-K as Exhibit 99. The credit facility has an
initial term of 48 months. KeyCorp may request extensions for an
additional year on the first and second anniversaries of the closing date.
The line of credit will be used primarily as a backup source of liquidity
for KeyCorp's Commercial Paper Program, as well as funding for general
corporate purposes and acquisitions.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS
-----------------------------------------------------------------
(c) Exhibits
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99. The Credit Agreement between KeyCorp, certain Banks, and Morgan
Guaranty Trust Company of New York, as Agent, detailing a $500
million revolving line of credit.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KEYCORP
-----------------------------------
(Registrant)
Date: October 5, 1995 /s/ Lee Irving
------------------------------------
By: Lee Irving
Executive Vice President
and Chief Accounting Officer
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$500,000,000
CREDIT AGREEMENT
dated as of
October 3, 1995
among
KeyCorp,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
____________________
Chase Manhattan Bank, Deutsche Bank AG, New York Branch,
Citibank, N.A. and Commerzbank Aktiengesellschaftag,
Managing Agents
____________________
J.P. Morgan Securities Inc.
and
Society National Bank,
Arrangers
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<TABLE>
TABLE OF CONTENTS(1)
Page
ARTICLE I
DEFINITIONS
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SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Accounting Terms and Determinations . . . . . . . . . . . . . . . . . 13
1.03. Types of Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.02. Notice of Committed Borrowings . . . . . . . . . . . . . . . . . . . . 15
2.03. Money Market Borrowings . . . . . . . . . . . . . . . . . . . . . . . 16
2.04. Notice to Banks; Funding of Loans . . . . . . . . . . . . . . . . . . 20
2.05. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.06. Maturity of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.07. Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.08. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.09. Optional Termination or Reduction of Commitments . . . . . . . . . . . 27
2.10. Mandatory Termination of Commitments . . . . . . . . . . . . . . . . . 27
2.11. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.12. General Provisions as to Payments . . . . . . . . . . . . . . . . . . 27
2.13. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.14. Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . 29
2.15. Termination of a Bank's Commitment; Designation of Additional Banks . . 29
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.02. Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
____________________
<FN>
(1) The Table of Contents is not a part of this Agreement.
</TABLE>
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<TABLE>
Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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SECTION 4.01. Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . 31
4.02. Corporate and Governmental Authorization; No Contravention . . . . . . . . . 31
4.03. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.04. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.05. Litigation; Administrative Action . . . . . . . . . . . . . . . . . . . . . 33
4.06. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.07. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.08. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.09. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.10. Not an Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.11. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.12. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V
COVENANTS
SECTION 5.01. Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.02. Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.03. Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . 38
5.04. Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . 38
5.05. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.06. Inspection of Property, Books and Records . . . . . . . . . . . . . . . . . 39
5.07. Asset Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.08. Capital Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.09. Double Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.10. Minimum Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . 40
5.11. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.12. Consolidations, Mergers and Sales of Assets . . . . . . . . . . . . . . . . 41
5.13. Sale of Material Bank Subsidiaries . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.02. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
</TABLE>
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<TABLE>
Page
ARTICLE VII
THE AGENT
<S> <C> <C>
SECTION 7.01. Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.02. Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.03. Action by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.04. Consultation with Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.05. Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.07. Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.08. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.09. Agent's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair . . . . . . . . . . . . . . . . . . . 47
8.02. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.03. Increased Cost and Reduced Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.04. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.02. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.03. Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.04. Sharing of Set-Offs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.05. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.06. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.07. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.08. Governing Law; Submission to
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.09. Counterparts; Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
</TABLE>
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<TABLE>
Page
<S> <C>
SCHEDULE I - Excluded Banks
SCHEDULE II - Pricing Schedule
EXHIBIT A - Note
EXHIBIT B - Form of Money Market Quote Request
EXHIBIT C - Form of Invitation for Money Market Quotes
EXHIBIT D - Form of Money Market Quote
EXHIBIT E - Extension Agreement
EXHIBIT F - Opinion of Counsel for the Borrower
EXHIBIT G - Opinion of Davis Polk & Wardwell, Special Counsel for the Agent
EXHIBIT H - Assignment and Assumption Agreement
</TABLE>
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CREDIT AGREEMENT
AGREEMENT dated as of October 3, 1995 among KeyCorp, the BANKS
party hereto and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Additional Bank" has the meaning set forth in Section 2.15.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Administrative Questionnaire" means, with respect to each Bank,
an administrative questionnaire in the form prepared by the Agent and submitted
to the Agent (with a copy to the Borrower) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i)
in the case of its Domestic Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the
case of its Money Market Loans, its Money Market Lending Office.
"Arrangers" means J.P. Morgan Securities Inc. and Society National
Bank.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
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"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Additional Bank or Assignee which becomes a Bank pursuant to Section 2.15 or
9.06(c), and their respective successors.
"Bank Subsidiary" means each Subsidiary that has or hereafter
shall have a state or federal (including the District of Columbia, any United
States territory or any United States possession) banking charter or is or
otherwise shall be a depository institution.
"Banking Agency" means any agency of the United States or any
state thereof (including the District of Columbia, any United States territory
or any United States possession) that is or may become responsible for
supervising, examining or regulating the Borrower or any of the Bank
Subsidiaries, including without limitation the Office of the Comptroller of the
Currency, the Board of Governors of the Federal Reserve System, the Federal
Deposit Insurance Corporation, the Office of Thrift Supervision, the State of
New York Banking Department and any successor to any of the powers or
responsibilities of any of the foregoing.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus
the Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan made or to be made by a
Bank as a Base Rate Loan in accordance with the applicable Notice of Committed
Borrowing or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means KeyCorp, an Ohio corporation, and its successors.
"Borrower's 1994 Form 10-K" means the Borrower's annual report on
Form 10-K for 1994, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended.
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"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan made or to be made by a Bank as a
CD Loan in accordance with the applicable Notice of Committed Borrowing.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means Citibank, N.A., Deutsche Bank AG and
Morgan Guaranty Trust Company of New York.
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages hereof, as such
amount may be reduced from time to time pursuant to Section 2.09 or changed
pursuant to Section 9.06(c).
"Committed Loan" means a loan made or to be made by a Bank
pursuant to Section 2.01.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries
determined as of such date. For avoidance of doubt, Consolidated Net Worth
includes amounts allocable to preferred stock of the Borrower, other than any
such preferred stock subject to redemption otherwise than at the option of the
Borrower.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Tangible Net Worth" means at any date Consolidated
Net Worth less the consolidated Intangible Assets of the Borrower and its
Consolidated Subsidiaries, all determined as of such date. For purposes of
this definition "Intangible Assets" means the amount (to the extent reflected
in determining Consolidated Net Worth) of all unamortized debt discount and
expense, unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, anticipated future benefit of tax loss carry-forwards,
copyrights, organization or developmental expenses and other intangible assets.
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"Covered Administrative Action" means any adverse administrative
action against or involving the Borrower or any Material Bank Subsidiary with
respect to their respective business, operations or condition, including
without limitation any (i) commitment letter, memorandum of understanding,
notice of undercapitalized status or other requirement to submit a capital
restoration plan or other similar arrangement related to the capital adequacy
of the Borrower or any Material Bank Subsidiary, (ii) supervisory agreement or
other similar arrangement, (iii) notice of charges, (iv) temporary order
suspending deposit insurance, (v) notice of intent to revoke deposit insurance,
(vi) cease and desist order, (vii) order to suspend or remove any
institution-affiliated party (as defined in 12 U.S.C. Section 1813(u)), (viii)
notice of assessment of civil money penalties (including against any
institution-affiliated party (as so defined)), (ix) directive, order, plan or
material proposal relating to capital requirements, (x) proposed or final
directive to take prompt regulatory action, notice of intention to reclassify,
or order to dismiss a director or officer, (xi) proposal to require, or order
requiring, divestiture or liquidation of any Material Bank Subsidiary or other
Material Subsidiary pursuant to 12 U.S.C. Section 1831o(f)(2)(I), (xii)
proposed or final order restricting the ability of the Borrower to make capital
distributions or (xiii) similar administrative notice or action.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v)
all Debt of others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person, (vi) all non-contingent obligations of
such Person to reimburse any bank or other Person in respect of amounts
actually paid under a letter of credit or similar instrument, (vii) all
obligations of such Person to purchase securities (or other property) which
arise out of or in connection with the sale of the same or substantially
similar securities or property and (viii) all Guarantees by such Person of Debt
of others.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of
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notice or lapse of time or both would, unless cured or waived, become an Event
of Default.
