1
EXHIBIT (10)A
SECOND AMENDMENT dated as of February 15, 1996 (this
"Amendment"), to the Three-Year Competitive Advance
and Revolving Credit Facility Agreement dated as of
March 25, 1994, as amended by the First Amendment
dated as of December 9, 1994 (as amended, the
"Existing Credit Agreement"), among FIRST OF AMERICA
BANK CORPORATION, a Michigan corporation (the
"Borrower"), the lenders (the "Lenders") listed in
Annex I hereto under the captions "Departing Lenders"
(the "Departing Lenders"), "Continuing Lenders" (the
"Continuing Lenders") and "Additional Lenders" (the
Additional Lenders and, collectively with the
Departing Lenders and the Continuing Lenders, the
"Lenders") and CHEMICAL BANK, a New York banking
corporation, as agent for the Lenders (in such
capacity, the "Agent").
WHEREAS, the Borrower, the Continuing Lenders, the Departing
Lenders and the Agent are parties to the Existing Credit Agreement;
WHEREAS, the Departing Lenders wish to terminate all of their
interests in the Commitments in effect under the Existing Credit Agreement;
WHEREAS, the Borrower has requested, and the Continuing
Lenders and the Additional Lenders have agreed, subject to the terms and
conditions set forth herein or referred to herein, that the Existing Credit
Agreement be amended (i) to extend the Maturity Date, (ii) to change the
pricing and (iii) to give effect to certain other changes; and
WHEREAS, capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Existing Credit
Agreement, as applicable.
NOW, THEREFORE, in consideration of the mutual agreements
contained in this Amendment and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Termination of Certain Commitments. On and
as of the Amendment Effective Date (as defined below), subject to the
conditions referred to in Section 6 hereof, (i) the Commitments of the then
Departing Lenders shall automatically terminate, so that after giving effect to
all such terminations, the Commitments will be held by the Continuing Lenders
and Additional Lenders ratably in accordance with their Commitments,
respectively, as set forth in Annex II to this Amendment, and (ii) the
Departing Lenders shall cease to be parties to the Existing Credit Agreement
and shall be released from all further obligations thereunder.
2
SECTION 2. Amendment to Section 1.01 of the Existing
Credit Agreement.
(a) The definition of "Facility Fee Percentage" in
Section 1.01 of the Existing Credit Agreement is hereby amended to read in its
entirety as follows:
"`Facility Fee Percentage' shall mean on any date
the applicable percentage set forth below based upon
the ratings by S&P and Moody's, respectively,
applicable on such date to the type of Index Debt
described below:
Index Debt Described in Clause (i) or (iii)
of the Definition of Index Debt
Category 1 Facility Fee Percentage
---------- -----------------------
AA- or higher by S&P
Aa3 or higher by Moody's .080%
Category 2
----------
A+, A or A- by S&P
A1, A2 or A3 by Moody's .100%
Category 3
----------
BBB+ by S&P
Baa1 by Moody's .150%
Category 4
----------
BBB by S&P
Baa2 by Moody's .200%
Category 5
----------
BBB- by S&P
Baa3 by Moody's .300%
Category 6
----------
BB+ or lower by S&P
Ba1 or lower by Moody's .375%
2
3
Index Debt Described in Clause (ii)
of the Definition of Index Debt
Category 1 Facility Fee Percentage
---------- -----------------------
A+ or higher by S&P
A1 or higher by Moody's .080%
Category 2
----------
A, A- or BBB+ by S&P
A2, A3 or Baa1 by Moody's .100%
Category 3
----------
BBB by S&P
Baa2 by Moody's .150%
Category 4
----------
BBB- by S&P
Baa3 by Moody's .200%
Category 5
----------
BB+ by S&P
Ba1 by Moody's .300%
Category 6
----------
BB or lower by S&P
Ba2 or lower by Moody's .375%
For purposes of the foregoing, (i) if there shall exist no
Index Debt (other than by reason of the circumstances referred to in the last
sentence of this definition), then each rating agency shall be deemed to have
established a rating with respect to Index Debt in Category 6; (ii) if the
ratings established or deemed to have been established by S&P and Moody's for
the Index Debt shall fall within different Categories, the Facility Fee
Percentage shall be based on the Category containing the higher of such
ratings; and (iii) if any rating established or deemed to have been established
by S&P or Moody's shall be changed (other than as a result of a change in the
rating system of S&P or Moody's), such change shall be effective (A) if the
Index Debt is not publicly rated, as of the date of the applicable Ratings
Review Letter indicating such change or (B) if the Index Debt is publicly
rated, as of the date on which such change is first announced by the applicable
rating agency. Each change in the Facility Fee Percentage shall
3
4
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of S&P or Moody's shall change, or if any such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to
amend the references to specific ratings in this definition to reflect such
changed rating system or the nonavailability of ratings from such rating
agency, and pending agreement on such amendment, the Facility Fee Percentage
most recently determined in accordance with this definition shall continue in
effect."
