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Exhibit 10.1
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U.S. $30,000,000
CREDIT AGREEMENT
Dated as of December 15, 2000
between
M & T BANK CORPORATION
as Borrower
and
CITIBANK, N.A.
as Lender
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms..........................................1
SECTION 1.02. Types of Advances..............................................9
SECTION 1.03 Accounting Terms and Determinations............................9
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment.................................................9
SECTION 2.02. Advances......................................................10
SECTION 2.03. Interest Elections............................................10
SECTION 2.04. Termination, Reduction and Extension of the Commitment........11
SECTION 2.05. Repayment of Advances; Note...................................12
SECTION 2.06. Prepayment of Advances........................................12
SECTION 2.07 Facility Fees; Utilization Fees...............................13
SECTION 2.08. Interest......................................................13
SECTION 2.09. Alternate Rate of Interest....................................14
SECTION 2.10. Increased Costs...............................................14
SECTION 2.11. Break Funding Payments........................................15
SECTION 2.12. Taxes.........................................................15
SECTION 2.13. Payments Generally............................................16
ARTICLE III CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advance........................17
SECTION 3.02. Conditions Precedent to Each Advance..........................17
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Organization; Powers..........................................18
SECTION 4.02. Authorization; Enforceability.................................18
SECTION 4.03. Government Approvals; No Conflicts............................18
SECTION 4.04. Financial Condition; No Material Adverse Change...............18
SECTION 4.05. Litigation....................................................19
SECTION 4.06. Compliance with Laws and Agreements...........................19
SECTION 4.07. Investment and Holding Company Status.........................19
SECTION 4.08. Margin Regulations............................................19
SECTION 4.09. Taxes.........................................................19
SECTION 4.10. Environmental Matters.........................................19
SECTION 4.11. Existing Agreement............................................19
SECTION 4.12. Solvency......................................................20
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. General Covenants.............................................20
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SECTION 5.02. Financial Covenants...........................................26
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default.............................................26
ARTICLE VII MISCELLANEOUS
SECTION 7.01. Amendments, Etc...............................................28
SECTION 7.02. Notices, Etc..................................................28
SECTION 7.03. No Waiver; Remedies...........................................28
SECTION 7.04. Costs, Expenses and Indemnification...........................29
SECTION 7.05. Assignments and Participations................................29
SECTION 7.06. Governing Law; Submission to Jurisdiction.....................30
SECTION 7.07. Severability..................................................30
SECTION 7.08. Execution in Counterparts.....................................30
SECTION 7.09. Survival......................................................30
SECTION 7.10. Waiver of Jury Trial..........................................30
SECTION 7.11. No Fiduciary Relationship.....................................31
SECTION 7.12. No Reliance...................................................31
SCHEDULES
Schedule I - Existing Credit Agreements/Existing Liens
EXHIBITS
Exhibit A - Form of Note
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of December 15, 2000, between M & T
BANK CORPORATION, a New York corporation (the "BORROWER"), and CITIBANK, N.A.
(the "LENDER"), a national bank.
The Borrower has requested that the Lender make Advances to it
in an aggregate principal amount up to but not exceeding $30,000,000 at any one
time outstanding, and the Lender is prepared to make such Advances on and
subject to the terms and conditions hereof. Accordingly, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ADVANCE" means each advance by the Lender to the Borrower
pursuant to Section 2.01.
"AFFILIATE" means any Person that, directly or indirectly,
controls, is controlled by or is under common control with the Borrower. For
purposes of this definition, the term "CONTROL" (including the terms
"CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") of a Person
shall mean the possession, direct or indirect, of the power to vote 10% or more
of the Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of such
Voting Stock, by contract or otherwise. Notwithstanding the foregoing, no
individual shall be deemed to be an Affiliate solely by reason of his or her
being an officer or director of the Borrower and the Borrower and the
Subsidiaries shall not be deemed to be Affiliates of each other.
"APPLICABLE FACILITY FEE RATE" means 0.125% per annum.
"APPLICABLE LENDING OFFICE" means the office of the Lender
specified on the signature page hereof, or such other office of the Lender as
the Lender may from time to time specify to the Borrower.
"APPLICABLE MARGIN" means (a) with respect to Base Rate
Advances, 0% per annum and (b) with respect to LIBO Rate Advances, 0.375% per
annum.
"APPLICABLE UTILIZATION FEE RATE" means 0.10% per annum.
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"BANK SUBSIDIARY" means a Subsidiary of the Borrower that is a
bank or banking institution and shall include any Insured Subsidiary.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time which shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by the Lender in
New York, New York, from time to time, as the Lender's Base Rate;
(b) 0.50% per annum above the latest three-week moving average
of secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money center banks, such
three-week moving average (adjusted to the basis of a year of 365 days) being
determined weekly on each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending on the previous
Friday by the Lender on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of New York or, if
such publication shall be suspended or terminated, on the basis of quotations
for such rates received by the Lender from three New York certificate of deposit
dealers of recognized standing selected by the Lender, in either case adjusted
to the nearest 1/4 of one percent or, if there is no nearest 1/4 of one percent,
to the next higher 1/4 of one percent; and
(c) 0.50% per annum above the Federal Funds Rate.
Each change in any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the time of such
change in the Base Rate.
"BASE RATE ADVANCE" means, at any time, an Advance which bears
interest at the Base Rate.
"BORROWER" means M&T Bank Corporation and its successors and
assigns.
"BUSINESS DAY" means (a) a day on which banks are not required
or authorized to close in New York, New York and (b) if the applicable Business
Day relates to any LIBO Rate Advance, on which dealings in deposits are carried
on in the London interbank market.
"CHANGE IN CONTROL" means any of the following events:
(a) the Borrower is merged, consolidated or reorganized into
or with another corporation or other Person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then outstanding Voting Stock of the corporation or other Person
that is the survivor of such merger, consolidation or reorganization immediately
after such transaction is held in the aggregate by the holders of Voting Stock
of the Borrower immediately prior to such transaction; or
(b) the Borrower sells all or substantially all of its assets
to any other corporation or other Person, and less than a majority of the
combined voting power of the then outstanding
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Voting Stock of such corporation or other Person immediately after such
transaction is held in the aggregate by the holders of Voting Stock of the
Borrower immediately prior to such sale; or
(c) any "person" or "group" as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable (except that for purposes of this paragraph (c) such person or group
shall not include the ▇▇▇▇▇▇▇ Group or its members) is or becomes the
"beneficial owner" (as such term is used in Rule 13d-3 promulgated pursuant to
the Exchange Act), directly or indirectly, of more than 50% of the aggregate
voting power of all Voting Stock of the Borrower, or ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
shall, as a result of a sale or other disposition (other than a share exchange
in connection with a merger otherwise permitted hereby) of shares, cease to own,
beneficially and of record, at least 5% of the aggregate voting power of all
Voting Stock of the Borrower; or
(d) during any period of 13 consecutive calendar months, a
majority of the Board of Directors of the Borrower shall no longer be composed
of individuals (i) who were members of said Board on the first day of such
period, (ii) whose election or nomination to said Board was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of said Board or (iii) whose election
or nomination to said Board was approved by individuals referred to in clauses
(i) and (ii) above constituting at the time of such election or nomination at
least a majority of said Board.
"CLOSING DATE" means the date on which the Lender notifies the
Borrower that the conditions precedent set forth in Section 3.01 have been
satisfied.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITMENT" has the meaning specified in Section 2.01.
"COMMITMENT TERMINATION DATE" means the day 364 days after the
Closing Date or, in the event that the Commitment is extended pursuant to
Section 2.04(d), the date to which the Commitment is extended; PROVIDED, that if
such day is not a Business Day, the Commitment Termination Date shall be the
immediately preceding Business Day.
"CONSOLIDATED NET WORTH" means the aggregate of the capital
stock, surplus and retained earnings of the Borrower and its Consolidated
Subsidiaries, but excluding treasury stock and capital stock subscribed and
unissued, all determined on a consolidated basis.
