EXHIBIT 10.5
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$800,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 10, 1995
among
FIRST DEPOSIT NATIONAL BANK,
PROVIDIAN NATIONAL BANK,
PROVIDIAN CREDIT CORPORATION
and
PROVIDIAN CREDIT SERVICES, INC.,
as Borrowers,
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PROVIDIAN BANCORP, INC.,
as Guarantor,
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THE LENDERS NAMED HEREIN,
as Lenders
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and
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
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and
BANK OF AMERICA NATIONAL TRUST CITICORP USA, INC.
AND SAVINGS ASSOCIATION
CREDIT LYONNAIS, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CREDIT SUISSE NATIONSBANK OF TEXAS, N.A.
as Co-Agents
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[LOGO] CHASE
Table of Contents
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This Table of Contents is not part of the Agreement to which it is attached
but is inserted for convenience of reference only.
Page
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Section 1. Definitions..................................................... 1
1.01 Defined Terms................................................ 2
1.02 Other Definitional Provisions................................ 14
Section 2. Amount and Terms of Commitments................................. 14
2.01 Syndicated Loan Commitments.................................. 14
2.02 Procedure for Syndicated Loan Borrowing...................... 15
2.03 Competitive Bid Option Loans................................. 15
2.04 Swing Line Loans............................................. 19
2.05 Changes of Commitments....................................... 20
2.06 Fees......................................................... 21
2.07 Lending Offices.............................................. 22
2.08 Several Obligations.......................................... 22
2.09 Evidence of Indebtedness..................................... 22
2.10 Optional Prepayments and Conversions or Continuations
of Eurodollar Loans.......................................... 22
2.11 Mandatory Prepayments and Reductions of Commitments.......... 23
2.12 Extension of Termination Date................................ 24
2.13 New Lenders.................................................. 25
2.14 Increases in Commitments..................................... 25
2.15 Transition Provisions........................................ 26
Section 3. Payments of Principal and Interest.............................. 27
3.01 Repayment of Loans........................................... 27
Page
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3.02 Interest..................................................... 27
Section 4. Payments; Pro Rata Treatment; Computations; Etc. ............... 28
4.01 Payments..................................................... 28
4.02 Pro Rata Treatment........................................... 28
4.03 Computations................................................. 29
4.04 Minimum Amounts.............................................. 29
4.05 Certain Notices.............................................. 30
4.06 Non-Receipt of Funds by the Agent............................ 30
4.07 Sharing of Payments, Etc. ................................... 31
Section 5. Yield Protection, Etc. ......................................... 32
5.01 Additional Costs............................................. 32
5.02 Limitation on Types of Loans................................. 34
5.03 Illegality................................................... 34
5.04 Treatment of Affected Loans.................................. 34
5.05 Compensation................................................. 35
5.06 U.S. Taxes................................................... 36
Section 6. Conditions Precedent............................................ 37
6.01 Effective Date............................................... 37
6.02 Initial and Subsequent Loans................................. 39
6.03 Initial and Subsequent Loans to PCSI......................... 39
Section 7. Representations and Warranties.................................. 39
7.01 Financial Condition.......................................... 40
7.02 No Change.................................................... 40
7.03 Corporate Existence; Compliance with Law..................... 40
7.04 Corporate Power; Authorization; Enforceable Obligations...... 41
Page
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7.05 No Legal Bar................................................. 41
7.06 No Material Litigation....................................... 41
7.07 No Default................................................... 41
7.08 Ownership of Property; Liens................................. 41
7.09 Taxes........................................................ 41
7.10 Federal Regulations.......................................... 42
7.11 ERISA........................................................ 42
7.12 Investment Company Act; Other Regulations.................... 42
7.13 Subsidiaries................................................. 42
7.14 Purpose of Loans............................................. 43
7.15 True and Complete Disclosure................................. 43
7.16 Public Utility Holding Company Act........................... 43
Section 8. Certain Covenants of Each Obligor............................... 43
8.01 Financial Statements, Etc. .................................. 43
8.02 Litigation................................................... 45
8.03 Existence, Etc............................................... 45
8.04 Insurance.................................................... 46
8.05 Notices...................................................... 46
8.06 Limitation on Fundamental Changes............................ 48
8.07 Limitation on Sale of Assets................................. 48
8.08 Limitation on Liens.......................................... 49
8.09 Limitation on Transactions with Affiliates................... 50
Section 9. Additional Obligor-Specific Covenants........................... 50
9.01 Guarantor Covenants.......................................... 50
9.02 Covenants of FDNB, PNB and PCSI.............................. 50
Page
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9.03 Covenants of PCC............................................. 51
Section 10. Guarantee....................................................... 51
10.01 Guarantee.................................................... 51
10.02 Right of Set-off............................................. 51
10.03 No Subrogation............................................... 52
10.04 Amendments, etc. re Obligations; Waiver of Rights............ 52
10.05 Guarantee Absolute and Unconditional......................... 53
10.06 Reinstatement................................................ 53
Section 11. Events of Default.............................................. 53
Section 12. The Agent...................................................... 56
12.01 Appointment, Powers and Immunities........................... 56
12.02 Reliance by Agent............................................ 57
12.03 Defaults..................................................... 57
12.04 Rights as a Lender........................................... 57
12.05 Indemnification.............................................. 57
12.06 Non-Reliance on Agent and Other Lenders...................... 58
12.07 Failure to Act............................................... 58
12.08 Resignation or Removal of Agent.............................. 58
12.09 Co-Agents.................................................... 59
Section 13. Miscellaneous.................................................. 59
13.01 Waiver....................................................... 59
13.02 Notices...................................................... 59
13.03 Expenses, Etc. .............................................. 59
13.04 Amendments, Etc. ............................................ 60
13.05 Successors and Assigns....................................... 61
Page
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13.06 Assignments and Participations............................... 61
13.07 Survival..................................................... 64
13.08 Captions..................................................... 64
13.09 Counterparts................................................. 64
13.10 Independence of Covenants.................................... 64
13.11 [Reserved]................................................... 64
13.12 Severability................................................. 64
13.13 Integration.................................................. 64
13.14 Governing Law................................................ 65
13.15 Submission to Jurisdiction; Waivers.......................... 65
13.16 Waivers of Jury Trial........................................ 65
SCHEDULE I - Subsidiaries
SCHEDULE II - Section 8.08(c) Existing Liens
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of CBO Quote Request
EXHIBIT C - Form of CBO Quote
EXHIBIT D-1 - Form of Notice of Borrowing of CBO Loans
EXHIBIT D-2 - Form of Notice of Borrowing of Syndicated Loans
EXHIBIT D-3 - Form of Notice of Borrowing of Swing Line Loans
EXHIBIT E - Form of Opinion of Counsel to the Obligors
EXHIBIT F-1 - Form of Syndicated Note
EXHIBIT F-2 - Form of Competitive Bid Note
EXHIBIT G - Form of Additional Lender Addendum
EXHIBIT H - Form of Increased Commitment Addendum
EXHIBIT I - Form of Opinion of Counsel to the Lenders
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 10, 1995, among
FIRST DEPOSIT NATIONAL BANK, a national banking association incorporated,
organized and existing under the laws of the United States of America ("FDNB"),
PROVIDIAN NATIONAL BANK (formerly First Deposit National Credit Card Bank), a
national banking association incorporated, organized and existing under the laws
of the United States of America ("PNB"), PROVIDIAN CREDIT CORPORATION (formerly
Providian National Credit Corporation), a corporation organized and existing
under the laws of the State of Delaware ("PCC"), PROVIDIAN CREDIT SERVICES,
INC., a corporation organized and existing under the laws of the State of Utah
("PCSI"; together with FDNB, PNB and PCC, the "Borrowers"); PROVIDIAN BANCORP,
INC., a corporation organized and existing under the laws of the State of
Delaware (the "Guarantor"; together with the Borrowers, the "Obligors"); the
banks and financial institutions listed on the signature pages hereof under the
caption "LENDERS" or which, pursuant to Section 2.12, 2.13 or 13.06(b) hereof,
shall become a "Lender" hereunder (individually, a "Lender" and, collectively,
the "Lenders"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as administrative agent for the Lenders (in such capacity,
together with any successor appointed pursuant to Section 12.08, the "Agent").
RECITALS
A. FDNB, PNB, PCC, the Guarantor, the Agent and the banks and financial
institutions parties thereto (the "Existing Lenders") entered into a
$500,000,000 Credit Agreement, dated as of October 14, 1994 (the "Existing
Agreement").
B. FDNB, PNB, PCC and the Guarantor have requested that the Lenders enter
into this Amended and Restated Credit Agreement for the purpose of extending the
Termination Date, increasing the aggregate principal amount of the commitments,
adding PCSI as a Borrower, adding certain new Lenders, and making certain other
amendments.
AGREEMENT
The parties hereto hereby agree that from and after the Effective Date (as
hereinafter defined):
I. The Dai-Ichi Kangyo Bank, Ltd. and ABN-AMRO Bank N.V. (the "Additional
Lenders") shall be parties to the Agreement, as amended and restated hereby,
with the rights and obligations of Lenders hereunder, including, without
limitation, the obligations to make Loans in an aggregate amount not to exceed
their respective Commitments hereunder;
II. PCSI shall be a party to the Agreement, as amended and restated hereby,
with the rights and obligations of a Borrower hereunder, including, without
limitation, the right to make borrowings under this Agreement in an aggregate
amount not to exceed the PCSI Borrowing Limit; and
III. The Existing Agreement shall be amended and restated in its entirety as
follows:
Section 1. Definitions.
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1.01 Defined Terms. As used in this Agreement, the following terms shall
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have the following meanings:
"Additional Lender": as defined in paragraph I above.
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"Additional Lender Addendum": an agreement, substantially in the form
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attached hereto as Exhibit G, made by a financial institution becoming a
"Lender" hereunder and accepted by the Borrowers and the Agent in accordance
with Section 2.13.
"Affiliate": as to any Person, any other Person which, directly or
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indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either (a) to vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or (b)
to direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Agent": as defined in the preamble.
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"Agreement": this Amended and Restated Credit Agreement, as amended,
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supplemented or otherwise modified from time to time.
"Applicable Lending Office": for each Lender and for each Type of Loan, the
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"Lending Office" of such Lender (or of an affiliate of such Lender) designated
for such Type of Loan on the signature pages hereof or such other office of such
Lender (or of an affiliate of such Lender) as such Lender may from time to time
specify to the Agent and each Borrower as the office at which its Loans of such
Type are to be made and maintained.
"Applicable Margin": for each Type of Syndicated Loan, the rate per annum set
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forth opposite such Type of Loan below:
Base Rate Loan 0.0000%
Eurodollar Loan 0.1750%
"Assignment and Acceptance": an assignment and acceptance, substantially in
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the form attached hereto as Exhibit A, made by a Lender and an assignee of such
Lender and accepted by the Guarantor and the Agent in accordance with and to the
extent required by Section 13.06(b).
"Available Commitment": as to any Lender at any time, an amount equal to the
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excess, if any, of (a) the amount of such Lender's Commitment over (b) the
aggregate principal amount of all Syndicated Loans made by such Lender then
outstanding.
"Bankruptcy Code": the Federal Bankruptcy Code of 1978, as amended from time
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to time.
"Base Rate": for any day, a rate per annum equal to the greater of (a) the
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Prime Rate in effect on such day and (b) the Federal Funds Rate in effect on
such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate or the Federal
Funds Rate, respectively.
2
"Base Rate Loans": Loans the rate of interest applicable to which is based
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upon the Base Rate.
"Borrowing Date": any Business Day specified in a notice pursuant to Section
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2.02, 2.03 or 2.04 as a date on which a Borrower requests the Lenders to make
Loans hereunder.
"Business Day": any day on which (a) commercial banks are not authorized or
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required to close in New York City, San Francisco or the State of New Hampshire
and (b) if such day relates to the giving of notices or quotes in connection
with a LIBOR Auction or to a borrowing of, a payment or prepayment of principal
of or interest on, a Conversion of or into, or an Interest Period for, a
Eurodollar Loan or a LIBOR Market Loan or a notice by any Borrower with respect
to any such borrowing, payment, prepayment, Conversion or Interest Period,
dealings in Dollar deposits are carried out in the London interbank market.
"Capital Stock": any and all shares, interests, participations or other
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equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"CBO Quote": an offer in accordance with Section 2.03(c) by a Lender to make a
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Competitive Bid Option Loan with one single specified interest rate.
"CBO Quote Request": as defined in Section 2.03(b).
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"Chase": The Chase Manhattan Bank (National Association).
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"Class": as to any Loan, its nature as a Competitive Bid Option Loan, a Swing
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Line Loan or a Syndicated Loan.
"Co-Agents": Bank of America National Trust and Savings Association, Citicorp
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USA, Inc., Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Credit Suisse and NationsBank
of Texas, N.A.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
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"Commitment": as to any Lender, the obligation of such Lender to make
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Syndicated Loans in an aggregate amount at any one time outstanding up to but
not exceeding the amount set opposite the name of such Lender on the signature
pages hereof under the caption "Commitment", or if such Lender has entered into
an Increased Commitment Addendum or one or more Assignment and Acceptances, and
with respect to each Lender that becomes a Lender pursuant to an Assignment and
Acceptance or an Additional Lender Addendum, as set forth in such Increased
Commitment Addendum, Assignment and Acceptance or Additional Lender Addendum (as
the same may be reduced from time to time pursuant to Section 2.05). The
original aggregate principal amount of the Commitments is $800,000,000.
"Commitment Percentage": as to any Lender at any time, the percentage which
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such Lender's Commitment then constitutes of the aggregate Commitments (or, at
any time after the Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender's Loans then outstanding
(plus, in the case of each Lender other than the Swing Line Lender, such
Lender's participation in Unrefunded Swing
3
Line Loans and minus, in the case of the Swing Line Lender, the aggregate
participations of the Lenders in the Unrefunded Swing Line Loans) constitutes of
the aggregate principal amount of the Loans then outstanding).
"Commitment Period": the period from and including the date hereof to but not
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including the Termination Date or such earlier date on which the Commitments
shall terminate as provided herein.
"Commonly Controlled Entity": with respect to any Obligor, an entity, whether
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or not incorporated, which is under common control with such Obligor within the
meaning of Section 4001 of ERISA or is part of a group which includes such
Obligor and which is treated as a single employer under Section 414 of the Code.
"Competitive Bid Option Loans": loans provided for in Section 2.03.
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"Consolidated Finance Assets": as of any date of determination, with respect
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to any Person, the sum of (a) all cash and cash equivalents; (b) short-term
investment grade securities; and (c) all consumer loan receivables, credit card
receivables, premium finance receivables, residential mortgage receivables and
other consumer receivables arising in the ordinary course of business and any
other assets consented to in writing by the Required Lenders, less any such
receivables which are sixty or more days past due, determined, in each case, on
a gross basis.
"Consolidated Funded Debt": as of any date of determination, with respect to
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any Person, the consolidated Indebtedness of such Person and its Consolidated
Subsidiaries.
"Consolidated Pre-tax Income": with respect to any period, the net income of
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the Guarantor and its Consolidated Subsidiaries plus (or minus) income tax
expense (or benefit) to the extent deducted (or added) in calculating such net
income.
"Consolidated Pre-tax Return on Assets": as of the last day of any Quarterly
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Period of the Guarantor, the percentage equivalent of a fraction, the numerator
of which is the Consolidated Pre-Tax Income for the twelve months ending on such
date and the denominator of which is the average on a monthly basis of all
assets of the Guarantor and its Consolidated Subsidiaries for such twelve-month
period.
"Consolidated Senior Funded Debt": as of any date of determination, with
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respect to any Person, (A) the Consolidated Funded Debt of such Person and its
Consolidated Subsidiaries less (B) the Consolidated Subordinated Debt of such
Person and its Consolidated Subsidiaries included in (A).
"Consolidated Shareholders' Equity": as of any date of determination, with
---------------------------------
respect to any Person, the consolidated total stockholders' equity of such
Person and its Consolidated Subsidiaries.
"Consolidated Subordinated Debt": as of any date of determination, with
------------------------------
respect to any Person, the Subordinated Debt of such Person and its Consolidated
Subsidiaries.
"Consolidated Subsidiary": as of any date of determination, with respect to
-----------------------
any Person, each Subsidiary of such Person (whether now existing or hereafter
created or
4
acquired) the financial statements of which shall or should be consolidated with
the financial statements of such Person.
"Consolidated Tangible Capital": as of any date of determination, with respect
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to any Person, (a) Consolidated Shareholders' Equity less goodwill and
identifiable intangibles of such Person (other than identified intangibles
consisting of originated mortgage servicing rights, purchased mortgage servicing
rights and purchased credit card relationships to the extent that such
intangibles are "qualifying intangible assets" under the OCC's risk based
capital guidelines, with any limitations thereunder determined on a consolidated
basis) plus (b) Consolidated Subordinated Debt minus (c) the excess, if any, of
(i) Consolidated Subordinated Debt of such Person over (ii) 25% of the amount
calculated pursuant to clauses (a) and (b) of this definition.
"Continue", "Continuation" and "Continued" shall refer to the continuation
-------- ------------ ---------
pursuant to Section 2.10 of a Eurodollar Loan as a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Contractual Obligation": as to any Person, any provision of any security
----------------------
issued by such Person or of any material agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Convert", "Conversion" and "Converted" shall refer to a conversion pursuant
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to Section 2.10 of one Type of Syndicated Loan into another Type of Syndicated
Loan, which may be accompanied by the transfer by a Lender (at its sole
discretion but subject to the proviso in the first sentence of (S) 5.01(c)) of a
Loan from one Applicable Lending Office to another.
"Credit Documents": this Agreement and the Fee Letter.
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"Default": any of the events specified in Section 11, whether or not any
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requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
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America.
"Effective Date": as defined in Section 6.01.
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"ERISA": the Employee Retirement Income Security Act of 1974, as amended from
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time to time.
"ERISA Affiliate": with respect to any Obligor, any corporation or trade or
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business that is a member of any group of organizations (i) described in Section
414(b) or (c) of the Code and the regulations issued thereunder of which such
Obligor is a member and (ii) solely with respect to potential liability under
Section 302(c)(11) of ERISA or Section 412(c)(11) of the Code or the lien
created under Section 302(f) of ERISA or Section 412(n) of the Code, described
in Section 414(m) or (o) of the Code and the regulations issued thereunder of
which such Obligor is a member.
"ERISA Multiemployer Plan": with respect to any Obligor, a multiemployer plan
------------------------
as defined in Section 3(37) of ERISA to which such Obligor or any of its ERISA
Affiliates has an obligation to contribute.
5
"ERISA Pension Plan": with respect to any Obligor, an employee pension benefit
------------------
plan as defined in Section 3(2) of ERISA, other than a Multiemployer Plan, which
is maintained by such Obligor or any of its ERISA Affiliates.
"ERISA Plan": an ERISA Pension Plan or an ERISA Welfare Plan.
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"ERISA Welfare Plan": with respect to any Obligor, an employee welfare benefit
------------------
plan as defined in Section 3(1) of ERISA, other than a Multiemployer Plan, which
is maintained by such Obligor or any of its ERISA Affiliates.
"Eurocurrency Reserve Requirements": for any day as applied to a Eurodollar
---------------------------------
Loan, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System with deposits exceeding $1 billion in respect of
eurodollar currency funding liabilities.
"Eurodollar Base Rate": with respect to each day during each Interest Period
--------------------
pertaining to a Eurodollar Loan, the rate per annum equal to the arithmetic mean
(rounded upward to the nearest 1/16th of 1%) of the respective rates notified to
the Agent by each of the Reference Lenders as the rate at which such Reference
Lender is offered Dollar deposits at or about 10:00 A.M., New York City time,
two Business Days prior to the beginning of such Interest Period (a) in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being conducted,
(b) for delivery on the first day of such Interest Period, (c) for the number of
days comprised therein and (d) in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Syndicated Loans the interest rates on which are
----------------
determined on the basis of the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
---------------
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 11, provided that
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any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Existing Agreement": as defined in the recitals.
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"Existing Lenders": as defined in the recitals.
----------------
6
"Extended Termination Date": the fourth (4th) anniversary date of the
-------------------------
Effective Date, provided that if such date is not a Business Day, the Extended
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Termination Date shall be the next preceding Business Day.
"Facility Fee": as defined in Section 2.06(a).
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"Facility Fee Rate": for each Quarterly Period, the percentage set forth
-----------------
below opposite the Consolidated Tangible Capital of the Guarantor as of the
Quarterly Date immediately preceding such Quarterly Period:
Consolidated Tangible Capital Facility Fee Rate
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greater than or equal to
$400,000,000 0.1250%
less than $400,000,000 0.1500%
"FDIA": the Federal Deposit Insurance Act, as amended, or any successor
----
statute.
"FDIC": as defined in Section 8.01(h).
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"FDNB": as defined in the preamble.
----
"Federal Funds Rate": for any day, the rate per annum (rounded upwards, if
------------------
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
provided that (a) if the day for which such rate is to be determined is not a
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Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so published for any
Business Day, the Federal Funds Rate for such Business Day shall be the
arithmetic mean of three rates quoted by Federal funds brokers to Chase on such
Business Day on such transactions as determined by the Agent.
"Fee Letter": the letter dated August 19, 1994 between the Obligors and the
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Agent relating to certain agency and other fees in respect of the credit
facilities provided hereunder.
"Financing Lease": any lease of property, real or personal, the obligations
---------------
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"First Scheduled Termination Date": the third (3rd) anniversary date of the
--------------------------------
Effective Date, provided that if such date is not a Business Day, the First
--------
Scheduled Termination Date shall be the preceding Business Day.
"GAAP": generally accepted accounting principles in the United States of
----
America in effect from time to time, except that for purposes of Sections 9.01,
9.02 and 9.03, GAAP shall be determined on the basis of such principles in
effect on the date hereof and
7
consistent with those used in the preparation of the audited financial
statements referred to in Section 7.01.
"Governmental Authority": 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.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
-------------------- -------------------
obligation of the guaranteeing person guaranteeing or intended to guarantee any
Indebtedness (the "primary obligations") of any other Person (the "primary
------------------- -------
obligor") in any manner, whether directly or indirectly, including, without
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limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) 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 (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
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endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by
such guaranteeing person in good faith.
"Guarantor": as defined in the preamble.
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"Increased Commitment Addendum": an agreement, substantially in the form
-----------------------------
attached hereto as Exhibit H, made by a Lender and accepted by the Obligors and
the Agent in accordance with Section 2.14.
"Indebtedness": of any Person at any date, (a) all indebtedness of such
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Person for borrowed money (including, without limitation, deposits but excluding
non-interest bearing deposits classified as official checks of such Person) or
for the deferred purchase price of property or services (other than trade
liabilities and other current or accrued liabilities arising in the ordinary
course of business and payable in accordance with customary practices), (b) any
other indebtedness of such Person which is evidenced by a note, bond, debenture,
credit agreement or similar instrument, (c) all obligations of such Person under
Financing Leases, (d) all obligations of such Person in respect of acceptances
issued or created for the account of such Person and (e) all indebtedness for
borrowed money secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof; provided, however, that the term Indebtedness shall not include any
-------- -------
repurchase obligation of such Person with respect to U.S. Government securities
on a book entry basis for a period of no more than three months where the
repurchase obligation matures no later than the maturity of underlying
government obligation and where such Person owns the corresponding underlying
government obligation.
8
"Insured Depository Institution": an "insured depository institution" as
------------------------------
defined in the FDIA, 12 U.S.C.A. (S) 1813(c)(2) (or any successor provision of
the FDIA).
"Interest Period":
---------------
(a) with respect to any Eurodollar Loan, each period commencing on the
date such Eurodollar Loan is made or Converted from a Loan of another Type
or the last day of the next preceding Interest Period for such Loan and
ending on (1) the numerically corresponding day in the first, second, third
or sixth calendar month thereafter, as the Borrower may select as provided
in Section 4.05, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month or (2) for any period of less than one month or more than six months
selected by the Borrower and acceptable to each Lender as provided in
Section 4.05, the last day of such period;
(b) with respect to any Set Rate Loan, the period commencing on the date
such Set Rate Loan is made and ending on any Business Day at least 7 days
thereafter, as the Borrower may select as provided in Section 2.03(b); and
(c) with respect to any LIBOR Market Loan, the period commencing on the
date such LIBOR Market Loan is made and ending on the numerically
corresponding day in that number of calendar months thereafter as the
Borrower may select as provided in Section 2.03(b), except that each such
Interest Period that commences on the last Business Day of a calendar month
(or any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day
of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Eurodollar
Loan or Competitive Bid Option Loan would otherwise end after the Termination
Date, such Interest Period shall, subject to clause (iii) below, end on the
Termination Date; (ii) subject to clause (i) above, each Interest Period that
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for a Eurodollar
Loan or a LIBOR Market Loan, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (iii)
subject to clause (ii) above, except as permitted in Section 4.05, no Interest
Period for any Loan (other than a Set Rate Loan or a Swing Line Loan) shall have
a duration of less than one month (in the case of a Eurodollar Loan or a LIBOR
Market Loan) and, if the Interest Period for any Eurodollar Loan or LIBOR Market
Loan would otherwise be a shorter period, a Eurodollar Loan or LIBOR Market Loan
shall not be available hereunder for such period.
"Lenders": as defined in the preamble.
-------
"LIBO Margin": as defined in Section 2.03(c)(ii)(C).
-----------
"LIBO Rate": for any LIBOR Market Loan, a rate per annum equal to the
---------
Eurodollar Rate for the Interest Period for such Loan.
"LIBOR Auction": a solicitation of CBO Quotes setting forth LIBO Margins based
-------------
on the LIBO Rate pursuant to Section 2.03.
9
"LIBOR Market Loans": Competitive Bid Option Loans interest rates on which are
------------------
determined on the basis of LIBO Rates pursuant to a LIBOR Auction.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit arrangement,
----
encumbrance, lien (statutory or other), charge or other security interest or any
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).
"Loan": any loan made by any Lender pursuant to this Agreement.
----
"Majority Lenders": at any time, Lenders the Commitment Percentages of which
----------------
aggregate more than 50%.
"Material Adverse Effect": with respect to any Obligor, a material adverse
-----------------------
effect on (a) the financial condition of such Obligor and its Subsidiaries taken
as a whole, (b) the ability of such Obligor to perform its material obligations
under any of the Credit Documents to which it is a party, (c) the validity or
enforceability of any material provisions of the Credit Documents or (d) the
rights and remedies of the Lenders and the Agent under any of the Credit
Documents but, in the case of this clause (d), excluding any developments and
events generally applicable to comparable banks and financial institutions.
"Material Subsidiary": as to any Person, a Subsidiary, in which (a) such
-------------------
Person's and its other Subsidiaries' proportionate share of the total assets
(after intercompany eliminations) of such Subsidiary exceeds 10 percent of the
total assets of such Person and its Subsidiaries consolidated as of the end of
the most recently completed fiscal year; or (b) such Person's and its other
Subsidiaries' equity in the income from continuing operations before income
taxes, extraordinary items, and the cumulative effect of a change in accounting
principles of such Subsidiary exceeds 10 percent of such income of such Person
and its Subsidiaries consolidated for the most recently completed fiscal year.
"New Lender": as defined in Section 2.13.
----------
"Obligations": the collective reference to the unpaid principal of and
-----------
interest on the Loans and all other amounts owing by the Borrowers to the Agent
and the Lenders (including, without limitation, interest accruing at the then
applicable rate provided in this Agreement after the maturity of the Loans and
interest accruing at the then applicable rate provided in this Agreement after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Borrower whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred under this Agreement or any other Credit
Document, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agent or to the Lenders
that are required to be paid by the Borrowers pursuant to the terms of this
Agreement).
"OCC": the United States Office of the Comptroller of Currency.
---
"Participant": as defined in Section 13.06(c).
-----------
10
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
----
Subtitle A of Title IV of ERISA, or any successor thereto.
"PCC": as defined in the preamble.
---
"PCSI": as defined in the preamble.
----
"PCSI Borrowing Limit": at any time during any of the periods set forth
--------------------
below, the amount set forth opposite such period:
Period PCSI Borrowing Limit
------ --------------------
From the Effective Date to but excluding the
first anniversary thereof $150,000,000
From the first anniversary of the Effective
Date to but excluding the second anniversary
thereof $250,000,000
From the second anniversary of the Effective
Date to but excluding the third anniversary
thereof $350,000,000
Thereafter The aggregate amount of the
Commitments
"Person": an individual, partnership, corporation, business trust, joint
------
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
----
ERISA and in respect of which a Borrower or a Commonly Controlled Entity is (or,
if such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PNB": as defined in the preamble.
---
"Post-Default Rate": in respect of any principal of or interest on any Loan
-----------------
or any other amount under this Agreement or any other Credit Document that is
not paid when due, after giving effect to any applicable grace period (whether
at stated maturity, by acceleration, by mandatory prepayment or otherwise), a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to 2% plus the
----
Base Rate as in effect from time to time (provided that, if the amount so in
--------
default is principal of a Eurodollar Loan or a Competitive Bid Option Loan and
the due date thereof is a day other than the last day of the Interest Period
therefor, the "Post-Default Rate" for such principal shall be, for the period
from and including such due date to but excluding the last day of the Interest
Period, 2% plus the interest rate for such Loan as provided in Section 3.02 and,
----
thereafter, the rate provided for above in this definition).
"Prime Rate": the rate of interest per annum publicly announced from time to
----------
time by Chase as its prime commercial lending rate in effect at its Principal
Office (the Prime Rate not being intended to be the lowest rate of interest
charged by Chase in connection with extensions of credit to debtors).
11
"Principal Office": the principal office of Chase, located on the date
----------------
hereof at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Property": any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Quarterly Dates": the last day of March, June, September and December
---------------
in each year; provided that if any such day is not a Business Day, then such
--------
Quarterly Date shall be the next preceding Business Day.
"Quarterly Period": each fiscal quarter of the Guarantor or part
----------------
thereof during the period from the date of this Agreement to the Termination
Date.
"Quotation Date": as defined in Section 2.03(b).
--------------
"Receivable": any amount owing, from time to time, with respect to a
----------
credit card, consumer revolving or consumer installment loan account,
residential mortgage loan account or other consumer receivable owned by a
Borrower, including without limitation, amounts owing for payment of goods and
services, cash advances, convenience checks, annual membership fees, finance
charges, late charges, credit insurance premiums and cash advance fees and fees
relating to additional consumer products.
"Reference Lenders": Chase, Credit Suisse and Bank of America National
-----------------
Trust and Savings Association or any successor designated pursuant to Section
2.05(c).
"Register": as defined in Section 13.06(h).
--------
"Regulation U": Regulation U of the Board of Governors of the Federal
------------
Reserve System as in effect from time to time.
"Regulatory Change": with respect to any Lender, any change after the
-----------------
date of this Agreement in Federal, state or foreign law or regulations (other
than a voluntary change by such Lender of its status from a national Lender to a
state Lender or thrift or vice versa) or the adoption or making after such date
of any interpretation, directive or request applying to a class of banks or
financial institutions including such Lender of or under any Federal, state or
foreign law or regulations (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Required Lenders": at any time, Lenders the Commitment Percentages of which
----------------
aggregate more than 66-2/3%.
"Requirement of Law": as to any Person, the Certificate of Incorporation and
------------------
By-Laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an 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.
"Responsible Officer": with respect to any Obligor, the chairman of the
-------------------
board, the chief executive officer, president, executive vice president,
chief financial officer, senior financial officer, treasurer, vice president,
finance or any senior vice president of such Obligor
12
or, with respect to financial matters, the chief financial officer, senior
financial officer, treasurer, controller, vice president, finance or vice
president, corporate development of such Obligor; provided, that the term
--------
Responsible Officer shall also include any officer of such Obligor having a
different title but performing the same or similar functions as the above-
designated officers.
"Set Rate": as defined in Section 2.03(c)(ii)(D).
--------
"Set Rate Auction": a solicitation of CBO Quotes setting forth Set Rates
----------------
pursuant to Section 2.03.
"Set Rate Loans": Competitive Bid Option Loans the interest rates on
--------------
which are determined on the basis of Set Rates pursuant to a Set Rate Auction.
"Subordinated Debt": with respect to any Person, any unsecured
-----------------
Indebtedness of such Person the payment of the principal of and interest on
which and other payment obligations of such Person in respect thereof are
subordinated to the prior payment in full of the principal of and interest
(including post-petition interest) on the Loans and all other payment
obligations and liabilities of such Person to the Agent and the Lenders
hereunder; provided that the terms of such subordination may allow payments on
such Indebtedness if no Default or Event of Default has occurred and is
continuing hereunder.
"Subsidiary": as to any Person, a corporation, partnership or other entity
----------
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
"Swing Line Amount": $50,000,000.
-----------------
"Swing Line Base Rate": for any day, with respect to any Swing Line
--------------------
Base Rate Loan, a rate per annum equal to (x) the Federal Funds Rate for such
day plus (y) 0.3750% per annum.
----
"Swing Line Base Rate Loans": Swing Line Loans that bear interest at rates
--------------------------
based upon the Swing Line Base Rate.
"Swing Line Commitment": the obligation of the Swing Line Lender to
---------------------
make Swing Line Loans in an aggregate amount at any one time outstanding up to
but not exceeding the Swing Line Amount.
