EXHIBIT 10.13
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CREDIT AGREEMENT
Dated as of January 3, 1995
between
FOURTH FINANCIAL CORPORATION
and
NATIONSBANK OF TEXAS, N.A.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . 1
1.2 Other Interpretive Provisions . . . . . . . . . . . . . 14
1.3 Accounting Principles . . . . . . . . . . . . . . . . . 15
ARTICLE II
THE CREDITS. . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.1 Amounts and Terms of Commitment . . . . . . . . . . . . 15
2.2 Note. . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3 Procedure for Borrowing.. . . . . . . . . . . . . . . . 16
2.4 Conversion and Continuation Elections . . . . . . . . . 16
2.5 Voluntary Termination or Reduction of Commitment. . . . 17
2.6 Optional Prepayments. . . . . . . . . . . . . . . . . . 17
2.7 Repayment . . . . . . . . . . . . . . . . . . . . . . . 18
2.8 Termination Date. . . . . . . . . . . . . . . . . . . . 18
2.9 Interest. . . . . . . . . . . . . . . . . . . . . . . . 18
2.10 Facility Fees. . . . . . . . . . . . . . . . . . . . . 19
2.11 Computation of Fees and Interest . . . . . . . . . . . 19
2.12 Payments by the Company. . . . . . . . . . . . . . . . 20
2.13 Bank of America Agreement. . . . . . . . . . . . . . . 20
2.14 Maximum Interest . . . . . . . . . . . . . . . . . . . 20
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . . . . . . 22
3.1 Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Illegality. . . . . . . . . . . . . . . . . . . . . . . 23
3.3 Increased Costs and Reduction of Return . . . . . . . . 23
3.4 Funding Losses. . . . . . . . . . . . . . . . . . . . . 24
3.5 Inability to Determine Rates. . . . . . . . . . . . . . 24
3.6 Survival. . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 25
4.1 Conditions of Initial Loans . . . . . . . . . . . . . . 25
(a) Credit Agreement and Note . . . . . . . . . . . . 25
(b) Resolutions; Incumbency . . . . . . . . . . . . . 25
(c) Organization Documents; Good Standing . . . . . . 25
(d) Legal Opinion . . . . . . . . . . . . . . . . . . 26
(e) Payment of Fees . . . . . . . . . . . . . . . . . 26
(f) Certificate . . . . . . . . . . . . . . . . . . . 26
(g) Other Documents . . . . . . . . . . . . . . . . . 26
4.2 Conditions to All Borrowings. . . . . . . . . . . . . . 26
(a) Notice of Borrowing . . . . . . . . . . . . . . . 26
(b) Continuation of Representations and Warranties. . 27
(c) No Existing Default . . . . . . . . . . . . . . . 27
ARTICLE V
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 27
5.1 Corporate Existence and Power . . . . . . . . . . . . . 27
5.2 Corporate Authorization; No Contravention . . . . . . . 27
5.3 Governmental Authorization. . . . . . . . . . . . . . . 28
5.4 Binding Effect. . . . . . . . . . . . . . . . . . . . . 28
5.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . 28
5.6 No Default. . . . . . . . . . . . . . . . . . . . . . . 28
5.7 ERISA Compliance. . . . . . . . . . . . . . . . . . . . 29
5.8 Use of Proceeds; Margin Regulations . . . . . . . . . . 29
5.9 Title to Properties . . . . . . . . . . . . . . . . . . 29
5.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 30
5.11 Financial Condition. . . . . . . . . . . . . . . . . . 30
5.12 Environmental Matters. . . . . . . . . . . . . . . . . 30
5.13 Regulated Entities . . . . . . . . . . . . . . . . . . 31
5.14 No Burdensome Restrictions . . . . . . . . . . . . . . 31
5.15 Copyrights, Patents, Trademarks and Licenses, etc. . . 31
5.16 Subsidiaries . . . . . . . . . . . . . . . . . . . . . 31
5.17 Insurance. . . . . . . . . . . . . . . . . . . . . . . 31
5.18 Full Disclosure. . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI
AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 32
6.1 Financial Statements. . . . . . . . . . . . . . . . . . 32
6.2 Certificates; Other Information . . . . . . . . . . . . 33
6.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . 33
6.4 Preservation of Corporate Existence, Etc. . . . . . . . 35
6.5 Maintenance of Property . . . . . . . . . . . . . . . . 35
6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . 35
6.7 Payment of Obligations. . . . . . . . . . . . . . . . . 35
6.8 Compliance with Laws. . . . . . . . . . . . . . . . . . 36
6.9 Compliance with ERISA . . . . . . . . . . . . . . . . . 36
6.10 Inspection of Property and Books and Records . . . . . 36
6.11 Environmental Laws . . . . . . . . . . . . . . . . . . 36
6.12 Use of Proceeds. . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII
NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 37
7.1 Liens. . . . . . . . . . . . . . . . . . . . . . . . . 37
7.2 Consolidation, Merger, etc . . . . . . . . . . . . . . 38
7.3 Asset Dispositions, etc. . . . . . . . . . . . . . . . 38
7.4 Transactions with Affiliates . . . . . . . . . . . . . 39
7.5 Negative Pledges, Restrictive Agreements, etc. . . . . 39
7.6 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . 39
7.7 Change in Business . . . . . . . . . . . . . . . . . . 39
7.8 Accounting Changes . . . . . . . . . . . . . . . . . . 39
7.9 Financial Covenants. . . . . . . . . . . . . . . . . . 40
ARTICLE VIII
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 40
8.1 Event of Default. . . . . . . . . . . . . . . . . . . . 40
(a) Non-Payment . . . . . . . . . . . . . . . . . . . 40
(b) Representation or Warranty. . . . . . . . . . . . 40
(c) Other Defaults. . . . . . . . . . . . . . . . . . 40
(d) Cross-Default . . . . . . . . . . . . . . . . . . 41
(e) Insolvency; Voluntary Proceedings . . . . . . . . 41
(f) Involuntary Proceedings . . . . . . . . . . . . . 41
(g) ERISA . . . . . . . . . . . . . . . . . . . . . . 42
(h) Monetary Judgments. . . . . . . . . . . . . . . . 42
(i) Non-Monetary Judgments. . . . . . . . . . . . . . 42
(j) Change of Control . . . . . . . . . . . . . . . . 42
8.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . 42
8.3 Rights Not Exclusive. . . . . . . . . . . . . . . . . . 43
ARTICLE IX
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 43
9.1 Amendments and Waivers. . . . . . . . . . . . . . . . . 43
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . 43
9.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . 44
9.4 Costs and Expenses. . . . . . . . . . . . . . . . . . . 44
9.5 Indemnity . . . . . . . . . . . . . . . . . . . . . . . 44
9.6 Successors and Assigns. . . . . . . . . . . . . . . . . 45
9.7 Set-off . . . . . . . . . . . . . . . . . . . . . . . . 45
9.8 Automatic Debits of Fees. . . . . . . . . . . . . . . . 45
9.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . 46
9.10 Severability . . . . . . . . . . . . . . . . . . . . . 46
9.11 No Third Parties Benefited . . . . . . . . . . . . . . 46
9.12 Governing Law and Jurisdiction . . . . . . . . . . . . 46
9.13 Waiver of Jury Trial . . . . . . . . . . . . . . . . . 46
9.14 Entire Agreement . . . . . . . . . . . . . . . . . . . 47
SCHEDULES [OMITTED]
Schedule 5.7 ERISA Compliance
Schedule 5.11 Permitted Liabilities
Schedule 5.12 Environmental Matters
Schedule 5.15 Copyrights, etc.
Schedule 5.16 Subsidiaries and Minority Interests
Schedule 5.17 Insurance Matters
Schedule 9.2 Lending Office; Addresses for Notices
EXHIBITS [OMITTED]
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Borrower's Counsel
Exhibit E Form of Promissory Note
Exhibit F Form of Commitment Termination Extension Date
Request
Exhibit G Form of Quarterly Compliance Certificate
CREDIT AGREEMENT
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This CREDIT AGREEMENT is entered into as of January 3, 1995,
between FOURTH FINANCIAL CORPORATION, a Kansas corporation (the
"Company"), and NATIONSBANK OF TEXAS, N.A., a _________________
corporation (the "Bank").