"CONSOLIDATED NON-PERFORMING ASSETS" means, on any date, the
aggregate amount of loans and leases that are not accruing interest or that are
90 days or more past due in the payment of principal and interest, renegotiated
or restructured loans and leases, in substance foreclosures and foreclosed real
estate and other foreclosed property of the Borrower and its Consolidated
Subsidiaries on such date.
"CONSOLIDATED RESERVE FOR CREDIT LOSSES" means, on any date,
the consolidated allowance for loan and lease losses for the Borrower and its
Consolidated Subsidiaries on such date.
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"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary
of the Borrower the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared in accordance with GAAP as of such date.
"CONSOLIDATED TANGIBLE NET WORTH" means the Consolidated Net
Worth less the book value of goodwill, patents, trademarks, service marks, trade
names, copyrights, charters, franchises, certificates, permits and licenses and
any other intangible assets of the Borrower and its Consolidated Subsidiaries on
a consolidated basis.
"CONSOLIDATED TOTAL TANGIBLE ASSETS" means, at any time, the
aggregate amount of assets of the Borrower and its Consolidated Subsidiaries
determined in accordance with GAAP less the book value of goodwill, patents,
trademarks, service marks, trade names, copyrights, charters, franchises,
certificates, permits and licenses and any other intangible assets of the
Borrower and its Consolidated Subsidiaries on a consolidated basis.
"DEBT" of any Person means (a) indebtedness of such Person for
borrowed money, (b) obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) obligations of such Person to pay the
deferred purchase price of property or services (excluding, however, trade
accounts payable arising in the ordinary course of business and not overdue),
(d) capital lease obligations of such Person, (e) Debt of others Guaranteed by
such Person, (f) Debt of others secured by a Lien on the property of such
Person, (g) all obligations of such Person to redeem, retire, defease or
otherwise make any payment in respect of shares of capital stock of such Person,
(h) all obligations, contingent or otherwise, of such Person in respect of
letters of credit or acceptances (other than commercial letters of credit in
respect of trade accounts payable and not overdue) and (i) the net liability of
such Person under Hedge Agreements, EXCLUDING, from this definition, other than
for purposes of Section 6.01(d), the Junior Subordinated Debentures issued by
the Borrower in connection with preferred capital securities issued by M & T
Capital Trust I, a Delaware business trust, M & T Capital Trust II, a Delaware
business trust, or M & T Capital Trust III, a Delaware business trust.
"DEFAULT" means an Event of Default or an event that, with
notice or lapse of time or both, would become an Event of Default.
"DOLLARS" and "$" means lawful money of the United States of
America.
"DOUBLE LEVERAGE RATIO" means the ratio of (i) the aggregate
investment of the Borrower in capital stock of its Subsidiaries, including its
interest in undistributed earnings and intangibles (determined in accordance
with GAAP) of its Subsidiaries, to (ii) Consolidated Net Worth of the Borrower.
"ENVIRONMENTAL LAWS" means any and all present and future
Federal, state and local laws, rules or regulations, and any orders or decrees,
in each case as now or hereafter in effect, relating to the regulation or
protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of Hazardous Materials into the
indoor or outdoor environment, including, without limitation, ambient air, soil,
surface water, ground
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water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 4143 of the Code.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCLUDED TAXES" means, with respect to the Lender or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise Taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of the Lender, in which its Applicable Lending Office
is located and (b) any branch profits Taxes imposed by the United States of
America or any similar Tax imposed by any other jurisdiction in which the
Borrower is located.
"FEDERAL FUNDS RATE" means, for any day, a fluctuating
interest rate per annum 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, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Lender from three Federal funds brokers of recognized standing
selected by it.
"GAAP" means generally accepted United States accounting
principles.
"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
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, other than agreements
to purchase goods at an arm's length price in the ordinary course of business)
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
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include endorsements for collection or deposit in the ordinary course of
business. The term "GUARANTEE" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGE AGREEMENT" means any rate, basis, commodity, currency,
debt or equity swap, any cap, collar or floor agreement, or any similar
agreement entered into for the purpose of hedging risk.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INSURED SUBSIDIARY" means any insured depositary institution
(as defined in 12 U.S.C. ss.1813(c)(2) or any successor provision, as amended,
reenacted or redesignated from time to time) that is controlled (within the
meaning of 12 U.S.C. ss.1841(a)(2) or any successor provision as amended,
reenacted or redesignated from time to time) by the Borrower.
"INTEREST PAYMENT DATE" means (a) with respect to any Base
Rate Advance, each Quarterly Date and (b) with respect to any LIBO Rate Advance,
the last day of each Interest Period therefor and, in the case of any Interest
Period that has a duration of more than three months, each day prior to the last
day of such Interest Period that occurs at intervals of three months after the
first day of such Interest Period.
"INTEREST PERIOD" means, with respect to any LIBO Rate
Advance, the period beginning on the date such LIBO Rate Advance is made, or
converted from a Base Rate Advance, or on the last day of the immediately
preceding Interest Period, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below. The duration of each Interest
Period in respect of any LIBO Rate Advance shall be 1, 2, 3 or 6 months as the
Borrower may select as provided in Section 2.03; PROVIDED, HOWEVER, that (i)
each Interest Period that begins on the last Business Day of a calendar month
(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month, (ii) whenever the last day of any
Interest Period would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on the next
succeeding Business Day, except that, if such extension would cause the last day
of such Interest Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding Business Day, and
(iii) any Interest Period that would otherwise extend beyond the Commitment
Termination Date shall end on the Commitment Termination Date.
"LENDER" means Citibank, N.A. and its successors and assigns.
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"LIBO RATE" means, with respect to any LIBO Rate Advance, for
any Interest Period:
(a) the offered rate for deposits in Dollars with a maturity
comparable to such Interest Period appearing on Page 3750 of the Telerate
Service of Bridge Information Service (or on any successor or substitute page of
such Service, or any successor to such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Lender from time to time, for purposes of providing quotations
of interest rates applicable to Dollar deposits in the London interbank market)
as of approximately 11:00 a.m. (London time) on the date two Business Days prior
to the commencement of such Interest Period;
(b) if such date does not appear on said Page 3750 (or such
successor), the offered rate for deposits in Dollars with a maturity comparable
to such Interest Period appearing on the display designated on page "LIBO" on
the ▇▇▇▇▇▇ Monitor Money Rates Service (or on any successor or substitute page
of such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Lender from time to
time, for purposes of providing quotations of interest rates applicable to
Dollar deposits in the London interbank market) as of approximately 11:00 a.m.
(London time) on the date two Business Days prior to the commencement of such
Interest Period; and
(c) in the event that neither rate referred to in clauses (a)
or (b) is available at such time for any reason, an interest rate per annum
equal to the rate per annum at which deposits in Dollars are offered by the
principal office of the Lender in London, England to prime banks in the London
interbank market at approximately 11:00 a.m. (London time) on the date two
Business Days before the first day of such Interest Period in the amount of the
Advance if such Advance were to be outstanding for such Interest Period.
"LIBO RATE ADVANCE" means, at any time, an Advance which bears
interest at a rate based upon the LIBO Rate.
"LIBO RATE RESERVE PERCENTAGE" for any Interest Period for any
LIBO Rate Advance means the effective rate (expressed as a percentage) at which
reserve requirements (including, without limitation, emergency, supplemental and
other marginal reserve requirements) are imposed on the Lender during such
Interest Period (or if more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor.
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"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(i) the business, condition (financial or otherwise), operations or prospects of
the Borrower or of the Borrower and its Consolidated Subsidiaries taken as a
whole, (ii) the legality, validity or enforceability of this Agreement or the
Note or (iii) the ability of the Borrower to perform its obligations under this
Agreement or the Note in any material respect.
"MULTIEMPLOYER PLAN" means a multiemployer plan defined as
such in Section 4001(a)(3) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NON-PERFORMING ASSET COVERAGE RATIO" means, on any date, the
ratio of (a) Consolidated Net Worth PLUS Consolidated Reserve for Credit Losses
on such date to (b) Consolidated Non-Performing Assets on such date.