(b) The definition of "Maturity Date" in Section 1.01 of
the Existing Credit Agreement is hereby amended to read in its entirety as
follows:
"`Maturity Date' shall mean February 14, 2000."
(c) The definition of "Spread" in Section 1.01 of the
Existing Credit Agreement is hereby amended to read in its entirety as follows:
"`Spread' shall mean on any date, with
respect to Eurodollar Standby Loans or CD Loans, the
applicable percentage set forth below based upon the
ratings by S&P and Moody's, respectively, applicable
on such date to the Index Debt:
Index Debt Described in Clause (i) or (iii)
of the Definition of Index Debt
LIBOR CD
Category 1 Spread Spread
---------- ------ ------
AA- or higher by S&P
Aa3 or higher by Moody's .195% .320%
Category 2
----------
A+, A or A- by S&P
A1, A2 or A3 by Moody's .225% .350%
Category 3
----------
BBB+ by S&P
Baa1 by Moody's .275% .400%
4
5
Category 4
----------
BBB by S&P
Baa2 by Moody's .350% .475%
Category 5
----------
BBB- by S&P
Baa3 by Moody's .400% .525%
Category 6
----------
BB+ or lower by S&P
Ba1 or lower by Moody's .500% .625%
Index Debt Described in Clause (ii)
of the Definition of Index Debt
LIBOR CD
----- --
Category 1 Spread Spread
---------- ------ ------
A+ or higher by S&P
A1 or higher by Moody's .195% .320%
Category 2
----------
A, A- or BBB+ by S&P
A2, A3 or Baa1 by Moody's .225% .350%
Category 3
----------
BBB by S&P
Baa2 by Moody's .275 .275% .400%
Category 4
----------
BBB- by S&P
Baa3 by Moody's .350% .475%
Category 5
----------
BB+ by S&P
Ba1 by Moody's .400% .525%
5
6
Category 6
----------
BB or lower by S&P
Ba2 or lower by Moody's .500% .625%
For purposes of the foregoing, (i) if there shall
exist no Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then
each rating agency shall be deemed have established a rating
with respect to Index Debt Category 6; (ii) if the ratings
established or deemed to have been established by S&P and
Moody's for the Index Debt shall fall within different
Categories, the Spread shall be based on the Category
containing the higher of such ratings; and (iii) if any rating
established or deemed to have been established by S&P or
Moody's shall be changed (other than as a result of a change
in the rating system of S&P or Moody's), such change shall be
effective (A) if the Index Debt is not publicly rated, as of
the date of the applicable Ratings Review Letter indicating
such change or (B) if the Index Debt is publicly rated, as of
the date on which such change is first announced by the
applicable rating agency. Each change in the Spread shall
apply during the period commencing on the effective date of
such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system
of S&P or Moody's shall change, or if any such rating agency
shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in
good faith to amend the references to specific ratings in this
definition to reflect such changed rating system or the
nonavailability of ratings from such rating agency, and
pending agreement on such amendment, the Spread most recently
determined in accordance with this definition shall continue
in effect."
SECTION 3. Amendment to Schedule 2.01 to the Existing
Credit Agreement. Schedule 2.01 to the Existing Credit Agreement is hereby
amended to read in its entirety as set forth in the attached Annex II hereto.
SECTION 4. Utilization Fee. Section 2.06(b) of the
Existing Credit Agreement shall now read as follows:
"(b) For any quarter during which the average daily
outstanding principal amount of the Loans shall be greater than 50 of
the Total Commitment under this Agreement, the Borrower shall pay a
utilization fee equal to .0625 per annum (computed on the basis of the
actual number of days elapsed in a year of 360 days) of the average
daily outstanding principal amount of the Loans for that quarter. Each
fee described in this paragraph (b) is referred to herein as a
"Utilization Fee". The Utilization Fee, if any, in respect of any
quarter shall be paid in arrears to each Lender, through the Agent, on
each March 31, June 30, September 30 and December 31 and on the
Maturity Date (based on the amount of such Lender's outstanding Loans
during such period) and in the
6
7
event such Lender's Commitment is terminated other than on one of the
aforementioned quarterly dates, then such Fee shall be prorated and
paid on the next succeeding quarterly date."