WHEREAS, the Bank has agreed to make available to the Company
a revolving credit facility upon the terms and conditions set forth
in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as
follows:
ARTICLE I
DEFINITIONS
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1.1 Certain Defined Terms. The following terms have the
following meanings:
"Adjusted Total Assets" shall have the meaning set forth
on the date hereof under applicable regulations of any
regulatory agency having authority on the date hereof as such
regulations are applicable to the Company, or if such
regulations are amended hereafter to define Adjusted Total
Assets more restrictively, as set forth in such later amended
regulations.
"Affiliate" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. A Person
shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of the
other Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agreement" means this Credit Agreement.
"Applicable Margin" means
(i) with respect to Base Rate Loans, 0%;
(ii) with respect to Offshore Rate Loans at such
time as the Company is Well Capitalized, 0.375%; and
(iii) with respect to Offshore Rate Loans at such
time as the Company is not Well Capitalized, 0.50% at any
time that the principal amount of the Loans outstanding
is less than 50% of the Commitment or 0.625% at any other
time.
"Attorney Costs" means and includes all fees and
disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all
disbursements of internal counsel.
"Available Commitment" means $25,000,000 on the date
hereof and thereafter until such date as the outstanding
principal amount of the Loans exceeds $25,000,000; and from
the date the outstanding principal amount of the Loans exceeds
$25,000,000 and thereafter, the Available Commitment shall
equal the Commitment.
"Bank" has the meaning specified in the introductory
clause hereto.
"Bank of America Agreement" is defined in Section 2.13.
"Bank's Payment Office" means the address for payments
set forth on the signature page hereto in relation to the
Bank, or such other address as the Bank may from time to time
specify.
"Bank Subsidiaries" mean Bank IV Kansas N.A., Bank IV
Oklahoma N.A. and any other banking institution which may be
a Subsidiary of the Company from time to time.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of: (a)
0.50% per annum above the latest Federal Funds Rate; and (b)
the rate of interest in effect for such day as publicly
announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is
a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such
announced rate.)
Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based
on the Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.3.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in Chicago or
San Francisco are authorized or required by law to close and,
if the applicable Business Day relates to any Offshore Rate
Loan, means such a day on which dealings are carried on in the
applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, of general
application, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Change of Control" means the acquisition by any Person,
or two or more Persons acting in concert, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of
1934) of 20% or more of the outstanding shares of voting stock
of the Company.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.1 are satisfied or waived by
the Bank (or, in the case of subsection 4.1(e), waived by the
Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment" has the meaning specified in Section 2.1.
"Commitment Termination Date Extension Request" means a
request substantially in the form of Exhibit F attached
hereto, duly executed by a Responsible Officer of the Company.
"Compliance Certificate" means a certificate
substantially in the form of Exhibit C.
"Contingent Liability" - means any agreement, undertaking
or arrangement by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds
for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other
Person (other than by endorsements of instruments in the
course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein)
be deemed to be the outstanding principal amount (or maximum
principal amount, if larger) of the debt, obligation or other
liability guaranteed thereby.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is
bound.
"Conversion/Continuation Date" means any date on which,
under Section 2.4, the Company (a) converts Loans of one Type
to another Type, or (b) continues as Loans of the same Type,
but with a new Interest Period, Loans having Interest Periods
expiring on such date.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an
Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of
the United States.
"Double Leverage Ratio" means the ratio of
(a) equity investments of the Company in its
Subsidiaries
to
(b) total equity capital of the Company;
in each case as reported in the Company's FRY-9LP financial
statements.
"Environmental Claims" means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability or responsibility for violation
of any Environmental Law, or for release or injury to the
environment.
"Environmental Laws" means all federal, state or local
laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities,
in each case relating to environmental, health, safety and
land use matters.
"ERISA" means the Employee Retirement Income Security Act
of 1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control with the Company within
the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating
to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect
to a Pension Plan; (b) the failure to make a required
contribution to a Pension Plan if such failure is sufficient
to give rise to a Lien under Section 302(f) of ERISA; (c) a
withdrawal by the Company or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations
which is treated as such a withdrawal under Section 4062(e) of
ERISA; (d) a complete or partial withdrawal by the Company or
any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (e) the filing
of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (f) an event
or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; or (g) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified
in the definition of "Offshore Rate".
"Event of Default" means any of the events or
circumstances specified in Section 8.1.
"Exchange Act" means the Securities and Exchange Act of
1934, and regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation,
and any Governmental Authority succeeding to any of its
principal functions.
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Business Day opposite
the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Bank of the rates for the
last transaction in overnight Federal funds arranged prior to
9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City
selected by the Bank.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of
its principal functions.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within
the U.S. accounting profession), which are applicable to the
circumstances as of the Closing Date.
"Governmental Authority" means any nation or government,
any state or other political subdivision thereof, any central
bank (or similar monetary or regulatory authority) thereof,
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise,
by any of the foregoing.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative
to the face amount of all letters of credit, whether or not
drawn, and banker's acceptances issued for the account of such
Person;
(c) all obligations of such Person as lessee under
leases which have been or should be, in accordance with GAAP,
recorded as capitalized lease liabilities;
(d) all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of the
balance sheet of such Person as of the date at which
Indebtedness is to be determined;
(e) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services, and
indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or
other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is
limited in recourse; and
(f) all Contingent Liabilities of such Person in respect
of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a
joint venturer.
"Indemnified Liabilities" has the meaning specified in
Section 9.5.
"Indemnified Person" has the meaning specified in Section
9.5.
"Independent Auditor" has the meaning specified in
subsection 6.1(a).
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief
of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors;
undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.
"Interest Payment Date" means, as to any Offshore Loan,
the last day of each Interest Period applicable to such Loan
and, as to any Base Rate Loan, the last Business Day of each
month, provided, however, that if any Interest Period for an
Offshore Rate Loan exceeds three months, the date that falls
three months after the beginning of such Interest Period and
after each Interest Payment Date thereafter is also an
Interest Payment Date.
"Interest Period" means as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted
into or continued as an Offshore Rate Loan, and ending on the
date one, two, three or six months thereafter as selected by
the Company in its Notice of Borrowing or Notice of
Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, that Interest Period
shall be extended to the following Business Day unless
the result of such extension would be to carry such
Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of
such Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the Revolving Termination Date.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
"Lending Office" means the office or offices of the Bank
specified as its "Lending Office" or "Domestic Lending Office"
or "Offshore Lending Office", as the case may be, on Schedule
9.2 ("Lending Offices, etc."), or such other office or offices
as the Bank may from time to time notify the Company.
"Leverage Ratio" means with respect to the Company and
its Subsidiaries on a consolidated basis, at any time, the
ratio of its Tier One Capital to its Adjusted Total Assets.
"Lien" means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or
preferential arrangement of any kind or nature whatsoever in
respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a capital
lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which
such lien relates as debtor, under the Uniform Commercial Code
or any comparable law) and any contingent or other agreement
to provide any of the foregoing, but not including the
interest of a lessor under an operating lease.
"Loan" means an extension of credit by the Bank to the
Company under Article II, and may be a Base Rate Loan or an
Offshore Rate Loan (each, a "Type" of Loan).
"Loan Documents" means this Agreement, the Note and all
other documents delivered to the Bank in connection herewith.
"Loans Outstanding" means, for any Person, the sum of
loans and direct lease financings, net of unearned income, by
such Person and its Subsidiaries on a consolidated basis.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means a material adverse change
in, or a material adverse effect upon, the operations,
business, properties, condition (financial or otherwise) or
prospects of the Company or the Company and its Subsidiaries
taken as a whole; for the purposes of this definition, an
adverse effect or adverse change will be deemed material if
there is a reasonable likelihood that it would reduce the
Company's equity as of any date of determination by 10% or
more below the Company's equity as of the end of its most
recent fiscal year.
"Multiemployer Plan" means a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA, with respect to
which the Company or any ERISA Affiliate may have any
liability.
"Non-Performing Assets" means, as applied to Loans
Outstanding of a Person, (i) Loans Outstanding that are not
accruing interest, have been classified as renegotiated
pursuant to guidelines established by the Federal Financial
Institutions Council or are 90 days or more past due in the
payment of principal or interest plus (ii) Other Real Estate
Owned by such Person minus (iii) student loan obligations
which are serviced by a third party servicer and which are
backed by the full faith and credit of the United States
Government or any agency thereof, whether such guaranty is for
the benefit of such third party servicer or such Person or any
of its Subsidiaries, provided, however, that this exclusion
shall not apply to any student loan with respect to which a
third party servicer has failed to perform the terms and
conditions of its servicing agreement with such Person or any
of its Subsidiaries.