"Swing Line Lender": Chase.
-----------------
"Swing Line Loans": as defined in Section 2.04(a).
----------------
"Swing Line Money Market Loans": Swing Line Loans that bear interest
-----------------------------
at rates based upon the Swing Line Money Market Rate.
13
"Swing Line Money Market Rate": the rate of interest per annum
----------------------------
applicable to a Swing Line Money Market Loan to a Borrower as agreed by the
Swing Line Lender and a Borrower pursuant to Section 2.04(b).
"Syndicated Loans": as defined in Section 2.01.
----------------
"Termination Date": (i) (A) the First Scheduled Termination Date or (B) if
----------------
the Termination Date has been extended pursuant to Section 2.12, the Extended
Termination Date, or (ii) such earlier date as the Commitments shall be
terminated pursuant to Section 2.05(b) or 11.
"Type": as to any Loan, its nature as a Base Rate Loan, a Eurodollar
----
Loan, a Swing Line Base Rate Loan, a Swing Line Money Market Loan, a LIBOR
Market Loan or a Set Rate Loan.
"Unrefunded Eurodollar Loans": as defined in Section 2.15(b).
---------------------------
"Unrefunded Swing Line Loans": as defined in Section 2.04(d).
---------------------------
"Utilization Fee": as defined in Section 2.06(b).
---------------
"Utilization Fee Rate": 0.1250% per annum.
--------------------
1.02 Other Definitional Provisions.
-----------------------------
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto.
(b) As used herein, and any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Obligors and their
respective Subsidiaries not defined in Section 1.01 and accounting terms partly
defined in Section 1.01, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) 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, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 2. Amount and Terms of Commitments.
-------------------------------
2.01 Syndicated Loan Commitments.
---------------------------
(a) Subject to the terms and conditions hereof, each Lender severally
agrees to make Syndicated Loans ("Syndicated Loans") to any and each Borrower
----------------
from time to time during the Commitment Period on any Business Day in an
aggregate principal amount at any one time outstanding not to exceed the amount
of such Lender's Commitment, provided that the aggregate principal amount of all
--------
Syndicated Loans, together with the aggregate principal amount of all
Competitive Bid Option Loans and all Swing Line Loans at
14
any one time outstanding to all the Borrowers shall not exceed an amount equal
to the aggregate amount of the Commitments in effect at such time, and provided,
--------
further, that the aggregate principal amount of all Loans to PCSI at any one
-------
time outstanding shall not exceed an amount equal to the PCSI Borrowing Limit at
such time. During the Commitment Period each Borrower may use the Commitments
by borrowing, prepaying the Syndicated Loans in whole or in part, reborrowing,
Converting Syndicated Loans of one Type into Syndicated Loans of another Type or
Continuing Syndicated Loans of one Type as Syndicated Loans of the same Type,
all in accordance with the terms and conditions hereof.
(b) The Syndicated Loans may from time to time be (i) Eurodollar
Loans, (ii) Base Rate Loans or (iii) a combination thereof, as determined by the
applicable Borrower and notified to the Agent in accordance with Sections 2.02
and 2.10, provided that no Syndicated Loan shall be made as a Eurodollar Loan
--------
after the day that is one month prior to the Termination Date.
(c) The Competitive Bid Option Loans and Swing Line Loans made by a
Lender shall not reduce the Commitment of such Lender to make Syndicated Loans,
except to the extent that the aggregate principal amount of all Syndicated
Loans, together with the aggregate principal amount of all Competitive Bid
Option Loans and all Swing Line Loans at any one time outstanding to all the
Borrowers shall exceed an amount equal to the aggregate amount of the
Commitments in effect at such time.
2.02 Procedure for Syndicated Loan Borrowing. Each Borrower may
---------------------------------------
borrow under the Commitments during the Commitment Period on any Business Day,
provided that each Borrower shall give the Agent irrevocable notice prior to
--------
11:00 A.M., New York City time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Syndicated Loans are to be
initially Eurodollar Loans, or (b) on the requested Borrowing Date, otherwise,
specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, Base Rate Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the amount of such Type of Loan and the length of the initial
Interest Period therefor. Each borrowing under the Commitments shall be in an
amount equal to (x) in the case of Base Rate Loans, at least $5,000,000 (or, if
the then Available Commitments are less than $5,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from a Borrower,
the Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Agent for the
account of such Borrower at account number NYAON ▇▇▇-▇-▇▇▇▇▇▇ maintained by the
Agent with Chase at the Principal Office prior to 1:00 P.M., New York City time,
on the Borrowing Date requested by such Borrower in funds immediately available
to the Agent. Such borrowing will then be made available to such Borrower by
the Agent by depositing the aggregate of the amounts made available to the Agent
by the Lenders, in like funds as received by the Agent, in the account of such
Borrower at such office, or in another account designated by such Borrower in a
notice to the Agent hereunder.
2.03 Competitive Bid Option Loans.
----------------------------
(a) Subject to the terms and conditions of this Agreement, any
Borrower may request the Lenders to make offers to make Competitive Bid Option
Loans to such Borrower from time to time during the Commitment Period on any
Business Day. The Lenders may, but shall have no obligation to, make such
offers and such Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.03.
15
Competitive Bid Option Loans may be LIBOR Market Loans or Set Rate Loans,
provided that the aggregate principal amount of all Competitive Bid Option
--------
Loans, together with the aggregate principal amount of all Syndicated Loans and
all Swing Line Loans, at any one time outstanding to all Borrowers shall not
exceed an amount equal to the aggregate amount of the Commitments at such time,
and, provided, further, that the aggregate principal amount of all Loans to
-------- -------
PCSI at any one time outstanding shall not exceed an amount equal to the PCSI
Borrowing Limit at such time.
(b) When any Borrower wishes to request offers to make Competitive Bid
Option Loans, it shall give the Agent (which shall promptly notify the Lenders)
notice (a "CBO Quote Request") no later than 11:00 a.m. New York City time on
-----------------
(x) the fourth Business Day prior to the date of borrowing proposed therein, in
the case of a LIBOR Auction or (y) the Business Day next preceding the date of
borrowing proposed therein, in the case of a Set Rate Auction (or, in any such
case, such other time and date as such Borrower and the Agent, with the consent
of the Majority Lenders, may agree). Each Borrower may request offers to make
Competitive Bid Option Loans for up to three different Interest Periods in a
single notice (for which purpose Interest Periods in different lettered clauses
of the definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); provided that the request for
--------
each separate Interest Period shall be deemed to be a separate CBO Quote Request
for a separate borrowing (a "Competitive Bid Option Borrowing"). Each such
--------------------------------
notice shall be substantially in the form of Exhibit B hereto and shall specify
as to each Competitive Bid Option Borrowing:
(i) the proposed date of such borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Competitive Bid Option Borrowing,
which shall be at least $5,000,000 (or a larger whole multiple of $1,000,000)
but shall not cause the limit specified in Section 2.03(a) to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the CBO Quotes requested for a particular Interest
Period are for LIBOR Market Loans or Set Rate Loans; and
(v) if the CBO Quotes requested are for Set Rate Loans, the date on
which the CBO Quotes are to be submitted if it is before the proposed date of
borrowing (the date on which such CBO Quotes are to be submitted is called the
"Quotation Date").
--------------
(c) (i) Each Lender may submit one or more CBO Quotes, each containing an
offer to make a Competitive Bid Option Loan in response to any CBO Quote
Request; provided that, if a Borrower's request under Section 2.03(b) specified
--------
more than one Interest Period, such Lender may make a single submission
containing one or more CBO Quotes for each such Interest Period. Each CBO Quote
must be submitted to the Agent not later than (x) 2:30 p.m. New York City time
on the fourth Business Day prior to the proposed date of borrowing, in the case
of a LIBOR Auction or (y) 9:45 a.m. New York City time on the Quotation Date, in
the case of a Set Rate Auction (or, in any such case, such other time and date
as the Borrower requesting such bids and the Agent, with the consent of the
Majority Lenders, may agree); provided that any CBO Quote may be submitted by
--------
Chase (or its Applicable Lending Office) only if Chase (or such Applicable
Lending Office) notifies the requesting Borrower of the terms of the offer
contained therein not later than (x) 2:15 p.m.
16
New York City time on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 9:30 a.m. New York City time on
the Quotation Date, in the case of a Set Rate Auction. Subject to Sections 5.03,
6.02 and 11 hereof, any CBO Quote so made shall be irrevocable except with the
consent of the Agent given on the instructions of the requesting Borrower.
(ii) Each CBO Quote shall be substantially in the form of Exhibit C
hereto and shall specify:
(A) the proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid Option Loan for
which each such offer is being made, which principal amount shall be at
least $5,000,000 (or a larger whole multiple of $1,000,000); provided that
--------
the aggregate principal amount of all Competitive Bid Option Loans for
which a Lender submits CBO Quotes (x) may be greater or less than the
Available Commitment of such Lender but (y) may not exceed the principal
amount of the Competitive Bid Option Borrowing for a particular Interest
Period for which offers were requested;
(C) in the case of a LIBOR Auction, the margin above or below the
applicable LIBO Rate (the "LIBO Margin") offered for each such Competitive
-----------
Bid Option Loan, expressed as a percentage (rounded, if necessary, to the
nearest 1/10,000th of 1%) to be added to or subtracted from the applicable
LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of interest per annum
(rounded, if necessary, to the nearest 1/10,000th of 1%) offered for each
such Competitive Bid Option Loan (the "Set Rate"); and
--------
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the requesting Borrower, no CBO Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable CBO Quote Request
(other than a condition limiting the aggregate amount of Competitive Bid Option
Loans for which such CBO Quote may be accepted) and, in particular, no CBO Quote
may be conditioned upon acceptance by such Borrower of all (or some specified
minimum other than set forth herein) of the principal amount of the Competitive
Bid Option Loans for which such CBO Quote is being made.
(d) The Agent shall (x) in the case of a Set Rate Auction, as promptly
as practicable after the CBO Quote is submitted (but in any event not later than
10:15 a.m. New York City time on the Quotation Date) or (y) in the case of a
LIBOR Auction, by 4:00 p.m. New York City time on the day a CBO Quote is
submitted, notify the requesting Borrower of the terms (i) of any CBO Quote
submitted by a Lender in accordance with Section 2.03(c) and (ii) of any CBO
Quote that amends, modifies or is otherwise inconsistent with a previous CBO
Quote submitted by such Lender with respect to the same CBO Quote Request. Any
such subsequent CBO Quote shall be disregarded by the Agent unless such
subsequent CBO Quote is submitted solely to correct a manifest error in such
former CBO Quote. The Agent's notice to the requesting Borrower shall specify
(A) the aggregate principal amount of the Competitive Bid Option Borrowing for
which offers have been received and (B) the respective principal amounts and
LIBO Margins or Set Rates, as the case may be, so offered by each Lender
(identifying the Lender that made each CBO Quote).
17
(e) Not later than (x) 10:00 a.m. New York City time on the third
Business Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) 11:00 a.m. New York City time on the Quotation Date, in the case
of a Set Rate Auction (or, in any such case, such other time and date as the
requesting Borrower and the Agent, with the consent of the Majority Lenders, may
agree), the requesting Borrower shall notify the Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant to Section 2.03(d) (and
the failure of the requesting Borrower to give such notice by such time shall
constitute nonacceptance) and the Agent shall promptly notify each affected
Lender. In the case of acceptance, such notice shall be in substantially the
form of Exhibit D-1 hereto and shall specify the aggregate principal amount of
offers that are accepted for each Interest Period. The requesting Borrower may
accept any CBO Quote in whole or in part (provided that any CBO Quote accepted
--------
in part shall be at least $5,000,000 or a larger whole multiple of $1,000,000,
but provided, further, that the CBO Quote with the highest LIBO Margin or Set
-------- -------
Rate of the CBO Quotes that are accepted for each Competitive Bid Option
Borrowing may be accepted in part for less than $5,000,000, but shall be for at
least $1,000,000 or a larger whole multiple thereof); provided that:
--------
(i) the aggregate principal amount of each Competitive Bid Option
Borrowing may not exceed the applicable amount set forth in the related CBO
Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Option
Borrowing shall be at least $5,000,000 (or a larger whole multiple of
$1,000,000) but shall not cause the limits specified in Section 2.03(a) to be
violated;
(iii) acceptance of offers may be made only in ascending order of
LIBO Margins or Set Rates, as the case may be, in each case beginning with the
lowest rate so offered; and
(iv) the requesting Borrower may not accept any offer where the
Agent has advised such Borrower that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails in any material respect to comply with the
requirements of this Agreement (including, without limitation, Section 2.03(a)).
If offers are made by two or more Lenders with the same LIBO Margins or Set
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest Period,
the principal amount of Competitive Bid Option Loans in respect of which such
offers are accepted shall be allocated by the requesting Borrower among such
Lenders as nearly as possible (in amounts of at least $5,000,000 or larger
multiples of $1,000,000, except that if such Lenders' LIBO Margins or Set Rates
are the highest of those accepted, such Borrower may allocate Competitive Bid
Option Loans to such Lenders in amounts of less than $5,000,000, but such Loans
shall be for at least $1,000,000 or a larger whole multiple thereof) in
proportion to the aggregate principal amount of such offers. Determinations by
the requesting Borrower of the amounts of Competitive Bid Option Loans shall be
conclusive in the absence of manifest error. Notwithstanding anything else
herein to the contrary, the requesting Borrower shall not be obligated to accept
any CBO Quote unless it shall have delivered a notice of acceptance as provided
in this Section 2.03(e).
(f) Any Lender whose offer to make any Competitive Bid Option Loan has
been accepted shall, not later than 1:00 p.m. New York City time on the date
specified for the making of such Loan, make the amount of such Loan available to
the Agent at account
18
number NYAON ▇▇▇-▇-▇▇▇▇▇▇ maintained by the Agent with Chase at the Principal
Office in immediately available funds, for account of the requesting Borrower.
Such borrowing will then be made available to such Borrower by the Agent by
depositing the aggregate of the amounts made available to the Agent by the
Lenders, in like funds as received by the Agent, in the account of such Borrower
at such office, or in another account designated by such Borrower in a notice to
the Agent hereunder.
(g) Except for the purpose and to the extent expressly stated in
Section 2.05(b), the amount of any Competitive Bid Option Loan made by any
Lender shall not constitute a utilization of such Lender's Commitment.
(h) Promptly following each Competitive Bid Option Borrowing, the
Agent shall notify each Lender of the ranges of bids submitted and the highest
and lowest bids accepted for each Interest Period requested by the requesting
Borrower and the aggregate amount borrowed pursuant to such Competitive Bid
Option Borrowing.
(i) Each Borrower which makes a Competitive Bid Loan request shall pay
to the Agent an administrative fee of $750 (regardless of the number of Interest
Periods in such request).
2.04 Swing Line Loans.
----------------
(a) Each Borrower may request the Swing Line Lender to make, and the
Swing Line Lender agrees, upon the terms and subject to the conditions hereof,
to make, loans (each, a "Swing Line Loan") to such Borrower from time to time
---------------
during the Commitment Period on any Business Day in an aggregate amount not to
exceed at any time outstanding the Swing Line Lender's Swing Line Commitment in
effect at such time; provided, that (i) the aggregate principal amount of all
--------
Swing Line Loans, together with the aggregate principal amount of all
Competitive Bid Option Loans and all Syndicated Loans at the time outstanding to
all Borrowers shall not exceed an amount equal to the aggregate amount of the
Commitments in effect at such time, (ii) the aggregate principal amount of all
Swing Line Loans made by the Swing Line Lender, together with the aggregate
principal amount of all Syndicated Loans made by the Swing Line Lender at the
time outstanding to all Borrowers, shall not exceed the greater of Swing Line
Lender's Commitment or the Swing Line Commitment in effect at such time and
(iii) the aggregate principal amount of all Loans to PCSI at any one time
outstanding shall not exceed an amount equal to the PCSI Borrowing Limit at such
time. Each borrowing of Swing Line Loans shall be in an amount not less than
$2,500,000 and in integral multiples of $500,000 in excess thereof, and shall
bear interest as provided in Section 3.02. On the terms and subject to the
conditions of this Agreement, each Borrower may borrow under this Section 2.04,
repay pursuant to Section 3.01 or prepay and reborrow under this Section 2.04.
(b) Each borrowing of Swing Line Loans shall be made on notice, given
not later than 3:30 p.m. (New York City time) on the date of the proposed
borrowing, by the Borrower requesting such Swing Line Loan to the Agent. The
Agent shall give prompt notice thereof to the Swing Line Lender. Each such
notice of a borrowing of Swing Line Loans shall be substantially in the form of
Exhibit D-3 hereto (a "Notice of Swing Line Borrowing") and shall be by
------------------------------
telephone (promptly confirmed in writing), telefacsimile (promptly confirmed by
telephone) or delivered by hand, specifying therein (i) the requested date of
such borrowing; (ii) the requested amount of such borrowing and (iii) whether
the Swing Line Loans requested by such notice will bear interest at the Swing
Line Money Market Rate (as such rate may be agreed between the requesting
Borrower and the Agent as of the date of the
19
making of such Swing Line Loan) or the Swing Line Base Rate. The Swing Line
Lender will make such borrowing available to the Agent within two (2) hours
after receipt of such notice of such borrowing at account number NYAON 900-9-
000002 maintained by the Agent with Chase at the Principal Office in immediately
available funds, for account of the requesting Borrower. Such borrowing will
then be made available to such Borrower by the Agent by depositing the aggregate
of the amounts made available to the Agent by the Swing Line Lender, in like
funds as received by the Agent, in the account of such Borrower at such office,
or in another account designated by such Borrower in a notice to the Agent
hereunder.
(c) The amount of each Swing Line Loan shall be payable on the seventh
(7th) Business Day following the making of such Loan and in any event on the
Termination Date. A Borrower may prepay any Swing Line Loan on any Business Day
only upon notice, which shall be irrevocable, to the Agent, received by the
Agent not later than 12:00 noon (New York City time) on such Business Day and
otherwise given in accordance with Section 4.05. Notwithstanding the occurrence
of any Default or Event of Default or noncompliance with the conditions
precedent set forth in Section 6, if any Swing Line Loans shall remain
outstanding at 10:00 A.M., New York City time, on the seventh Business Day
following the Borrowing Date thereof and if by such time on such seventh
Business Day the Agent shall have received neither (i) a notice of borrowing
delivered pursuant to Section 2.02 requesting that Loans be made pursuant to
Section 2.01 on such Business Day in an amount at least equal to the aggregate
principal amount of such Swing Line Loans, nor (ii) any other notice indicating
the related Borrower's intent to repay such Swing Line Loans with funds obtained
from other sources, the Agent shall be deemed to have received a Notice of
Borrowing from such Borrower pursuant to Section 2.02 requesting that Base Rate
Loans be made pursuant to Section 2.01 on such Business Day in an amount equal
to the aggregate amount of such Swing Line Loans, and the procedures set forth
in Section 2.02 shall be followed in making such Base Rate Loans. The proceeds
of such Base Rate Loans shall be applied to repay such Swing Line Loans.
(d) If, for any reason, Base Rate Loans may not be made pursuant to
paragraph (c) of this Section 2.04 to repay Swing Line Loans as required by such
paragraph, effective on the date such Base Rate Loans would otherwise have been
made, each Lender severally agrees that it shall unconditionally and
irrevocably, without regard to the occurrence of any Default or Event of
Default, to the extent of such Lender's Commitment Percentage, purchase a
participating interest in such Swing Line Loans ("Unrefunded Swing Line Loans").
---------------------------
Each Lender will immediately transfer to the Agent, in immediately available
funds, the amount of its participation, and the proceeds of such participation
shall be distributed by the Agent to the Swing Line Lender in such amount as
will reduce the amount of the participating interest retained by the Swing Line
Lender in its Swing Line Loans to its Commitment Percentage of the Base Rate
Loans which were to have been made pursuant to paragraph (c) of this Section
2.04. Each Lender shall share on a pro rata basis (calculated by reference to
--------
its participating interest in such Swing Line Loans) in any interest which
accrues thereon and in all repayments thereof. All payments in respect of
Unrefunded Swing Line Loans and participations therein shall be made in
accordance with Section 4.02.
2.05 Changes of Commitments.
----------------------
(a) The aggregate amount of the Commitments and the Swing Line
Commitment shall be automatically reduced to zero on the Termination Date.
(b) The Borrowers shall have the right at any time or from time to
time (i) so long as no Swing Line Loans, Syndicated Loans or Competitive Bid
Option Loans are
20
outstanding, to terminate the Commitments and (ii) to reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate principal amount of all Swing Line Loans,
Competitive Bid Option Loans and Syndicated Loans); provided that (x) the
--------
Borrowers shall give notice of each such termination or reduction as provided in
Section 4.05 and (y) each partial reduction shall be in an aggregate amount at
least equal to $10,000,000 or in whole multiples of $10,000,000 in excess
thereof or, if less, the amount of the Available Commitments.
(c) Provided that no Default or Event of Default shall have occurred
and be continuing, the Borrowers, may, at any time, replace any Lender that has
requested compensation from any Borrower pursuant to Section 5.01 or 5.06 or
whose obligations in respect of Eurodollar Loans or LIBOR Market Loans have been
suspended pursuant to Section 5.03 by giving not less than ten (10) Business
Days' prior notice to the Agent (which shall promptly notify such Lender) that
it intends to replace such Lender with respect to its Commitment with one or
more banks or financial institutions (including, but not limited to, any other
Lender under this Agreement) selected by the Borrowers and acceptable to the
Swing Line Lender and the Agent (which acceptance shall not be unreasonably
withheld). Upon the effective date of any replacement under this Section 2.05(c)
and as a condition to such replacement, (i) the replacement bank or financial
institution shall purchase the Loans of the Lender being replaced and such
Lender's rights hereunder for a purchase price equal to the outstanding
principal amount of the Loans payable to such Lender plus accrued and unpaid
interest on such Loans and accrued and unpaid Facility Fees or Utilization Fees
and any other amounts payable to such Lender hereunder and (ii) an Assignment
and Acceptance shall be executed and delivered by such Lender and replacement
bank at the expense of the Borrowers and accepted by the Agent as provided in
Section 13.06(b), whereupon such replacement bank or financial institution shall
become a "Lender" for all purposes of this Agreement having a Commitment in the
amount of such Lender's Commitment assumed by it, and such Commitment of the
Lender being replaced shall be terminated upon such effective date and all of
such Lender's rights and obligations under this Agreement shall terminate
(provided that the obligations of the Borrowers under Sections 5.01, 5.05, 5.06
and 13.03 to such Lender shall survive such replacement as provided in Section
13.07). If the Commitment of any Lender that is a Reference Lender (or whose
Applicable Lending Office is a Reference Lender, as the case may be) shall
terminate (other than pursuant to Section 11 hereof) such Reference Lender shall
thereupon cease to be a Reference Lender and, if as a result of the foregoing,
there shall only be two Reference Lenders remaining, then the Agent (with the
approval of the Borrowers, such approval not to be unreasonably withheld) shall,
by notice to the Borrowers and the Lenders, designate another Lender as a
Reference Lender, so that there shall at all times be three Reference Lenders.
(d) The Commitments once terminated or reduced may not be reinstated.
2.06 Fees.
----
(a) The Borrowers jointly and severally agree to pay to the Agent for
the account of each Lender a fee (a "Facility Fee") on the daily average amount
------------
of such Lender's Commitment (whether or not such Commitment has been used, in
whole or in part, by the making of Loans hereunder) for the period from and
including the date of this Agreement to but not including the earlier of the
date such Commitment is terminated and the Termination Date, at a rate per annum
equal to the Facility Fee Rate. Accrued Facility Fees shall be payable in
arrears on each Quarterly Date and on the earlier of the date the Commitments
are terminated and the Termination Date.
21
(b) For each Quarterly Period from the date of this Agreement to and
including the Termination Date during which the daily average aggregate
principal amount of all Syndicated Loans and Swing Line Loans outstanding
exceeds an amount equal to 50% of the daily average of the total Commitments in
effect, each Borrower agrees to pay to the Agent for the account of the Lenders
a fee (a "Utilization Fee") on such Borrower's proportionate share (based on
---------------
the Loans outstanding to all Borrowers) of the excess of (i) the daily average
principal amount of all Syndicated Loans and Swing Line Loans outstanding during
such Quarterly Period over (ii) 50% of the daily average of the total
Commitments in effect during such Quarterly Period, at a rate per annum equal to
the Utilization Fee Rate. Accrued Utilization Fees, if any, shall be payable in
arrears on each Quarterly Date and on the earlier of the date the Commitments
are terminated and the Termination Date.
(c) The Borrowers jointly and severally agree to pay to the Agent an
administrative agency fee pursuant to the terms of the Fee Letter.
2.07 Lending Offices. The Loans of each Type made by each Lender
---------------
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.08 Several Obligations. The failure of any Lender to make any
-------------------
Loan to be made by it on the date specified therefor shall not relieve any other
Lender of its obligation to make its Loan on such date, but neither any Lender
nor the Agent shall be responsible for the failure of any other Lender to make a
Loan to be made by such other Lender, and no Lender shall have any obligation to
the Agent or any other Lender for the failure by such Lender to make any Loan
required to be made by such Lender. The amounts payable by any Borrower at any
time hereunder to each Lender shall be separate and independent debts.
2.09 Evidence of Indebtedness.
------------------------
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrowers to the
Applicable Lending Office of such Lender resulting from each Loan made by such
Applicable Lending Office of such Lender from time to time, including amounts of
principal and interest payable and paid to such Applicable Lending Office of
such Lender from time to time under this Agreement.
(b) The Agent shall maintain the Register pursuant to Section
13.06(h), and a subaccount for each Lender, in which Register and subaccount
(taken together) shall be recorded (i) the amount of each Loan made hereunder,
the Borrower of each Loan, the Type and Class of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Agent hereunder from any
Borrower and any Lender's share thereof.
(c) The entries made in the Register and accounts maintained pursuant
to paragraphs (a) and (b) of this Section 2.09 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Agent to maintain such account, such Register or
such subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of each Borrower to repay (with applicable interest) the
Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.
2.10 Optional Prepayments and Conversions or Continuations of
--------------------------------------------------------
Eurodollar Loans. Subject to Sections 4.04, 5.01, 5.02 and 5.03, any Borrower
----------------
shall have
22
the right to prepay, in whole or in part, Syndicated Loans, or to Convert
Syndicated Loans of one Type into Syndicated Loans of another Type or Continue
Syndicated Loans of one Type as Syndicated Loans of the same Type, at any time
or from time to time, without premium or penalty (but without limiting the
obligations of such Borrower under Section 5.05), provided that: (a) the
--------
Borrower shall give the Agent notice of each such prepayment, Conversion or
Continuation as provided in Section 4.05 hereof (and, upon the date specified in
any such notice of prepayment, the amount to be prepaid shall become due and
payable hereunder), and (b) upon any prepayment of any Eurodollar Loan prior to
the last day of the Interest Period applicable thereto, the Borrower shall pay
to each Lender, in addition to any other amounts payable by the Borrower
hereunder in connection with such prepayment, any amounts payable to such Lender
pursuant to Section 5.05(a). Notwithstanding the foregoing, and without
limiting the rights and remedies of the Lenders under Section 11 hereof, in the
event that any Event of Default shall have occurred and be continuing, the Agent
may (and at the request of the Majority Lenders shall) suspend the right of any
Borrower to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as
a Eurodollar Loan, in which event all Syndicated Loans shall be Converted (on
the last day(s) of the respective Interest Periods therefor) or Continued, as
the case may be, as Base Rate Loans. No Borrower shall have any right to prepay
Competitive Bid Option Loans.
2.11 Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) If, at any time, the aggregate principal amount of Loans
outstanding exceeds the aggregate amount of the Commitments, the Borrowers will,
within one (1) Business Day, prepay an amount of Loans (together with accrued
interest thereon and amounts payable pursuant to Section 5.05) such that, after
giving effect thereto, the aggregate principal amount of Loans outstanding to
all Borrowers does not exceed such aggregate amount of the Commitments.
(b) The Borrowers shall repay the aggregate principal amount of all
Loans to the Borrowers hereunder (together with accrued interest thereon) and
any other amounts owing to any Lender that shall have declined to extend the
Termination Date as set forth in Section 2.12 on the Termination Date in effect
with respect to such Lender without giving effect to such extension.
(c) If, on any Business Day, the aggregate principal amount of Swing
Line Loans outstanding exceeds the Swing Line Commitment in effect on such
Business Day (other than by reason of the application of the proceeds of any
Syndicated Loans made to the Borrower on such Business Day) the Borrowers shall,
within one (1) Business Day after notice thereof delivered by the Agent to the
Borrowers, prepay an amount of Swing Line Loans (together with accrued interest
thereon and amounts payable pursuant to Section 5.05) such that, after giving
effect thereto, the aggregate principal amount of such Swing Line Loans does not
exceed such Swing Line Commitment.
(d) If, on any Business Day on which any Syndicated Loans are made or
are to be made to any Borrower, the effect of the making of any such Loan is or
would be to cause the aggregate amount of the Syndicated Loans and the Swing
Line Loans of the Swing Line Lender to exceed the greater of the Swing Line
Lender's Commitment or the Swing Line Commitment in effect on such Business Day
after giving effect to the making of such Loan, such Borrower shall, on such
Business Day, apply such portion of the proceeds of such Syndicated Loans as is
required to prepay an amount of Swing Line Loans (together with accrued interest
thereon and amounts payable pursuant to Section 5.05) such that, after giving
effect thereto, the aggregate principal amount of the Syndicated Loans and Swing
Line Loans
23
of the Swing Line Lender does not exceed the greater of the Swing Line Lender's
Commitment or the Swing Line Commitment in effect at such time. Each Borrower
hereby irrevocably authorizes and directs the Agent to apply such portion of the
proceeds of such Syndicated Loans, otherwise payable to such Borrower's account
pursuant to Section 2.02, to the Swing Line Lender in satisfaction of such
Borrower's prepayment obligation under this Section 2.11(d).
2.12 Extension of Termination Date.
-----------------------------
(a) The Borrowers may, by notice given to the Agent (which shall
promptly deliver a copy thereof to the Lenders) not less than sixty (60) days
prior to the first, second or third anniversaries of the Effective Date request
that the Termination Date for all Lenders be extended for one additional year;
provided that the Borrowers may obtain only one such extension. Not later
--------
than thirty (30) days after the Borrowers shall have made such request, each
Lender, acting in its sole discretion, shall notify the Agent of its response to
such request;
provided that any Lender which fails to respond to any such request shall be
--------
deemed to have denied such request. Such extension shall be effective as to
each Lender agreeing to such extension when (i) each Borrower shall have
delivered a certificate to the Agent to the effect that no Default or Event of
Default shall have occurred and be continuing with respect to such Borrower
either on the date of the notice requesting such extension or the last date for
the Lenders' responses, (ii) each Obligor shall have delivered a certificate to
the Agent to the effect that each of the representations and warranties of such
Obligor set forth herein or in any Credit Document shall be true and complete in
all material respects on and as of each of the date of such notice and the last
date for the Lenders' responses with the same force and effect as if made on and
as of each such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date) and
(iii) Lenders having not less than 50% of the Commitments as in effect at such
time shall have agreed to such extension. Each Lender shall make its own
independent decision upon a request for extension of the Termination Date and no
Lender shall be bound by the decision of any other Lender. The Agent shall give
each Lender notice of the responses of all of the Lenders within 45 days of
receipt of such request from the Borrowers. In connection with any extension of
the Termination Date, the aggregate amount of the Commitments shall be
permanently reduced on the First Scheduled Termination Date by the aggregate
amount of the Commitments of all Lenders electing not to extend the Termination
Date for an additional year from such date which have not been replaced pursuant
to paragraph (b).
(b) If the Borrowers shall have requested an extension of the
Termination Date pursuant to paragraph (a) and Lenders having not less than 50%
of the Commitments shall agree to such extension pursuant thereto, the Borrowers
shall have the right on or before the First Scheduled Termination Date to
replace any Lender which has not agreed to extend the Termination Date beyond
such date with, and otherwise add to this Agreement, one or more other banks or
financial institutions (which may include any Lender) with the approval of the
Agent (which approval shall not be unreasonably withheld), each of which
additional banks or financial institutions shall have entered into an Assignment
and Acceptance pursuant to which such additional bank or financial institution
shall accept an assignment of such replaced Lender's Loans and shall undertake a
Commitment (and, if any such additional bank or financial institution is a
Lender, the Commitment so undertaken shall be in addition to such Lender's
existing Commitment hereunder on such date), provided that the Commitments so
undertaken shall not exceed the aggregate Commitments of all non-extending
Lenders. If the Termination Date has been extended to the Extended Termination
Date pursuant to this Section 2.12, on the First Scheduled Termination Date, (i)
the Borrowers shall repay in full all Loans outstanding on such date made by any
Lender which has not agreed to extend the
24
Termination Date beyond such date and all other amounts owed to such Lender, and
(ii) each Lender that has increased its Commitment and each additional bank or
financial institution undertaking a Commitment shall make Loans hereunder to the
Borrowers in such amounts as shall be necessary to cause the outstanding amount
of such existing Lender's or additional bank's or financial institution's share
of the Syndicated Loans of all Lenders, expressed as a percentage, to be equal
to such existing Lender's or such additional bank's or financial institution's
Commitment Percentage (after giving effect to such increase in any such existing
Lender's Commitment). The proceeds of such Loans shall be applied by the Agent
on behalf of the Borrowers to the partial repayment of the other Lenders' Loans
(including Loans of existing Lenders that have increased their Commitments) to
the extent necessary to effect such proration (and the pro-rata and sharing
provisions of Section 4.02 shall not be applicable to such payment).