"Derivatives Obligations" of any Person means all obligations of
such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or other similar transaction (including any option with respect to any
of the foregoing transactions) or any combination of the foregoing
transactions.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Agent; PROVIDED that any Bank
may so designate separate Domestic Lending Offices for its Base Rate Loans, on
the one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Double Leverage Ratio" means, at any date, the ratio of (i) the
sum of (x) the aggregate investment of the Borrower in the capital stock of its
Subsidiaries plus (y) goodwill, as the same would appear on a parent-only
balance sheet of the Borrower as of such date to (ii) Consolidated Net Worth at
such date.
"Effective Date" means the date this Agreement becomes effective
in accordance with Section 3.01.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits,
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concessions, grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges or
releases of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, any Material Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Material Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan made or to be made by a
Bank as a Euro-Dollar Loan in accordance with the applicable Notice of
Committed Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal London offices
of Citibank, N.A., Deutsche Bank AG and Morgan Guaranty Trust Company of New
York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
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"Event of Default" has the meaning set forth in Section 6.01.
"Excluded Banks" means any bank or other institution affiliated
with any of the bank holding companies set forth on Schedule I attached hereto,
as such Schedule may be supplemented in a manner which is not unreasonable from
time to time by notice from the Borrower to the Banks.
"Extension Agreement" means an agreement in substantially the form
of Exhibit E hereto.
"Extension Date" has the meaning set forth in Section 2.01(b).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, PROVIDED that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions as determined by the
Agent.
"FDICIA" means the Federal Deposit Insurance Corporation
Improvement Act of 1991, as amended, or any successor statute.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended, or any successor statute.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the Base
Rate pursuant to Section 8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
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obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the holder of
such Debt of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part), PROVIDED that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the Borrower may elect in the
applicable Notice of Committed Borrowing; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to the further proviso below, end on the
last Euro-Dollar Business Day of a calendar month;
(2) with respect to each CD Borrowing, the period commencing on the date of
such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the Borrower
may elect in the applicable Notice of Borrowing; PROVIDED that any Interest
Period which would otherwise end on a day which is not a Euro-Dollar Business
Day shall be extended to the next succeeding Euro-Dollar Business Day;
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; PROVIDED that any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day;
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(4) with respect to each Money Market LIBOR Borrowing, the period commencing
on the date of such Borrowing and ending such whole number of months thereafter
as the Borrower may elect in accordance with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to the further proviso below, end on the
last Euro-Dollar Business Day of a calendar month; and
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 7 days) as the Borrower may elect in accordance
with Section 2.03; PROVIDED that any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
PROVIDED FURTHER that any Interest Period with respect to any Loan of any Bank
which would otherwise end after such Bank's Termination Date shall end on such
Bank's Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
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"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money
Market Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Material Bank Subsidiary" means, at any time, any of the
following: (i) Society National Bank, (ii) Key Bank of New York and (iii) any
one or more other Bank Subsidiaries having aggregate consolidated assets equal
to or greater than 15% of the consolidated assets of the Borrower and its
Consolidated Subsidiaries at such time.
"Material Debt" means Debt (other than the Notes) of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount exceeding $50,000,000.
"Material Financial Obligations" means a principal amount of Debt
and/or payment obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, exceeding in the aggregate $50,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Material Subsidiary" means, at any time, any of the following:
(i) any Material Bank Subsidiary and (ii) any one or more other Subsidiaries
having aggregate consolidated assets equal to or greater than 15% of the
consolidated assets of the Borrower and its Consolidated Subsidiaries at such
time.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan made or to be made
by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Agent; PROVIDED that any Bank may from time to time by notice
to the Borrower and the Agent
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designate separate Money Market Lending Offices for its Money Market LIBOR
Loans, on the one hand, and its Money Market Absolute Rate Loans, on the other
hand, in which case all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such offices, as the
context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Money Market Quote Request" means a money market quote request
substantially in the form of Exhibit B hereto.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Non-Performing Assets" means, at any date, the consolidated
amount for the Borrower and its Consolidated Subsidiaries of assets consisting
of non-accrual and renegotiated loans and leases, and other real estate owned
and foreclosed property accepted in full or partial satisfaction of debts
previously contracted.
"Notes" means promissory notes of the Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
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"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust, a limited liability company or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code
and either (i) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) has at any time
within the preceding five years been maintained, or contributed to, by any
Person which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pricing Schedule" means Schedule II attached hereto.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to time as
its "Prime Rate".
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank.
"Regulation H" means Regulation H of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
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"Regulation Y" means Regulation Y of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3%
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 66 2/3% of the aggregate
unpaid principal amount of the Loans.
"S&P" means Standard & Poor's Ratings Group.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower.
"Substantial Assets" means assets sold or proposed to be sold
outside the ordinary course of business of the Borrower and its Consolidated
Subsidiaries (including but not limited to sale of a Subsidiary or
substantially all the assets of a Subsidiary), in one or more related or
unrelated transactions during the term of this Agreement having an aggregate
book value greater than 25% of the consolidated assets of the Borrower and its
Consolidated Subsidiaries as at June 30, 1995.
"Termination Date" means, with respect to any Bank, October 2,
1999, or such later date to which the Termination Date of such Bank has been
extended pursuant to Section 2.01(b), or, if any such day is not a Euro-Dollar
Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefits under
such Plan exceeds (ii) the fair market value of all Plan assets allocable to
such benefits (excluding any accrued but unpaid contributions), all determined
as of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all
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accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared in accordance with generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the
Banks; PROVIDED that, if the Borrower notifies the Agent that the Borrower
wishes to amend any covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or if the Agent notifies the Borrower that the Required Banks wish to amend
Article V for such purpose), then the Borrower's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and the Required
Banks.
SECTION 1.03. TYPES OF BORROWINGS. The term "Borrowing" denotes
the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (E.G., a "Euro-Dollar Borrowing"
is a Borrowing comprised of Euro-Dollar Loans) or by reference to the
provisions of Article II under which participation therein is determined (I.E.,
a "Committed Borrowing" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, while a "Money Market
Borrowing" is a Borrowing under Section 2.03 in which the Bank participants are
determined on the basis of their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. (a) From time to time prior
to its Termination Date, each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make loans to the Borrower pursuant
to this Section from time to time in amounts such that the aggregate principal
amount of Committed Loans by such Bank at any one time outstanding shall not
exceed the amount of its Commitment. Each Borrowing under this Section shall
be
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in an aggregate principal amount of $5,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.02(b)) and shall be made from the
several Banks ratably in proportion to their respective Commitments. Within
the foregoing limits, the Borrower may borrow under this Section, repay, or to
the extent permitted by Section 2.11, prepay Loans and reborrow at any time
under this Section.
(b) The Termination Dates may be extended, in the manner set
forth in this subsection (b), on October 3, 1996 and, if the Commitments shall
have been extended on such date, again on October 3, 1997 (each, an "Extension
Date") for an additional period of one year ending on October 2 on each
occasion. If the Borrower wishes to request an extension of the Termination
Dates on any Extension Date, it shall give written notice to that effect to the
Agent not less than 30 nor more than 60 days prior to such Extension Date,
whereupon the Agent shall notify each of the Banks of such notice. Each Bank
will use its best efforts to respond to such request, whether affirmatively or
negatively, within 21 days. If Banks having Commitments aggregating not less
than 50% of the total amount of the Commitments respond affirmatively, then,
subject to receipt by the Agent prior to such Extension Date of counterparts of
an Extension Agreement duly completed and signed by the Borrower, the Agent and
each such Bank, the Termination Dates of such Banks (but not of any Bank which
does not so respond affirmatively) shall be extended, effective on such
Extension Date, for a period of one year to the date stated in such Extension
Agreement. If Banks having less than 50% of the total amount of the
Commitments so respond affirmatively, no Termination Date shall be extended.