"Non-Performing Ratio" means, for any Person, the ratio
of such Person's
(a) Non-Performing Assets outstanding
to
(b) Loans Outstanding plus Other Real Estate Owned.
"Note" means a promissory note executed by the Company in
favor of the Bank pursuant to subsection 2.2, in substantially
the form of Exhibit E.
"Notice of Borrowing" means the Company's irrevocable
telephonic notice of borrowing together with (if requested by
the Bank) prompt confirmation thereof in writing in
substantially the form of Exhibit A.
"Notice of Conversion/Continuation" means the Company's
irrevocable telephonic notice of conversion or continuation
together with (if required by the Bank) prompt confirmation
thereof in writing in substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document owing by the Company to the Bank, or any Indemnified
Person, whether direct or indirect (including those acquired
by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising.
"Offshore Rate" means, for any Interest Period, with
respect to Offshore Rate Loans comprising part of the same
Borrowing, the rate of interest per annum (rounded upward to
the next 1/16th of 1%) determined by the Bank as follows:
Offshore Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day
for any Interest Period the maximum reserve percentage
(expressed as a decimal, rounded upward to the next
1/100th of 1%) in effect on such day (whether or not
applicable to the Bank) under regulations issued from
time to time by the FRB for determining the maximum
reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum
determined by the Bank to be the arithmetic mean (rounded
upward to the next 1/16th of 1%) of the rates of interest
per annum notified to the Bank as the rate of interest at
which dollar deposits in the approximate amount of the
amount of the Loan to be made or continued as, or
converted into, an Offshore Rate Loan by the Bank and
having a maturity comparable to such Interest Period
would be offered to major banks in the London interbank
market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement
of such Interest Period.
"Offshore Rate Loan" means a Loan that bears interest
based on the Offshore Rate.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the
rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions
of the board of directors (or any committee thereof) of such
corporation.
"Other Real Estate Owned" of a Person means "other real
estate owned" as shown in the financial statements of such
Person prepared in accordance with GAAP.
"Other Taxes" means any present or future stamp or
documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Loan
Documents.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any Governmental Authority succeeding to any of its principal
functions under ERISA.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA, other
than a Multiemployer Plan, with respect to which the Company
or any ERISA Affiliate may have any liability.
"Permitted Liens" has the meaning specified in Section
7.1.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company sponsors or maintains
or to which the Company makes, is making, or is obligated to
make contributions and includes any Pension Plan.
"Quarterly Compliance Certificate" means a certificate
substantially in the form of Exhibit G.
"Reportable Event" means, any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement
under ERISA has been waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority,
in each case applicable to or binding upon the Person or any
of its property or to which the Person or any of its property
is subject.
"Reserve Commitment" means on the date hereof $25,000,000
and thereafter an amount equal to the Commitment minus the
Available Commitment.
"Responsible Officer" means relative to the Company,
those of its officers whose signatures and incumbency shall
have been certified to the Bank pursuant to Section 4.1.
"Revolving Termination Date" means the earlier to occur
of:
(a) January 2, 1996, as such date may be extended
pursuant to Section 2.8 hereof; and
(b) the date on which the Commitment terminates in
accordance with the provisions of this Agreement.
"Risk Weighted Assets" means, for any Person, the value
of the assets of such Person and its Subsidiaries, including
adjusted off-balance sheet items, all as calculated pursuant
to risk based capital guidelines in effect from time to time
with the applicable regulatory agency.
"SEC" means the Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its principal
functions.
"Subsidiary" of a Person means any corporation,
association, partnership, joint venture or other business
entity of which more than 50% of the voting stock or other
equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly
by the Person, or one or more of the Subsidiaries of the
Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Company.
"Taxes" means any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of
the Bank, such taxes (including income taxes or franchise
taxes) as are imposed on or measured by the Bank's net income
by the jurisdiction (or any political subdivision thereof)
under the laws of which the Bank is organized or maintains a
lending office.
"Tier One Capital" shall have the meaning set forth on
the date hereof under applicable regulations of any regulatory
agency having authority on the date hereof as such regulations
are applicable to the Company, or if such regulations are
amended hereafter to define Tier One Capital more
restrictively, as set forth in such later definition.
"Tier Two Capital" shall have the meaning set forth on
the date hereof under applicable regulations of any regulatory
agency having authority on the date hereof as such regulations
are applicable to the Company, or if such regulations are
amended hereafter to define Tier Two Capital more
restrictively, as set forth in such later definition.
"Type" has the meaning specified in the definition of
"Loan."
"Unfunded Pension Liability" means the excess of a Plan's
accumulated benefit obligations (as defined by GAAP), over the
current fair value of that Plan's assets.
"United States" and "U.S." each means the United States
of America.
"Well-Capitalized" shall have the meaning promulgated by
any regulatory agency having authority on the date hereof, as
applicable to the Company, or if not applicable to the Company
per se, as applicable to the Bank Subsidiaries applied to the
Company as if so applicable; provided, however, that if at any
time requirements of the designation "Well-Capitalized"
promulgated by such regulatory authority shall be modified so
as to define the requirements for such designation more
restrictively than the existing requirements, then such
requirements set forth herein shall be changed to reflect such
later modification; provided, further, if at any time such
regulatory authority shall determine that such Person is not
"Well Capitalized", (within the meaning of the regulations
promulgated by such authority then in effect), such Person
shall be deemed not to be Well-Capitalized for purposes of
this Agreement, without regard to whether such Person shall
meet the requirements of the definition of such term set forth
in this Agreement as in effect at such time.
1.2 Other Interpretive Provisions. (a) The meanings of
defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each
mean "to but excluding", and the word "through" means "to and
including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute or
regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the
interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate
the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in
accordance with their terms.
(g) This Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to
the Bank and the Company and are the products of all parties.
Accordingly, they shall not be construed against the Bank merely
because of the Bank's involvement in their preparation.
1.3 Accounting Principles. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein
shall be construed, and all financial computations required under
this Agreement shall be made, in accordance with GAAP, consistently
applied.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
-----------
2.1 Amounts and Terms of Commitment. The Bank agrees, on the
terms and conditions set forth herein, to make loans to the Company
(each such loan, a "Revolving Loan") from time to time on any
Business Day during the period from the Closing Date to the
Revolving Termination Date, in an aggregate amount not to exceed at
any time outstanding $50,000,000, (such amount, as the same may be
reduced under Section 2.5, the Bank's "Commitment"); provided,
however, that, after giving effect to any borrowing of a Revolving
Loan, the aggregate principal amount of all outstanding Revolving
Loans shall not at any time exceed the Commitment. Within the
limits of the Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this Section 2.1,
prepay under Section 2.6 and reborrow under this Section 2.1.
2.2 Note. The Loans made by the Bank shall be evidenced by
a Note. The Bank shall endorse on the schedules annexed to the
Note the date, amount and maturity of each Loan made by it and the
amount of each payment of principal made by the Company with
respect thereto. The Bank is irrevocably authorized by the Company
to endorse the Note and the Bank's record shall be conclusive
absent manifest error; provided, however, that the failure of the
Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under the Note to the Bank.
2.3 Procedure for Borrowing. Each borrowing shall be made
upon receipt of a Notice of Borrowing by the Bank (which notice
must be received by the Bank prior to 10:00 a.m. (Chicago time) (i)
three Business Days prior to the requested Borrowing Date, in the
case of Offshore Rate Loans; and (ii) on the requested Borrowing
Date, in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in
an aggregate minimum amount of $5,000,000 or any multiple
of $1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) the duration of the Interest Period applicable
to such Loans included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate
Loans, such Interest Period shall be three months.
2.4 Conversion and Continuation Elections. (a) The Company
may, by delivering a Notice of Conversion/Continuation to the Bank
in accordance with subsection 2.4(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable
Interest Period, in the case of any other Type of Loans, to
convert any such Loans (or any part thereof in an amount not
less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof) into Loans of any other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods
expiring on such day (or any part thereof in an amount not
less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate
Loans in respect of any borrowing is reduced, by payment,
prepayment, or conversion of part thereof to be less than
$1,000,000, such Offshore Rate Loans shall automatically convert
into Base Rate Loans.
