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Exhibit 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
THIS
AMENDED AND RESTATED CREDIT AGREEMENT is made and entered into this
28 th day of July, 2006 by and between ENTERPRISE
FINANCIAL SERVICES CORP., a Delaware corporation (the "
Borrower "), and U.S. BANK NATIONAL ASSOCIATION , a
national banking association (the " Lender ").
WITNESSETH :
WHEREAS,
the Borrower desires to borrow from the Lender, (i) the amount of
ELEVEN MILLION AND NO/100 DOLLARS ($11,000,000.00) in the form of a
revolving credit loan to finance Borrower’s working capital
requirements (the " Revolving Credit Facility ") and (ii)
the amount of FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00) in
the form of a term loan to finance Borrower’s acquisition of
NorthStar Bancshares, Inc. (the " Term Credit Facility "
and, together with the Revolving Credit Facility, the " Credit
Facilities ").
WHEREAS,
the Lender is willing to provide the Credit Facilities, subject to
the terms and conditions set forth herein.
NOW
THEREFORE, in consideration of mutual agreements set forth below,
the Borrower and the Lender agree as follows:
SECTION
1. DEFINITIONS
1.1
Defined Terms . As used in this Agreement, the
following terms have the following meanings:
"
Adjusted LIBOR Rate " shall mean, for the applicable
Loan, the per annum rate of interest equal to the sum of (a) the
Daily Reset LIBOR Rate or the LIBOR Rate for the applicable Loan
Period (as applicable) plus (b) 1.25%.
"
Agreement " shall mean this Amended and Restated Credit
Agreement, as amended, supplemented or modified from time to
time.
"
Business Day " shall mean a day other than a Saturday,
Sunday or other day on which the Lender is not open to the public
for carrying on substantially all of its banking functions;
provided , however , that, for purposes of
determining the Daily Reset LIBOR Rate, the LIBOR Rate or an
applicable Loan Period for a Loan, references to Business Day shall
mean any day (other than Saturday or Sunday) on which commercial
banks are open for business in New York, New York.
"
Code " shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder.
"
Contingent Obligation " shall mean as to any Person, any
obligation of such Person guaranteeing or otherwise becoming
legally obligated for any Indebtedness, leases, dividends or other
obligations (" primary obligations ") of any other Person
(the " primary obligor ") in any
manner, whether directly or indirectly,
including, without limitation, any obligation of such Person,
whether or not contingent (a) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of such
primary obligation against loss in respect thereof.
"
Contractual Obligation " shall mean as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
"
Daily Reset LIBOR Loan " shall mean a Loan that accrues
interest based upon the Daily Reset LIBOR Rate as an index.
"
Daily Reset LIBOR Rate " shall mean the one-month LIBOR rate
quoted by Lender from Telerate Page 3750 or any successor thereto,
which shall be that one-month LIBOR rate in effect and reset each
Business Day, adjusted for any reserve requirement and any
subsequent costs arising from a change in government
regulation. The Lender’s internal records of applicable
interest rates shall be determinative in the absence of manifest
error.
"
Default Rate " shall mean the rate per annum which is three
percent (3%) per annum in excess of the then Adjusted LIBOR
Rate.
"
Environment " shall mean any water, including, but not
limited to, surface water and ground water or water vapor, any
land, including land surface or subsurface, stream sediments, air,
fish, wildlife, plants; and all other natural resources or
environmental media.
"
Environmental Laws " shall mean all federal, state and local
environmental, land use, zoning, health, chemical use, safety and
sanitation laws, statutes, ordinances, regulations, codes and rules
relating to the protection of the Environment and/or governing the
use, storage, treatment, generation, transportation, processing,
handling, production or disposal of hazardous substances, petroleum
and petroleum products and the policies, guidelines, procedures,
interpretations, decisions, orders and directives of federal, state
and local governmental agencies and authorities with respect
thereto.
"
Event of Default " shall mean any of the events specified in
Section 8, provided that any requirement for the giving of notice,
the lapse of time, or both, or any other condition, has been
satisfied.
"
Funding Date " means any Business Day designated by the
Borrower as a day on which (a) a Revolving Loan is to be made or
(b) a Loan Period is to be renewed or extended, each in accordance
with the terms and conditions of this Agreement.
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"
Governmental Authority " shall mean any nation or
government, any state or other political subdivision thereof, and
any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to
government.