SECTION 2.02. NOTICE OF COMMITTED BORROWINGS. The Borrower shall
give the Agent notice (a "Notice of Committed Borrowing") not later than 10:30
A.M. (New York City time) on (x) the date of each Base Rate Borrowing, (y) the
second Domestic Business Day before each CD Borrowing and (z) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
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(c) whether the Loans comprising such Borrowing are to be CD
Loans, Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Committed Fixed Rate Borrowing, the duration
of the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
------------------------
(a) THE MONEY MARKET OPTION. In addition to Committed Borrowings
pursuant to Section 2.01, the Borrower may, as set forth in this Section,
request the Banks to make offers to make Money Market Loans to the Borrower
prior to their respective Termination Dates. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) MONEY MARKET QUOTE REQUEST. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall transmit
to the Agent by telex or facsimile transmission a Money Market Quote Request so
as to be received no later than 10:30 A.M. (New York City time) on (x) the
fifth Euro-Dollar Business Day prior to the date of Borrowing proposed therein,
in the case of a LIBOR Auction or (y) the Domestic Business Day next preceding
the date of Borrowing proposed therein, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower and the Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
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The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
lesser number of days as the Borrower and the Agent may agree) of any other
Money Market Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of
a Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance
with this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each
Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this subsection (d) and
must be submitted to the Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); PROVIDED that Money Market Quotes submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Bank may be submitted, and may
only be submitted, if the Agent or such affiliate notifies the Borrower of the
terms of the offer or offers contained therein not later than (x) one hour
prior to the deadline for the other Banks, in the case of a LIBOR Auction or
(y) 15 minutes prior to the deadline for the other Banks, in the case of an
Absolute Rate Auction. Subject to Articles III and VI, any Money Market Quote
so made shall be irrevocable except with the written consent of the Agent given
on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit D hereto and shall in any case specify:
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(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x) must be $5,000,000 or a
larger multiple of $1,000,000, (y) may not exceed the principal amount of
Money Market Loans for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount of Money Market Loans
for which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language except
as provided in subsection (d)(ii)(B)(z);
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes except as provided
in subsection (d)(ii)(B)(z); or
(D) arrives after the time set forth in subsection (d)(i).
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(e) NOTICE TO BORROWER. The Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a Bank that is
in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to correct
a manifest error in such former Money Market Quote. The Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of Money Market Loans
for which offers have been received for each Interest Period specified in the
related Money Market Quote Request, (B) the respective principal amounts and
Money Market Margins or Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the aggregate principal amount of
Money Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Agent shall have mutually
agreed and shall have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective), the Borrower shall notify the Agent
of its acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; PROVIDED that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request,
(ii) the principal amount of each Money Market Borrowing must
be $5,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as
the case may be, and
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(iv) the Borrower may not accept any offer that is described
in subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) ALLOCATION BY AGENT. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
SECTION 2.04. Notice To Banks; Funding Of Loans.
----------------------------------
(a) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's share (if
any) of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address referred to in Section 9.01. Unless the Agent determines that any
applicable condition specified in Article III has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to
the Agent as provided in subsection (b), or remitted by the Borrower to the
Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior
to the date of any Borrowing that such Bank will not make available to the
Agent such Bank's share
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of such Borrowing, the Agent may assume that such Bank has made such share
available to the Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section 2.04 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 Bank shall not have so
made such share available to the Agent, such Bank 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
the Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
SECTION 2.05. NOTES. (a) The Loans of each Bank shall be
evidenced by a single Note payable to the order of such Bank for the account of
its Applicable Lending Office in an amount equal to the aggregate unpaid
principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent,
request that its Loans of a particular type be evidenced by a separate Note in
an amount equal to the aggregate unpaid principal amount of such Loans. Each
such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b),
the Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect thereto, and
may, if such Bank so elects in connection with any transfer or enforcement of
its Note, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan then
outstanding; PROVIDED that the failure of any Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized by the Borrower so
to endorse its Note and to attach to and make a part of its Note a continuation
of any such schedule as and when required.
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SECTION 2.06. MATURITY OF LOANS. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. INTEREST RATES. (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from
the date such Loan is made until it becomes due, at a rate per annum equal to
the Base Rate for such day. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of or interest on any
Base Rate Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the rate otherwise applicable
to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at
a rate per annum equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; PROVIDED that if any CD
Loan shall, as a result of the definition of Interest Period, have an Interest
Period of less than 30 days, such CD Loan shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans during such period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than 90 days, at intervals of 90 days
after the first day thereof. Any overdue principal of or interest on any CD
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the CD
Margin for such day plus the Adjusted CD Rate applicable to the Interest Period
for such Loan and (ii) the rate applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in accordance with
the Pricing Schedule.
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The "Adjusted CD Rate" applicable to any Interest Period means a
rate per annum determined pursuant to the following formula:
[ CDBR ]2
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
The "CD Base Rate" applicable to any Interest Period is the rate
of interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum
bid at 10:00 A.M. (New York City time) (or as soon thereafter as practicable)
on the first day of such Interest Period by two or more New York certificate of
deposit dealers of recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
____________________
2 The amount in brackets being rounded upward, if necessary, to the next higher
1/100 of 1%
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the meaning of 12 C.F.R. Section 327.4(a) (or any successor provision) to the
Federal Deposit Insurance Corporation (or any successor) for such Corporation's
(or such successor's) insuring time deposits at offices of such institution in
the United States. The Adjusted CD Rate shall be adjusted automatically on and
as of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months,
at intervals of three months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal
to the principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference
Bank to which such Interest Period is to apply and for a period of time
comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which
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<PAGE> 30
includes loans by a non-United States office of any Bank to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to the
Interest Period for such Loan and (ii) the sum of 2% plus the Euro-Dollar
Margin for such day plus the quotient obtained (rounded upward, if necessary,
to the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of time not longer than
six months as the Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Euro-Dollar
Reference Banks are offered to such Euro-Dollar Reference Bank in the London
interbank market for the applicable period determined as provided above by (y)
1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 2% plus the rate applicable to Base Rate Loans for such
day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum of the
London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money Market LIBOR Borrowing
were a Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of 2% plus the Base Rate for such day.
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(f) The Agent shall determine each interest rate applicable to
the Loans hereunder in accordance with the foregoing provisions of this Section
2.07. The Agent shall give prompt notice to the Borrower and the participating
Banks of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available
on a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. Fees.
-----
(a) FACILITY FEE. The Borrower shall pay to the Agent for the
account of the Banks ratably in proportion to their Commitments a facility fee
at the Facility Fee Rate (determined daily in accordance with the Pricing
Schedule). Such facility fee shall accrue for the account of each Bank (i)
from and including the Effective Date to but excluding the Termination Date of
such Bank (or earlier date of termination of the Commitment of such Bank in its
entirety), on the daily amount of the Commitment of such Bank (whether used or
unused) and (ii) from and including such Termination Date or such earlier date
of termination to but excluding the date the Loans of such Bank shall be repaid
in their entirety, on the daily aggregate outstanding principal amount of such
Loans.
(b) UTILIZATION FEE. For each day on which the aggregate
outstanding principal amount of the Loans (including Money Market Loans) equals
or exceeds 50% of the aggregate amount of the Commitments, the Borrower shall
pay to the Agent for the account of the Banks ratably in proportion to their
Commitments a utilization fee at the Utilization Fee Rate (determined daily in
accordance with the Pricing Schedule) on the aggregate principal amount of
Euro-Dollar Loans and CD Loans outstanding on such day.
(c) PAYMENTS. Accrued fees under this Section for the account of
each Bank shall be payable quarterly in arrears on each March 31, June 30,
September 30 and December 31, on the date of termination of the Commitment of
such Bank in its entirety and, if later, the date the Loans of such Bank shall
be repaid in their entirety.
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SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS.
The Borrower may, upon at least three Domestic Business Days' notice to the
Agent, (i) terminate the Commitments at any time, if no Loans are outstanding
at such time or (ii) ratably reduce from time to time by an aggregate amount of
$25,000,000 or any larger multiple thereof, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans. The Agent shall promptly notify each Bank of any notice received by it
pursuant to this Section.
SECTION 2.10. MANDATORY TERMINATION OF COMMITMENTS. The
Commitment of each Bank shall terminate on the Termination Date of such Bank,
and any Loans of such Bank then outstanding (together with accrued interest
thereon) shall be due and payable on such date.
SECTION 2.11. OPTIONAL PREPAYMENTS. (a) The Borrower may (i)
upon at least one Domestic Business Day's notice to the Agent, prepay any Base
Rate Borrowing (or any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)), (ii) upon three Domestic Business Days' notice to
the Agent, subject to Section 2.13, prepay any CD Borrowing and (iii) upon at
least three Euro-Dollar Business Days' notice to the Agent, subject to Section
2.13, prepay any Euro-Dollar Borrowing, in whole at any time, or from time to
time in part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks included in
such Borrowing.
