1
[EXECUTION COPY]
FOUR YEAR FACILITY CREDIT AGREEMENT
dated as of
April 22, 1996
among
FIRSTAR CORPORATION
THE LENDERS NAMED HEREIN
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
CHEMICAL BANK
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Co-Agents
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1. Description of Facility . . . . . . . . . . . . . . . . . . . . . . . 13
2.2. Availability of Facility . . . . . . . . . . . . . . . . . . . . . . 13
2.3. Committed Advances. . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3.1. Commitment . . . . . . . . . . . . . . . . . . . . . . . 13
2.3.2. Ratable Loans; Types
of Advances. . . . . . . . . . . . . . . . . . . . . . . 13
2.3.3. Minimum Amount of Each
Committed Advance. . . . . . . . . . . . . . . . . . . . 14
2.3.4. Applicable Margin. . . . . . . . . . . . . . . . . . . . 14
2.3.5. Method of Selecting Types and Interest
Periods for New Committed Advances . . . . . . . . . . . 15
2.3.6. Conversion and Continuation of
Outstanding Committed Advances . . . . . . . . . . . . . 15
2.4. Competitive Bid Advances . . . . . . . . . . . . . . . . . . . . . . 16
2.4.1. Competitive Bid Option; Repayment of
Competitive Bid Advances . . . . . . . . . . . . . . . . 16
2.4.2. Competitive Bid Quote Request. . . . . . . . . . . . . . 16
2.4.3. Invitation for Competitive Bid Quotes. . . . . . . . . . 17
2.4.4. Submission and Contents of
Competitive Bid Quotes . . . . . . . . . . . . . . . . . 17
2.4.5. Notice to Borrower . . . . . . . . . . . . . . . . . . . 19
2.4.6. Acceptance and Notice by Borrower. . . . . . . . . . . . 19
2.4.7. Allocation by the Agent . . . . . . . . . . . . . . . . 20
2.4.8. Administration Fee . . . . . . . . . . . . . . . . . . . 20
2.5. Method of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.6. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.6.1. Facility Fee . . . . . . . . . . . . . . . . . . . . . . 21
2.6.2. Usage Fee . . . . . . . . . . . . . . . . . . . . . . . 21
2.6.3. Agent's Fees . . . . . . . . . . . . . . . . . . . . . . 21
2.7. Reductions in Aggregate Commitment;
Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.7.1. Reductions in Aggregate Commitment . . . . . . . . . . . 21
2.7.2. Principal Payments . . . . . . . . . . . . . . . . . . . 21
2.8. Changes in Interest Rate, etc. . . . . . . . . . . . . . . . . . . . 22
2.9. Rates Applicable After Default . . . . . . . . . . . . . . . . . . . 22
2.10. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.11. Notes; Telephonic Notices . . . . . . . . . . . . . . . . . . . . . . 23
2.12. Interest Payment Dates; Interest and Fee Basis . . . . . . . . . . . 23
2.13. Notification of Advances, Interest
Rates, Prepayments and Commitment Reductions . . . . . . . . . . . . 24
2.14. Lending Installations . . . . . . . . . . . . . . . . . . . . . . . . 24
2.15. Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . . . 24
2.16. Withholding Tax Exemption . . . . . . . . . . . . . . . . . . . . . . 24
2.17. Extension of Termination Date . . . . . . . . . . . . . . . . . . . . 25
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2.17.1. Extension Procedures . . . . . . . . . . . . 25
2.17.2. Termination of Lenders . . . . . . . . . . . 25
2.17.3. Successor Lenders. . . . . . . . . . . . . . 26
3.1. Yield Protection . . . . . . . . . . . . . . . . . . 27
3.2. Changes in Capital Adequacy Regulations . . . . . . 28
3.3. Availability of Types of Advances . . . . . . . . . 28
3.4. Funding Indemnification . . . . . . . . . . . . . . 28
3.5. Lender Statements; Survival of Indemnity . . . . . . 29
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . 29
4.1. Initial Advance . . . . . . . . . . . . . . . . . . 29
4.2. Each Advance . . . . . . . . . . . . . . . . . . . . 30
ARTICLE V REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 31
5.1. Corporate Existence and Standing . . . . . . . . . . 31
5.2. Authorization and Validity . . . . . . . . . . . . . 31
5.3. No Conflict; Government Consent . . . . . . . . . . 31
5.4. Financial Statements . . . . . . . . . . . . . . . . 32
5.5. Material Adverse Change . . . . . . . . . . . . . . 32
5.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . 32
5.7. Litigation and Contingent Obligations . . . . . . . 32
5.8. Subsidiaries . . . . . . . . . . . . . . . . . . . . 33
5.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . 33
5.10. Accuracy of Information . . . . . . . . . . . . . . 33
5.11. Regulation U . . . . . . . . . . . . . . . . . . . . 33
5.12. Material Agreements . . . . . . . . . . . . . . . . 33
5.13. Compliance With Laws . . . . . . . . . . . . . . . . 33
5.14. Ownership of Properties . . . . . . . . . . . . . . 34
5.15. Investment Company Act . . . . . . . . . . . . . . . 34
5.16. Public Utility Holding Company Act . . . . . . . . . 34
ARTICLE VI COVENANTS . . . . . . . . . . . . . . . . . . . . 34
6.1. Financial Reporting . . . . . . . . . . . . . . . . 34
6.2. Use of Proceeds . . . . . . . . . . . . . . . . . . 37
6.3. Notice of Default . . . . . . . . . . . . . . . . . 37
6.4. Conduct of Business . . . . . . . . . . . . . . . . 38
6.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . 38
6.6. Insurance . . . . . . . . . . . . . . . . . . . . . 38
6.7. Compliance with Laws . . . . . . . . . . . . . . . . 38
6.8. Maintenance of Properties . . . . . . . . . . . . . 38
6.9. Inspection . . . . . . . . . . . . . . . . . . . . . 38
6.10. Merger . . . . . . . . . . . . . . . . . . . . . . . 39
6.11. Sale of Assets . . . . . . . . . . . . . . . . . . . 39
6.12. Acquisitions . . . . . . . . . . . . . . . . . . . . 39
6.13. Liens . . . . . . . . . . . . . . . . . . . . . . . 40
6.14. Capitalization . . . . . . . . . . . . . . . . . . . 42
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6.15. Consolidated Non-Performing Assets
to Total Equity Capital . . . . . . . . . . . . . . . 42
6.16. Debt to Total Equity Capital. . . . . . . . . . . . . 42
ARTICLE VII DEFAULTS. . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS
AND REMEDIES . . . . . . . . . . . . . . . . . . 45
8.1. Acceleration . . . . . . . . . . . . . . . . . . . . 45
8.2. Amendments . . . . . . . . . . . . . . . . . . . . . 45
8.3. Preservation of Rights . . . . . . . . . . . . . . . 46
ARTICLE IX GENERAL PROVISIONS . . . . . . . . . . . . . . . . 46
9.1. Survival of Representations . . . . . . . . . . . . . 46
9.2. Governmental Regulation . . . . . . . . . . . . . . . 46
9.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 47
9.4. Headings . . . . . . . . . . . . . . . . . . . . . . 47
9.5. Entire Agreement . . . . . . . . . . . . . . . . . . 47
9.6. Several Obligations; Benefits
of this Agreement . . . . . . . . . . . . . . . . . . 47
9.7. Expenses; Indemnification . . . . . . . . . . . . . . 47
9.8. Numbers of Documents . . . . . . . . . . . . . . . . 48
9.9. Accounting . . . . . . . . . . . . . . . . . . . . . 48
9.10. Severability of Provisions . . . . . . . . . . . . . 48
9.11. Nonliability of Lenders . . . . . . . . . . . . . . . 48
9.12. CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . 48
9.13. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . 48
9.14. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . 49
9.15. Confidentiality . . . . . . . . . . . . . . . . . . . 49
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . 49
10.1. Appointment . . . . . . . . . . . . . . . . . . . . . 49
10.2. Powers. . . . . . . . . . . . . . . . . . . . . . . . 49
10.3. General Immunity. . . . . . . . . . . . . . . . . . . 50
10.4. No Responsibility for Loans, Recitals, etc. . . . . . 50
10.5. Action on Instructions of Lenders . . . . . . . . . . 50
10.6. Employment of Agents and Counsel . . . . . . . . . . 50
10.7. Reliance on Documents, Counsel. . . . . . . . . . . . 51
10.8. Agent's Reimbursement and Indemnification . . . . . . 51
10.9. Rights as a Lender. . . . . . . . . . . . . . . . . . 51
10.10. Lender Credit Decision. . . . . . . . . . . . . . . . 51
10.11. Successor Agent . . . . . . . . . . . . . . . . . . . 52
10.12. Co-Agents . . . . . . . . . . . . . . . . . . . . . . 52
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ARTICLE XI SETOFF; RATABLE PAYMENTS . . . . . . . . . . . 53
11.1. Setoff . . . . . . . . . . . . . . . . . . . . . 53
11.2. Ratable Payments . . . . . . . . . . . . . . . . 53
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS . . . . . . . . . . . . . . . . 53
12.1. Successors and Assigns . . . . . . . . . . . . . 53
12.2. Participations . . . . . . . . . . . . . . . . . 54
12.2.1. Permitted Participants; Effect . . . . 54
12.2.2. Voting Rights. . . . . . . . . . . . . 54
12.2.3. Benefit of Setoff. . . . . . . . . . . 54
12.3. Assignments. . . . . . . . . . . . . . . . . . . 55
12.3.1. Permitted Assignments. . . . . . . . . 55
12.3.2. Effect; Effective Date . . . . . . . . 55
12.4. Dissemination of Information . . . . . . . . . . 56
12.5. Tax Treatment. . . . . . . . . . . . . . . . . . 56
ARTICLE XIII NOTICES. . . . . . . . . . . . . . . . . . . . 56
13.1. Giving Notice. . . . . . . . . . . . . . . . . . 56
13.2. Change of Address. . . . . . . . . . . . . . . . 56
ARTICLE XIV COUNTERPARTS . . . . . . . . . . . . . . . . . 56
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FOUR YEAR FACILITY CREDIT AGREEMENT
This Four Year Facility Credit Agreement, dated as of April 22, 1996, is
among Firstar Corporation, the Lenders, Bank of America National Trust and
Savings Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Co-Agents and The First National Bank of Chicago, as Agent. The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Absolute Rate" means, with respect to a Loan made by a given Lender for
the relevant Absolute Rate Interest Period, the rate of interest per annum
(rounded to the nearest 1/100 of 1%) offered by such Lender and accepted by the
Borrower pursuant to Section 2.4.6.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Borrower at the same time and for the same Absolute Rate
Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.4.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance or an Absolute Rate Loan, a period of not less than 7 and not more than
180 days commencing on a Business Day selected by the Borrower pursuant to this
Agreement, but in no event extending beyond the Termination Date. If such
Absolute Rate Interest Period would end on a day which is not a Business Day,
such Absolute Rate Interest Period shall end on the next succeeding Business
Day.
"Absolute Rate Loan" means a Loan which bears interest at an Absolute
Rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of
the outstanding ownership interests of a partnership, association, joint
venture or similar business organization.
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"Adequately Capitalized" means "adequately capitalized" for purposes of 12
U.S.C. 1831(o) and any rules and regulations issued thereunder (including,
without limitation, 12 C.F.R. 565.4), as amended, supplemented or otherwise
modified from time to time.
"Advance" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made by some or all of the Lenders to the Borrower of the
same Type (or on the same interest basis in the case of Competitive Bid
Advances) and, in the case of Fixed Rate Advances, for the same Interest Period
and includes both a Committed Advance and a Competitive Bid Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as agent
for the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this Four Year Facility Credit Agreement, as it may be
amended or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the
sum of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means, at any date of determination thereof with
respect to any Eurodollar Committed Advance and the facility fees payable
pursuant to Section 2.6.1, the respective rates per annum for such Eurodollar
Committed Advance and facility fees calculated in accordance with the terms of
Section 2.3.4.
"Article" means an article of this Agreement unless another document is
specifically referenced.
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"Authorized Officer" means any of the Chairman of the Board, President, or
Senior Vice President - Finance and Treasurer of the Borrower, acting singly.
"Banking Subsidiary" means any insured depository institution (within the
meaning of 12 U.S.C. 1813(c), as amended, supplemented or otherwise modified
from time to time), which is controlled (within the meaning of 12 U.S.C. 1841,
as amended, supplemented or otherwise modified from time to time) by the
Borrower.
"Borrower" means Firstar Corporation, a Wisconsin corporation, and its
successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Closing Date" means the date upon which all of the conditions set forth
in Section 4.1 have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans not exceeding the amount set forth opposite its signature below or as set
forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Committed Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Committed Loans made by the Lenders to the
Borrower at the same time, of the same Type and, in the case of Eurodollar
Committed Advances, for the same Interest Period.