(b) The Company shall deliver a Notice of Conversion/
Continuation to be received by the Bank not later than 10:00 a.m.
(Chicago time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into
or continued as Offshore Rate Loans; and (ii) on the Conversion/
Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be
converted or renewed;
(C) the Type of Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into
Base Rate Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Loans, the Company has failed to select
timely a new Interest Period to be applicable to such Offshore Rate
Loans, or if any Default or Event of Default then exists, the
Company shall be deemed to have elected to convert such Offshore
Rate Loans into Base Rate Loans effective as of the expiration date
of such Interest Period.
(d) Unless the Bank otherwise agrees, during the
existence of a Default or Event of Default, the Company may not
elect to have a Loan converted into or continued as an Offshore
Rate Loan.
2.5 Voluntary Termination or Reduction of Commitment. The
Company may, upon not less than five Business Days' prior notice
to the Bank, terminate the Commitment, or permanently reduce the
Commitment by an aggregate minimum amount of $5,000,000 or any
multiple of $5,000,000 in excess thereof; unless, after giving
effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of
the Loans would exceed the amount of the Commitment then in
effect. Once reduced in accordance with this Section , the
Commitment may not be increased. All accrued facility fees to,
but not including the effective date of any reduction or
termination of the Commitment, shall be paid on the effective date
of such reduction or termination.
2.6 Optional Prepayments. Subject to Section 3.4, the
Company may, at any time or from time to time, upon notice to the
Bank, ratably prepay Loans in whole or in part, in minimum amounts
of $5,000,000 and an integral multiple of $1,000,000. Such notice
of prepayment shall specify the date and amount of such prepayment
and the Types of Loans to be prepaid. If such notice is given by
the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable
on the date specified therein, together with accrued interest to
each such date on the amount prepaid and any amounts required
pursuant to Section 3.4.
2.7 Repayment. The Company shall repay to the Bank on the
Revolving Termination Date the aggregate principal amount of Loans
outstanding on such date.
2.8 Termination Date. The Commitment shall terminate and the
Bank shall be relieved of its obligations to make any Loan on the
Revolving Termination Date. The Company may from time to time
request an extension of the Revolving Termination Date by
executing and delivering to the Bank a Commitment Termination Date
Extension Request at least 30 but not more than 40 days prior to
the then current Revolving Termination Date. The Revolving
Termination Date shall be so extended if the Company shall have
received from the Bank on or prior to the 10th day preceding the
then current Revolving Termination Date a duly executed
counterpart of such Commitment Termination Date Extension Request;
provided, that any such extension shall take effect as of the date
on which the Bank shall have notified the Company of the approval
thereof and the Revolving Termination Date shall be extended to a
date 364 days from said effectiveness. The Bank may in its sole
and absolute discretion withhold its consent to any such
Commitment Termination Date Extension Request.
2.9 Interest. (a) Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing
Date at a rate per annum equal to the Offshore Rate or the Base
Rate, as the case may be (and subject to the Company's right to
convert to other Types of Loans under Section 2.4), plus the
Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Loans under Section 2.6 for the portion
of the Loans so prepaid and upon payment (including prepayment) in
full thereof and, during the existence of any Event of Default,
interest shall be paid on demand of the Bank.
(c) Notwithstanding subsection (a) of this Section,
while any Event of Default exists or after acceleration, the
Company shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the principal
amount of all outstanding Loans, at a rate per annum which is
determined by adding 2% per annum to the Applicable Margin then in
effect for such Loans; provided, however, that, on and after the
expiration of any Interest Period applicable to any Offshore Rate
Loan outstanding on the date of occurrence of such Event of
Default or acceleration, the principal amount of such Loan shall,
during the continuation of such Event of Default or after
acceleration, bear interest at a rate per annum equal to the Base
Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to the Bank hereunder shall be subject
to the limitation that payments of interest shall not be required
for any period for which interest is computed hereunder, to the
extent (but only to the extent) that contracting for or receiving
such payment by the Bank would be contrary to the provisions of
any law applicable to the Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received
by the Bank, and in such event the Company shall pay the Bank
interest at the highest rate permitted by applicable law.
2.10 Facility Fees. The Company shall pay to the Bank a
facility fee on the average daily amount of the Commitment,
computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter equal to 0.125% per annum on the
Available Commitment and 0.0625% per annum on the Reserve
Commitment. Such facility fee shall accrue from the date hereof
to the Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June,
September and December through the Revolving Termination Date,
with the final payment to be made on the Revolving Termination
Date; provided that, in connection with any reduction or
termination of the Commitment under Section 2.5, the accrued
facility fee calculated for the period ending on such date shall
also be paid on the date of such reduction or termination, with
the following quarterly payment being calculated on the basis of
the period from such reduction or termination date to such
quarterly payment date; and provided, further, that upon the
increase of the Available Commitment, an amount equal to 0.0625%
per annum from the date hereof through the date of such increase
on the amount of such increase shall be paid. The facility fee
provided in this section shall accrue at all times after the
above-mentioned commencement date, including at any time during
which one or more conditions in Article IV are not met.
2.11 Computation of Fees and Interest. (a) All computations
of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid
than if computed on the basis of a 365-day year). Interest and
fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day
thereof.
(b) Each determination of an interest rate by the Bank
shall be conclusive and binding on the Company in the absence of
manifest error.
2.12 Payments by the Company. (a) All payments to be made
by the Company shall be made without set-off, recoupment or
counterclaim. Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Bank, and shall be
made in dollars and in immediately available funds, no later than
11:00 a.m. (Chicago time) on the date specified herein. Any
payment received by the Bank later than 11:00 a.m. (Chicago time)
shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is
due on a day other than a Business Day, such payment shall be made
on the following Business Day, and such extension of time shall in
such case be included in the computation of interest or fees, as
the case may be.
2.13 Bank of America Agreement. The Company is entering into
a credit agreement (the "Bank of America Agreement") with Bank of
America Illinois concurrently with the effectiveness of this
Agreement on terms substantially the same as this Agreement. The
Company agrees that all borrowings, payments and reductions and
terminations of the Commitment shall be made concurrently with
equivalent borrowings, payments and reductions and termination of
the commitment under the Bank of America Agreement. The Company
shall provide a summary statement quarterly to the Bank of all
activity on the Bank of America Agreement and of any amendments
thereto.
2.14 Maximum Interest. It is the intention of the parties
hereto to conform strictly to applicable usury laws and, anything
herein to the contrary notwithstanding, the obligations of the
Company to the Bank under this Agreement shall be subject to the
limitation that payments of interest shall not be required to the
extent that receipt thereof would be contrary to provisions of law
applicable to the Bank limiting rates of interest which may be
charged or collected by the Bank. Accordingly, if the
transactions contemplated hereby would be usurious under
applicable law (including the Federal and state laws of the United
States of America, or of any other jurisdiction whose laws may be
mandatorily applicable) with respect to the Bank then, in that
event, notwithstanding anything to the contrary in this Agreement,
it is agreed as follows:
(i) the provisions of this Section 2.14 shall govern
and control;
(ii) the aggregate of all consideration which
constitutes interest under applicable law that
is contracted for, charged or received under
this Agreement, or under any of the other
aforesaid agreements or otherwise in connection
with this Agreement by the Bank shall under no
circumstances exceed the maximum amount of
interest allowed by applicable law (such maximum
lawful interest rate, if any, with respect to
the Bank herein called the "Highest Lawful
Rate"), and any excess shall be credited to the
Company by the Bank (or, if such consideration
shall have been paid in full, such excess re-
funded to the Company);
(iii) all sums paid, or agreed to be paid, to the Bank
for the use, forbearance and detention of the
indebtedness of the Company to the Bank here-
under shall, to the extent permitted by
applicable law, be amortized, prorated,
allocated and spread throughout the full term of
such indebtedness until payment in full so that
the actual rate of interest is uniform
throughout the full term thereof;
(iv) if at any time the interest provided pursuant to
Section 2.9 together with any other fees payable
pursuant to this Agreement and deemed interest
under applicable law, exceeds that amount which
would have accrued at the Highest Lawful Rate,
the amount of interest and any such fees to
accrue to the Bank pursuant to this Agreement
shall be limited, notwithstanding anything to
the contrary in this Agreement to that amount
which would have accrued at the Highest Lawful
Rate, but any subsequent reductions, as
applicable, shall not reduce the interest to ac-
crue to the Bank pursuant to this Agreement
below the Highest Lawful Rate until the total
amount of interest accrued pursuant to this
Agreement and such fees deemed to be interest
equals the amount of interest which would have
accrued to the Bank if a varying rate per annum
equal to the interest provided pursuant to
Section 2.9 had at all times been in effect,
plus the amount of fees which would have been
received but for the effect of this Sec-
tion 2.14.