2.13 New Lenders. During the period from the first anniversary of
-----------
the Effective Date to the Termination Date with the consent of the Borrowers and
upon notification to the Agent, one or more additional banks or financial
institutions may become a party to this Agreement by executing an addendum
hereto with the Obligors and the Agent, substantially in the form of Exhibit G,
whereupon such bank or financial institution (each, a "New Lender") shall become
----------
a Lender for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement,
provided that, after giving effect to such addition, (i) the aggregate
--------
Commitments shall not exceed $1,000,000,000 and (ii) no Lender shall have a
Commitment which equals or exceeds 25% of the aggregate Commitments. Effective
as of the date on which any such New Lender becomes a Lender pursuant to the
provisions of this Section 2.13, the aggregate Commitments shall be increased by
the amount of such New Lender's Commitment. Each New Lender undertaking a
Commitment shall make Loans hereunder to the Borrowers in such amounts as shall
be necessary to cause the outstanding amount of such New Lender's share of the
Syndicated Loans of all Lenders, expressed as a percentage, to be equal to such
New Lender's Commitment Percentage. The proceeds of such Loans shall be applied
by the Agent on behalf of the Borrowers to the partial repayment of the other
Lenders' Loans to the extent necessary to effect such proration (and the pro-
rata and sharing provisions of Section 4.02 shall not be applicable to such
payment). Notwithstanding anything herein to the contrary, if there are
Eurodollar Loans outstanding to any Borrower, a financial institution that
becomes a New Lender will make Eurodollar Loans to such Borrower (pro rata
--------
according to its Commitment Percentage) having Interest Periods corresponding to
the then unexpired portions of the respective Interest Periods of such
Eurodollar Loans and bearing interest at a rate equal to the respective interest
rates then applicable to such Eurodollar Loans. Promptly following the addition
of a New Lender hereunder, the Agent shall advise the Lenders of such addition,
of the amount of its Commitment and of the amount of any borrowing from it
hereunder made simultaneously upon its addition.
2.14 Increases in Commitments. During the period from the first
------------------------
anniversary of the Effective Date to the Termination Date at the request of the
Borrowers and upon notification to the Agent, any Lender may increase the amount
of its Commitment by executing an addendum hereto with the Obligors and the
Agent, substantially in the form of Exhibit H, whereupon such Lender shall be
bound by and entitled to the benefits of this Agreement with respect to the full
amount of its Commitment as so increased, provided that, after giving effect to
--------
any such increase, (i) the aggregate Commitments shall not exceed $1,000,000,000
and (ii) no Lender shall have a Commitment which equals or exceeds 25% of the
aggregate Commitments. Effective as of the date on which any such Lender
increases its Commitment pursuant to the provisions of this Section 2.14, the
aggregate Commitments shall be increased by the amount of such Lender's
additional Commitment. If on the date
25
upon which such Lender increases its Commitment pursuant to this Section 2.14
there is an unpaid principal amount of Syndicated Loans under Section 2.01, each
Borrower to whom Syndicated Loans are outstanding shall borrow from such Lender
through the Agent, subject to Section 6, an amount determined by multiplying the
amount of the increase in such Lender's Commitment by a fraction, the numerator
of which shall be the then unpaid principal amount of the Syndicated Loans
outstanding under Section 2.01 and the denominator of which shall be the
aggregate Commitments of the Lenders other than the amount of the additional
Commitment of such Lender. Notwithstanding anything herein to the contrary, if
there are Eurodollar Loans outstanding to any Borrower, such Lender may increase
its Commitment and make Eurodollar Loans to such Borrower having Interest
Periods corresponding to the then unexpired portions of the respective Interest
Periods of such Eurodollar Loans and bearing interest at a rate equal to the
respective interest rates then applicable to such Eurodollar Loans. The Agent
shall advise the Lenders of such increase in the Commitment of a Lender and of
the amount of any borrowing from it hereunder made simultaneously upon such
increase.
2.15 Transition Provisions. (a) If on the Effective Date there is
---------------------
an unpaid principal amount of Syndicated Loans which are Base Rate Loans, each
Additional Lender and each Lender whose Commitment has increased pursuant to the
amendment and restatement of the Existing Agreement shall make Loans hereunder
to the Borrowers in such amounts as shall be necessary to cause the outstanding
amount of each such Lender's share of the Base Rate Loans of all Lenders,
expressed as a percentage, to be equal to such Lender's Commitment Percentage.
The proceeds of such Loans shall be applied by the Agent on behalf of the
Borrowers to the partial repayment of the other Lenders' Base Rate Loans to the
extent necessary to cause the outstanding amount of each such other Lender's
share of the Base Rate Loans of all Lenders, expressed as a percentage, to be
equal to such other Lender's Commitment Percentage (and the pro-rata and sharing
provisions of Section 4.02 shall not be applicable to such payment).
(b) If on the Effective Date there is an unpaid principal amount of
Syndicated Loans which are Eurodollar Loans or Competitive Bid Option Loans, the
Additional Lenders and the Lenders whose Commitments have increased pursuant to
the amendment and restatement of the Existing Agreement shall not be required to
make any advances in respect thereof, provided that, in the case of Syndicated
--------
Loans which are Eurodollar Loans, if such Eurodollar Loans are converted or
continued on the last day of the Interest Period therefor, such conversion or
continuation shall be pro rata according to the Commitments of the Lenders after
--- ----
giving effect to the amendment and restatement of the Existing Agreement, and
provided, further, that if, for any reason any such Eurodollar Loans are not
-------- -------
repaid on the last day of the Interest Period therefor, effective on such last
day, each Additional Lender and each Lender whose Commitment has increased
pursuant to the amendment and restatement of this Agreement severally agrees
that it shall unconditionally and irrevocably, without regard to the occurrence
of any Default or Event of Default, purchase a participating interest in such
Eurodollar Loans ("Unrefunded Eurodollar Loans") in an amount equal to, in the
---------------------------
case of an Additional Lender, such Lender's Commitment Percentage of such
Eurodollar Loans, and, in the case of a Lender whose Commitment shall have
increased, the product of the principal amount of such Eurodollar Loans and a
fraction the numerator of which is the amount of the increase in such Lender's
Commitment and the denominator of which is the aggregate amount of the
Commitments. Each such Lender will immediately transfer to the Agent, in
immediately available funds, the amount of its participation, and the proceeds
of such participations shall be distributed by the Agent to the other Lenders in
such amounts as will reduce the amount of the participating interest retained by
each such other Lender in such Eurodollar Loans to their respective Commitment
Percentages of such Eurodollar Loans.
26
Each Lender shall share on a pro rata basis (calculated by reference to its
--------
participating interest in such Eurodollar Loans) in any interest which accrues
thereon and in all repayments thereof. All payments in respect of Unrefunded
Eurodollar Loans and participations therein shall be made in accordance with
Section 4.02.
Section 3. Payments of Principal and Interest.
----------------------------------
3.01 Repayment of Loans.
------------------
(a) Each Borrower hereby promises to pay to the Agent for the account
of each Lender the entire outstanding principal amount of such Lender's
Syndicated Loans to such Borrower, and each such Syndicated Loan shall mature
and be payable in full, on the Termination Date.
(b) Each Borrower hereby promises to pay to the Agent for the account
of each Lender that makes any Competitive Bid Option Loan to such Borrower the
entire principal amount of such Competitive Bid Option Loan, and such
Competitive Bid Option Loan shall mature and be payable in full, on the last day
of the Interest Period for such Competitive Bid Option Loan.
(c) Each Borrower hereby promises to pay to the Agent for the account
of the Swing Line Lender the entire outstanding principal amount of the Swing
Line Lender's Swing Line Loans, and such Swing Line Loans shall mature and be
payable in full, on the seventh (7th) Business Day following the date each such
Loan is made and in any event on the Termination Date.
3.02 Interest. Each Borrower hereby promises to pay to the Agent
--------
for account of each Lender interest on the unpaid principal amount of each Loan
made by such Lender to the Borrower for the period from and including the date
of the Loan to but excluding the date such Loan shall be paid or prepaid in
full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base Rate
(as in effect from time to time);
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period plus the Applicable Margin;
----
(c) if such Loan is a LIBOR Market Loan, the LIBO Rate for such Loan for
the Interest Period therefor plus (or minus) the LIBO Margin quoted by the
---- -----
Lender making such Loan in accordance with Section 2.03;
(d) if such Loan is a Set Rate Loan, the Set Rate for such Loan for the
Interest Period therefor quoted by the Lender making such Loan in
accordance with Section 2.03;
(e) if such Loan is a Swing Line Money Market Loan, the Swing Line Money
Market Rate agreed by the Swing Line Lender and the Borrower with respect
to such Loan; and
(f) if such Loan is a Swing Line Base Rate Loan, the Swing Line Base
Rate (as in effect from time to time).
27
Notwithstanding the foregoing, so long as any Event of Default shall have
occurred and be continuing with respect to a Borrower, such Borrower hereby
promises to pay to the Agent for the account of each Lender interest at the
applicable Post-Default Rate (but not in excess of that permitted by applicable
law) on any principal of and interest on any Loan made by such Lender to such
Borrower and on any other amount owing by such Borrower hereunder or under any
other Credit Document. Accrued interest on each Loan shall be payable (i) in
the case of a Base Rate Loan, quarterly on the Quarterly Dates, (ii) in the case
of a Eurodollar Loan or a Competitive Bid Option Loan, on the last day of the
Interest Period therefor and, in addition, if such Interest Period is longer
than three months, on each Quarterly Date, and (iii) in the case of any Loan,
upon the payment or prepayment thereof or the Conversion of such Loan to a Loan
of another Type (but only on the principal amount so paid, prepaid or
Converted), except that interest payable at the Post-Default Rate shall be
payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrowers.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
-----------------------------------------------
4.01 Payments.
--------
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by any Obligor under this
Agreement, and, except to the extent otherwise provided therein, all payments to
be made by any Obligor under any other Credit Document, shall be made in
Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to the Agent at account number NYAON ▇▇▇-▇-▇▇▇▇▇▇ maintained by
the Agent with Chase at the Principal Office, not later than 2:00 p.m. New York
City time on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Each Obligor shall, at the time of making each payment under this
Agreement, specify to the Agent (which shall so notify the intended recipient(s)
thereof) the Loans or other amounts payable by such Obligor hereunder to which
such payment is to be applied (and in the event that such Obligor fails to so
specify, or if an Event of Default has occurred and is continuing, the Agent may
distribute such payment to the Lenders for application in accordance with
Section 4.02 or in such manner as the Majority Lenders may determine to be
appropriate).
(c) Each payment received by the Agent under this Agreement for
account of any Lender shall be paid by the Agent promptly to such Lender, in
immediately available funds, for account of such Lender's Applicable Lending
Office for the Loan or other obligation in respect of which such payment is
made.
(d) If the due date of any payment under this Agreement would
otherwise fall on a day that is not a Business Day, such date shall be extended
to the next succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein: (a) each borrowing of Syndicated Loans from the Lenders under Section
2.01 shall be made from the Lenders, each payment of a Facility Fee under
Section 2.06 and each payment of a Utilization Fee under Section 2.06 in respect
of Commitments and Loans, respectively, shall
28
be made for account of the Lenders, and each termination or reduction of
the amount of the Commitments under Section 2.05 shall be applied to the
respective Commitments of the Lenders, pro rata according to the amounts of
their respective Commitments; (b) the making, Conversion and Continuation of
Syndicated Loans of a particular Type (other than Conversions provided for by
Section 5.04) shall be made pro rata among the Lenders according to the amounts
of their Commitments (in the case of making of Syndicated Loans) or their
respective Syndicated Loans (in the case of Conversions and Continuations of
Loans) and the Interest Period for each Loan of such Type at the time of the
making, Conversion or Confirmation thereof shall be coterminous with the
Interest Period of each other Loan of such Type made, Converted or Continued at
such time (other than Loans of such Type for which a different Interest Period
has been chosen in accordance with the terms of this Agreement); (c) each
payment or prepayment of principal of Syndicated Loans by any Borrower shall be
made for account of the Lenders pro rata in accordance with the respective
unpaid principal amounts of the Syndicated Loans held by them, provided that if
--------
immediately prior to giving effect to any such payment in respect of any
Syndicated Loans the outstanding principal amount of the Syndicated Loans shall
not be held by the Lenders pro rata in accordance with their respective
Commitments in effect at the time such Loans were made (by reason of a failure
of a Lender to make a Loan hereunder in the circumstances described in the last
paragraph of Section 13.04), then such payment shall be applied to the
Syndicated Loans in such manner as shall result, as nearly as is practicable, in
the outstanding principal amount of the Syndicated Loans being held by the
Lenders pro rata in accordance with their respective Commitments; (d) each
payment of interest on Syndicated Loans by any Borrower shall be made for
account of the Lenders pro rata in accordance with the amounts of interest on
such Loans then due and payable to the respective Lenders; and (e) each payment
or prepayment of principal of Loans by any Borrower shall be made for account of
the Lenders pro rata in accordance with the respective unpaid principal amounts
of each Loan then due and payable.
4.03 Computations. Facility Fees and interest on Competitive Bid
------------
Option Loans, Swing Line Base Rate Loans and Eurodollar Loans shall be computed
on the basis of a year of 360 days and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which payable and
Utilization Fees and interest on Base Rate Loans shall be computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable. Notwithstanding the foregoing, (i) for each day that the Base
Rate is calculated by reference to the Federal Funds Rate, interest on Base Rate
Loans shall be computed on the basis of a year of 360 days and actual days
elapsed and (ii) interest on Set Rate Loans with an Interest Period of 270 days
or more shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
4.04 Minimum Amounts. Except as provided in Section 2.02 and
---------------
2.04(a) and except for mandatory prepayments made pursuant to Section 2.11 and
Conversions or prepayments made pursuant to Section 5.04 and except for any
Loans required to be made pursuant to Section 2.15, each borrowing, Conversion
and partial prepayment of principal of Loans shall be in an aggregate amount at
least equal to $5,000,000 or in multiples of $1,000,000 in excess thereof
(borrowings, Conversions or prepayments of or into Loans of different Types or,
in the case of Eurodollar Loans, having different Interest Periods at the same
time hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period). Anything in
this Agreement to the contrary notwithstanding, the aggregate principal amount
of Eurodollar Loans having the same Interest Period shall be in an amount at
least equal to $5,000,000 or in multiples of $1,000,000 in excess thereof.
29
4.05 Certain Notices. Except as otherwise provided in Section
---------------
2.03 with respect to the borrowing of Competitive Bid Option Loans and in
Section 2.04 with respect to the borrowing of Swing Line Loans, notices by any
Borrower to the Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans and of
Classes and Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Agent not later than
11:00 a.m. New York City time on the number of Business Days prior to the date
of the relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction of Commitments 3
Borrowing or prepayment of, or Conversions
into, Base Rate Loans 0
Borrowing or prepayment of, Conversions into,
Continuations as, or duration of Interest Period
for, Eurodollar Loans 3
Duration of Interest Period for Eurodollar Loans
of less than one month or more than six months 4
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing of
Syndicated Loans shall be in substantially the form of Exhibit D-2 hereto,
specifying the amount (subject to Section 4.04) and Type of each Loan to be
borrowed and the date of borrowing. Each such notice of Conversion,
Continuation or optional prepayment shall specify the Type of Loans to be
borrowed, Converted, Continued or prepaid and the amount (subject to Section
4.04) (and, in the case of a Conversion, the Type of Loan to result from such
Conversion) and the date of Conversion, Continuation or optional prepayment
(which shall be a Business Day). Each such notice of the duration of an
Interest Period shall specify the Loans to which such Interest Period is to
relate. The Agent shall promptly notify the Lenders of the contents of each
such notice. In the event that such notice from the Borrower requests a
borrowing or Continuation of, or a Conversion into, a Eurodollar Loan specifying
an Interest Period of less than one month or more than six months, each Lender
shall notify the Agent not later than 11:00 a.m. (New York City time) one
Business Day after receipt of such notice as to whether funds are available to
such Lender in the amount and for the Interest Period requested. Unless such
funds are so available to each Lender, such notice from the Borrower shall be
deemed to be canceled. In the event that the Borrower fails to select the Type
of Loan, or the duration of any Interest Period for any Eurodollar Loan, within
the time period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a Eurodollar Loan) will be automatically Converted into a Base
Rate Loan on the last day of the then current Interest Period for such Loan or
(if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Agent. Unless the Agent shall have
---------------------------------
been notified by a Lender or any Borrower (the "Payor") prior to the date on
-----
which the Payor is to make payment to the Agent of (in the case of a Lender)
the proceeds of a Loan to be made by
30
such Lender hereunder or (in the case of a Borrower) a payment to the Agent for
account of one or more of the Lenders hereunder (such payment being herein
called the "Required Payment"), which notice shall be effective upon receipt,
----------------
that the Payor does not intend to make the Required Payment to the Agent, the
Agent may assume that the Required Payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date and, if the Payor has not in
fact made the Required Payment to the Agent, the recipient(s) of such payment
shall, on demand, repay to the Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the date
such amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to, for each of the first three days
following the date such amount was made available by the Agent, the Federal
Funds Rate for such day, and following such three day period, the interest rate
applicable to the Loans corresponding to such amount, and, if such recipient(s)
shall fail promptly to make such payment, the Agent shall be entitled to recover
such amount, on demand, from the Payor, together with interest as aforesaid.
4.07 Sharing of Payments, Etc.
------------------------
(a) Each Borrower agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim the Agent or a Lender
may otherwise have, the Agent and each Lender shall be entitled, at its option,
to offset balances held by it for account of such Borrower at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans or any other amount payable to such
Lender or to the Agent hereunder, that is not paid when due (regardless of
whether the balances are then due to such Borrower), in which case it shall
promptly notify such Borrower and the Agent thereof, provided that the Agent's
--------
or Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Borrower payment of any
principal of or interest on any Loan owing to it or payment of any other amount
under this Agreement or any other Credit Document through the exercise of any
right of set-off, banker's lien or counterclaim or similar right or otherwise
(other than from the Agent as provided herein), and, as a result of such
payment, such Lender shall have received a greater percentage of the principal
of or interest on the Loans or such other amounts then due hereunder or
thereunder by such Borrower to such Lender than the percentage received by any
other Lender except as permitted hereunder, it shall promptly purchase from such
other Lenders participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans or such other amounts, respectively,
owing to such other Lenders (or in interest due thereon, as the case may be) in
such amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses that may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans or such other amounts,
respectively, owing to each of the Lenders, provided that if at the time of such
--------
payment the outstanding principal amount of the Syndicated Loans shall not be
held by the Lenders pro rata in accordance with their respective Commitments in
effect at the time such Loans were made (by reason of a failure of a Lender to
make a Loan hereunder in the circumstances described in the last paragraph of
Section 13.04), then such purchases of participations and/or direct interests
shall be made in such manner as will result, as nearly as is practicable, in the
outstanding principal amount of the Syndicated Loans being held by the Lenders
pro rata according to the amounts of such Commitments. To such end all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
31
(c) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of any Borrower. If, under any applicable bankruptcy, insolvency or
other similar law any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
---------------------
5.01 Additional Costs.
----------------
(a) Each Borrower agrees to pay directly to each Lender from time to
time within 15 days after request is made by such Lender and receipt by such
Borrower of the certificate of such Lender described in Section 5.01(c) such
amounts as such Lender may reasonably determine to be necessary to compensate
such Lender for any increase in the costs that such Lender reasonably determines
are attributable to its making or maintaining any Eurodollar Loans to such
Borrower or its obligation to make any Eurodollar Loans hereunder to such
Borrower by an amount such Lender deems to be material, or any reduction in any
amount receivable by such Lender hereunder in respect of any of such Loans or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory Change
----------------
that:
(i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement in respect of any of such Loans (other than
taxes imposed on or measured by the overall net income of such Lender or
of its Applicable Lending Office for any of such Loans by any jurisdiction
in which such Lender has its principal office or such Applicable Lending
Office or is subject to taxation other than as a result of the
transactions contemplated by this Agreement); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Eurocurrency Reserve Requirements) relating to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender or any commitment of such Lender (including,
without limitation, the Commitment of such Lender hereunder).
If any Lender requests compensation from any Borrower under this Section
5.01(a), such Borrower may, by notice to such Lender (with a copy to the Agent),
suspend the obligation of such Lender thereafter to make or Continue Loans to
such Borrower of the Type with respect to which such compensation is requested,
or to Convert Loans of any other Type into Loans of such Type, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.04 shall be applicable), provided that such
--------
suspension shall not affect the right of such Lender to receive the compensation
so requested.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), each Borrower agrees to pay directly to
each Lender from time to time on request such amounts as such Lender may
reasonably determine to be necessary to compensate such Lender (or, without
duplication, the bank holding company of which such Lender is a subsidiary) for
any increase in such costs that it reasonably determines to be material which
are attributable to the maintenance by such Lender (or any Applicable Lending
Office or such bank holding company), pursuant to any law or regulation or any
32
interpretation, directive or request (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) of any court or
governmental or monetary authority (i) following any Regulatory Change or (ii)
changing after the date hereof the interpretation or administration of any risk-
based capital guideline or other requirement (whether or not having the force of
law and whether or not the failure to comply therewith would be unlawful)
heretofore or hereafter issued by any government or governmental or supervisory
authority implementing at the national level the Basle Accord (including,
without limitation, the Final Risk-Based Capital Guidelines of the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; ▇▇
▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital Guidelines of the
Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of
capital in respect of its Commitment or Loans to such Borrower (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on equity of such Lender (or any Applicable Lending Office or
such bank holding company) to a level below that which such Lender (or any
Applicable Lending Office or such bank holding company) could have achieved but
for such law, regulation, interpretation, directive or request). For purposes of
this Section 5.01(b), "Basle Accord" shall mean the proposals for risk-based
------------
capital framework described by the Basle Committee on Lending Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
(c) Each Lender shall notify each Borrower of any event occurring
after the date of this Agreement entitling such Lender to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any
event within 30 days, after such Lender obtains actual knowledge thereof;
provided that each Lender will designate a different Applicable Lending Office
--------
for the Loans of such Lender affected by such event if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of such Lender, be disadvantageous to such Lender, except that
such Lender shall have no obligation to designate an Applicable Lending Office
located in the United States of America. Each Lender will furnish to each
Borrower a certificate setting forth the basis and amount of each request by
such Lender for compensation under paragraph (a) or (b) of this Section 5.01.
Determinations and allocations by any Lender for purposes of this Section 5.01
of the effect of any Regulatory Change pursuant to paragraph (a) of this Section
5.01, or of the effect of capital maintained pursuant to paragraph (b) of this
Section 5.01, on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in respect of Loans,
and of the amounts required to compensate such Lender under this Section 5.01,
shall be prima facie evidence of such determinations and allocations.
(d) Notwithstanding the foregoing, no Lender shall be entitled to any
compensation described in Section 5.01(a) or (b) unless, at the time it requests
such compensation, it is the policy or general practice of such Lender to
request compensation for comparable costs in similar circumstances under
comparable provisions of other credit agreements for comparable customers unless
specific facts or circumstances applicable to any Obligor or the transactions
contemplated by this Agreement would alter such policy or general practice,
provided that nothing in this Section 5.01(d) shall preclude a Lender from
--------
waiving the collection of similar costs from one or more of its other customers.
(e) If any Lender fails to give the notice described in Section
5.01(c) within 30 days after it obtains actual knowledge of the event required
to be described in such notice, such Lender shall, with respect to any
compensation that would otherwise be owing to
33
such Lender under paragraph (a) or (b) of this Section 5.01, only be entitled to
payment for increased costs incurred from after the date that such Lender does
give such notice.
5.02 Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of any Eurodollar Rate for
any Interest Period:
(a) the Agent is advised by the Reference Banks, that quotations of
interest rates for the relevant deposits referred to in the definition of
"Eurodollar Rate" in Section 1.01 hereof are not being provided in the
relevant amounts or for the relevant maturities for purposes of determining
rates of interest for any Eurodollar Loans or LIBOR Market Loans as
provided herein; or
(b) if the related Loans are Syndicated Loans, the Majority Lenders
notify the Agent that the relevant rates of interest referred to in the
definition of "Eurodollar Rate" in Section 1.01 hereof upon the basis of
which the rate of interest for Eurodollar Loans for such Interest Period is
to be determined are not likely adequately to cover the cost to such
Lenders of making or maintaining such Type of Loans for such Interest
Period (which determination by the Majority Lenders, shall be conclusive);
then the Agent shall give each affected Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect, the Lenders shall be
under no obligation to make additional Loans of such Type, to Continue Loans of
such Type or to Convert Loans of any other Type into Loans of such Type, and the
Borrowers shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Loans of such Type, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with Section 2.10.
5.03 Illegality. Notwithstanding any other provision of this Agreement,
----------
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans or LIBOR
Market Loans hereunder, then such Lender shall promptly notify the Borrowers
thereof (with a copy to the Agent) and such Lender's obligation to make or
Continue, or to Convert Loans of any other Type into, Eurodollar Loans shall be
suspended until such time as such Lender may again make and maintain Eurodollar
Loans (in which case the provisions of Section 5.04 shall be applicable), and
such Lender shall no longer be obligated to make any LIBOR Market Loan that it
offered to make prior to such event.
5.04 Treatment of Affected Loans. If the obligation of any Lender to make
---------------------------
a Eurodollar Loan or to Continue, or to Convert Loans of any other Type into,
Loans of a particular Type shall be suspended pursuant to Section 5.01 or 5.03
(Loans of such Type being herein called "Affected Loans" and such Type being
--------------
herein called the "Affected Type"), such Lender's Affected Loans shall be
-------------
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 5.03, on such earlier date as required by law) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 5.01 or 5.03 that gave rise to such Conversion no longer
exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
34
(b) all Loans that would otherwise be made or Continued by such Lender
as Loans of the Affected Type shall be made or Continued instead as Base
Rate Loans, and all Loans of such Lender that would otherwise be Converted
into Loans of the Affected Type shall be Converted instead into (or shall
remain as) Base Rate Loans.
If such Lender gives notice to the Borrowers with a copy to the Agent that the
circumstances specified in Section 5.01 or 5.03 that gave rise to the Conversion
of such Lender's Affected Loans pursuant to this Section 5.04 no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when Loans of the Affected Type made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Loans of the Affected Type, to the extent necessary so that, after giving effect
thereto, all Syndicated Loans held by the Lenders holding Loans of the Affected
Type and by such Lender are held pro rata (as to principal amounts, Types and
Interest Periods) in accordance with their respective Commitments.
5.05 Compensation. Each Borrower shall pay to the Agent for account of
------------
each Lender, upon the request of such Lender through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost or expense that such Lender reasonably
determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan, LIBOR Market Loan or a Set Rate Loan made by such Lender
to such Borrower for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 11 hereof) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by such Borrower for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied but excluding any failure by such Borrower
due to an event or circumstance described in Section 5.02 or 5.03) to
borrow a Eurodollar Loan or a Competitive Bid Option Loan (with respect to
which, in the case of a Competitive Bid Option Loan, such Borrower has
accepted a CBO Quote) from such Lender on the date for such borrowing
specified in the relevant notice of borrowing given pursuant to Section
2.02 or 2.03(e).
Without limiting the effect of the preceding sentence, such compensation shall
be an amount equal to the excess, if any, of (i) the amount of interest that
otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein less the Applicable Margin (and less any LIBO Margin above the
applicable LIBO Rate in the case of any LIBOR Market Loans) over (ii) the amount
of interest that otherwise would have accrued on such principal amount at a rate
per annum equal to the interest component of the amount such Lender would have
bid in the London interbank market (if such Loan is a Eurodollar Loan or a LIBOR
Market Loan) or the United States secondary certificate of deposit market (or
other comparable United States market agreeable to such Lender and such
Borrower, if such amount cannot be determined for the United States secondary
certificate of deposit market) (if such Loan is a Set Rate Loan or a Swing Line
Money Market Loan) for Dollar deposits of
35
leading banks in amounts comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by such Lender).
5.06 U.S. Taxes.
----------
(a) Each Borrower agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net payment of
any amount due to such non-U.S. Person by such Borrower hereunder after
deduction for or withholding in respect of any U.S. Tax imposed with respect to
such payment (or in lieu thereof, payment of such U.S. Tax by such non-U.S.
Person), will not be less than the amount stated herein to be then due and
payable, provided that the foregoing obligation to pay such additional amounts
--------
shall not apply:
(i) to any payment to a Lender hereunder unless such Lender is, on
the date hereof (or on the date it becomes a Lender as provided in Section
2.12, 2.13 or 13.06(b) hereof) and on the date of any change in the
Applicable Lending Office of such Lender, entitled to submit either a Form
1001 (relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be received by it hereunder in respect of
the Loans) or Form 4224 (relating to all payments to be received by such
Lender hereunder in respect of the Loans); or
(ii) to any U.S. Tax that would not have been imposed but for the
failure by such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connections with the United States of
America of such non-U.S. Person if such compliance is required by statute
or regulation of the United States of America as a precondition to relief
or exemption from such U.S. Tax.
For the purposes of this Section 5.06(a), (w) "Form 1001" shall mean Form 1001
---------
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (x) "Form 4224" shall mean Form 4224
---------
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates), (y) "U.S. Person" shall mean a citizen, national or
-----------
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under any laws of the United States of
America, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income and (z) "U.S. Taxes" shall mean any
----------
present or future tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof or
therein.
(b) Within 30 days after paying any amount to the Agent or any Lender
from which it is required by law to make any deduction or withholding, and
within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, each Borrower shall
deliver to the Agent for delivery to such non-U.S. Person evidence in the
control of such Borrower and reasonably satisfactory to such Person of such
deduction, withholding or payment (as the case may be).
(c) Each Lender which is not a U.S. Person agrees that:
36
(i) it shall, no later than the date of this Agreement (or, in the
case of a Lender which becomes a party hereto pursuant to Section 2.12,
2.13 or 13.06(b) after the date hereof, the date upon which the Lender
becomes a party hereto) deliver to the Borrowers and the Agent two accurate
and complete signed originals of Form 4224 or Form 1001, as appropriate, in
each case indicating that the Lender is on the date of delivery thereof
entitled to receive payments under this Agreement free from withholding of
U.S. Taxes;
(ii) if at any time the Lender makes any changes necessitating a new
Form 4224 or Form 1001 or at any time any Borrower shall not be able to
continue to rely on any Form 4224 or 1001 previously submitted by such
Lender, such Lender shall, to the extent legally entitled to do so at such
time, promptly deliver to the Borrowers and the Agent in replacement for,
or in addition to, the forms previously delivered by it hereunder, two
accurate and complete signed originals of Form 4224 or two accurate and
complete signed originals of Form 1001, as appropriate, in each case
indicating that the Lender is on the date of delivery thereof entitled to
receive payments under this Agreement free from withholding of U.S. Taxes;
(iii) it shall, promptly upon any Borrower's reasonable request to
that effect, deliver to such Borrower and the Agent such other forms or
similar documentation as may be required from time to time by any
applicable law, treaty, rule or regulation in order to establish such
Lender's tax status for withholding purposes.
(d) Notwithstanding anything herein to the contrary, no Borrower will
be required to pay any additional amounts in respect of U.S. Taxes:
(i) if the obligation to pay such additional amounts would not have
arisen but for a failure by such Lender to comply with its obligations
under Section 5.06(c);
(ii) if such Lender shall have delivered to the Borrowers and the
Agent a Form 4224 or a Form 1001 in respect of such Applicable Lending
Office pursuant to Section 5.06(c), and such Lender shall not on the date
of delivery thereof or at any time thereafter be entitled to exemption from
deduction or withholding of U.S. Taxes in respect of payments by such
Borrower hereunder for the account of such Applicable Lending Office for
any reason other than as a result of a change in United States law or
regulations or in the official interpretation of such law or regulations by
any governmental authority charged with the interpretation or
administration thereof after the Effective Date (or, in the case of a
Lender which becomes a party hereto pursuant to Section 2.12, 2.13 or
13.06(b) after the date hereof, the date upon which such Lender becomes a
party hereto);
(iii) with respect to each Lender, if such additional amounts
represent taxes imposed on its income, or franchise taxes imposed on it, by
the jurisdiction of its Applicable Lending Office, or by the jurisdiction
under the laws of which the Lender is organized, or, in either such case,
any political subdivision or taxing authority thereof or therein.
Section 6. Conditions Precedent.