"Committed Borrowing Notice" is defined in Section 2.3.5.
"Committed Loan" means a Loan made by a Lender pursuant to Section 2.3.
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"Committed Note" means a promissory note in substantially the form of
Exhibit "A-1" hereto, with appropriate insertions, duly executed and delivered
to the Agent by the Borrower for the account of a Lender and payable to the
order of such Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of
the Lenders to the Borrower at the same time, at the same interest basis, and
for the same Interest Period.
"Competitive Bid Acceptance Notice" is defined in Section 2.4.6.
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute
Rate Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form
of Exhibit "A-2" hereto, with appropriate insertions, duly executed and
delivered to the Agent by the Borrower for the account of a Lender and payable
to the order of such Lender, including any amendment, modification, renewal or
replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in the
form of Exhibit "D" hereto completed and delivered by a Lender to the Agent in
accordance with Section 2.4.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "B" hereto completed and delivered by the
Borrower to the Agent in accordance with Section 2.4.2.
"Consolidated Financial Statements" means the Consolidated Financial
Statements for Bank Holding Companies With Total Consolidated Assets of $150
Million or More, or With More Than One Subsidiary Bank--FR Y-9 C, as such
report may be amended or modified from time to time, and any similar report
required to be filed by the Borrower.
"Consolidated Reports of Condition and Income" means the Consolidated
Reports of Condition and Income for A Bank With Domestic and Foreign
Offices--FFIEC 031, Consolidated Reports of Condition and Income for A Bank
With Domestic Offices Only and
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Total Assets of $300 Million or More--FFIEC 032, Consolidated Reports of
Condition and Income for A Bank With Domestic Offices Only and Total Assets of
$100 Million or More But Less Than $300 Million--FFIEC 033, and Consolidated
Reports of Condition and Income for A Bank With Domestic Offices Only and Total
Assets of Less Than $100 Million--FFIEC 034, as such reports may be amended or
modified from time to time, and any similar report required to be filed by any
Banking Subsidiary.
"Conversion/Continuation Notice" is defined in Section 2.3.6.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when and
as said corporate base rate changes.
"Default" means an event described in Article VII.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means a Eurodollar Committed Advance or a Eurodollar
Bid Rate Advance, as applicable.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.4.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the rate determined by the Agent to be the
rate at which deposits in U.S. dollars are offered by First Chicago to
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Eurodollar
Interest Period, (i) in the case of a Eurodollar Committed Advance, in the
approximate amount of First Chicago's relevant Eurodollar Committed Loan, or
(ii) in the case of a Eurodollar Bid Rate Advance, in the approximate amount of
such Eurodollar Bid Rate Advance requested by the Borrower, and in each case
having a maturity approximately equal to such Interest Period.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan
made by a given Lender for the relevant Eurodollar Interest Period, the sum of
(i) the quotient of (a) the Eurodollar Base Rate applicable to such Eurodollar
Interest Period, divided by
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(b) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Eurodollar Interest Period, plus (ii) the Competitive Bid Margin offered by
such Lender and accepted by the Borrower pursuant to Section 2.4.6.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan", means a Competitive Bid Loan which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Committed Advance" means an Advance which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.3.
"Eurodollar Committed Loan" means a Loan which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.3.
"Eurodollar Interest Period" means, with respect to a Eurodollar Advance
or a Eurodollar Loan, a period of one, two, three or six months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such
Eurodollar Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter, provided,
however, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Eurodollar Interest Period shall
end on the last Business Day of such next, second, third or sixth succeeding
month. If a Eurodollar Interest Period would otherwise end on a day which is
not a Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Eurodollar Interest Period
shall end on the immediately preceding Business Day. In no event shall any
Eurodollar Interest Period extend beyond the Termination Date.
"Eurodollar Loan" means a Eurodollar Committed Loan or a Eurodollar Bid
Rate Loan, as applicable.
"Eurodollar Rate" means, with respect to a Eurodollar Committed Advance or
a Eurodollar Committed Loan for the relevant Eurodollar Interest Period, the
sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such
Eurodollar Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Eurodollar Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on
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overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published for such day (or,
if such day is not a Business Day, for the immediately preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10 a.m. (Chicago time) on such day on such transactions received
by the Agent from three Federal funds brokers of recognized standing selected
by the Agent in its sole discretion.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors.
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or the
Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, changing when and as the Alternate Base Rate
changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Indebtedness" means (i) total deposits, (ii) securities sold under
agreements to repurchase, (iii) borrowings with an original maturity of one
year or less, (iv) other borrowed funds with an original maturity of greater
than one year, (v) mandatory convertible securities, (vi) subordinated notes
and debentures, and (vii) other liabilities, in each case determined for the
Borrower only in a manner consistent with that used in preparing the Borrower's
December 31, 1995 Parent Company Only Financial Statements.
"Interest Period" means a Eurodollar Interest Period or an Absolute Rate
Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit "C" hereto,
completed and delivered by the Agent to the Lenders in accordance with Section
2.4.3.
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"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement and the Notes.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agent or the Lenders thereunder.
"Material Banking Subsidiary" means, at any time, any one or more Banking
Subsidiaries having aggregate consolidated assets equal to or greater than 5%
of the consolidated assets of the Borrower and its Subsidiaries at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service Inc. or any successor
corporation thereto.
"Multiemployer Plant" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non-Performing Assets" means the total of (i) Non-Performing Loans, (ii)
Other Real Estate Owned and (iii) without duplication for amounts included as
Other Real Estate Owned, property acquired pursuant to in substance
foreclosures.
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"Non-Performing Loans" means (i) the total of loans which are placed on a
nonaccrual status, (ii) the total of loans which are past due 90 days or more
and are still accruing, and (iii) the total of loans and leases restructured
and in compliance with modified terms, in each case determined for the Borrower
and its Subsidiaries on a consolidated basis in a manner consistent with that
used in preparing the Borrower's December 31, 1995 Consolidated Financial
Statements.
"Notes" means, collectively, the Committed Notes and the Competitive Bid
Notes; and "Note" means any one of such Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the
Lenders or to any Lender, the Agent or any indemnified party hereunder arising
under the Loan Documents.
"Other Real Estate Owned" means Other Real Estate Owned as defined in 12
C.F.R. Section 7.3025 (1989), as such regulation may be amended or supplemented
from time to time, determined for the Borrower and its Subsidiaries on a
consolidated basis in a manner consistent with that used in preparing the
Borrower's December 31, 1995 Consolidated Financial Statements.
"Parent Company Only Financial Statements" means the Parent Company Only
Financial Statements for Bank Holding Companies With Total Consolidated Assets
of $150 Million or More, or With More Than One Subsidiary Bank--FR Y-9 LP, as
such report may be amended or modified from time to time, and any similar
report required to be filed by the Borrower.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Banking Subsidiary Indebtedness" means obligations incurred
by any Banking Subsidiary in the ordinary course of business in such
circumstances as may be incidental or usual in carrying on the banking or trust
business of a bank or trust company, including, without limitation, obligations
incurred in connection with (i) any deposits with or funds collected by such
Subsidiary, (ii) any banker's acceptance credit of such Subsidiary, (iii) any
check, note, certificate of deposit, instrument, money or Letter of Credit
issued by such Subsidiary, (iv) any check, note, certificate of deposit, money
order, traveler's check, draft or
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▇▇▇▇ of exchange issued, accepted or endorsed by such Subsidiary, (v) any
discount with, borrowing from, or other obligation to, any Federal Reserve Bank
or any Federal Home Loan Bank, (vi) any agreement made by such Subsidiary to
purchase or repurchase securities, loans or Federal funds or any interest or
participation in any thereof, (vii) any guarantee or similar obligation incurred
by such Subsidiary in the ordinary course of its banking or trust business,
(viii) any transaction in the nature of an extension of credit, whether in the
form of a commitment or otherwise, undertaken by such Subsidiary for the account
of a third party with the application of the same banking considerations and
legal lending limits that would be applicable if the transaction were a loan to
such party, (ix) any transaction in which such Subsidiary acts solely in the
fiduciary or agency capacity, (x) Rate Hedging Obligations incurred in the
ordinary course of business, and (xi) other short-term liabilities similar to
those enumerated in clauses (i) and (vi) above, including United States Treasury
tax and loan borrowings.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of
the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
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"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, and excluding any event described in Section
4043(b)(3) of ERISA.
"Required Lenders" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a Eurodollar Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurocurrency liabilities.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Standard & Poor's" means Standard & Poor's Ratings Services or any
successor corporation thereto.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Notwithstanding the
foregoing, "Subsidiary" of the Borrower shall also mean any Banking
Subsidiary. Unless otherwise
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expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and
its Subsidiaries as reflected in the financial statements referred to in clause
(i) above.
"Termination Date" means the earlier of (i) April 21, 2000 or such later
date as shall have been agreed to by the Lenders pursuant to Section 2.17, and
(ii) the date on which the Commitments shall have been reduced to zero or
terminated pursuant to Section 2.7.1 or 8.1.
"Thrift Financial Report" means the Thrift Financial Report, as such
report may be amended or modified from time to time, and any similar report
required to be filed by any Banking Subsidiary.
"Total Equity Capital" means total equity capital determined for the
Borrower and its Subsidiaries on a consolidated basis in a manner consistent
with that used in preparing the Borrower's December 31, 1995 Consolidated
Financial Statements.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance or Loan, its nature as an
Alternate Base Rate Advance or Loan, Eurodollar Committed Advance or Loan,
Eurodollar Bid Rate Advance or Loan or Absolute Rate Advance or Loan.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans.
"Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"Well-Capitalized" means "well-capitalized" for purposes of 12 U.S.C.
1831(o) and any rules and regulations issued thereunder (including, without
limitation, 12 C.F.R. 565.4), as amended, supplemented or otherwise modified
from time to time.
"Wholly-Owned Subsidiary of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time
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be owned or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, association,
joint venture or similar ordinary voting power of which shall at the time be so
owned or controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Description of Facility. Upon the terms and subject to the conditions
set forth in this Agreement, the Lenders hereby grant to the Borrower a
revolving credit facility pursuant to which: (i) each Lender severally agrees
to make Committed Loans to the Borrower in accordance with Section 2.3; and
(ii) each Lender may, in its sole discretion, make bids to make Competitive Bid
Loans to the Borrower in accordance with Section 2.4; provided, however, that
in no event may the aggregate principal amount of all outstanding Advances
(including both Committed Advances and Competitive Bid Advances) exceed the
Aggregate Commitment.
2.2. Availability of Facility. Subject to all of the terms and conditions
of this Agreement, the facility is available from the Closing Date to the
Termination Date, and the Borrower may borrow, repay and reborrow at any time
prior to the Termination Date.
2.3. Committed Advances.
2.3.1. Commitment. From and including the Closing Date and prior to the
Termination Date, each Lender severally agrees, on the terms and conditions set
forth in this Agreement, to make Committed Loans to the Borrower from time to
time in amounts not to exceed in the aggregate at any one time outstanding the
amount of its commitment. The Commitments to lend hereunder shall expire on the
Termination Date.
2.3.2. Ratable Loans; Types of Advances. Each Committed Advance
hereunder shall consist of Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments bear to the Aggregate
Commitment. The Committed Advances may be Floating Rate Advances or Eurodollar
Committed Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.3.5 and 2.3.6. The Committed Advances shall be
evidenced by the Committed Notes.
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2.3.3. Minimum Amount of Each Committed Advance. Each Committed Advance
shall be in the minimum amount of $5,000,000 (and in multiples of $500,000 in
excess thereof); provided, however, that any Floating Rate Advance may be
in the aggregate amount of the unused Aggregate Commitment.
2.3.4. Applicable Margin.
(i) The Applicable Margin for Eurodollar Committed Advances and for
facility fees payable pursuant to Section 2.6.1 hereunder, shall be subject to
adjustment (upwards or downwards, as appropriate) based on the Borrower's
Rating and shall be determined in accordance with the table set forth below.
The Applicable Margin shall be adjusted on the earlier of the date of
announcement or the date of publication by the respective rating agencies of a
change in the Rating or, in the absence of such announcement or publication, on
the effective date of such changed Rating (the "Adjustment Date"), and shall
apply to all outstanding Eurodollar Committed Advances and the facility fees
from and after such Adjustment Date to the next Adjustment Date. In the event
that the Borrower shall at any time cease to be rated by Standard & Poor's and
Moody's, the maximum Applicable Margin shall apply.