SECTION 5. Representations and Warranties. The
Borrower represents and warrants to the Agent and to each of the Lenders that:
(a) This Amendment and the Existing Credit Agreement have
been duly authorized, executed and delivered by it and constitute its
legal, valid and binding obligations enforceable in accordance with
their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, or by
general equity principles (whether enforcement is sought by
proceedings in equity or at law), including but not limited to
principles governing the availability of the remedies of specific
performance and injunctive relief.
(b) The representations and warranties set forth in
Article III of the Existing Credit Agreement and in the other Loan
Documents are true and correct in all material respects with the same
effect as if made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date, in
which case they were true and correct in all material respects on and
as of such earlier date.
(c) As of the date hereof, no Default or Event of Default
has occurred and is continuing.
(d) As of the date hereof, the Borrower has performed all
obligations to be performed on its part as set forth in the Existing
Credit Agreement and the other Loan Documents thereunder.
For purposes of the foregoing representations, references to
the Existing Credit Agreement shall mean the Existing Credit Agreement as
amended hereby.
SECTION 6. Conditions to Effectiveness. The
amendments to the Existing Credit Agreement set forth in this Amendment shall
become effective (the "Amendment Effective Date") when (a) the Agent shall have
received counterparts of this Amendment which, when taken together, bear the
signatures of the Borrower and each Lender and (b) the Agent shall have
received a favorable written opinion of the Borrower's counsel, dated the date
hereof, and addressed to the Continuing and Additional Lenders, to the effect
set forth in Annex III hereto.
SECTION 7. Existing Credit Agreement. Except as
specifically amended hereby, the Existing Credit Agreement shall continue in
full force and effect in accordance with the provisions thereof as in existence
on the date hereof. After the date hereof, any reference to the Existing Credit
Agreement shall mean the Existing Credit Agreement as amended hereby.
7
8
SECTION 8. Facility Fee Percentage and Spread Payable by
Borrower. The Facility Fee and interest on the Eurodollar Standby Loans and CD
Loans shall accrue (i) in respect of all periods prior to the Amendment
Effective Date on the basis of the Facility Fee Percentage and Spread, in
effect under the Existing Credit Agreement prior to giving effect to this
Amendment and (ii) in respect of all periods on or after the Amendment
Effective Date on the basis of the Facility Fee Percentage and Spread, after
giving effect to this Amendment.
SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Counterparts. This Amendment may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
contract.
SECTION 11. Expenses. The Borrower agrees to
reimburse the Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements
of Cravath, Swaine & Moore, counsel for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
FIRST OF AMERICA BANK CORPORATION,
as Borrower,
by
/s/ Samuel G. Stone
---------------------------------
Name: Samuel G. Stone
Title: Senior Vice President and
Treasurer
CHEMICAL BANK, individually and
as Agent,
by
/s/ Roger A. Parker
---------------------------------
Name: Roger A. Parker
Title: Vice President
8
9
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
by
/s/ Jennings F. Werner
---------------------------------
Name: Jennings F. Werner
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ David G. Dobbins
---------------------------------
Name: David G. Dobbins
Title: Vice President
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS,
by
/s/ Stephen J. Miles
---------------------------------
Name: Stephen J. Miles
Title: Corporate Banking Officer
CITIBANK, N.A.,
by
/s/ Catherine R. Morrow
---------------------------------
Name: Catherine R. Morrow
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH,
by
/s/ Takeshi Hemmi
---------------------------------
Name: Takeshi Hemmi
Title: Vice President
9
10
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Heather D. Tressler
---------------------------------
Name: Heather D. Tressler
Title: Vice President
THE FUJI BANK, LIMITED,
by
/s/ Peter L. Chinnici
---------------------------------
Name: Peter L. Chinnici
Title: Joint General Manager
HARRIS TRUST & SAVINGS BANK,
by
/s/ Donald J. Boreman
---------------------------------
Name: Donald J. Boreman
Title: Vice President
MELLON BANK, N.A.,
by
/s/ Michael Shuster
---------------------------------
Name: Michael Shuster
Title: Vice President
THE MITSUBISHI BANK, LIMITED,
by
/s/ Noboru Kobayashi
---------------------------------
Name: Noboru Kobayashi
Title: Joint General Manager
NATIONSBANK OF TEXAS, N.A.,
by
/s/ Catherine G. Galletly
---------------------------------
Name: Catherine G. Galletly
Title: Vice President
10
11
THE NORTHERN TRUST COMPANY,
by
/s/ Alisa A. Kaplan
---------------------------------
Name: Alisa A. Kaplan
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Mark G. Merrill
---------------------------------
Name: Mark G. Merrill
Title: Vice President
THE SAKURA BANK, LIMITED,
by
/s/ Hajime Miyagi
---------------------------------
Name: Hajime Miyagi
Title: Joint General Manager
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, CHICAGO BRANCH,
by
/s/ Koichiro Inoue
---------------------------------
Name: Koichiro Inoue
Title: Joint General Manager
BARCLAYS BANK PLC,
as Departing Lender,
by
/s/ Karen M. Wagner
---------------------------------
Name: Karen M. Wagner
Title: Associate Director
THE CHASE MANHATTAN BANK, N.A.,
as Departing Lender,
by
/s/ Donna Brown
---------------------------------
Name: Donna Brown
Title: Vice President
11
12
NORWEST BANK,
as Departing Lender,
by
/s/ Vicki M. McIntyre
---------------------------------
Name: Vicki M. McIntyre
Title: Vice President
12
13
ANNEX I
Departing Lenders
Barclays Bank PLC
The Chase Manhattan Bank, N.A.