--------------------
6.01 Effective Date. This amendment and restatement of the Existing
--------------
Agreement shall become effective on the first date (the "Effective Date") that
each of the
37
following conditions shall have been satisfied or fulfilled (or waived in
accordance with Section 13.04):
(a) Documents. The receipt by the Agent of the following documents,
---------
each of which shall be satisfactory to the Agent in form and substance:
(i) Corporate Documents. The following documents, each certified
-------------------
as indicated below:
(1) a copy of the charter, as amended and in effect, of each
Obligor certified as of a recent date by the secretary or assistant
secretary of such Obligor, and a certificate from the Comptroller of the
Currency or the Secretary of State of its jurisdiction of incorporation, as
the case may be, dated as of a recent date, as to the good standing of such
Obligor; and
(2) a certificate of the secretary or an assistant secretary of
each Obligor, dated the Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws of such Obligor as
amended and in effect at all times from the date on which the resolutions
referred to in clause (B) were adopted to and including the date of such
certificate, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the board of directors of such Obligor
authorizing the execution, delivery and performance of such of the Credit
Documents to which such Obligor is or is intended to be a party and the
extensions of credit hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that
the charter of such Obligor has not been amended since the date of the
certification thereto furnished pursuant to clause (1) above, and (D) as to
the incumbency and specimen signature of each officer of such Obligor
executing the Credit Documents and each other document to be delivered by
such Obligor in connection therewith (and the Agent and each Lender may
conclusively rely on such certificate until it receives notice in writing
from such Obligor).
(ii) Status and Officer's Certificates. Each of the conditions set
---------------------------------
forth in Section 6.02(a) and (b) shall be true and the Agent shall have received
a certificate of a senior officer of each Borrower, dated the Effective Date, to
the effect set forth in Section 6.02(a) and(b).
(iii) Opinion of Counsel to the Obligors. An opinion, dated the
----------------------------------
Effective Date, of in-house counsel to the Obligors, substantially in the form
of Exhibit E hereto and covering such other matters as the Agent may reasonably
request.
(iv) Opinion of Counsel to the Agent. An opinion, dated the
-------------------------------
Effective Date, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agent, substantially
in the form of Exhibit I hereto.
(v) Credit Agreement. Counterparts of this Agreement duly executed
----------------
on behalf of each Obligor and each of the Agent and the Lenders.
(vi) Other Documents. Such other documents as the Agent may
---------------
reasonably request.
38
(b) Payment of Accrued Interest. The Obligors shall have paid to
---------------------------
the Agent, for the account of the Existing Lenders, all Facility Fees and all
interest accrued on outstanding Loans, to the extent such fees or interest was
due and payable on or before the Effective Date.
(c) Amendment Fee. The Obligors shall have paid the Agent the
-------------
amendment fee due pursuant to the letter agreement dated September 5, 1995 among
the Agent and the Obligors.
The Agent shall promptly give the Borrowers and each Lender notice of the
Effective Date.
6.02 Initial and Subsequent Loans. The obligation of any Lender to
----------------------------
make to any Borrower its initial Loan (including any Swing Line Loan,
Competitive Bid Option Loan or Syndicated Loan), any subsequent Swing Line Loan
or Competitive Bid Option Loan and any subsequent Syndicated Loan (other than
Syndicated Loans made pursuant to Section 2.04(c)) that increases the principal
amount of outstanding Syndicated Loans, upon the occasion of each borrowing, is
subject to the conditions precedent that, both immediately prior to the making
of such Loan and also after giving effect thereto and to the intended use
thereof:
(a) No Default. No Default or Event of Default with respect to such
----------
Borrower or the Guarantor shall have occurred and be continuing;
(b) Representations and Warranties True. The representations and
-----------------------------------
warranties made by such Borrower and the Guarantor in Section 7 hereof and
in each of the other Credit Documents, shall be true and complete on and as
of the date of the making of such Loan or other extension of credit with
the same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); and
(c) Notice. All notices of such borrowing shall have been properly
------
and timely given in accordance with the requirements of this Agreement.
Each notice of borrowing by any Borrower hereunder shall constitute a
certification by such Borrower to the effect set forth in the preceding sentence
(both as of the date of such notice and, unless such Borrower otherwise notifies
the Agent prior to the date of such borrowing, as of the date of such
borrowing).
6.03 Initial and Subsequent Loans To PCSI. The obligation of any
------------------------------------
Lender to make to PCSI its initial Loan (including any Swing Line Loan,
Competitive Bid Option Loan or Syndicated Loan), any subsequent Swing Line Loan
or Competitive Bid Option Loan and any subsequent Syndicated Loan (other than
Syndicated Loans made pursuant to Section 2.04(c)) that increases the principal
amount of outstanding Syndicated Loans, upon the occasion of each borrowing, is
subject to the additional condition precedent that PCSI shall have become, and
shall continue to be, an Insured Depository Institution. Each notice of
borrowing by PCSI hereunder shall constitute a certification by PCSI to the
effect set forth in the preceding sentence (both as of the date of such notice
and, unless PCSI otherwise notifies the Agent prior to the date of such
borrowing, as of the date of such borrowing).
Section 7. Representations and Warranties.
------------------------------
39
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, each Obligor (but in the case of Section 7.01, only the
Guarantor) hereby represents and warrants to the Agent and each Lender that:
7.01 Financial Condition. The consolidated balance sheet of the Guarantor
-------------------
and its Consolidated Subsidiaries as at December 31, 1994 and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, reported on by Ernst & Young, copies of which have heretofore been
furnished to each Lender, present fairly the consolidated financial condition of
the Guarantor and its Consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the fiscal year then ended. The unaudited consolidated balance sheet of the
Guarantor and its Consolidated Subsidiaries as at June 30, 1995 and the related
unaudited consolidated statements of income and of cash flows for the six-month
period ended on such date, certified by a Responsible Officer, copies of which
have heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the Guarantor and its Consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the six-month period then ended (subject to normal
year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). Neither the Guarantor nor any of its Consolidated Subsidiaries had,
at the date of the most recent balance sheet referred to above, any material
Guarantee Obligation, contingent liability or liability for taxes, or any long-
term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which are required to be, but which are not, reflected in the foregoing
statements or in the notes thereto. During the period from December 31, 1994 to
and including the date hereof there has been no sale, transfer or other
disposition by the Guarantor or any of its Consolidated Subsidiaries of any
material part of its business or property, other than assets securitized in the
ordinary course of business or assets transferred from one Consolidated
Subsidiary to another, and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in relation
to the consolidated financial condition of the Guarantor and its Consolidated
Subsidiaries at December 31, 1994.
7.02 No Change. From December 31, 1994 to the Effective Date, there has
---------
been no development or event in or relating to the business and affairs of such
Obligor (other than developments and events generally applicable to similarly
situated businesses) which has had or would reasonably be expected to have a
Material Adverse Effect on such Obligor.
7.03 Corporate Existence; Compliance with Law. Each of such Obligor and
----------------------------------------
its Material Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation 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, except to the extent that the failure to so qualify
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect on such Obligor, and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect on such
Obligor.
40
7.04 Corporate Power; Authorization; Enforceable Obligations. Such
-------------------------------------------------------
Obligor has the corporate power and authority, and the legal right, to make,
deliver and perform the Credit Documents to which it is a party and to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of the Credit Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority is required for the borrowings by
such Obligor hereunder or with the execution, delivery, performance, validity or
enforceability by such Obligor of the Credit Documents to which such Obligor is
a party, except such as have been obtained or will be obtained as and when
required or if the failure to obtain such consent or take such other action
would not reasonably be expected to have a Material Adverse Effect on such
Obligor. This Agreement has been, and each other Credit Document to which it is
a party will be, duly executed and delivered on behalf of such Obligor. This
Agreement constitutes, and each other Credit Document to which it is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of such Obligor enforceable against such Obligor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
7.05 No Legal Bar. The execution, delivery and performance of the Credit
------------
Documents to which such Obligor is a party, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of such Obligor or of any of its Material Subsidiaries and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation, except to the extent such violation or Lien would not
reasonably be expected to have a Material Adverse Effect on such Obligor.
7.06 No Material Litigation. No litigation, investigation or proceeding
----------------------
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of such Obligor, threatened by or against such Obligor or any of its
Material Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Credit Documents or any of the
transactions contemplated hereby or thereby, or (b) which would reasonably be
expected to have a Material Adverse Effect on such Obligor.
7.07 No Default. Neither such Obligor nor any of its Material
----------
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which would reasonably be expected to have a Material
Adverse Effect on such Obligor. No Default or Event of Default has occurred and
is continuing with respect to such Obligor.
7.08 Ownership of Property; Liens. As of the Effective Date (i) each of
----------------------------
such Obligor and its Material Subsidiaries has valid record title in fee simple
to, or a valid leasehold interest in, all its real property, and valid title to,
or a valid leasehold interest in, all its other property, and (ii) none of such
property is subject to any Lien except as permitted by Section 8.08.
7.09 Taxes. Each of such Obligor and its Material Subsidiaries has filed
-----
or caused to be filed all tax returns which, to the knowledge of such Obligor,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any amount the validity of which is
currently being contested in good faith by appropriate proceedings and with
respect
41
to which reserves in conformity with GAAP have been provided on the books of
such Obligor or such Material Subsidiary, as the case may be); as of the
Effective Date no tax Lien has been filed, and, to the knowledge of such
Obligor, no claim is being asserted, with respect to any such tax, fee or other
charge.
7.10 Federal Regulations. No part of the proceeds of any Loans to
-------------------
such Obligor will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation G or
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors. The value of all
margin stock owned directly or indirectly by such Obligor does not and will not
constitute more than 25% of the total assets of such Obligor.
7.11 ERISA. With respect to such Obligor's ERISA Plans:
-----
(a) each such ERISA Plan is in compliance in all material respects
with, and has been administered in all material respects in compliance
with, the terms of such plan, the applicable provisions of ERISA (to the
extent said plan is an ERISA Plan), the Code (to the extent said plan is
intended to comply with the Code) and any other Federal or state law;
(b) a favorable determination of qualification under Section 401(a) or
Section 403(a) of the Code of each ERISA Pension Plan of such Obligor which
is intended to be so qualified and each amendment thereto, and a
recognition of exemption from federal income taxation under Section 501(a)
of each funded ERISA Welfare Plan of such Obligor, has been received from
the Internal Revenue Service, and nothing has occurred since the date of
each such determination or recognition that would affect adversely such
qualification or exemption;
(c) the amount for which such Obligor or any ERISA Affiliate would be
liable pursuant to the provisions of Section 4062 or 4064 of ERISA with
respect to each ERISA Pension Plan would be not greater than $20,000,000 if
such plan had terminated as of the date of this representation; and
(d) as of the most recent valuation date of each ERISA Pension Plan of
such Obligor, the market value of plan assets of each such ERISA Pension
Plan subject to Section 302 of ERISA or to Section 412 of the Code is not
less than (i) the greater of (1) the plan's accrued liability as determined
under Section 302(c)(7)(A)(i)(II) of ERISA and Section 412(c)(7)(A)(i)(II)
of the Code and (2) the present value of vested benefits of the plan as
determined on the basis of PBGC Form 1 less (ii) $20,000,000.
7.12 Investment Company Act; Other Regulations. Such Obligor is not
-----------------------------------------
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. Such
Obligor is not subject to regulation under any Federal or state statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness other than, in
the case of FDNB, PNB and PCSI, statutes and regulations generally applicable to
national banks and FDIC-insured institutions and, in the case of PCSI, statutes
and regulations generally applicable to Utah industrial loan corporations.
7.13 Subsidiaries. All the Subsidiaries of such Obligor at the date
------------
hereof are listed on Schedule I.
42
7.14 Purpose of Loans. The proceeds of any Loans to such Obligor
----------------
shall be used by such Obligor to finance such Obligor's consumer asset programs
and for other general corporate purposes, including, without limitation,
commercial paper backup.
7.15 True and Complete Disclosure. All factual information, when
----------------------------
taken as a whole, furnished in writing by such Obligor to the Agent pursuant to
or in connection with this Agreement is accurate in all material respects on the
date as of which such information is dated or certified and is not incomplete by
reason of omitting to state a material fact respecting such Obligor and
necessary to make such information, when taken as a whole, not misleading in any
material respect, in light of the circumstances under which such information was
provided.
7.16 Public Utility Holding Company Act. Neither such Obligor nor
----------------------------------
any of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
Section 8. Certain Covenants of Each Obligor.
---------------------------------
Each Obligor, as applicable, covenants and agrees with the Lenders and
the Agent that, so long as any Commitment or Loan is outstanding and until
payment in full of all amounts payable by any Obligor hereunder:
8.01 Financial Statements, Etc. Each Borrower, in the case of
-------------------------
clauses (a), (d), (f), (g) and (h), and the Guarantor, in the case of clauses
(b), (c), (e), (f) and (g), shall deliver to each of the Agent and the Lenders:
(a) as soon as available and in any event within forty-five (45) days
after the end of each of the first three (3) quarterly fiscal periods of
each fiscal year of such Borrower, consolidated statements of income of
such Borrower and its Consolidated Subsidiaries for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheets of such Borrower and its Consolidated
Subsidiaries as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated figures for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial or accounting officer of such Borrower
stating that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of such Borrower
and its Consolidated Subsidiaries in accordance with GAAP, as at the end
of, and for, such period (subject to normal year-end audit adjustments),
provided, that PCSI shall not be obligated to deliver any such statements
--------
until such time as PCSI becomes an Insured Depository Institution;
(b) as soon as available and in any event within forty-five (45) days
after the end of each of the first three (3) quarterly fiscal periods of
each fiscal year of the Guarantor, consolidated statements of income,
retained earnings and cash flows of the Guarantor and its Consolidated
Subsidiaries for such period and for the period from the beginning of the
respective fiscal year to the end of such period, and the related
consolidated balance sheets of the Guarantor and its Consolidated
Subsidiaries as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated figures for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial or accounting officer of the Guarantor
stating that said consolidated financial statements fairly present the
43
consolidated financial condition and results of operations of the Guarantor
and its Consolidated Subsidiaries at the end of, and for, such period
(subject to normal year-end audit adjustments);
(c) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Guarantor, (i) consolidated
statements of income, retained earnings and cash flows of the Guarantor and
its Consolidated Subsidiaries for such fiscal year and the related
consolidated balance sheets of the Guarantor and its Consolidated
Subsidiaries as at the end of such fiscal year, setting forth in each case
in comparative form the corresponding consolidated figures for the
preceding fiscal year, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which opinion
shall state that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of the Guarantor
and its Consolidated Subsidiaries as at the end of, and for, such fiscal
years in accordance with GAAP and (ii) supplemental consolidating
statements of financial condition and supplemental consolidating statements
of income of the Guarantor and its Consolidated Subsidiaries as of the end
of such fiscal year and including the results of operations during such
fiscal year (separately disclosing balance sheet and income statement
information for each Borrower), accompanied by an opinion thereon of
independent certified public accountants of recognized national standing,
which opinion shall state that said consolidating financial statements are
fairly stated in all material respects in relation to the consolidated
financial statements of the Guarantor and its Consolidated Subsidiaries
taken as a whole;
(d) at the time each Borrower furnishes each set of financial
statements pursuant to paragraph (a) above and at the time the Guarantor
furnishes each set of financial statements pursuant to paragraph (c) above,
a certificate of a senior financial or accounting officer of each Borrower
(i) to the effect that to such officer's knowledge no Default or Event of
Default has occurred and is continuing (or, if any Default or Event of
Default has occurred and is continuing, describing the same in reasonable
detail and describing the action, if any, that such Borrower has taken or
proposes to take with respect thereto) and (ii) setting forth in reasonable
detail the computations necessary to determine whether such Borrower is in
compliance with Section 9.02 or 9.03, as the case may be, as of the end of
the respective quarterly fiscal period or fiscal year;
(e) at the time it furnishes each set of financial statements pursuant
to paragraph (b) or (c) above, a certificate of a senior financial or
accounting officer of the Guarantor (i) to the effect that to such
officer's knowledge no Default or Event of Default has occurred and is
continuing (or, if any Default or Event of Default has occurred and is
continuing, describing the same in reasonable detail and describing the
action, if any, that the Guarantor has taken or proposes to take with
respect thereto) and (ii) setting forth in reasonable detail the
computations necessary to determine Consolidated Tangible Capital of the
Guarantor and to determine whether the Guarantor is in compliance with
Section 9.01 as of the end of the respective quarterly fiscal period or
fiscal year;
(f) promptly upon receipt thereof, copies of any reports and
management letters submitted to such Obligor by such accountants in
connection with any annual or interim audit of the books of such Obligor
and its Subsidiaries, together with such Obligor's responses thereto, if
any;
44
(g) from time to time such other information regarding the financial
condition, operations, business or prospects of such Obligor (including,
without limitation, any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA) as the Agent may reasonably
request; and
(h) with respect only to FDNB and PNB, promptly after their filing
with, or release by, the OCC, copies of the publicly available portion of
such Borrower's quarterly Call Reports (or successors) to the OCC and, if
permitted by applicable law, copies of any reports of examination by the
OCC, and with respect only to PCSI after PCSI becomes an Insured Depository
Institution, promptly after their filing with, or release by, the Federal
Deposit Insurance Corporation (the "FDIC") or any other applicable
Governmental Authority, copies of the publicly available portion of PCSI's
quarterly Call Reports (or successors) to the FDIC or such other
Governmental Authority and, if permitted by applicable law, copies of any
reports of examination by the FDIC or such other Governmental Authority.
8.02 Litigation. Each Obligor will promptly give to the Agent
----------
notice of all legal or arbitral proceedings, and of all proceedings by or before
any Governmental Authority, and any material development in respect of such
legal or other proceedings, against such Obligor or any of its Subsidiaries,
which have a reasonable likelihood of being adversely determined and which, if
adversely determined, would reasonably be expected to result in a Material
Adverse Effect.
8.03 Existence, Etc. Each Obligor will, and will cause each of its
--------------
Material Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises if failure to maintain such
rights, privileges, licenses and franchises would reasonably be expected to
have a Material Adverse Effect on such Obligor; provided that nothing in
--------
this Section 8.03 shall prohibit any transaction expressly permitted under
Section 8.06 hereof;
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of Governmental Authorities if failure to comply
with such requirements would reasonably be expected to have a Material
Adverse Effect on such Obligor;
(c) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its
significant Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and against which
adequate reserves are being maintained;
(d) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(e) upon at least five Business Days' prior notice, permit officers
and employees of the Agent or, with the consent of such Obligor, a Lender,
to visit and inspect any of the properties of such Obligor and to examine
and audit the minute books, books of account and other records of such
Obligor and make copies thereof or extracts therefrom, and discuss its
affairs, finances and accounts with its officers and, at the request of the
Agent and the consent of such Obligor, with such Obligor's
45
independent accountants, during normal business hours as often as the Agent
may reasonably desire.
8.04 Insurance. Each Obligor will, and will cause each of its
---------
Material Subsidiaries to, maintain insurance in full force and effect with
responsible insurance companies having, in the case of an insurer which is the
issuer of any of such Obligor's major policies, at the time any such policy is
issued or renewed, a rating of at least A- by Standard & Poor's Corporation or
A3 by ▇▇▇▇▇'▇ Investors Service, Inc. or A by A. M. Best Company (or, if such an
insurer is not rated by any of the foregoing agencies, a policyholder surplus of
at least $100,000,000), against such risks, on such properties and in such
amounts as is customarily maintained by similar businesses; and file with the
Agent upon its request a detailed list of the insurance companies, the amounts
and rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby; provided, however, to the extent that it
-------- --------
would be consistent with prudent business practice and customary among
corporations engaged in similar businesses, such Obligor may self-insure for
damage or loss.
8.05 Notices. Each Obligor will promptly give notice to the Agent
-------
of:
(a) the occurrence of any Default or Event of Default;
(b) as soon as possible, and in any event within ten days after such
Obligor knows or has reason to believe that any of the events or conditions
specified below with respect to any ERISA Plan or ERISA Multiemployer Plan
of such Obligor has occurred or exists, a statement signed by a Responsible
Officer setting forth details respecting such event or condition and the
action, if any, that such Obligor or ERISA Affiliate thereof proposes to
take with respect thereto (and a copy of any report or notice required to
be filed with or given to PBGC by such Obligor or ERISA Affiliate with
respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA
and the regulations issued thereunder (other than any event the
reporting requirement with respect to which has been waived by PBGC),
with respect to an ERISA Pension Plan of such Obligor, (provided that
--------
a failure to meet the minimum funding standard of Section 302 of ERISA
or Section 412 of the Code, including, without limitation, the failure
to make on or before its due date a required installment under Section
302(e) of ERISA or Section 412(m) of the Code, shall be treated as a
reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code); and any request for a
waiver under Section 412(d) of the Code for any ERISA Pension Plan of
such Obligor;
(ii) the distribution under Section 4041 of ERISA of a notice of
intent to terminate any ERISA Pension Plan of such Obligor or any
action taken by such Obligor or any ERISA Affiliate to terminate any
ERISA Pension Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any ERISA Pension Plan of such Obligor, any event or
condition which might constitute grounds for the institution of such
proceedings, or the receipt by such Obligor or any ERISA Affiliate of
a notice that such a proceeding has been instituted by PBGC with
respect to an ERISA Multiemployer Plan of such Obligor;
46
(iv) the complete or partial withdrawal from an ERISA Multiemployer
Plan by such Obligor or any ERISA Affiliate that results in liability under
Section 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or Section 4201 of ERISA (in
either case without regard to reduction or waiver of such liability under
Section 4207 or 4208 of ERISA) or the receipt by such Obligor or any ERISA
Affiliate of notice from an ERISA Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or
that it intends to terminate or has terminated under Section 4041A of
ERISA;
(v) the institution of a proceeding on behalf of any ERISA
Multiemployer Plan against such Obligor or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days;
(vi) the cessation of operations at a facility which would subject
such Obligor or any ERISA Affiliate to the provisions of Section 4062(e) of
ERISA;
(vii) the withdrawal from an ERISA Pension Plan by such Obligor or any
ERISA Affiliate that results in liability in accordance with the provisions
of Section 4063 of ERISA;
(viii) the termination of an ERISA Pension Plan to which such Obligor or
any ERISA Affiliate contributed, or was required to contribute, at any time
within the five plan years preceding the date of termination so as to
become subject to the provisions of Section 4064 of ERISA;
(ix) the adoption of an amendment to any ERISA Pension Plan that,
pursuant to Section 307 of ERISA or Section 401(a)(29) the Code, would
require such Obligor or any ERISA Affiliate timely to provide security to
the plan in accordance with the provisions of said Section or would result
in the loss of tax-exempt status of the trust of which such plan is a part
if such security is not timely provided;
(x) the funded current liability percentage, within the meaning of
Section 302(d)(8) of ERISA and Section 412(l)(8) of the Code, of each ERISA
Pension Plan of such Obligor is less than 60%.
(xi) the aggregate amount of accumulated benefit obligations,
determined in accordance with Statement of Accounting Standards No. 87, of
all ERISA Plans of such Obligor which are ERISA Pension Plans exceeds the
aggregate fair market value of plan assets of all such plans by more than
$20,000,000;
(xii) the aggregate amount of transition obligations, determined in
accordance with Statement of Financial Accounting Standards No. 106 (or,
before such Statement is applicable to such Obligor or any ERISA Affiliate,
a good faith estimate of such transition obligation), of all ERISA Welfare
Plans of such Obligor (other than ERISA Pension Plans) which has not been
recognized as an income expense in the income statement of such Obligor and
its subsidiaries exceeds $20,000,000;
47
(xiii) any transaction or occurrence proscribed by Section 406 of ERISA,
or subject to tax under Section 4975 of the Code, for which a statutory
exemption is not available;
(xiv) the payment under any ERISA Plan of such Obligor (including but
not limited to individual employment and severance agreements) which is not
deductible for federal income tax purposes by virtue of Section 280G of the
Code;
(xv) the filing or overt threat of any action, suit or claim (other
than a routine claim for benefits), including but not limited to a civil or
criminal action or civil penalty pursuant to the provisions of Title I,
Subtitle B, Part 5 of ERISA, in respect of any ERISA Plan of such Obligor
against such plan, such Obligor or any ERISA Affiliate, or any other person
which could result in liability of such Obligor or any ERISA Affiliate; and
(xvi) from time to time such other information regarding any ERISA Plan
of, and any reports or other information required to be filed under ERISA
by, such Obligor or any of its Subsidiaries as any Lender or the Agent may
reasonably request.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Obligor proposes to take with respect
thereto. Notice of any event described in this Section 8.05 which relates to
more than one Obligor need only be given by one Obligor, provided such notice
--------
specifies all Obligors to which such event applies.
8.06 Limitation on Fundamental Changes. Each Obligor shall not,
---------------------------------
and shall not permit its Material Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in the character of its present business,
except:
(a) any Subsidiary of such Obligor may be merged or consolidated with
or into any Person (provided that the surviving entity shall be a wholly
--------
owned direct or indirect Subsidiary of the Guarantor);
(b) any Subsidiary of such Obligor may convey, sell, lease, assign,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to such Obligor or to any other wholly owned
direct or indirect Subsidiary of the Guarantor; and
(c) changes in the character of its present business if after giving
effect to such change such Obligor and its Material Subsidiaries will be
principally engaged in the business of offering, selling, servicing or
owning consumer products and services (including, without limitation,
consumer financial products and services).
8.07 Limitation on Sale of Assets. Each Obligor shall not, and
----------------------------
shall not permit its Material Subsidiaries to, convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Material
48
Subsidiary, issue or sell any shares of such Material Subsidiary's Capital Stock
to any Person other than such Obligor or any wholly owned direct or indirect
Subsidiary of the Guarantor, except:
(a) the sale or other disposition of property which is obsolete, worn
out or no longer used or useful in the ordinary course of business;
(b) as permitted under Section 8.09 hereof;
(c) the sale of Receivables if (A) such sale is intended to be without
recourse and (B) after giving effect to such sale such Obligor will be in
compliance with all of the applicable covenants contained in Sections 8 and
9, and no Default or Event of Default will occur by reason of such sale;
(d) sales, leases and dispositions of assets other than Receivables in
the ordinary course of its business in arm's length transactions for full
and fair value;
(e) as permitted by Section 8.06(b); and
(f) any sale of assets to any Person not covered by (a) through (e)
above, if after giving effect to such sale such Obligor will be in
compliance with all of the applicable covenants contained in Sections 8 and
9 and no Default or Event of Default will occur by reason of such sale.
8.08 Limitation on Liens. Each Obligor shall not, and shall not
-------------------
permit its Material Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens incidental to the conduct of the business of such Obligor or
its Material Subsidiaries or the ownership of its assets or properties and
not incurred in connection with the borrowing of money or the acquisition
of any asset and which in the aggregate do not materially detract from the
business, properties, condition (financial or otherwise) or operations,
present or prospective, of such Obligor;
(b) Liens securing purchase money debt, so long as each such Lien
secures only the Indebtedness incurred to purchase the property subject to
such Lien;
(c) Liens in existence on the date hereof as set forth in Schedule II,
provided that, unless permitted under Section 8.08(a), no such Lien is
--------
spread to cover any additional property after the date hereof and that the
amount of Indebtedness secured thereby is not increased;
(d) in the case of FDNB and PNB, Liens granted to the Federal Reserve
Bank of Boston to secure advances or other transactions incidental to the
conduct of the business of such Borrower, including loans to meet liquidity
requirements;
(e) Liens resulting from the recharacterization of any transaction
intended to be a non-recourse sale as Indebtedness for borrowed money; and
(f) other Liens consented to in writing by the Agent and the
Majority Lenders; provided that the Agent and the Lenders shall not
--------
unreasonably withhold such consent.
49
8.09 Limitation on Transactions with Affiliates. Each Obligor shall
------------------------------------------
not enter into any transaction, including, without limitation, any purchase,
sale, lease or exchange of property or the rendering of any service, with any
Affiliate unless such transaction is (a) in the ordinary course of the Obligor's
or such Affiliate's business, or is upon fair and reasonable terms no less
favorable to such Obligor than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate and (b) in compliance with
all applicable law.
Section 9. Additional Obligor-Specific Covenants.
-------------------------------------
9.01 Guarantor Covenants. The Guarantor further covenants and
-------------------
agrees with the Lenders that, so long as any Commitment or Loan is outstanding,
the Guarantor will not:
(a) Maintenance of Consolidated Tangible Capital. Permit Consolidated
--------------------------------------------
Tangible Capital at any time during any of the calendar years set forth below to
be less than the amount set forth below opposite such year:
Year Amount
---- ------
1995 $275,000,000
1996 $300,000,000
1997 $325,000,000
1998 and thereafter $350,000,000
(b) Maintenance of Consolidated Pre-tax Return on Assets. Permit the
----------------------------------------------------
Consolidated Pre-tax Return on Assets as of the end of any Quarterly Period to
be less than 1.0%, provided that the Guarantor will not be deemed to be in
--------
breach of this covenant if Consolidated Pre-tax Return on Assets as of the end
of a particular Quarterly Period is less than 1.0% so long as within 60 days
after the end of such Quarterly Period the Guarantor provides a certificate to
the Agent certifying that it has obtained cash, cash equivalents or short-term
investment grade securities as a capital contribution in an aggregate amount
greater than or equal to the difference between (i) the amount of Consolidated
Pre-tax Income for the preceding four Quarterly Periods which would have caused
the Consolidated Pre-tax Return on Assets as of the end of such Quarterly Period
to be equal to 1.0% and (ii) the actual Consolidated Pre-tax Income for such
four preceding Quarterly Periods.
9.02 Covenants of FDNB, PNB and PCSI. Each of FDNB and PNB further
-------------------------------
covenants and agrees with the Lenders that, so long as any Commitment or Loan is
outstanding, FDNB and PNB will, and PCSI further covenants and agrees with the
Lenders that, so long as any Loan is outstanding to PCSI, PCSI will:
(a) Maintenance of Ratio of Funded Debt to Equity. Not permit the
---------------------------------------------
ratio of (i) the Consolidated Funded Debt of such Borrower to (ii) the
Consolidated Shareholders' Equity of such Borrower to exceed 10 to 1.
(b) Maintenance of Capital. (i) Maintain at all times such amount of
----------------------
capital as may be prescribed by the Board of Governors of the Federal Reserve
System from time to time, whether by regulation, agreement or order and (ii) be
"well capitalized" (as defined in 12 U.S.C. 1831o, as amended, reenacted or
redesignated from time to time).
50
9.03 Covenants of PCC. PCC further covenants and agrees with the
----------------
Lenders that, so long as any Loan is outstanding to PCC, PCC will:
(a) Maintenance of Ratio of Senior Funded Debt to Consolidated
----------------------------------------------------------
Tangible Capital. Not permit the ratio of (i) the Consolidated Senior Funded
----------------
Debt of PCC to (ii) Consolidated Tangible Capital of PCC to exceed 8 to 1.
(b) Maintenance of Ratio of Finance Assets to Senior Funded Debt.
------------------------------------------------------------
Not permit the ratio of (i) Consolidated Finance Assets of PCC to (ii) the
Consolidated Senior Funded Debt of PCC to be less than 1.10 to 1.
Section 10. Guarantee.
---------
10.01 Guarantee.
---------
(a) The Guarantor hereby unconditionally and irrevocably guarantees to
the Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment by the Borrowers to the Agent on behalf of the
Lenders when due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations (including, without limitation, any Obligations resulting
from increases in the aggregate Commitments pursuant to Section 2.13 or 2.14)
without set-off or counterclaim in Dollars at the Principal Office of the Agent
in accordance with the terms of this Agreement.
(b) The Guarantor further agrees to pay all reasonable out-of-pocket
costs and expenses of the Lenders and the Agent (including, without limitation,
reasonable counsels' fees) in connection with any Event of Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the protection or preservation of rights or interests following an Event of
Default or the negotiation of any restructuring or "work-out" (whether or not
consummated) of the obligations of the Guarantor under this Section 10 following
an Event of Default.
(c) No payment or payments made by any Borrower or any other Person or
received or collected by the Agent or any Lender from any Borrower or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Guarantor hereunder which shall, notwithstanding any such
payment or payments, continue to be effective until the Obligations are paid in
full and the Commitments are terminated.
(d) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Agent or any Lender on account of its
liability under this Section 10, it will notify the Agent and such Lender in
writing that such payment is made under this Section 10 for such purpose.
10.02 Right of Set-off. The Agent and each Lender is hereby
----------------
irrevocably authorized at any time and from time to time after the occurrence
and during the continuation of an Event of Default, without notice to the
Guarantor, any such notice being expressly waived by the Guarantor, to set off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Agent or such Lender or any bank controlled by such Lender to or
for the credit or the account of the Guarantor, or
51
any part thereof in such amounts as the Agent or such Lender may elect, against
or on account of the obligations and liabilities of the Guarantor to the Agent
or such Lender hereunder as the Agent or such Lender may elect, whether or not
the Agent or such Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The Agent
and each Lender shall notify the Guarantor promptly of any such set-off and the
application made by the Agent or such Lender, as the case may be, of the
proceeds thereof; provided that the failure to give such notice shall not affect
--------
the validity of such set-off and application. The rights of the Agent and each
Lender under this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Agent or such
Lender may have.
10.03 No Subrogation. Notwithstanding anything to the contrary in
--------------
this Agreement, the Guarantor hereby irrevocably waives all rights which may
have arisen in connection with this Agreement to be subrogated to any of the
rights (whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of the Lenders against the Borrowers or
against any collateral security or guarantee or right of offset held by the
Lenders for the payment of the Obligations to the extent that any such right
would constitute the Guarantor a "creditor" of the Borrowers within the meaning
of Section 547 of the Bankruptcy Code. So long as the Obligations remain
outstanding, if any amount shall be paid by or on behalf of the Borrowers to the
Guarantor on account of any of the rights waived in this paragraph, such amount
shall be held by the Guarantor in trust, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Agent in the form received by the Guarantor (duly indorsed by the
Guarantor to the Lender, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Agent may determine. The
provisions of this paragraph shall survive the termination of this Agreement and
the payment in full of the Obligations and the termination of the Commitments.
