1
EXHIBIT 10.21
[CONFORMED COPY]
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CAPITAL ONE FINANCIAL CORPORATION
CAPITAL ONE BANK
CAPITAL ONE, F.S.B.
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$1,700,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 25, 1996
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THE CHASE MANHATTAN BANK,
as Administrative Agent
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
NATIONSBANC CAPITAL MARKETS, INC.,
as Syndication Agent
Bank of America, NT&SA Commerzbank AG Credit Suisse
Deutsche Bank AG First Union National Bank of Virginia The Bank of New York
The First National Bank of Chicago The Industrial Bank of Japan, Ltd. Union Bank of Switzerland
as Co-Agents
Fleet National Bank
as Lead Manager
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[Exhibits B-1, B-2 and C have been
conformed to appear as delivered]
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TABLE OF CONTENTS
Page
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Section 1. Definitions and Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.03 Tranches, Currencies and Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2. Commitments, Loans, Notes and Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.01 Syndicated Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.02 Borrowings of Syndicated Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.03 Money Market Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.04 Changes of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.05 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.06 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.07 Several Obligations; Remedies Independent . . . . . . . . . . . . . . . . . . . . . . . . 33
2.08 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.09 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.10 Extension of Commitment Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.11 Increases in Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.12 Undertaking of COB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4. Payments; Pro Rata Treatment; Computations; Etc. . . . . . . . . . . . . . . . . . . . . . . 41
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.06 Non-Receipt of Funds by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . 44
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.02 Limitation on Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.03 Illegality; Agreed Alternative Currencies . . . . . . . . . . . . . . . . . . . . . . . . 49
5.04 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.06 U.S. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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5.07 Replacement of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.01 Conditions to Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.02 Initial and Subsequent Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.03 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.05 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.07 Use of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.10 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.11 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.13 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.01 Financial Statements Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.03 Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.04 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.05 Prohibition of Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.06 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.07 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.08 Regulatory Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.09 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.10 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 9. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 10. The Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.01 Appointment, Powers and Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.02 Reliance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.04 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.05 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.06 Non-Reliance on Administrative Agent and Other Lenders . . . . . . . . . . . . . . . . . 74
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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10.08 Resignation or Removal of Administrative Agent . . . . . . . . . . . . . . . . . . . . . 75
10.09 Co-Agents; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
11.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.06 Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.10 Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 81
11.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.12 Treatment of Certain Information; Confidentiality . . . . . . . . . . . . . . . . . . . . 82
11.13 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SCHEDULE 2.01 -- Commitments
SCHEDULE 7.03 -- Certain Litigation
EXHIBIT A-1 -- Form of Tranche A-($) Note
EXHIBIT A-2 -- Form of Tranche A-(MC) Note
EXHIBIT A-3 -- Form of Tranche B-($) Note
EXHIBIT A-4 -- Form of Tranche B-(MC) Note
EXHIBIT A-5 -- Form of Money Market Note
EXHIBIT B-1 -- Form of Opinion of McGuire, Woods, Battle & Boothe,
special counsel to the Borrowers
EXHIBIT B-2 -- Form of Opinion of John Finneran, Esq., counsel to
the Borrowers
EXHIBIT C -- Form of Opinion of Milbank, Tweed, Hadley & McCloy,
special New York counsel to Chase
EXHIBIT D -- Form of Notice of Borrowing of Syndicated Loans
EXHIBIT E -- Form of Money Market Quote Request
EXHIBIT F -- Form of Money Market Quote
EXHIBIT G -- Form of Confidentiality Agreement
EXHIBIT H -- Form of Assignment and Acceptance
EXHIBIT I -- Form of Commitment Increase Letter
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 25,
1996 among:
CAPITAL ONE FINANCIAL CORPORATION, a corporation organized
under the laws of the State of Delaware ("COFC");
CAPITAL ONE BANK, a bank organized under the laws of the
Commonwealth of Virginia ("COB");
CAPITAL ONE, F.S.B., a Federal savings bank organized under
the laws of the United States of America ("FSB"; each of COFC, COB and
FSB is herein referred to as a "Borrower" and, collectively, as the
"Borrowers");
each lender that is a signatory hereto identified under the
caption "LENDERS" on the signature pages hereto and each lender that
becomes a "Lender" after the date hereof pursuant to Section 11.06(b)
hereof (individually, a "Lender" and, collectively, the "Lenders");
and
THE CHASE MANHATTAN BANK, as agent for the Lenders (in such
capacity, together with its successors in such capacity, the
"Administrative Agent").
COFC, COB, the Lenders and the Administrative Agent are party
to a Credit Agreement dated as of November 17, 1995 (as modified and
supplemented and in effect immediately prior to the Restatement Effective Date
referred to below, the "Existing Credit Agreement"). The Borrowers have
requested that the Lenders and the Administrative Agent agree to amend and
restate the Existing Credit Agreement, and the Lenders and the Administrative
Agent are willing to amend and restate the Existing Credit Agreement, all as
provided herein.
Accordingly, the parties hereto agree to amend and restate the
Existing Credit Agreement so that, as amended and restated, it reads in its
entirety as provided herein.
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Administrative Agent's Account" shall mean (a) in respect of
(i) Dollars, the account of the Administrative Agent most recently designated
by the Administrative Agent for such purpose by notice to the Lenders, (ii)
Canadian Dollars, account number 219-442-1
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maintained by Chase with Royal Bank of Canada, Toronto, Ontario, Canada, (iii)
Pounds Sterling, account number 35718519 maintained by Chase with Midland Bank
PLC, London, England, (iv) French Francs, account number 00203595411FRF
maintained by Chase with Credit Commerciale de France, Paris, France, (v)
Deutschemarks, account number 1080002101 maintained by Chase with The Chase
Manhattan Bank, Frankfurt Branch, Frankfurt Germany, (vi) Japanese Yen, account
number 3401211523550 maintained by Chase with The Chase Manhattan Bank, Tokyo
Branch, Tokyo, Japan and (vii) Swiss Francs, account number PO 120487
maintained by Chase with Swiss Bank Corporation, Zurich, Switzerland or (b) any
other account in respect of any Alternative Currency as the Administrative
Agent shall designate in a notice to the Borrowers and the Lenders.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, with respect to any specified Person,
any other Person that directly or indirectly controls, or is under common
control with, or is controlled by, the specified Person. As used in this
definition, "control" (including, with its correlative meanings, "controlled
by" and "under common control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise). Notwithstanding the foregoing, (a) no
individual shall be an Affiliate of a specified Person solely by reason of his
or her being a director, officer or employee of such specified Person or any of
its Subsidiaries and (b) a Person and its Subsidiaries shall not be Affiliates
of one another.
"Agreed Alternative Currency" shall mean at any time any of
Canadian Dollars, French Francs, Deutschemarks, Japanese Yen, Pounds Sterling
and Swiss Francs, so long as at such time, (a) such currency is dealt with in
the London interbank deposit market, (b) such currency is freely transferable
and convertible into Dollars in the London foreign exchange market and (c) no
central bank or other governmental authorization in the country of issue of
such currency is required to permit use of such currency by any Lender for
making any Loan hereunder and/or to permit the relevant Borrower to borrow and
repay the principal thereof and to pay the interest thereon, unless such
authorization has been obtained.
"Alternative Currency" shall mean at any time any Agreed
Alternative Currency and any other currency (other than Dollars) so long as at
such time, (a) such currency is dealt with in the London interbank deposit
market, (b) such currency is freely transferable and convertible into Dollars
in the London foreign exchange market and (c) no central bank or other
governmental authorization in the country of issue of such currency is required
to permit use of such currency by any Lender for making any Loan hereunder
and/or to permit the relevant Borrower to borrow and repay the principal
thereof and to pay the interest thereon, unless such authorization has been
obtained.
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"Applicable Borrower" shall mean (a) with respect to any
Commitment, Loan or Note relating to Tranche A-($) or Tranche A-(MC), COB or
FSB and (b) with respect to any Commitment, Loan or Note relating to Tranche
B-($) or Tranche B-(MC), COFC, COB or FSB.
"Applicable Facility Fee Percentage", "Applicable Margin" with
respect to Eurocurrency Loans and "Applicable Utilization Fee Percentage" shall
mean, for any day, the respective rate per annum set forth in the table below
opposite the Rating Level prevailing on such day under the caption "Applicable
Facility Fee Percentage", "Applicable Margin" or "Applicable Utilization Fee
Percentage", as the case may be:
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Applicable
Applicable Facility Fee Applicable Utilization Fee
Rating Level Percentage Margin Percentage
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Rating Level 1 0.0850% 0.1650% 0.0500%
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Rating Level 2 0.1000% 0.2000% 0.0500%
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Rating Level 3 0.1250% 0.2250% 0.0500%
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Rating Level 4 0.1500% 0.2500% 0.1000%
- -----------------------------------------------------------------------------------------------
Rating Level 5 0.2000% 0.3750% 0.1000%
- -----------------------------------------------------------------------------------------------
Rating Level 6 0.3500% 0.7500% 0.2500%
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Each change in the Applicable Facility Fee Percentage, Applicable Margin with
respect to Eurocurrency Loans and the Applicable Utilization Fee Percentage
resulting from a change in the Debt Rating shall become effective on the date
of announcement or publication by the respective Rating Agencies of a change in
the Debt Rating or, in the absence of such announcement or publication, on the
effective date of such change. The "Applicable Margin" with respect to Base
Rate Loans shall mean, for any day, 0%.