Applicable Margin
(basis points per annum)
Eurodollar Committed
Rating Advances Facility Fees
--------- -------------------- -------------
Level I 20.00 b.p. 10.00 b.p.
Level II 25.00 b.p. 12.50 b.p.
Level III 30.00 b.p. 15.00 b.p.
Level IV 41.25 b.p. 18.75 b.p.
Level V 45.00 b.p. 25.00 b.p.
(ii) For purposes of this Agreement, the Borrower's Rating shall be
determined in accordance with the following definitions:
"Level I" means the level applicable at any time when the Borrower's
Rating from Standard & Poor's is at least A or better or at least A2 or better
from Moody's.
"Level II" means the level applicable at any time when the Borrower's
Rating from Standard & Poor's is A- or A3 from Moody's.
"Level III" means the level applicable at any time when the Borrower's
Rating from Standard & Poor's is BBB+ or Baal from Moody's.
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20
"Level IV" means the level applicable at any time when the Borrower's
Rating from Standard & Poor's is BBB or Baa2 from Moody's.
"Level V" means the level applicable at any time when the Borrower's
Rating from Standard & Poor's is BBB- or less or Baa3 or less from ▇▇▇▇▇'▇.
"Rating" means the rating assigned by Standard & Poor's or Moody's to
the Borrower's senior unsecured debt or if the Borrower ceases to have such
a rating, then the Rating shall be the Borrower's implied long-term senior
debt rating (i.e., the rating that is one rating level higher than the
rating assigned by Standard & Poor's or Moody's to the Borrower's publicly
issued subordinated debt). The Rating shall be based on the applicable
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ or Level V; provided, however, that
if (i) such rating is received from one such rating agency, then that
rating will be the Rating, (ii) such rating is received from both rating
agencies, then the higher rating will be the Rating, and (iii) if there is
a difference of two or more levels between such Ratings, then the Rating
which is one below the higher Rating will be the Rating.
2.3.5. Method of Selecting Types and Interest Periods for New
Committed Advances. The Borrower shall select the Type of Committed Advance, and
in the case of each Eurodollar Committed Advance the Eurodollar Interest Period
applicable thereto, for each such Committed Advance. The Borrower shall give the
Agent irrevocable notice (a "Committed Borrowing Notice") not later than 10:00
a.m. (Chicago time) on the Borrowing Date for each Floating Rate Advance and
three Business Days before the Borrowing Date for each Eurodollar Committed
Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Committed
Advance,
(ii) the aggregate amount of such Committed Advance,
(iii) the Type of Committed Advance selected, and
(iv) in the case of each Eurodollar Committed Advance, the Eurodollar
Interest Period applicable thereto.
2.3.6. Conversion and Continuation of Outstanding Committed Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are converted into Eurodollar Committed Advances.
Each Eurodollar Committed Advance shall continue as a Eurodollar Committed
Advance until the end of the then applicable Eurodollar Interest Period
therefor, at which time such Eurodollar Committed Advance shall be automatically
converted into a Floating Rate Advance unless such
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Eurodollar Committed Advance is paid by the Borrower or the Borrower shall have
given the Agent a Conversion/Continuation Notice requesting that, at the end of
such Eurodollar Interest Period, such Eurodollar Committed Advance continue as
a Eurodollar Committed Advance for the same or another Eurodollar Interest
Period. Subject to the terms of Section 2.3.3, the Borrower may elect from time
to time to convert all or any part of an Floating Rate Advance into a
Eurodollar Committed Advance. The Borrower shall give the Agent irrevocable
notice (a "Conversion/Continuation Notice") of each conversion of Floating Rate
Advance or continuation of a Eurodollar Committed Advance not later than 10:00
a.m. (Chicago time) at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Committed Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Committed Advance(s) into which such
Committed Advance is to be converted or continued and, in the case of
a conversion into or continuation of a Eurodollar Committed Advance,
the duration of the Eurodollar Interest Period applicable thereto.
2.4. Competitive Bid Advances.
2.4.1. Competitive Bid Option; Repayment of Competitive Bid Advances.
In addition to Committed Advances pursuant to Section 2.3, but subject to all
of the terms and conditions of this Agreement (including, without
limitation, the limitation set forth in Section 2.1 as to the maximum aggregate
principal amount of all outstanding Advances hereunder), the Borrower may, as
set forth in this Section 2.4, request the Lenders, prior to the Termination
Date, to make offers to make Competitive Bid Advances to the Borrower. Each
Lender may, but shall have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept any such offers in the manner set
forth in this Section 2.4. The Competitive Bid Advances shall be evidenced by
the Competitive Bid Notes. Each Competitive Bid Advance shall be repaid in full
by the Borrower on the last day of the Interest Period applicable thereto.
2.4.2. Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.4, the
Borrower shall transmit to the Agent by telecopy a Competitive Bid Quote Request
so as to be received no later than (x) 10:00 a.m. (Chicago time) at least five
Business Days prior to the Borrowing Date proposed therein, in the case of a
Eurodollar Auction, or (y) 9:00 a.m. (Chicago time) at least one
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Business Day prior to the Borrowing Date proposed therein, in the case of an
Absolute Rate Auction, specifying in accordance with all of the terms of this
Agreement:
(i) the proposed Borrowing Date, which shall be a Business Day, for the
proposed Competitive Bid Advance;
(ii) the aggregate principal amount of such Competitive Bid Advance;
(iii) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or an Absolute Rate, or both; and
(iv) the Interest Period applicable thereto.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and for a Eurodollar Auction and an Absolute Rate Auction in a
single Competitive Bid Quote Request. No Competitive Bid Quote Request shall be
given within five Business Days (or upon reasonable prior notice to the
Lenders, such other number of days as the Borrower and the Agent may agree) of
any other Competitive Bid Quote Request. Each Competitive Bid Quote Request
shall be in a minimum amount of $5,000,000 (and in multiples of $500,000 in
excess thereof). A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit "B" hereto shall be rejected, and the
Agent shall promptly notify the Borrower of such rejection by telecopy.
2.4.3. Invitation for Competitive Bid Quotes. Promptly upon receipt of
a Competitive Bid Quote Request that is not rejected pursuant to Section 2.4.2,
the Agent shall send to each of the Lenders by telecopy an Invitation for
Competitive Bid Quotes which shall constitute an invitation by the Borrower to
each Lender to submit Competitive Bid Quotes offering to make the Competitive
Bid Loans to which such Competitive Bid Quote Request relates in accordance with
this Section 2.4.
2.4.4. Submission and Contents of Competitive Bid Quotes.
(a) Each Lender may, in its sole discretion, submit a Competitive Bid
Quote containing an offer or offers to make Competitive Bid Loans in
response to any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the requirements of this
Section 2.4.4 and must be submitted to the Agent by telecopy at its
offices specified in or pursuant to Article XIII not later than (i)
(A) 12:45 p.m. (Chicago time) in the case of First Chicago and (B)
1:00 p.m. (Chicago time) in the case of each other Lender, at least
four Business Days prior to the proposed Borrowing Date in the case of
a
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Eurodollar Auction, or (ii) (A) 8:45 a.m. (Chicago time) in the case
of First Chicago and (B) 9:00 a.m. (Chicago time) in the case of each
other Lender, on the proposed Borrowing Date in the case of an
Absolute Rate Auction (or, in either such case upon reasonable prior
notice to the Lenders, such other time and date as the Borrower and
the Agent may agree; provided that First Chicago shall always be
required to submit its Competitive Bid Quotes not less than fifteen
minutes prior to the other Lenders). Subject to Articles IV and VIII,
any Competitive Bid Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of the
Borrower.
(b) Each Competitive Bid Quote shall in any case specify:
(i) the proposed Borrowing Date, which shall be the same as that
set forth in the applicable Invitation for Competitive Bid
Quotes;
(ii) the principal amount of the Competitive Bid Loan for which
each such offer is being made, (1) which principal amount
may be greater than, less than or equal to the Commitment of
the quoting Lender, but in no case greater than the
unutilized Aggregate Commitment, (2) which principal amount
must be at least $5,000,000 (and in multiples of $500,000 in
excess thereof) and (3) which principal amount may not
exceed the principal amount of Competitive Bid Loans for
which offers were requested;
(iii) in the case of a Eurodollar Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan;
(iv) the minimum or maximum amount, if any, of the Competitive
Bid Loan which may be accepted by the Borrower and/or the
limit, if any, as to the aggregate principal amount of the
Competitive Bid Loans from such Lender which may be accepted
by the Borrower;
(v) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan;
(vi) the applicable Interest Period; and
(vii) the identity of the quoting Lender.
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(c) The Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit "D" hereto or
does not specify all of the information required by Section
2.4.4(b):
(ii) contains qualifying, conditional or similar language, other
than any such language contained in Exhibit "D" hereto;
(iii) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 2.4.4(a).
(d) If any Competitive Bid Quote shall be rejected pursuant to Section
2.4.4(c), then the Agent shall notify the relevant Lender of such
rejection as soon as practicable.
2.4.5. Notice to Borrower. The Agent shall promptly notify the
Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is in accordance with Section 2.4.4 and (ii) of any Competitive Bid Quote
that is in accordance with Section 2.4.4 and amends, modifies or is otherwise
inconsistent with a previous Competitive Bid Quote submitted by such Lender with
respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to correct
a manifest error in such former Competitive Bid Quote. The Agent's notice to the
Borrower shall specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective principal amounts and
Competitive Bid Margins or Absolute Rates, as the case may be, so offered.
2.4.6. Acceptance and Notice by Borrower. Subject to the receipt of
the notice from the Agent referred to in Section 2.4.5, not later than (i) 10:00
a.m. (Chicago time) at least three Business Days prior to the proposed
Borrowing Date, in the case of a Eurodollar Auction or (ii) 10:00 a.m. (Chicago
time) on the proposed Borrowing Date, in the case of an Absolute Rate Auction,
the Borrower shall notify the Agent of the Borrower's acceptance or rejection
of the offers so notified to it pursuant to Section. 2.4.5; provided, however,
that the failure by the Borrower to give such notice to the Agent shall be
deemed to be a rejection by the Borrower of all such offers. In the case of
acceptance, such notice (a "Competitive Bid Acceptance Notice") shall specify
the aggregate principal amount of offers for each Interest Period that
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are accepted. The Borrower may accept or reject any Competitive Bid Quote in
whole or in part (subject to the terms of Section 2.4.4(b)(iv)); provided that:
(i) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in
the related Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Absolute Rates, as the
case may be; and
(iii) the Borrower may not accept any offer of the type described
in Section 2.4.4(c) or that otherwise fails to comply with
the requirements of this Agreement for the purpose of
obtaining a Competitive Bid Loan under this Agreement.
2.4.7. Allocation by the Agent. Subject to Section 2.4.6, if offers
are made by two or more Lenders with the same Competitive Bid Margins or
Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are permitted to be accepted for the
related Interest Period, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated by the Agent among
such Lenders as nearly as possible (in such multiples as the Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers;
provided, however, that no Lender shall be allocated a portion of any
Competitive Bid Advance which is less than the minimum amount which such Lender
has indicated that it is willing to accept. Allocations by the Agent of the
amounts of Competitive Bid Loans shall be conclusive in the absence of manifest
error. The Agent shall promptly, but in any event on the same Business Day in
the case of Eurodollar Bid Rate Advances, and by 11:00 a.m. (Chicago time) on
the same Business Day in the case of Absolute Rate Advances, notify each Lender
of its receipt of a Competitive Bid Acceptance Notice and the aggregate
principal amount of each Competitive Bid Advance allocated to each participating
Lender.
2.4.8. Administration Fee. The Borrower hereby agrees to pay to the
Agent, for its sole account, an administration fee of $1,000 per Competitive Bid
Quote Request transmitted by the Borrower to the Agent pursuant to Section
2.4.2. Such administration fee shall be payable in arrears on each Payment Date
and on the Termination Date for any period then ending for which such fee, if
any, shall not have been theretofore paid.
2.5. Method of Borrowing. Not later than 12:00 noon (Chicago time) on
each Borrowing Date, each Lender shall make available its Loan or Loans, if any,
in funds immediately available to the Agent, in Chicago, Illinois at its address
specified
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pursuant to Article XIII. The Agent will make the funds so received from the
Lenders available to the Borrower at the Agent's aforesaid address.
Notwithstanding the foregoing provisions of this Section 2.5, to the extent
that a Loan made by a Lender matures on the Borrowing Date of a requested Loan,
such Lender shall apply the proceeds of the Loan it is then making to the
repayment of principal of the maturing Loan.
