Page
$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,
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 CITICORP USA, INC.
AND SAVINGS ASSOCIATION
CREDIT LYONNAIS, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CREDIT SUISSE NATIONSBANK OF TEXAS, N.A.
as Co-Agents
Table of Contents
This Table of Contents is not part of the Agreement
to which it is attached but is inserted for convenience of
reference only.
Page
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
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
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
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 ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇. 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
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.
1.01 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Additional Lender": as defined in paragraph I
above.
"Additional Lender Addendum": an agreement,
substantially in the form 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 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.
"Agreement": this Amended and Restated Credit
Agreement, as amended, supplemented or otherwise modified from
time to time.
"Applicable Lending Office": for each Lender and for
each Type of Loan, the "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 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 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 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 to time.
"Base Rate": for any day, a rate per annum equal to
the greater of (a) the 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.
"Base Rate Loans": Loans the rate of interest
applicable to which is based upon the Base Rate.
"Borrowing Date": any Business Day specified in a
notice pursuant to Section 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 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 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 Competitive Bid Option
Loan with one single specified interest rate.
"CBO Quote Request": as defined in Section 2.03(b).
"Chase": The Chase Manhattan Bank (National
Association).
"Class": as to any Loan, its nature as a
Competitive Bid Option Loan, a Swing Line Loan or a Syndicated
Loan.
"Co-Agents": Bank of America National Trust and
Savings Association, Citicorp 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.
"Commitment": as to any Lender, the obligation of
such 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
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 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 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 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 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.
"Consolidated Finance Assets": as of any date of
determination, with respect 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 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 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 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 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
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 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 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
5.01(c)) of a Loan from one Applicable Lending Office to
another.
"Credit Documents": this Agreement and the Fee
Letter.
"Default": any of the events specified in
Section 11, whether or not any 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 America.
"Effective Date": as defined in Section 6.01.
"ERISA": the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate": with respect to any Obligor, any
corporation or trade or 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.
"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.
"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
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in
Section 11, provided that 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.
"Existing Lenders": as defined in the recitals.
"Extended Termination Date": the fourth (4th)
anniversary date of the Effective Date, provided that if such
date is not a Business Day, the Extended Termination Date
shall be the next preceding Business Day.
"Facility Fee": as defined in Section 2.06(a).
"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
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).
"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 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 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 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 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 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.
"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 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.
"Insured Depository Institution": an "insured
depository institution" as defined in the FDIA, 12 U.S.C.A.
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.
"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).
"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 $150,000,000
anniversary thereof
From the first anniversary of
the Effective Date to but
excluding the second $250,000,000
anniversary thereof
From the second anniversary
of the Effective Date to but
excluding the third $350,000,000
anniversary thereof
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).
"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 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.
"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 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. 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. 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).
(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 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 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 ▇▇▇-▇-▇▇▇▇▇▇ 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
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.
(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 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 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 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 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. 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).
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 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.
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
Notice Business Days
Prior
Termination or reduction of 3
Commitments
Borrowing or prepayment of, or 0
Conversions into, Base Rate
Loans
Borrowing or prepayment of, 3
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans
Duration of Interest Period for 4
Eurodollar Loans of less than
one month or more than six
months
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 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.
(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 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 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
(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 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:
(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
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.
(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.
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.
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 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.
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 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;
(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 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;
(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;
(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
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.
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 $275,000,00
0
1996 $300,000,00
0
1997 $325,000,00
0
1998 and $350,000,00
thereafter 0
(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).
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 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 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.
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, 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 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 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 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 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
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, (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
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 (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.
(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.
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.
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
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)
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 CORPORATION
(formerly Providian National
Credit Corporation)
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.
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 BANCORP, INC., as
Guarantor
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.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment [NAME OF LENDER]
By
Name: [Printed]
Title:
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.:
_______________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By______________________________
___
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address for Notices to Chase as
Agent:
The Chase Manhattan Bank
(National Association)
4 Chase Metro Tech Center
13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Telex No.: 6720516 (Answerback:
CMBNYAUW)
Telecopier No.: (718)
242-6909/6910
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
NA952710.080/2+
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 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
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.
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): $___
Section 5.
Effective Date2: ___________________, 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__3:
PROVIDIAN BANCORP, INC.,
as Guarantor
By:__________________________
Title:
FIRST DEPOSIT NATIONAL BANK
By:__________________________
Title:
PROVIDIAN NATIONAL BANK
By:__________________________
Title:
PROVIDIAN CREDIT CORPORATION
By:__________________________
Title:
PROVIDIAN CREDIT SERVICES, INC.
By:__________________________
Title:
NA952610.063/2+
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]
[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.
NA952610.064/1+
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):
Borrowin Quotatio Interest
g n Amount[* Type[*3] Period[* Rate[*5]
Date Date[*1] 2] 4]
[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.
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):
Borrowi Quotati Interes
Lender ng on Amount Type t Rate
Date Date Period
[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]
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:
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
$_______4 [which shall be comprised of Loans of $________
("Borrowing 1") and $________ ("Borrowing 2")].5
(iii) The Loans comprising the Proposed Borrowing are
[Base Rate Loans] [Eurodollar Loans].
6(iv) The Interest Period for each Eurodollar Loan made
as part of the Proposed Borrowing is _____ month[s]7
[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:
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);
(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:
October __, ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 __, 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 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 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:
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
[TO COME]
[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.
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:
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 Durati Prepaid
Made, Princip on , Unpaid
Continued al Type Intere of Continu Princip Notatio
or Amount of st Intere ed al n
Converted of Loan Rate st or Amount Made by
Loan Period Convert
ed
[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.
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:
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:
Princip Maturi Amount Unpaid
Date of al Type Intere ty Paid or Princip Notatio
Loan Amount of st Date Prepaid al n
of Loan Rate of Amount Made by
Loan Loan
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 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.
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:
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:
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.
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:
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:
NA952610.068/6+
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
("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"), (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 perform its 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 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 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 Credit Documents or the respective rights or
obligations of the parties thereunder, and the Credit
Documents correctly and completely 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.
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 the 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,
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
NA952780.181/7+
_______________________________
1 If the Assignee is organized under the laws of a
jurisdiction outside the United States.
2 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).
3 Acceptance required only to the extent provided in the
Credit Agreement.
* All numbered footnotes appear on the last page of this
Exhibit.
* All numbered footnotes appear on the last page of this
Exhibit.
* Insert if Set Rate Loans with an Interest Period of 270
days or more are accepted.
4 To be used if different Interest Periods are selected
with respect to different borrowings of Eurodollar Loans
included in the Proposed Borrowing.
5 To be expanded to "Borrowing 3" etc., if necessary.
6 To be included for a Proposed Borrowing comprised, in
whole or in part, of Eurodollar Loans.
7 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.