With respect to any facility fee, utilization fee or interest
payable under Sections 2.05(a), 2.05(b) and 3.02 hereof:
(a) the Applicable Facility Fee Percentage, Applicable Margin
and Applicable Utilization Fee Percentage with respect to Tranche
A-($) or Tranche A-(MC) shall be computed solely by reference to the
Debt Rating of COB;
(b) the Applicable Facility Fee Percentage with respect to
Tranche B-($) or Tranche B-(MC) on any date of determination shall be
computed by reference to the Debt Rating of the Borrower that results
in the accrual on such day under Section 2.05(a) hereof of the
greatest amount of facility fee; and
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(c) with respect to any utilization fee or interest payable
by any Borrower under Tranche B-($) or Tranche B-(MC), the Applicable
Utilization Fee Percentage and Applicable Margin shall be computed by
reference to the Debt Rating of such Borrower.
"Applicable Lending Office" shall mean, for each Lender and
for each Type and Currency of Loan, the "Lending Office" of such Lender (or of
an affiliate of such Lender) designated for such Type and Currency 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
Administrative Agent and the Borrowers as the office by which its Loans of such
Type and Currency are to be made and maintained.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
Person whose consent is required by Section 11.06(b) hereof), and accepted by
the Administrative Agent, in the form of Exhibit H or any other form approved
by the Administrative Agent.
"Average", as used in Section 2.05 hereof with respect to the
aggregate outstanding principal amount of any Loans or the aggregate amount of
any Commitments, shall mean, for any Computation Period, the average aggregate
outstanding principal amount of such Loans or the average aggregate amount of
such Commitments, as the case may be, over such Computation Period (excluding
the last day of such Computation Period).
"Bank Regulatory Authority" shall mean the Board of Governors
of the Federal Reserve System, the Comptroller of the Currency, the Federal
Deposit Insurance Corporation and all other relevant bank regulatory
authorities (including, without limitation, relevant state bank regulatory
authorities).
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b)
the Prime Rate for such day. Each change in any interest rate provided for
herein based upon the Base Rate resulting from a change in the Base Rate shall
take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Syndicated Loans that bear
interest at rates based upon the Base Rate.
"Basic Documents" shall mean this Agreement and the Notes.
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"Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking 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.
"Business Day" shall mean any day (a) on which commercial
banks are not authorized or required to close in New York City, (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,
or the Interest Period for, a Eurocurrency Loan or a LIBOR Market Loan or a
notice by a Borrower with respect to any such borrowing, payment, prepayment or
Interest Period, that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market and (c) if such day relates to the
giving of notices or quotes in connection with a LIBOR Auction in respect of a
Loan denominated in an Alternative Currency or to a borrowing of, a payment or
prepayment of principal of or interest on, or the Interest Period for, a
Eurocurrency Loan or a LIBOR Market Loan denominated in an Alternative Currency
or a notice by a Borrower with respect to any such borrowing, payment,
prepayment or Interest Period, that is also a day on which commercial banks and
foreign exchange markets settle payments in the Principal Financial Center for
the Currency in which such Loan is denominated.
"Canadian Dollars" shall mean lawful money of Her Majesty in
Right of Canada.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Chase" shall mean The Chase Manhattan Bank, in its individual
capacity and not in its capacity as Administrative Agent.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"COFC Cumulative Equity Proceeds" shall mean, as of any date
of determination, the aggregate amount of all cash received on or prior to such
date of determination by COFC and its Subsidiaries in respect of any Equity
Issuance effected after September 30, 1996, net of reasonable expenses incurred
by COFC and its Subsidiaries in connection therewith.
"COFC Cumulative Net Income" shall mean, as of any date of
determination, the aggregate net operating income of COFC and its consolidated
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) for each fiscal quarter of
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COFC (a) commencing with the fiscal quarter ended December 31, 1996 and (b)
ending with the fiscal quarter most recently ended on or prior to such date of
determination; provided that COFC Cumulative Net Income shall be determined
exclusive of any fiscal quarter of COFC for which the net operating income of
COFC and its consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) is less than zero.
"Commitment" shall mean a Tranche A-($) Commitment, Tranche
A-(MC) Commitment, Tranche B-($) Commitment or Tranche B-(MC) Commitment.
"Commitment Increase Date" shall have the meaning assigned to
such term in Section 2.11(b) hereof.
"Commitment Increase Letter" shall have the meaning assigned
to such term in Section 2.11(b) hereof.
"Commitment Termination Date" shall mean a Tranche A-($)
Commitment Termination Date, Tranche A-(MC) Commitment Termination Date,
Tranche B-($) Commitment Termination Date or Tranche B-(MC) Commitment
Termination Date.
"Computation Period" shall mean, with respect to any
utilization fee payable under Section 2.05 hereof, (a) the period from and
including the date hereof to and including the first day on which such
utilization fee is payable under Section 2.05(c) hereof and (b) thereafter,
each period from and including the last day of the immediately preceding
Computation Period to and including the next succeeding day on which such
utilization fee is payable under Section 2.05(c) hereof.
"Currency" shall mean Dollars or any Alternative Currency.
"Debt Rating" shall mean, as of any date of determination
thereof and with respect to any Borrower, the ratings most recently published
by the Rating Agencies relating to the unsecured, unsupported senior long-term
debt obligations of such Borrower; provided that (a) the Debt Rating on any
date of determination with respect to FSB shall be deemed to be the Debt Rating
on such date applicable to COB, (b) if a rating is not at any time assigned by
a Rating Agency to the unsecured, unsupported senior long-term debt obligations
of COFC, the rating assigned to such obligations by such Rating Agency shall be
deemed to be one rating subcategory below the rating assigned by such Rating
Agency to the unsecured, unsupported senior long-term debt obligations of COB
and (c) if a rating is not at any time assigned by at least two Rating Agencies
to the unsecured, unsupported senior long-term debt obligations of COB, the
Debt Rating of COB will be deemed to fall in Rating Level 6.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
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"Defaulting Lender" shall have the meaning assigned to such
term in Section 11.04 hereof.
"Delinquency Ratio" shall mean, on any date and with respect
to any Borrower, the ratio of (a) all Past Due Receivables with respect to
such Borrower on such date to (b) the aggregate amount of all Managed
Receivables with respect to such Borrower on such date; provided that
"Delinquency Ratio" shall mean, on any date with respect to FSB, the ratio
(computed with respect to COB and FSB on a combined basis, but without any
intercompany eliminations) of (i) all Past Due Receivables of COB and FSB on
such date to (ii) the aggregate amount of all Managed Receivables of COB and
FSB on such date.
"Deutschemarks" shall mean lawful money of the Federal
Republic of Germany.
"Dollar Equivalent" shall mean, with respect to any Loan
denominated in an Alternative Currency, the amount of Dollars that would be
required to purchase the amount of the Alternative Currency of such Loan on the
date such Loan is requested (or, in the case of Money Market Loans, the date of
the related Money Market Quote Request) or (with respect to any determination
made under Section 2.01(f) hereof) on the date of any borrowing referred to in
said Section, based upon the arithmetic mean (rounded upwards, if necessary, to
the nearest 1/100 of 1%), as determined by the Administrative Agent, of the
spot selling rate at which the Reference Lenders offer to sell such Alternative
Currency for Dollars in the London foreign exchange market at approximately
11:00 a.m. London time for delivery two Business Days later (or, in the case of
any Loan denominated in Canadian Dollars, one Business Day later).
"Dollars" and "$" shall mean lawful money of the United States
of America.
"Double Leverage Ratio" shall mean, on any date, the ratio of
(a) the sum of (i) Intangibles with respect to COFC on such date plus (ii) the
aggregate investment of COFC on such date in the capital stock of its
Subsidiaries as reported pursuant to Section 8.01(a) or 8.01(b) hereof
(including COFC's interest in undistributed earnings of its Subsidiaries), to
(b) Net Worth on such date.
"Environmental Laws" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes into the indoor or outdoor environment, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes.
"Equity Issuance" shall mean (a) any issuance or sale by COFC
or any of its Subsidiaries of (i) any of its capital stock, (ii) any warrants
or options exercisable in respect of its capital stock (other than any warrants
or options issued to directors, officers or employees of COFC or any of its
Subsidiaries pursuant to employee benefit plans established in the ordinary
12
-8-
course of business and any capital stock of COFC issued upon the exercise of
such warrants or options) or (iii) any other security or instrument
representing an equity interest (or the right to obtain any equity interest) in
COFC or any of its Subsidiaries or (b) the receipt by COFC or any of its
Subsidiaries from any Person not a shareholder of COFC of any capital
contribution (whether or not evidenced by any equity security issued by the
recipient of such contribution); provided that Equity Issuance shall not
include (i) any such issuance or sale by any Subsidiary of COFC to COFC or any
Wholly Owned Subsidiary of COFC or (ii) any capital contribution by COFC or any
Wholly Owned Subsidiary of COFC to any Subsidiary of COFC.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean 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 of which any Borrower is a member and (ii)
solely for purposes of potential liability under Section 302(c)(11) of ERISA
and Section 412(c)(11) of the Code and the lien created under Section 302(f) of
ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which any Borrower is a member.