2.6. Fees. The Borrower agrees to pay the following fees:
2.6.1. Facility Fee. The Borrower agrees to pay to the Agent for the
account of each Lender, for the period from the Closing Date to and including
the Termination Date, a facility fee equal to the product of (i) such Lender's
Commitment (whether used or unused), and (ii) the amount (expressed in basis
points per annum) specified as the Applicable Margin for facility fees pursuant
to Section 2.3.4(i), payable on each Payment Date and on the Termination Date.
2.6.2. Usage Fee. In the event that during any calendar quarter, the
average daily principal amount of the Loans outstanding is greater than
$62,500,000, the Borrower agrees to pay to the Agent for the account of each
Lender a usage fee equal to 5 basis points per annum on the average daily
principal amount of the Committed Loans outstanding during such quarter, payable
on each Payment Date and on the Termination Date.
2.6.3. Agent's Fees. The Borrower agrees to pay to the Agent, for its
own account, the fees agreed to by the Borrower and the Agent pursuant to that
certain Letter Agreement dated February 16, 1996.
2.7. Reductions in Aggregate Commitment; Principal Payments.
2.7.1. Reductions in Aggregate Commitment. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part, ratably among
the Lenders in a minimum aggregate amount of $5,000,000 (and multiples of
$500,000 in excess thereof), upon at least three Business Days' written notice
to the Agent, which notice shall specify the amount of any such reduction;
provided, however, that the amount of the Aggregate Commitment may not be
reduced below the aggregate principal amount of the outstanding Advances.
2.7.2. Principal Payments.
(i) Optional Payments. The Borrower may from time to time pay, without
penalty or premium, all outstanding Floating Rate Advances, or, in a minimum
aggregate amount of $5,000,000 (and multiples of $500,000 in excess thereof),
any portion of the outstanding Floating Rate Advances upon one Business Days'
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prior notice to the Agent. A Fixed Rate Advance may not be paid prior
to the last day of the applicable Interest Period.
(ii) Termination. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Termination
Date.
2.8. Changes in Interest Rate. etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurodollar
Committed Advance into a Floating Rate Advance pursuant to Section 2.3.6 to but
excluding the date it becomes due or is converted into a Eurodollar Committed
Advance pursuant to Section 2.3.6 hereof, at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on that portion of
any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Fixed Rate
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Fixed Rate Advance.
No Interest Period may end after the Termination Date.
2.9. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.3.5 or 2.3.6, during the continuance of a
Default or Unmatured Default, the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurodollar Committed
Advance. During the continuance of a Default, the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Fixed Rate Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus 2%
per annum and (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate plus 2% per annum.
2.10. Method of Payment. Subject to the last sentence of Section 2.5,
all payments of the Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds to the Agent at the
Agent's address specified pursuant to Article XIII, or at any other Lending
Installation of the Agent specified in writing by the Agent to the Borrower, by
noon (local time) on the date when due and shall be applied ratably by the Agent
among all Lenders in the case of fees and payments in respect of Committed
Advances and ratably among the applicable Lenders in respect of Competitive Bid
Advances. Each payment
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delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds that the Agent
received at its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent from such Lender. The
Agent is hereby authorized to charge the account of the Borrower maintained
with First Chicago for each payment of principal, interest and fees as it
becomes due hereunder.
2.11. Notes: Telephonic Notices. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Notes; provided, however, that the failure to so record
shall not affect the Borrowers obligations under any Loan Document. The Borrower
hereby authorizes the Lenders and the Agent to extend, convert or continue
Advances, effect selections of Types of Advances, transfer funds and submit
Competitive Bid Quotes, in each case based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be acting on
behalf of the Borrower. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.12. Interest Payment Dates: Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on each Fixed Rate Advance shall be payable on
the last day of its applicable Interest Period, on any date on which the Fixed
Rate Advance is prepaid, whether due to acceleration or otherwise, and at
maturity. Interest accrued on each Fixed Rate Advance having an Interest Period
longer than three months shall also be payable on the last day of each
three-month interval (in the case of Eurodollar Committed Advances or Eurodollar
Bid Rate Advances) or 90-day interval (in the case of Absolute Rate Advances)
during such Interest Period. Interest and fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the amount paid if
payment is received prior to noon (local time) at the place of payment. If any
payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
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2.13. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Committed Borrowing Notice, Competitive Bid Acceptance Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Agent will notify each Lender of the interest rate applicable to each Fixed
Rate Advance promptly upon determination of such interest rate and will give
each Lender prompt notice of each change in the Alternate Base Rate.
2.14. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.15. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.16. Withholding Tax Exemption. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Borrower and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 (or a successor form), certifying in either
case that such Lender is entitled to receive payments under this Agreement and
the Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to each
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of the Borrower and the Agent two additional copies of such form (or a
successor form) on or before the date that such form expires (currently, three
successive calendar years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by the Borrower or the Agent,
in each case certifying that such Lender is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises the Borrower
and the Agent that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax.
2.17. Extension of Termination Date.
2.17.1. Extension Procedures. The Commitment of each Lender, and
this Agreement as between such Lender and the Borrower, may be extended for one
period of one year upon mutual agreement of such Lender and the Borrower in the
manner provided in this Section 2.17, to the effect that the Termination Date
with respect to such Lender for all purposes under this Agreement and the Notes
shall be extended by one year to April 20, 2001. The request for such an
extension shall be made by the Borrower in writing and delivered to the Agent no
later than 60 days but not sooner than 90 days prior to the second anniversary
of this Agreement. Promptly following the Agent's receipt of any such request,
the Agent shall notify each Lender thereof. Each Lender may, in its sole
discretion, agree to such extension by giving written notice of such agreement
to the Agent and the Borrower within 30 days following the Borrower's request
for such extension (each Lender which so consents to a requested extension is
herein called a "Consenting Lender" and each Lender which does not so consent to
a requested extension is herein called a "Non-consenting Lender"). If any Lender
fails to respond to any such request, such Lender shall be deemed to be a
Non-consenting Lender. If Consenting Lenders hold 66 2/3% or more of the
Aggregate Commitment, then the Termination Date of each Consenting Lender shall
be so extended and the Termination Date of each Nonconsenting Lender, if any,
shall remain unchanged. If Consenting Lenders hold less than 66 2/3% of the
Aggregate commitment, then the termination date shall not be extended for any of
the Lenders.
2.17.2. Termination of Lenders. If there are any Non-consenting
Lenders pursuant to Section 2.17.1 and an extension has occurred for Consenting
Lenders, the Borrower may, at its option, terminate the Commitment of a
Non-consenting Lender and pay or
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prepay all outstanding Loans of such Non-consenting Lender (each a "Terminated
Lender"). The Borrower shall, by giving written notice thereof to the Terminated
Lender and to the Agent, specify the proposed effective date of termination of
the Terminated Lender's Commitment (the "Lender Termination Date"), which date
shall not in any event be less than five nor more than thirty days following the
date of such notice of termination. The Borrower may not elect to terminate and
prepay any Lender under this Section 2.17.2 if a Default or Unmatured Default
exists. On the Lender Termination Date (i) the Borrower shall pay or prepay all
outstanding Loans of such Terminated Lender, together with accrued interest
thereon and all fees due such Terminated Lender under this Agreement, in each
case accrued through the Lender Termination Date, together with all amounts, if
any, payable under Section 3.4 in connection with prepayment of such Loans, and
(ii) the Terminated Lender shall have no further Commitment under this Agreement
and shall no longer be a "Lender" under this Agreement for any purpose except
insofar as it shall be entitled to any payment or indemnification, or be
obligated to make any indemnification, on account of any event which shall have
occurred, or any right or liability which shall have arisen, on or prior to the
date of repayment in full of such Loans. The termination of any Terminated
Lender's Commitment and the prepayment of a Terminated Lender's Loans pursuant
to this Section 2.17.2 shall not relieve or satisfy the obligations of the
Borrower to make any such prepayments free and clear of all taxes, to reimburse
such Terminated Lender for all increased costs pursuant to Section 3.4, or to
comply with all other terms and conditions of this Agreement (including, without
limitation, Section 9.7).
2.17.3. Successor Lenders. If, from time to time, any
Non-consenting Lender's Commitment is terminated pursuant to Section 2.17.2, the
Borrower may, at its option, specify one or more commercial banks (including any
Lender) (each a "Successor Lender"), each of which Successor Lenders (i) shall
be acceptable to the Agent, (ii) have a combined capital, surplus (or its
equivalent) and undivided profits in an amount not less than U.S. $250,000,000
(or its equivalent in another currency), and (iii) shall have agreed, in the
aggregate, to succeed to the entire Commitment of such Terminated Lender on the
applicable Lender Termination Date. Effective as of such Lender Termination
Date, the Borrower, the Agent and such Successor Lender shall enter into an
appropriate Assignment Agreement to so assign the entire Commitment of the
applicable Terminated Lender to the Successor Lender.
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ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments
due from the Borrower (excluding federal taxation of the
overall net income of any Lender or applicable Lending
Installation, income taxes imposed on any Lender in the
jurisdiction in which such Lender's home office is located,
and the Illinois personal property replacement tax), or
changes the basis of taxation of payments to any Lender in
respect of its Loans or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Fixed Rate Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining loans or
reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of
loans held or interest received by it, by an amount deemed
material by such Lender,
then, within 15 days of demand by such Lender pursuant to the written statement
required under Section 3.5, the Borrower shall pay such Lender that portion of
such increased expense incurred or reduction in an amount received which such
Lender determines is attributable to making, funding and maintaining its Loans
and its Commitment. Each Lender will notify the Borrower of any event occurring
after the date of this Agreement which will entitle such Lender to compensation
pursuant to this Section 3.1, as promptly as practicable after such Lender
obtains knowledge thereof and determines to request such compensation.
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3.2. Changes in Capital Adequacy Regulations. If a Lender reasonably
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within 15 days of demand
by such Lender pursuant to the written statement required under Section 3.5, the
Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender reasonably determines is attributable to this Agreement, its Loans
or its obligation to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). "Change" means (i) any change after
the date of this Agreement in the Risk-Based Capital Guidelines, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement. Each Lender will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to this Section 3.2, as promptly as practicable after such
Lender obtains knowledge thereof and determines to request such compensation.
3.3. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders (or in the case of any
Competitive Bid Loan, the Lender making such Loan) determine that (i) deposits
of a type and maturity appropriate to match fund Fixed Rate Advances are not
available or (ii) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance and require
any Fixed Rate Advances of the affected Type to be repaid.
3.4. Funding Indemnification. If any payment of a Fixed Rate Advance occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Fixed Rate Advance is not
made, continued or converted on the date specified by the Borrower for
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any reason other than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Fixed Rate Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Fixed Rate Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1 and 3.2 or to avoid the unavailability of a Type of
Advance under Section 3.3, so long as such designation is not disadvantageous to
such Lender. Each Lender shall deliver a written statement of such Lender as to
the amount due, if any, under Sections 3.1, 3.2 or 3.4. Such written statement
shall set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Fixed Rate Loan shall be calculated as
though each Lender funded its Fixed Rate Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Fixed Rate applicable to such Loan, whether in fact that is the
case or not. Unless otherwise provided herein, the amount specified in the
written statement shall be payable on demand after receipt by the Borrower of
the written statement. The obligations of the Borrower under Sections 3.1, 3.2
and 3.4 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance.
4.1.1. The Lenders shall not be required to make the initial Advance
hereunder and this Agreement shall not become effective unless the Borrower has
furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the articles of incorporation of the Borrower, together with
all amendments, and a certificate of status, both certified by the
appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrower, of its by-laws and of its Board of Directors' resolutions
(and resolutions of
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other bodies, if any are deemed necessary by counsel for any Lender)
authorizing the execution of the Loan Documents.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower, which shall identify by name and title and
bear the signature of the officers of the Borrower authorized to sign
the Loan Documents and to make borrowings hereunder, upon which
certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Borrowing Date no Default or
Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the Lenders
in substantially the form of Exhibit "E" hereto.
(vi) Notes payable to the order of each of the Lenders.
(vii) Written money transfer instructions, in substantially the form of
Exhibit "G" hereto, addressed to the Agent and signed by an
Authorized Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(viii) Such other documents as any Lender or its counsel may have
reasonably requested.
4.1.2. The Lenders shall not be required to make the initial Advance
hereunder, unless prior to or concurrently with the making of the initial
Advance hereunder, the Credit Agreement, dated as of August 8, 1995, among the
Borrower, the lenders named therein and The First National Bank of Chicago, as
agent shall have been terminated and the Borrower shall have paid to the lenders
and the agent thereunder any and all unpaid principal of and accrued and unpaid
interest on the notes evidencing the obligations thereunder, and any and all
other obligations of the Borrower thereunder arising under or in connection with
such Credit Agreement.