"
Governmental Regulations " means any and all laws, statutes,
ordinances, rules, regulations, judgments, writs, injunctions,
decrees, orders, awards and standards, or any similar requirement,
of the government of the United States or any foreign government or
any state, province, municipality or other political subdivision
thereof or therein or any court, agency, instrumentality,
regulatory authority or commission of any of the foregoing.
"
Hedge Agreement " means any agreement between the Borrower
and the Lender or any affiliate of the Lender now existing or
hereafter entered into, which provides for an interest rate or
commodity swap, cap, floor, collar, forward foreign exchange
transaction, currency swap, cross-currency rate swap, currency
option, or any combination of, or option with respect to, these or
similar transactions as contemplated under this Credit Agreement,
for the purpose of hedging a Borrower’s exposure to
fluctuations in interest rates, currency valuations or commodity
prices.
"
Indebtedness " shall mean as to any Person, at a particular
time, (a) indebtedness for borrowed money or for the deferred
purchase price of property or services in respect of which such
Person is an obligor and (b) obligations under leases which shall
have been or should be, in accordance with generally accepted
accounting principles (" GAAP ") and/or tax-basis
accounting, consistently applied, recorded as capital leases in
respect of which obligations such Person is liable.
"
Interest Differential " shall mean that sum equal to the
greater of zero or the financial loss incurred by Lender resulting
from prepayment, calculated as the difference between the amount of
interest Lender would have earned (from like investments in the
Money Markets as of the first day of the LIBOR Loan) had prepayment
not occurred and the interest Lender will actually earn (from like
investments in Money Markets as of the date of prepayment) as a
result of the redeployment of funds from such prepayment. The
Interest Differential shall not be discounted to its present
value.
"
LIBOR Loans " shall mean a Loan which accrues interest based
upon the LIBOR Rate as an index.
"
LIBOR Rate " means the one, two or three month LIBOR rate
quoted by Lender from Telerate Page 3750 or any successor thereto
(which shall be the LIBOR Rate in effect two Business Days prior to
commencement of the applicable Loan), adjusted for any reserve
requirement and any subsequent costs arising from a change in
government regulation. The Lender’s internal records of
applicable interest rates shall be determinative in the absence of
manifest error.
"
Lien " shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement, and any financing lease having substantially
the same economic effect as any of the foregoing).
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"
Loan " shall mean an advance of loan proceeds made by the
Lender to the Borrower pursuant to the Revolving Note or the Term
Note and this Agreement and "Loans" shall collectively refer to all
such advances.
"
Loan Documents " shall mean this Agreement, the Revolving
Note, the Term Note, any Hedge Agreement and all other documents,
certificates, resolutions and other agreements executed by the
Borrower or any other party pursuant to or in connection with this
Agreement.
"
Loan Period " means, with respect to each LIBOR Loan, the
period commencing on the Funding Date for such Loan and ending on
the numerically corresponding day one (1) month, two (2) month or
three (3) months thereafter matching the interest rate term
selected by Borrower in the Notice of Borrowing submitted under
Section 2.4; provided, however, that:
a. if
any Loan Period would otherwise end on a day which is not a
Business Day, then the Loan Period shall end on the next succeeding
Business Day unless the next succeeding Business Day falls in
another calendar month, in which case the Loan Period shall end on
the immediately preceding Business Day;
b. if
any Loan Period 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 Loan Period) then the Loan
Period shall end on the last Business Day of the calendar month at
the end of such Loan Period;
c. any
Loan Period which would otherwise end after the Termination Date
shall end on the Termination Date; and
d. the
interest rate applicable to any Loan Period shall apply from and
include the first day of such Loan Period to but excluding the last
day of such Loan Period.
"
Notes " shall mean, collectively, the Revolving Note and the
Term Note.
"
Person " shall mean an individual, partnership, corporation,
business trust, joint stock trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever
nature.
"
Prime Rate " means the prime or base rate of interest as
announced by the Lender, as in effect from time to time, which rate
may not be the lowest rate charged by the Lender to any of its
customers, and which Prime Rate shall change simultaneously with
any change in such prime or base rate of interest.
"
Revolving Credit Commitment " shall mean $11,000,000.00.
"
Revolving Credit Termination Date " shall mean April 30,
2007.
"
Revolving Note " shall mean the Amended and Restated
Revolving Credit Note of even date herewith in the face amount of
$11,000,000.00 from the Borrower, as maker, payable to the Lender,
substantially in the form of Exhibit A .