"Eurocurrency Loans" shall mean Syndicated Loans that bear
interest at rates based on rates referred to in the definition of "Fixed Base
Rate" in this Section 1.01.
"Eurocurrency Rate" shall mean, for any Eurocurrency Loan for
the Interest Period therefor, a rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal
to the Fixed Base Rate for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such
term in Section 9 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Excluded Representations" shall mean the representations and
warranties made in (a) the last sentence of Section 7.02 hereof and (b) Section
7.03 hereof (but only insofar as the representation and warranty in Section
7.03 hereof relates to proceedings that could have a Material Adverse Effect of
the type referred to clause (a) of the definition thereof in this Section 1.01,
but not of the type referred to in clause (b), (c), (d) or (e) of the
definition thereof in this Section 1.01).
"Existing Credit Agreement" shall mean the Credit Agreement
dated as of November 17, 1995 among COFC, COB, the lenders party thereto and
The Chase Manhattan Bank (as successor by merger to The Chase Manhattan Bank
(National Association)), as administrative agent.
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"FDIA" shall mean the Federal Deposit Insurance Act, as
amended from time to time.
"Federal Funds Rate" shall mean, 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 by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, 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 average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate
Loan denominated in any Currency for the Interest Period therefor, the rate for
deposits in such Currency for a period comparable to such Interest Period which
appears on Telerate Page 3740 (if such Currency is Australian Dollars, Canadian
Dollars, French Francs, Italian Lira or Spanish Pesetas) or on Telerate Page
3750 (otherwise) as of 11:00 a.m., London time, on the day that is two London
Banking Days preceding the first day of such Interest Period; provided that, if
such rate does not appear on the relevant Telerate Page, the "Fixed Base Rate"
shall be the arithmetic mean (rounded upwards, if necessary, to the nearest
1/16 of 1%), as determined by the Administrative Agent, of the rates per annum
quoted by the respective Reference Lenders at approximately 11:00 a.m. London
time (or as soon thereafter as practicable) on the day that is two London
Banking Days prior to the first day of such Interest Period for the offering by
the respective Reference Lenders to leading banks in the London interbank
market of deposits denominated in such Currency having a term comparable to
such Interest Period and in an amount comparable to the principal amount of
such Fixed Rate Loan to be made by the respective Reference Lenders. If any
Reference Lender is not participating in any Fixed Rate Loans during the
Interest Period therefor, the Fixed Base Rate for such Loans for such Interest
Period shall be determined by reference to the amount of such Loans that such
Reference Lender would have made or had outstanding had it been participating
in such Loan; provided that in the case of any LIBOR Market Loan, the Fixed
Base Rate for such Loan shall be determined with reference to deposits of
$25,000,000 (or its equivalent in any Alternative Currency). If any Reference
Lender does not timely furnish such information for determination of any Fixed
Base Rate, the Administrative Agent shall determine such Fixed Base Rate on the
basis of the information timely furnished by the remaining Reference Lenders.
"Fixed Rate Loans" shall mean Eurocurrency Loans and, for the
purposes of the definition of "Fixed Base Rate" in this Section 1.01 and in
Section 5 hereof, LIBOR Market Loans.
14
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"Foreign Currency Equivalent" shall mean, with respect to any
amount in Dollars, the amount of any Alternative Currency that could be
purchased with such amount of Dollars using the reciprocal of the foreign
exchange rate(s) specified in the definition of the term "Dollar Equivalent",
as determined by the Administrative Agent.
"French Francs" shall mean lawful money of the Republic of
France.
"FSB Borrowing Limit" shall mean (a) during the period from
the date hereof to but excluding the first anniversary hereof, $500,000,000 and
(b) thereafter, $750,000,000.
"FSB Facility Fee Amount" shall mean, with respect to Tranche
A-($) or Tranche A-(MC) on any day, the sum of (a) the facility fee accrued
under Section 2.05(a) hereof on such day in respect of a portion of the
Commitments under such Tranche equal to the aggregate principal amount of all
Loans made to FSB under such Tranche outstanding on such day plus (b) the
facility fee accrued under Section 2.05(a) hereof on such day in respect of a
portion of the Commitments under such Tranche equal to the lesser of (i) the
aggregate unused amount of Commitments under such Tranche on such day and (ii)
the FSB Borrowing Limit in effect on such day minus the aggregate principal
amount of all Loans made to FSB under all Tranches outstanding on such day.
"GAAP" shall mean generally accepted accounting principles in
the United States of America applied on a basis consistent with those that, in
accordance with the second sentence of Section 1.02(a) hereof, are to be used
in making the calculations for purposes of determining compliance with this
Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) Property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of such debtor's obligations or an agreement to assure a creditor
against loss, and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other similar instrument
for the benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of business. The terms "Guarantee" and
"Guaranteed" used as a verb shall have a correlative meaning.
"Indebtedness" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan,
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money) arising, and
accrued expenses incurred, in the ordinary course of business so long as such
trade accounts payable are payable within 90 days of
15
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the date the respective goods are delivered or the respective services are
rendered; (c) Indebtedness of others secured by a Lien on the Property of such
Person, whether or not the respective indebtedness so secured has been assumed
by such Person; (d) non-contingent obligations of such Person (and, for the
purposes of Sections 8.06 and 9(b) hereof, all contingent obligations of such
Person) in respect of letters of credit, bankers' acceptances or similar
instruments issued or accepted by banks and other financial institutions for
account of such Person; (e) Capital Lease Obligations of such Person; and (f)
Indebtedness of others Guaranteed by such Person.
"Insured Subsidiary" shall mean any insured depositary
institution (as defined in 12 U.S.C. Section 1813(c) (or any successor
provision), as amended, re-enacted or redesignated from time to time), that is
controlled (within the meaning of 12 U.S.C. Section 1841 (or any successor
provision), as amended, re-enacted or redesignated from time to time) by a
Borrower.
"Intangibles" shall mean, as at any date and with respect to
any Borrower, the aggregate amount (to the extent reflected in determining the
consolidated stockholders' equity of such Borrower and its consolidated
Subsidiaries) of (a) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business made
within 12 months after the acquisition of such business) subsequent to
September 30, 1996 in the book value of any asset by such Borrower or any of
its consolidated Subsidiaries, (b) all Investments in unconsolidated
Subsidiaries and all equity investments in Persons that are not Subsidiaries
and (c) all unamortized debt discount and expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry-forwards, copyrights, organization or
developmental expenses and other intangible assets.
"Interest Period" shall mean:
(a) with respect to any Eurocurrency Loan, each period
commencing on the date such Eurocurrency Loan is made and ending on
the numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as a Borrower may select as provided in
Section 4.05 hereof, 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;
(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
not less than seven days thereafter, as a Borrower may select as
provided in Section 2.03(b) hereof;
(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 the first, second, third or sixth
calendar month thereafter, as a Borrower may select as provided in
Section 2.03(b) hereof, except that each Interest Period that
commences on the last Business Day of a calendar month (or any day for
which there is no numerically
16
-12-
corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar
month; and
(d) with respect to any Base Rate Loan, the period commencing
on the date such Base Rate Loan is made and ending on the earlier of
the first Quarterly Date thereafter and the Commitment Termination
Date for the Tranche under which such Loan is made.
Notwithstanding the foregoing: (i) if any Interest Period for any Loan would
otherwise end after the Commitment Termination Date for the Tranche under which
such Loan is made, such Interest Period shall end on such Commitment
Termination Date; (ii) each Interest Period that would otherwise end on a day
that is not a Business Day shall end on the next succeeding Business Day (or,
in the case of an Interest Period for a Eurocurrency 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); (iii) except as provided
in clause (iv) below, no Interest Period for any Loan (other than a Base Rate
Loan or a Set Rate Loan) shall have a duration of less than one month and, if
the Interest Period for any Eurocurrency or LIBOR Market Loan would otherwise
be a shorter period, such Loan shall not be available hereunder for such
period; and (iv) if each Lender shall have notified the Administrative Agent
that the requested Interest Period is available (but subject to the foregoing
clauses (i) and (ii)), a Eurocurrency Loan or LIBOR Market Loan may be made
available for a specified Interest Period of less than one month or for an
Interest Period of nine or 12 months; provided that no Loan shall be made to
FSB with an Interest Period in excess of six months.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person), but excluding any such
advance, loan or extension of credit having a term not exceeding 90 days
arising in connection with the sale of inventory or supplies by such Person in
the ordinary course of business; or (c) the entering into of any Guarantee of,
or other contingent obligation with respect to, Indebtedness or other liability
of any other Person and (without duplication) any amount committed to be
advanced, lent or extended to such Person.
"Japanese Yen" shall mean lawful money of Japan.