"NOTE" has the meaning specified in Section 2.05(b).
"OTHER TAXES" means any and all present or future stamp or
documentary Taxes or any other excise or property Taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PLAN" means an employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"QUARTERLY DATE" means the last Business Day of each March,
June, September and December.
"SIGNIFICANT SUBSIDIARY" means (i) any Subsidiary of the
Borrower that would be a "significant subsidiary" within the meaning of
Regulation S-X of the SEC and (ii) any Bank Subsidiary.
"SOLVENT" means, with respect to any Person on a particular
date, that (i) the fair value of the property of such Person is greater than the
total amount of the liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature, and (iv) such Person is not engaged in business,
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and is not about to engage in business, for which such Person's property would
constitute unreasonably small capital.
"SUBSIDIARY" means any Person of which at least a majority of
the Voting Stock is at the time directly or indirectly owned or controlled by
the Borrower or one or more Subsidiaries or by the Borrower and one or more
Subsidiaries.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any governmental
authority.
"VOTING STOCK" means, at any time, the outstanding securities
of any Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person.
"▇▇▇▇▇▇▇ GROUP" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the other members
of the group of related Persons described under the caption "PRINCIPAL
BENEFICIAL OWNERS OF SHARES" in the proxy statement of the Borrower relating to
its 2000 Annual Meeting of Stockholders.
SECTION 1.02. TYPES OF ADVANCES. The "Type" of an Advance
refers to whether it is at the time a Base Rate Advance or a LIBO Rate Advance.
SECTION 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Except as
otherwise expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lender hereunder shall (unless
otherwise disclosed to the Lender in writing at the time of delivery thereof in
the manner described in subsection (b) below) be prepared, in accordance with
GAAP applied on a basis consistent with those used in the preparation of the
latest financial statements furnished to the Lender hereunder after the date
hereof. All calculations made for the purposes of determining compliance with
the terms of Section 5.02 shall (except as otherwise expressly provided herein)
be made by application of GAAP applied on a basis consistent with those used in
the preparation of the annual or quarterly financial statements furnished to the
Lender pursuant to Section 5.01(g) hereof.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE COMMITMENT. The Lender agrees, on the terms
and conditions hereinafter set forth, to make Advances to the Borrower in
Dollars from time to time on any Business Day during the period from the date
hereof until the Commitment Termination Date in an aggregate principal amount
not to exceed at any one time outstanding $30,000,000 (the "COMMITMENT"). Within
the foregoing limits and subject to the terms and conditions of this Agreement
the Borrower may borrow, prepay and reborrow the amount of the Commitment. Each
Advance shall be in a minimum amount of $1,000,000 or any whole multiple of
$1,000,000 in excess thereof.
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SECTION 2.02. ADVANCES. To request an Advance, the Borrower
shall give the Lender irrevocable, written notice of such Advance (i) in the
case of a LIBO Rate Advance, not later than 11:00 a.m. (New York City time) on
the third Business Day prior to the date of such Advance or (ii) in the case of
a Base Rate Advance, not later than 11:00 a.m. (New York City time) on the day
of such Advance. Each such notice shall be by telecopier, telex or cable and
shall specify the requested (i) date of such Advance, which shall be a Business
Day, (ii) Type of Advance, (iii) amount of such Advance and (iv) in the case of
an Advance consisting of a LIBO Rate Advance, initial Interest Period for such
Advance. The Lender will make the proceeds of each Advance available to the
Borrower by crediting the amount thereof, in immediately available funds, to an
account of the Borrower maintained with the Lender in New York City (or such
other account as the Lender and the Borrower may agree) (i) by 12:00 noon (New
York City time) in the case of a LIBO Rate Advance and (ii) by the end of the
same Business Day, if possible, in the case of a Base Rate Advance.
SECTION 2.03. INTEREST ELECTIONS. Each Advance initially shall
be of the Type specified in the notice of such Advance and, in the case of a
LIBO Rate Advance, shall have an initial Interest Period as specified in such
notice. Thereafter, the Borrower may elect to convert such Advance to a
different Type or to continue such Advance as the same Type and, in the case of
a LIBO Rate Advance, may elect Interest Periods therefor, all as provided in
this Section 2.03. The Borrower may elect different options with respect to
different portions of the affected Advance, in which case each such portion
shall be considered a separate Advance (PROVIDED, that each such portion, in the
case of a LIBO Rate Advance, shall be in a minimum amount of $1,000,000 or any
whole multiple of $1,000,000 in excess thereof). To make an election pursuant to
this Section 2.03, the Borrower shall notify the Lender of such election by
telephone by the time that a notice of Advance would be required under Section
2.02 if the Borrower were requesting an Advance of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
election shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Lender of a written interest election request in a form
approved by the Lender and signed by the Borrower. Each telephonic and written
interest election request shall specify the following information:
(i) the Advance to which such interest election request
applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting Advance
(in which case the information to be specified pursuant to clauses (iii) and
(iv) of this paragraph shall be specified for each resulting Advance);
(ii) the effective date of the election made pursuant to such
interest election request, which shall be a Business Day;
(iii) whether the resulting Advance is to be a Base Rate
Advance or a LIBO Rate Advance, or a specified combination thereof; and
(iv) if the resulting Advance is a LIBO Rate Advance, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
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If any such interest election request requests a LIBO Rate Advance but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration. If the Borrower fails to deliver a
timely and complete interest election request with respect to a LIBO Rate
Advance prior to the end of the Interest Period applicable thereto, then, unless
such Advance is repaid as provided herein, at the end of such Interest Period
such Advance shall be converted to a Base Rate Advance. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Lender so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Advance may be converted to or continued as a LIBO
Rate Advance and (ii) unless repaid, each LIBO Rate Advance shall be converted
to a Base Rate Advance at the end of the Interest Period applicable thereto.
SECTION 2.04. TERMINATION, REDUCTION AND EXTENSION OF THE
COMMITMENT.
(a) Unless previously terminated, the Commitment shall
automatically terminate on the Commitment Termination Date.
(b) The Borrower shall have the right to terminate or reduce
the Commitment at any time or from time to time; PROVIDED, that (i) the Borrower
shall give irrevocable, written notice of each such termination or reduction to
the Lender at least three Business Days before such termination or reduction,
(ii) each partial reduction shall be in a minimum amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not
terminate or reduce the Commitment if, after giving effect to any concurrent
prepayment of the Advances pursuant to Section 2.06, at any time, the aggregate
outstanding principal amount of the Advances at such time would exceed the
Commitment.
(c) The Commitment once terminated or reduced pursuant to this
Section 2.04 may not be reinstated.
(d) The Borrower may, by written notice to the Lender not less
than 30 days and not more than 45 days prior to the Commitment Termination Date
then in effect (the "EXISTING COMMITMENT TERMINATION DATE"), request that the
Lender extend the Commitment Termination Date to the date falling 364 days after
the Existing Commitment Termination Date. The Existing Commitment Termination
Date shall be extended (effective as of the Existing Commitment Termination
Date) to the date falling 364 days after the Existing Commitment Termination
Date if the Lender so agrees, in its sole discretion; PROVIDED, that no such
extension shall be effective unless (i) no Event of Default or Default shall
have occurred and be continuing on the date of such request or on the Existing
Commitment Termination Date and (ii) the representations and warranties made by
the Borrower in Article IV hereof shall be true on and as of the date of such
request and the Existing Commitment Termination Date with the same force and
effect as if made on and as of such dates (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such
specific date). Each request for extension hereunder by the Borrower shall
constitute a certification by the Borrower to the effect set forth in clauses
(i) and (ii) above (both as of the date of such request and, unless the Borrower
otherwise notifies the Lender prior to the Existing Commitment Termination Date,
as of the Existing Commitment Termination Date). The Lender will notify the
Borrower in writing of its decision not less than 20 days and not more than 30
days prior to the Existing Commitment Termination Date; PROVIDED that in no
event may the Borrower request more than two such extensions. If any such
extension of the Existing Commitment Termination Date shall not become
effective, then the Commitment shall reduce to zero on the Existing Commitment
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Termination Date and the Commitment Termination Date shall remain the Existing
Commitment Termination Date.