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"
Requirements of Law " shall mean as to any Person, the
Articles of Incorporation and Bylaws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, or determination of any arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any
of its property is subject.
"
Solvent " shall mean, with respect to any Person on a
particular determination date, that on such date (i) the fair value
of the property of such Person is greater than the total amount of
debts and other liabilities, including, without limitation,
contingent and unliquidated liabilities, of such Person, (ii) such
Person is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, and (iii) such Person
does not intend to, and does not believe that it will, incur debts
or other liabilities beyond such Person’s ability to pay as
such debts and other liabilities mature or become due.
"
Subsidiary " of any Person shall mean any other Person
(whether now existing or hereafter organized or acquired) in which
at least a majority of the securities or other ownership interests
of each class having ordinary voting power or analogous rights of
such other Person are owned (other than securities or other
ownership interests which at the time as of which any determination
is being made, are owned or have such power or right only by reason
of the happening of a contingency), beneficially and of record, by
such Person or by one or more of the other Subsidiaries of such
Person or by any combination thereof.
"
Subsidiary Bank " shall mean Enterprise Bank & Trust, a
Missouri trust company.
"
Subsidiary Brokerage " shall mean Millennium Holding
Company, Inc., a Missouri corporation.
"
Term Credit Commitment " shall mean $4,000,000.00.
"
Term Note " shall mean the Promissory Note of even date
herewith in the face amount of $4,000,000.00 from the Borrower, as
maker, payable to the Lender, substantially in the form of
Exhibit B .
"
Term Credit Termination Date " shall mean July 28, 2009.
1.2
Other Definition Provisions .
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(a) All
terms defined in this Agreement shall have the defined meanings
when used in the Revolving Note, the Term Note or any other Loan
Document.
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(b) The
words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and
section, subsection and exhibit references are to this Agreement
unless otherwise specified.
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SECTION
2. AMOUNT AND TERMS OF REVOLVING LOAN
2.1
Revolving Loan . The Revolving Credit Facility
shall be evidenced by the Revolving Note. Subject to the terms and
conditions of this Agreement, the Lender agrees to make Loans to
the Borrower from time to time from and including the date hereof
to but excluding the Revolving Credit Termination Date, up to, but
not exceeding at any time the Revolving Credit Commitment;
provided , however , that the Lender shall have no
obligation to make a Loan if an Event of Default exists or would
result from such Loan. Loans may be outstanding as Daily
Reset LIBOR Loans or LIBOR Loans (each, a " Type of Loan ").
Within the limits of the Revolving Credit Commitment and subject to
the other terms and conditions of this Agreement, under the
Revolving Credit Facility may be borrowed, repaid and reborrowed by
the Borrower, in its discretion, from time to time prior to the
Revolving Credit Termination Date. The Lender may, with three
(3) Business Days prior notice to or the consent of Borrower, to
pay any principal due under the Revolving Credit Facility, any
interest due thereon or any fees, cash or expenses due from
Borrower to the Lender under this Agreement.
2.2
Principal Payments . Unless earlier payment is
required under this Agreement, the Revolving Credit Facility shall
be due and payable to the Lender on or before the Revolving Credit
Termination Date. If at any time the outstanding principal
amount of the Revolving Credit Facility made by the Lender shall
exceed the Revolving Credit Commitment, the Borrower shall
forthwith pay to the Lender an amount not less than the amount of
any such excess for application to the outstanding principal amount
of the Revolving Credit Facility. If the Loan Period for any
LIBOR Loan should happen to extend beyond the Revolving Credit
Facility Termination Date, such LIBOR Loan must be prepaid on the
Revolving Facility Termination Date.
2.3
Interest .
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(a) Interest
shall accrue on the outstanding and unpaid principal amount of each
Loan for the period from and including the date of such Loan to but
excluding the date such Loan is due, at a rate equal to the
Adjusted LIBOR Rate. With respect to Daily Reset LIBOR Loans,
the Adjusted LIBOR Rate shall float daily to account for any
changes in the Daily Reset LIBOR Rate. With respect to LIBOR Loans,
the Adjusted LIBOR Rate shall remain fixed for the applicable Loan
Period. Upon the occurrence and during the continuance of any
Event of Default, the outstanding principal amount of all Loans,
and to the extent permitted by applicable law, any interest
payments thereon or any fees or other amounts then due and payable
hereunder shall thereafter bear interest (including post-petition
interest in any proceeding under Title 11 of the United States Code
or other applicable bankruptcy laws) payable upon demand at the
Default Rate.