Norwest Bank
Continuing Lenders
Chemical Bank
Bank of America NT & SA
The Bank of New York
The Boatmen's National Bank of St. Louis
Citibank, N.A.
The Dai-Ichi Kangyo Bank, Ltd.
The First National Bank of Chicago
The Fuji Bank, Limited
Harris Trust & Savings Bank
Mellon Bank, N.A.
The Mitsubishi Bank, Limited
Nationsbank of Texas, N.A.
The Northern Trust Company
PNC Bank, National Association
The Sakura Bank Ltd. of Chicago
The Yasuda Trust and Banking Co., Ltd.
Additional Lenders
None
13
14
ANNEX II
SCHEDULE 2.01
Contact Person
Name & Address of Lender and Telecopy Number Commitment
Chemical Bank Mr. Robert J. Juelis $ 37,000,000
270 Park Avenue 212-270-1789
New York, NY 10017
Bank of America NT & SA Mr. Jennings Werner $ 29,000,000
231 South LaSalle Street 312-987-6982
Group Unit 1405
Chicago, IL 60697
The Bank of New York Mr. David Dobbins $ 29,000,000
One Wall Street 212-809-9520
17th Floor
New York, NY 10286
Boatmen's National Bank of St. Louis Mr. Richard Wokoun $ 10,000,000
800 Market Street 314-466-6499
One Boatmen's Plaza
St. Louis, MO 63166-0326
Citibank, N.A. Ms. Catherine Morrow $ 15,000,000
399 Park Avenue 212-793-5904
New York, NY 10043
The Dai-Ichi Kangyo Bank, Ltd. Mr. Brian Cushing $ 15,000,000
10 South Wacker Drive 312-876-2011
26th Floor
Chicago, IL 60606
The First National Bank of Chicago Ms. Deborah Mitchell $ 29,000,000
One First National Plaza 312-732-6222
Chicago, IL 60670-0162
The Fuji Bank, Limited Mr. Peter Chinnici $ 20,000,000
225 West Wacker Drive 312-621-0539
Suite 2000
Chicago, IL 60606
14
15
Harris Trust & Savings Bank Mr. Donald Boreman $ 15,000,000
111 West Monroe Street 312-765-8382
4th Floor
Chicago, IL 60690
Mellon Bank, N.A. Ms. Michael Schuster $ 29,000,000
One Mellon Bank Center 412-234-9047
151-0400
Pittsburgh, PA 15258
The Mitsubishi Bank, Limited Ms. Curtis Spillers $ 15,000,000
115 South LaSalle Street 312-263-7479
Suite 2100
Chicago, IL 60603
Nationsbank of Texas, N.A. Ms. Kate Galletly $ 29,000,000
901 Main Street 214-508-0604
66th Floor
Dallas TX 75202
The Northern Trust Company Mr. Thomas Bernhardt $ 29,000,000
50 South LaSalle Street 312-444-3378
Chicago, IL 60675
PNC Bank, National Association Mr. Mark Merrill $ 15,000,000
Two PNC Plaza 412-762-7353
31st Floor
Pittsburgh PA 15265
The Sakura Bank Ltd. of Chicago Mr. Michael Cross $ 14,000,000
227 West Monroe Street 312-332-5345
Suite 4700
Chicago, IL 60606
The Yasuda Trust and Banking Co., Ltd. Mr. David Beatty $ 20,000,000
181 West Madison Street 312-683-3899
Suite 4500
Chicago, IL 60602
$ 350,000,000
15
16
ANNEX III
[Form of]
Opinion
[Amendment Effective Date]
The Amendment Lenders (as defined below)
c/o Chemical Bank
270 Park Avenue
New York, NY 10017-2070
Re: Three-Year Competitive Advance and Revolving Credit Facility
Agreement Dated as of March 25, 1994, as Amended by the First
Amendment Dated as of December 9, 1994, and as Amended by the
Second Amendment Dated as of February 15, 1996, Among First of
America Bank Corporation, the Amendment Lenders Named Therein,
and Chemical Bank, as Agent.