4.2. Each Advance. No Lender shall be required to make any Advance (other
than a Committed Advance that, after giving effect thereto and to the
application of the proceeds thereof, does not increase the aggregate amount of
outstanding Committed Advances), unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
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(ii) The representations and warranties contained in Article V are true
and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall be true and
correct on and as of such earlier date.
(iii) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
Each Committed Borrowing Notice and Competitive Bid Quote Request with
respect to each such Advance shall constitute a representation and warranty by
the Borrower that the conditions contained in Sections 4.2(i) and (ii) have been
satisfied. Any Lender may require a duly completed compliance certificate in
substantially the form of Exhibit "F" hereto as a condition to making an
Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Borrower and its
Subsidiaries is a corporation or a national or state banking association duly
incorporated or organized, as applicable, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where such failure to obtain all requisite authority would
not, with respect to any individual failure or any failures in the aggregate,
have a Material Adverse Effect.
5.2. Authorization and Validity. The Borrower has the corporate power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery by
the Borrower of the Loan Documents, nor
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the consummation of the transactions therein contemplated, nor compliance with
the provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's articles of incorporation or
by-laws or the provisions of any indenture, instrument or agreement to which the
Borrower or any of its Subsidiaries is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any Lien in, of or on the Property of
the Borrower or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
5.4. Financial Statements. The December 31, 1995 consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
5.5. Material Adverse Change. Since December 31, 1995 through and including
the Closing Date, there has been no change in the business, Property, prospects,
condition (financial or otherwise) or results of operations of the Borrower and
its Subsidiaries which could have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided. The United States income tax returns of the Borrower and its
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 1991. No tax liens have been filed and no claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set forth on Schedule
"1" hereto, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened
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against or affecting the Borrower or any of its Subsidiaries which could have a
Material Adverse Effect. Other than any liability incident to such litigation,
arbitration or proceedings, the Borrower has no material contingent obligations
not provided for or disclosed in the financial statements referred to in Section
5.4.
5.8. Subsidiaries. Schedule "2" hereto contains an accurate list of all
of the existing Subsidiaries of the Borrower as of the date hereof, setting
forth their respective jurisdictions of incorporation and the percentage of
their respective capital stock owned by the Borrower or other Subsidiaries. All
of the issued and outstanding shares of capital stock of such Subsidiaries have
been duly authorized and issued and are fully paid and non-assessable, except as
provided in Wisconsin Business Corporation Law Section 130.0622(2)(b).
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $50,000,000. Each Plan complies in all material respects
with all applicable requirements of law and regulations and no Reportable Event
has occurred with respect to any Plan. Neither the Borrower nor any other member
of the Controlled Group has incurred or reasonably expects to incur any
liability under Title IV of ERISA with respect to any Plan (other than premiums
due under Section 4007 of ERISA).
5.10. Accuracy of Information. No information, exhibit or report furnished
by the Borrower or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes
less than 25% of those assets of the Borrower and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could have a Material Adverse Effect. Neither the
Borrower nor any subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof, having
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jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, except where any individual noncompliance or any
noncompliance in the aggregate would not have a Material Adverse Effect. Neither
the Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could have a Material Adverse Effect.
5.14. Ownership of Properties. On the date of this Agreement, the Borrower
and its Subsidiaries will have good title, free of all Liens other than those
permitted by Section 6.13, to all of the Property and assets reflected in the
financial statements as owned by it.
5.15. Investment Company Act. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
5.16. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants, acceptable to the Lenders, prepared in accordance with
Agreement Accounting Principles on a consolidated and consolidating
basis (consolidating statements need not be certified by such
accountants) for itself and the
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Subsidiaries, including balance sheets as of the end of such period,
related profit and loss and reconciliation of surplus statements, and
a statement of cash flows, accompanied by (a) any management letter
prepared by said accountants, and (b) a certificate of said
accountants that, in the course of their examination necessary for
their certification of the foregoing, they have obtained no knowledge
of any Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof (for purposes of this Section 6.1(i), Form
10-K filed with the Securities and Exchange Commission and delivered
by the Borrower to the Lenders hereunder in respect of each such
fiscal year shall be deemed to satisfy the financial statements
required hereby).
(ii) Within 45 days after the close of the first three quarterly periods of
each of its fiscal years, for itself and the Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the
close of each such period and consolidated and consolidating profit
and loss and reconciliation of surplus statements and a statement of
cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief financial officer
(for purposes of this Section 6.1(ii), Form 10-Q filed with the
Securities and Exchange Commission and delivered to the Lenders
hereunder in respect of each such quarterly period shall be deemed to
satisfy the financial statements required hereby).
(iii) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit "F" hereto
signed by its chief financial officer showing the calculations
necessary to determine compliance with this Agreement and stating that
no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) Simultaneously with the preparation thereof, and not more than 45 days
after the close of each of the first three fiscal quarters of the
Borrower and not more than 90 days after the close of the last fiscal
quarter of the Borrower in each fiscal year (a) call reports for
Firstar Bank Milwaukee N.A. in the form delivered to the Federal
Reserve District Bank, the Comptroller of the Currency or The Federal
Deposit Insurance Corporation, as the case may be, such reports to
include the Consolidated Reports of
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Condition and Income and all schedules thereto, and (b) the
Consolidated Financial Statements and the Parent Company Only
Financial Statements of the Borrower as at the end of such
quarter, each in the form delivered to the appropriate Federal
Reserve District Bank and each to include all schedules thereto.
(v) Within 270 days after the close of each fiscal year, a statement
of the Unfunded Liabilities of each Single Employer Plan,
certified by an actuary enrolled under ERISA.
(vi) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief financial
officer of the Borrower, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto.
(vii) As soon as possible and in any event within 10 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of
its Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower
or any of its Subsidiaries, which, in either case, could have a
Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(ix) Promptly upon the filing thereof (and in the case of any
registration statement, upon the effectiveness thereof), copies
of all registration statements (excluding S-8 registration
statements) and annual, quarterly, monthly or other regular
reports which the Borrower files with the Securities and Exchange
Commission (including, without limitation, reports on Forms 10-K,
10-Q and 8-K or their equivalents).
(x) Promptly after the Borrower's or any Subsidiary's receipt
thereof, unless disclosure is prohibited by the terms thereof and
after the Borrower or such Subsidiary has in good faith attempted
to obtain the consent of the relevant regulatory authority and
such authority will not consent to the disclosure thereof,
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copies of any (i) notice of charges, (ii) notice of intent
to revoke deposit insurance, (iii) cease and desist order,
(iv) suspension or removal order, (v) memorandum of
understanding, (vi) assessment of civil money penalties,
(vii) directive relating to holding company activities
constituting a risk to any Bank Subsidiary, (viii)
directive, order or disapproval of any exception or
exemption request, plan or proposal related to capital
requirements, (ix) request that the Borrower guarantee any
capital restoration plan of any Banking Subsidiary, (x)
notification that any Bank Subsidiary is, or is to be
treated as if it were, not Well-Capitalized or Adequately
Capitalized; or (xi) request or directive from any
regulatory authority requiring any Banking Subsidiary to
submit a capital restoration plan or restricting the payment
of dividends by any Subsidiary to the Borrower or any other
Subsidiary.
(xi) Promptly after the later to occur of the creation of any new
Subsidiary and the consummation of any Acquisition (if
applicable), the Borrower shall furnish an updated schedule
of Subsidiaries to the Agent and the Lenders in the form of
Schedule "2" hereto, which schedule shall set forth the
respective jurisdictions of incorporation of the
Subsidiaries and the percentage of their respective capital
stock owned by the Borrower or other Subsidiaries.
(xii) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances for general corporate purposes,
including, without limitation, working capital needs; the funding of investments
in, or extensions of credit to, Subsidiaries, Acquisitions (subject to clause
(y) of the next sentence) of other financial institutions or other businesses or
their assets; the reduction or repayment of outstanding Indebtedness; the
repurchase of outstanding equity securities of the Borrower; and pending such
uses, temporary investments in investment grade securities. The Borrower will
not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances (x) to purchase or carry any "margin stock's (as defined in Regulation
U) in violation of Regulation U, or (y) to make any Acquisition which has not
been approved by the board of directors of the entity being acquired.
6.3. Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and
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of any other development, financial or otherwise, which could have a Material
Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted or as permitted by its regulators and to do all things necessary to
remain duly incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where such failure to obtain all requisite authority would
not, with respect to any individual failure or any failures in the aggregate,
have a Material Adverse Effect.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to, pay
when due all taxes, assessments and governmental charges and levies upon it or
its income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, except
where any individual noncompliance or any noncompliance in the aggregate would
not have a Material Adverse Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Lenders, by their respective representatives and agents, and upon
five Business Days' written notice to the Agent, to inspect any of the Property,
corporate books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of
the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each
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Subsidiary with, and to be advised as to the same by, their respective officers
at such reasonable times and intervals as the Lenders may designate; provided,
however, that, unless a Default or Unmatured Default has occurred and is
continuing, the Borrower shall not be required to discuss any matter if the
Borrower determines, in its reasonable judgment, that such discussion would
adversely affect the competitive position of the Borrower or any Subsidiary.
6.10. Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that:
(i) any Subsidiary may merge with the Borrower or a Wholly-Owned
Subsidiary provided that the Borrower or such Wholly-Owned
Subsidiary is the continuing or surviving corporation; or
(ii) the Borrower may merge with another Person; provided that (x) the
Borrower is the continuing or surviving corporation; and (y)
immediately after the consummation of the transaction, and after
giving effect thereto, no Default or Unmatured Default exists.
6.11. Sale of Assets. The Borrower will not, nor will it permit
any Subsidiary to, lease, sell or otherwise dispose of its Property, to any
other Person except for (i) sales of loans, sales of receivables in connection
with asset securitization financings and sales of other similar assets, in each
case in the ordinary course of business and (ii) leases, sales or other
dispositions of its Property that, together with all other Property of the
Borrower and its Subsidiaries previously leased, sold or disposed of (other than
as permitted in clause (i) of this Section 6.11) as permitted by this Section
during the twelve-month period ending with the month in which any such lease,
sale or other disposition occurs, do not constitute a Substantial Portion of the
Property of the Borrower and its Subsidiaries.
6.12. Acquisitions. If, at any time, any Material Banking
Subsidiary of the Borrower ceases to be Well-Capitalized, then the Borrower will
not, nor will it permit any Subsidiary to, make any Acquisition of any Person,
except:
(i) if such Acquisition is of a (w) bank holding company and one or
more banks, such bank holding company shall have a composite
BOPEC rating of 3 or better, (x) bank only, such bank shall have
a composite CAMEL rating of 3 or better, (y) savings and loan
association or a branch thereof, either (1) such savings and loan
association or branch thereof has a composite MACRO rating of 3
or better, or (2) such Acquisition is being made from the Federal
Deposit Insurance Corporation, the Resolution
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Trust Corporation or any successor thereof and is being assisted
by any such regulatory agency; or
(ii) Acquisitions which do not satisfy the foregoing rating
requirements in an aggregate amount not to exceed 10% of the
consolidated assets of the Borrower and its Subsidiaries,
calculated during the twelve-month period ending with the month
in which any such Acquisition is consummated.
Notwithstanding the foregoing, immediately after the consummation of any
Acquisition by the Borrower or any Subsidiary, and after giving effect thereto,
no Default or Unmatured Default shall exist.
6.13. Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside
on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings and
for which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Borrower or the
Subsidiaries.
(v) Liens on Property of the Borrower and its Subsidiaries
(other than the capital stock of any Subsidiary) existing on
the date hereof and securing Indebtedness
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in an aggregate principal amount not to exceed $10,000,000.
(vi) Liens granted by a Banking Subsidiary in the ordinary course
of its banking and trust business in connection with any
Permitted Banking Subsidiary Indebtedness.
(vii) Liens to secure public funds or other pledges of funds
required by law to secure deposits.
(viii) Repurchase agreements, reverse repurchase agreements and
other similar transactions entered into by any Banking
Subsidiary in the ordinary course of its banking or trust
business.
(ix) Liens granted by (1) any Subsidiary to the Borrower or any
other Subsidiary, or (2) the Borrower to any Subsidiary, in
each case as required pursuant to 12 U.S.C. 371c, as
amended, supplemented or otherwise modified from time to
time.
(x) Liens securing Indebtedness incurred after the date of this
Agreement to finance the cost of Acquisition, construction
or improvement of any Property useful and intended to be
used in carrying out the business of the Borrower or any
Subsidiary; provided, however, that (1) any such Lien shall
attach solely to the Property acquired, constructed or
improved or to substantially unimproved real property on
which real property so acquired, constructed or improved is
located, and (2) any such Lien attaches within 90 days of
the date such Property was acquired, constructed or
improved.