"Leverage Ratio" shall mean, on any date and with respect to
any Borrower, the ratio of (a) the sum (determined for such Borrower and its
consolidated Subsidiaries on a consolidated basis without duplication in
accordance with GAAP) of (i) the aggregate amount of Indebtedness outstanding
on such date minus (ii) the aggregate amount of all on-balance sheet
17
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credit card loans held for securitization on such date to (b) Tangible Net
Worth with respect to such Borrower on such date.
"LIBO Margin" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(C) hereof.
"LIBOR Auction" shall mean a solicitation of Money Market
Quotes setting forth LIBO Margins based on the Eurocurrency Rate pursuant to
Section 2.03 hereof.
"LIBOR Market Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of Eurocurrency Rates
pursuant to a LIBOR Auction.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect
of such Property. For purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"Loans" shall mean Syndicated Loans and Money Market Loans.
"Local Time" shall mean, with respect to any Loan denominated
in or any payment to be made in any Currency, the local time in the Principal
Financial Center for the Currency in which such Loan is denominated or such
payment is to be made.
"London Banking Day" shall mean any day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) in London, England.
"Majority Lenders" shall mean, subject to the last paragraph
of Section 11.04 hereof, Lenders having more than 50% of the aggregate amount
of the Commitments or, if the Commitments shall have terminated, Lenders
holding more than 50% of the aggregate unpaid principal amount of the Loans.
"Majority Tranche Lenders" with respect to any Tranche shall
mean, subject to the last paragraph of Section 11.04 hereof, Lenders having
more than 50% of the aggregate amount of the Commitments under such Tranche or,
if the Commitments under such Tranche shall have terminated, Lenders holding
more than 50% of the aggregate unpaid principal amount of the Loans under such
Tranche.
"Majority Tranche B Lenders" shall mean the Majority Tranche
Lenders with respect to Tranche B-($) and Majority Tranche Lenders with respect
to Tranche B-(MC).
18
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"Managed Receivables" shall mean, on any date and with respect
to any Borrower, the sum for such Borrower and its consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP) of (a) all on-balance sheet credit card loans and other finance
receivables plus (b) all on-balance sheet credit card loans and other finance
receivables held for securitization plus (c) all securitized credit card loans
and other finance receivables; provided that, as the term "Managed Receivables"
is used in the definition of "Tier 1 Capital to Managed Receivables Ratio",
clauses (a), (b) and (c) above shall be determined exclusive of securitized
non-revolving finance receivables.
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations G, T, U and X.
"Material Adverse Effect" shall mean, with respect to a
Borrower, a material adverse effect on (a) the Property, business, operations,
financial condition, prospects or capitalization of such Borrower and its
Subsidiaries taken as a whole, (b) the ability of such Borrower to perform its
obligations under the Basic Documents, (c) the validity or enforceability of
the obligations of such Borrower under the Basic Documents, (d) the rights and
remedies of the Lenders and the Administrative Agent against such Borrower or
(e) the timely payment of the principal of or interest on the Loans or other
amounts payable by such Borrower in connection therewith.
"Money Market Borrowing" shall have the meaning assigned to
such term in Section 2.03(b) hereof.
"Money Market Loan Limit" shall have the meaning assigned to
such term in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean the loans provided for by
Section 2.03 hereof.
"Money Market Notes" shall mean the promissory notes provided
for by Section 2.08(e) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Money Market Quote" shall mean an offer in accordance with
Section 2.03(c) hereof by a Lender to make a Money Market Loan with one single
specified interest rate.
"Money Market Quote Request" shall have the meaning assigned
to such term in Section 2.03(b) hereof.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by any
Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA.
19
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"Net Worth" shall mean, on any date , the consolidated
stockholders' equity of COFC and its consolidated Subsidiaries, all determined
as of such date on a consolidated basis without duplication in accordance with
GAAP.
"Notes" shall mean the Syndicated Notes and the Money Market
Notes.
"Past-Due Receivables" shall mean, on any date with respect to
any Borrower, the sum (determined with respect to such Borrower and its
Subsidiaries on a consolidated basis without duplication in accordance with
GAAP) of (a) all Managed Receivables the minimum payments on which are at least
90 days overdue on such date plus (b) all other non-performing assets; provided
that, Managed Receivables that are credit card loans, whether or not at least
90 days overdue, shall not constitute "Past-Due Receivables" to the extent of
any cash balance of the account debtor on such loan on deposit with the
creditor (but only to the extent such creditor is entitled under an agreement
governing such credit card loan to set-off such cash balances against the
obligations of the account debtor under such loan and to the extent such cash
balances are not subject to any other set-off or deduction by such creditor or
any of its affiliates against a matured obligation owing by such debtor).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, limited liability company, joint venture,
trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by any Borrower or any ERISA Affiliate and that is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean a rate per annum equal to 2%
plus the Base Rate as in effect from time to time plus the Applicable Margin
for Base Rate Loans, provided that, with respect to principal of a Eurocurrency
Loan or a Money Market Loan that shall become due (whether at stated maturity,
by acceleration, by optional or mandatory prepayment or otherwise) on a day
other than the last day of the Interest Period therefor, the "Post-Default
Rate" shall be, for the period from and including such due date to but
excluding the last day of such Interest Period, 2% plus the interest rate for
such Loan as provided in Section 3.02 hereof and, thereafter, the rate provided
for above in this definition.
"Pounds Sterling" shall mean lawful money of England.
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending
rate.
20
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"Principal Financial Center" shall mean (a) in the case of
each Currency identified in Section 1.4(a)(i)(A) of the 1991 ISDA Definitions
published by the International Swaps and Derivatives Association, Inc., the
financial center identified in said Section opposite such Currency and (b) in
the case of any other Currency, the principal financial center of the country
that issues such Currency, as determined by the Administrative Agent.
"Principal Office" shall mean the principal office of Chase,
located on the date hereof at 270 Park Avenue, New York, New York 10017.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" shall mean the last Business Day of March,
June, September and December in each year, the first of which shall be the
first such day after the date hereof.
"Rating Agencies" shall mean Moody's Investors Service, Inc.,
Standard & Poor's Ratings Services and Fitch Investors Service, L.P. or, in
each case, any successor nationally recognized statistical rating organization.
"Rating Levels" shall mean, on any date of determination, (a)
Rating Level 1 if the Debt Rating by at least two Rating Agencies is at least
equal to "A3" or higher or "A-" or higher, (b) Rating Level 2 if the Debt
Rating by at least two Rating Agencies is at least equal to "Baa1" or "BBB+",
but does not fall within Rating Level 1, (c) Rating Level 3 if the Debt Rating
by at least two Rating Agencies is at least equal to "Baa2" or "BBB", but does
not fall within Rating Level 1 or Rating Level 2, (d) Rating Level 4 if the
Debt Rating by at least two Rating Agencies is at least equal to "Baa3" or
"BBB-", but does not fall within Rating Level 1, Rating Level 2 or Rating Level
3, (e) Rating Level 5 if the Debt Rating by at least two Rating Agencies is at
least equal to "Ba1" or "BB+", but does not fall within Rating Level 1, Rating
Level 2, Rating Level 3 or Rating Level 4, and (f) if none of the foregoing is
applicable, Rating Level 6. If the Debt Rating of any Rating Agency is below
the Debt Rating of each of the two other Rating Agencies, the "Rating Level"
will be determined without regard to the Debt Rating of such Rating Agency.
"Reference Lenders" shall mean Chase, Morgan Guaranty Trust
Company of New York and NationsBank, N.A. (or their respective Applicable
Lending Offices, as the case may be).
"Regulations A, D, G, T, U and X" shall mean, respectively,
Regulations A, D, G, T, U and X of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and supplemented
and in effect from time to time.
"Regulatory Change" shall mean, with respect to any Lender,
any change after the date hereof in Federal, state or foreign law or
regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request
21
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applying to a class of banks 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.
"Requisite Lenders" shall mean Majority Tranche Lenders with
respect to Tranche A-($), Majority Tranche Lenders with respect to Tranche
A-(MC), Majority Tranche Lenders with respect to Tranche B-($) and Majority
Tranche Lenders with respect to Tranche B-(MC).
"Reserve Requirement" shall mean, for the Interest Period for
any Eurocurrency Loan or LIBOR Market Loan, the average maximum rate at which
reserves (including, without limitation, any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period
under Regulation D by member banks of the Federal Reserve System in New York
City with deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the
effect of the foregoing, the Reserve Requirement shall include any other
reserves required to be maintained by such member banks by reason of any
Regulatory Change with respect to (i) any category of liabilities that includes
deposits by reference to which the Fixed Base Rate for Eurocurrency Loans or
LIBOR Market Loans (as the case may be) is to be determined as provided in the
definition of "Fixed Base Rate" in this Section 1.01 or (ii) any category of
extensions of credit or other assets that includes Eurocurrency Loans or LIBOR
Market Loans.
"Restatement Effective Date" shall mean the first date on
which all of the conditions set forth in Section 6.01 hereof shall have been
satisfied or waived by the Lenders and the Administrative Agent.