10.04 Amendments, etc. re Obligations; Waiver of Rights. The Guarantor
-------------------------------------------------
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against the Guarantor, and without notice to or further assent by the
Guarantor (except as provided in Section 13.04), any demand for payment of any
of the Obligations made by the Agent or any Lender may be rescinded by the Agent
or such Lender, and any of the Obligations continued, and the Obligations, or
the liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Agent or any
Lender, and this Agreement and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Agent (or the Majority Lenders, as the case may be) may
deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Agent or any Lender for the payment of
the Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Agent nor any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Agreement or any property subject thereto. When making
any demand hereunder against the Guarantor, the Agent or any Lender may, but
shall be under no obligation to, make a similar demand on the related Borrower
or any other guarantor, and any failure by the Agent or any Lender to make any
such demand or to collect any payments from the Borrowers or any such other
guarantor or any release of the Borrowers or such other guarantor shall not
relieve the Guarantor of its obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Agent or any Lender against
52
the Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
10.05 Guarantee Absolute and Unconditional. The Guarantor waives any and
------------------------------------
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
the obligations of the Guarantor under this Agreement or acceptance of this
guarantee; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the obligations of the Guarantor under this Agreement;
and all dealings between the Borrowers or the Guarantor, on the one hand, and
the Agent and the Lenders, on the other, shall likewise be conclusively presumed
to have been had or consummated in reliance upon the obligations of the
Guarantor under this Agreement. The Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon any
Borrower or the Guarantor with respect to the Obligations. The obligations of
the Guarantor under this Section 10 shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the validity, or
enforceability of this Agreement, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by the Agent or any Lender, (b) any defense, set-
off or counterclaim (other than a defense of payment or performance) which may
at any time be available to or be asserted by any Borrower against the Agent or
any Lender, or (c) any other circumstance whatsoever (with or without notice to
or knowledge of the Borrowers or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of any Borrower for the
Obligations, or of the Guarantor under this Agreement, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against any Borrower or any other
Person or against any collateral security or guarantee for the Obligations or
any right of offset with respect thereto, and any failure by the Agent or any
Lender to pursue such other rights or remedies or to collect any payments from
any Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
any Borrower or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Agent or any Lender
against the Guarantor. The obligations of the Guarantor under this Agreement
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the Guarantor and its successors and assigns
thereof, and shall inure to the benefit of the Agent and the Lenders, and their
respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the Guarantor under this Guarantee shall have
been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrowers may be free from any Obligations.
10.06 Reinstatement. The obligations of the Guarantor under this
-------------
Agreement shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Borrower or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
Section 11. Events of Default.
-----------------
53
If any of the following events ("Events of Default") shall occur and
-----------------
be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms thereof or hereof; or any Borrower shall fail to
pay any interest on any Loan, any Facility Fee, any Utilization Fee or any
other amount payable by such Borrower hereunder, within three Business Days
after any such interest, fee or other amount becomes due in accordance with
the terms thereof or hereof; or
(b) The Guarantor shall fail to pay any amount pursuant to Section 10
hereof within seven Business Days after such amount becomes due in
accordance with the terms thereof; or
(c) Any representation or warranty made or deemed made by any Obligor
herein or which is contained in any certificate furnished by it at any time
under this Agreement shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(d) Any Obligor shall default in the observance or performance of any
agreement contained in Section 8.06, 8.07, 9.01 (subject to the cure right
provided therein), 9.02 or 9.03; or
(e) Any Obligor shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (d) of this Section), and such default shall
continue unremedied for a period of 30 days after the Agent has given
notice of such default to such Obligor; or
(f) Any Borrower or any of its Material Subsidiaries or the Guarantor
shall (i) default in any payment of principal of or interest of any
Indebtedness (other than the Loans) or in the payment of any Guarantee
Obligation in an aggregate amount in excess of $10,000,000 in the case of
any Borrower and its Material Subsidiaries and $20,000,000 in the case of
the Guarantor, and such default shall remain uncured or unwaived within the
cure period or grace period, if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable and such
default shall remain uncured or unwaived within the cure period or grace
period, if any, provided therein; or
(g) (i) Any Borrower or any of its Material Subsidiaries or the
Guarantor shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
54
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or any
Borrower or any of its Material Subsidiaries or the Guarantor shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Borrower or any of its Material Subsidiaries or the
Guarantor any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against any Borrower or any of its Material Subsidiaries or the
Guarantor any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) any Borrower or any of its Material Subsidiaries or the Guarantor
shall take any corporate action for the purpose of effecting any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) any Borrower or
any of its Material Subsidiaries or the Guarantor shall admit in writing
its inability to, pay its debts as they become due; or
(h) An event or condition specified in Section 8.05(b) hereof shall
occur or exist with respect to any ERISA Plan and, as a result of such
event or condition, together with all other such events or conditions, any
Obligor or any ERISA Affiliate shall incur or in the opinion of the
Majority Lenders shall be reasonably likely to incur a liability to or in
respect of an ERISA Plan or to PBGC (or any combination of the foregoing)
which would constitute, in the determination of the Majority Lenders, a
Material Adverse Effect with respect to such Obligor; or
(i) One or more judgments or decrees shall be entered against any
Obligor or any of its Material Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of, in the case of a
Borrower and its Material Subsidiaries, $10,000,000 or more, and in the
case of the Guarantor and its Material Subsidiaries, $20,000,000 or more,
and shall remain unvacated, undischarged, unstayed or unbonded pending
appeal within 30 days from the entry thereof; or
(j) Providian Corporation, a Delaware corporation, shall cease to own,
directly or indirectly, at least 66-2/3% of the voting stock of the
Guarantor;
(k) The Guarantor shall cease to own directly 100% of the voting stock
of each Borrower; or
(l) Any Borrower or any Material Subsidiary of such Borrower which is an
Insured Depository Institution shall enter into a capital maintenance
agreement or be required to submit a capital restoration plan of the type
referred to in 12 U.S.C. 1831o(b)(2)(c).
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to the Guarantor
(other than an Event of Default caused solely by a case, proceeding or other
action with respect to a Borrower), automatically the Commitments and the Swing
Line Commitment to lend to all Borrowers shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing by
any Obligor under this Agreement shall immediately become due and payable, (B)
if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (g) above with
55
respect to a Borrower, automatically the Commitments and the Swing Line
Commitment to lend to such Borrower shall immediately terminate and the Loans to
such Borrower hereunder (with accrued interest thereon) and all other amounts
owing by such Borrower under this Agreement shall immediately become due and
payable, (C) if such event is any other Event of Default with respect to the
Guarantor or any Event of Default specified in paragraph (b), (j) or (k), either
or both of the following actions may be taken: (i) with the consent of the
Majority Lenders, the Agent may, or upon the request of the Majority Lenders,
the Agent shall, by notice to the Guarantor and the Borrowers declare the
Commitments and the Swing Line Commitment to lend to all Borrowers to be
terminated forthwith, whereupon the Commitments and the Swing Line Commitment
shall immediately terminate; and (ii) with the consent of the Majority Lenders,
the Agent may, or upon the request of the Majority Lenders, the Agent shall, by
notice to the Guarantor and the Borrowers, declare the Loans to all Borrowers
hereunder (with accrued interest thereon) and all other amounts owing by any
Obligor under this Agreement to be due and payable forthwith, whereupon the same
shall immediately become due and payable and (D) if such event is any other
Event of Default with respect to any Borrower, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the Agent
may, or upon the request of the Majority Lenders, the Agent shall, by notice to
such Borrower declare the Commitments and the Swing Line Commitment to lend to
such Borrower to be terminated forthwith, whereupon the Commitments and the
Swing Line Commitment to lend to such Borrower shall immediately terminate; and
(ii) with the consent of the Majority Lenders, the Agent may, or upon the
request of the Majority Lenders, the Agent shall, by notice to such Borrower,
declare the Loans to such Borrower hereunder (with accrued interest thereon) and
all other amounts owing by such Borrower under this Agreement to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
Section 12. The Agent.
---------
12.01 Appointment, Powers and Immunities. Each Lender hereby appoints
----------------------------------
and authorizes the Agent to act as its agent hereunder with such powers as are
specifically delegated to the Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. The Agent (which
term as used in this sentence and in Section 12.05 and the first sentence of
Section 12.06 shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall have no
duties or responsibilities except those expressly set forth in this Agreement
and in the other Credit Documents, and shall not by reason of this Agreement or
any other Credit Document be a trustee for any Lender; (b) shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or in any other Credit Document, or in
any certificate or other document referred to or provided for in, or received by
any of them under, this Agreement or any other Credit Document, or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or any other document referred to or
provided for herein or therein or for any failure by any Borrower or any other
Person to perform any of its obligations hereunder or thereunder; (c) shall not
be required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Credit Document; (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under any other
Credit Document or under any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except
for its own gross negligence or willful misconduct. The Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected
56
by it in good faith. The Agent may deem and treat the Lender specified in the
Register with respect to any amount owing hereunder as the owner thereof for all
purposes hereof unless and until a notice of the assignment or transfer thereof
shall have been filed with the Agent, together with the consent of the Borrowers
and the Agent to such assignment or transfer (to the extent provided in Section
13.06(b) hereof).
12.02 Reliance by Agent. The Agent shall be entitled to rely upon any
-----------------
certification, notice or other communication (including, without limitation, any
thereof by telephone, telecopy, telex, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Credit
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Majority Lenders or, if provided herein, in accordance with the
instructions given by the Majority Lenders or all of the Lenders as is required
in such circumstance, and such instructions of such Lenders and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders.
12.03 Defaults. The Agent shall not be deemed to have knowledge or notice of
--------
the occurrence of a Default or Event of Default (other than the non-payment of
principal of or interest on Loans or of Facility Fee or Utilization Fee) unless
the Agent has received notice from a Lender or an Obligor specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of the occurrence
of a Default or Event of Default, the Agent shall give prompt notice thereof to
the Lenders (and shall give each Lender prompt notice of each such non-payment).
The Agent shall (subject to Sections 12.01, 12.07 and 13.04 hereof) take such
action with respect to such Default or Event of Default as shall be directed by
the Majority Lenders, provided that, unless and until the Agent shall have
--------
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Majority Lenders or all of the Lenders.
12.04 Rights as a Lender. With respect to its Commitment and the Loans made
------------------
by it, Chase (and any successor acting as Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Agent, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Chase (and any successor acting
as Agent) and its affiliates may (without having to account therefor to any
Lender) accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the Obligors (and
any of their respective Subsidiaries or Affiliates) as if it were not acting as
the Agent, and Chase and its affiliates may accept fees and other consideration
from the Obligors for services in connection with this Agreement or otherwise
without having to account for the same to the Lenders.
12.05 Indemnification. The Lenders agree to indemnify the Agent (to the
---------------
extent not reimbursed under Section 13.03 or otherwise on behalf of the
Borrowers, but without limiting the obligations of the Borrowers under Section
13.03) ratably in accordance with their respective Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent (in its capacity as Agent)
(including by any Lender) arising out of or by reason of any investigation in or
in
57
any way relating to or arising out of this Agreement or any other Credit
Document or any other documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby (including, without
limitation, the costs and expenses that any Borrower is obligated to pay under
Section 13.03 hereof, but excluding, unless a Default or Event of Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, provided that no Lender
--------
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
12.06 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it
---------------------------------------
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Obligors and the decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any other Credit Document.
The Agent shall not be required to keep itself informed as to the performance or
observance by the Obligors of this Agreement or any of the other Credit
Documents or any other document referred to or provided for herein or therein or
to inspect the Properties or books of the Obligors. Except for notices, reports
and other documents and information expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of any Obligor or any
Subsidiary of any Obligor (or any of their affiliates) that may come into the
possession of the Agent or any of its affiliates.
12.07 Failure to Act. Except for action expressly required of the Agent
--------------
hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its reasonable satisfaction from the Lenders of their
indemnification obligations under Section 12.05 against any and all liability
and expense that may be incurred by it by reason of taking or continuing to take
any such action.
12.08 Resignation or Removal of Agent. Subject to the appointment and
-------------------------------
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Lenders and the Borrowers, and the Agent
may be removed at any time with or without cause by the Majority Lenders. If
the Agent also then serves in the capacity of the Swing Line Lender, such
resignation or removal of the Agent shall not constitute resignation or removal
of the Swing Line Lender. Upon any such resignation or removal, the Majority
Lenders shall with the consent of the Borrowers which consent shall not be
unreasonably withheld have the right to appoint a successor Agent, which shall
be a Lender; provided that if upon the date of such appointment an Event of
--------
Default shall exist, such consent of the Borrowers shall not be required. If no
successor Agent shall have been so appointed by the Majority Lenders and shall
have accepted such appointment within 30 days after the retiring Agent's giving
of notice of resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
with the consent of the Borrowers (such consent not to be unreasonably
withheld), that shall be a Lender with a combined capital and surplus of at
least $2,000,000,000. Upon the acceptance of any appointment as Agent hereunder
by a successor Agent (with the consent of the Borrowers as may be provided
above), such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any
58
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Section 12 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
12.09 Co-Agents. The Co-Agents shall have no duties or responsibilities or
---------
be entitled to any of the rights of the Agent under this Agreement or under any
other Credit Document.
Section 13. Miscellaneous.
-------------
13.01 Waiver. No failure on the part of the Agent or any Lender to exercise
------
and no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under this Agreement or other Credit Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege under this Agreement or other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
13.02 Notices. All notices, requests and other communications provided for
-------
herein and under the other Credit Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telex or telecopy), or,
with respect to notices given pursuant to Section 2.03 or 2.04, by telephone,
confirmed in writing by telecopier by the close of business on the day the
notice is given, delivered (or telephoned, as the case may be) to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof; or, as to any party, at such other address as shall be designated
by such party in a notice to each other party. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly given
when transmitted by telex or telecopier or personally delivered or, in the case
of a mailed notice, upon receipt, in each case given or addressed as aforesaid.
13.03 Expenses, Etc. Each Borrower severally agrees to pay or reimburse each
-------------
of the Lenders and the Agent, as the case may be, within 15 days after receipt
of written demand for such Borrower's Allocable Portion (as hereinafter defined)
of: (a) all reasonable out-of-pocket costs and expenses of the Agent
(including, without limitation, the reasonable fees and expenses of ▇▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇▇▇, special New York counsel to the Agent and the Lenders), in
connection with (i) the negotiation, preparation, execution and delivery of this
Agreement and the other Credit Documents and the extension of credit hereunder
and (ii) any modification, supplement or waiver of any of the terms of this
Agreement or any of the other Credit Documents; (b) all reasonable out-of-pocket
costs and expenses of the Lenders and the Agent (including, without limitation,
reasonable counsels' fees) in connection with (i) any Event of Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the protection or preservation of rights or interests following an Event of
Default or the negotiation of any restructuring or "work-out" (whether or not
consummated) of the obligations of the Obligors hereunder and under the other
Credit Documents following an Event of Default and (ii) the enforcement of this
Section 13.03; and (c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Credit Documents or any other
document referred to herein or therein, provided, that the fees and expenses of
--------
the Agent and of counsel to the Agent and the Lenders in connection with the
negotiation, preparation, execution and delivery of this Agreement and the other
Credit Documents shall be payable by the Borrowers only to the extent specified
in the letter
59
agreement dated September 5, 1995 among the Agent and the Obligors, and
provided, further, that the fees and expenses of counsel to the Agent in
-------- -------
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Credit Documents shall not be payable by the Lenders.
Each Borrower hereby severally agrees (i) to indemnify the Agent and each
Lender and their respective directors, officers, employees, attorneys and agents
from, and hold each of them harmless against such Borrower's Allocable Portion
(as hereinafter defined) of any and all losses, liabilities, claims, damages or
expenses incurred by any of them (including, without limitation, any and all
losses, liabilities, claims, damages or expenses incurred by the Agent to any
Lender) arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings, but excluding any investigation, litigation or proceeding solely
between Lenders or between the Agent and any Lender or Lenders) (whether or not
the Agent or any Lender or such other indemnified Person is a party thereto)
relating to the extensions of credit hereunder or any actual or proposed use by
the Borrowers or any of their Subsidiaries of the proceeds of any of the
extensions of credit hereunder, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation or litigation or other proceedings (but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified) and (ii) not
to assert any claim against the Agent, any Lender, any of their affiliates, or
any of their respective directors, officers, employees, attorneys and agents, on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to any of the transactions
contemplated herein or in any other Credit Document, other than claims arising
by reason of the gross negligence or willful misconduct of any such Person.
As used in this Section 13.03, a Borrower's "Allocable Portion" of any cost,
expense or other amount payable under this Section 13.03 shall mean (a) if such
cost, expense or other amount is directly attributable to the Loans made to such
Borrower or any action taken or omitted to be taken by such Borrower, 100% of
such amount and (b) if such cost, expense or other amount is not directly
attributable to one or more specific Borrowers, such amount multiplied by (i) if
Loans are outstanding, the percentage equivalent of a fraction the numerator of
which is the principal amount of Loans outstanding to such Borrower and the
denominator of which is the aggregate amount of Loans outstanding to all
Borrowers and (ii) if no Loans are outstanding, 25%.
13.04 Amendments, Etc. Except as otherwise expressly provided in this
---------------
Agreement, any provision of any Credit Document may be modified or supplemented
only by an instrument in writing signed by the Guarantor, the Borrowers and the
Majority Lenders, or by the Guarantor, the Borrowers and the Agent acting with
the consent of the Majority Lenders, and any provision of any Credit Document
may be waived by the Majority Lenders or by the Agent acting with the consent of
the Majority Lenders; provided that: (a) no modification, supplement or waiver
--------
shall, unless by an instrument signed by all of the Lenders or by the Agent
acting with the consent of all of the Lenders: (i) increase, or extend the term
of any of the Commitments (other than as contemplated by Section 2.12, 2.13 or
2.14), or extend the time or waive any requirement for the reduction or
termination of any of the Commitments (other than as contemplated by Section
2.12, 2.13 or 2.14), (ii) extend the date fixed for the payment of principal of
or interest on any Loan (other than Swing Line Loans) or any fee hereunder,
(iii) reduce the amount of any such payment of principal, (iv) reduce the rate
at which interest is payable thereon or any fee is payable hereunder, (v) alter
the rights or obligations of the Borrowers to prepay Loans, (vi) alter the terms
of this Section 13.04,
60
(vii) modify the definition of either of the terms "Majority Lenders" or
"Required Lenders" or modify in any other manner the number or percentage of the
Lenders required to make any determinations or waive any rights hereunder or to
modify any provision hereof, (viii) alter the terms of Section 10, or (ix) alter
the terms of Section 4.02; (b) any modification or supplement of Section 12 or
the imposition of any additional duties or obligations upon the Agent shall
require the consent of the Agent; and (c) no term or condition relating to the
Swing Line Loans or affecting the rights or duties of the Swing Line Lender may
be amended or waived unless in writing and signed by the Swing Line Lender;
provided that the consent of all of the Lenders shall be required to extend
--------
the date of payment of any Swing Line Loan beyond the Termination Date.
Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrowers,
the Lenders, the Agent and all future holders of the obligations owing
hereunder. In the case of any waiver, the Borrowers, the Lenders and the Agent
shall be restored to their former position and rights hereunder and under any
other Credit Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
Anything in this Agreement to the contrary notwithstanding, if at a time when
the conditions precedent set forth in Section 6 to any Syndicated Loan hereunder
are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to
fulfill its obligations to make such Loan, then, for so long as such failure
shall continue, such Lender shall be deemed for all purposes relating to
amendments, modifications, waivers or consents under this Agreement or any of
the other Credit Documents (including, without limitation, under this Section
13.04 and under Section 12.08) to have no Loans or Commitments, shall not be
treated as a "Lender" hereunder when performing the computation of Majority
Lenders, and shall have no rights under the first paragraph of this Section
13.04; provided that any action taken by the other Lenders with respect to the
matters referred to in clause (a) of the first paragraph of this Section 13.04
shall not be effective as against such Lender unless consented to by such
Lender.
13.05 Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective successors and
permitted assigns.
13.06 Assignments and Participations.
------------------------------
(a) No Obligor may assign any of its rights or obligations hereunder or under
any other Credit Document without the prior consent of all of the Lenders and
the Agent.
(b) Each Lender may assign any of its Loans, and its Commitment (but only with
the consent of the Borrowers and the Agent, each such consent not to be
unreasonably withheld or delayed), provided that (i) no such consent by the
--------
Borrowers or the Agent shall be required in the case of any assignment to
another Lender or if the assignee is an affiliate of the assigning Lender; (ii)
any partial assignment shall be in an amount at least equal to $10,000,000;
(iii) each such assignment by a Lender of its Syndicated Loans or Commitment
shall be made in such manner so that the same portion of its Syndicated Loans
and Commitment is assigned to the respective assignee and, if Syndicated Loans
held by such Lender are outstanding to more than one Borrower, such Syndicated
Loans shall be assigned to such assignee pro rata in accordance with the amount
thereof outstanding to each such
61
Borrower and (iv) the parties to each such assignment shall execute and deliver
to the Guarantor, the Borrowers and the Agent an Assignment and Acceptance. Upon
such execution and delivery of the Assignment and Acceptance, and upon consent
thereto by the Guarantor and the Agent, to the extent required above, the
assignee shall have, to the extent of such assignment (unless otherwise provided
in such assignment with the consent of the Guarantor and the Agent), the
obligations, rights and benefits of a Lender hereunder holding the Commitment
and Loans (or portions thereof) assigned to it (in addition to the Commitment
and Loans, if any, theretofore held by such assignee) provided that, with
--------
respect to any Regulatory Change or other event entitling such assignee to
receive any amount pursuant to Section 5.01, 5.05 or 5.06 which Regulatory
Change or event has occurred prior to the date of such assignment, such assignee
shall not be entitled to receive any greater amount with respect to such
Regulatory Change or other event pursuant to Section 5.01, 5.05 or 5.06 than the
assigning Lender would have been entitled to receive in respect of the amount of
Loans assigned to such assignee if such assignment had not occurred. The
assigning Lender shall, to the extent of such assignment, be released from the
Commitment (or portion thereof) so assigned. Upon each such assignment the
assignee Lender or the assignor Lender shall pay the Agent an assignment fee of
$2,500; provided that no fee shall be payable upon an assignment by a Lender
--------
to an affiliate of such Lender or an assignment or pledge by a Lender to a
Federal Reserve Bank pursuant to Section 13.06(d).
(c) Any Lender may, in the ordinary course of its commercial banking business
and in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing to
------------
such Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Credit Documents, after giving at least 10 days'
prior written notice of such proposed participation (other than a participation
to be sold to an affiliate of such Lender) to the Obligors. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such obligation
owing to it under this Agreement for all purposes under this Agreement and the
other Credit Documents, and the Borrowers, the Guarantor and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Credit
Documents. Each Obligor agrees that if amounts outstanding under this Agreement
are due and payable, or shall have been declared or shall have become due and
payable by such Obligor upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
--------
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 4.07 as fully as if it were a Lender
hereunder. The Borrowers also agree that each Participant shall be entitled to
the benefits of Sections 5.01, 5.05 and 5.06 with respect to its participation
in the Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that, in the case of Section 5.06, such Participant shall have
--------
complied with the requirements of said Section and provided, further, that no
-------- -------
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred. In no event shall a Lender
that sells a participation agree with the Participant to take or refrain from
taking any action hereunder or under any other Credit Document except that such
Lender may agree with the Participant that it will not, without the consent of
the Participant, agree to
62
(i) increase or extend the term, or extend the time or waive any requirement for
the reduction or termination, of such Lender's related Commitment, (ii) extend
the date fixed for the payment of principal of or interest on the related Loan
or Loans or any portion of any fee hereunder payable to the Participant, (iii)
reduce the amount of any such payment of principal, (iv) reduce the rate at
which interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant is entitled to
receive such interest or fee, (v) alter the rights or obligations of the
Borrowers to prepay the related Loans, (vi) release the Guarantor from its
obligations under Section 10 or (vii) change the terms of Section 4.02.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 13.06, any Lender may assign and pledge all
or any portion of its Loans to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder. In order to facilitate such pledge or assignment, each
Borrower hereby agrees that, upon request of any Lender at any time and from
time to time after such Borrower has made its initial borrowing hereunder, such
Borrower shall provide to such Lender, at such Borrower's own expense, a
promissory note, substantially in the form of Exhibit F-1 or F-2, as the case
may be, evidencing the Loans owing to such Lender.
(e) A Lender may furnish any information concerning the Guarantor and any of
the Borrowers or any of their respective Subsidiaries in the possession of such
Lender from time to time to assignees and Participants (including prospective
assignees and Participants), subject, however, to the provisions of Section
13.06(g).
(f) Anything in this Section 13.06 to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to a
Borrower or any of its Affiliates or Subsidiaries without the prior written
consent of each Lender.
(g) Each of the Lenders and the Agent agrees (on behalf of itself and each of
its affiliates, directors, officers, employees and representatives) to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of this nature and in
accordance with safe and sound Lending practices and not to disclose to any
third party or any department or personnel of such Lender or the Agent engaged
in a consumer finance business competitive with any Borrower, any non-public
information supplied to it by the Guarantor or any Borrower pursuant to this
Agreement which is identified by the Guarantor or such Borrower as being
confidential at the time the same is delivered to the Lenders or the Agent,
provided that nothing herein shall limit the disclosure of any such information
--------
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) to counsel for any of the Lenders or the Agent, (iii) to bank examiners,
auditors or accountants, (iv) to the Agent or any other Lender, (v) in
connection with any litigation to which any one or more of the Lenders or the
Agent is a party, (vi) to any assignee or Participant (or prospective assignee
or Participant) so long as such assignee or Participant (or prospective assignee
or Participant) consents to the terms of this Section 13.06(g), (vii) which was
in the possession of such Lender or its affiliates as shown by clear and
convincing evidence prior to the Borrowers furnishing it to such Lender, or
(viii) which is received by such Lender, without restriction as to its
disclosure or use, from a Person who, to such Lender's knowledge or reasonable
belief, was not prohibited from disclosing it by any duty of confidentiality.
63
(h) The Agent shall maintain at its address referred to in Section 13.02 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
--------
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be prima facie evidence of the
existence and amounts of the obligations of the Borrowers therein recorded, and
the Guarantor, the Borrowers, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be available for
inspection and copying by the Guarantor, the Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
13.07 Survival. The obligations of the Borrowers (and of the Guarantor as
--------
guarantor) under Sections 5.01, 5.05, 5.06 and 13.03 (subject to the provisions
of Section 2.04(c)) and the obligations of the Lenders under Section 12.05 shall
survive the repayment of the Loans and the termination of the Commitments. In
addition, each representation and warranty made, or deemed to be made by a
notice of any extension of credit, herein or pursuant hereto shall survive the
making of such representation and warranty, and no Lender shall be deemed to
have waived, by reason of making any extension of credit hereunder, any Default
which may arise by reason of such representation or warranty proving to have
been false or misleading, notwithstanding that such Lender or the Agent may have
had notice or knowledge or reason to believe that such representation or
warranty was false or misleading at the time such extension of credit was made.
13.08 Captions. The table of contents and captions and section headings
--------
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
13.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
13.10 Independence of Covenants. All covenants under this Agreement shall
-------------------------
each be given independent effect so that if a particular action or condition is
not permitted by any such covenant or any exception thereto, the fact that it
would be permitted by another covenant, by an exception thereto, or be otherwise
within the limitations thereof, shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
13.11 [Reserved].
---------
13.12 Severability Any provision of this Agreement which is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13.13 Integration This Agreement and the other Credit Documents represent
-----------
the agreement of the Guarantor, the Borrowers, the Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agent or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or in the other
Credit Documents.
64
13.14 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.15 Submission to Jurisdiction; Waivers. Each of the Obligors hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Obligor
at its address set forth below or at such other address of which the Agent
shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to
▇▇▇ in any other jurisdiction.
13.16 Waivers of Jury Trial. THE BORROWERS, THE GUARANTOR, THE AGENT AND
---------------------
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
65
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
FIRST DEPOSIT NATIONAL BANK
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By _________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Senior Financial
Officer
Address for Notices:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and
Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
PROVIDIAN NATIONAL BANK
(formerly First Deposit National
Credit Card Bank)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By _________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Senior Financial
Officer
Address for Notices:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and
Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
66
PROVIDIAN CREDIT CORPORATION
(formerly Providian National
Credit Corporation)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By ________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Senior Financial
Officer
Address for Notices:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and
Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
PROVIDIAN CREDIT SERVICES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By ________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Senior Financial
Officer
Address for Notices:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and
Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
67
PROVIDIAN BANCORP, INC.,
as Guarantor
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By ________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Senior Financial
Officer
Address for Notices:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and
Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
68
LENDERS:
--------
Commitment ABN AMRO Bank N.V.
----------
$25,000,000
/s/ ▇.▇. ▇▇▇▇▇▇▇▇
By _________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Group V.P.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By _________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telex No.: 6734601 ABNAMRO UT
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST
---------- AND SAVINGS ASSOCIATION
$60,000,000
/s/ M. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By ________________________________
Name: M. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Lending Office for Base Rate Loans:
Bank of America National Trust
and Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Bank of America National Trust
and Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Bank of America National Trust
and Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
70
Commitment THE FIRST NATIONAL BANK OF BOSTON
----------
$20,000,000
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By _________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telex No.: 4996527 BOSTONBKBSN
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
71
Commitment THE BANK OF NEW YORK
----------
$35,000,000
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By _________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Lending Office for Base Rate Loans:
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇/6399
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇/6737
72
Commitment BANQUE NATIONAL DE PARIS
----------
$20,000,000
/s/ ▇▇▇▇▇▇ ▇. Lumanian
By _________________________________
Name: ▇▇▇▇▇▇ ▇. Lumanian
Title: Vice President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
By _________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Lending Office for Base Rate Loans:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Banque National de Paris
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Telex No.: RCA278900 (BNPSUR)
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
73
Commitment THE CHASE MANHATTAN BANK
---------- (NATIONAL ASSOCIATION)
$60,000,000
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By _________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
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Address for Notices:
The Chase Manhattan Bank
(National Association)
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
74
Commitment CITICORP USA, INC.
----------
$60,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Citicorp USA, Inc.
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Lending Office for Loans other than Base Rate
Loans:
Citicorp USA, Inc.
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Address for Notices:
Citicorp USA, Inc.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telex No.:
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment COMMERZBANK AG, LOS ANGELES
---------- BRANCH
$30,000,000
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
Lending Office for Base Rate Loans:
Commerzbank AG, Los Angeles Branch
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Lending Office for Loans other than Base Rate
Loans:
Commerzbank AG, Los Angeles Branch
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Address for Notices:
Commerzbank AG, Los Angeles Branch
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telex No.: 678338 CBKLA UI
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment CAISSE NATIONALE DE
---------- CREDIT AGRICOLE
$40,000,000
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇, F.V.P
TITLE: HEAD OF CORPORATE BANKING
CHICAGO
Lending Office for Base Rate Loans:
Caisse Nationale de Credit Agricole
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Lending Office for Loans other than Base Rate
Loans:
Caisse Nationale de Credit Agricole
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Address for Notices:
Caisse Nationale de Credit Agricole
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Attention: ▇▇▇▇▇ ▇▇▇▇
Telex No.: 190063 AGRICOUT
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment CREDIT LYONNAIS, SAN FRANCISCO
---------- BRANCH AND/OR CREDIT LYONNAIS,
$60,000,000 CAYMAN ISLAND BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
Lending Office for Base Rate Loans:
Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Lending Office for Loans other than Base Rate
Loans:
Credit Lyonnais, Cayman Island Branch
c/o Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Address for Notices:
Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Attention.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telex No.: 6771535 CLSFO UI
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment CREDIT SUISSE
----------
$60,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Member of Senior Management
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Member of Senior Management
Lending Office for Base Rate Loans:
Credit Suisse
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Lending Office for Loans other than Base Rate
Loans:
Credit Suisse
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Address for Notices:
Credit Suisse
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Attention: ▇▇▇▇ Asa
Telex No.: 67227 (CREDSUIS)
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE DAI-ICHI KANGYO BANK, LTD.,
---------- CHICAGO BRANCH
$25,000,000
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
TITLE: Vice President
Lending Office for Base Rate Loans:
The Dai-Ichi Kangyo Bank, Ltd., Chicago
Branch
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Lending Office for Loans other than Base Rate
Loans:
The Dai-Ichi Kangyo Bank, Ltd., Chicago
Branch
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Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd., Chicago
Branch
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Attention: Credit Adminstration Department
Telex No.: 25-4515 BANKDAIKAN
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment DEUTSCHE BANK AG,
---------- NEW YORK AND/OR CAYMAN ISLANDS
$25,000,000 BRANCHES
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Deutsche Bank AG,
New York Branch
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Lending Office for Loans other than
Base Rate
Loans:
Deutsche Bank AG
Cayman Islands Branch
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Address for Notices:
Deutsche Bank AG
New York and/or Cayman Islands Branches
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Attention: CFS, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telex No.: 429166/DEUT BK NY
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE FUJI BANK, LIMIIED,
---------- SAN FRANCISCO AGENCY
$50,000,000
By /s/ Keiichi Ozawa
---------------------------
Name: Keiichi Ozawa
Title: Joint General Manager
Lending Office for Base Rate Loans:
The Fuji Bank, Limited,
San Francisco Agency
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Lending Office for Loans other than
Base Rate
Loans:
The Fuji Bank, Limited,
San Francisco Agency
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Address for Notices:
The Fuji Bank, Limited,
San Francisco Agency
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telex No.: 176087 FUJIBK SFO
Telecopier No.: 415/362-4613
Telephone No.: 415/▇▇▇-▇▇▇▇
Commitment THE INDUSTRIAL BANK OF JAPAN,
---------- LIMITED, LOS ANGELES AGENCY
$40,000,000
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Lending Office for Base Rate Loans:
The Industrial Bank of Japan, Limited,
Los Angeles Agency
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Lending Office for Loans other than
Base Rate Loans:
The Industrial Bank of Japan, Limited,
Los Angeles Agency
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Address for Notices:
The Industrial Bank of Japan, Limited,
Los Angeles Agency
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telex No.: 673562 KOGIN LSA
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment NATIONSBANK OF TEXAS, N.A.