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(b) Interest
on each Loan shall be calculated on the basis of a year of 360 days
and the actual number of days elapsed.
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(c) Accrued
interest shall be due and payable in arrears upon any payment of
principal or conversion from one Type of Loan to another and (i)
for each Daily Reset LIBOR Loan or Loan accruing interest at the
Prime Rate, on the last day of each calendar quarter, and (ii) for
each LIBOR Loan, on the last day of each Loan Period with respect
thereto.
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2.4
Borrowings . In order to obtain a Loan under the
Revolving Credit Facility, the Borrower shall give the Lender
written notice (which may be a telecopy) of each borrowing to be
made hereunder. Each such notice shall be in the form of a
"Notice of Borrowing" in substantially the form of Exhibit C
hereto, executed by two authorized officers or representatives of
the Borrower, specifying therein (i) the requested date of the
proposed Loan, (ii) the aggregate amount of the proposed Loan, and
(iii) if a LIBOR Loan, the Loan Period therefor. Subject to
the conditions of this Agreement, the Lender shall make the amount
of the Loan available to the Borrower on the date of such Loan in
immediately available funds.
2.5
Prepayments and Conversions . Subject to Section
4.3 hereof, the Borrower shall have the right to make prepayments
of principal on any Loan, in whole or in part, without payment of
any penalty or premium, or to convert one Type of Loan into another
Type of Loan, at any time or from time to time; provided ,
however , that each partial prepayment shall be in an amount
of at least $100,000, and if greater than $100,000, an integral
multiple of $10,000.00, and if the Loan prepaid or converted is a
LIBOR Loan, any conversion or prepayment shall be in the full
amount of such LIBOR Loan. The Borrower shall give the Lender
notice of each such prepayment or conversion as provided in Section
2.9. Each such notice shall be in the form of a "Notice of
Prepayment" in substantially the form of Exhibit C hereto,
specifying therein (i) the date such prepayment will be made, (ii)
the amount of such prepayment and (iii) the Type of Loan being
prepaid. The Borrower shall not have the right to convert one
Type of Loan into another Type of Loan during the continuance of an
Event of Default.
2.6
Loan Periods; Renewals .
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(a) In
the case of each LIBOR Loan, the Borrower shall select a Loan
Period of any duration in accordance with the definition of Loan
Period in Section 1.1.
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(b) Provided
that no Event of Default has occurred and is continuing, upon
notice to the Lender as provided in Section 2.9, the Borrower may
renew any Loan on the last day of the Loan Period therefor as a
Loan with a Loan Period of the same or different duration in
accordance with the limitations provided in the definition of Loan
Period in Section 1.1. If the Borrower shall fail to give notice to
the Lender of such a renewal or, if an Event of Default has
occurred and is continuing, such Loan shall automatically become,
as of the last day of the then current Loan Period, a Loan based
upon the same Loan Period as the Loan then expiring.
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2.7
Default Rate . If an "Event of Default" as
defined in Section 1.1 shall have occurred and be continuing, the
Borrower shall pay interest at the Default Rate. In no event
shall the rate of interest exceed the maximum rate permitted by
applicable law. If the Borrower pays to the Lender interest
in excess of the amount permitted by applicable law, such excess
shall be applied in reduction of the principal balance of the
Credit Facilities (as the Lender may elect), and any remaining
excess interest, after application thereof to the principal balance
of the Credit Facilities, shall be refunded to the
Borrower.
2.8
Payments . All payments (including prepayments)
by the Borrower on account of principal, interest and fees shall be
made without set-off or counterclaim to the Lender at its office
referred to in Section 10.2 in lawful money of the United States of
America and in immediately available funds.