"Risk Adjusted Assets" shall mean, on any date and with
respect to any Borrower, the amount, for such Borrower and its consolidated
Subsidiaries (determined on a consolidated basis) on such date, of "weighted
risk assets", within the meaning given to such term in the Capital Adequacy
Guidelines for State Member Banks published by the Board of Governors of the
Federal Reserve System (12 C.F.R. Part 208, Appendix A, as amended, modified
and supplemented and in effect from time to time or any replacement thereof).
"SEC" shall mean the Securities and Exchange Commission, or
any successor agency charged with the administration and enforcement of the
Securities Act and the Exchange Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Set Rate" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(D) hereof.
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"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Set Rates pursuant to Section 2.03 hereof.
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Set Rates pursuant to a Set Rate
Auction.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
Voting Securities issued by such corporation, partnership or other entity is at
the time directly or indirectly owned or controlled by such Person or one or
more Subsidiaries of such Person or by such Person and one or more Subsidiaries
of such Person.
"Swap Agreement" shall have the meaning given to such term in
Section 101(53B) of the Bankruptcy Code (as in effect on the date hereof).
"Swiss Francs" shall mean lawful money of Switzerland.
"Syndicated Loans" shall mean the Tranche A-($) Loans, Tranche
A-(MC) Loans, Tranche B-($) Loans and Tranche B-(MC) Loans.
"Syndicated Notes" shall mean the Tranche A-($) Notes, Tranche
A-(MC) Notes, Tranche B-($) Notes and Tranche B-(MC) Notes.
"Tangible Net Worth" shall mean, on any date and with respect
to any Borrower, the consolidated stockholders' equity of such Borrower and its
consolidated Subsidiaries less Intangibles of such Borrower and its
consolidated Subsidiaries, all determined as of such date on a consolidated
basis without duplication in accordance with GAAP.
"Tier 1 Capital" shall mean, on any date and with respect to
any Borrower, the amount, for such Borrower and its consolidated Subsidiaries
(determined on a consolidated basis) on such date, of "Tier 1 capital", within
the meaning given to such term in the Capital Adequacy Guidelines for State
Member Banks published by the Board of Governors of the Federal Reserve System
(12 C.F.R. Part 208, Appendix A, as amended, modified and supplemented and in
effect from time to time or any replacement thereof).
"Tier 1 Capital to Managed Receivables Ratio" shall mean, on
any date and with respect to any Borrower, the ratio of (a) Tier 1 Capital
(determined, for the purposes of this definition, in accordance with GAAP) with
respect to such Borrower on such date to (b) Managed Receivables with respect
to such Borrower on such date.
"Tier 1 Capital to Risk Adjusted Assets Ratio" shall mean, on
any date and with respect to COB or FSB, the ratio of (a) Tier 1 Capital with
respect to such Borrower on such date to (b) Risk Adjusted Assets with respect
to such Borrower on such date.
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"Tier 1 Leverage Ratio" shall mean, on any date and with
respect to COB or FSB, the ratio of (a) Tier 1 Capital with respect to such
Borrower on such date to (b) Total Assets with respect to such Borrower on such
date.
"Total Assets" shall mean, on any date and with respect to any
Borrower, the amount, for such Borrower and its consolidated Subsidiaries
(determined on a consolidated basis) on such date, of "average total
consolidated assets", within the meaning given to such term in the Capital
Adequacy Guidelines for State Member Banks published by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 208, Appendix A, as amended,
modified and supplemented and in effect from time to time or any replacement
thereof).
"Total Capital" shall mean, on any date and with respect to
any Borrower, the amount, for such Borrower and its consolidated Subsidiaries
(determined on a consolidated basis) on such date, of "total capital", within
the meaning given to such term in the Capital Adequacy Guidelines for State
Member Banks published by the Board of Governors of the Federal Reserve System
(12 C.F.R. Part 208, Appendix A, as amended, modified and supplemented and in
effect from time to time or any replacement thereof).
"Total Capital to Risk Adjusted Assets Ratio" shall mean, on
any date and with respect to COB or FSB, the ratio of (a) Total Capital with
respect to such Borrower on such date to (b) Risk Adjusted Assets with respect
to such Borrower on such date.
"Tranche" shall mean Tranche A-($), Tranche A-(MC), Tranche
B-($) or Tranche B-(MC).
"Tranche A-($)" shall refer to a Tranche A-($) Commitment,
Tranche A-($) Commitment Termination Date, Tranche A-($) Lender, Tranche A-($)
Loan or Tranche A-($) Note or a Money Market Loan made by a Tranche A-($)
Lender.
"Tranche A-($) Commitment" shall mean, as to each Tranche
A-($) Lender, the obligation of such Lender to make Syndicated Loans pursuant
to Section 2.01(a) hereof, as the same may be reduced or increased at any time
or from time to time pursuant to Section 2.04, 2.11 or 11.06 hereof. The
initial amount of each such Lender's Tranche A-($) Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed such Commitment, as applicable.
"Tranche A-($) Commitment Termination Date" shall mean
November 24, 2000, subject to extension as provided in Section 2.10 hereof;
provided that if any such day is not a Business Day, then the Tranche A-($)
Commitment Termination Date shall be the immediately preceding Business Day.
"Tranche A-($) Lender" shall mean a Lender having a Tranche
A-($) Commitment or holding Tranche A-($) Loans.
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"Tranche A-($) Loans" shall mean the loans provided for by
Section 2.01(a) hereof, which may be Base Rate Loans and/or Eurocurrency Loans.
"Tranche A-($) Notes" shall mean the promissory notes provided
for by Section 2.08(a) hereof and all promissory notes delivered in
substitution or exchange thereof, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Tranche A-(MC)" shall refer to a Tranche A-(MC) Commitment,
Tranche A-(MC) Commitment Termination Date, Tranche A-(MC) Lender, Tranche
A-(MC) Loan or Tranche A-(MC) Note or a Money Market Loan made by a Tranche
A-(MC) Lender.
"Tranche A-(MC) Commitment" shall mean, as to each Tranche
A-(MC) Lender, the obligation of such Lender to make Syndicated Loans pursuant
to Section 2.01(b) hereof, as the same may be reduced or increased at any time
or from time to time pursuant to Section 2.04, 2.11 or 11.06 hereof. The
initial amount of each such Lender's Tranche A-(MC) Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed such Commitment, as applicable.
"Tranche A-(MC) Commitment Termination Date" shall mean
November 24, 2000, subject to extension as provided in Section 2.10 hereof;
provided that if any such day is not a Business Day, then the Tranche A-(MC)
Commitment Termination Date shall be the immediately preceding Business Day.
"Tranche A-(MC) Lender" shall mean a Lender having a Tranche
A-(MC) Commitment or holding Tranche A-(MC) Loans.
"Tranche A-(MC) Loans" shall mean the loans provided for by
Section 2.01(b) hereof, which may be Base Rate Loans and/or Eurocurrency Loans.
"Tranche A-(MC) Notes" shall mean the promissory notes
provided for by Section 2.08(b) hereof and all promissory notes delivered in
substitution or exchange thereof, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Tranche B-($)" shall refer to a Tranche B-($) Commitment,
Tranche B-($) Commitment Termination Date, Tranche B-($) Lender, Tranche B-($)
Loan or Tranche B-($) Note or a Money Market Loan made by a Tranche B-($)
Lender.
"Tranche B-($) Commitment" shall mean, as to each Tranche
B-($) Lender, the obligation of such Lender to make Syndicated Loans pursuant
to Section 2.01(c) hereof, as the same may be reduced or increased at any time
or from time to time pursuant to Section 2.04, 2.11 or 11.06 hereof. The
initial amount of each such Lender's Tranche B-($) Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed such Commitment, as applicable.
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"Tranche B-($) Commitment Termination Date" shall mean
November 24, 2000, subject to extension as provided in Section 2.10 hereof;
provided that if any such day is not a Business Day, then the Tranche B-($)
Commitment Termination Date shall be the immediately preceding Business Day.
"Tranche B-($) Lender" shall mean a Lender having a Tranche
B-($) Commitment or holding Tranche B-($) Loans.
"Tranche B-($) Loans" shall mean the loans provided for by
Section 2.01(c) hereof, which may be Base Rate Loans and/or Eurocurrency Loans.
"Tranche B-($) Notes" shall mean the promissory notes provided
for by Section 2.08(c) hereof and all promissory notes delivered in
substitution or exchange thereof, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Tranche B-(MC)" shall refer to a Tranche B-(MC) Commitment,
Tranche B-(MC) Commitment Termination Date, Tranche B-(MC) Lender, Tranche
B-(MC) Loan or Tranche B-(MC) Note or a Money Market Loan made by a Tranche
B-(MC) Lender.
"Tranche B-(MC) Commitment" shall mean, as to each Tranche
B-(MC) Lender, the obligation of such Lender to make Syndicated Loans pursuant
to Section 2.01(d) hereof, as the same may be reduced or increased at any time
or from time to time pursuant to Section 2.04, 2.11 or 11.06 hereof. The
initial amount of each such Lender's Tranche B-(MC) Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed such Commitment, as applicable.
"Tranche B-(MC) Commitment Termination Date" shall mean
November 24, 2000, subject to extension as provided in Section 2.10 hereof;
provided that if any such day is not a Business Day, then the Tranche B-(MC)
Commitment Termination Date shall be the immediately preceding Business Day.