For purposes of Article 5069-1.04, Vernon's Texas Civil Statutes,
as amended, to the extent, if any, applicable to the Bank, the
Company agrees that the Highest Lawful Rate shall be the
"indicated (weekly) rate ceiling" as defined in said Article,
provided that the Bank may also rely, to the extent permitted by
applicable laws, on alternative maximum rates of interest under
other laws applicable to such Lender if greater.
Tex. Rev. Civ. Stat. Ann. Art. 5069, Ch. 15 (which regulates
certain revolving credit loan accounts and revolving tri-party
accounts) shall not apply to this Agreement or the Note.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
3.1 Taxes. (a) Any and all payments by the Company to the
Bank under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for
any Taxes. In addition, the Company shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless
the Bank for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section) paid by the Bank and any liability
(including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within 30 days after the
date the Bank makes written demand therefor.
(c) If the Company shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to the Bank, then:
(i) the sum payable shall be increased as
necessary so that after making all required deductions and
withholdings (including deductions and withholdings
applicable to additional sums payable under this Section) the
Bank receives an amount equal to the sum it would have
received had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount
deducted or withheld to the relevant taxing authority or
other authority in accordance with applicable law; and
(iv) the Company shall also pay to the Bank, at
the time interest is paid, all additional amounts which the
Bank specifies as necessary to preserve the after-tax yield
the Bank would have received if such Taxes or Other Taxes had
not been imposed.
(d) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish the
Bank the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to the
Bank.
(e) If the Company is required to pay additional
amounts to the Bank pursuant to subsection (c) of this Section,
then the Bank shall use reasonable efforts (consistent with legal
and regulatory restrictions) to change the jurisdiction of its
Lending Office so as to eliminate any such additional payment by
the Company which may thereafter accrue, if such change in the
judgment of the Bank is not otherwise disadvantageous to the Bank.
3.2 Illegality. (a) If the Bank determines that the
introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of
any Requirement of Law, has made it unlawful, or that any central
bank or other Governmental Authority has asserted that it is
unlawful, for the Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the
Company, any obligation of the Bank to make Offshore Rate Loans
shall be suspended until the Bank notifies the Company that the
circumstances giving rise to such determination no longer exist.
(b) If the Bank determines that it is unlawful to
maintain any Offshore Rate Loan, the Company shall, upon its
receipt of notice of such fact and demand from the Bank, prepay in
full such Offshore Rate Loans of the Bank then outstanding,
together with interest accrued thereon and amounts required under
Section 3.4, either on the last day of the Interest Period
thereof, if the Bank may lawfully continue to maintain such
Offshore Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such Offshore Rate Loan. If the
Company is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, the Company shall borrow from
the Bank, in the amount of such repayment, a Base Rate Loan.
3.3 Increased Costs and Reduction of Return. (a) If the
Bank determines that, due to either (i) the introduction of or any
change (other than any change by way of imposition of or increase
in reserve requirements included in the calculation of the
Offshore Rate) in or in the interpretation of any law or
regulation or (ii) the compliance by the Bank with any guideline
or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any
increase in the cost to the Bank of agreeing to make or making,
funding or maintaining any Offshore Rate Loans then the Company
shall be liable for, and shall from time to time, upon demand, pay
to the Bank, additional amounts as are sufficient to compensate
the Bank for such increased costs.
(b) If the Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation
controlling the Bank with any Capital Adequacy Regulation, affects
or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and
(taking into consideration the Bank's or such corporation's
policies with respect to capital adequacy and the Bank's desired
return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, loans, credits or
obligations under this Agreement, then, upon demand of the Bank to
the Company, the Company shall pay to the Bank, from time to time
as specified by the Bank, additional amounts sufficient to
compensate the Bank for such increase.
3.4 Funding Losses. The Company shall reimburse the Bank
and hold the Bank harmless from any loss or expense which the Bank
may sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely
basis any payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/
Continuation;
(c) the failure of the Company to make any prepayment
in accordance with any notice delivered under Section 2.6;
(d) the prepayment or other payment (including after
acceleration thereof) of an Offshore Rate Loan on a day that is
not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the
last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate
Loans or from fees payable to terminate the deposits from which
such funds were obtained.
3.5 Inability to Determine Rates. If the Bank determines
that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period
with respect to a proposed Offshore Rate Loan, or that the
Offshore Rate applicable pursuant to subsection 2.9(a) for any
requested Interest Period with respect to a proposed Offshore Rate
Loan does not adequately and fairly reflect the cost to the Bank
of funding such Loan, the Bank will promptly so notify the
Company. Thereafter, the obligation of the Bank to make or
maintain Offshore Rate Loans hereunder shall be suspended until
the Bank revokes such notice in writing. Upon receipt of such
notice, the Company may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If the Company
does not revoke such Notice, the Bank shall make, convert or
continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but
such Loans shall be made, converted or continued as Base Rate
Loans instead of Offshore Rate Loans.
3.6 Survival. The agreements and obligations of the Company
in this Article III shall survive the payment of all other
Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1 Conditions of Initial Loans. The obligation of the Bank
to make its initial Loan hereunder is subject to the condition
that the Bank have received on or before the initial borrowing
date all of the following, in form and substance satisfactory to
the Bank:
(a) Credit Agreement and Note. This Agreement and the
Note executed by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of
directors of the Company authorizing the transactions
contemplated hereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of the Company; and
(ii) A certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to
execute, deliver and perform, as applicable, this Agreement,
and all other Loan Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the
following documents:
(i) the articles or certificate of incorporation
and the bylaws of the Company as in effect on the Closing
Date, certified by the Secretary or Assistant Secretary of
the Company as of the Closing Date; and
(ii) a good standing certificate for the Company
from the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation and
each state where the Company is qualified to do business as
a foreign corporation as of a recent date, together with a
bring-down certificate for the Company from such Secretary of
State (or similar, applicable Governmental Authority) by
facsimile, dated the Closing Date;
(d) Legal Opinion. An opinion of John C. Maloney,
Senior Associate General Counsel to the Company and addressed to
the Bank, substantially in the form of Exhibit D;
(e) Payment of Fees. Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the Closing Date;
(f) Certificate. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained
in Article V are true and correct on and as of such date, as
though made on and as of such date;
(ii) no Default or Event of Default exists or
would result from the initial Borrowing; and
(iii) there has occurred since December 31, 1993,
no event or circumstance that has resulted or could
reasonably be expected to result in a Material Adverse
Effect; and
(g) Other Documents. Such other approvals, opinions,
documents or materials as the Bank may request.
4.2 Conditions to All Borrowings. The obligation of the
Bank to make any Loan to be made by it (including its initial
Loan) is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date:
(a) Notice of Borrowing. The Bank shall have received
(i) in the case of the initial Loan, a Notice of Borrowing, and
(ii) for all other Loans, a Notice of Borrowing and/or a Notice of
Conversion/Continuation, as applicable;
(b) Continuation of Representations and Warranties.
The representations and warranties in Article V shall be true and
correct on and as of such Borrowing Date with the same effect as
if made on and as of such Borrowing Date (except to the extent
such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such
earlier date); and
(c) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing.
Each Notice of Borrowing submitted by the Company hereunder shall
constitute a representation and warranty by the Company hereunder,
as of the date of each such notice and as of each Borrowing Date,
that the conditions in Section 4.2 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants to the Bank that:
5.1 Corporate Existence and Power. The Company and each of
its Subsidiaries:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its
assets, carry on its business and to execute, deliver, and perform
its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct
of its business requires such qualification or license; and
(d) is in compliance with all Requirements of Law.