----------
$60,000,000
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
Lending Office for Base Rate Loans:
NationsBank of Texas, N.A.
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Lending Office for Loans other than
Base Rate
Loans:
NationsBank of Texas, N.A.
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Address for Notices:
NationsBank of Texas, N.A.
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Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telex No.:
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment NATWEST BANK N.A.
----------
$35,000,000
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
NatWest Bank N.A.
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Lending Office for Loans other than
Base Rate Loans:
NatWest Bank N.A.
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Address for Notices:
NatWest Bank N.A.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇
Telex No.: 12-7933
Telecopier No.: 212-602-3323/2158
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment PNC BANK, National Association
----------
$50,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Manager
Lending Office for Base Rate Loans:
PNC Bank, N.K
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Lending Office for Loans other than Base
Loans:
PNC Bank, N.A.
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Address for Notices:
PNC Bank, N.A.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment SANWA BANK, LIMITED
---------- ATHANTA AGENCY
$30,000,000
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
The Sanwa Bank Limited
Atlanta Agency
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The Sanwa Bank Limited
Atlanta Agency
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Address for Notices:
The Sanwa Bank Limited
Atlanta Agency
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Attention: Operations Department/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Telex No.: 4611830 SANWATL
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment SHAWMUT BANK CONNECTICUT, N.A.
-----------
$15,000,000
By /s/ [signature illegible]
-------------------------------
Name: [illegible]
Title: [illegible]
Lending Office for Base Rate Loans:
Shawmut Bank Connecticut, N.A.
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Lending Office for Loans other than Base Rate
Loans:
Shawmut Bank Connecticut, N.A.
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Address for Notices:
Shawmut Bank Connecticut, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telex No.:
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
NA952770.090/5
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address for Notices to Chase as Agent:
The Chase Manhattan Bank
(National Association)
4 Chase Metro Tech Center
13th floor
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: New York Agency
Telex No.: 6720516 (Answerback:
CMBNYAUW)
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇/6910
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE I
Subsidiaries
------------
Subsidiaries of Providian Bancorp, Inc.
---------------------------------------
First Deposit National Bank
Providian National Bank
Providian Credit Corporation
Providian National Bancorp
First Deposit Service Corporation
First Deposit Life Insurance Company
Providian Credit Services, Inc.
Subsidiary of First Deposit National Bank
-----------------------------------------
Winnisquam Community Development Corporation
Subsidiary of Providian National Bancorp
----------------------------------------
Commonwealth Premium Finance
SCHEDULE II
Existing Liens
--------------
None except as permitted by Section 8.08
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ________, 19__
Reference is made to the Amended and Restated Credit Agreement dated as of
____________, 1995 (as amended or modified from time to time, the "Credit
Agreement") among FIRST DEPOSIT NATIONAL BANK, a national banking association
incorporated, organized and existing under the laws of the United States of
America ("FDNB"), PROVIDIAN NATIONAL BANK, a national banking association
incorporated, organized and existing under the laws of the United States of
America ("PNB"), PROVIDIAN CREDIT CORPORATION, a corporation organized and
existing under the laws of the State of Delaware ("PCC"), PROVIDIAN CREDIT
SERVICES, INC, a corporation organized and existing under the laws of the State
of Utah ("PCSI"; together with FDNB, PNB and PCC, the "Borrowers"); PROVIDIAN
BANCORP, INC., a corporation organized and existing under the laws of the State
of Delaware (the "Guarantor"; together with the Borrowers, the "Obligors"); the
banks and financial institutions listed on the signature pages thereof under the
caption "LENDERS" or which, pursuant to Section 2.12, 2.13 or 13.06(b) thereof,
shall become a "Lender" thereunder (individually, a "Lender" and, collectively,
the "Lenders"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as administrative agent for the Lenders (in such capacity,
together with any successor appointed pursuant to Section 12.08 thereof, the
"Agent").
Terms defined in the Credit Agreement and not otherwise defined herein are
used herein as therein defined.
________________ (the "Assignor") and _______________ (the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse
and the Assignee hereby purchases and assumes from the Assignor, that portion of
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Option Loans) specified in
Section 1 of Schedule 1 hereto. Such portion of the Assignor's Commitment and of
outstanding Syndicated Loans owing to the Assignor being purchased and assumed
by Assignee constitutes the percentage interest specified in Section 2 of
Schedule 1 hereto in and to the aggregate Commitments of all of the Lenders and
the aggregate principal amount of all of the Syndicated Loans outstanding.
2. The Assignor (i) represents and warrants that as of the date hereof its
Commitment (after giving effect to any assignments thereof made prior to the
date hereof, whether or not such assignments have become effective, but without
giving effect hereto or to any other assignments thereof also made on the date
hereof) is in the dollar amount specified as the Assignor's Commitment in
Section 3 of Schedule 1 hereto and the aggregate outstanding principal amount of
Syndicated Loans owing to it (after giving effect to any assignments thereof
made prior to the date hereof, whether or not such assignments have become
effective, but without giving effect hereto or to any other assignments thereof
also made on the date hereof) is in the dollar amount specified as the aggregate
outstanding principal amount of such Loans owing to the Assignor in Section 3 of
Schedule l hereto; (ii) represents and warrants that as of the date hereof its
Commitment and the aggregate outstanding principal amount of Syndicated Loans
owing to Assignor (after giving effect to
Assignment and Acceptance
-------------------------
any assignments thereof made prior to the date hereof, whether or not such
assignments have become effective, and giving effect hereto or to any other
assignments thereof also made on the date hereof) constitutes the percentage
interest specified in Section 4 of Schedule 1 hereto in and to the aggregate
Commitments of all of the Lenders and the aggregate principal amount of all
Syndicated Loans outstanding and its Commitment (after giving effect to any
assignments thereof made prior to the date hereof, whether or not such
assignments have become effective, and giving effect hereto or to any other
assignments thereof also made on the date hereof) is in the dollar amount
specified as the Assignor's Commitment in Section 4 of Schedule 1 hereto and the
aggregate outstanding principal amount of Syndicated Loans owing to it (after
giving effect to any assignments thereof made prior to the date hereof, whether
or not such assignments have become effective, and giving effect hereto or to
any other assignments thereof also made on the date hereof) is in the dollar
amount specified as the aggregate outstanding principal amount of such Loans
owing to the Assignor in Section 4 of Schedule 1 hereto; (iii) represents and
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim; (iv) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with any Credit Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Credit Documents
or any other instrument or document furnished pursuant thereto; and (v) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any of the Borrowers or any other Obligor or the
performance or observance by any of the Borrowers or any other Obligor of any of
its obligations under any Credit Document to which it is a party or any other
instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 7.01 thereof or the financial statements most recently delivered by the
Borrowers and the Guarantor pursuant to Section 8.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Documents; (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) agrees to
be bound by the provisions of the Credit Agreement and agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Documents are required to be performed by it as a Lender; (v)
specifies as its Applicable Lending Offices (and address for notices) the
office(s) set forth beneath its name on the signature page hereof; and (vi)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Documents or such other documents as
are necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty./1/
----------------------
/1/ If the Assignee is organized under the laws of a jurisdiction outside the
United States.
Assignment and Acceptance
-------------------------
2
4. Following the execution of this Assignment and Acceptance by the Assignor
and the Assignee, it will be delivered to the Borrowers and the Agent for
acceptance, together with payment to the Agent of the $2,500 assignment fee;
provided that no fee shall be payable upon an assignment by a Lender to an
--------
Affiliate of such Lender or upon an assignment or pledge by a Lender to a
Federal Reserve Bank pursuant to Section 13.06(d) of the Credit Agreement. The
effective date of this Assignment and Acceptance shall be the date of acceptance
thereof by the Agent and the Borrowers or such later date specified on Schedule
1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the Credit Documents and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Documents.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Documents in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Documents for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
Assignment and Acceptance
-------------------------
3
EXHIBIT A
Schedule 1
to
Assignment and Acceptance
Dated _______________, 199___
Section 1.
----------
Assignee's purchased portion of
Assignor's (i) Commitment and
(ii) outstanding Syndicated Loans
owing to the Assignor: (i) $___
(ii) $___
Section 2.
----------
Assignee's percentage interest in
aggregate Commitments of all Lenders
and in aggregate principal amount
of Syndicated Loans outstanding
(after giving effect hereto): ____%
Section 3.
----------
Assignor's Commitment
(before giving effect hereto): $___
Aggregate outstanding principal
amount of Syndicated Loans
owing to the Assignor
(before giving effect hereto): $___
Section 4.
----------
Assignor's percentage interest in
aggregate Commitments of all
Lenders and in aggregate
principal amount of Syndicated
Loans outstanding (after
giving effect hereto): ____%
Assignor's Commitment
(after giving effect hereto): $___
Aggregate outstanding principal amount
of Syndicated Loans owing to
the Assignor (after giving effect hereto): $___
Schedule 1 to
Assignment and Acceptance
-------------------------
Section 5.
----------
Effective Date/1/: ___________________, 199_
[NAME OF ASSIGNOR]
By:_____________________________
Title:
[NAME OF ASSIGNEE]
By:______________________________
Title:
Accepted this day Lending Office for Base Rate Loans:
of ___________, 199__ [Address]
THE CHASE MANHATTAN BANK Lending Office for other
(National Association), Types of Loans:
as Administrative Agent [Address]
By:__________________________ Address for Notices
Title: [Address]
Accepted this ___________ day of _________, 199__/2/:
PROVIDIAN BANCORP, INC.,
as Guarantor
By:__________________________
Title:
--------------------
/1/ This date should be no earlier than the date of acceptance by the Agent,
and the Guarantor (to the extent required by the Credit Agreement).
/2/ Acceptance required only to the extent provided in the Credit Agreement.
Schedule 1 to
Assignment and Acceptance
-------------------------
2
FIRST DEPOSIT NATIONAL BANK
By:__________________________
Title:
PROVIDIAN NATIONAL BANK
By:__________________________
Title:
PROVIDIAN CREDIT CORPORATION
By:__________________________
Title:
PROVIDIAN CREDIT SERVICES, INC.
By:__________________________
Title:
Schedule 1 to
Assignment and Acceptance
-------------------------
3
EXHIBIT B
FORM OF CBO QUOTE REQUEST
[Date]
To: The Chase Manhattan Bank (National Association), as Agent
From: [Borrower]
Re: CBO Quote Request
Pursuant to Section 2.03 (b) of the Amended and Restated Credit Agreement
dated as of ____________, 1995 (the "Credit Agreement") among the undersigned,
----------------
the other Borrowers party thereto, Providian Bancorp, Inc., as Guarantor, the
Lenders named therein, and The Chase Manhattan Bank (National Association), as
Administrative Agent, we hereby give notice that we request CBO Quotes for the
following proposed Competitive Bid Option Borrowing(s):
Borrowing Quotation Interest
Date Date[/*1/] Amount[/*2/] Type[/*3/] Period[/*4/]
--------- ---------- ------------ ---------- ------------
--------------------
/*/ All numbered footnotes appear on the last page of this Exhibit.
CBO Quote Request
-----------------
[Pursuant to Section 4.03 of the Credit Agreement, interest on a Set Rate Loan
with an Interest Period of 270 days or more shall be computed on the basis of a
360-day year consisting of twelve 30-day months.] [*5]
Terms used herein have the meanings assigned to them in the Credit Agreement.
[NAME OF BORROWER]
By:____________________________
Name:
Title:
____________________
[1] For use if a Set Rate in a Set Rate Auction is requested to be submitted
before the proposed date of borrowing.
[2] Each amount must be $5,000,000 or a larger multiple of $1,000,000.
[3] Insert either "LIBO Margin" (in the case of LIBOR Market Loans) or "Set
Rate" (in the case of Set Rate Loans).
[4] A whole number of months, in the case of a LIBOR Market Loan or, in the
case of a Set Rate Loan, a period of at least 7 days after the making of such
Set Rate Loan and ending on a Business Day.
[5] Insert if Set Rate Loans with an Interest Period of 270 days or more are
requested.
CBO Quote Request
-----------------
2
EXHIBIT C
FORM OF CBO QUOTE
To: The Chase Manhattan Bank (National Association), as Agent
Attention:
Re: CBO Quote to
[Borrower] (the "Borrower")
This CBO Quote is given in accordance with Section 2.03(c) of the Amended and
Restated Credit Agreement dated as of ___________, 1995 (the "Credit Agreement")
among [Name of Borrower], the other Borrowers party thereto, Providian Bancorp,
Inc., as Guarantor, the Lenders named therein and The Chase Manhattan Bank
(National Association), as Administrative Agent. Terms defined in the Credit
Agreement are used herein as defined therein.
In response to the Borrower's invitation dated __________, 199__ ,we hereby
make the following CBO Quote(s) on the following terms:
l. Quoting Lender:
2. Person to contact at Quoting Lender:
3. We hereby offer to make Competitive Bid Option Loan(s) in the
following principal amount[s], for the following Interest Period(s) and at the
following rate(s):
Borrowing Quotation Interest
Date Date[/*/1] Amount[*2] Type[*3] Period[*4] Rate[*5]
--------- ---------- ---------- -------- ---------- --------
/*/ All numbered footnotes appear on the last page of this Exhibit.
CBO Quote
---------
[Pursuant to Section 4.03 of the Credit Agreement, interest on a Set
Rate Loan with an Interest Period of 270 days or more shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.] [*6]
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate[s] us to make the Competitive Bid Option Loan(s) for which
any offer(s) (is/are) accepted, in whole or in part (subject to Section 2.03 of
the Credit Agreement).
Very truly yours,
[NAME OF LENDER]
By:
----------------------------
Authorized Officer
Dated:
----------------------
-----------------------------
[1] As specified in the related CBO Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 or a
larger multiple of $1,000,000.
[3] Indicate "LIBO Margin" (in the case of LIBOR Market Loans) or "Set Rate"
(in the case of Set Rate Loans).
[4] A whole number of months, in the case of a LIBOR Market Loan or, in the
case of a Set Rate Loan, a period of at least 7 days after the making of
such Set Rate Loan and ending on a Business Day, as specified in the
related CBO Quote Request.
[5] For a LIBOR Market Loan, specify margin over or under the LIBO Rate
determined for the applicable Interest Period. Specify percentage (rounded,
if necessary, to the nearest 1/10,000th of 1%) and specify whether "PLUS"
or "MINUS". For a Set Rate Loan, specify rate of interest per annum
(rounded, if necessary, to the nearest 1/10,000th of 1%).
[6] Insert if Set Rate Loans with an Interest Period of 270 days or more were
requested.
CBO Quote
---------
2
EXHIBIT D-1
FORM OF NOTICE OF BORROWING
OF COMPETITIVE BID OPTION LOANS
[Date]
TO: The Chase Manhattan Bank (National Association), as Administrative Agent
FROM: [Name of Borrower]
RE: Notice of Borrowing of Competitive Bid Option Loans
The undersigned refers to the Amended and Restated Credit Agreement, dated
as of ___________, 1995 (the "Credit Agreement"; terms defined therein being
used herein as therein defined) among [Name of Borrower], the other Borrowers
party thereto, Providian Bancorp, Inc., as Guarantor, the Lenders party thereto
and The Chase Manhattan Bank (National Association), as Administrative Agent;
and hereby gives you notice, irrevocably, pursuant to and in accordance with
Section 2.03(e) of the Credit Agreement, that the undersigned hereby accepts the
following offers notified to the undersigned pursuant to Section 2.03(d), in an
aggregate principal amount of $____________, in respect of the CBO Quote Request
dated _________, 199__ delivered by the undersigned to the Agent pursuant to
Section 2.03(b):
Borrowing Quotation Interest
Lender Date Date Amount Type Rate
-------- --------- --------- ------ -------- ----
[Pursuant to Section 4.03 of the Credit Agreement, interest on a Set
Rate Loan with an Interest Period of 270 days or more shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.] [/*/1]
---------------
/*/ Insert if Set Rate Loans with an Interest Period of 270 days or more are
accepted.
The undersigned hereby certifies that the following statements will be
true on the date[s] set forth under the caption "Borrowing Date" above:
(A) the representations and warranties made by the undersigned and the
Guarantor in Section 7 of the Credit Agreement and in each of the other Credit
Documents to which it is a party are true and complete before and after giving
effect to the Competitive Bid Option Loans specified above, with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(B) no Default or Event of Default with respect to the undersigned or the
Guarantor has occurred and is continuing, or would result from the making of
such Competitive Bid Option Loans.
Very truly yours,
[NAME OF BORROWER]
By:____________________________
Title:
Notice of Borrowing of Competitive Bid Option Loans
---------------------------------------------------
2
EXHIBIT D-2
FORM OF NOTICE OF BORROWING
OF SYNDICATED LOANS
[Date]
TO: The Chase Manhattan Bank (National Association), as Administrative Agent
FROM: [Name of Borrower] (the "Borrower")
RE: Notice of Borrowing of Syndicated Loans
The undersigned refers to the Amended and Restated Credit Agreement, dated
as of ________________, 1995 (the "Credit Agreement"; terms defined therein
being used herein as therein defined) among the undersigned, the other Borrowers
party thereto, Providian Bancorp, Inc., as Guarantor, the Lenders party thereto,
and The Chase Manhattan Bank (National Association), as Administrative Agent;
and hereby gives you notice, irrevocably, pursuant to Section 4.05 of the Credit
Agreement, that the undersigned hereby requests a borrowing or borrowings of
Syndicated Loans under the Credit Agreement, and in connection therewith sets
forth below the information relating to such borrowing or borrowings (the
"Proposed Borrowing") as required by Section 4.05 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is __________, 199__.
(ii) The aggregate amount of the Proposed Borrowing is $_______/1/ [which
shall be comprised of Loans of $________ ("Borrowing 1") and
$________ ("Borrowing 2")]./2/
(iii) The Loans comprising the Proposed Borrowing are [Base Rate Loans]
[Eurodollar Loans].
---------------
/1/ To be used if different Interest Periods are selected with respect to
different borrowings of Eurodollar Loans included in the Proposed Borrowing.
/2/ To be expanded to "Borrowing 3" etc., if necessary.
Notice of Borrowing of Syndicated Loans
---------------------------------------
/3/(iv) The Interest Period for each Eurodollar Loan made as part of the
Proposed Borrowing is _____ month[s]/4/ [with respect to Borrowing 1 and _____
month[s] with respect to Borrowing 2].
The undersigned hereby certifies that the following statements will be
true on the date of the Proposed Borrowing:
(A) the representations and warranties made by the undersigned and the
Guarantor in Section 7 of the Credit Agreement and in each of the other Credit
Documents to which it is a party are true and complete before and after giving
effect to the Proposed Borrowing, with the same force and effect as if made on
and as of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date);
(B) no Default or Event of Default with respect to the undersigned or the
Guarantor has occurred and is continuing, or would result from such Proposed
Borrowing.
Very truly yours,
[NAME OF BORROWER]
By:
---------------------------------
Title:
---------------
/3/ To be included for a Proposed Borrowing comprised, in whole or in part,
of Eurodollar Loans.
/4/ To be used if the Proposed Borrowing is comprised of more than one
borrowing of Eurodollar Loans and different Interest Periods are selected with
respect to different borrowings of Eurodollar Loans.
Notice of Borrowing of Syndicated Loans
---------------------------------------
2
EXHIBIT D-3
FORM OF NOTICE OF BORROWING
OF SWING LINE LOANS
[Date]
TO: The Chase Manhattan Bank (National Association), as Administrative Agent
FROM: [Name of Borrower]
RE: Notice of Borrowing of Swing Line Loans
The undersigned refers to the Amended and Restated Credit Agreement,
dated as of __, 1995 (the "Credit Agreement"; terms defined therein being used
herein as therein defined) among the undersigned, the other Borrowers party
thereto, Providian Bancorp, Inc., as Guarantor, the Lenders party thereto, and
The Chase Manhattan Bank (National Association), as Administrative Agent; and
hereby gives you notice, irrevocably, pursuant to Section 2.04 of the Credit
Agreement, that the undersigned hereby requests a borrowing of Swing Line Loans
under the Credit Agreement, and in connection therewith sets forth below the
information relating to such borrowing (the "Proposed Borrowing") as required by
Section 2.04 of the Credit Agreement:
(i) The Proposed Borrowing is requested from The Chase Manhattan Bank
(National Association).
(ii) The Business Day of the Proposed Borrowing is ______ 199__.
(ii) The aggregate amount of the Proposed Borrowing is $_____.
(iii) The Loans comprising the Proposed Borrowing will bear interest at
the [Swing Line Base Rate] [Swing Line Money Market Rate].
The undersigned hereby certifies that the following statements will be
true on the date of the Proposed Borrowing:
(A) the representations and warranties made by the undersigned and the
Guarantor in Section 7 of the Credit Agreement and in each of the other Credit
Documents to which it is a party are true and complete before and after giving
effect to the Proposed Borrowing, with the same force and effect as if made on
and as of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date);
Notice of Borrowing of Swing Line Loans
---------------------------------------
(B) no Default or Event of Default with respect to the undersigned or
the Guarantor has occurred and is continuing, or would result from such
Proposed Borrowing.
Very truly yours,
[NAME OF BORROWER]
By: _____________________________
Name:
Title:
Notice of Borrowing of Swing Line Loans
---------------------------------------
2
EXHIBIT E
October 10, 1995
The Chase Manhattan Bank (National
Association), as Administrative Agent,
and the Lenders party to the Credit
Agreement (as hereinafter defined)
Re: AMENDED AND RESTATED CREDIT AGREEMENT
Ladies and Gentlemen:
I have acted as in-house counsel for Providian Bancorp, Inc., a Delaware
corporation ("PBI"), First Deposit National Bank, a national banking association
("FDNB"), Providian National Bank, a national banking association ("PNB"),
Providian Credit Corporation, a Delaware corporation ("PCC"), and Providian
Credit Services, Inc., a Utah corporation ("PCSI"), in connection with the
Amended and Restated Credit Agreement dated as of October 10, 1995 (the "Credit
Agreement") among FDNB, PNB, PCC and PCSI, as borrowers (collectively, the
"Borrowers"), PBI, as guarantor (the "Guarantor" and, together with the
Borrowers, the "Obligors"), the lenders party thereto from time to time (the
"Lenders") and The Chase Manhattan Bank (National Association), as
administrative agent for the Lenders (in such capacity, the "Agent"). All
capitalized terms used but not defined herein have the respective meanings given
to such terms in the Credit Agreement.
This opinion is being furnished to you pursuant to Section 6.01(a)(iii)
of the Credit Agreement.
For purposes of rendering this opinion, I have examined originals or
copies identified to my satisfaction of the following documents:
(a) the Credit Agreement, including the Exhibits and
Schedules thereto;
(b) the Fee Letter; and
(c) the articles of association, articles of incorporation or
certificate of incorporation, as the case may be, and
by-laws, each as amended to the date hereof, of each of
the Obligors.
The Chase Manhattan Bank (National Association)
as Administrative Agent, and the Lenders party to
the Credit Agreement (as hereinafter defined)
October 10, 1995
Page 2
The documents referred to in items (a) and (b) above are sometimes
referred to herein as the "Credit Documents."
In addition, I have made such inquiries and investigations and examined
such corporate records of the Obligors as I have deemed necessary to render the
opinions set forth herein.
As used herein, the phrase "to my knowledge" refers to my actual
knowledge based on my review of the documents listed above and the information,
inquiries and investigations described herein and no others.
For purposes of this opinion, I have assumed (i) the due authorization,
execution and delivery of the Credit Documents by each of the Lenders and the
Agent, as applicable; (ii) that each such Lender and the Agent have the legal
power to act in the capacities in which they are to act under the Credit
Documents; (iii) the conformity to the original documents of any documents
submitted to me as certified or photostatic copies, the authenticity of such
documents and the genuineness of all signatures on such documents; (iv) that
each of the Credit Documents is the legal, valid and binding obligation of each
of the Lenders and the Agent, as applicable, enforceable against each such party
in accordance with its terms; and (v) that each of the Lenders and the Agent has
performed and will perform its obligations thereunder.
Based upon the foregoing, and subject to the qualifications, limitations
and assumptions hereinafter set forth, I am of the opinion that:
1. Each of the Guarantor and PCC is a corporation validly existing and
in good standing under the laws of the State of Delaware. PCSI is a corporation
validly existing and in good standing under the laws of the State of Utah. Each
of FDNB and PNB is a national banking association validly existing and in good
standing under the laws of the United States of America.
2. Each of the Obligors has all requisite corporate power and authority
to own and operate its properties, to conduct its business in the manner in
which it presently is conducted and to execute, deliver and perform its
obligations under each of the Credit Documents to which it is a party.
3. Each of the Credit Documents to which an Obligor is a party has been
duly authorized by all necessary corporate action on the part of such Obligor.
4. Neither the execution and delivery by any Obligor of the Credit
Documents to which it is a party nor the performance by such Obligor of its
obligations thereunder constitutes
The Chase Manhattan Bank (National Association)
as Administrative Agent, and the Lenders party to
the Credit Agreement (as hereinafter defined)
October 10, 1995
Page 3
or will result in a breach of such Obligor's charter or by-laws or, to my
knowledge, any order of any court or governmental authority having jurisdiction
over such Obligor or constitutes a violation of any applicable federal law, law
of the State of California or the General Corporation Law of the State of
Delaware. Neither the execution and delivery by any Obligor of the Credit
Documents to which it is a party nor the performance by such Obligor of its
obligations thereunder will conflict with, or result in any material breach of,
or constitute a default under, or result in the creation or imposition of any
lien upon any property or assets of such Obligor pursuant to, or require any
consent not obtained under, any indenture, mortgage, deed of trust, agreement or
other instrument to which such Obligor is a party or by which it or any of its
property or assets are bound or to which it is subject, which conflict, breach
or default, or lien created or imposed, or the failure to obtain such consent,
would have a material adverse effect on the financial condition of such Obligor
and its Subsidiaries taken as a whole or the ability of such Obligor to perform
its obligations under the Credit Documents to which it is a party.
5. Except as disclosed in the Credit Agreement or in any Schedule or
Exhibit thereto, to my knowledge there is pending or threatened no action, suit
or proceeding or governmental investigation, or any order, writ, injunction or
decree, against any Obligor before or by any court, arbitrator or governmental
or administrative body that challenges the validity or enforceability of any of
the Credit Documents or the transactions contemplated thereby or that restrains,
prevents or imposes material adverse conditions upon, or seeks to restrain,
prevent or impose material adverse conditions upon, any such transaction or in
which there is a reasonable probability of an adverse decision against such
Obligor and which, if adversely determined, would reasonably be expected to have
a material adverse effect on the financial condition of such Obligor and its
Subsidiaries taken as a whole or the ability of such Obligor to perform its
obligations under the Credit Documents to which it is a party.
6. None of the Obligors is an "investment company" or a person directly
or indirectly controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. None of the Obligors is a "holding
company", or an "affiliate" of a "holding company" or a "subsidiary company" of
a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7. Neither the making of any Loans pursuant to, nor application of the
proceeds thereof in accordance with, the Credit Agreement will violate
Regulation U or X promulgated by the Board of Governors of the Federal Reserve
System.
The foregoing opinions are subject to the following qualifications,
limitations and assumptions:
The Chase Manhattan Bank (National Association)
as Administrative Agent, and the Lenders party to
the Credit Agreement (as hereinafter defined)
October 10, 1995
Page 4
A. I render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of California, the General Corporation Law of
the State of Delaware, the United States of America and, subject to the
limitations set forth in paragraph B below, the Business Corporation Law of the
State of Utah. This opinion is limited to the effect of the present state of
such laws, as applied to the facts on which I have relied (as set forth above),
in existence on the date hereof. I express no opinion as to the laws of any
other time or jurisdiction or the applicability of the laws of any particular
jurisdiction. I assume no obligation to revise or supplement this opinion in the
event of future changes in such laws or the interpretations thereof or such
facts, and I assume no responsibility to advise you of any such changes.
B. Insofar as the opinions regarding PCSI expressed in paragraphs 1, 2
and 3 above involve the laws of the State of Utah, I have relied, with your
consent, solely on the opinion of Van Cott, ▇▇▇▇▇▇, Cornwall & ▇▇▇▇▇▇▇▇ dated
the date hereof, a copy of which is being concurrently delivered to you, and I
have made no independent examination of the laws of such jurisdiction. In
connection with the above opinions regarding PCSI, I note that PCSI, which has
an application for deposit insurance pending before the Federal Deposit
Insurance Corporation, is not currently an Insured Depository Institution, and
that PCSI will not have authority to accept insured deposits and conduct certain
lending activities until such time as it becomes an Insured Depository
Institution.
C. This opinion is delivered solely for your benefit in connection with
the Credit Agreement and may not be relied upon by any person other than the
Agent and the Lenders (including any Lender becoming a party to the Credit
Agreement after the date hereof pursuant to the terms of the Credit Agreement)
or by the Agent or the Lenders in any other context, nor may this opinion be
used, circulated, published, communicated or otherwise referred to or made
available to any other Person except that the Agent and the Lenders may provide
this opinion (i) to bank examiners and other regulatory authorities should they
so request or in connection with their normal examinations, (ii) to the
independent auditors and attorneys of the Agent and the Lenders, (iii) pursuant
to order or legal process of any court or governmental agency, (iv) in
connection with any legal action to which the Agent or any Lender is a party
arising out of the transactions contemplated by the Credit Agreement or (v) to
any permitted prospective transferee (including any prospective Participant) of
the Loans or Commitments. This opinion may not be quoted without my prior
written consent.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
General Counsel
EXHIBIT F-1
[FORM OF SYNDICATED NOTE]
PROMISSORY NOTE
$______________ [_____________, 1995]
New York, New York
FOR VALUE RECEIVED, [NAME OF BORROWER], [a national banking association
incorporated, organized and existing under the laws of the United States of
America] [a Delaware corporation ] [a Utah corporation] (the "Borrower"), hereby
--------
promises to pay to the order of _____________ (the "Lender"), for the account of
------
its respective Applicable Lending Offices provided for in the Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank (National
Association) at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal
sum of __________________ Dollars (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Syndicated Loans made by the Lender to
the Borrower under the Credit Agreement), in lawful money of the United States
of America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Syndicated Loan, at such office, in like money and
funds, for the period commencing on the date of such Syndicated Loan until such
Syndicated Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Syndicated Loan made by the Lender to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, each of
which recordations or endorsements shall constitute prima facie evidence of the
matters set forth therein; provided that the failure of the Lender to make any
--------
such recordation or endorsement shall not affect the obligations of the Borrower
to make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Syndicated Loans made by the Lender.
This Note is one of the promissory notes referred to in Section 13.06(d)
of the Amended and Restated Credit Agreement dated as of ______________ __, 1995
(as modified and supplemented and in effect from time to time, the "Credit
------
Agreement") among the Borrower, the other Borrowers party thereto, Providian
---------
Bancorp, Inc., as Guarantor, the Lenders named therein and The Chase Manhattan
Bank (National Association), as Administrative Agent, and evidences Syndicated
Loans made by the Lender thereunder. Terms used but not defined in this Note
have the respective meanings assigned to them in the Credit Agreement.
Syndicated Note
---------------
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 13.06 of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
The Borrower hereby waives diligence, presentment, protest, demand and
notice of every kind.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
[NAME OF BORROWER]
By_______________________
Title:
Syndicated Note
---------------
2
SCHEDULE OF SYNDICATED LOANS
This Note evidences Syndicated Loans made, Continued or Converted under
the within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
Amount
Paid,
Date Made, Duration Prepaid,
Continued Principal of Continued Unpaid
or Amount of Type of Interest Interest or Principal Notation
Converted Loan Loan Rate Period Converted Amount Made by
----------- -------- ------- -------- -------- --------- --------- --------
Syndicated Note
---------------
3
EXHIBIT F-2
[FORM OF COMPETITIVE BID OPTION NOTE]
PROMISSORY NOTE
[_____________, 1995]
New York, New York
FOR VALUE RECEIVED, [NAME OF BORROWER], [a national banking association
incorporated, organized and existing under the laws of the United States of
America] [a Delaware corporation] [a Utah corporation] (the "Borrower"), hereby
--------
promises to pay to the order of_____________ (the "Lender"), for the account of
its respective Applicable Lending Offices provided for in the Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank (National
Association) at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the aggregate
unpaid principal amount of the Competitive Bid Option Loans made by the Lender
to the Borrower under the Credit Agreement, in lawful money of the United States
of America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Competitive Bid Option Loan, at such office, in
like money and funds, for the period commencing on the date of such Competitive
Bid Option Loan until such Competitive Bid Option Loan shall be paid in full, at
the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and maturity date of each
Competitive Bid Option Loan made by the Lender to the Borrower, and each payment
made on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, each of which recordations
or endorsements shall constitute prima facie evidence of the matters set forth
therein; provided that the failure of the Lender to make any such recordation or
--------
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Competitive Bid Option Loans made by the Lender.