SECTION 2.05. REPAYMENT OF ADVANCES; NOTE.
(a) The Borrower hereby unconditionally promises to pay to the
Lender the outstanding principal amount of the Advances on the Commitment
Termination Date.
(b) The Advances shall be evidenced by a single promissory
note of the Borrower (the "NOTE") in substantially the form of Exhibit A hereto,
dated the date hereof, payable to the Lender in a principal amount equal to the
amount of the Commitment and otherwise duly completed. The Lender is hereby
authorized by the Borrower to endorse on the schedule (or a continuation
thereof) attached to the Note the date, amount and Type of and the Interest
Period (if any) for each Advance made by the Lender to the Borrower hereunder
and the date and the amount of each payment or prepayment of principal of such
Advance received by the Lender; PROVIDED, that any failure by the Lender to make
any such endorsement shall not affect the obligations of the Borrower under the
Note or hereunder.
SECTION 2.06. PREPAYMENT OF ADVANCES.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Advance in whole or in part, subject to the
requirements of this Section 2.06.
(b) The Borrower shall notify the Lender by telephone
(confirmed by telecopy) of any optional prepayment hereunder (i) in the case of
prepayment of a LIBO Rate Advance, not later than 11:00 a.m. (New York City
time) two Business Days before the date of prepayment or (ii) in the case of
prepayment of an Base Rate Advance, not later than 11:00 a.m. (New York City
time) on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Advance or portion
thereof to be prepaid. Each partial prepayment of any Advance shall be in a
minimum amount of $1,000,000 or any whole multiple of $1,000,000 in excess
thereof and shall be applied to prepay any outstanding Base Rate Advances before
any LIBO Rate Advances. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.08 and all amounts payable in connection
therewith pursuant to Section 2.11.
(c) If either (i) there shall occur a Change in Control, or
(ii) the Borrower shall, with respect to any Significant Subsidiary, cease to
own, beneficially and of record, a majority of the issued and outstanding Voting
Stock of such Significant Subsidiary, the Borrower shall, within 5 Business Days
of the making of written demand by the Lender, prepay in full the outstanding
Loans together with accrued and unpaid interest thereon and all other amounts
payable hereunder, and upon the giving of such demand the Commitment shall
forthwith terminate. Nothing herein shall require a prepayment by reason of the
transfer of assets of a Significant Subsidiary to the Borrower or another
Significant Subsidiary.
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SECTION 2.07 FACILITY FEES; UTILIZATION FEES.
(a) The Borrower shall pay to the Lender a facility fee on the
amount of the Commitment (whether or not utilized) for the period from and
including the date of this Agreement to but not including the earlier of the
date such Commitment is terminated or the Commitment Termination Date, at a rate
per annum equal to the Applicable Facility Fee Rate. Accrued facility fee shall
be payable in arrears on each Quarterly Date and on the earlier of the date the
Commitment terminates and the Commitment Termination Date. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Borrower shall pay to the Lender a utilization fee on
the aggregate outstanding principal amount of the Advances during any period
that the aggregate outstanding principal amount of the Advances exceeds an
amount equal to 50% of the aggregate amount of the Commitment, at a rate per
annum equal to the Applicable Utilization Fee Rate. Accrued utilization fee
shall be payable on each day on which a payment of interest is due under Section
2.08. All utilization fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
SECTION 2.08. INTEREST.
(a) Each Base Rate Advance shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(b) Each LIBO Rate Advance shall bear interest during each
Interest Period therefor at a rate per annum equal to the LIBO Rate for such
Interest Period plus the Applicable Margin.
(c) Notwithstanding clauses (a) and (b) above, during any
period that an Event of Default has occurred and is continuing, the Borrower
agrees to pay to the Lender interest at a rate per annum equal to (i) in the
case of any principal of any Advance, 2% per annum PLUS the rate otherwise
applicable to such Advance as provided above or (ii) in the case of any other
amount, 2% per annum above the Base Rate.
(d) Accrued interest on each Advance shall be payable in
arrears on each Interest Payment Date for such Advance and upon termination of
the Commitment; PROVIDED, that (i) interest accrued pursuant to paragraph (c) of
this Section 2.08 shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Advance, accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any LIBO Rate Advance prior to the end of the
then current Interest Period therefor, accrued interest on such Advance shall be
payable on the effective date of such conversion.
(e) The Borrower agrees to pay to the Lender, so long as the
Lender shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or the equivalent),
additional interest on the unpaid principal amount of each LIBO Rate Advance,
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from the date of such LIBO Rate Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the LIBO Rate for the then current Interest Period for such
LIBO Rate Advance from (ii) the rate obtained by dividing such LIBO Rate by a
percentage equal to 100% MINUS the LIBO Rate Reserve Percentage for such
Interest Period, payable on each date on which interest is payable on such LIBO
Rate Advance. A certificate of the Lender setting forth the amount to which the
Lender is then entitled under this Section 2.08(e) shall be conclusive and
binding on the Borrower in the absence of manifest error.
(f) All computations of interest based on the Base Rate shall
be made on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the LIBO Rate and computations of interest
pursuant to Section 2.08(e) shall be made on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable.
SECTION 2.09. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a LIBO Rate Advance the Lender
determines (which determination shall be conclusive absent manifest error) that:
(a) adequate and reasonable means do not exist for
ascertaining the LIBO Rate for such Interest Period; or
(b) the LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to the Lender of making or maintaining such Advance
for such Interest Period;
then the Lender shall give notice thereof to the Borrower by telephone or
telecopy as promptly as practicable thereafter certifying the reasons for its
determination and, until the Lender notifies the Borrower that the circumstances
giving rise to such notice no longer exist, (i) any interest election request
that requests the conversion of any Advance to, or continuation of any Advance
as, a LIBO Rate Advance shall be ineffective and (ii) if any notice of Advance
requests a LIBO Rate Advance, such Advance shall be made as a Base Rate Advance.
SECTION 2.10. INCREASED COSTS.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve requirements
included in the LIBO Rate Reserve Percentage) in or in the interpretation of (to
the extent any such introduction or change occurs after the date hereof) any law
or regulation or (ii) the compliance with any guideline or request of any
central bank or other governmental authority adopted or made after the date
hereof (whether or not having the force of law), there shall be any increase in
the cost to the Lender of agreeing to make or making, funding or maintaining
LIBO Rate Advances, the Borrower shall from time to time, within 30 days after
delivery by the Lender to the Borrower of a certificate as to such change or
required compliance and the amount of such increased cost, pay to the Lender the
amount of the increased costs set forth in such certificate (which certificate
shall be conclusive and binding on the Borrower in the absence of manifest
error).
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(b) If the Lender determines that compliance with any law or
regulation enacted or introduced after the date hereof or any guideline or
request of any central bank or other governmental authority adopted or made
after the date hereof (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by the Lender
or any corporation controlling the Lender and that the amount of such capital is
increased by or based upon the existence of the Lender's Commitment and other
commitments of this type, or the Advances, then, the Borrower shall, within 30
days after delivery by the Lender to the Borrower of a certificate as to such
required compliance, pay to the Lender the amount required to compensate the
Lender therefor (a certificate of the Lender as to such amount to be conclusive
and binding on the Borrower in the absence of manifest error).
SECTION 2.11. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any LIBO Rate Advance other than on the last day of
an Interest Period therefor (including without limitation as a result of an
Event of Default), (b) the conversion of any LIBO Rate Advance other than on the
last day of an Interest Period therefor or (c) the failure to borrow, convert,
continue or prepay any Advance on the date specified in any notice delivered
pursuant hereto, then, in any such event, the Borrower shall compensate the
Lender for the loss, cost and expense attributable to such event, which shall be
the amount, as reasonably determined by the Lender, equal to the excess, if any,
of (i) the LIBO Rate for the balance of such Interest Period (or for the
Interest Period that would have commenced on such borrowing, conversion,
continuation or prepayment), over (ii) the amount of interest that the Lender
would earn on such principal amount for the balance of such Interest Period (or
for such Interest Period) if the Lender were to invest such principal amount for
such period at the interest rate that would be bid by the Lender (or an
Affiliate of the Lender) for Dollar deposits from other banks in the Eurodollar
market at the commencement of such period. A certificate of the Lender setting
forth any amount or amounts that the Lender is entitled to receive pursuant to
this Section 2.11 shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay the Lender the amount shown as due
on any such certificate within 15 days after receipt thereof.