5.2 Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company of this
Agreement and each other Loan Document to which the Company is
party, have been duly authorized by all necessary corporate
action, and do not and will not:
EM contravene the terms of any of the Company's
Organization Documents;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which the Company is a
party or any order, injunction, writ or decree of any Governmental
Authority to which the Company or its property is subject; or
(c) violate any Requirement of Law.
5.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or
enforcement against, the Company or any of its Subsidiaries of the
Agreement or any other Loan Document.
5.4 Binding Effect. This Agreement and each other Loan
Document to which the Company is a party constitute the legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
5.5 Litigation. There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of the
Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the
Company, or its Subsidiaries or any of their respective properties
which:
(a) purport to affect or pertain to this Agreement or
any other Loan Document, or any of the transactions contemplated
hereby or thereby; or
(b) would reasonably be expected to have a Material
Adverse Effect. No injunction, writ, temporary restraining order
or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein
provided.
5.6 No Default. No Default or Event of Default exists or
would result from the incurring of any Obligations by the Company.
As of the Closing Date, neither the Company nor any Subsidiary is
in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse
Effect, or that would, if such default had occurred after the
Closing Date, create an Event of Default under subsection 8.1(e).
5.7 ERISA Compliance.
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other
federal or state law. Each Plan which is intended to qualify
under Section 401(a) of the Code has received a favorable
determination letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the loss of such
qualification. The Company and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to
any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) except as specifically disclosed on
Schedule 5.7 ("ERISA Compliance"), no Pension Plan has any
Unfunded Pension Liability; (iii) neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section
4219 of ERISA, would result in such liability) under Section 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
5.8 Use of Proceeds; Margin Regulations. The proceeds of
the Loans are to be used solely for the purposes set forth in and
permitted by Section 6.12. The Company is not engaged in the
business of purchasing or selling Margin Stock.
5.9 Title to Properties. The Company and each Subsidiary
have good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the
ordinary conduct of their respective businesses, except for such
defects in title as could not, individually or in the aggregate,
have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no
Liens, other than Permitted Liens.
5.10 Taxes. The Company and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax
assessment against the Company or any Subsidiary that would, if
made, have a Material Adverse Effect.
5.11 Financial Condition. (a) The consolidated financial
statements of the Company and its Subsidiaries dated December 31,
1993 and September 30, 1994, and the related consolidated
statements of income or operations, shareholders' equity and cash
flows for the fiscal year or nine month period ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, subject, in the
case of the September 30, 1994 statements, to ordinary, good
faith year end audit adjustments;
(ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and
results of operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule
5.11 ("Permitted Liabilities"), show all material
indebtedness and other liabilities, direct or contingent, of
the Company and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material
commitments and Contingent Obligations.
(b) Since December 31, 1993, there has been no Material
Adverse Effect.
5.12 Environmental Matters. The Company conducts in the
ordinary course of business a review of the effect of existing
Environmental Laws and existing Environmental Claims on its
business, operations and properties, and as a result thereof the
Company has reasonably concluded that, except as specifically
disclosed in Schedule 5.12 ("Environmental Matters"), such
Environmental Laws and Environmental Claims could not,
individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
5.13 Regulated Entities. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "Investment
Company" within the meaning of the Investment Company Act of 1940.
The Company is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other
Federal or state statute or regulation limiting its ability to
incur Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company nor
any Subsidiary is a party to or bound by any Contractual
Obligation, or subject to any restriction in any Organization
Document, or any Requirement of Law, which could reasonably be
expected to have a Material Adverse Effect.
5.15 Copyrights, Patents, Trademarks and Licenses, etc. The
Company or its Subsidiaries own or are licensed or otherwise have
the right to use all of the patents, trademarks, service marks,
trade names, copyrights, contractual franchises, authorizations
and other rights that are reasonably necessary for the operation
of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary
infringes upon any rights held by any other Person. Except as
specifically disclosed in Schedule 5.15 ("Copyrights, etc."), no
claim or litigation regarding any of the foregoing is pending or
threatened, and no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which,
in either case, could reasonably be expected to have a Material
Adverse Effect.
5.16 Subsidiaries. As of the Closing Date, the Company has
no Subsidiaries other than those specifically disclosed in part
(a) of Schedule 5.16 ("Subsidiaries and Minority Interests")
hereto and has no equity investments in any other corporation or
entity other than those specifically disclosed in part (b) of
Schedule 5.16.
5.17 Insurance. Except as specifically disclosed in
Schedule 5.17 ("Insurance Matters"), the properties of the Company
and its Subsidiaries are insured with financially sound and
reputable insurance companies not Affiliates of the Company, in
such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Company or such
Subsidiary operates.
5.18 Full Disclosure. None of the representations or
warranties made by the Company or any Subsidiary in the Loan
Documents as of the date such representations and warranties are
made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on
behalf of the Company or any Subsidiary in connection with the
Loan Documents (including the offering and disclosure materials
delivered by or on behalf of the Company to the Bank prior to the
Closing Date), contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances
under which they are made, not misleading as of the time when made
or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
So long as the Bank shall have any Commitment hereunder, or
any Loan or other Obligation shall remain unpaid or unsatisfied,
unless the Bank waives compliance in writing:
6.1 Financial Statements. The Company shall deliver to the
Bank, in form and detail satisfactory to the Bank:
(a) as soon as available, but not later than 120 days
after the end of each fiscal year, a copy of the audited
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such year and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such
year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of
Ernst & Young or another nationally-recognized independent public
accounting firm ("Independent Auditor") which report shall state
that such consolidated financial statements present fairly the
financial position for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years. Such opinion
shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material
portion of the Company's or any Subsidiary's records and shall be
delivered to the Bank pursuant to a reliance agreement between the
Bank and such Independent Auditor in form and substance
satisfactory to the Bank;
(b) as soon as available, but not later than 60 days
after the end of each of the first three fiscal quarters of each
fiscal year, a copy of the unaudited consolidated balance sheet of
the Company and its Subsidiaries as of the end of such quarter and
the related consolidated statements of income, shareholders'
equity and cash flows for the period commencing at the end of the
previous fiscal year and ending on the last day of such quarter,
and certified by the chief financial officer or the controller as
fairly presenting, in accordance with GAAP (subject to ordinary,
good faith year-end audit adjustments), the financial position and
the results of operations of the Company and the Subsidiaries;
(c) as soon as available and in any event within 60
days after the end of each Fiscal Quarter, either (i) at any time
when the Company is not Well-Capitalized, a Compliance
Certificate, or (ii) at any time when the Company is Well-
Capitalized, a Quarterly Compliance Certificate, in each case
executed by the chief financial officer or the controller of the
Company;
(d) as soon as possible and in any event within ten
Business Days after (i) the occurrence of each Default or (ii) the
Company ceases to be Well-Capitalized, a statement of the chief
financial officer or the controller of the Company setting forth
details of such event and the action which the Company has taken
and proposes to take with respect thereto;
(e) at any time when the Company is not Well-
Capitalized, simultaneously with delivery to the Comptroller of
the Currency, any Federal Reserve Bank or the FDIC, as the case
may be, and in any event within 60 days after the end of each
Fiscal Quarter, call reports for each Subsidiary required to
deliver a call report, as at the end of such fiscal quarter, each
certified by the respective cashier or other authorized officer of
such Subsidiary and reports filed on Form FRY9-C and Form FRY9-LP;
(f) promptly after the sending or filing thereof,
copies of all reports which the Company sends to any of its
securityholders, and all reports and registration statements which
the Company or any of its Subsidiaries files with the Securities
and Exchange Commission or any national securities exchange; and
(g) such other information respecting the condition or
operations, financial or otherwise, of the Company or any of its
Subsidiaries as the Bank may from time to time reasonably request.
6.2 Certificates; Other Information. The Company shall
furnish to the Bank concurrently with the delivery of the
financial statements referred to in subsection 6.1(a), a
certificate of the Independent Auditor stating that in making the
examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such
certificate.
6.3 Notices. The Company shall promptly notify the Bank:
(a) of the occurrence of any Default or Event of
Default, and of the occurrence or existence of any event or
circumstance that foreseeably will become a Default or Event of
Default;
(b) of any matter that has resulted or may result in a
Material Adverse Effect, including (i) breach or non-performance
of, or any default under, a Contractual Obligation of the Company
or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and
any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting
the Company or any Subsidiary; including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event more
than 10 days after such event), and deliver to the Bank a copy of
any notice with respect to such event that is filed with a
Governmental Authority and any notice delivered by a Governmental
Authority to the Company or any ERISA Affiliate with respect to
such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by the Company or any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan
subject to Section 412 of the Code, if such amendment results
in a material increase in contributions or Unfunded Pension
Liability.