(xi) Liens on Property useful and intended to be used in carrying
out the business of the Borrower or any Subsidiary which
were existing at the time of Acquisition of such property,
or at the time of Acquisition by the Borrower or any
Subsidiary of any business entity then owning such Property;
provided, however, that (1) any such Lien was not incurred,
extended or renewed in the contemplation of or in connection
with such Acquisition by the Borrower or any Subsidiary, and
(2) any such Lien shall attach solely to the Property
acquired.
(xii) Extensions or renewals of Liens permitted by clauses (x) and
(xi) above; provided, however, that at the time of such
transaction and after giving effect thereto and to the
application of the proceeds thereof, (1) the aggregate
unpaid principal amount of Indebtedness of the Borrower and
its Subsidiaries
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which is secured pursuant to this clause (xii) and clauses
(x) and (xi) above shall be no greater than the aggregate
unpaid principal amount of such Indebtedness secured
pursuant to such clauses immediately preceding such
transaction, and (2) any such Lien shall attach solely to
the Property which was subject thereto immediately preceding
such transaction.
(xiii) Liens securing Rate Hedging Obligations incurred by the
Borrower and any Subsidiary in the ordinary course of
business solely for asset/liability management purposes and
not for speculative purposes.
(xiv) Liens arising in the ordinary course of business on assets
sold in connection with the transactions permitted under
Section 6.11(i).
6.14. Capitalization. The Borrower will ensure that each Banking
Subsidiary will at all times be, and will at all times be treated by the
relevant regulatory authorities as if they were, Well-Capitalized or Adequately
Capitalized. The Borrower and its Banking Subsidiaries shall comply at all times
with any and all minimum risk-based capital guidelines, leverage measure capital
guidelines and any other capital guidelines now or hereafter published by any
federal or state regulatory authorities having jurisdiction over them.
6.15. Consolidated Non-Performing Assets to Total Equity Capital. The
Borrower will maintain as at the last day of each fiscal quarter a ratio of (i)
Non-Performing Assets to (ii) Total Equity Capital of not greater than 0.65 to
1.00.
6.16. Debt to Total Equity Capital. The Borrower will maintain as at
the last day of each fiscal quarter a ratio of (i) Indebtedness to (ii) total
equity capital (determined for the Borrower only in a manner consistent with
that used in preparing the Borrower's December 31, 1995 Parent Company Only
Financial Statements) which is less than 0.45 to 1.00.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the Agent
under or in connection with this Agreement,
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any Loan, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as
of which made or deemed made.
7.2. Nonpayment of principal of any Note when due, or nonpayment of
interest upon any Note or of any fee or other obligations under any of the Loan
Documents within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2 and Sections 6.10 through and including 6.16.
7.4. The breach by the Borrower (other than a breach which constitutes
a Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement which is not remedied within thirty days after written notice
from the Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness in excess of $10,000,000 when due; or the default by the Borrower
or any of its Subsidiaries in the performance of any term, provision or
condition contained in any agreement under which any Indebtedness in excess of
$10,000,000 was created or is governed, or any other event shall occur or
condition exist, the effect of which is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any Indebtedness of the Borrower or any of its
Subsidiaries in excess of $10,000,000 shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or the Borrower or any of its Subsidiaries shall
not pay, or admit in writing its inability to pay, its debts generally as they
become due.
7.6. The Borrower or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this
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Section 7.6 or (vi) fail to contest in good faith any appointment or proceeding
described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 30 consecutive days.
7.8. The Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge any judgment or order for the payment of
money in excess of $25,000,000, which is not stayed on appeal or otherwise being
appropriately contested in good faith.
7.9. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $50,000,000 or any Reportable Event shall occur in
connection with any Plan.
7.10. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $1,000,000 per annum.
7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $1,000,000.
7.12. Any Banking Subsidiary shall cease to be insured under the
Federal Deposit Insurance Act and any rules and regulations issued thereunder,
as amended, supplemented or otherwise modified from time to time; or a cease and
desist order shall be issued against the Borrower or any Subsidiary pursuant to
12 U.S.C. 1818(b) or (c) or any similar applicable provision of state law and
any rules and regulations issued thereunder, as
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amended, supplemented or otherwise modified from time to time; or there shall
occur, with respect to any Banking Subsidiary, any event which is grounds for
the required submission of a capital restoration plan under 12 U.S.C. Section
1831(o)(e)(2) and any rules and regulations issued thereunder, as amended,
supplemented or otherwise modified from time to time, or for seeking the
appointment of a receiver or conservator under 12 U.S.C. 1821(c) and any rules
and regulations issued thereunder, as amended, supplemented or otherwise
modified from time to time; or any conservator or receiver shall be appointed
for any Banking Subsidiary under any such provisions or any other state or
federal law.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Agent or any Lender. If any other Default occurs, the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans hereunder, or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
If, within fourteen (14) days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender affected thereby:
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(i) Extend the maturity of any Loan or Note or forgive all or any portion
of the principal amount thereof, or reduce the rate or extend the time
of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required Lenders.
(iii) Extend the Termination Date, or increase the amount of the Commitment
of any Lender hereunder, or permit the Borrower to assign its rights
or obligations under this Agreement.
(iv) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive delivery of the Notes and the
making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any
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limitation or prohibition provided by any applicable statute or regulation.
9.3. Taxes. Any taxes (excluding federal income taxes on the overall net
income of any Lender, income taxes imposed on any Lender in the jurisdiction in
which such Lender's home office is located, and the Illinois personal property
replacement tax) or other similar assessments or charges made by any
governmental or revenue authority in respect of the Loan Documents shall be paid
by the Borrower, together with interest and penalties, if any.
9.4. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.5. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof.
9.6. Several Obligations: Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
9.7. Expenses: Indemnification. Subject to the Letter Agreement, dated
February 16, 1996, between the Borrower and the Agent, the Borrower shall
reimburse the Agent for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, negotiation, execution, delivery, review,
amendment, modification, and administration of the Loan Documents. The Borrower
also agrees to reimburse the Agent and the Lenders for any costs, internal
charges and out-of-pocket expenses (including attorneys' fees and time charges
of attorneys for the Agent and the Lenders, which attorneys may be employees of
the Agent or the Lenders) paid or incurred by the Agent or any Lender in
connection with the collection and enforcement of the Loan Documents. The
Borrower further agrees to indemnify the Agent and each Lender, its directors,
officers and employees (each an "Indemnified Party") against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Agent or any Lender is a party thereto) which
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any Indemnified Party may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Loan hereunder, except that any such Indemnified Party shall not be indemnified
for any such losses, claims, damages, penalties, judgments, liabilities and
expenses to the extent that they arise from the gross negligence or willful
misconduct of such Indemnified Party. The obligations of the Borrower under this
Section shall survive the termination of this Agreement.
9.8. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
9.9. Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles;
provided, however, that compliance with Sections 6.15 and 6.16 shall be
interpreted and all determinations thereunder shall be made in accordance with
regulatory accounting principles as in effect from time to time, applied in a
manner consistent with that used in preparing the financial statements and
reports referred to in Section 6.1(iv) for the fiscal quarter ended December 31,
1995.
9.10. Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.11 Nonliability of Lenders. The relationship between the Borrower and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
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STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY
LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
9.15. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other professional advisors
to that Lender or to a Transferee, (iii) to regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which that
Lender is a party, and (vi) permitted by Section 12.4.
ARTICLE X
TEE AGENT
10.1. Appointment. The First National Bank of Chicago is hereby appointed
Agent hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the Agent of such Lender. The Agent
agrees to act as such upon the express conditions contained in this Article X.
The Agent shall not have a fiduciary relationship in respect of the Borrower or
any Lender by reason of this Agreement.
10.2. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers
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as are reasonably incidental thereto. The Agent shall have no implied duties to
the Lenders, or any obligation to the Lenders to take any action thereunder
except any action specifically provided by the Loan Documents to be taken by the
Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
for its or their own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obliger under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered to the Agent; (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; or (v) the value, sufficiency,
creation, perfection or priority of any interest in any collateral security. The
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Agent at such time, but is
voluntarily furnished by the Borrower to the Agent (either in its capacity as
Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent
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shall be entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any other Loan
Document.
10.7. Reliance on Documents: Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Agent. The obligations of the Lenders under this
Section 10.8 shall survive payment of the Obligations and termination of this
Agreement.
10.9. Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a
Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Agent, in its individual capacity, is not obligated to remain a Lender.
10.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to
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enter into this Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents.
10.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall have
the right to appoint, on behalf of the Borrower and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. If the Agent has resigned and no
successor Agent has been appointed, the Lenders may perform all the duties of
the Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $250,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning Agent. Upon the effectiveness of the resignation of the Agent, the
resigning Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the resignation of an
Agent, the provisions of this Article X shall continue in effect for the benefit
of such Agent in respect of any actions taken or omitted to be taken by it while
it was acting as the Agent hereunder and under the other Loan Documents.
10.12. Co-Agents. None of the Lenders identified in this Agreement or
any other loan document as a "Co-Agent" shall have any right, power, obligation,
liability, responsibility or duty under this agreement or any other loan
document other than those applicable to all Lenders as such. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or any other Loan Document
or in taking or refraining from taking any action hereunder or thereunder or
pursuant hereto or thereto.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender to or for the credit or account of the Borrower may be offset and
applied toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a Federal Reserve
Bank; provided, however, that no such assignment shall release the transferor
Lender from its obligations hereunder. The Agent may treat the payee of any Note
as the owner thereof for all purposes hereof unless and until such payee
complies with Section 12.3 in the case of an assignment
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thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
12.2. Participations.
12.2.1 Permitted Participants: Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such loan or Commitment, postpones any
date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Commitment, releases any
guarantor of any such Loan or releases any substantial portion of
collateral, if any, securing any such Loan.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
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participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit "H"
hereto or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower and the Agent, which consent in
each case shall not be unreasonably withheld, shall be required prior
to an assignment becoming effective with respect to a Purchaser which
is not a Lender or an Affiliate thereof; provided, however, that if a
Default has occurred and is continuing, the consent of the Borrower
shall not be required.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agent of
a notice of assignment, substantially in the form attached as Exhibit
"I" to Exhibit "H" hereto (a "Notice of Assignment"), together with
any consents required by Section 12.3.1, and (ii) payment of a $2,500
fee to the Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of
Assignment. The Notice of Assignment shall contain a representation by
the Purchaser to the effect that none of the consideration used to
make the purchase of the Commitment and Loans under the applicable
assignment agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. on and after the
effective date of such assignment, such purchaser shall for all
purposes be a lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no further consent or
action by the Borrower, the Lenders or the Agent shall be required to
release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agent and the Borrower shall make
appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate,
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replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Commitment, as adjusted pursuant to
such assignment.
12.4. Dissemination of Information. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser, which, if required
pursuant to Section 12.3.1, the Borrower has consented to in accordance with the
terms thereof, or any other Person acquiring an interest in the Loan Documents
by operation of law (each a "'Transferee") and any prospective Transferee any
and all information in such Lender's possession concerning the creditworthiness
of the Borrower and its Subsidiaries; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.15 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.16.
ARTICLE XIII
NOTICES
13.1. Giving Notice. Except as otherwise permitted by Section 2.11
with respect to borrowing notices, all notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
13.2. Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by telex or
telephone, that it has taken such action.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
FIRSTAR CORPORATION
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President-
Finance and Treasurer
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President-
Finance and Treasurer
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 57
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Commitment
$22,222,222.22 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: R. C. English
------------------------------
Print Name: ▇▇▇▇▇▇ ▇. English
----------------------
Title: Authorized Agent
---------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. English
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 58
64
$19,444,444.44 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
Individually and as Co-Agent
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title: Vice President
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 59
65
$19,444,444.44 CHEMICAL BANK,
Individually and as Co-Agent
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Title: Vice President
----------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 60
66
$19,444,444.44 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
Individually and as Co-Agent
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------
Title: Vice President
-------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
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$9,722,222.22 THE BANK OF NEW YORK
By: [sig]
-----------------------------
Print Name: [sig]
---------------------
Title: Vice President
--------------------------
Financial Institution Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 62
68
$9,722,222.22 DEUTSCHE BANK AG - NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Print Name ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
---------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Print Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Associate
---------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 63
69
$9,722,222.22 MELLON BANK, N.A.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Title: Vice President
------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 64
70
$9,722,222.22 SUNTRUST BANK, ATLANTA
By: [sig]
--------------------------
Print Name: [sig]
------------------
Title: [sig]
-----------------------
MC:121-19TH Floor
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
By: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Title: Vice President
-----------------------
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
Page 65
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$5,555,555.56 FLEET NATIONAL BANK
By: [sig]
------------------------
Print Name: [sig]
------------------------
Title: Vice President
------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Ph: ▇▇▇-▇▇▇-▇▇▇▇
Fx: ▇▇▇-▇▇▇-▇▇▇▇
$125.000.000.00
Page 66
72
EXHIBIT "A-1"
COMMITTED NOTE
$_________________ April 22, 1996
Firstar Corporation, a Wisconsin corporation (the "Borrower"), promises to
pay to the order of (the "Lender") the lesser of the principal
sum of Dollars or the aggregate unpaid principal amount of all
Committed Loans made by the Lender to the Borrower pursuant to Section 2.3 of
the Four Year Facility Credit Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the ''Agreement'')
hereinafter referred to, in immediately available funds at the main office of
The First National Bank of Chicago in Chicago, Illinois, as Agent, or as
otherwise directed by the Agent pursuant to the terms of the Agreement, together
with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement. The Borrower shall pay the principal of and
accrued and unpaid interest on all Committed Loans in full on the Termination
Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Committed Loan and the date and amount of each
principal payment hereunder, provided, however, that any failure to so record
shall not affect the Borrower's obligations under any Loan Document.