(b) Except as provided in clause (i) of Section 2.11(a), the
Borrower may not prepay all or any portion of the principal amount of any Money
Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share (if any) of such prepayment and such notice shall
not thereafter be revocable by the Borrower.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans
and of fees hereunder, not later than 12:00 Noon (New York City time) on the
date when due, in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section 9.01. The Agent will
promptly distribute to each Bank its
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<PAGE> 33
ratable share of each such payment received by the Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, the Domestic
Loans or of fees shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans or Money Market LIBOR Loans shall be due on a day which is
not a Euro-Dollar Business Day, the date for payment thereof shall be extended
to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for
payment thereof shall be the next preceding Euro-Dollar Business Day. Whenever
any payment of principal of, or interest on, the Money Market Absolute Rate
Loans shall be due on a day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that the Borrower shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. FUNDING LOSSES. If the Borrower makes any payment
of principal with respect to any Fixed Rate Loan (pursuant to Article II, VI or
VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or the end of an applicable period fixed pursuant to
Section 2.07(d), or if the Borrower fails to borrow or prepay any Fixed Rate
Loans after notice has been given to any Bank in accordance with Section
2.04(a) or 2.11(c), the Borrower shall reimburse each Bank within 15 days after
demand for any resulting loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow or
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<PAGE> 34
prepay, PROVIDED that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.14. COMPUTATION OF INTEREST AND FEES. Interest based
on the Prime Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding
the last day).
SECTION 2.15. Termination of a Bank's Commitment; Designation of
Additional Banks. --------------------------------------------------
- -----------------
(a) So long as no Default shall have occurred and be continuing,
the Borrower may, with the prior written consent of the Agent, which shall not
be unreasonably withheld, upon at least three Domestic Business Days' notice to
any Bank, terminate the Commitment of such Bank entirely; PROVIDED that the
Borrower shall, on the effective date of such termination, (i) pay to such Bank
all accrued fees and other amounts payable to such Bank hereunder to such
effective date and (ii) if any Loans of such Bank are then outstanding, prepay
each Loan of such Bank in full, together with accrued interest thereon to such
effective date.
(b) If the Borrower shall terminate the Commitment of any Bank
pursuant to the provisions of subsection (a) of this Section, the Borrower may
designate another bank or other banks (which may be one of the Banks) (in
either case, an "Additional Bank") to be parties to this Agreement, the
Commitments of which shall not in the aggregate exceed the amount of the
Commitment so terminated. Any Additional Bank shall become a party to this
Agreement and be considered a Bank hereunder for all purposes if (i) it shall
agree in writing to be bound by all of the terms and provisions of this
Agreement, such agreement to specify the amount of the Commitment of such
Additional Bank and to be otherwise in form and substance satisfactory to the
Agent, (ii) it shall make Committed Loans to the Borrower in principal amounts
which bear the same ratio to the amounts of the Committed Loans of other Banks
then outstanding as the Commitment of such Additional Bank bears to the then
Commitments of such other Banks and (iii) a copy of such agreement and of
evidence satisfactory to the Agent of the making of such Committed Loans shall
be furnished to the Agent and the Banks.
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ARTICLE III
CONDITIONS
SECTION 3.01. EFFECTIVENESS. This Agreement shall become
effective on the date that each of the following conditions shall have been
satisfied (or waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note dated on or before the Effective Date complying with the
provisions of Section 2.05;
(c) receipt by the Agent of an opinion of Daniel R. Stolzer,
Senior Vice President and Senior Managing Counsel of KeyCorp Management
Company and counsel for the Borrower, substantially in the form of Exhibit
F hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Davis Polk & Wardwell,
special counsel for the Agent, substantially in the form of Exhibit G
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request; and
(e) receipt by the Agent of all documents it may reasonably
request relating to the existence of the Borrower, the corporate authority
for and the validity of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent;
PROVIDED that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later
than October 10, 1995. The Agent shall promptly notify the Borrower and the
Banks of the Effective Date, and such notice shall be conclusive and binding on
all parties hereto.
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SECTION 3.02. BORROWINGS. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the
Borrower contained in this Agreement (except the representations and
warranties set forth in Sections 4.04(c) and, in the case of a Refunding
Borrowing, 4.05(a)(i)) shall be true on and as of the date of such
Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of Ohio, is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do
not contravene,
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or constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries or result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid
and binding agreement of the Borrower and each Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the Borrower, in each case enforceable in accordance with
its terms.
SECTION 4.04. Financial Information.
----------------------
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1994 and the related consolidated
statements of income, changes in shareholder's equity and cash flows for the
fiscal year then ended, reported on by Ernst & Young and set forth in the
Borrower's 1994 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of June 30, 1995 and the related unaudited
consolidated statements of income, changes in shareholder's equity and cash
flows for the six months then ended, set forth in the Borrower's quarterly
report for the fiscal quarter ended June 30, 1995 as filed with the Securities
and Exchange Commission on Form 10-Q, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with generally accepted
accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such six
month period (subject to normal year-end adjustments).
(c) Since December 31, 1994 there has been no material adverse
change in the business, financial position, results of operations or prospects
of the Borrower and its Consolidated Subsidiaries, considered as a whole.
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SECTION 4.05. LITIGATION; ADMINISTRATIVE ACTION. (a) There is
no action, suit or proceeding pending against, or to the knowledge of the
Borrower threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official (i) in which there is a reasonable likelihood of an adverse decision
which could materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Borrower and its
Consolidated Subsidiaries or (ii) which in any manner draws into question the
validity or enforceability of this Agreement or the Notes.
(b) Without limiting the generality of subsection (a) of this
Section 4.05, (i) there is not any Covered Administrative Action which is
currently in effect and (ii) there is no examination, investigation or
proceeding by any Banking Agency pending against, or to the knowledge of the
Borrower threatened against or affecting, the Borrower or any of its Material
Bank Subsidiaries in which there is a reasonable likelihood of any Covered
Administrative Action that might reasonably be expected to have a material
adverse effect on the business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated Subsidiaries, taken
as a whole.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. ENVIRONMENTAL MATTERS. The Borrower has reasonably
concluded that Environmental Laws are unlikely to have a material adverse
effect on the business, financial condition, results of operations or prospects
of the Borrower and its Consolidated Subsidiaries, considered as a whole.
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SECTION 4.08. TAXES. The Borrower and its Subsidiaries have
filed all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any Subsidiary. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
SECTION 4.09. SUBSIDIARIES. Each of the Borrower's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.10. NOT AN INVESTMENT COMPANY. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.11. FULL DISCLOSURE. All factual information
heretofore furnished in writing by the Borrower to the Agent or any Bank for
purposes of or in connection with this Agreement or any transaction
contemplated hereby, taken as a whole, is, and all such information hereafter
furnished by the Borrower to the Agent or any Bank will be, true and accurate
in all material respects on the date as of which such information is stated or
certified except for any pro forma data or other financial projections. The
Borrower has disclosed to the Banks in writing any and all facts which
materially and adversely affect or may affect (to the extent the Borrower can
now reasonably foresee), the business, operations or financial condition of the
Borrower and its Consolidated Subsidiaries, taken as a whole, or the ability of
the Borrower to perform its obligations under this Agreement.
SECTION 4.12. USE OF PROCEEDS. The proceeds of the Loans made
under this Agreement will be used by the Borrower for its general corporate
purposes, including liquidity support for the Borrower's commercial paper
program, note program under Section 4(2) of the Securities Act of 1933, as
amended ("Securities Act"), and medium-term note program registered under the
Securities Act. None of such proceeds will be used in violation of Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System or to
finance, directly or indirectly, a tender offer for the securities of any
Person if the board of directors (or similar body) of such Person recommends,
in a Schedule
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14D-9 filed under the Securities Exchange Act of 1934, as amended, or
otherwise, that holders of securities of such Person not tender their
securities pursuant to such tender offer.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. INFORMATION. The Borrower will deliver to each of
the Banks:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of income, changes in
stockholders' equity and cash flows for such fiscal year, setting forth in
each case in comparative form the figures as of the end of and for the
previous fiscal year, all reported on in a manner acceptable to the
Securities and Exchange Commission by Ernst & Young or other independent
public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, changes in stockholders' equity and cash flows for
such quarter and for the portion of the Borrower's fiscal year ended at the
end of such quarter, setting forth in the case of such statements of income
and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's previous fiscal
year, all certified (subject to normal year-end adjustments) as to fairness
of presentation, generally accepted accounting principles and consistency
by the chief financial officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower (i)
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setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.07 to 5.10, inclusive, on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and, if
any Default then exists, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto;
(d) within ten days of their submission to the responsible
federal Banking Agency, the "Consolidated Reports of Condition and Income"
(FFIEC Form 031, 032, 033 or 034 or any successor form of the Federal
Financial Institutions Examination Counsel) (the "Call Report") of each
Bank Subsidiary which by itself is a Material Bank Subsidiary and the
"Parent Company Only Statements for Bank Holding Companies" (Report No. FR
Y-9 LP or any successor form of the Federal Reserve System) of the
Borrower, and, upon the request of the Agent, the Call Reports of any other
Bank Subsidiaries;
(e) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate
of the chief financial officer or the chief accounting officer of the
Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Borrower shall have filed with the Securities
and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the
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PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer, any Plan, a copy
of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the PBGC;
(vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which
has resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief financial officer or
the chief accounting officer of the Borrower setting forth details as to
such occurrence and action, if any, which the Borrower or applicable member
of the ERISA Group is required or proposes to take;
(i) except to the extent expressly forbidden by law, regulation,
rule or judgment of a court of competent jurisdiction, (i) notice (together
with reasonable supporting materials) of any examination, investigation or
proceeding by a Banking Agency as soon as the Borrower reasonably believes
that such examination, administrative investigation or proceeding is likely
to lead to any Covered Administrative Action that might reasonably be
expected to have a material adverse effect on the business, consolidated
financial position or consolidated operations of the Borrower and its
Consolidated Subsidiaries, taken as a whole, and (ii) copies of any such
Covered Administrative Action or draft Covered Administrative Action
promptly upon receipt by the Borrower or any Bank Subsidiary;
(j) promptly after obtaining knowledge from S&P or Moody's or
receiving notice from S&P or Moody's of any actual or possible change
(whether an increase or decrease) in any rating issued by S&P or Moody's
pertaining to any securities of, or guaranteed by, the Borrower or any of
its Subsidiaries or affiliates, a notice setting forth such change; and
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(k) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. PAYMENT OF OBLIGATIONS. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
SECTION 5.03. MAINTENANCE OF PROPERTY; INSURANCE. (a) The
Borrower will keep, and will cause each Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary
wear and tear excepted.