This Note is one of the promissory notes referred to in Section 13.06(d) of
the Amended and Restated Credit Agreement dated as of __, 1995 (as modified and
supplemented and in effect from time to time, the "Credit Agreement") among the
----------------
Borrower, the other Borrowers party thereto, Providian Bancorp, Inc., as
Guarantor, the Lenders named therein (including the Lender) and The Chase
Manhattan Bank (National Association), as Administrative Agent, and evidences
Competitive Bid Option Loans made by the Lender thereunder. Terms used but not
defined in this Note have the respective meanings assigned to them in the Credit
Agreement.
Competitive Bid Option Note
---------------------------
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 13.06 of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
The Borrower hereby waives diligence, presentment, protest, demand and
notice of every kind.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
[NAME OF BORROWER]
By_______________________
Title:
Competitive Bid Option Note
---------------------------
5
SCHEDULE OF LOANS
This Note evidences Competitive Bid Option Loans made under the within-
described Credit Agreement to the Borrower, on the dates, in the principal
amounts, of the Types, bearing interest at the rates and maturing on the dates
set forth below, subject to the payments and prepayments of principal set forth
below:
Principal Maturity Amount Unpaid
Date of Amount of Type of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
-------- ---------- ------- -------- -------- ------- --------- --------
Competitive Bid Option Note
--------------------------
EXHIBIT G
ADDITIONAL LENDER ADDENDUM
ADDENDUM, dated _____________________, to the Amended and Restated
Credit Agreement dated as of ____________, 1995 (as amended or modified from
time to time, the "Credit Agreement") among FIRST DEPOSIT NATIONAL BANK, a
national banking association incorporated, organized and existing under the laws
of the United States of America ("FDNB"), PROVIDIAN NATIONAL BANK, a national
banking association incorporated, organized and existing under the laws of the
United States of America ("PNB"), PROVIDIAN CREDIT CORPORATION, a corporation
organized and existing under the laws of the State of Delaware ("PCC"),
PROVIDIAN CREDIT SERVICES, INC., a corporation organized and existing under the
laws of the State of Utah ("PCSI"; together with FDNB, PNB and PCC, the
"Borrowers"); PROVIDIAN BANCORP, INC., a corporation organized and existing
under the laws of the State of Delaware (the "Guarantor"; together with the
Borrowers, the "Obligors"); the banks and financial institutions listed on the
signature pages thereof under the caption "LENDERS" or which, pursuant to
Section 2.12, 2.13 or 13.06(b) thereof, shall become a "Lender" thereunder
(individually, a "Lender" and, collectively, the "Lenders"); and THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association, as
administrative agent for the Company (in such capacity, together with any
successor appointed pursuant to Section 12.08 thereof, the "Agent").
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides that a financial institution;
although not originally a party thereto, may become a party to the Credit
Agreement with the consent of the Borrowers by executing and delivering to the
Obligors and the Agent an addendum to the Credit Agreement in substantially the
form of this Addendum; and
WHEREAS, the undersigned was not an original party to the Credit
Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 7.01 thereof or the financial statements most recently delivered by
the Borrowers and the Guarantor pursuant to Section 8.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to become a Lender; (ii) agrees that it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Documents; (iii) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise
Additional Lender Addendum
--------------------------
such powers under the Credit Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(iv) agrees to be bound by the provisions of the Credit Agreement and agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Documents are required to be performed by it as a
Lender; (v) specifies as its Applicable Lending Offices (and address for
notices) the office(s) set forth beneath its name on the signature page hereof;
(vi) attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the status of the undersigned for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to it under the Credit Documents or such other documents as
are necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty; and (vii) and agrees that it shall on
the date this Addendum is accepted by the Borrowers and the Agent become a
Lender for all purposes of the Credit Agreement to the same extent as if
originally a party thereto.
2. The amount of the Commitment of the undersigned shall be _______.
-
3. Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
Additional Lender Addendum
--------------------------
2
IN WITNESS WHEREOF, the undersigned has caused this Addendum to be
executed and delivered by a duly authorized officer on the date first above
written
[NAME OF LENDER]
By: ___________________________
Name: [Printed]____________
___________________________
Lending Office for Base Rate Loans:
Lending Office for Loans other than
Base Rate Loans:
Address for Notices:
Attention:
Telex No.:
Telecopier No.:
Telephone No.:
Accepted this ___ day of
____________, 199__.
THE CHASE MANHATTAN BANK
(National Association), as Administrative Agent
By: _______________________________
Title:
Accepted this ___ day of
____________, 199__.
PROVIDIAN BANCORP, INC.
As Guarantor
By: _______________________________
Title:
Additional Lender Addendum
--------------------------
3
Accepted this ___ day of
____________, 199__.
FIRST DEPOSIT NATIONAL BANK
By: _______________________________
Title:
Accepted this ___ day of
____________, 199__.
PROVIDIAN NATIONAL BANK
By: _______________________________
Title:
Accepted this ___ day of
____________, 199__.
PROVIDIAN CREDIT CORPORATION
By: _______________________________
Title:
Accepted this ___ day of
____________, 199__.
PROVIDIAN CREDIT SERVICES, INC.
By: _______________________________
Title:
Additional Lender Addendum
--------------------------
4
EXHIBIT H
INCREASED COMMITMENT ADDENDUM
ADDENDUM, dated _____________________, to the Amended and Restated
Credit Agreement dated as of ____________, 1995 (as amended or modified form
time to time, the "Credit Agreement") among FIRST DEPOSIT NATIONAL BANK, a
national banking association incorporated, organized and existing under the laws
of the United States of America ("FDNB"), PROVIDIAN NATIONAL BANK, a national
banking association incorporated, organized and existing under the laws of the
United States of America ("PNB"), PROVIDIAN CREDIT CORPORATION, a corporation
organized and existing under the laws of the State of Delaware ("PCC"),
PROVIDIAN CREDIT SERVICES, INC., a corporation organized and existing under the
laws of the State of Utah ("PCSI"; together with FDNB, PNB and PCC, the
"Borrowers"); PROVIDIAN BANCORP, INC., a corporation organized and existing
under the laws of the State of Delaware (the "Guarantor"; together with the
Borrowers, the "Obligors"); the banks and financial institutions listed on the
signature pages thereof under the caption "LENDERS" or which, pursuant to
Section 2.12, 2.13 or 13.06(b) thereof, shall become a "Lender" thereunder
(individually, a "Lender" and, collectively, the "Lenders"); and THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association, as
administrative agent for the Company (in such capacity, together with any
successor appointed pursuant to Section 12.08 thereof, the "Agent").
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in subsection 2.14 thereof that
any Lender with the consent of the Borrowers may increase the amount of its
Commitment by executing and delivering to the Obligors and the Agent an addendum
to the Credit Agreement in substantially the form of this Addendum; and
WHEREAS, the undersigned now desires to increase the amount of its
Commitment under the Credit Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of
the Credit Agreement, that it shall on the date this Addendum is accepted by the
Obligors and the Agent have its Commitment increased $____________, thereby
making the amount of its Commitment $_______________.
2. Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
Increased Commitment Addendum
-----------------------------
IN WITNESS WHEREOF, the undersigned has caused this Addendum to be
executed and delivered by a duly authorized officer on the date first above
written
[NAME OF LENDER]
By: _____________________________
Title:
Accepted this ___ day of
____________, 199__.
THE CHASE MANHATTAN BANK
(National Association), as Administrative Agent
By: ______________________________
Title:
Accepted this ___ day of
____________, 199__.
PROVIDIAN BANCORP, INC.,
as Guarantor
By: ______________________________
Title:
Accepted this ___ day of
____________, 199__.
FIRST DEPOSIT NATIONAL BANK
By: ______________________________
Title:
Increased Commitment Addendum
-----------------------------
2
Accepted this ___ day of
____________, 199__.
PROVIDIAN NATIONAL BANK
By: ______________________________
Title:
Accepted this ___ day of
____________, 199__.
PROVIDIAN CREDIT CORPORATION
By: ______________________________
Title:
Accepted this ___ day of
____________, 199__.
PROVIDIAN CREDIT SERVICES, INC.
By: ______________________________
Title:
Increased Commitment Addendum
-----------------------------
3
EXHIBIT I
October 10, 1995
(▇▇▇) ▇▇▇-▇▇▇▇ C 14073-00164
To: The Chase Manhattan Bank (National Association),
as Administrative Agent, and the Lenders party to the
Credit Agreement (as hereinafter defined)
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank (National
Association) as Agent and the Lenders (as hereinafter defined) in connection
with the Amended and Restated Credit Agreement dated as of October 10, 1995 (the
"Credit Agreement") among (i) First Deposit National Bank, a national banking
association incorporated, organized and existing under the laws of the United
States of America ("FNDB"), Providian National Bank, a national banking
association incorporated, organized and existing under the laws of the United
States of America ("PNB"), Providian Credit Corporation, a corporation organized
and existing under the laws of the State of Delaware ("PCC"), Providian Credit
Services, Inc., a corporation organized and existing under the laws of the State
of Utah ("PCSI"); together with FDNB, PNB and PCC, the "Borrowers"), (ii)
Providian Bancorp, a corporation organized existing under the laws of the State
of Delaware (the "Guarantor"; together with the Borrowers, the "Obligors"),
(iii) the lenders party thereto from time to time (the "Lenders") and (iv) The
Chase Manhattan Bank (National Association) as administrative agent for Lenders
(in such capacity, the "Agent"). This opinion is being rendered to you pursuant
to Section 6.01(a)(iv) of the Credit Agreement. All capitalized terms used but
not defined herein have the respective meanings given to such terms in the
Credit Agreement.
In rendering this opinion, we have examined an executed copy of each
of the Credit Documents.
We have, with your permission, assumed, without independent
investigation or inquiry with respect to any such matter, that:
(a) each of the Obligors is a corporation, partnership or other entity
validly existing and in good standing under the laws of the jurisdiction of its
organization, with all requisite corporate or other power and authority to
execute, deliver and delivery of obligations under each Credit Document to which
it is a party; the execution and delivery of each such Credit Document by each
such Obligor, and the performance of the obligations of each such Obligor, have
been duly authorized by all necessary corporate action on the part of each such
Obligor, and each such Credit
Opinion of Special Counsel to the Agent
---------------------------------------
The Chase Manhattan Bank (National Association)
as Administrative Agent, and the Lenders party to the
Credit Agreement
October 10, 1995
Page 2
Document has been duly executed and delivered by or on behalf of each such
Obligor or by a person or persons thereunto duly authorized;
(b) to the extent that the obligations of the Obligors may be
dependent upon such matters, each of the Agent and the Lenders has all requisite
corporate power and authority to execute, deliver and perform its
respective obligations under each Credit Document to which it is a party; the
execution and delivery of each such Credit Document and performance of such
obligations have been duly authorized by all necessary corporate action on the
part of the Agent and the Lenders; each such Credit Document has been duly
executed and delivered by or on behalf of each of the Agent and the Lenders; and
each such Credit Document is a legal, valid and binding obligation of each of
the Agent and the Lenders, enforceable against each of term with its terms;
(c) the documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies conform to the
originals; and
(d) there are no agreements or understandings between or among the
Agent, the Lenders, the Obligors or third parties that would expand, modify or
otherwise affect the terms of the Credit Documents of the respective rights or
obligations of the parties thereunder, and the Credit Documents or the
respective rights or obligations of the parties thereunder, and the Credit
Documents correctly set forth the intent of all parties thereto.
Based upon the foregoing and subject to the qualifications,
limitations and assumptions set forth below, we are of the opinion that each of
the Credit Documents to which an Obligor is party constitutes the legal, valid
and binding obligation of such Obligor, enforceable against each such Obligor in
accordance with its terms.
The foregoing opinion is subject to the following qualifications,
limitations and assumptions.
A. We render no opinion herein as to matters involving the laws of
any jurisdiction other than the State of New York and the United States of
America. This opinion is limited to the effect of the present state of the laws
of the State of New York and of the United States of America and the facts as
they presently exist. We assume no obligation to revise or supplement this
opinion in the event of future changes in such laws or the interpretations
thereof or such facts.
B. Our opinions are subject to (i) the effect of bankruptcy,
insolvency, reorganization, moratorium, arrangement or other similar laws
affecting enforcement of creditors' rights generally (including, without
limitation, the effect of statutory or other laws regarding fraudulent transfers
or conveyances or preferential transfers); (ii) the application of general
principles of equity, whether considered in a case or proceeding at law or in
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance or other equitable relief (whether sought in a proceeding at law or
in equity); and (iii) the qualification that indemnification provisions in the
Credit Documents may be unenforceable to the extent that such indemnification
relates to claims made under any federal or state securities laws or is
otherwise limited by public policy.
The Chase Manhattan Bank (National Association)
as Administrative Agent, and the Lenders party to the
Credit Agreement
October 10, 1995
Page 3
C. We express no opinion as to the legality, validity, binding effect
or enforceability (whether according to its terms or otherwise) of: (i) any
provision of any Credit Document to the effect that rights or remedies are not
exclusive, that every right or remedy is cumulative and may be exercised in
addition to any other right or remedy, that the election of some particular
remedy does not preclude recourse to one or more other remedies or that failure
to exercise or delay in exercising rights or remedies will not operate as a
waiver of any such right or remedy; (ii) any waiver or any consent relating to
the rights of Obligors under any Credit Document or applicable law or duties
owing to the Obligors existing as a matter of law to the extent such waivers or
consents are found by a court to be against public policy or are ineffective
pursuant to applicable law; (iii) any waiver or consent contained in any Credit
Document relating to such rights or duties that is broadly or vaguely stated or
unknown future rights; (iv) any provision of any Credit Document requiring
written amendments or waivers of such documents insofar as it suggests that oral
or other modifications, amendments or waivers could not effectively be agreed
upon by the parties or that the doctrine of promissory estoppel might not apply;
(v) Section 10.02 of the Credit Agreement; (vi) any provision in any Credit
Document waiving the right to object to venue or with respect to the
jurisdiction of the United States District Court for the Southern District of
New York; and (vii) the effect of the laws of any jurisdiction in which any Bank
is located (other than New York) that limit the interest, fees or other charges
such Bank may impose.
This opinion is rendered to the Agent and the Lenders in connection
with the Credit Agreement and may not be relied upon by any person other than
the Agent and the Lenders (including any Lender becoming a party to the Credit
Agreement after the date hereof pursuant to the terms of the Credit Agreement)
or by the Agent or the Lenders in any other context, nor may any copies of this
opinion be provided to any other Person except that the Agent and the Lenders
may provide this opinion (i) to bank examiners and other regulatory authorities
should they so request or in connection with their normal examinations, (ii) to
the independent auditors and attorneys of the Agent and the Lenders, (iii)
pursuant to order or legal process of any court or governmental agency, (iv) in
connection with any legal action to which the Agent or any Lender is a party
arising out of the transactions contemplated by the Credit Agreement or (v) to
any permitted prospective transferee of the Loans or Commitments. This opinion
may not be quoted without the prior written consent of this Firm.
Very truly yours,
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
================================================================================
$1,200,000,000
TERMINATION, REPLACEMENT AND
RESTATEMENT AGREEMENT
DATED AS OF MAY 14, 1996
AMONG
FIRST DEPOSIT NATIONAL BANK,
PROVIDIAN NATIONAL BANK,
PROVIDIAN CREDIT CORPORATION
AND
PROVIDIAN CREDIT SERVICES, INC.,
AS BORROWERS,
PROVIDIAN BANCORP, INC.,
AS GUARANTOR,
THE LENDERS NAMED HEREIN,
AS LENDERS
AND
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION THE BANK OF NEW YORK
CITICORP USA, INC. COMMERZBANK AG
CREDIT LYONNAIS, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CREDIT SUISSE
DEUTSCHE BANK AG NATIONSBANK OF TEXAS, N.A.
AS CO-AGENTS
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[LOGO] CHASE
CONTENTS
Page
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1. TERMINATION, REPLACEMENT AND RESTATEMENT 1
2. REPRESENTATIONS AND WARRANTIES 6
3. CONDITIONS TO EFFECTIVENESS 7
4. APPLICABLE LAW 8
5. EXISTING CREDIT AGREEMENT 8
6. NEW CREDIT AGREEMENT 8
7. TRANSITION PROVISIONS 8
8. COUNTERPARTS 9
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TERMINATION, REPLACEMENT AND RESTATEMENT AGREEMENT
TERMINATION, REPLACEMENT AND RESTATEMENT AGREEMENT, dated as of
May 14, 1996 (this "TRR Agreement"), among FIRST DEPOSIT NATIONAL BANK, a
national banking association incorporated, organized and existing under the laws
of the United States of America ("FDNB"), PROVIDIAN NATIONAL BANK, a national
banking association incorporated, organized and existing under the laws of the
United States of America ("PNB"), PROVIDIAN CREDIT CORPORATION, a corporation
organized and existing under the laws of the State of Delaware ("PCC"), and
PROVIDIAN CREDIT SERVICES, INC., a corporation organized and existing under the
laws of the State of Utah ("PCSI"; together with FDNB, PNB and PCC, the
"Borrowers"); PROVIDIAN BANCORP, INC., a corporation organized and existing
under the laws of the State of Delaware (the "Guarantor"; together with the
Borrowers, the "Obligors"); the banks and financial institutions (individually,
a "Lender" and, collectively, the "Lenders") listed on the signature pages
hereof under the captions "Continuing Lenders" (the "Continuing Lenders") and
"Additional Lenders" (the "Additional Lenders"); and THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), a national banking association, as administrative agent
for the Lenders (in such capacity, the "Agent"). Terms used but not defined in
this TRR Agreement shall have the respective meanings assigned to them in the
New Credit Agreement (as defined below).
RECITALS
A. The Borrowers, the Guarantor, the Continuing Lenders and the Agent are
parties to an $800,000,000 Amended and Restated Credit Agreement, dated as of
October 10, 1995 (the "Existing Credit Agreement").
B. The Borrowers, the Guarantor, the Continuing Lenders and the Agent are
willing, subject to the terms and conditions of this TRR Agreement, to terminate
the Existing Credit Agreement.
C. The Borrowers, the Guarantor, the Continuing Lenders, the Additional
Lenders and the Agent are willing, subject to the terms and conditions of this
TRR Agreement, to replace and restate the Existing Credit Agreement to increase
the aggregate Commitments thereunder, to extend the maturity date thereof and to
effect certain other changes thereto.
AGREEMENT
The parties hereto agree as follows:
1. Termination, Replacement and Restatement. Subject to the conditions set
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forth in Section 3 hereof:
(a) the Existing Credit Agreement, including all schedules and exhibits
thereto, is hereby terminated, subject to Section 13.07 thereof as to the
survival of certain rights and obligations, and simultaneously replaced by a new
credit agreement (the "New Credit Agreement") identical in form and substance to
the Existing Credit Agreement except as expressly modified below.
(b) The preamble of the New Credit Agreement shall read as follows:
CREDIT AGREEMENT, dated as of May 14, 1996, among FIRST DEPOSIT NATIONAL
BANK, a national banking association incorporated, organized and existing under
the laws of the United States of America ("FDNB"), PROVIDIAN NATIONAL BANK, a
national banking association incorporated, organized and existing under the laws
of the United States of America ("PNB"), PROVIDIAN CREDIT CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
("PCC"), and PROVIDIAN CREDIT SERVICES, INC., a corporation organized and
existing under the laws of the State of Utah ("PCSI"; together with FDNB, PNB
and PCC, the "Borrowers"); PROVIDIAN BANCORP, INC., a corporation organized and
existing under the laws of the State of Delaware (the "Guarantor"; together with
the Borrowers, the "Obligors"); the banks and financial institutions listed on
the signature pages to the TRR Agreement (as defined herein) as Continuing
Lenders and Additional Lenders (each as defined in the TRR Agreement) or which,
pursuant to Section 2.12, 2.13 or 13.06(b) hereof, shall become a "Lender"
hereunder (individually, a "Lender" and, collectively, the "Lenders"); and THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association, as
administrative agent for the Lenders (in such capacity, together with any
successor appointed pursuant to Section 12.08, the "Agent").
(c) The New Credit Agreement shall not contain (i) the recitals set
forth in the Existing Credit Agreement or (ii) Paragraphs (I), (II) or (III) set
forth under the heading "Agreement" and the first sentence under the heading
"Agreement" shall read as follows:
"The parties hereto agree as follows:".
(d)(i) The definition of the term "Agreement" in Section 1.01 of the New
Credit Agreement shall read as follows:
"Agreement": this Credit Agreement, as amended,
---------
supplemented or otherwise modified from time to time.
(ii) The definition of the term "Applicable Lending Office" in Section
1.01 of the New Credit Agreement shall read as follows:
"Applicable Lending Office": for each Lender and for each
-------------------------
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of
such
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Lender) designated for such Type of Loan on the signature pages of the
TRR Agreement or such other office of such Lender (or of an affiliate of
such Lender) as such Lender may from time to time specify to the Agent
and each Borrower as the office at which its Loans of such Type are to
be made and maintained.
(iii) The definition of the term "Co-Agents" in Section 1.01 of the New
Credit Agreement shall read as follows:
"Co-Agents": Bank of America National Trust and Savings
---------
Association, The Bank of New York, Citicorp USA, Inc., Commerzbank AG,
Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Credit Suisse, Deutsche Bank AG
and NationsBank of Texas, N.A.
(iv) The definition of the term "Commitment" in Section 1.01 of the New
Credit Agreement shall read as follows:
"Commitment": as to any Lender, the obligation of such
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Lender to make Syndicated Loans in an aggregate amount at any one time
outstanding up to but not exceeding the amount set opposite the name of
such Lender on the signature pages to the TRR Agreement under the
caption "Commitment", or if such Lender has entered into an Increased
Commitment Addendum or one or more Assignment and Acceptances, and with
respect to each Lender that becomes a Lender pursuant to an Assignment
and Acceptance or an Additional Lender Addendum, as set forth in such
Increased Commitment Addendum, Assignment and Acceptance or Additional
Lender Addendum (as the same may be reduced from time to time pursuant
to Section 2.05). The original aggregate principal amount of the
Commitments is $1,200,000,000.
(v) The definition of the term "Effective Date" in Section 1.01 of the
New Credit Agreement shall read as follows:
"Effective Date": the Effective Date as defined in the TRR
--------------
Agreement.
(vi) The definitions of the terms "Existing Agreement" and "Existing
Lenders" shall be deleted from Section 1.01 of the New Credit Agreement.
(vii) The definition of the term "Facility Fee Rate" in Section 1.01 of
the New Credit Agreement shall read as follows:
"Facility Fee Rate": for each Quarterly Period commencing
-----------------
before the later of (i) the first anniversary of the Effective Date and
(ii) the second consecutive Quarterly Date on which the Consolidated
Tangible Capital of the Guarantor is greater than or equal to
$550,000,000, 0.1250%; and for each Quarterly Period thereafter, the
percentage set forth below
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opposite the Consolidated Tangible Capital of the Guarantor as of the
Quarterly Date immediately preceding such Quarterly Period:
Consolidated Tangible Capital Facility Fee Rate
----------------------------- -----------------
greater than or equal to
$550,000,000 0.1000%
less than $550,000,000 0.1250%
(viii) The definition of the term "Fee Letter" in Section 1.01 of the
New Credit Agreement shall read as follows:
"Fee Letter": the letter dated April 3, 1996 between the
----------
Obligors and the Agent relating to certain agency and other fees in
respect of the credit facilities provided hereunder.
(ix) The definition of the term "Swing Line Amount" in Section 1.01 of
the New Credit Agreement shall read as follows:
"Swing Line Amount": $75,000,000.
-----------------
(e) Section 1.01 of the New Credit Agreement shall contain the following
additional definition:
"TRR Agreement": the Termination, Replacement and
-------------
Restatement Agreement, dated as of May 14, 1996, among the Borrowers,
the Guarantor, the banks and other financial institutions listed on the
signature pages thereof as Continuing Lenders and Additional Lenders
(each as defined therein) and the Agent.
(f) The amount set forth in Section 2.03(i) of the New Credit Agreement
shall be "$1,000" rather than "$750".
(g) The first sentence of Section 2.13 of the New Credit Agreement shall
read as follows:
During the period from January 1, 1997 to the Termination Date with the
consent of the Borrowers and upon notification to the Agent, one or more
additional banks or financial institutions may become a party to this
Agreement by executing an addendum hereto with the Obligors and the
Agent, substantially in the form of Exhibit G, whereupon such bank or
financial institution (each, a "New Lender") shall become a Lender for
all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement,
provided that, after giving effect to such addition, (i) the aggregate
Commitments shall not exceed $1,600,000,000
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and (ii) no Lender shall have a Commitment which equals or exceeds 25%
of the aggregate Commitments.
(h) The first sentence of Section 2.14 of the New Credit Agreement shall
read as follows:
During the period from January 1, 1997 to the Termination Date at the
request of the Borrowers and upon notification to the Agent, any Lender
may increase the amount of its Commitment by executing an addendum
hereto with the Obligors and the Agent, substantially in the form of
Exhibit H, whereupon such Lender shall be bound by and entitled to the
benefits of this Agreement with respect to the full amount of its
Commitment as so increased, provided that, after giving effect to any
such increase, (i) the aggregate Commitments shall not exceed
$1,600,000,000 and (ii) no Lender shall have a Commitment which equals
or exceeds 25% of the aggregate Commitments.
(i) Section 2.15 of the Existing Credit Agreement shall be deleted from
the New Credit Agreement.
(j) Section 6.01 of the New Credit Agreement shall read as follows:
"6.01 RESERVED".
--------
(k) The dates set forth in the first and last sentences of Section 7.01
of the New Credit Agreement shall be "December 31, 1995" rather than "December
31, 1994" and the second sentence of Section 7.01 of the Existing Credit
Agreement shall be deleted from the New Credit Agreement.
(l) The date set forth in Section 7.02 of the New Credit Agreement shall
be "December 31, 1995" rather than "December 31, 1994".
(m) Section 9.01(a) of the New Credit Agreement shall read as follows:
(a) Maintenance of Consolidated Tangible Capital. Permit
--------------------------------------------
Consolidated Tangible Capital at any time during any of the calendar
years set forth below to be less than the amount set forth below
opposite such year:
Year Amount
---- ------
1996 $300,000,000
1997 $350,000,000
1998 and thereafter $400,000,000
(n) Section 13.02 of the New Credit Agreement shall read as follows:
13.02 NOTICES. All notices, requests and other
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communications provided for herein and under the other Credit Documents
(including, without
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limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made in writing (including, without
limitation, by telex or telecopy), or, with respect to notices given
pursuant to Section 2.03 or 2.04, by telephone, confirmed in writing by
telecopier by the close of business on the day the notice is given,
delivered (or telephoned, as the case may be) to the intended recipient
at the "Address for Notices" specified below its name on the signature
pages of the TRR Agreement or the applicable Assignment and Acceptance
or Additional Lender Addendum; or, as to any party, at such other
address as shall be designated by such party in a notice to each other
party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted
by telex or telecopier or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as
aforesaid.
(o) The first proviso in Section 13.03 of the New Credit Agreement shall
read as follows:
provided that the fees and expenses of the Agent and of counsel to the
--------
Agent and the Lenders in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other Credit Documents
shall be payable by the Borrowers only to the extent set forth in the
letter agreement dated April 3, 1996 among the Agent and the Obligors.
2. Representations and Warranties. Each Obligor represents and warrants
------------------------------
to each of the Lenders that:
(a) This TRR Agreement, and the New Credit Agreement, have been duly
authorized, and, in the case of this TRR Agreement, 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, including but not limited to principles
governing the availability of the remedies of specific performance and
injunctive relief.
(b) The representations and warranties made by it under Section 7 of the
New Credit Agreement, after giving effect to this TRR Agreement, are
true and correct in all material respects on the date hereof 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.
(c) Before and after giving effect to this TRR Agreement, no Default or
Event of Default has occurred and is continuing.
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3. Conditions to Effectiveness. This TRR Agreement shall become
---------------------------
effective on the first date (the "Effective Date") on which each of the
following conditions precedent is satisfied in full:
(a) The Agent shall have received counterparts of this TRR Agreement
which, when taken together, bear the signatures of all the parties hereto.
(b) The representations and warranties set forth in Section 7 of the New
Credit Agreement, once the Existing Credit Agreement is replaced thereby, shall
be true and correct in all material respects on and as of the Effective Date,
with the same effect as though made on and as of the Effective Date, except to
the extent such representations and warranties expressly relate to an earlier
date.
(c) Each Obligor shall be in compliance with all the terms and
provisions set forth in the Existing Credit Agreement and in the New Credit
Agreement, once the Existing Credit Agreement is replaced thereby, and in each
other document relating thereto on its part to be observed or performed, and no
Default or Event of Default shall have occurred and be continuing.
(d) The Agent shall have received the following documents, each
certified as indicated below:
(1) a copy of the charter, as amended and in effect, of each
Obligor certified as of a recent date by the secretary or assistant
secretary of such Obligor, and a certificate from the Comptroller of the
Currency or the Secretary of State of its jurisdiction of incorporation,
as the case may be, dated as of a recent date, as to the good standing
of such Obligor; and
(2) a certificate of the secretary or an assistant secretary of
each Obligor, dated the Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws of such Obligor as
amended and in effect at all times from the date on which the
resolutions referred to in clause (B) were adopted to and including the
date of such certificate, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors of
such Obligor authorizing the execution, delivery and performance of this
TRR Agreement and such of the Credit Documents to which such Obligor is
or is intended to be a party and the extensions of credit hereunder, and
that such resolutions have not been modified, rescinded or amended and
are in full force and effect, (C) that the charter of such Obligor has
not been amended since the date of the certification thereto furnished
pursuant to clause (1) above, and (D) as to the incumbency and specimen
signature of each officer of such Obligor executing this TRR Agreement
and the Credit Documents and each other document to be delivered by such
Obligor in connection therewith (and the Agent and each Lender may
conclusively rely on such certificate until it receives notice in
writing from such Obligor).
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(e) The Agent shall have received (i) a favorable opinion, dated the
Effective Date, of in-house counsel to the Obligors, substantially in the form
of Exhibit A hereto and covering such other matters as the Agent may reasonably
request and (ii) a favorable opinion, dated the Effective Date, of ▇▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel to the Agent, substantially in the form of Exhibit B hereto
and covering such other matters as the Agent may reasonably request.
(f) All legal matters in connection with this TRR Agreement shall be
satisfactory to the Agent, in its reasonable discretion.
The Agent shall promptly give the Obligors and each Lender notice of the
Effective Date.
4. Applicable Law. THIS TRR AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
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WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
5. Existing Credit Agreement. Until the occurrence of the Effective Date
-------------------------
as provided in Section 3 hereof, the Existing Credit Agreement shall continue in
full force and effect in accordance with the provisions thereof and the rights
and obligations of the parties thereto shall not be affected hereby.
6. New Credit Agreement. Any reference in the New Credit Agreement, or
--------------------
in any documents or instruments required thereunder or annexes, exhibits or
schedules thereto, referring to the Existing Credit Agreement, shall be deemed
to refer to the New Credit Agreement which shall be deemed dated as of the date
hereof. As used in the New Credit Agreement, the terms "Agreement", "this
Agreement", "herein", "hereinafter", "hereto", "hereof" and words of similar
import shall, unless the context otherwise requires, mean the New Credit
Agreement. Except as expressly modified by this TRR Agreement, the terms and
provisions of the Existing Credit Agreement are hereby confirmed and ratified in
all respects and shall be in full force and effect as the terms and provisions
of the New Credit Agreement.
7. Transition Provisions. (a) Transition Provisions (a) On the Effective
---------------------
Date all Loans outstanding under the Existing Credit Agreement shall
automatically be deemed to be Loans outstanding under the New Credit Agreement
and all amounts and rights accrued under the Existing Credit Agreement shall be
deemed accrued under the New Credit Agreement.
(b) If on the Effective Date there is an unpaid principal amount of
Syndicated Loans under the Existing Credit Agreement which are Base Rate Loans,
each Additional Lender and each Lender whose Commitment has increased under the
New Credit Agreement shall make Loans under the New Credit Agreement to the
Borrowers in such amounts as shall be necessary to cause the outstanding amount
of each such Lender's share of the Base Rate Loans of all Lenders (after giving
effect to the application of proceeds described in the last sentence of this
paragraph), expressed as a percentage, to be equal to such Lender's Commitment
Percentage. The Agent will notify each such Lender in writing of the amount of
any such Loan it shall be required to make, and on the Effective Date each such
Lender will transfer to the Agent, in immediately available funds, the amount of
its Loan. The proceeds of
8
such Loans shall be applied by the Agent on behalf of the Borrowers to the
partial repayment of the other Lenders' Base Rate Loans to the extent necessary
to cause the outstanding amount of each such other Lender's share of the Base
Rate Loans of all Lenders under the New Credit Agreement, expressed as a
percentage, to be equal to such other Lender's Commitment Percentage (and the
pro-rata and sharing provisions of Section 4.02 shall not be applicable to such
payment).