SECTION 2.12. TAXES.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; PROVIDED, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(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 2.12) the Lender receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant governmental authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant governmental authority in accordance with applicable law.
(c) The Borrower shall indemnify the Lender, within 15 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including
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Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.12) paid by the Lender and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant governmental authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by the Lender
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a governmental authority, the Borrower
shall deliver to the Lender the original or a certified copy of a receipt issued
by such governmental authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Lender.
(e) The Lender agrees to use reasonable efforts, consistent in
its opinion with applicable law and with its policies, to minimize to the extent
reasonably possible any applicable Taxes.
SECTION 2.13. PAYMENTS GENERALLY.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest or fees, or under Section 2.10,
2.11 or 2.12, or otherwise) prior to 12:00 noon (New York City time) on the date
when due, in Dollars and immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Lender, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Lender at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day
and, in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension.
(b) If at any time insufficient funds are received by and
available to the Lender to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied first, to pay interest then due
hereunder, then to pay fees and other amounts (other than principal) hereunder,
then to pay principal due hereunder.
(c) Without limiting any of the obligations of the Borrower or
the rights of the Lender hereunder, if the Borrower shall fail to pay when due
(whether at stated maturity, by acceleration or otherwise) any amount payable by
it hereunder or under the Note, the Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, without
prior notice to the Borrower (which notice is expressly waived by the Borrower
to the fullest extent permitted by applicable law), to set off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final, in any currency, matured or unmatured) with, and
any other obligations at any time held or owing by, the Lender or any branch or
agency thereof to or for the credit or account of the Borrower. The Lender shall
promptly provide notice to the Borrower of such set-off; PROVIDED, that failure
by the Lender to provide such notice to the Borrower shall not give the Borrower
any cause of action or right to damages or affect the validity of such set-off
and application. The rights of the
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Lender under this Section are in addition to any other rights and remedies
(including, without limitation, any other rights of set-off) that the Lender may
have.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITION PRECEDENT TO INITIAL ADVANCE. The
obligation of the Lender to make its initial Advance is subject to the condition
precedent that the Lender shall have received, on or before December 15, 2000,
the following documents, each (unless otherwise specified below) dated the
Closing Date and in form and substance satisfactory to the Lender:
(a) The Note, duly executed by the Borrower, payable to the
order of the Lender in the principal amount of the Commitment.
(b) Certified copies of (x) the charter and by-laws of the
Borrower (or equivalent documents) of the Borrower, (y) the resolutions of the
Board of Directors of the Borrower authorizing and approving this Agreement and
the Note and (z) all documents evidencing other necessary corporate action, if
any, with respect to this Agreement and the Note.
(c) A certificate of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized to sign this
Agreement, the Note and any other documents to be delivered hereunder.
(d) A certificate of the Secretary of the State of New York
dated a date reasonably close to the date hereof as to the good standing of and
charter documents filed by the Borrower.
(e) A favorable written opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Senior Vice President and General Counsel of the Borrower, covering such matters
relating to this Agreement and the Note as the Lender may require.
(f) A favorable written opinion of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, special New York counsel for the Lender, covering such matters
relating to the transactions contemplated hereby as the Lender may require.
(g) Evidence that the commitments of the Lender under the
Credit Agreement dated as of November 19, 1999, between the Borrower and the
Lender, as heretofore amended or modified (the "Existing Credit Agreement"),
have been terminated and that all amounts owing under the Existing Credit
Agreement have been paid in full.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH ADVANCE. The
obligation of the Lender to make each Advance (including, without limitation,
the initial Advance) shall be subject to the further conditions precedent that
on the date of
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such Advance (a) the representations and warranties set forth in Article IV are
true and correct on and as of the date of such Advance, before and after giving
effect to such Advance and to the application of the proceeds thereof, as though
made on and as of such date and (b) no Default has occurred and is continuing,
or would result from such Advance or from the application of the proceeds
thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that:
SECTION 4.01. ORGANIZATION; POWERS. Each of the Borrower and
each Significant Subsidiary is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 4.02. AUTHORIZATION; ENFORCEABILITY. The execution,
delivery and performance of this Agreement and the Note by the Borrower are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate action. This Agreement has been duly executed and delivered
by the Borrower and constitutes, and the Note when duly executed and delivered
for value will constitute, a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
SECTION 4.03. GOVERNMENT APPROVALS; NO CONFLICTS. The
execution, delivery and performance of this Agreement and the Note by the
Borrower (a) do not require any consent or approval of, registration or filing
with, or any other action by, any governmental authority, (b) will not violate
any applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any Subsidiary, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon the
Borrower or any Subsidiary and (d) will not result in the creation or imposition
of any Lien on any asset of the Borrower or any Subsidiary.
SECTION 4.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
The Borrower has heretofore furnished to the Lender its audited consolidated
balance sheet and statements of income, stockholders' equity and cash flows as
of and for the fiscal year ended December 31, 1999, with the opinion thereon of
Pricewaterhouse Coopers LLP. Such financial statements present fairly the
consolidated financial position and consolidated results of operations and cash
flows of the Borrower and its Consolidated Subsidiaries as of such date and for
such period in accordance with GAAP. Since December 31, 1999, no event or
circumstance has occurred that has had or could reasonably be expected to have a
Material Adverse Effect.
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SECTION 4.05. LITIGATION. There are no actions, suits or
proceedings by or before any arbitrator or governmental authority now pending
against or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any Subsidiary (i) as to which there is a reasonable possibility
of an adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect or (ii) that involve this Agreement or the Note or the transactions
contemplated hereby or thereby.
SECTION 4.06. COMPLIANCE WITH LAWS AND AGREEMENTS. The
Borrower and each Significant Subsidiary are in compliance with all applicable
laws (including without limitation Environmental Laws, Tax laws and ERISA),
regulations and orders of any governmental authority and all indentures,
agreements and other instruments to which any of them is a party, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.07. INVESTMENT AND HOLDING COMPANY STATUS. Neither
the Borrower nor any Significant Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 4.08. MARGIN REGULATIONS. On the date hereof and
immediately after applying the proceeds of each Advance, not more than 25% of
the value of the assets subject to Section 5.01(j) or Section 5.01(l) hereof is
represented by margin stock as defined in Regulation U or X of the Board of
Governors of the Federal Reserve System.
SECTION 4.09. TAXES. The Borrower and each Significant
Subsidiary have filed (or have obtained extensions of the time by which they are
required to file) all United States Federal income Tax returns and all other
material Tax returns required to be filed by them and have paid all Taxes shown
due on the returns so filed as well as all other material Taxes, assessments and
governmental charges which have become due, except such Taxes, if any, as are
being contested in good faith and as to which adequate reserves have been
provided.
SECTION 4.10. ENVIRONMENTAL MATTERS. Each of the Borrower and
each Significant Subsidiary has obtained all environmental, health and safety
permits, licenses and other authorizations required under all Environmental Laws
to carry on its business as now being or as proposed to be conducted, except to
the extent failure to have any such permit, license or authorization could not
reasonably be expected to have a Material Adverse Effect. Each of such permits,
licenses and authorizations is in full force and effect and each of the Borrower
and each Significant Subsidiary is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or in any regulation,
code, plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply therewith could not (either individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect.
SECTION 4.11. EXISTING AGREEMENT. Schedule I hereto is a
complete and correct list of each credit agreement, loan agreement, indenture or
other similar arrangement providing
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for or otherwise relating to any Debt or any extension of credit (or commitment
for any extension of credit) to the Borrower or any Significant Subsidiary
outstanding on the date hereof.