(d) of any material change in accounting policies or
financial reporting practices by the Company or any of its
consolidated Subsidiaries.
Each notice under this Section shall be accompanied by
a written statement by a Responsible Officer setting forth details
of the occurrence referred to therein, and stating what action the
Company or any affected Subsidiary proposes to take with respect
thereto and at what time. Each notice under subsection 6.3(a)
shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been
(or foreseeably will be) breached or violated.
6.4 Preservation of Corporate Existence, Etc. The Company
shall, and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state
or jurisdiction of incorporation, except as permitted by Section
7.2;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses
and franchises necessary or desirable in the normal conduct of its
business except in connection with transactions permitted by
Section 7.2 and sales of assets permitted by Section 7.3;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse
Effect.
6.5 Maintenance of Property. The Company shall maintain,
and shall cause each Subsidiary to maintain, and preserve all its
property which is used or useful in its business in good working
order and condition, ordinary wear and tear excepted and make all
necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
6.6 Insurance. The Company shall maintain, and shall cause
each Subsidiary to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of
such types and in such amounts as are customarily carried under
similar circumstances by such other Persons.
6.7 Payment of Obligations. The Company shall, and shall
cause each Subsidiary to, pay and discharge as the same shall
become due and payable, all their respective obligations and
liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings
and adequate reserves in accordance with GAAP are being maintained
by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law
become a Lien upon its property; and
(c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
6.8 Compliance with Laws. The Company shall comply, and
shall cause each Subsidiary to comply, in all material respects
with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair
Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
6.9 Compliance with ERISA. The Company shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects with the applicable provisions
of ERISA, the Code and other federal or state law; (b) cause each
Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
6.10 Inspection of Property and Books and Records. The
Company shall maintain and shall cause each Subsidiary to maintain
proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall
be made of all financial transactions and matters involving the
assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit,
representatives and independent contractors of the Bank to visit
and inspect any of their respective properties, to examine their
respective corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at
the expense of the Company and at such reasonable times during
normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however,
when an Event of Default exists the Bank may do any of the
foregoing at the expense of the Company at any time during normal
business hours and without advance notice.
6.11 Environmental Laws. The Company shall, and shall cause
each Subsidiary to, conduct its operations and keep and maintain
its property in compliance with all Environmental Laws.
6.12 Use of Proceeds. The Company shall use the proceeds of
the Loans for working capital and other general corporate purposes
not in contravention of any Requirement of Law or of any Loan
Document; provided, however, that none of such proceeds shall be
applied to acquire a controlling interest in the stock of any
Person, unless such Person's Board of Directors (or equivalent
board) shall approve such acquisition, unless the Bank shall
otherwise consent.
ARTICLE VII
NEGATIVE COVENANTS
------------------
So long as the Bank shall have any Commitment hereunder, or
any Loan or other Obligation shall remain unpaid or unsatisfied,
unless the Bank waives compliance in writing:
7.1 Liens. The Company will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any properties, assets or revenues of the Company or any
of its Subsidiaries or any capital stock of any Subsidiary of the
Company, whether now owned or hereafter acquired, except:
(a) Liens created or assumed in the ordinary course of
the banking, trust, commercial finance and leasing business of any
Subsidiary or the business of the Company;
(b) Liens for taxes not yet payable or being contested
in good faith by appropriate proceedings and for which reserves in
conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be;
(c) deposits or pledges to secure the payment of
workmen's compensation, unemployment insurance, old age pensions
or other social security benefits or obligations;
(d) deposits or pledges to secure statutory obligations
or to secure or in lieu of surety, penalty or appeal bonds;
(e) mechanics', materialmen's, warehousemen's, carriers
or other like Liens arising in the ordinary course of its business
which are not overdue for a period longer than 30 days, or which
are being contested in good faith by appropriate proceedings;
(f) Liens securing indebtedness incurred after the date
hereof 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 Company or a Subsidiary;
provided, that the Lien shall attach solely to the property
acquired, constructed or improved or to substantially unimproved
real property on which property so acquired, constructed or
improved is located;
(g) Liens on property useful and intended to be used in
carrying out the business of the Company or a Subsidiary which
were existing at the time of acquisition of such property, or at
the time of acquisition by the Company or a Subsidiary of any
business entity then owning such property, so long as such Liens
were not incurred, extended or renewed in the contemplation of or
in connection with such acquisition by the Company or a
Subsidiary; provided, that such Lien shall attach solely to the
property acquired; and
(h) extensions or renewals of Liens permitted by
clauses (f) and (g) above so long as, at the time of such
transaction and after giving effect thereto and to the application
of the proceeds thereof, (x) the aggregate unpaid principal amount
of indebtedness of the Company and its Subsidiaries which is
secured pursuant to this clause (h) and clauses (f) and (g) hereof
shall be no greater than the aggregate unpaid principal amount of
such indebtedness secured pursuant to such clauses immediately
preceding such transaction and (y) such Lien shall attach solely
to the property which was subject thereto immediately preceding
such transaction.
Notwithstanding the foregoing provisions of this Section 7.1
the Company will not permit, and will not permit any Subsidiary to
cause or permit any Lien on capital stock issued by a Subsidiary
and held by the Company or another Subsidiary except for Liens on
capital stock of a corporation acquired after the effective date
of the Agreement which corporation, after such acquisition, would
become a Subsidiary; provided that such Liens were existing at the
time of such acquisition and were not incurred, extended or
renewed in contemplation of, or in connection with, such
acquisition.
7.2 Consolidation, Merger, etc. The Company will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or
purchase or otherwise acquire all or substantially all of the
assets of any Person (or of any division thereof) except
(a) any such Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Company or any
other Subsidiary, and the assets or stock of any Subsidiary may be
purchased or otherwise acquired by the Company or any other
Subsidiary; and
(b) so long as no Default has occurred and is
continuing or would occur after giving effect thereto, the Company
or any of its Subsidiaries may purchase all or substantially all
of the assets of any Person, or acquire such Person by merger.
7.3 Asset Dispositions, etc. The Company will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or
other rights with respect to, all or any substantial part of its
assets (including accounts receivable and capital stock of
Subsidiaries) to any Person, unless such sale, transfer, lease,
contribution or conveyance is in the ordinary course of its
business or is permitted by Section 7.2.
7.4 Transactions with Affiliates. The Company will not, and
will not permit any of its Subsidiaries to, enter into, or cause,
suffer or permit to exist any arrangement or contract with any of
its other Affiliates unless such arrangement or contract is fair
and equitable to the Company or such Subsidiary and is an
arrangement or contract of the kind which would be entered into by
a prudent Person in the position of the Company or such Subsidiary
with a Person which is not one of its Affiliates.
7.5 Negative Pledges, Restrictive Agreements, etc. The
Company will not, and will not permit any of its Subsidiaries to,
enter into any agreement (excluding this Agreement, any other Loan
Document, the Bank of America Agreement or any other loan document
executed in connection therewith) prohibiting
(a) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of the Company to amend or otherwise
modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Company by way of dividends (except
as may be required by law), advances, repayments of loans or
advances, reimbursements of management and other intercompany
charges, expenses and accruals or other returns on investments, or
any other agreement or arrangement which restricts the ability of
any such Subsidiary to make any payment, directly or indirectly,
to the Company.
7.6 ERISA. The Company shall not, and shall not suffer or
permit any of its ERISA Affiliates to: (a) engage in a prohibited
transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or could reasonably
expected to result in liability of the Company in an aggregate
amount in excess of $10,000,000; or (b) engage in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
7.7 Change in Business. The Company shall not, and shall
not suffer or permit any Subsidiary to, engage in any material
line of business substantially different from those lines of
business carried on by the Company and its Subsidiaries on the
date hereof.
7.8 Accounting Changes. The Company shall not, and shall
not suffer or permit any Subsidiary to, make any significant
change in accounting treatment or reporting practices, except as
required by GAAP, or change the fiscal year of the Company or of
any Subsidiary.