(b) The Borrower will, and will cause each of its Subsidiaries
to, maintain (either in the name of the Borrower or in such Subsidiary's own
name) with financially sound and responsible insurance companies, insurance on
all their respective properties in at least such amounts and against at least
such risks (and with such risk retention) as are usually insured against in the
same general area by companies of established repute engaged in the same or a
similar business; and will furnish to the Banks, upon request from the Agent,
information presented in reasonable detail as to the insurance so carried.
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
The Borrower will continue, and will cause each Subsidiary to continue, to
engage in business of the same general type as now conducted by the Borrower
and its Subsidiaries, and will preserve, renew and keep in full force and
effect, and will cause each Subsidiary to preserve, renew and keep in full
force and effect their respective corporate existence and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business; PROVIDED that nothing in this Section 5.04 shall prohibit (i) the
merger of a Subsidiary into the Borrower or the merger or consolidation of a
Subsidiary with or into another Person if the corporation surviving such
consolidation or merger is a Subsidiary and if, in each case, at the time of
and after giving effect thereto, no Default shall have occurred and be
continuing or (ii) the termination of the corporate existence of any
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Subsidiary if the Borrower in good faith determines that such termination is in
the best interest of the Borrower.
SECTION 5.05. COMPLIANCE WITH LAWS. The Borrower will comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, FDICIA, FIRREA,
Environmental Laws and ERISA and the rules and regulations thereunder) except
where the necessity of compliance therewith is contested in good faith by
appropriate proceedings.
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and
subject to reasonable confidentiality limitations and requirements imposed by
the Borrower due to competitive concerns or otherwise, will permit, and will
cause each Subsidiary to permit, representatives of any Bank at such Bank's
expense to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be desired.
SECTION 5.07. ASSET COVERAGE. The sum of Consolidated Net Worth
plus the Borrower's consolidated allowance for credit losses will at no time be
less than 250% of Non-Performing Assets.
SECTION 5.08. CAPITAL REQUIREMENTS. (a) The Borrower will at
all times be in compliance with the risk-based capital adequacy guidelines
applicable to it (currently set forth in Appendix A to Regulation Y) and the
leverage capital adequacy guidelines applicable to it (currently set forth in
Appendix D to Regulation Y) and any higher capital requirement imposed on it
by, or agreed to by it in a legally enforceable Covered Administrative Action
with, a Banking Agency.
(b) Each Material Bank Subsidiary will at all times be in
compliance with (i) the risk-based capital adequacy guidelines applicable to it
(most recently set forth in Appendix A to Part 3 of Title 12 of the Code of
Federal Regulations, Appendix A to Regulation H, or Appendix A to Subpart A of
Part 325 of Title 12 of the Code of
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Federal Regulations, as the case may be, all as amended from time to time by
publication in the Federal Register) and (ii) the leverage capital adequacy
guidelines applicable to it (most recently set forth in Part 3 of Title 12 of
the Code of Federal Regulations, Appendix B to Regulation H, or Appendix B to
Subpart A of Part 325 of Title 12 of the Code of Federal Regulations, as the
case may be, all as amended from time to time by publication in the Federal
Register) and (iii) any higher capital requirement imposed on it by, or agreed
to by it in a legally enforceable Covered Administrative Action with, a Banking
Agency.
SECTION 5.09. DOUBLE LEVERAGE RATIO. The Double Leverage Ratio
will at no time exceed 1.35:1.00.
SECTION 5.10. MINIMUM CONSOLIDATED TANGIBLE NET WORTH.
Consolidated Tangible Net Worth will at no time be less than $2,750,000,000.
SECTION 5.11. NEGATIVE PLEDGE. The Borrower will not create,
assume or suffer to exist any Lien on any asset now owned or hereafter acquired
by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $50,000,000;
(b) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such
asset, PROVIDED that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
(c) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Borrower and
not created in contemplation of such event;
(d) any Lien existing on any asset prior to the acquisition
thereof by the Borrower and not created in contemplation of such
acquisition;
(e) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, PROVIDED that such Debt is not increased
and is not secured by any additional assets;
(f) Liens arising in the ordinary course of its business which
(i) do not secure Debt or Derivatives
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Obligations, (ii) do not secure any obligation in an amount exceeding
$50,000,000 and (iii) do not in the aggregate materially detract from the
value of its assets or materially impair the use thereof in the operation
of its business;
(g) Liens on cash and cash equivalents securing Derivatives
Obligations, PROVIDED that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $100,000,000; and
(h) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an aggregate principal amount at any time
outstanding not to exceed 3% of Consolidated Net Worth.
Neither the Borrower nor any of its Subsidiaries will create, assume or suffer
to exist any Lien (whether or not securing Debt) on any shares owned by it of
capital stock issued by, or any Debt owned by it which is owed by, any
Subsidiary of the Borrower.
SECTION 5.12. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Borrower will not consolidate or merge with or into any other Person; PROVIDED
that the Borrower may merge with another Person if the Borrower is the
corporation surviving such merger and, after giving effect thereto, no Default
shall have occurred and be continuing. The Borrower will not, and will not
permit its Subsidiaries to, sell or otherwise dispose of Substantial Assets to
any Person other than the Borrower or a Subsidiary; PROVIDED that the Borrower
or any Subsidiary may make any sale or other disposition of assets required as
a condition to any regulatory approval for the acquisition of any Material Bank
Subsidiary or in order not to violate any applicable law, regulation or order
in connection with such acquisition.
SECTION 5.13. SALE OF MATERIAL BANK SUBSIDIARIES. The Borrower
will not and will not permit any Subsidiary to, at any time, sell or otherwise
transfer, directly or indirectly, other than to the Borrower or a Subsidiary
(i) any capital stock of or other equity interest in (A) Society National Bank
and Key Bank of New York or (B) any Bank Subsidiary which by itself would be a
Material Bank Subsidiary or (ii) 50% or more of the capital stock of or other
equity interest in any other Material Bank Subsidiary. Notwithstanding the
foregoing, the Borrower or any Subsidiary may make any sale or other
disposition of assets required as a condition to any regulatory approval for
the acquisition of any Material Bank Subsidiary or in order not
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to violate any applicable law, regulation or order in connection with such
acquisition.