"Tranche B-(MC) Lender" shall mean a Lender having a Tranche
B-(MC) Commitment or holding Tranche B-(MC) Loans.
"Tranche B-(MC) Loans" shall mean the loans provided for by
Section 2.01(d) hereof, which may be Base Rate Loans and/or Eurocurrency Loans.
"Tranche B-(MC) Notes" shall mean the promissory notes
provided for by Section 2.08(d) hereof and all promissory notes delivered in
substitution or exchange thereof, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Type" shall have the meaning assigned to such term in Section
1.03 hereof.
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"Voting Securities" shall mean, with respect to any Person,
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such Person (irrespective of whether or not at
the time securities or other ownership interests of any other class or classes
of such Person shall have or might have voting power by reason of the happening
of any contingency).
"Wholly Owned Subsidiary" shall mean, with respect to any
Person, any corporation, partnership or other entity of which all of the Voting
Securities issued by such corporation, partnership or other entity (other than,
in the case of a corporation, directors' qualifying shares) are directly or
indirectly owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with generally accepted accounting
principles in the United States of America applied on a basis consistent with
those used in the preparation of the latest financial statements furnished to
the Lenders hereunder (which, prior to the delivery of the first financial
statements under Section 8.01(a) or (b) hereof, shall mean the audited
financial statements as at December 31, 1995 referred to in Section 7.02
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles in the United States of
America applied on a basis consistent with those used in the preparation of the
latest annual or quarterly financial statements furnished to the Lenders
pursuant to Section 8.01 hereof (or, prior to the delivery of the first
financial statements under Section 8.01(a) or (b) hereof, used in the
preparation of the audited financial statements as at December 31, 1995
referred to in Section 7.02 hereof) unless (i) any Borrower shall have objected
to determining such compliance on such basis at the time of delivery of such
financial statements or (ii) the Majority Lenders shall so object in writing
within 30 days after delivery of such financial statements, in either of which
events such calculations shall be made on a basis consistent with those used in
the preparation of the latest financial statements as to which such objection
shall not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 8.01(a) or (b) hereof, shall mean
the audited financial statements referred to in Section 7.02 hereof).
Notwithstanding the foregoing, the accounting terms "Risk-Adjusted Assets",
"Tier 1 Capital", "Total Assets" and "Total Capital" defined in Section 1.01
hereof shall be interpreted by reference to the statutes or regulations
referred to in said definitions, as such statutes or regulations are amended,
modified, supplemented or replaced and in effect from time to time.
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(b) COFC shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles in the United States of America
employed in the preparation of such statement and the application of accounting
principles in the United States of America employed in the preparation of the
next preceding annual or quarterly financial statements as to which no
objection has been made in accordance with the last sentence of subsection (a)
above and (ii) reasonable estimates of the difference between such statements
arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8 hereof, no Borrower will
change the last day of its fiscal year from December 31 of each year, or the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30 and September 30 of each year, respectively.
1.03 Tranches, Currencies and Types of Loans. Loans
hereunder are distinguished by "Tranche", by "Currency" and by "Type".
The "Tranche" of a Loan refers to whether a Syndicated Loan is a Tranche A-($)
Loan, Tranche A-(MC) Loan, Tranche B-($) Loan or Tranche B-(MC) Loan. The
"Currency" of a Loan refers to the Currency in which such Loan is denominated.
The "Type" of a Loan refers to whether such Loan is a Base Rate Loan, a
Eurocurrency Loan, a Set Rate Loan or a LIBOR Market Loan, each of which
constitutes a Type. Loans may be identified by one or more of their Tranche,
Currency and Type.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Syndicated Loans.
(a) Each Tranche A-($) Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to either Applicable Borrower
in Dollars during the period from and including the date hereof to but not
including the Tranche A-($) Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of the Tranche A-($) Commitment of such Tranche A-($) Lender as in effect from
time to time. Subject to the terms and conditions of this Agreement, during
such period either Applicable Borrower may borrow, repay and reborrow the
amount of the Tranche A-($) Commitments; provided that (i) no more than 10
separate Interest Periods in respect of Eurocurrency Loans that are Tranche
A-($) Loans may be outstanding at any one time, (ii) no more than 20 different
Interest Periods for both Syndicated Loans and Money Market Loans may be
outstanding under Tranche A-($) at the same time (for which purpose (x)
Interest Periods described 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 and (y) Loans denominated in different Currencies
shall be deemed to have different Interest Periods) and (iii) the aggregate
principal amount of Loans under all Tranches made to FSB shall not exceed the
FSB Borrowing Limit.
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(b) Each Tranche A-(MC) Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to either Applicable Borrower
in Dollars or any Agreed Alternative Currency during the period from and
including the date hereof to but not including the Tranche A-(MC) Commitment
Termination Date in an aggregate principal amount at any one time outstanding
up to but not exceeding the amount of the Tranche A-(MC) Commitment of such
Tranche A-(MC) Lender as in effect from time to time. Subject to the terms and
conditions of this Agreement, during such period either Applicable Borrower may
borrow, repay and reborrow the amount of the Tranche A-(MC) Commitments;
provided that (i) no more than eight separate Interest Periods in respect of
Eurocurrency Loans that are Tranche A-(MC) Loans may be outstanding at any one
time, (ii) no more than 20 different Interest Periods for both Syndicated Loans
and Money Market Loans may be outstanding under Tranche A-(MC) at the same time
(for which purpose (x) Interest Periods described 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 and (y) Loans denominated in
different Currencies shall be deemed to have different Interest Periods), (iii)
no Tranche A-(MC) Loan denominated in Dollars shall be made on any date unless
the aggregate principal amount of all Loans outstanding on such date made by
Tranche A-($) Lenders equals the aggregate amount of all Tranche A-($)
Commitments, (iv) no Tranche A-(MC) Loan denominated in an Agreed Alternative
Currency may be outstanding as a Base Rate Loan and (v) the aggregate principal
amount of Loans under all Tranches made to FSB shall not exceed the FSB
Borrowing Limit.
(c) Each Tranche B-($) Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to any Applicable Borrower in
Dollars during the period from and including the date hereof to but not
including the Tranche B-($) Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of the Tranche B-($) Commitment of such Tranche B-($) Lender as in effect from
time to time. Subject to the terms and conditions of this Agreement, during
such period any Applicable Borrower may borrow, repay and reborrow the amount
of the Tranche B-($) Commitments; provided that (i) no more than eight separate
Interest Periods in respect of Eurocurrency Loans that are Tranche B-($) Loans
may be outstanding at any one time, (ii) no more than 20 different Interest
Periods for both Syndicated Loans and Money Market Loans may be outstanding
under Tranche B-($) at the same time (for which purpose (x) Interest Periods
described in different lettered clauses of the definition of the term "Interest
Period" shall be deemed to be different Interest Periods even if they are
coterminous and (y) Loans denominated in different Currencies shall be deemed
to have different Interest Periods) and (iii) the aggregate principal amount of
Loans under all Tranches borrowed by FSB shall not exceed the FSB Borrowing
Limit.
(d) Each Tranche B-(MC) Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to any Applicable Borrower in
Dollars or any Agreed Alternative Currency during the period from and including
the date hereof to but not including the Tranche B-(MC) Commitment Termination
Date in an aggregate principal amount at any one time outstanding up to but not
exceeding the amount of the Tranche B-(MC) Commitment of such Tranche B-(MC)
Lender as in effect from time to time. Subject to the terms and conditions of
this Agreement, during such period any Applicable Borrower may borrow, repay
and reborrow
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the amount of the Tranche B-(MC) Commitments; provided that (i) no more than
eight separate Interest Periods in respect of Eurocurrency Loans that are
Tranche B-(MC) Loans may be outstanding at any one time, (ii) no more than 20
different Interest Periods for both Syndicated Loans and Money Market Loans may
be outstanding under Tranche B-(MC) at the same time (for which purpose (x)
Interest Periods described in different lettered clauses of the definition of
the term "Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous and (y) Loans denominated in different Currencies
shall be deemed to have different Interest Periods), (iii) no Tranche B-(MC)
Loan denominated in Dollars shall be made on any date unless the aggregate
principal amount of all Loans outstanding on such date made by Tranche B-($)
Lenders equals the aggregate amount of all Tranche B-($) Commitments, (iv) no
Tranche B-(MC) Loan denominated in an Agreed Alternative Currency may be
outstanding as a Base Rate Loan and (v) the aggregate principal amount of Loans
under all Tranches borrowed by FSB shall not exceed the FSB Borrowing Limit.
(e) No Syndicated Loan shall be made under any Tranche if,
after giving effect to such Loan, the aggregate principal amount of all such
Syndicated Loans, together with the aggregate amount of Money Market Loans made
under such Tranche, would exceed the aggregate amount of Commitments then in
effect under such Tranche.