SECTION 4.12. SOLVENCY. The Borrower is and, after giving
effect to each Advance and the use of proceeds thereof, will be Solvent.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. GENERAL COVENANTS. So long as any principal of
or interest on any Advance or any other amount payable hereunder or under the
Note remains outstanding or the Commitment remains in effect, the Borrower
covenants and agrees that:
(a) The Borrower will, and will cause each Significant
Subsidiary to, do or cause to be done all things necessary (i) to preserve its
legal existence and (ii) to preserve, renew and keep in full force and effect in
all material respects the rights, licenses, permits, privileges and franchises
material to the conduct of its business; PROVIDED, that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 5.01(j).
(b) The Borrower will, and will cause each Significant
Subsidiary to, pay its obligations, including Tax liabilities, that, if not
paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Significant Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
(c) The Borrower will, and will cause each Significant
Subsidiary to, comply with all applicable laws, statutes, rules, regulations and
orders of, including without limitation all applicable Environmental Laws, Tax
laws and ERISA, except for any non-compliance which could not (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect.
(d) The Borrower will, and will cause each Significant
Subsidiary to, keep adequate records and books of account, in which complete
entries will be made in accordance with GAAP, and permit representatives of the
Lender, upon reasonable prior notice, to examine, copy and make extracts from
its books and records, to inspect any of its property, and to discuss its
business and affairs with its officers, all at such reasonable times and as
often as reasonably requested by the Lender.
(e) The Borrower will, and will cause each Significant
Subsidiary to, preserve and maintain its property in good repair, working order
and condition and from time to time make all needful and proper repairs,
renewals, replacements, additions, betterments and improvements thereto, except
in each case where the failure to do so could not (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect.
Credit Agreement
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(f) The Borrower will, and will cause each Significant
Subsidiary to, maintain insurance with financially sound and reputable insurance
companies, and with respect to property and risks of a character usually
maintained by corporations engaged in the same or similar business similarly
situated, against loss, damage and liability of the kinds and in the amounts
customarily maintained by such corporations.
(g) The Borrower will furnish to the Lender:
(i) as soon as available and in any event within 100 days
after the end of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as at
the end of such year and the consolidated statements of income and cash
flows of the Borrower and its Consolidated Subsidiaries for such year,
with the unqualified opinion thereon of an independent public
accountant of recognized national standing;
(ii) as soon as available and in any event within 55 days
after the end of each of the first three fiscal quarters of the
Borrower, consolidated statements of income, retained earnings and cash
flow of the Borrower and its Consolidated Subsidiaries for such fiscal
quarter and for the portion of the fiscal year ended at the end of such
fiscal quarter, and the related consolidated balance sheet as at the
end of such fiscal quarter, setting forth in each case in comparative
form the corresponding figures for the previous fiscal year and
accompanied, in each case, by a certificate of the chief financial
officer of the Borrower which certificate shall state that said
consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP (except for the
absence of footnotes) consistently applied as at the end of, and for,
such fiscal quarter (subject to normal year-end audit adjustments);
(iii) as soon as possible and in any event within five days
after the occurrence of any Default, a statement of the chief financial
officer of the Borrower setting forth details of such Default and the
action which the Borrower has taken and proposes to take with respect
thereto;
(iv) promptly upon their becoming available, the "Consolidated
Reports of Condition and Income" of the Bank Subsidiaries, the "Parent
Company Only Financial Statements for Bank Holding Companies" (report
no. FR Y-9LP or any successor form of the Federal Reserve System) of
the Borrower and the "Consolidated Financial Statements for Bank
Holding Companies" (report no. FR Y-9C) of the Borrower;
(v) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(vi) as soon as possible, and in any event within ten days
after the Borrower knows or has reason to know that any of the events
or conditions specified below with respect to any Plan or Multiemployer
Plan have occurred or exist, a statement signed by a
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senior financial officer of the Borrower setting forth details
respecting such event or condition and the action, if any, which the
Borrower or its ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or given
to PBGC by the Borrower or an ERISA Affiliate with respect to such
event or condition):
(i) any reportable event, as defined in Section 4043(c) of
ERISA and the regulations issued thereunder, with respect to a
Plan, as to which PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event (PROVIDED, that
a failure to meet the minimum funding standard of Section 412
of the Code or Section 302 of ERISA shall be a reportable
event regardless of the issuance of any waivers in accordance
with Section 412(d) of the Code);
(ii) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the termination of
any Plan, other than a Plan separately maintained by an entity
that becomes an ERISA Affiliate after the date hereof and
which has been an ERISA Affiliate for less than one year at
the time such notice of intent is filed; PROVIDED, that such
notice does not relate to a "distress termination" described
in Section 4041(c) of ERISA;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the
Borrower or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC
with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Borrower or
any ERISA Affiliate under Section 4201 or 4204 of ERISA from a
Multiemployer Plan, or the receipt by the Borrower or any
ERISA Affiliate of notice from a Multiemployer Plan that is in
reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA or that it intends to terminate or has terminated
under Section 4041A of ERISA; and
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate
to enforce Section 515 of ERISA, which proceeding is not
dismissed within 30 days;
(vii) promptly after the sending or filing thereof, copies of
all reports and registration statements which the Borrower files with
the Securities and Exchange Commission or any national securities
exchange;
(viii) promptly upon the Borrower determining that there has
been the occurrence of any Change in Control or upon the Borrower's
ceasing to own, beneficially and of record, at least a majority of the
issued and outstanding shares of Voting Stock of any Significant
Subsidiary, notice of such event together a reasonably detailed
description of such transaction; and
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(ix) such other information respecting the condition or
operations, financial or otherwise, of the Borrower as the Lender may
from time to time reasonably request.
(h) The Borrower shall promptly give to the Lender notice of
all legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, affecting the Borrower or any
Significant Subsidiary, except proceedings which would not be likely to have a
Material Adverse Effect.
(i) The Borrower will use the proceeds of the Advances for its
general corporate purposes, including as commercial paper backstop, and/or to
finance the repurchase or redemption of outstanding shares of capital stock of
the Borrower, in compliance with all applicable laws; PROVIDED, that the Lender
shall have no responsibility as to the use of any of such proceeds.
(j) The Borrower shall not sell or otherwise dispose of all or
any substantial portion of the shares of the capital stock of any of its
Significant Subsidiaries, and neither the Borrower nor any of its Significant
Subsidiaries shall sell, lease or otherwise dispose of all or any substantial
portion of their assets other than in the ordinary course of business, or
liquidate, merge or consolidate with or into any other Person; PROVIDED, that
the Borrower may merge or consolidate with or into another Person if no Default
or Change in Control has occurred and is continuing or would result from such
merger or consolidation and if the Borrower is the surviving company; and
PROVIDED, further, that any Subsidiary may merge or consolidate with or into
another Person if no Default or Change in Control has occurred and is continuing
or would result from such merger or consolidation and if the Subsidiary is the
surviving company; and PROVIDED, further, that any Subsidiary may be liquidated
if the net assets of such Subsidiary are distributed to the Borrower or another
Subsidiary. The Borrower will not, and will not permit any Significant
Subsidiary to, engage to any material extent in any business other than
businesses of the types conducted by the Borrower and its Significant
Subsidiaries on the date hereof and businesses which are otherwise permitted to
them under the applicable provisions of the Bank Holding Company Act of 1956, as
amended, the New York Banking Law, the National Bank Act, the Federal Reserve
Act or other applicable laws.
(k) The Borrower will not, and will not permit any Significant
Subsidiary to, at any time create, assume or suffer to exist any Lien upon or
with respect to any of the capital stock of any Significant Subsidiary.