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay within five days of the due date therefor any
interest, fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.13, inclusive, and such failure shall
continue for five Domestic Business Days;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after notice thereof has been given to the
Borrower by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
(or deemed made) by the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this Agreement
shall prove to have been incorrect in any material respect when made (or
deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Financial Obligations when due or within any
applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt;
(g) an involuntary case or other proceeding shall be commenced
against the Borrower or any of its Material Subsidiaries seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
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substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Borrower of any of its
Material Subsidiaries under the federal bankruptcy laws as now or hereafter
in effect; or the Borrower or any of its Material Subsidiaries shall be the
subject of a decree or order of a court, agency or supervisory authority
having jurisdiction entered and not discharged for the appointment of a
conservator, receiver, liquidator, custodian or other similar official in
any insolvency proceedings, readjustment of debt, marshalling of assets and
liabilities or similar proceedings affecting the Borrower or any of its
Material Subsidiaries or all or any substantial part of its property, or
for the winding up or liquidation of its affairs;
(h) the Borrower or any of its Material Subsidiaries shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or
shall take any corporate action to authorize any of the foregoing;
(i) without limiting the generality of subsections (g) and (h)
above, the appointment of a conservator or receiver for any Material Bank
Subsidiary that is an "insured depository institution" as defined in
Section 3(c)(2) of the Federal Deposit Insurance Act of 1933, as amended
(the "FDIA"), by any "appropriate Federal banking agency" as defined in the
FDIA, by any state supervisory agency or by the Federal Deposit Insurance
Corporation or any successor (the "FDIC") pursuant to the FDIA; or the
organization of a new bank to assume the insured deposits of such Material
Bank Subsidiary pursuant to the FDIA; or the organization of a bridge bank
to purchase assets and assume liabilities of such Material Bank Subsidiary
pursuant to the FDIA; or the provision of any form of
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assistance to any such Material Bank Subsidiary by the FDIC pursuant to
Section 13 of the FDIA;
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer, any Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $50,000,000;
(k) judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Borrower or any
Material Subsidiary and such judgments or orders shall continue unsatisfied
and unstayed for a period of 30 days; or
(l) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said Act) of more than 20%
of the outstanding shares of common stock of the Borrower; or, during any
period of 12 consecutive calendar months, individuals who were directors of
the Borrower on the first day of such period shall cease to constitute a
majority of the board of directors of the Borrower;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding more than 50% in aggregate principal amount of the
Loans, by notice to the Borrower declare the Loans (together with accrued
interest thereon and all other amounts payable hereunder) to be, and the Loans
(together with accrued interest thereon and all other
44
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amounts payable hereunder) shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; PROVIDED that in the case of any of the
Events of Default specified in clause (g) or (h) above with respect to the
Borrower or in clause (i) above with respect to any Subsidiary, without any
notice to the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon and all other amounts payable hereunder) shall become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice to
the Borrower under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as
are delegated to the Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
SECTION 7.02. AGENT AND AFFILIATES. Morgan Guaranty Trust
Company of New York shall have the same rights and powers under this Agreement
as any other Bank and may exercise or refrain from exercising the same as
though it were not the Agent, and Morgan Guaranty Trust Company of New York 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 affiliate of the
Borrower as if it were not the Agent hereunder.
SECTION 7.03. ACTION BY AGENT. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Agent may consult
with legal counsel (who may be counsel for the Borrower), independent public
accountants and other
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experts selected by it and shall not be liable for any action taken or omitted
to be taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 7.05. LIABILITY OF AGENT. Neither the Agent nor any of
its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks (except
where a different number of proportion of Banks is specified herein) or (ii) in
the absence of its own gross negligence or willful misconduct. Neither the
Agent nor any of its affiliates nor any of their respective directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the
Borrower; (iii) the satisfaction of any condition specified in Article III,
except receipt of items required to be delivered to the Agent; or (iv) the
validity, effectiveness or genuineness of this Agreement, the Notes or any
other instrument or writing furnished in connection herewith. The Agent shall
not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex,
facsimile transmission or similar writing) believed by it to be genuine or to
be signed by the proper party or parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it
has, independently and without reliance upon the Agent, either Arranger or any
other Bank, 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 Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
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information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement.
SECTION 7.08. SUCCESSOR AGENT. The Agent may resign at any time
by giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent from among the Banks. If no successor Agent shall have been so appointed
by the Required Banks, and shall have accepted such appointment, within 30 days
after the retiring Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $50,000,000, and which shall not be an Excluded Bank. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent.
SECTION 7.09. AGENT'S FEE. The Borrower shall pay to the Agent
for its own account fees in the amounts and at the times previously agreed upon
in writing between the Borrower and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any Fixed
Rate Borrowing:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or
more of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate or the Adjusted London Interbank Offered Rate, as the case
may be, as determined by the Agent will not adequately and fairly reflect
the cost to such Banks of
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funding their CD Loans or Euro-Dollar Loans, as the case may be, for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
CD Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless
the Borrower notifies the Agent at least one Domestic Business Day before the
date of any Fixed Rate Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding
the last day of the Interest Period applicable thereto at the Base Rate for
such day.
SECTION 8.02. ILLEGALITY. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans and such Bank shall so notify the Agent, the
Agent shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans shall be suspended. Before giving any
notice to the Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Concurrently with prepaying each
such Euro-Dollar Loan, the Borrower
48
<PAGE> 54
shall borrow a Base Rate Loan in an equal principal amount from such Bank (on
which interest and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and such Bank shall make such a
Base Rate Loan.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or
after (x) the date hereof, in the case of any Committed Loan or any obligation
to make Committed Loans or (y) the date of the related Money Market Quote, in
the case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify
or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding (A) with respect to any CD Loan any such requirement included in
an applicable Domestic Reserve Percentage and (B) with respect to any
Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment (excluding, with
respect to any CD Loan, any such requirement reflected in an applicable
Assessment Rate) or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or on
the United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans and the result of any of the foregoing is
to increase the cost to such Bank (or its Applicable Lending Office) of making
or maintaining any Fixed Rate Loan, or to reduce the amount of any sum received
or receivable by such Bank (or its Applicable Lending Office) under this
Agreement or under its Note with respect thereto, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the
49
<PAGE> 55
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive of general applicability regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank (or its Parent) to be material, then from time to
time, within 15 days after demand by such Bank (with a copy to the Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder (and, in the
case of compensation under subsection (a), setting forth the computation of
such amount or amounts in reasonable detail) shall be conclusive in the absence
of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.04. TAXES. (a) For purposes of this Section 8.04, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, EXCLUDING (i) in the case of each Bank and the Agent, taxes
imposed on its income, and franchise or similar taxes imposed on it, by a
jurisdiction under the laws of which such Bank or the Agent (as the case may
be) is organized or in which its principal executive office is located or, in
the case of each Bank, in which its Applicable Lending Office is located and
(ii) in the case of
50
<PAGE> 56
each Bank, any United States withholding tax imposed on such payments to such
Bank but only to the extent that United States withholding tax would be imposed
on such payments to such Bank (assuming compliance by such Bank with Section
8.04(d), if applicable) at the time such Bank first becomes a party to this
Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, mortgage recording taxes or
similar charges or levies, which arise from any payment made pursuant to this
Agreement or under any Note or from the execution or delivery of, enforcement
of, or otherwise with respect to, this Agreement or any Note.
(b) Any and all payments by the Borrower to or for the account
of any Bank or the Agent hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; PROVIDED that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payments, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) the Borrower shall furnish
to the Agent, at its address referred to in Section 9.01, the original or a
certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Agent (as the case may be)
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be paid within
15 days after such Bank or the Agent (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank listed on the signature
pages hereof and on or prior to the date on which it becomes a Bank in the case
of each other Bank, and from time to time thereafter if requested in writing by
the Borrower (but only so long as
51
<PAGE> 57
such Bank remains lawfully able to do so), shall provide the Borrower with
Internal Revenue Service Form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Bank is
entitled to benefits under an income tax treaty to which the United States is a
party which exempts such Bank from United States withholding tax or reduces the
rate of withholding tax on payments of interest for the account of such Bank or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States.
(e) For any period with respect to which a Bank required to do
so has failed to provide the Borrower with the appropriate form pursuant to
Section 8.04(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such form originally was
required to be provided), such Bank shall not be entitled to indemnification
under Section 8.04(b) or (c) with respect to Taxes imposed by the United
States; PROVIDED that if a Bank, which is otherwise exempt from or subject to a
reduced rate of withholding tax, becomes subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such
steps as such Bank shall reasonably request to assist such Bank to recover such
Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section 8.04, then such Bank
will change the jurisdiction of its Applicable Lending Office if, in the
judgment of such Bank, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED
RATE LOANS. If (i) the obligation of any Bank to make Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04 with respect to its CD Loans or
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as CD
Loans or Euro-Dollar Loans, as the case may be, shall be made instead as
Base Rate Loans (on which interest and principal shall be payable
52
<PAGE> 58
contemporaneously with the related Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case
may be, has been repaid, all payments of principal which would otherwise be
applied to repay such Fixed Rate Loans shall be applied to repay its Base
Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower or the Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof, (y) in the case
of any Bank, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Agent and the Borrower. Each such notice,
request or other communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in this Section and the
appropriate answerback is received, (ii) if given by facsimile transmission,
when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (iii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the Agent under
Article II or Article VIII shall not be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. EXPENSES; INDEMNIFICATION. (a) The Borrower shall
pay (i) all out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel
53
<PAGE> 59
for the Agent, in connection with the preparation of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by the Agent and each Bank, including (without duplication) the fees
and disbursements of outside counsel and the allocated cost of inside counsel,
in connection with such Event of Default and restructuring, collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; PROVIDED that no Indemnitee shall
have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. SHARING OF SET-OFFS. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be shared by the
Banks pro rata; PROVIDED that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under the Notes. The Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off
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<PAGE> 60
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.05. AMENDMENTS AND WAIVERS. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
PROVIDED that no such amendment or waiver shall, unless signed by all the
Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) except as contemplated by Section 2.01(b),
postpone the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder or for termination of any Commitment or (iv) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement.