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2.9
Certain Notices . Notices by the Borrower to the
Lender pursuant to Section 2.4, each prepayment pursuant to Section
2.5 and each renewal pursuant to Section 2.6(b) shall be
irrevocable and shall be effective only if received by the Lender
not later than 10:00 a.m. St. Louis, Missouri time, and (a) in the
case of borrowings and prepayments of, conversions into and (in the
case of LIBOR Loans) renewals of (i) Daily Reset LIBOR Loans, given
on the Business Day thereof; and (ii) LIBOR Loans, given two (2)
Business Days prior thereto. Each such notice shall specify
the Loans to be borrowed, prepaid, converted or renewed and the
amount (subject to Section 2.10) and Type of Loans to be borrowed,
converted, prepaid or renewed (and in the case of conversion, the
Type of Loans to result from such conversion and in the case of
LIBOR Loans, the Loan Period therefor) and the date of the
borrowing, prepayment, conversion or renewal (which shall be a
Business Day), in the case of a borrowing, such additional
information as may be required by Section 2.4.
2.10
Minimum Amounts . Each Daily Reset LIBOR Loan (or
Prime Rate Loan) shall be in the minimum amount of $50,000.00, and
if greater than $50,000.00, an integral multiple of $5,000. Each
LIBOR Loan shall be in the minimum amount of $100,000, and if
greater than $100,000, an integral multiple of $10,000. In
addition, there shall be no more than ten (10) LIBOR Loans under
the Revolving Credit Facility outstanding at any time.
2.11
Use of Proceeds . The proceeds of the Loans
described herein shall be used by the Borrower to finance general
working capital purposes of the Borrower and to make capital
investments from time to time in the Subsidiary Bank.
SECTION
3. AMOUNT AND TERMS OF TERM CREDIT FACILITY
3.1
Term Loan . The Term Credit Facility shall be
evidenced by the Term Note. Subject to the terms and
conditions of this Agreement, the Lender agrees to make the Term
Credit Facility to the Borrower up to, but not exceeding at any
time the Term Credit Facility Commitment; provided ,
however , that the Lender shall have no obligation to
provide the Term Credit Facility if an Event of Default exists as
of the date of this Agreement. The Term Credit Facility may
be outstanding as a Daily Reset LIBOR Loan or LIBOR Loan Credit
Facility.
3.2
Principal Payments . Unless earlier payment is
required under this Agreement, the Term Credit Facility shall be
due and payable to the Lender on the Term Credit Facility
Termination Date.
3.3
Incorporation of Terms . The provisions contained
in Sections 2.3, 2.5, 2.6, 2.7, 2.8 and 2.9 shall apply to the Term
Credit Facility and such provisions are hereby incorporated within
this Section 3.3 by this reference; provided ,
however , notwithstanding such incorporated provisions, only
one Loan and Type of Loan may be outstanding under the Term Credit
Facility at any time.
3.4
Use of Proceeds . The proceeds of the Term Credit
Facility described herein shall be used by the Borrower to finance
the acquisition by Borrower of NorthStar Bancshares, Inc.
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SECTION
4. YIELD PROTECTION; ILLEGALITY; ETC.
4.1
Additional Costs . If the Lender shall determine
in good faith that any Governmental Regulation not presently in
effect or applicable to the Lender, or any interpretation or
administration thereof by any governmental authority charged with
the interpretation or administration thereof, or compliance by the
Lender with any new guideline, request or directive of any such
authority (whether or not having the force of law), shall (i)
affect the basis of taxation of payments to the Lender of any
amounts payable by the Borrower under this Agreement or any other
Loan Document (other than taxes imposed on the overall net income
of the Lender, by the jurisdiction, or by any political subdivision
or taxing authority of any such jurisdiction, in which the Lender
has its principal office), or (ii) impose, modify or deem
applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by the Lender, or (iii) impose any other condition with
respect to this Agreement, the Commitment, the Loans, and the
result of any of the foregoing is to increase by an amount deemed
by the Lender to be material the costs to the Lender of providing
the Commitment or making, funding or maintaining the Loans or to
reduce by an amount deemed by the Lender to be material the amount
of any sum receivable by the Lender under this Agreement, then the
Borrower shall pay to the Lender, such additional amounts as are
sufficient to compensate the Lender for such increased cost or
reduced sum receivable. A statement as to the amount of such
increased cost or reduced sum receivable, prepared in good faith
and in reasonable detail by the Lender and submitted to the
Borrower, shall be conclusive and binding for all purposes absent
manifest error in computation.
4.2
Illegality and Impossibility .