(f) For purposes of determining whether the amount of any
borrowing of Loans under any Tranche, together with all other Loans then
outstanding under such Tranche, would exceed the aggregate amount of
Commitments under such Tranche (including, without limitation, for the purposes
of Sections 2.01(a), 2.01(b), 2.01(c), 2.01(d), 2.01(e) and 2.03(a) hereof),
the amount of any Loan outstanding under such Tranche that is denominated in an
Alternative Currency shall be deemed to be the Dollar Equivalent (determined as
of the date of such borrowing of Loans under such Tranche) of the amount in the
Alternative Currency of such Loan. For purposes of determining the unused
portion of the Commitments under any Tranche under Section 2.04(b) hereof, the
amount of any Loan outstanding under such Tranche that is denominated in an
Alternative Currency shall be deemed to be the Dollar Equivalent (determined as
of the date of determination of the unused portion of the Commitments under
such Tranche) of the amount in the Alternative Currency of such Loan. For
purposes of calculating the amount of any utilization fee payable under any
Tranche under Section 2.05(b) hereof, the amount of any Loan outstanding on any
date that is denominated in an Alternative Currency shall be deemed to be the
Dollar Equivalent (determined as of the date of the most recent borrowing of
Loans under such Tranche) of the amount in the Alternative Currency of such
Loan.
(g) Until repaid as provided in Section 3.01 of the Existing
Credit Agreement, the Tranche C Loans (as defined in the Existing Credit
Agreement) referred to in Section 6.01(g) hereof (i) will be deemed to be
Tranche B-($) Loans for the purposes of the limitations and computations
provided for in Sections 2.01(c), 2.01(e), 2.03(a), 2.04(b) and 2.05(b) hereof,
(ii) will be deemed to be Loans for purposes of Section 9 hereof and (iii) will
otherwise be subject to the terms and conditions of the Existing Credit
Agreement.
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2.02 Borrowings of Syndicated Loans. The Applicable Borrower
shall give the Administrative Agent notice of each borrowing of Syndicated
Loans as provided in Section 4.05 hereof. Not later than 1:00 p.m. Local Time
on the date specified for each borrowing of Syndicated Loans, each Lender under
the relevant Tranche shall make available the amount of the Syndicated Loan or
Loans under such Tranche to be made by it on such date to the Administrative
Agent, at the Administrative Agent's Account for the Currency in which such
Loan is denominated, in immediately available funds, for account of the
Applicable Borrower. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, be made available to the
Applicable Borrower by depositing the same, in immediately available funds, in
an account of the Applicable Borrower designated by the Applicable Borrower.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans under any
Tranche, at any time prior to the Commitment Termination Date for such Tranche
an Applicable Borrower may, as set forth in this Section 2.03, request the
Lenders under such Tranche to make offers to make Money Market Loans under such
Tranche to such Borrower in Dollars or in any Alternative Currency. The
Lenders under such Tranche may, but shall have no obligation to, make such
offers and the Applicable Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.03. Money Market
Loans may be LIBOR Market Loans or Set Rate Loans (each a "Type" of Money
Market Loan), provided that:
(i) there may be no more than 20 different Interest Periods
for both Syndicated Loans and Money Market Loans outstanding under any
Tranche at the same time (for which purpose (x) Interest Periods
described 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 and (y) Loans denominated in different
Currencies shall be deemed to have different Interest Periods); and
(ii) the aggregate principal amount of all Money Market Loans
under such Tranche, together with the aggregate principal amount of
all Syndicated Loans under such Tranche, at any one time outstanding
shall not exceed the aggregate amount of the Commitments under such
Tranche then in effect.
(b) When the Applicable Borrower wishes to request offers to
make Money Market Loans, it shall give the Administrative Agent (which shall
promptly notify the Lenders) notice (a "Money Market Quote Request") so as to
be received no later than 11:00 a.m. New York time on (x) the fifth Business
Day prior to the date of borrowing proposed therein, in the case of a LIBOR
Auction, (y) the fourth Business Day prior to the date of borrowing proposed
therein in the case of a Set Rate Auction in respect of Money Market Loans
denominated in an Alternative Currency or (z) the Business Day next preceding
the date of borrowing proposed therein in the case of a Set Rate Auction in
respect of Money Market Loans denominated in Dollars. The Applicable Borrower
may request offers to make Money Market Loans for up to
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three different Interest Periods in a single notice (for which purpose (x)
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 and (y) Money Market Loans denominated in different Currencies
shall be deemed to have different Interest Periods); provided that the request
for each separate Interest Period or Currency shall be deemed to be a separate
Money Market Quote Request for a separate borrowing (a "Money Market
Borrowing"). Each such notice shall be substantially in the form of Exhibit E
hereto and shall specify as to each Money Market Borrowing:
(i) the name of the Borrower, the Tranche under which such
Borrowing is to be made, the Currency of such Borrowing and the
proposed date of such borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be an integral multiple of $1,000,000 and not less than
$5,000,000 (or, in the case of a Borrowing of Money Market Loans
denominated in an Alternative Currency, the Foreign Currency
Equivalent thereof (rounded to the nearest 1,000 units of such
Alternative Currency)) but shall not cause the limits specified in
Section 2.03(a) hereof to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Money Market Quotes requested for a
particular Interest Period are seeking quotes for LIBOR Market Loans
or Set Rate Loans; and
(v) if the Money Market Quotes requested are seeking quotes
for Set Rate Loans denominated in Dollars, the date on which the Money
Market Quotes are to be submitted (the date on which such Money Market
Quotes are to be submitted is called the "Quotation Date").
Except as otherwise provided in this Section 2.03(b), no Money Market Quote
Request shall be given under any Tranche within five Business Days of any other
Money Market Quote Request under such Tranche.
(c) (i) Each Lender under the relevant Tranche may submit
one or more Money Market Quotes, each constituting an offer to make a
Money Market Loan under such Tranche in response to any Money Market
Quote Request under such Tranche; provided that, if the Applicable
Borrower's request under Section 2.03(b) hereof specified more than
one Interest Period, such Lender may make a single submission
containing one or more Money Market Quotes for each such Interest
Period. Each Money Market Quote must be submitted to the
Administrative Agent not later than (x) 4:00 p.m. New York time on the
fifth Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction, (y) 4:00 p.m. New York time on the fourth
Business Day prior to the date of borrowing proposed therein in the
case of a Set Rate Auction in respect of Money Market Loans
denominated in an Alternative Currency or (z) 10:00 a.m. New York time
on the Quotation Date in the case of a Set Rate Auction in respect of
Money
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Market Loans denominated in Dollars; provided that any Money Market
Quote may be submitted by Chase (or its Applicable Lending Office)
only if Chase (or such Applicable Lending Office) notifies such
Applicable Borrower of the terms of the offer contained therein not
later than (x) 3:45 p.m. New York time on the fifth Business Day prior
to the proposed date of borrowing, in the case of a LIBOR Auction, (y)
3:45 p.m. New York time on the fourth Business Day prior to the date
of borrowing proposed therein in the case of a Set Rate Auction in
respect of Money Market Loans denominated in an Alternative Currency
or (z) 9:45 a.m. New York time on the Quotation Date in the case of a
Set Rate Auction in respect of Money Market Loans denominated in
Dollars. Subject to Sections 5.02(b), 5.03, 6.02 and 9 hereof, any
Money Market Quote so made shall be irrevocable except with the
consent of the Administrative Agent given on the instructions of such
Applicable Borrower.
(ii) Each Money Market Quote shall be substantially in the
form of Exhibit F hereto and shall specify:
(A) the name of the Borrower, the Tranche under
which such Borrowing is to be made, the Currency of such
Borrowing and the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which principal
amount shall be an integral multiple of $1,000,000 and not
less than $5,000,000 (or, in the case of a Borrowing of Money
Market Loans denominated in an Alternative Currency, the
Foreign Currency Equivalent thereof (rounded to the nearest
1,000 units of such Alternative Currency)); provided that the
aggregate principal amount of all Money Market Loans for which
a Lender submits Money Market Quotes (x) may be greater or
less than the Commitment of such Lender under the Tranche
under which such Loans are to be made but (y) may not exceed
the principal amount of the Money Market 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 Eurocurrency Rate (the "LIBO Margin")
offered for each such Money Market Loan, expressed as a
percentage (rounded upwards, if necessary, to the nearest
1/10,000th of 1%) to be added to or subtracted from the
applicable Eurocurrency Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Money Market
Loan (the "Set Rate"); and
(E) the identity of the quoting Lender.
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Unless otherwise agreed by the Administrative Agent and the Applicable
Borrower, no Money Market Quote shall contain qualifying, conditional
or similar language or propose terms other than or in addition to
those set forth in the applicable Money Market Quote Request and, in
particular, no Money Market Quote may be conditioned upon acceptance
by the Applicable Borrower of all (or some specified minimum) of the
principal amount of the Money Market Loan for which such Money Market
Quote is being made, provided that the submission by any Lender
containing more than one Money Market Quote may be conditioned on the
Applicable Borrower not accepting offers contained in such submission
that would result in such Lender making Money Market Loans pursuant
thereto in excess of a specified aggregate amount (the "Money Market
Loan Limit").