This Committed Note is one of the Notes issued pursuant to, and is entitled
to the benefits of, the Four Year Facility Credit Agreement, dated as of April
22, 1996, among the Borrower, Bank of America National Trust and Savings
Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Co-Agents, The First National Bank of Chicago, individually and as Agent, and
the lenders named therein, including the Lender, to which Agreement, as it may
be amended from time to time, reference is hereby made for a statement of the
terms and conditions governing this Committed Note, including the terms and
conditions under which this committed note may be prepaid or its maturity date
accelerated. Capitalized terms used and not otherwise defined herein are used
with the meanings attributed to them in the Agreement.
FIRSTAR CORPORATION
By:_______________________________
Print Name:_______________________
Title:____________________________
Page 67
73
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
COMMITTED NOTE OF FIRSTAR CORPORATION
DATED APRIL 22, 1996
Principal Maturity Principal
Amount of Interest Amount Unpaid
Date of Loan Period Paid Balance
---- --------- ----------- --------- -------
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74
EXHIBIT "A-2"
COMPETITIVE BID NOTE
April 22, 1996
Firstar Corporation, a Wisconsin corporation (the "Borrower"), promises to
pay to the order of ___________ (the "Lender") the aggregate unpaid principal
amount of all Competitive Bid Loans made by the Lender to the Borrower
pursuant to Section 2.4 of the Four Year Facility Credit Agreement (as the same
may be amended, supplemented or otherwise modified from time to time, the
"Agreement") hereinafter referred to, in immediately available funds at the
main office of The First National Bank of Chicago in Chicago, Illinois, as
Agent, or as otherwise directed by the Agent pursuant to the terms of the
Agreement, together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay each
Competitive Bid Loan in full on the last day of the Interest Period applicable
to such Competitive Bid Loan.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Competitive Bid Loan and the date and amount of
each principal payment hereunder, provided, however, that any failure to so
record shall not affect the Borrower's obligations under any Loan Document.
This Competitive Bid Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Four Year Facility Credit Agreement, dated as
of April 22, 1996, among the Borrower, Bank of America National Trust and
Savings Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Co-Agents, The First National Bank of Chicago, individually and as
Agent, and the lenders named therein, including the Lender, to which Agreement,
as it may be amended from time to time, reference is hereby made for a
statement of the terms and conditions governing this Competitive Bid Note,
including the terms and conditions under which this Competitive Bid Note may be
prepaid or its maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them in the
Agreement.
FIRSTAR CORPORATION
By:____________________________
Print Name:____________________
Title:_________________________
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75
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
COMMITTED NOTE OF FIRSTAR CORPORATION
DATED APRIL 22, 1996
Principal Maturity Principal
Amount of Interest Amount Unpaid
Date of Loan Period Paid Balance
---- --------- ----------- --------- -------
Page 70
76
EXHIBIT "B"
COMPETITIVE BID QUOTE REQUEST
(Section 2.4.2)
____________, 19__
To: The First National Bank of Chicago,
as agent (the "Agent")
From: Firstar Corporation (the "Borrower")
Re: Four Year Facility Credit Agreement dated as of April 22,
1996 among the Borrower, the lenders from time to time
party thereto, Bank of America National Trust and
Savings Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Co-Agents and The First
National Bank of Chicago, as Agent for such lenders (as
amended, supplemented or otherwise modified from time to
time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them in
the Agreement.
2. We hereby give notice pursuant to Section 2.4.2 of the Agreement that
we request Competitive Bid Quotes for the following proposed Competitive Bid
Advance(s):
Borrowing Date: __________, 19__
Principal Amount(1) Interest Period(2)
3. Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an
Absolute Rate].
---------------
(1) Amount must be at least $5.000,000 (and multiples of $20,000 in
excess thereof).
(2) One, two, three, or six months (Eurodollar Auction) or at least 7
and not more than 180 days (Absolute Rate Auction), subject to the provisions
of the definitions of Eurodollar Interest Period and Absolute Rate Interest
Period.
Page 71
77
4. Upon acceptance by the undersigned of any or all of the Competitive Bid
Advances offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in Article IV of the Agreement.
FIRSTAR CORPORATION
By:___________________
Title:________________
Page 72
78
EXHIBIT "C"
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.4.3)
___________, 19__
To: Each of the Lenders party to the Agreement referred to below
Re: Invitation for Competitive Bid Quotes to Firstar Corporation (the
"Borrower")
Pursuant to Section 2.4.3 of the Four Year Facility Credit Agreement dated
as of April 22, 1996 among the Borrower, the lenders from time to time party
thereto, Bank of America National Trust and Savings Association, Chemical Bank
and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Co-Agents and The First
National Bank of Chicago, as Agent for such lenders (as amended, supplemented
or otherwise modified from time to time through the date hereof, the
"Agreement"), we are pleased on behalf of the Borrower to invite you to submit
Competitive Bid Quotes to the Borrower for the following proposed Competitive
Bid Advance(s):
Borrowing Date: ___________, 19__
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an
Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.4.4 of
the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than [1:00 p.m.] [9:00 a.m.]
(Chicago time) on __________, 19__.
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:_____________________________
Title:__________________________
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79
EXHIBIT "D"
COMPETITIVE BID QUOTE
(Section 2.4.4)
_________, 19__
To: The First National Bank of Chicago, as Agent
Re: Competitive Bid Quote to Firstar Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_______, 19__, we hereby make the following Competitive Bid Quote pursuant to
Section 2.4.4 of the Agreement hereinafter referred to and on the following
terms:
1. Quoting Lender: ______________________________________________________
2. Person to contact at Quoting Lender: _________________________________
3. Borrowing Date: ______________________________________________________
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the following
rates:
Principal Interest [Competitive [Absolute Minimum
Amount(2) Period(3) Bid Margin(4)] Rate (5)] Amount(6)
--------- --------- -------------- ---------- ---------
-----------------------
(1)As specified in the related Invitation For Competitive Bid Quotes.
(2)Principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 (and
multiples of $500,000 in excess thereof).
(3)One, two, three or six months or at least 7 and not more than 180 days,
as specified in the related Invitation For Competitive Bid Quotes.
(4)Competitive Bid Margin over or under the Eurodollar Base Rate determined
for the applicable Interest Period. Specify percentage (rounded to the nearest
1/100 of 1%) and specify whether "PLUS" or "MINUS".
(5)Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(6)Specify minimum or maximum amount, if any, which the Borrower may accept
(see Section 2.4.4(b)(iv)).
Page 74
80
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Four Year Facility
Credit Agreement dated as of April 22, 1996 among the Borrower, the lenders
from time to time party thereto, Bank of America National Trust and Savings
Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Co-Agents and The First National Bank of Chicago, as Agent for such lenders (as
amended, supplemented or otherwise modified from time to time through the date
hereof, the "Agreement"), irrevocably obligates us to make the Competitive Bid
Loan(s) for which any offer(s) are accepted, in whole or in part. Capitalized
terms used herein and not otherwise defined herein shall have their meanings as
defined in the Agreement.
Very truly yours,
[NAME OF LENDER]
By:______________________
Title:___________________
Page 75
81
EXHIBIT "E"
FORM OF OPINION
April 22, 1996
To: The Agent and the Lenders who are parties
to the Credit Agreement described below.
Gentlemen/Ladies:
I am counsel for Firstar Corporation (the "Borrower"), and have represented
the Borrower in connection with its execution and delivery of a Four Year
Facility Credit Agreement among the Borrower, The First National Bank of
Chicago, individually and as Agent, Bank of America National Trust and Savings
Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Co-Agents and the Lenders named therein, providing for Advances in an aggregate
principal amount not exceeding $125,000,000 at any one time outstanding and
dated as of April 22, 1996 (the "Agreement"). All capitalized terms used in
this opinion and not otherwise defined shall have the meanings attributed to
them in the Agreement.
I have examined the Borrower's articles of incorporation, by-laws,
resolutions, the Loan Documents and such other matters of fact and law which I
deem necessary in order to render this opinion. Based upon the foregoing, it is
my opinion that:
1. Each of the Borrower and its Subsidiaries is a corporation or a
national or state banking association duly incorporated or organized, as
applicable, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted, except where
such failure to obtain all requisite authority would not, with respect to any
individual failure or any failures in the aggregate, have a Material Adverse
Effect.
2. The execution and delivery of the Loan Documents by the Borrower and
the performance by the Borrower of the Obligations have been duly authorized by
all necessary corporate action and proceedings on the part of the Borrower and
will not:
(a) require any consent of the Borrower's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's articles of
incorporation or by-laws or any
Page 76
82
indenture, instrument or agreement binding upon the Borrower or any of its
Subsidiaries; or
(c) result in, or require, the creation or imposition of any Lien
pursuant to the provisions of any indenture, instrument or agreement
binding upon the Borrower or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the
Borrower and constitute legal, valid and binding obligations of the Borrower
enforceable in accordance with their terms except to the extent the enforcement
thereof may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and subject also to the
availability of equitable remedies if equitable remedies are sought.
4. There is no litigation or proceeding against the Borrower or any of its
Subsidiaries which, if adversely determined, could have a Material Adverse
Effect.
5. No approval, authorization, consent, adjudication or order of any
governmental authority, which has not been obtained by the Borrower or any of
its Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement or in connection with the payment
by the Borrower of the Obligations.
This opinion may be relied upon by the Agent, the Lenders and their
participants, assignees and other transferees.
Very truly yours,
__________________
Page 77
83
EXHIBIT "F"
COMPLIANCE CERTIFICATE
To: The Lenders who are parties to the
Credit Agreement described below.
This Compliance Certificate is furnished pursuant to that certain Four
Year Facility Credit Agreement dated as of April 22, 1996 (as amended,
modified, renewed or extended from time to time, the "Agreement") among Firstar
Corporation (the "Borrower"), the lenders party thereto, Bank of America
National Trust and Savings Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Co-Agents and The First National Bank of Chicago, as
Agent for the Lenders. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting
period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
Page 78
84
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this _____ day of__________ , 19___.
_____________
Page 79
85
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of _________________________ with
Sections 6.15 and 6.16 of the Agreement
Section 6.15. Consolidated Non-Performing Assets to Total Equity Capital:
A. Consolidated Non-Performing Assets
1. Loans on nonaccrual status $__________
2. Loans 90 days or more past $__________
due and still accruing
3. Loans and leases restructured and
in compliance with modified terms $__________
4. Other Real Estate Owned $__________
5. Property acquired pursuant to
in substance foreclosures $__________
6. Total Consolidated Non-Performing
Assets (1 + 2 + 3 + 4 + 5) $__________
B. Total Equity Capital $__________
C. Ratio (A6/B) :1.00
----------
D. Maximum Permitted 0.65:1.00
----------
Section 6.16. Debt to Total Equity Capital:
A. Total Indebtedness (Borrower-only)
1. Total deposits $__________
2. Securities sold under agreements
to repurchase $__________
3. Borrowings with an original
maturity of one year or less $__________
4. Other borrowed funds with an
original maturity of greater
than one year $__________
5. Mandatory convertible securities $__________
6. Subordinated notes and debentures $__________
Page 80
86
7. Other liabilities $
---------------------
8. Total debt (1 + 2 + 3 + 4 + 5 + 6 + 7) $
---------------------
B. Total equity capital (Borrower-only) $
---------------------
C. Ratio A/B :1.00
---------------------
D. Maximum Permitted 0.45:1.00
---------------------
Page 81
87
EXHIBIT "G"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The First National Bank of Chicago, as Agent (the "Agent") under the
Credit Agreement Described Below.