(l) The Borrower will not, nor will it permit any Significant
Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, except the following (each, a
"PERMITTED LIEN"):
(i) Liens in existence on the date hereof and listed in
Schedule I hereto;
(ii) Liens imposed by any governmental authority for Taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is
not material with respect to it or its financial
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condition, adequate reserves with respect thereto are maintained on the
books of the Borrower or its Significant Subsidiary, as the case may
be, in accordance with GAAP;
(iii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and
Liens securing judgments but only to the extent for an amount and for a
period not resulting in an Event of Default under Section 6.01(f)
hereof;
(iv) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(v) deposits to secure the performance of bids, trade
contracts (other than for Debt) leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(vi) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any Significant Subsidiary;
(vii) Liens arising under escrows, trusts, custodianships,
separate accounts, funds withheld procedures, and similar deposits,
arrangements, or agreements established with respect to insurance
policies, annuities, guaranteed investment contracts and similar
products underwritten by, or reinsurance agreements entered into by,
any Insurance Subsidiary in the ordinary course of business;
(viii) Liens on property of any corporation that becomes a
Significant Subsidiary of the Borrower after the date hereof; PROVIDED,
that such Liens are in existence at the time such corporation becomes a
Significant Subsidiary of the Borrower and were not created in
anticipation thereof;
(ix) Liens upon real and/or tangible personal property
acquired after the date hereof (by purchase, construction or otherwise)
by the Borrower or any Significant Subsidiary, each of which Liens
either (A) existed on such property before the time of its acquisition
and was not created in anticipation thereof or (B) was created solely
for the purpose of securing Debt representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of
such property; PROVIDED, that (i) no such Lien shall extend to or cover
any property of the Borrower or such Significant Subsidiary other than
the property so acquired and improvements thereon and (ii) the
principal amount of Debt secured by any such Lien shall at no time
exceed 80% of the fair market value (as determined in good faith by a
senior financial officer of the Borrower) of such property at the time
it was acquired (by purchase, construction or otherwise);
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(x) judgment and other similar Liens arising in connection
with court proceedings, PROVIDED, that the execution or other
enforcement of such judgment or other similar Lien is effectively
stayed and the claims secured thereby are being actively contested in
good faith and by appropriate proceedings (without prejudice to Section
6.01(f));
(xi) rights of lessors under capitalized leases;
(xii) Liens on its assets created in connection with the
refinancing of indebtedness secured by Permitted Liens on such assets,
PROVIDED, that the amount of indebtedness secured by any such Lien
shall not be increased as a result of such refinancing and no such
Liens shall extend to property and assets of the Borrower or any
Significant Subsidiary not encumbered prior to any such refinancing;
(xiii) Liens incurred in connection with repurchase
agreements; Liens incurred in connection with asset securitizations;
Liens granted to a Federal Reserve Bank or a Federal Home Loan Bank to
secure advances or other transactions incidental to the banking
business of the Borrower or any Significant Subsidiary, including loans
to meet liquidity requirements; and
(xiv) Liens securing obligations of a Significant Subsidiary
to the Borrower or another Significant Subsidiary.
(m) The Borrower will not, and will not permit any Significant
Subsidiary to, enter into, incur or permit to exist any indenture, agreement,
instrument or other contractual arrangement that, directly or indirectly,
prohibits or restricts, or has the effect of prohibiting or restricting, or
imposes any condition upon the ability of such Significant Subsidiary to declare
or pay any dividend or other distribution on any class of its stock to the
Borrower.
(n) The Borrower will not, and will not permit any Significant
Subsidiary to, directly or indirectly, (a) make any capital contribution or
extension of credit to an Affiliate, (b) transfer, sell, lease, assign or
otherwise dispose of any assets to an Affiliate, (c) merge into or consolidate
with an Affiliate except as explicitly permitted by Section 5.01(j), or purchase
or acquire assets from an Affiliate or (d) enter into any other transaction,
directly or indirectly, with or for the benefit of an Affiliate (including,
without limitations, guarantees and assumptions of obligations of an Affiliate),
other than transactions (excluding credit extended by the Borrower or any
Significant Subsidiary to an Affiliate) entered into on an arm's-length basis,
on terms no more favorable to such Affiliate than would be available to
unrelated Persons; PROVIDED, that this Section 5.01(n) shall not prevent the
Borrower or any Significant Subsidiary from entering into transactions with (i)
any Affiliate the shares of which have been acquired by the Borrower or such
Subsidiary in satisfaction of a debt previously contracted in good faith if such
transactions are reasonably determined by the Borrower or such Subsidiary to be
necessary or appropriate in connection with the ownership or disposition of such
shares or (ii) any Affiliate that is a venture capital investment in which the
Borrower may invest under applicable banking regulations if such transactions
are reasonably determined by the Borrower or such Subsidiary to be necessary
Credit Agreement
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or appropriate in furtherance of such investment, PROVIDED that in any such case
the relevant transactions under this proviso, individually or in the aggregate,
would not have a Material Adverse Effect.
SECTION 5.02. FINANCIAL COVENANTS.
(a) The Borrower shall not permit its Double Leverage Ratio at
any time to be greater than 1.25 to 1.0.
(b) The Borrower shall not permit its Consolidated Tangible
Net Worth to be at any time less than the higher of (i) $1,000,000,000 and (ii)
4.75% of Consolidated Total Tangible Assets at such time.
(c) The Borrower shall not permit its Non-Performing Asset
Coverage Ratio on any date to be less than 2.5 to 1.0.
(d) The Borrower will, and will cause each Bank Subsidiary to,
maintain at all times such amount of capital as may be prescribed by the Board
of Governors of the Federal Reserve System (in the case of the Borrower and any
state member bank Subsidiary) or the Comptroller of the Currency (in the case of
any national bank Subsidiary), as the case may be, from time to time, whether by
regulation, agreement or order. The Borrower shall at all times ensure that each
Insured Subsidiary shall be "adequately capitalized" within the meaning of 12
U.S.C. ss.1831o, as amended, reenacted or redesignated from time to time.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following
events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall fail to pay
any interest on any Advance or any fee or other amount whatsoever payable
hereunder or under the Note when due and such failure remains unremedied for
three Business Days; or
(b) Any representation or warranty made by the Borrower herein
or in any certificate or other document delivered in connection with this
Agreement shall prove to have been incorrect in any material respect when made
or deemed made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in (i) Sections 5.01(a), 5.01(g), 5.01(h),
5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.01(n), 5.02, or (ii) the Borrower shall
fail to perform or observe any other term or covenant in this Agreement on its
part to be performed or observed and such failure remains unremedied for thirty
Business Days after notice thereof shall have been given to the Borrower by the
Lender; or
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(d) The Borrower or any Significant Subsidiary shall fail to
pay any principal of or premium or interest on any other Debt of the Borrower or
any Debt of such Significant Subsidiary having an aggregate outstanding
principal amount of $10,000,000 or more ("MATERIAL DEBT") when the same becomes
due and payable, and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Material Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Material Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Material Debt; or any such
Material Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed, purchased
or defeased, or an offer to prepay, redeem, purchase or defease such Material
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any Significant Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against the
Borrower or such Significant Subsidiary seeking to adjudicate it as bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency, moratorium or reorganization or relief of
debtors, or liquidation or winding up, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and such proceeding
shall remain undismissed or unstayed for a period of 60 days; or the Borrower or
any Significant Subsidiary shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $10,000,000 shall be rendered against the Borrower or any Significant
Subsidiary and shall remain unsatisfied, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order and such
proceedings shall not have been stayed or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(g) The Borrower shall incur liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the foregoing) that,
either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; or
(h) Any Bank Subsidiary shall cease accepting deposits on the
instruction of any Federal, state or other regulatory body with authority to
give such instruction other than pursuant to an instruction applicable to
national banks generally or a substantial portion thereof or banks located in a
particular state or substantial portion thereof; or any Federal or state
regulatory authority having jurisdiction to regulate any Bank Subsidiary shall,
pursuant to any Federal or state statute, notify such Bank Subsidiary, that such
Bank Subsidiary's capital stock has become impaired; or any Bank Subsidiary
shall cease to be an insured bank under the Federal Deposit
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Insurance Act, as amended, and the rules and regulations promulgated thereunder;
or any Insured Subsidiary as of the date hereof shall be required (whether or
not the time allowed by the appropriate Federal banking agency for the
submission of such plan has been established or elapsed) to submit a capital
restoration plan of the type referred to in 12 U.S.C. ss.1831o(b)(2)(C), as
amended, reenacted or redesignated from time to time; or the Borrower shall
guarantee in writing (voluntarily or otherwise) the capital of any Insured
Subsidiary as part of or in connection with any agreement or arrangement with
any Federal banking agency other than in connection with obtaining regulatory
approval for the acquisition of such Insured Subsidiary;
then, and in any such event, the Lender may, by notice to the Borrower, (i)
declare the obligation of the Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and/or (ii) declare the Advances
and the Note, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances and the Note,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; PROVIDED, HOWEVER, that in
the event of an entry of an order for relief with respect to the Borrower
described in clause (e) of this Section, (A) the obligation of the Lender to
make Advances shall automatically be terminated and (B) the Advances and the
Note, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Note, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. This Agreement and the Note and the documents referred to herein and
therein constitute the entire agreement of the parties with respect to the
subject matter hereof and thereof.