SECTION 9.06. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant"), except to any Excluded Bank, participating
interests in its Commitment or any or all of its Loans. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Borrower
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; PROVIDED that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this
55
<PAGE> 61
Agreement described in clause (i), (ii) or (iii) of Section 9.05 without the
consent of the Participant. The Borrower agrees that each Participant shall,
to the extent provided in its participation agreement, be entitled to the
benefits of Article VIII with respect to its participating interest. An
assignment or other transfer which is not permitted by subsection (c) or (d)
below shall be given effect for purposes of this Agreement only to the extent
of a participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee"), except to any Excluded Bank, all, or a
proportionate part (equivalent to an initial Commitment of not less than
$10,000,000) of all, of its rights and obligations under this Agreement and the
Notes, and such Assignee shall assume such rights and obligations, pursuant to
an Assignment and Assumption Agreement in substantially the form of Exhibit H
hereto executed by such Assignee and such transferor Bank, with (and subject
to) the subscribed consent (which consent shall not be unreasonably withheld)
of the Borrower and the Agent; PROVIDED that if an Assignee is another Bank or
an affiliate of such transferor Bank, or an Event of Default shall have
occurred and be continuing for 30 days or more, no such consent shall be
required; and PROVIDED FURTHER that such assignment may, but need not, include
rights of the transferor Bank in respect of outstanding Money Market Loans.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, such Assignee shall be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note is issued to the Assignee. In connection with
any such assignment, the transferor Bank shall pay to the Agent an
administrative fee for processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall, prior to the first date on which interest or fees
are payable hereunder for its account, deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.04.
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<PAGE> 62
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.07. COLLATERAL. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement, the Notes or the transactions contemplated hereby. The Borrower
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.
SECTION 9.09. COUNTERPARTS; INTEGRATION. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
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<PAGE> 63
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
58
<PAGE> 64
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
KEYCORP
<TABLE>
<S> <C>
By ____________________________
Name:
Title:
127 Public Square
Cleveland, Ohio 44114
Attention: Corporate Treasury
Telex number:
Facsimile number: (216) 689-5287
Commitments
- -----------
$40,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
--------------------------
Name:
Title:
$37,500,000 THE CHASE MANHATTAN BANK, N.A.
By __________________________
Name:
Title:
$37,500,00 CITIBANK, N.A.
By __________________________
Name:
Title:
</TABLE>
59
<PAGE> 65
<TABLE>
<S> <C>
$37,500,000 COMMERZBANK AKTIENGESELLSCHAFT
GRAND CAYMAN BRANCH
By __________________________
Name:
Title:
By __________________________
Name:
Title:
$37,500,00 DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By __________________________
Name:
Title:
By __________________________
Name:
Title:
$32,500,000 THE DAI-ICHI KANGYO BANK, LTD.
By _________________________
Name:
Title:
$32,500,000 NATIONSBANK OF TEXAS, N.A.
By _________________________
Name:
Title:
</TABLE>
60
<PAGE> 66
<TABLE>
<S> <C>
$25,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By __________________________
Name:
Title:
$25,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By ________________________
Name:
Title:
$25,000,000 THE FUJI BANK, LIMITED
By ________________________
Name:
Title:
$25,000,000 THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By ________________________
Name:
Title:
$25,000,000 SOCIETE GENERALE, NEW YORK BRANCH
By ________________________
Name:
Title:
61
</TABLE>
<PAGE> 67
<TABLE>
<S> <C>
$25,000,000 THE SUMITOMO BANK, LIMITED
By ________________________
Name:
Title:
$15,000,000 MELLON BANK, N.A.
By ________________________
Name:
Title:
$10,000,000 BANK OF MONTREAL
By _________________________
Name:
Title:
$10,000,000 THE BANK OF NEW YORK
By ________________________
Name:
Title:
$10,000,000 THE BANK OF TOKYO, LIMITED,
CHICAGO BRANCH
By ________________________
Name:
Title:
</TABLE>
62
<PAGE> 68
<TABLE>
<S> <C>
$10,000,000 BARCLAYS BANK PLC
By _________________________
Name:
Title:
$10,000,000 CAISSE NATIONALE DE CREDIT AGRICOLE
By ________________________
Name:
Title:
$10,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By _________________________
Name:
Title:
CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By _________________________
Name:
Title:
$10,000,000 THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.
By _________________________
Name:
Title:
</TABLE>
63
<PAGE> 69
<TABLE>
<S> <C>
$10,000,000 THE MITSUBISHI BANK LIMITED,
CHICAGO BRANCH
By ________________________
Name:
Title:
_________________
Total Commitments
$500,000,000
=================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By __________________________
Name:
Title:
60 Wall Street
New York, New York 10260-0060
Attention: Richard Herder
Telex number: 177615 MGTUT or
620106 MGTUW
Facsimile number: (212) 837-5024
</TABLE>
64
<PAGE> 70
SCHEDULE I
EXCLUDED BANKS
Bank One Corp.
National City Corp.
Huntington Bancshares
Star Bank Corporation
Fifth Third Bancorp
Integra Financial Corp.
First Bank System, Inc.
Norwest Corp.
U.S. Bancorp
<PAGE> 71
SCHEDULE II
PRICING SCHEDULE
The "Facility Fee Rate", "Euro-Dollar Margin", "CD Margin" and
"Utilization Fee Rate" for any day are the respective percentages set forth
below in the applicable row under the column corresponding to the Status that
exists on such day:
<TABLE>
<CAPTION>
==============================================================================================================
Level Level Level Level Level Level
Status I II III IV V VI
==============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
Facility Fee Rate 0.080% 0.100% 0.1250% 0.150% 0.1750% 0.250%
--------------------------------------------------------------------------------------------------------------
Euro-Dollar Margin 0.220% 0.250% 0.2750% 0.300% 0.3750% 0.500%
--------------------------------------------------------------------------------------------------------------
CD Margin 0.340% 0.3750% 0.400% 0.4250% 0.500% 0.6250%
--------------------------------------------------------------------------------------------------------------
Utilization Fee Rate 0.05% 0.05% 0.05% 0.05% 0.05% 0.10%
==============================================================================================================
</TABLE>
For purposes of this Schedule, the following terms have the
following meanings, subject to the concluding paragraphs of this Schedule:
"Level I Status" exists at any date if, at such date, the
Borrower's long-term debt is rated at least AA- by S&P OR Aa3 by Moody's.
"Level II Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least A by S&P OR A2 by Moody's and (ii)
Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least A- by S&P OR A3 by Moody's and (ii)
neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least
1
<PAGE> 72
BBB+ by S&P OR Baa1 by Moody's and (ii) none of Level I Status, Level II Status
and Level III Status exists.
"Level V Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated at least BBB by S&P OR Baa2 by Moody's and
(ii) none of Level I Status, Level II Status, Level III Status or Level IV
Status exists.
"Level VI Status" exists at any date if, at such date, no other Status exists.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status or Level VI
Status exists at any date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at
any date is that in effect at the close of business on such date.
If the Borrower is split-rated and the ratings differential is one
level, the higher of the two ratings will apply (E.G., AA-/A1 results in Level
I Status and A/A3 results in Level II Status). If the Borrower is split-rated
and the ratings differential is more than one level, the average of the two
ratings (or the higher of two intermediate ratings) shall be used (E.G., AA-/A2
results in Level II Status).