(b) If on the Effective Date there is an unpaid principal amount of
Syndicated Loans which are Eurodollar Loans or Competitive Bid Option Loans
under the Existing Credit Agreement, the Additional Lenders and the Lenders
whose Commitments have increased under the New Credit Agreement shall not be
required to make any advances on the Effective Date in respect thereof and
Lenders whose Commitments have decreased under the New Credit Agreement shall
not receive any repayment on the Effective Date in respect thereof, provided
that, in the case of Syndicated Loans which are Eurodollar Loans, if such
Eurodollar Loans are converted or continued on the last day of the Interest
Period therefor, such conversion or continuation shall be pro rata according to
the Commitments of the Lenders after giving effect to the New Credit Agreement,
and provided, further, that if, for any reason, any such Eurodollar Loans are
not repaid, converted or continued on the last day of the Interest Period
therefor, effective on such last day, each Additional Lender and each Lender
whose Commitment has increased pursuant to the New Credit Agreement severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default or Event of Default, purchase a participating interest
in such Eurodollar Loans ("Unrefunded Eurodollar Loans") in an amount equal to,
in the case of an Additional Lender, such Lender's Commitment Percentage of such
Eurodollar Loans, and, in the case of a Lender whose Commitment shall have
increased, the product of the principal amount of such Eurodollar Loans and a
fraction the numerator of which is the amount of the increase in such Lender's
Commitment and the denominator of which is the aggregate amount of the
Commitments. Each such Lender will immediately transfer to the Agent, in
immediately available funds, the amount of its participation, and the proceeds
of such participations shall be distributed by the Agent to the other Lenders in
such amounts as will reduce the amount of the participating interest retained by
each such other Lender in such Eurodollar Loans to their respective Commitment
Percentages of such Eurodollar Loans. Each Lender shall share on a pro rata
basis (calculated by reference to its participating interest in such Eurodollar
Loans) in any interest which accrues thereon and in all repayments thereof. All
payments in respect of Unrefunded Eurodollar Loans and participations therein
shall be made in accordance with Section 4.02.
8. Counterparts. This TRR Agreement 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
FIRST DEPOSIT NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Senior
Financial Officer
Address for Notices:
1) Before June 10, 1996:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
2) From and after June 10, 1996:
c/o Providian Bancorp, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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PROVIDIAN NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Senior Financial
Officer
Address for Notices:
1) Before June 10, 1996:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
2) From and after June 10, 1996:
c/o Providian Bancorp, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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PROVIDIAN CREDIT CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Senior Financial
Officer
Address for Notices:
1) Before June 10, 1996:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
2) From and after June 10, 1996:
c/o Providian Bancorp, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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PROVIDIAN CREDIT SERVICES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Senior Financial
Officer
1) Before June 10, 1996:
Address for Notices:
c/o Providian Bancorp, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
2) From and after June 10, 1996:
c/o Providian Bancorp, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
13
PROVIDIAN BANCORP, INC., as
Guarantor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Senior Financial
Officer
Address for Notices:
1) Before June 10, 1996:
Providian Bancorp, Inc.
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
2) From and after June 10, 1996:
Providian Bancorp, Inc.
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
and Senior Financial
Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
14
LENDERS
-------
CONTINUING LENDERS
------------------
Commitment ABN AMRO BANK N.V. - PITTSBURGH BRANCH
----------
$30,000,000
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
ABN AMRO Bank N.V.
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Lending Office for Loans other than
Base Rate Loans:
ABN AMRO Bank N.V.
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Address for Notices:
ABN AMRO Bank N.V.
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telex No.: 6734601 ABNAMRO UT
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment BANK OF AMERICA ILLINOIS
----------
$70,000,000
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Bank of America Illinois
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Bank of America Illinois
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Bank of America Illinois
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE BANK OF NEW YORK
----------
$70,000,000
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other
than Base Rate
The Bank of New York
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Address for Notices:
The Bank of New York
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and
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Commitment BANQUE NATIONAL DE PARIS
----------
$25,000,000
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Title: Assistan Vice President
Lending Office for Base Rate Loans:
Banque Nationale de Paris
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other
than Base Rate Loans:
Banque Nationale de Paris
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Address for Notices:
Banque Nationale de Paris
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Telex No.: RCA278900 (BNPSUR)
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment CAISSE NATIONALE DE
---------- CREDIT AGRICOLE
$30,000,000
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
Lending Office for Base Rate Loans:
Caisse Nationale de Credit
Agricole
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Caisse Nationale de Credit
Agricole
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Caisse Nationale de Credit
Agricole
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telex No.: 190063 AGRICOUT
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇/7420
Commitment THE CHASE MANHATTAN BANK
---------- (NATIONAL ASSOCIATION)
$70,000,000
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Chase Manhattan Bank
(National Association)
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment CITICORP USA, INC.
----------
$60,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Citicorp USA, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Citicorp USA, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Citicorp USA, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇/4412
Commitment COMMERZBANK AG, LOS ANGELES BRANCH
----------
$70,000,000
By /s/ Christian Jagenberg
_________________________________
Name: Christian Jagenberg
Title: Senior Vice President and
Manager
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Commerzbank AG, Los Angeles Branch
▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Commerzbank AG, Los Angeles Branch
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Commerzbank AG, Los Angeles Branch
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/
▇▇▇▇ ▇▇▇▇▇
Telex No.: 678338 CBKLA UI
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇/5419
Commitment CREDIT LYONNAIS, SAN FRANCISCO
---------- BRANCH AND/OR CREDIT LYONNAIS,
$70,000,000 CAYMAN ISLAND BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Manager
Lending Office for Base Rate Loans:
Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇/▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Credit Lyonnais, San ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment CREDIT SUISSE
----------
$70,000,000
By /s/ Worthington
_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Member of Senior Management
By [illegible]
_________________________________
Name: [illegible]
Title:
Lending Office for Base Rate Loans:
Credit Suisse
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Credit Suisse
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Credit Suisse
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Asa
Telex No.: 67227 (CREDSUIS)
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE DAI-ICHI KANGYO BANK, LTD.,
---------- CHICAGO BRANCH
$20,000,000
By /s/ ▇. ▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇: Corporate
Banking
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment DEUTSCHE BANK AG,
---------- NEW YORK AND/OR CAYMAN ISLANDS
$70,000,000 BRANCHES
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Associate
Lending Office for Base Rate Loans:
Deutsche Bank AG,
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Deutsche Bank AG
Cayman Islands Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Deutsche Bank AG
New York and/or Cayman Islands
Branches
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CFS, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telex No.: 429166/DEUT BK NY
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE FIRST NATIONAL BANK OF BOSTON
----------
$25,000,000
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. Mail Stop
74-02-05
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. Mail Stop
74-02-05
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Competitive Bid Notices:
The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mail Stop
01-10-08
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment FLEET BANK N.A.
----------
$25,000,000
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Fleet Bank N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 28th Floor
New York, New York 10038
Lending Office for Loans other than
Base Rate Loans:
Fleet Bank N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Fleet Bank N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Sargon
Telex No.: 12-7933
Telecopier No.: 212-602-3323
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment FLEET NATIONAL BANK
----------
$15,000,000
By /s/ ▇.▇. ▇▇▇▇
_________________________________
Name: ▇.▇. ▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Fleet National Bank
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Insurance Industry Dept.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE FUJI BANK, LIMITED,
---------- SAN FRANCISCO AGENCY
$55,000,000
By /s/ Keiichi Ozawa
_________________________________
Name: Keiichi Ozawa
Title: Joint General Manager
Lending Office for Base Rate Loans:
The Fuji Bank, Limited
San Francisco Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The Fuji Bank, Limited
San Francisco Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
The Fuji Bank, Limited
San Francisco Agency
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex No.: 176087 FUJIBK SFO
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE INDUSTRIAL BANK OF JAPAN,
---------- LIMITED, LOS ANGELES AGENCY
$50,000,000
By /s/ ▇. ▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Lending Office for Base Rate Loans:
The Industrial Bank of Japan,
Limited,
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The Industrial Bank of Japan,
Limited,
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
The Industrial Bank of Japan,
Limited,
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telex No.: 6831123 COGIN LSA
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment NATIONSBANK OF TEXAS, N.A.
----------
$70,000,000
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Lending Office for Base Rate Loans:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment PNC BANK, NATIONAL ASSOCIATION
----------
$55,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Commercial Banking Officer
Lending Office for Base Rate Loans:
PNC Bank, N.A.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
PNC Bank, N.A.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
PNC Bank, N.A.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment SANWA BANK, LIMITED
---------- ATLANTA AGENCY
$20,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. [illegible]
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. [illegible]
Title: Vice President
Lending Office for Base Rate Loans:
The Sanwa Bank, Limited
Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The Sanwa Bank, Limited
Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Sanwa Bank, Limited
Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
Telex No.: 4611830 SANWALT
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
ADDITIONAL LENDERS
------------------
Commitment BANK OF NOVA SCOTIA
----------
$20,000,000
By /s/ F.C.H. ▇▇▇▇▇
_________________________________
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan
Operations
Lending Office for Base Rate and
LIBOR Loans:
Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Competitive Bid
Loans:
Bank of Nova Scotia
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
Chicago ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telex: ITT 241791
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Commitment BANKERS TRUST COMPANY
----------
$35,000,000
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇'▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇'▇▇▇▇▇
Title: Managing Director
Lending Office for Base Rate Loans:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. - ▇▇▇▇ ▇▇.
New York, N.Y. 10017
Lending Office for Loans other than
Base Rate Loans:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. - ▇▇▇▇ ▇▇.
New York, N.Y. 10017
Address for Notices:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. - ▇▇▇▇ ▇▇.
New York, N.Y. 10017
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/
▇▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment THE FIRST NATIONAL BANK OF CHICAGO
----------
$35,000,000
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Lending Office for Base Rate Loans:
The First National Bank of Chicago
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The First National Bank of Chicago
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇▇
Address for Notices:
The First National Bank of Chicago
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇/2279
Commitment MELLON BANK, N.A.
----------
$35,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
Lending Office for Base Rate Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
23rd Floor/Loan Administration
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
23rd Floor/Loan Administration
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Mellon Bank, N.A.
Three Mellon Bank Center
23rd Floor/Loan Administration
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇/
▇▇▇▇▇ ▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Commitment ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
---------- OF NEW YORK
$35,000,000
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telex No.: 177615 (MGTUT)
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment ROYAL BANK OF CANADA
----------
$20,000,000
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
Lending Office for Base Rate Loans:
Royal Bank of Canada
Financial Square, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Royal Bank of Canada
Financial Square, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
Royal Bank of Canada
Financial Square, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager, Credit
Administration
Telex No.: MCI-62519 (Royal Bank)
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Commitment THE SAKURA BANK, LIMITED
----------
$20,000,000
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Manager
Lending Office for Base Rate Loans:
The Sakura Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
The Sakura Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
The Sakura Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Sell
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Commitment SWISS BANK CORPORATION
---------- NEW YORK BRANCH
$20,000,000
By /s/ ▇▇▇▇▇▇ Mansebein
_________________________________
Name: ▇▇▇▇▇▇ Mansebein
Title: Director
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director, Credit Risk
Management
Lending Office for Base Rate Loans:
Swiss Bank Corporation
New York Branch
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Loans other than
Base Rate Loans:
Swiss Bank Corporation
New York Branch
P.O. Box ▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Swiss Bank Corporation
New York Branch
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBIT A
May ___, 1996
The Chase Manhattan Bank (National
Association), as Administrative Agent,
and the Lenders party to the TRR
Agreement (as hereinafter defined)
Re: Termination, Replacement and Restatement Agreement
Ladies and Gentlemen:
I have acted as in-house counsel for Providian Bancorp, Inc., a Delaware
corporation ("PBI"), First Deposit National Bank, a national banking association
("FDNB"), Providian National Bank, a national banking association ("PNB"),
Providian Credit Corporation, a Delaware corporation ("PCC"), and Providian
Credit Services, Inc., a Utah corporation ("PCSI"), in connection with the
Termination, Replacement and Restatement Agreement dated as of May ___, 1996
(the "TRR Agreement") among FDNB, PNB, PCC and PCSI, as borrowers (collectively,
the "Borrowers"), PBI, as guarantor (the "Guarantor" and, together with the
Borrowers, the "Obligors"), the lenders party thereto (the "Lenders") and The
Chase Manhattan Bank (National Association), as administrative agent for the
Lenders (in such capacity, the "Agent"). All capitalized terms used but not
defined herein have the respective meanings given to such terms in the TRR
Agreement.
This opinion is being furnished to you pursuant to Section 3(e) of the
TRR Agreement.
For purposes of rendering this opinion, I have examined originals or
copies identified to my satisfaction of the following documents:
(a) the TRR Agreement, including the Exhibits and Schedules
thereto and the terms thereof incorporated by reference to the Amended and
Restated Credit Agreement dated as of October 10, 1995;
(b) the Fee Letter dated April 3, 1996; and
(c) the articles of association, articles of incorporation or
certificate of incorporation, as the case may be, and by-laws, each as amended
to the date hereof, of each of the Obligors.
The documents referred to in items (a) and (b) above are sometimes
referred to herein as the "Restated Credit Documents."
In addition, I have made such inquiries and investigations and examined
such corporate records of the Obligors as I have deemed necessary to render the
opinions set forth herein.
As used herein, the phrase "to my knowledge" refers to my actual
knowledge based on my review of the documents listed above and the information,
inquiries and investigations described herein and no others.
For purposes of this opinion, I have assumed (i) the due authorization,
execution and delivery of the Restated Credit Documents by each of the Lenders
and the Agent, as applicable; (ii) that each Lender and the Agent have the legal
power to act in the capacities in which they are to act under the Restated
Credit Documents; (iii) the conformity to the original documents of any
documents submitted to me as certified or photostatic copies, the authenticity
of such documents and the genuineness of all signatures on such documents; (iv)
that each of the Restated Credit Documents is the legal, valid and binding
obligation of each of the Lenders and the Agent, as applicable, enforceable
against each such party in accordance with its terms; and (v) that each of the
Lenders and the Agent has performed and will perform its obligations thereunder.
Based upon the foregoing, and subject to the qualifications, limitations
and assumptions hereinafter set forth, I am of the opinion that:
1. Each of the Guarantor and PCC is a corporation validly existing and
in good standing under the laws of the State of Delaware. PCSI is a corporation
validly existing and in good standing under the laws of the State of Utah. Each
of FDNB and PNB is a national banking association validly existing and in good
standing under the laws of the United States of America.
2. Each of the Obligors has all requisite corporate power and authority
to own and operate its properties, to conduct its business in the manner in
which it presently is conducted and to execute, deliver and perform its
obligations under each of the Restated Credit Documents to which it is a party.
3. Each of the Restated Credit Documents to which an Obligor is a party
has been duly authorized by all necessary corporate action on the part of such
Obligor.
2
4. Neither the execution and delivery by any Obligor of the Restated
Credit Documents to which it is a party nor the performance by such Obligor of
its obligations thereunder constitutes or will result in a breach of such
Obligor's charter or by-laws or, to my knowledge, any order of any court or
governmental authority having jurisdiction over such Obligor or constitutes a
violation of applicable law. Neither the execution and delivery by any Obligor
of the Restated Credit Documents to which it is a party nor the performance by
such Obligor of its obligations thereunder will conflict with, or result in any
material breach of, or constitute a default under, or result in the creation or
imposition of any lien upon any property or assets of such Obligor pursuant to,
or require any consent not obtained under, any indenture, mortgage, deed of
trust, agreement or other instrument to which such Obligor is a party or by
which it or any of its property or assets are bound or to which it is subject,
which conflict, breach or default, or lien created or imposed, or the failure to
obtain such consent, would have a material adverse effect on the financial
condition of such Obligor and its Subsidiaries taken as a whole or the ability
of such Obligor to perform its obligations under the Restated Credit Documents
to which it is a party.
5. Except as disclosed in the TRR Agreement or in any Schedule or
Exhibit thereto or any terms incorporated therein by reference, to my knowledge
there is pending or threatened no action, suit or proceeding or governmental
investigation, or any order, writ, injunction or decree, against any Obligor
before or by any court, arbitrator or governmental or administrative body that
challenges the validity or enforceability of any of the Restated Credit
Documents or the transactions contemplated thereby or that restrains, prevents
or imposes material adverse conditions upon, or seeks to restrain, prevent or
impose material adverse conditions upon, any such transaction or in which there
is a reasonable probability of an adverse decision against such Obligor and
which, if adversely determined, would reasonably be expected to have a material
adverse effect on the financial condition of such Obligor and its Subsidiaries
taken as a whole or the ability of such Obligor to perform its obligations under
the Credit Documents to which it is a party.
6. None of the Obligors is an "investment company" or a person directly
or indirectly controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. None of the Obligors is a "holding
company", or an "affiliate" of a "holding company" or a "subsidiary company" of
a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7. Neither the making of any Loans pursuant to, nor application of the
proceeds thereof in accordance with, the Restated Credit Documents will violate
Regulation U or X promulgated by the Board of Governors of the Federal Reserve
System.
The foregoing opinions are subject to the following qualifications,
limitations and assumptions:
3
A. I render no opinion herein as to matters involving the laws of any
jurisdiction other than the laws of the State of California, the General
Corporation Law of the State of Delaware, the Revised Business Corporation Act
of the State of Utah and the federal law of the United States of America. This
opinion is limited to the effect of the present state of such laws, as applied
to the facts on which I have relied (as set forth above), in existence on the
date hereof. I express no opinion as to the laws of any other time or
jurisdiction or the applicability of the laws of any particular jurisdiction. I
assume no obligation to revise or supplement this opinion in the event of future
changes in such laws or the interpretations thereof or such facts, and I assume
no responsibility to advise you of any such changes.
B. This opinion is delivered solely for your benefit in connection with
the TRR Agreement and may not be relied upon by any person other than the Agent
and the Lenders (including any Lender becoming a party to the New Credit
Agreement after the date hereof pursuant to the terms of the New Credit
Agreement) or by the Agent or the Lenders in any other context, nor may this
opinion be used, circulated, published, communicated or otherwise referred to or
made available to any other Person except that the Agent and the Lenders may
provide this opinion (i) to bank examiners and other regulatory authorities
should they so request or in connection with their normal examinations, (ii) to
the independent auditors and attorneys of the Agent and the Lenders, (iii)
pursuant to order or legal process of any court or governmental agency, (iv) in
connection with any legal action to which the Agent or any Lender is a party
arising out of the transactions contemplated by the TRR Agreement or (v) to any
permitted prospective transferee (including any prospective Participant) of the
Loans or Commitments. This opinion may not be quoted without my prior written
consent.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
General Counsel
info filenameNA960990.112[_]
EXHIBIT B
May 14, 1996
(▇▇▇) ▇▇▇-▇▇▇▇ C 14073-00164
To: The Chase Manhattan Bank (National Association),
as Administrative Agent, and the Lenders party to the
TRR Agreement (as hereinafter defined)
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank
(National Association) as Agent and the Lenders (as hereinafter defined) in
connection with the Termination, Replacement and Restatement Agreement dated as
of May 14, 1996 (the TRR Agreement") among (i) First Deposit National
Bank, a national banking association incorporated, organized and existing under
the laws of the United States of America ("FDNB"), Providian National Bank, a
national banking association incorporated, organized and existing under the laws
of the United States of America ("PNB"), Providian Credit Corporation, a
corporation organized and existing under the laws of the State of Delaware
("PCC"), and Providian Credit Services, Inc., a corporation organized and
existing under the laws of the State of Utah ("PCSI"; together with FDNB, PNB
and PCC, the "Borrowers"), (ii) Providian Bancorp, a corporation organized
existing under the laws of the State of Delaware (the "Guarantor"; together with
the Borrowers, the "Obligors"), (iii) the lenders party thereto from time to
time (the "Lenders") and (IV) The Chase Manhattan Bank (National Association)
as administrative agent for Lenders (in such capacity, the "Agent"). This
opinion is being rendered to you pursuant to Section 3(e) of the TRR
Agreement. All capitalized terms used but not defined herein have the respective
meanings given to such terms in the New Credit Agreement (as defined in the TRR
Agreement.)
In rendering this opinion, we have examined an executed copy
of each of the TRR Agreement and the Existing Credit Agreement (as defined in
the TRR Agreement).
We have, with your permission, assumed, without independent
investigation or inquiry with respect to any such matter, that:
The Chase Manhattan Bank (National Association),
as Administrative Agent, and the Lenders party to the
TRR Agreement
May 14, 1996
Page 2
(a) each of the Obligors is a corporation, partnership or other entity
validly existing and in good standing under the laws of the jurisdiction of
its organization, with all requisite corporate or other power and authority to
execute, deliver and perform its obligations under the TRR Agreement and to
perform its obligations under the New Credit Agreement; the execution and
delivery of the TRR Agreement by each Obligor, and the performance of the
obligations of each Obligor thereunder and under the New Credit Agreement, have
been duly authorized by all necessary corporate action on the part of each
Obligor; and the TRR Agreement has been duly executed and delivered by or on
behalf of each Obligor or by a person or persons thereunto duly authorized;
(b) to the extent that the obligations of the Obligors may be
dependent upon such matters, each of the Agent and the Lenders has all requisite
corporate power and authority to execute, deliver and perform its respective
obligations under the TRR Agreement and to perform its obligations under the New
Credit Agreement; the execution and delivery of the TRR Agreement and
performance of the obligations thereunder and under the New Credit Agreement
have been duly authorized by all necessary corporate action on the part of the
Agent and the Lenders; the TRR Agreement has been duly executed and delivered by
or on behalf of each of the Agent and the Lenders; and each of the TRR Agreement
and the New Credit Agreement is a legal, valid and binding obligation of each of
the Agent and the Lenders, enforceable against each of them its accordance with
its terms;
(c) the documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies conform to the
originals; and
(d) there are no agreements or understandings between or among the
Agent, the Lenders, the Obligors or third parties that would expand, modify or
otherwise affect the terms of the TRR Agreement or the New Credit Agreement or
the respective rights or obligations of the parties thereunder, and the TRR
Agreement and the New Credit Agreement correctly and completely sets forth the
intent of all parties thereto.
Based upon the foregoing and subject to the qualifications,
limitations and assumptions set forth below, we are of the opinion that each of
the TRR Agreement and the New Credit Agreement constitutes the legal, valid and
binding obligation of each Obligor, enforceable against such obligor in
accordance with its terms.
The foregoing opinion is subject to the following qualifications,
limitations and assumptions:
A. We render no opinion herein as to matters involving the laws of
any jurisdiction other than the State of New York and the United States of
America. This opinion is limited to the effect of the present state of the laws
of the State of New York and of the United States of America and the facts as
they presently exist. We assume no obligation to revise or supplement this
opinion in the event of future changes in such laws or the interpretations
thereof or such facts.
The Chase Manhattan Bank (National Association),
as Administrative Agent, and the Lenders party to the
TRR Agreement
May 14, 1996
Page 3
B. Our opinions are subject to (i) the effect of bankruptcy,
insolvency reorganization, moratorium, arrangement or other similar laws
affecting enforcement of creditors' rights generally (including, without
limitation, the effect of statutory or other laws regarding fraudulent transfers
or conveyances or preferential transfers); (ii) the application of general
principles of equity, whether considered in a case or proceeding at law or in
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance or other equitable relief (whether sought in a proceeding at law or
in equity); and (iii) the qualification that indemnification provisions in the
New Credit Agreement may be unenforceable to the extent that such
indemnification relates to claims made under any federal or state securities
laws or is otherwise limited by public policy.
C. We express no opinion as to the legality, validity, binding effect
or enforceability (whether according to its terms or otherwise) of: (i) any
provision of the New Credit Agreement to the effect that rights or remedies are
not exclusive, that every right or remedy is cumulative and may be exercised in
addition to any other right or remedy, that the election of some particular
remedy does not preclude recourse to one or more other remedies or that failure
to exercise or delay in exercising rights or remedies will not operate as a
waiver of any such right or remedy; (ii) any waiver or any consent relating to
the rights of the Obligors under the New Credit Agreement or applicable law or
duties owing to the Obligors existing as a matter of law to the extent such
waivers or consents are found by a court to be against public policy or are
ineffective pursuant to applicable law; (iii) any waiver or consent contained in
the New Credit Agreement relating to such rights or duties that is broadly or
vaguely stated or unknown fixture rights; (iv) any provision of the New Credit
Agreement requiring written amendments or waivers of such documents insofar as
it suggests that oral or other modifications, amendments or waivers could not
effectively be agreed upon by the parties or that the doctrine of promissory
estoppel might not apply; (v) Section 10.02 of the New Credit Agreement (except
for rights of setoff provided by Section 151 of the Debtor and Creditor Law of
the State of New York, as interpreted by applicable judicial decisions); (vi)
any provision in the New Credit Agreement waiving the right to object to venue
or with respect to the jurisdiction of the United States District Court for the
Southern District of New York; and (vii) the effect of the laws of any
jurisdiction in which any Lender is located (other than New York) that limit the
interest, fees or other charges such Lender may impose.
This opinion is rendered to the Agent and the Lenders in connection
with the TRR Agreement and the New Credit Agreement and may not be relied upon
by any person other than the Agent and the Lenders (including any Lender
becoming a party to the New Credit Agreement after the date hereof pursuant to
the terms of the New Credit Agreement) or by the Agent or the Lenders in any
other context, nor may any copies of this opinion be provided to any other
Person except that the Agent and the Lenders may provide this opinion (i) to
bank examiners and other regulatory authorities should they so request or in
connection with their normal examinations, (ii) to the independent auditors and
attorneys of the Agent and the Lenders, (iii) pursuant to order or legal process
of any court or governmental agency, (iv) in connection with any legal action to
which the Agent or any Lender is a party arising out of the transactions
contemplated by the New Credit Agreement or (v) to any permitted
The Chase Manhattan Bank (National Association),
as Administrative Agent, and the Lenders party to the
TRR Agreement
May 14, 1996
Page 4
prospective transferee of the Loans or Commitments. This opinion may not be
quoted without the prior written consent of this Firm.
Very truly yours,
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
NA961270.I 115/4+
--------------------------------------------------------------------------------
FIRST AMENDMENT
Dated as of April 4, 1997
to
CREDIT AGREEMENT
Dated as of May 14, 1996
among
FIRST DEPOSIT NATIONAL BANK,
PROVIDIAN NATIONAL BANK,
PROVIDIAN CREDIT CORPORATION
and
PROVIDIAN CREDIT SERVICES, INC.,
as Borrowers,
-- ----------
PROVIDIAN BANCORP, INC.,
as Guarantor,
-- ----------
THE LENDERS NAMED HEREIN,
as Lenders
-- -------
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
-- -------------- -----
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION THE BANK OF NEW YORK
CITICORP USA, INC. COMMERZBANK AG
CREDIT LYONNAIS, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CREDIT SUISSE
DEUTSCHE BANK AG NATIONSBANK OF TEXAS, N.A.
as Co-Agents
-- ---------
--------------------------------------------------------------------------------
[LOGO] CHASE
FIRST AMENDMENT
FIRST AMENDMENT, dated as of April 4, 1997 (this "Amendment"), to the
CREDIT AGREEMENT, dated as of May 14, 1996 (the "Credit Agreement"), among FIRST
DEPOSIT NATIONAL BANK, a national banking association incorporated, organized
and existing under the laws of the United States of America ("FDNB"), PROVIDIAN
NATIONAL BANK, a national banking association incorporated, organized and
existing under the laws of the United States of America ("PNB"), PROVIDIAN
CREDIT CORPORATION, a corporation organized and existing under the laws of the
State of Delaware ("PCC"), and PROVIDIAN CREDIT SERVICES, INC., a corporation
organized and existing under the laws of the State of Utah ("PCSI"; together
with FDNB, PNB and PCC, the "Borrowers"); PROVIDIAN BANCORP, INC., a corporation
organized and existing under the laws of the State of Delaware (the "Guarantor";
together with the Borrowers, the "Obligors"); the banks and financial
institutions (individually, a "Lender" and, collectively, the "Lenders") listed
on the signature pages hereof or which, pursuant to the terms of the Credit
Agreement shall become a "Lender" thereunder; and THE CHASE MANHATTAN BANK, as
administrative agent for the Lenders (in such capacity, the "Agent"). Terms used
but not defined in this Amendment shall have the respective meanings assigned to
them in the Credit Agreement.
The parties hereto agree as follows:
1. AMENDMENTS. (a) Section 1.01 of the Credit Agreement is hereby amended
----------
by inserting the following after the definition of Competitive Bid Option Loans:
"Consolidated Non-Performing Asset Percentage": as of any day, the
percentage equivalent of a fraction, the numerator of which is the amount of
unsecured credit card Receivables owned or managed by the Guarantor or any
of its Consolidated Subsidiaries on such day (including credit card
Receivables that have been securitized by the Guarantor or any such
Consolidated Subsidiary) which are either, without duplication, (i)
contractually 91 or more days past due or (ii) otherwise on a non-accrual
basis and the denominator of which is the amount of unsecured credit card
Receivables owned or managed by the Guarantor or any of its Consolidated
Subsidiaries on such day (including credit card Receivables that have been
securitized by the Guarantor or any such Consolidated Subsidiary)
(excluding, in the case of both the numerator and the denominator,
Receivables arising from any credit card accounts that were originated as
secured card accounts).
(b) The definition of the term "Subordinated Debt" in Section 1.01 of the
Credit Agreement is hereby amended by inserting the following at the end
thereof:
; and provided, further, that, without duplication, the 9.525% junior
-------- -------
subordinated deferrable interest debentures issued by the Guarantor and the
related $160,000,000 of trust preferred securities issued by Providian
Capital I shall constitute Subordinated Debt for all purposes hereof.
(c) Section 9.01 of the Credit Agreement is hereby amended by inserting the
following as paragraph (c) at the end thereof:
(c) Non-Performing Asset Percentage. Permit the Consolidated
-------------------------------
Non-Performing Asset Percentage to be greater than 6% as of the end of any
calendar month.
(d) Section 11(j) of the Credit Agreement is hereby amended by deleting
such Section in its entirety and substituting, in lieu thereof, "Reserved".
2. REPRESENTATIONS AND WARRANTIES. After giving effect to this Amendment,
------------------------------
each Obligor represents and warrants to each of the Lenders that (a) the
representations and warranties made by it under Section 7 of the Credit
Agreement are true and correct in all material respects on the date hereof 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 and (b) no
Default or Event of Default has occurred and is continuing.
3. NO OTHER AMENDMENTS. Except as expressly amended hereby, the Credit
-------------------
Agreement is and shall remain in full force and effect.
4. EFFECTIVE DATE. This Amendment shall become effective on the first date
--------------
(the "Effective Date") that the Agent shall receive counterparts of this
Amendment duly executed on behalf of each of the Obligors, the Agent and the
Majority Lenders. The Agent shall promptly give the Obligors and each Lender
notice of the Effective Date and shall furnish the Obligors and each Lender with
an executed copy of this Amendment.
5. GOVERNING LAW; COUNTERPARTS. (a) THIS AMENDMENT SHALL BE CONSTRUED IN
---------------------------
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
FIRST DEPOSIT NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial
Officer
PROVIDIAN NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial
Officer
PROVIDIAN CREDIT CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Senior Financial
Officer
PROVIDIAN CREDIT SERVICES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial
Officer
PROVIDIAN BANCORP, INC., as Guarantor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Senior Financial
Officer
THE CHASE MANHATTAN BANK, as Agent
By __________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V.
By /s/▇.▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Group V.P.
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Group V.P. and Operational Manager
BANK OF AMERICA ILLINOIS
By /s/▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
By /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/F.C.H. ▇▇▇▇▇
---------------------------------------
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
THE FIRST NATIONAL BANK OF BOSTON
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CITICORP USA, INC.
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
COMMERZBANK AG, LOS ANGELES BRANCH
By /s/Christian Jagenberg
---------------------------------------
Name: Christian Jagenberg
Title: SVP and Manager
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
CREDIT LYONNAIS, SAN ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ AND/OR CREDIT LYONNAIS,
CAYMAN ISLAND BRANCH
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Manager
CREDIT SUISSE
By /s/▇. ▇▇▇▇▇
---------------------------------------
Name: ▇. ▇▇▇▇▇
Title: Director
By /s/▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
DEUTSCHE BANK AG,
NEW YORK AND/OR CAYMAN ISLANDS
BRANCHES
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/R.C. English
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. English
Title: Authorized Agent
FLEET BANK, N.A.
By /s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED
SAN FRANCISCO AGENCY
By /s/Keiichi Ozawa
---------------------------------------
Name: Keiichi Ozawa
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN
LIMITED, LOS ANGELES AGENCY
By /s/Toru Uozu
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Name: Toru Uozu
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MELLON BANK, N.A.
By /s/▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NATIONSBANK OF TEXAS
By /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE SAKURA BANK, LIMITED
By /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