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(a) If
the Lender shall determine in good faith that any Governmental
Regulation not presently in effect or applicable to the Lender, or
any interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof, or compliance by the Lender with any new guideline,
request or directive of such authority (whether or not having the
force of law), including exchange controls, shall make it unlawful
or impossible for the Lender to maintain the Loans at the LIBOR
Rate or the Daily Reset LIBOR Rate under this Agreement, the
Borrower shall, upon receipt of notice thereof from the Lender,
repay in full to the Lender the then outstanding principal amount
of such Loan, together with all accrued interest thereon to the
date of payment and all amounts due to the Lender under Section
4.3: (i) on the last day of the then current Loan Period applicable
to a LIBOR Loan if the Lender may lawfully continue to maintain
such LIBOR Rate Loan to such day, or (ii) immediately if the Lender
may not continue to maintain such LIBOR Loan or if the Loan is a
Daily Reset LIBOR Loan.
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(b) Notwithstanding
Section 4.2(a), if such section would otherwise be applicable, but
the Lender could lawfully maintain the Loans based upon the LIBOR
Rate or the Daily Reset LIBOR Rate at the Prime Rate, then during
such period as the Lender cannot maintain the Loans based upon the
LIBOR Rate or the Daily Reset LIBOR Rate, as applicable, such Loans
shall bear interest at a per annum rate equal to the Prime Rate in
effect from time to time less one and one-half of one percent
(1.50%) in effect. If all events or conditions making it unlawful
or impossible for the Lender to
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maintain the Loans based upon the LIBOR Rate or
the Daily Reset LIBOR Rate cease to exist, then the Loans shall
again bear interest at the Adjusted LIBOR Rate commencing on (i)
the first day of the Loan Period immediately following the date all
such events and conditions so cease to exist with respect to LIBOR
Loans and (ii) on the day following the date all such events and
conditions so cease to exist with respect to Daily Reset LIBOR
Loans.
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4.3
LIBOR Rate Indemnity . If the Borrower fails to
make any payment of principal or interest in respect of any Loan
based upon a LIBOR Rate when due or makes any payment or prepayment
of the principal of any such Loan, for any reason, on any date
other than the last day of the Loan Period applicable thereto, or
if the Borrower fails to borrow any Loan based upon the LIBOR Rate
after requesting the same in accordance with this Agreement, the
Borrower shall reimburse the Lender on demand for any resulting
loss or expense incurred by the Lender, including any loss incurred
in obtaining, liquidating or employing deposits from third
parties. A statement as to the amount of such loss or
expense, prepared in good faith and in reasonable detail by the
Lender and submitted to the Borrower, shall be conclusive and
binding for all purposes absent manifest error in
computation. Without limiting the foregoing, if a LIBOR Loan
is prepaid prior to the end of the Loan Period for such LIBOR Loan,
whether voluntarily or because prepayment is required due to the
occurrence of the Termination Date or on account of a default,
Borrower agrees to pay all of Lender’s costs, expenses and
Interest Differential, as determined by Lender, incurred as a
result of such prepayment.
SECTION
5. REPRESENTATIONS AND WARRANTIES
In
order to induce the Lender to enter into this Agreement and to make
each Loan herein provided for, the Borrower hereby represents and
warrants to the Lender (for itself and on behalf of the Subsidiary
Bank where applicable) that:
5.1
Financial Condition .
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(a) The
financial statements of the Borrower as of the fiscal year ending
December 31, 2005 and for the quarter ending March 31, 2006, copies
of which have heretofore been furnished to the Lender, are each
true, complete and correct, in all material respects, and present
fairly the financial condition of the Borrower as at such date, and
the results of its operations and changes in financial position for
the fiscal year and the quarter then ended.
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(b) All
financial statements of the Borrower referenced in (a) above,
including the related schedules and notes thereto, have been
prepared in accordance with generally accepted accounting
principles applied consistently throughout the periods
involved. The Borrower has not incurred any material
Contingent Obligation, contingent liabilities or liability for
taxes, long-term leases or unusual forward or long-term
commitments, which are not reflected in the foregoing statements or
in the notes thereto.
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5.2
No Change . Since December 31, 2005, there has
been no material adverse change in the business, operations, assets
or financial or other condition of the Borrower.
10
5.3
Existence; Compliance with Law . The Borrower (a)
is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (b) has the power and
authority and the legal right to own and operate its property, to
lease the property it operates and to conduct the business in which
it is currently engaged, (c) is duly qualified as a foreign entity
and is in good standing under the laws of each jurisdiction where
ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the
failure to comply therewith would not, in the aggregate, have a
material adverse impact on its business operati
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