SECTION 7.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied or delivered, to the respective addresses
set forth on the signature pages hereof or at such other address as shall be
designated by any party in a written notice to the other party. All such notices
and communications shall, when mailed or telecopied, be effective when deposited
in the mails or telecopied, respectively, except that notices and communications
to the Lender pursuant to Article II or VII shall not be effective until
received by the Lender.
SECTION 7.03. NO WAIVER; REMEDIES. No failure on the part of
the Lender to exercise, and no delay in exercising, any right hereunder or under
the Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
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SECTION 7.04. COSTS, EXPENSES AND INDEMNIFICATION.
(a) The Borrower agrees to pay and reimburse to the Lender on
demand for reasonable costs and expenses incurred by the Lender in connection
with the preparation, negotiation, execution and delivery and administration of
this Agreement, the Note and the other documents to be delivered hereunder and
(subject to such limitation as has heretofore been agreed) and the modification,
amendment or enforcement thereof, including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel for the Lender with respect thereto
and with respect to advising the Lender as to its rights and responsibilities
under or in connection with this Agreement.
(b) The Borrower hereby indemnifies the Lender and each of its
Affiliates and their respective officers, directors, employees, agents, advisors
and representatives (each, an "INDEMNIFIED PARTY") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, fees and disbursements of counsel), joint or several, that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to this Agreement or the
transactions contemplated hereby or any use made or proposed to be made with the
proceeds of the Advances, whether or not such investigation, litigation or
proceeding is brought by the Borrower, any of its shareholders or creditors, an
Indemnified Party or any other Person, or an Indemnified Party is otherwise a
party thereto, and whether or not any of the conditions precedent set forth in
Article III are satisfied or the other transactions contemplated by this
Agreement are consummated, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct.
SECTION 7.05. ASSIGNMENTS AND PARTICIPATIONS.
(a) The Lender may, with the consent of the Borrower (which
shall not be unreasonably withheld), assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of the Commitment, the Advances and the Note);
PROVIDED, however, that no such consent by the Borrower shall be required in the
case of any assignment to an Affiliate of the Lender; and PROVIDED, FURTHER,
that any such partial assignment shall be in an amount at least equal to
$5,000,000 or in an integral multiple of $1,000,000 in excess thereof.
(b) The Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances and the Note); PROVIDED, HOWEVER, that the Lender's
obligations under this Agreement (including, without limitation, its Commitment
hereunder) shall remain unchanged.
(c) The Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
7.05, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or any of its Subsidiaries
furnished to the Lender by or on behalf of the Borrower.
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(d) Notwithstanding any other provision set forth in this
Agreement, the Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances and the Note) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
(e) All amounts payable by the Borrower to the Lender under
Sections 2.08(e), 2.10, 2.11, 2.12 and 7.04(b) shall be determined as if the
Lender had not sold or agreed to sell any participations in the Advances or the
Note or its Commitment and as if the Lender were funding each of such Advances
and Commitment in the same way that it is funding the portion of such Advances
and Commitment in which no participations have been sold.
SECTION 7.06. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement and the Note shall be governed by, and construed in accordance with,
the law 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 County
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by applicable law, any objection that 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 7.07. SEVERABILITY. In case any provision in this
Agreement or in the Note shall be held to be invalid, illegal or unenforceable,
such provision shall be severable from the rest of this Agreement or the Note,
as the case may be, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 7.08. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 7.09. SURVIVAL. The obligations of the Borrower under
Sections 2.08(e), 2.10, 2.11, 2.12 and 7.04 shall survive the repayment of the
Advances and the termination of the Commitment. Each representation and warranty
made or deemed to be made herein or pursuant hereto shall survive the making of
such representation and warranty, and the Lender shall not be deemed to have
waived, by reason of making any Advance, any Default or Event of Default that
may arise by reason of such representation or warranty proving to have been
false or misleading.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND
THE LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Credit Agreement
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34
-31-
SECTION 7.11 NO FIDUCIARY RELATIONSHIP. The Borrower
acknowledges that the Lender has no fiduciary relationship with, or fiduciary
duty to, the Borrower arising out of or in connection with this Agreement or the
Note, and the relationship between the Lender and the Borrower is solely that of
creditor and debtor. This Agreement does not create a joint venture among the
parties.
SECTION 7.12 NO RELIANCE. The Lender represents and warrants
that it in good faith has not relied and will not rely upon any margin stock as
collateral in entering into this Agreement or making or maintaining the
Advances.
Credit Agreement
----------------
35
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
M & T BANK CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
Address for Notices:
M&T Bank Corporation
▇▇▇ ▇&▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
By /s/ ▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Vice President
Applicable Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Agreement
----------------
36
SCHEDULE I
EXISTING CREDIT AGREEMENTS; EXISTING LIENS
------------------------------------------
M&T Bank Corporation (1) SCHEDULE I
Existing Agreements
(in thousands) BALANCE
9/30/99
-------
SHORT-TERM BORROWINGS
---------------------
Federal Funds Purchased and repurchase agreements $2,659,812
Short-term Federal Home Loan Banks advances $500,000
Other $113,530
-------------
Total Short-Term Borrowings $3,273,342
=============
LONG-TERM BORROWINGS
--------------------
Subordinated notes of Manufacturers and
Traders Trust Company:
8 1/8 % due 2002 $75,000
7 % due 2005 $100,000
Preferred capital securities:
M & T Capital Trust I - 8.234% $150,000
M & T Capital Trust II - 8.277% $100,000
M & T Capital Trust III - 9.25% $60,000
Advances from Federal Home Loan Banks:
Variable rates $1,195,000
Fixed rates $89,877
Other $24,084
-------------
Total Long-Term Borrowings $1,793,961
=============
$30 Million Revolving Credit Agreement between M&T Bank Corporation and Citibank, N.A.3 (2) $0
1 Schedule does not include intercompany borrowings
2 Does not reflect $500 million 8% subordinated debt issued 10/5/00 due 2010
3 Agreement matured 11/17/00
Schedule I
----------
37
EXHIBIT A
[FORM OF NOTE]
------------
U.S.$30,000,000 Dated: _______ __, 2000
FOR VALUE RECEIVED, the undersigned, M & T BANK CORPORATION, a
_________ corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
CITIBANK, N.A. (the "LENDER") for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) on the Commitment
Termination Date (as so defined) the principal sum of U.S.$30,000,000 (THIRTY
MILLION UNITED STATES DOLLARS) or, if less, the aggregate outstanding principal
amount of the Advances (as defined below) pursuant to the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America at the office of the Lender at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance made by the Lender to the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Note;
PROVIDED, that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is the Note referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of December 15, 2000 (the "CREDIT
AGREEMENT", the terms defined therein being used herein as therein defined)
between the Borrower and the Lender. The Credit Agreement contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York, United States.
M & T BANK CORPORATION
By__________________________
Name:
Title:
[Form of Note]
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38
ADVANCES AND PAYMENTS OF PRINCIPAL
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Date Amount and Type of Amount of Unpaid of Notation
Advance Principal Paid Principal Made By
or Prepaid Balance
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