<PAGE> 73
EXHIBIT A
NOTE
----
New York, New York
October 3, 1995
For value received, KeyCorp, an Ohio corporation (the "Borrower"),
promises to pay to the order of [ ] (the "Bank"), for the account of its
Applicable Lending Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred to below on the
last day of the Interest Period relating to such Loan. The Borrower promises
to pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Morgan
Guaranty Trust Company of New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and maturities thereof and
all repayments of the principal thereof shall be recorded by the Bank and, if
the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; PROVIDED that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of October 3, 1995 among the Borrower, the banks party thereto and
Morgan Guaranty Trust Company of New York, as Agent (as the same may be amended
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
<PAGE> 74
KEYCORP
By______________________
Name:
Title:
2
<PAGE> 75
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Amount of Loan Type of Loan Amount of Maturity Date Notation Made
Principal By
Date Repaid
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
==============================================================================================================
</TABLE>
3
<PAGE> 76
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: KeyCorp
Re: Credit Agreement (as amended, the "Credit Agreement") dated as of October
3, 1995 among the Borrower, the Banks party thereto and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount(1) Interest Period(2)
- ------------------- ------------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
__________________________________
_____(1)AMOUNT MUST BE $5,000,000 OR A LARGER MULTIPLE OF $1,000,000.
_____(2)NOT LESS THAN ONE MONTH (LIBOR AUCTION) OR NOT LESS THAN 7 DAYS
(ABSOLUTE RATE AUCTION), SUBJECT TO THE PROVISIONS OF THE DEFINITION OF
INTEREST PERIOD.
<PAGE> 77
KEYCORP
By________________________
Title:
2
<PAGE> 78
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to KeyCorp (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement (as amended, the
"Credit Agreement") dated as October 3, 1995 among the Borrower, the Banks
party thereto and the undersigned, as Agent, we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
- ---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By______________________
Authorized Officer
<PAGE> 79
EXHIBIT D
Form of Money Market Quote
--------------------------
To: Morgan Guaranty Trust Company
of New York, as Agent
Re: Money Market Quote to
KeyCorp (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________(1)
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
_____________________
(1)AS SPECIFIED IN THE RATE OF RELATED INVITATION.
<PAGE> 80
<TABLE>
<S> <C> <C> <C>
Principal Interest Money Market
Amount(2) Period(3) [Margin(4)] [Absolute Rate(5)]
---------- --------- ------------ ------------------
$
$
</TABLE>
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Credit
Agreement (as amended, the "Credit Agreement") dated as of October 3, 1995
among the Borrower, the Banks party thereto and yourselves, as Agent,
irrevocably obligates us to make the Money Market Loan(s) for which any
offer(s) are accepted, in whole or in part.
All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________________________________
(2)PRINCIPAL AMOUNT BID FOR EACH INTEREST PERIOD MAY NOT EXCEED PRINCIPAL
AMOUNT REQUESTED. SPECIFY AGGREGATE LIMITATION IF THE SUM OF THE INDIVIDUAL
OFFERS EXCEEDS THE AMOUNT THE BANK IS WILLING TO LEND. BIDS MUST BE MADE FOR
$5,000,000 OR A LARGER MULTIPLE OF $1,000,000.
(3)NOT LESS THAN ONE MONTH OR NOT LESS THAN 7 DAYS, AS SPECIFIED IN THE
RELATED INVITATION. NO MORE THAN FIVE BIDS ARE PERMITTED FOR EACH INTEREST
PERIOD.
(4)MARGIN OVER OR UNDER THE LONDON INTERBANK OFFERED RATE DETERMINED FOR
THE APPLICABLE INTEREST PERIOD. SPECIFY PERCENTAGE (TO THE NEAREST 1/10,000 OF
1%) AND SPECIFY WHETHER "PLUS" OR "MINUS".
(5)SPECIFY RATE OF INTEREST PER ANNUM (TO THE NEAREST 1/10,000TH OF 1%).
2
<PAGE> 81
EXHIBIT E
EXTENSION AGREEMENT
-------------------
KeyCorp
One KeyCorp Plaza
P.O. Box 88
Albany, NY 12201-0008
Morgan Guaranty Trust Company
of New York, as Agent
under the Credit Agreement
referred to below
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
The undersigned hereby agree to extend, effective [Extension
Date], their respective Termination Dates under the Credit Agreement dated as
of October 3, 1995 among KeyCorp, the Banks party thereto and Morgan Guaranty
Trust Company of New York, as Agent (the "Credit Agreement") to [date to which
the Termination Dates are extended]. Terms defined in the Credit Agreement are
used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Title:
<PAGE> 82
[NAME OF BANK]
By__________________________
Title:
Agreed and accepted:
KEYCORP
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:
2
<PAGE> 83
EXHIBIT F
OPINION OF
COUNSEL FOR THE BORROWER
------------------------
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
I am Senior Vice President and Senior Managing Counsel of KeyCorp
Management Company, an affiliate of KeyCorp (the "Borrower"), and have acted as
counsel for the Borrower in connection with the Credit Agreement (the "Credit
Agreement") dated as of October 3, 1995 among the Borrower, the banks party
thereto and Morgan Guaranty Trust Company of New York, as Agent. Terms defined
in the Credit Agreement are used herein as therein defined. This opinion is
being rendered to you at the request of our client pursuant to Section 3.01(c)
of the Credit Agreement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Ohio, is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended,
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
<PAGE> 84
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Borrower
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or any of its Subsidiaries or result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement
of the Borrower and each Note constitutes a valid and binding obligation of the
Borrower in each case enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
4. (a) There is no action, suit or proceeding pending against,
or to the best of my knowledge threatened against or affecting, the Borrower or
any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official, in which there is a reasonable likelihood of an
adverse decision which could materially adversely affect the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole or which in
any manner draws into question the validity or enforceability of the Credit
Agreement or the Notes.
(b) Without limiting the generality of 4(a), (i) there is not any
Covered Administrative Action which is currently in effect and (ii) there is no
examination, administrative investigation or proceeding by any Banking Agency
pending against, or to the best of my knowledge, threatened against or
affecting, the Borrower or any of its Bank Subsidiaries in which there is a
reasonable likelihood of any Covered Administrative Action.
5. Each of the Borrower's corporate Subsidiaries is a corporation
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
2
<PAGE> 85
I am a member of the Bars of the States of Ohio and New York and
the foregoing opinion is limited to the laws of the States of Ohio and New York
and the federal laws of the United States of America.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without my prior written consent.
3
<PAGE> 86
EXHIBIT G
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
--------------------------------------
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of October 3, 1995 among KeyCorp, an Ohio
corporation (the "Borrower"), the banks party thereto (the "Banks") and Morgan
Guaranty Trust Company of New York, as Agent (the "Agent"), and have acted as
special counsel for the Agent for the purpose of rendering this opinion
pursuant to Section 3.01(d) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement
of the Borrower and each Note constitutes a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms, except as the
same may be limited by
<PAGE> 87
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York and the
federal laws of the United States of America. In giving the foregoing opinion,
we express no opinion as to the effect (if any) of any law of any jurisdiction
(except the State of New York) in which any Bank is located which limits the
rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,
2
<PAGE> 88
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), KEYCORP (the "Borrower") and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S E T H
- - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of October 3, 1995 among
the Borrower, the Assignor and the other Banks party thereto, as Banks, and the
Agent (as amended, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has
a Commitment to make Committed Loans to the Borrower in an aggregate principal
amount at any time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of
the rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
<PAGE> 89
SECTION 1. DEFINITIONS. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Committed Loans made by the Assignor outstanding at the date hereof.
Upon the execution and delivery hereof by the Assignor, the Assignee, the
Borrower and the Agent and the payment of the amounts specified in Section 3
hereof required to be paid on the date hereof (i) the Assignee shall, as of the
date hereof, succeed to the rights and be obligated to perform the obligations
of a Bank under the Credit Agreement with a Commitment in an amount equal to
the Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the
date hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor
on the date hereof in Federal funds an amount equal to $_________*. (6) It is
understood that facility and utilization fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof in respect of the Assigned Amounts are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
__________________________________
(6)* AMOUNT SHOULD COMBINE PRINCIPAL TOGETHER WITH ACCRUED INTEREST AND
BREAKAGE COMPENSATION, IF ANY, TO BE PAID BY THE ASSIGNEE, NET OF ANY PORTION
OF ANY UPFRONT FEE TO BE PAID BY THE ASSIGNOR TO THE ASSIGNEE. IT MAY BE
PREFERABLE IN AN APPROPRIATE CASE TO SPECIFY THESE AMOUNTS GENERICALLY OR BY
FORMULA RATHER THAN AS A FIXED SUM.
2
<PAGE> 90
[SECTION 4. CONSENT OF THE BORROWER AND THE AGENT. This
Agreement is conditioned upon the consent of the Borrower and the Agent
pursuant to Section 9.06(c) of the Credit Agreement. The execution of this
Agreement by the Borrower and the Agent is evidence of this consent. Pursuant
to Section 9.06(c) the Borrower agrees to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided
for herein.]
SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By_________________________
Title:
3
<PAGE> 91
[ASSIGNEE]
By__________________________
Title:
KEYCORP
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Title:
4