Greetings:
Reference is made to the Three-Year Competitive Advance and Revolving
Credit Facility Agreement dated as of March 25, 1994, as amended by the First
Amendment dated as of December 9, 1994 (as amended, the "Existing Credit
Agreement"), among First of America Bank Corporation, a Michigan corporation
(the "Borrower"), the lenders listed in Annex I to the First Amendment (the
"Lenders") and Chemical Bank, a New York banking corporation, as agent for the
Lenders (in such capacity, the "Agent"), which Existing Credit Agreement
provides for a Maturity Date of December 9, 1997, as amended by the Second
Amendment (the "Second Amendment") dated as of February 15, 1996, among the
Borrower, the lenders listed in Annex II thereto (the "Amendment Lenders") and
the Agent. We have acted as counsel to the Borrower in connection with the
preparation and execution of the Existing Credit Agreement and the Second
Amendment. This letter is being furnished to you at the request of the Borrower
pursuant to Section 6 of the Second Amendment. As a basis for our opinions set
forth below, we have examined the Existing Credit Agreement and the Second
Amendment and have considered such matters of law and fact and relied upon such
certificates and other documents and information furnished to us as we have
deemed appropriate in the circumstances. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Existing Credit Agreement and in the Second Amendment.
Based upon the foregoing, we are of the opinion that:
1. The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan, (ii) has
all requisite power and authority to own its property and assets and to carry
on its business as now conducted, (iii) is qualified to
16
17
do business in every jurisdiction within the United States where such
qualification is required, except where the failure so to qualify would not
result in a Material Adverse Effect on the Borrower and (iv) has all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Existing Credit Agreement and the Second Amendment and to borrow
funds thereunder.
2. The execution, delivery and performance by the Borrower of the
Existing Credit Agreement, the Second Amendment and the borrowings of the
Borrower thereunder (collectively, the "Transactions") (i) have been duly
authorized by all requisite corporate action including but not confined to
corporate resolutions adopted by the Borrower on January 17, 1996, and (ii)
will not (a) violate (l) any provision of law, statute, rule or regulation
(including without limitation, the Margin Regulations), or of the Restated
Articles of Incorporation or Bylaws of the Borrower, (2) any order of any
governmental authority or (3) any provision of any indenture, agreement or
other instrument to which the Borrower is a party or by which it or its
property is or may be bound, (b) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or (c) result in the creation or
imposition of any lien upon any property or assets of the Borrower.
3. Each of the Existing Credit Agreement and the Second Amendment
has been duly executed and delivered by the Borrower and constitutes a legal,
valid and binding obligation of the Borrower enforceable against the Borrower
in accordance with its terms, subject as to the enforceability of rights and
remedies to any applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws of general application relating to or affecting the
enforcement of creditors' rights from time to time in effect.
4. No action, consent or approval of, registration or filing
with, or any other action by, any government authority is or will be required
in connection with the Transactions, except such as have been made or obtained
and are in full force and effect.
5. Neither the Borrower nor any of its subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
6. To the best of our knowledge, there is no action, suit or
proceeding, at law or in equity, pending or threatened in writing against the
Borrower or any of its subsidiaries before any court or arbitrator or any
governmental body, agency or official which purports to affect the legality,
validity or enforceability of the Transactions.
The opinions expressed herein are limited to the matters expressly
stated, and no opinion is to be implied or may be inferred beyond the matters
expressly stated. The opinions expressed herein are rendered in the context of
and in reliance upon current existing statutes, laws, rules and regulations and
reported judicial opinions and interpretations. The opinions expressed herein
17
18
are rendered for the benefit of the addressees only and only in conjunction
with the Transactions and may not, without in each instance our prior written
consent, be used or relied upon by any other person for any other purpose
whatsoever.
Very truly yours,
[HOWARD & HOWARD]
18