7.9 Financial Covenants. The Company shall not, at any
time, that it is not classified as Well-Capitalized, permit:
(a) its Leverage Ratio to be less than 4.75%;
(b) the ratio of its Tier One Capital to Risk Weighted
Assets to be less than 5.50%;
(c) the ratio of its Tier One Capital plus Tier Two
Capital to Risk Weighted Assets to be less than 9.00%;
(d) its consolidated total stockholders' equity to be
less than $518,000,000 plus 50% of its net income for every
quarter commencing after September 30, 1994 (but without giving
effect to any quarterly loss) plus the net proceeds of any new
equity issue after the date hereof;
(e) its Non-Performing Ratio to exceed 3%; and
(f) its Double Leverage Ratio to be more than 1.20 to
1.0.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
8.1 Event of Default. Any of the following shall constitute
an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when
and as required to be paid herein, any amount of principal of any
Loan, or (ii) within 7 days after the same becomes due, any
interest, fee or any other amount payable hereunder or under any
other Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made
herein, in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by the
Company, any Subsidiary, or any Responsible Officer, furnished at
any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Other Defaults. The Company fails to perform or
observe any other term or covenant contained in this Agreement or
any other Loan Document, and such default shall continue
unremedied for a period of 30 days after the earlier of (i) the
date upon which a Responsible Officer knew or reasonably should
have known of such failure or (ii) the date upon which written
notice thereof is given to the Company by the Bank; or
(d) Cross-Default. The Company or any Subsidiary (i)
fails to make any payment in respect of any Indebtedness or
Contingent Liability having an aggregate principal amount
(including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $5,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise) and such failure continues after the applicable grace
or notice period, if any, specified in the relevant document on
the date of such failure; or (ii) fails to perform or observe any
other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any
such Indebtedness or Contingent Liability, and such failure
continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if
the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary
or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries)
to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Liability to
become payable or cash collateral in respect thereof to be
demanded; or
(e) Insolvency; Voluntary Proceedings. The Company or
any Subsidiary (i) ceases or fails to be solvent, or generally
fails to pay, or admits in writing its inability to pay, its debts
as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases
to conduct its business in the ordinary course; (iii) commences
any Insolvency Proceeding with respect to itself; or (iv) takes
any action to effectuate or authorize any of the foregoing; or
(f) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company or
any Subsidiary, or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a
substantial part of the Company's or any Subsidiary's properties,
and any such proceeding or petition shall not be dismissed, or
such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60
days after commencement, filing or levy; (ii) the Company or any
Subsidiary admits the material allegations of a petition against
it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) the Company or any Subsidiary acquiesces in
the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property
or business; or
(g) ERISA. (i) An ERISA Event shall occur with respect
to a Pension Plan or Multiemployer Plan which has resulted or
could reasonably be expected to result in liability of the Company
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or
the PBGC in an aggregate amount in excess of $10,000,000; unless
the ERISA Event is a contribution failure sufficient to give rise
to a Lien under Section 302(f) of ERISA in which case the dollar
liability threshold does not apply; (ii) the aggregate amount of
Unfunded Pension Liability among all Pension Plans at any time
exceeds $10,000,000; or (iii) the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of
$10,000,000; or
(h) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards
is entered against the Company or any Subsidiary involving in the
aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions,
incidents or conditions, of $10,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal
for a period of 10 days after the entry thereof; or
(i) Non-Monetary Judgments. Any non-monetary judgment,
order or decree is entered against the Company or any Subsidiary
which does or would reasonably be expected to have a Material
Adverse Effect, and there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in
effect; or
(j) Change of Control. There occurs any Change of
Control.
8.2 Remedies. If any Event of Default occurs, the Bank may,
(a) declare the commitment of the Bank to make Loans to
be terminated, whereupon such commitment shall be terminated;
(b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and
(c) exercise all rights and remedies available to it
under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified
in subsection (e) or (f) of Section 8.1 (in the case of clause (i)
of subsection (f), upon the expiration of the 60-day period
mentioned therein), the obligation of the Bank to make Loans shall
automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of
the Bank.
8.3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument,
document or agreement now existing or hereafter arising.
ARTICLE IX
MISCELLANEOUS
-------------
9.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no
consent with respect to any departure by the Company therefrom,
shall be effective unless the same shall be in writing and signed
by the Bank.
9.2 Notices. (a) Except as specifically set forth in this
Agreement, all notices, requests and other communications shall be
in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter
transmitted by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on
Schedule 9.2, and (ii) shall be followed promptly by delivery of
a hard copy original thereof) and mailed, faxed or delivered, to
the address or facsimile number specified for notices on Schedule
9.2; or, as directed by the Company or the Bank, to such other
address as shall be designated by such party in a written notice
to the other party.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or
if mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II or IX shall not be effective until
actually received by Bank.
(c) Any agreement of the Bank herein to receive certain
notices by telephone or facsimile is solely for the convenience
and at the request of the Company. The Bank shall be entitled to
rely on the authority of any Person purporting to be a Person
authorized by the Company to give such notice and the Bank shall
not have any liability to the Company or other Person on account
of any action taken or not taken by the Bank in reliance upon such
telephonic or facsimile notice. The obligation of the Company to
repay the Loans shall not be affected in any way or to any extent
by any failure by the Bank to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Bank of a
confirmation which is at variance with the terms understood by the
Bank to be contained in the telephonic or facsimile notice.
9.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power
or privilege.
9.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse the Bank within five Business
Days after demand in connection with the development, preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
including reasonable Attorney Costs incurred by the Bank with
respect thereto; and
(b) pay or reimburse the Bank within five Business Days
after demand for all costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an
Event of Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate
proceeding).
9.5 Indemnity. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify and hold the
Bank and each of its officers, directors, employees, counsel,
agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of
any kind or nature whatsoever which may at any time (including at
any time following repayment of the Loans) be imposed on, incurred
by or asserted against any such Person in any way relating to or
arising out of this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby, or
any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to
any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or the use of the
proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this
Section shall survive payment of all other Obligations.
9.6 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except
that the Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent
of the Bank.
9.7 Set-off. In addition to any rights and remedies of the
Bank provided by law, if an Event of Default exists or the Loans
have been accelerated, the Bank is authorized at any time and from
time to time, without prior notice to the Company, any such notice
being waived by the Company to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
by, and other indebtedness at any time owing by, the Bank to or
for the credit or the account of the Company against any and all
Obligations owing to the Bank, now or hereafter existing,
irrespective of whether or not the Bank shall have made demand
under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. The Bank agrees
promptly to notify the Company after any such set-off and
application made by the Bank; provided, however, that the failure
to give such notice shall not affect the validity of such set-off
and application.
9.8 Automatic Debits of Fees. With respect to any fee, or
any other cost or expense (including Attorney Costs) due and
payable to the Bank under the Loan Documents, the Company hereby
irrevocably authorizes the Bank to debit any deposit account of
the Company with the Bank in an amount such that the aggregate
amount debited from all such deposit accounts does not exceed such
fee or other cost or expense. If there are insufficient funds in
such deposit accounts to cover the amount of the fee or other cost
or expense then due, such debits will be reversed (in whole or in
part, in the Bank's sole discretion) and such amount not debited
shall be deemed to be unpaid. No such debit under this Section
shall be deemed a set-off.
9.9 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same
instrument.
9.10 Severability. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
9.11 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the
Company and the Bank, and their permitted successors and assigns
and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan
Documents.
9.12 Governing Law and Jurisdiction. (a) THIS AGREEMENT
AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF TEXAS; PROVIDED THAT THE BANK SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF TEXAS OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF TEXAS, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY AND THE BANK CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION
OF THOSE COURTS. EACH OF THE COMPANY AND THE BANK IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO. THE COMPANY AND THE BANK EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY TEXAS LAW.
9.13 Waiver of Jury Trial. THE COMPANY AND THE BANK EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY
OTHER PARTY, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY AND THE
BANK EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
9.14 Entire Agreement. This Agreement, together with the
other Loan Documents, embodies the entire agreement and
understanding between the Company and the Bank, and supersedes all
prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof
and thereof.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in Dallas, Texas by
their proper and duly authorized officers as of the day and year
first above written.
FOURTH FINANCIAL CORPORATION
By:
---------------------------
Title: Executive Vice President -
Finance and Chief Financial
Officer
NATIONSBANK OF TEXAS, N.A.
By:
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Title:
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