Re: Four Year Facility Credit Agreement, dated as of April 22, 1996 (as the
same may be amended or modified, the "Credit Agreement"), among Firstar
Corporation (the "Borrower"), the Agent, Bank of America National Trust
and Savings Association, Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Co-Agents and the Lenders named therein. Capitalized terms
used and not otherwise defined herein shall have the meanings assigned
thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the following
standing money transfer instructions with respect to the proceeds of Advances or
other extensions of credit from time to time until receipt by the Agent of a
specific written revocation of such instructions by the Borrower; provided,
however, that the Agent may otherwise transfer funds as hereafter directed in
writing by the Borrower in accordance with Section 13.1 of the Credit Agreement
or based on any telephonic notice made in accordance with Section 2.11 of the
Credit Agreement.
Facility Identification Number(s)___________________________________________
Customer/Account Name_______________________________________________________
Transfer Funds To___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
For Account No._____________________________________________________________
Reference/Attention To _____________________________________________________
Authorized Officer (Customer Representative) Date __________________________
________________________ ___________________________
(Please Print) Signature
Bank Officer Name Date ______________________
________________________ ___________________________
(Please Print) Signature
(Deliver Completed Form to Credit
Support Staff For Immediate Processing)
Page 82
88
EXHIBIT "H"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between (the
___________________________"Assignor") and ____________________________ (the
"Assignee') is dated as of _________________, 19__. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1
attached hereto ("Schedule 1"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the Credit
Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after a
Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to the Agent. Such Notice of Assignment must include any
consents required to be delivered to the Agent by Section [12.3.1] of the Credit
Agreement. In no event will the Effective Date occur if the payments required to
be made by the Assignee to the Assignor on the Effective Date under Sections 4
and 5 hereof are not made on the proposed Effective Date. The Assignor will
notify the Assignee of the proposed Effective Date no later than the Business
Day prior to the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder and (ii) the Assignor shall relinquish its rights and be released from
its corresponding obligations under the Loan Documents with respect to the
rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment
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of Loans hereunder, (i) the Assignee shall pay the Assignor, on the Effective
Date, an amount equal to the principal amount of the portion of all Floating
Rate Loans assigned to the Assignee hereunder and (ii) with respect to each
Fixed Rate Loan made by the Assignor and assigned to the Assignee hereunder
which is outstanding on the Effective Date, (a) on the last day of the Interest
Period therefor or (b) on such earlier date agreed to by the Assignor and the
Assignee or (c) on the date on which any such Fixed Rate Loan either becomes due
(by acceleration or otherwise) or is prepaid (the date as described in the
foregoing clauses (a), (b) or (c) being hereinafter referred to as the "Payment
Date"), the Assignee shall pay the Assignor an amount equal to the principal
amount of the portion of such Fixed Rate Loan assigned to the Assignee which is
outstanding on the Payment Date. If the Assignor and the Assignee agree that the
Payment Date for such Fixed Rate Loan shall be the Effective Date, they shall
agree to the interest rate applicable to the portion of such Loan assigned
hereunder for the period from the Effective Date to the end of the existing
Interest Period applicable to such Fixed Rate Loan (the "Agreed Interest Rate")
and any interest received by the Assignee in excess of the Agreed Interest Rate
shall be remitted to the Assignor. In the event interest for the period from the
Effective Date to but not including the Payment Date is not paid by the Borrower
with respect to any Fixed Rate Loan sold by the Assignor to the Assignee
hereunder, the Assignee shall pay to the Assignor interest for such period on
the portion of such Fixed Rate Loan sold by the Assignor to the Assignee
hereunder at the applicable rate provided by the Credit Agreement. In the event
a prepayment of any Fixed Rate Loan which is existing on the Payment Date and
assigned by the Assignor to the Assignee hereunder occurs after the Payment Date
but before the end of the Interest Period applicable to such Fixed Rate Loan,
the Assignee shall remit to the Assignor the excess of the prepayment penalty
paid with respect to the portion of such Fixed Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Agent with respect to Fixed Rate Loans prior to the Payment Date and (ii) any
amounts of interest on Loans and fees received from the Agent which relate to
the portion of the Loans assigned to the Assignee hereunder for periods prior to
the Effective Date, in the case of Floating Rate Loans or fees, or the Payment
Date, in the case of Fixed Rate Loans, and not previously paid by the Assignee
to the Assignor.] ******* In the event that either party hereto receives any
payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to the
other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor a
fee on each day on which a payment of interest or [commitment] fees is made
under the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or facility fees for the period
prior to the Effective Date or, in the case of Fixed Rate Loans, the Payment
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
Section 4 hereof). The amount of such fee shall be the difference between (i)
the interest or fee, as applicable, paid with respect
________________________
******* Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
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to the amounts assigned to the Assignee hereunder and (ii) the interest or fee,
as applicable, which would have been paid with respect to the amounts assigned
to the Assignee hereunder if each interest rate was _____ of 1% less than the
interest rate paid by the Borrower or if the facility fee was _____ of 1%
less than the facility fee paid by the Borrower, as applicable. In addition,
the Assignee agrees to pay ____% of the recordation fee required to be paid
to the Agent in connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR: LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement, (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under
ERISA, [and (vii) attaches the forms prescribed by the Internal Revenue Service
of the United States certifying that the Assignee is entitled to receive
payments under the
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Loan Documents without deduction or withholding of any United States federal
income taxes].*
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section [12.3.1] of the Credit Agreement to assign
the rights which are assigned to the Assignee hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any
of the terms and conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Loan Documents has been obtained and (ii) unless the prior
written consent of the Assignor is obtained, the Assignee is not thereby
released from its obligations to the Assignor hereunder, if any remain
unsatisfied, including, without limitation, its obligations under [Sections 4,
5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Commitment occurs between the date of this Assignment Agreement and the
Effective Date, the percentage interest specified in Item 3 of Schedule 1 shall
remain the same, but the dollar amount purchased shall be recalculated based on
the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above
written.
[NAME OF ASSIGNOR]
_____________
* to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
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92
By : _________________________
Title:________________________
_________________________
_________________________
[NAME OF ASSIGNEE]
By: _________________________
Title:_______________________
_________________________
_________________________
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SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Four Year Facility Credit
Agreement, dated as of April 22, 1996, among Firstar Corporation, the
Lenders, Bank of America National Trust and Savings Association,
Chemical Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Co-
Agents and The First National Bank of Chicago, as Agent
2. Date of Assignment Agreement: ____________, 19__
3. Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility
1* 2* *3 *4
________ ________ ________ ________
a. Total of Commitments
(Loans)** under
Credit Agreement $_____ $_____ $_____ $______
b. Assignee's Percentage
of each Facility purchased
under the Assignment
Agreement*** _____% _____% ______% ______%
c. Amount of Assigned Share in
each Facility purchased under
the Assignment
Agreement $_____ $_____ $_____ $______
4. Assignee's aggregate (Loan
Amount)** Commitment amount
purchased hereunder: $_____
5. Proposed Effective Date: ______
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ________________________ By: ______________________
Title: _____________________ Title: ___________________
* Insert specific facility names per Credit Agreement
** If a Commitment has been terminated, insert outstanding Loans in
place of Commitment
*** Percentage taken to 10 decimal places
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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which
must include notice address for the Assignor and the Assignee
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EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
_____________, 19 __
To: [NAME OF BORROWER]*
______________
______________
[NAME OF AGENT]
______________
______________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
****[the Borrower and]**** the Agent pursuant to Section 12.3.2 of the Credit
Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of _____, 19 _ (the "Assignment"), pursuant to which, among
other things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement relating to the
facilities listed in Item 3 of Schedule 1. The Effective Date of the Assignment
shall be the later of the date specified in Item 5 of Schedule 1 or two
Business Days (or such shorter period as agreed to by the Agent) after this
Notice of Assignment and any consents and fees required by Sections 12.3.1 and
12.3.2 of the Credit Agreement have been delivered to the Agent, provided that
the Effective Date shall not occur if any condition precedent agreed to by the
Assignor and the Assignee has not been satisfied.
------------------
*To be included only if consent must be obtained from the Borrower pursuant to
Section 12.3.1 of the Credit Agreement.
4. The Assignor and the Assignee hereby give to the Borrower and the
Agent notice of the assignment and delegation referred to herein. The
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Assignor will confer with the Agent before the date specified in Item 5 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment Agreement
does not become effective on any proposed Effective Date as a result of the
failure to satisfy the conditions precedent agreed to by the Assignor and the
Assignee. At the request of the Agent, the Assignor will give the Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or before the
Effective Date the processing fee of $2,500 required by Section 12.3.2 of the
Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Agent prepare and cause the Borrower to
execute and deliver new Notes or, as appropriate, replacements notes, to the
Assignor and the Assignee. The Assignor and, if applicable, the Assignee each
agree to deliver to the Agent the original Note received by it from the
Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment instructions are
set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent under the Loan
Documents in accordance with the terms thereof. The Assignee acknowledges that
the Agent has no duty to supply information with respect to the Borrower or the
Loan Documents to the Assignee until the Assignee becomes a party to the Credit
Agreement.*
-----------------
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
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NAME OF ASSIGNOR NAME OF ASSIGNEE
By:_____________________________ By:_____________________________
Title:__________________________ Title:__________________________
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT] BY [NAME OF BORROWER]
By: ________________________ By: _________________________
Title: ________________________ Title: _________________________
[Attach photocopy of Schedule 1 to Assignment]
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SCHEDULE "1"
LITIGATION
(See Section 5.7)
None.
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Schedule 2 to Credit Agreement among Firstar Corporations The First National
Bank of Chicago as Agent ant Lenders named therein.
Percentage Jurisdiction in which
Name of Subsidiary Ownership Incorporated or Organized
------------------ ---------- -------------------------
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇% ▇▇▇▇▇▇ ▇▇▇▇▇▇
1 Firstar Bank Appleton 100% Wisconsin
1 Firstar Bank Fond du Lac, N.A. 100% United States
4 Firstar Bank, F.S.B. 100% United States
1 Firstar Bank Green Bay 100% Wisconsin
1 Firstar Bank Wisconsin 100% Wisconsin
1 Firstar Bank Oshkosh, N.A. 100% United States
1 Firstar Bank Sheboygan, N.A. 100% United States
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇% ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇% ▇▇▇▇▇▇ ▇▇▇▇▇▇
4 Firstar Bank Burlington, N.A. 100% United States
2 Firstar Bank of Minnesota, N.A. 100% United States
1 Firstar Bank Illinois 100% Illinois
1 Firstar Credit Card Bank, N.A. 100% United States
1 FCSB Bank 100% Illinois
3 Firstar Metropolitan Bank & Trust 100% Arizona
6 Firstar Corporation of Wisconsin 100% Wisconsin
6 Firstar Corporation of Minnesota 100% Minnesota
6 Firstar Corporation of Arizona 100% Arizona
6 Firstar Corporation of Iowa 100% Iowa
1 Firstar Trust Company 99.95% Wisconsin
1 Firstar Trust Company of Florida, N.A. 100% United States
6 Firstar Investment Research & Management Company 100% Wisconsin
6 Firstar Insurance Services, Inc. 100% Wisconsin
5 Elan Investment Services, Inc. 100% Wisconsin
6 Elan Life Insurance Company, Inc. 79.00% Arizona
6 Elan Title Services. Inc. 100% Wisconsin
5 Firstar Community Investment Corporation 100% Wisconsin
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6 Firstar Development Corporation 100% Delaware
5 Firstar Leasing Services Corporation 100% Wisconsin
5 FM Properties of Wisconsin, Inc. 100% Wisconsin
5 CSFM Corporation 100% Wisconsin
5 Firstar Home Mortgage Corporation l00% Wisconsin
5 Firstar Information Services Corporation 100% Wisconsin
4 Banks of Iowa Capital Corporation 100% Iowa
5 DPC of Milwaukee, Inc. 100% Wisconsin
5 Mid States Financial Corp. 100% Illinois
1 First Colonial Mortgage Corporation 100% Illinois
Appleton Capital Corporation 100% Nevada
Fond du Lac Capital Corporation 100% Nevada
Green Bay Capital Corporation 100% Nevada
Milwaukee Capital Corporation 100% Nevada
Oshkosh Capital Corporation 100% Nevada
Sheboygan Capital Corporation 100% Nevada
Wisconsin Capital Corporation 100% Nevada
Notes
1 Subsidiary of Firstar Corporation of Wisconsin
2 Subsidiary of Firstar Corporation of Minnesota
3 Subsidiary of Firstar Corporation of Arizona
4 Subsidiary of Firstar Corporation of Iowa
5 Subsidiary of Firstar Bank Milwaukee, N.A.
6 Subsidiary of Firstar Corporation
All Capital Corporations are subsidiaries of their respective banks.
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