(d) The Administrative Agent shall (x) in the case of a LIBOR
Auction or a Set Rate Auction in respect of Money Market Loans denominated in
an Alternative Currency, by 5:00 p.m. New York time on the day a Money Market
Quote is submitted or (y) in the case of a Set Rate Auction in respect of Money
Market Loans denominated in Dollars, as promptly as practicable after the Money
Market Quote is submitted (but in any event not later than 10:15 a.m. New York
time on the Quotation Date), notify the Applicable Borrower of the terms (i) of
any Money Market Quote submitted by a Lender that is in accordance with Section
2.03(c) hereof and (ii) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote submitted by such
Lender with respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the Administrative Agent
unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Administrative Agent's
notice to the Applicable Borrower shall specify (A) the aggregate principal
amount of the Money Market 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 Money
Market Quote).
(e) Not later than (x) 10:00 a.m. New York time on the fourth
Business Day prior to the proposed date of borrowing in the case of a LIBOR
Auction, (y) 10:00 a.m. New York time on the third Business Day prior to the
proposed date of borrowing in the case of a Set Rate Auction in respect of
Money Market Loans denominated in an Alternative Currency or (z) 11:00 a.m. New
York time on the Quotation Date in the case of a Set Rate Auction in respect of
Money Market Loans denominated in Dollars, the Applicable Borrower shall notify
the Administrative Agent of its acceptance or nonacceptance of the offers so
notified to it pursuant to Section 2.03(d) hereof (which notice shall specify
the aggregate principal amount of offers from each Lender for each Interest
Period that are accepted, it being understood that the failure of the
Applicable Borrower to give such notice by such time shall constitute
nonacceptance) and the Administrative Agent shall promptly notify each affected
Lender. The notice from the Administrative Agent shall also specify the
aggregate principal amount of offers for each Interest Period that were
accepted and the lowest and highest LIBO Margins and Set Rates that were
accepted for each Interest Period. The Applicable Borrower may accept any
Money Market Quote in whole or in part; provided that:
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(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be an integral multiple of $1,000,000 and not less
than $5,000,000 (or, in the case of a Borrowing of Money Market Loans
denominated in an Alternative Currency, the Foreign Currency
Equivalent thereof (rounded to the nearest 1,000 units of such
Alternative Currency)) but shall not cause the limits specified in
Section 2.03(a) hereof to be violated;
(iii) acceptance of offers may, subject to clause
(vi) below, 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;
(iv) any Money Market Quote accepted in part shall be an
integral multiple of $1,000,000 and not less than $5,000,000 (or, in
the case of a Borrowing of Money Market Loans denominated in an
Alternative Currency, the Foreign Currency Equivalent thereof (rounded
to the nearest 1,000 units of such Alternative Currency));
(v) the Applicable Borrower may not accept any offer where
the Administrative Agent has advised the Applicable Borrower that such
offer fails to comply with Section 2.03(c)(ii) hereof or otherwise
fails to comply with the requirements of this Agreement (including,
without limitation, Section 2.03(a) hereof); and
(vi) the aggregate principal amount of each Money Market
Borrowing from any Lender may not exceed any applicable Money Market
Loan Limit of such Lender.
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 permitted to be accepted for the related
Interest Period, the principal amount of Money Market Loans in respect of which
such offers are accepted shall be allocated by the Applicable Borrower among
such Lenders as nearly as possible (in an integral multiple of $1,000,000 and
not less than $5,000,000 (or, in the case of a Borrowing of Money Market Loans
denominated in an Alternative Currency, the Foreign Currency Equivalent thereof
(rounded to the nearest 1,000 units of such Alternative Currency)) in
proportion to the aggregate principal amount of such offers. Determinations by
the Applicable Borrower of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
(f) Any Lender whose offer to make any Money Market Loan has
been accepted in accordance with the terms and conditions of this Section 2.03
shall, not later than 11:00 a.m. Local Time (in the case of a LIBOR Auction or
a Set Rate Auction in respect of Money Market Loans denominated in an
Alternative Currency) or 1:00 p.m. New York time (in the case of a Set Rate
Auction in respect of Money Market Loans denominated in Dollars) on the date
specified
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for the making of such Loan, make the amount of such Loan available to the
Administrative Agent at the Administrative Agent's Account for the Currency in
which such Loan is denominated in immediately available funds, for account of
the Applicable Borrower. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Applicable Borrower on such date by depositing the same, in immediately
available funds, in an account of the Applicable Borrower designated by the
Applicable Borrower.
(g) Except for the purpose and to the extent expressly stated
in Section 2.04(b) hereof, the amount of any Money Market Loan made by any
Lender under any Tranche shall not constitute a utilization of such Lender's
Commitment under such Tranche.
(h) The Applicable Borrower shall pay to the Administrative
Agent a fee of $750 each time it gives a Money Market Quote Request to the
Administrative Agent.
2.04 Changes of Commitments.
(a) The aggregate amount of the Commitments under each
Tranche shall be automatically reduced to zero on the Commitment Termination
Date for such Tranche.
(b) The Applicable Borrowers, acting jointly, shall have the
right at any time or from time to time (i) to terminate the Commitments under
any Tranche so long as no Syndicated Loans or Money Market Loans are
outstanding under such Tranche and (ii) to reduce the aggregate unused amount
of the Commitments under any Tranche (for which purpose use of the Commitments
under such Tranche shall be deemed to include the aggregate principal amount of
all Money Market Loans under such Tranche); provided that (x) the Applicable
Borrowers shall give notice of each such termination or reduction as provided
in Section 4.05 hereof, (y) each partial reduction under any Tranche shall
aggregate to an integral multiple of $1,000,000 and not less than $10,000,000
and (z) no such termination or reduction of any Tranche shall be effected
unless such notice shall have been given by each Applicable Borrower.
(c) The Commitments under any Tranche, once terminated or
reduced, may not be reinstated.
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2.05 Fees.
(a) Facility Fee. With respect to each Tranche, the
Applicable Borrowers shall pay to the Administrative Agent for account of each
Lender under such Tranche a facility fee on the daily average of such Lender's
Commitment under such Tranche (regardless of utilization thereof), for the
period from and including the date hereof to but not including the earlier of
the date such Commitment is terminated and the relevant Commitment Termination
Date, at a rate per annum equal to the Applicable Facility Fee Percentage. A
portion of the facility fee accrued on any day in respect of Tranche A-($) or
Tranche A-(MC) equal to the FSB Facility Fee Amount with respect to such
Tranche shall be payable by FSB, and the balance of the facility fee accrued on
such day in respect of Tranche A-($) or Tranche A-(MC) shall be payable by COB.
Any facility fee accrued on any day in respect of Tranche B-($) or Tranche
B-(MC) shall be payable by COFC, except that, if any outstanding Loans under
such Tranche are owing by either COB or FSB on such day, the facility fee so
accrued for such day shall be payable by COB or FSB, as the case may be, to the
extent a Lender's Commitment under such Tranche is utilized by such Loans.
(b) Utilization Fee. With respect to each Tranche, the
Applicable Borrowers shall pay to the Administrative Agent for account of each
Lender under such Tranche a utilization fee, for each Computation Period
occurring during the period from and including the date hereof to but not
including the earlier of the date the Commitments under such Tranche are
terminated and the Commitment Termination Date for such Tranche, on the excess,
if any, of (i) the Average of the aggregate outstanding principal amount of all
Loans (including Money Market Loans) outstanding under such Tranche for such
Computation Period over (ii) 50% of the Average of the aggregate amount of all
Commitments under such Tranche in effect for such Computation Period at a rate
per annum equal to the Applicable Utilization Fee Percentage. Utilization fee
payable under this Section 2.05(b) with respect to any day under any Tranche
shall be allocated between the Applicable Borrowers pro rata according to the
respective Average aggregate outstanding principal amounts of Loans under such
Tranche owing by the Borrowers for such Computation Period.
(c) Payment. With respect to any Tranche, accrued facility
fee and utilization fee shall be payable on each Quarterly Date and on the
earlier of the date the Commitments under such Tranche are terminated and the
Commitment Termination Date for such Tranche.
2.06 Lending Offices. The Loans of each Type and Currency
made by each Lender shall be made and maintained at such Lender's Applicable
Lending Office for Loans of such Type and Currency.
2.07 Several Obligations; Remedies Independent. 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 Administrative Agent shall be responsible
for the failure of any other Lender to make a Loan to be made by such
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other Lender, and (except as otherwise provided in Section 4.06 hereof) no
Lender shall have any obligation to the Administrative 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 each Borrower at any time hereunder and
under the Notes to each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its rights arising out of
this Agreement and the Notes, and it shall not be necessary for any other
Lender or the Administrative Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
2.08 Notes.
(a) The Tranche A-($) Loans made by each Tranche A-($) Lender
to either Applicable Borrower shall be evidenced by a promissory note
substantially in the form of Exhibit A-1 hereto, dated the date hereof, duly
executed by such Applicable Borrower and payable to such Tranche A-($) Lender
in a principal amount equal to the amount of its Tranche A-($) Commitment as
originally in effect and otherwise duly completed.
(b) The Tranche A-(MC) Loans made by each Tranche A-(MC)
Lender to either Applicable Borrower shall be evidenced by a promissory note
substantially in the form of Exhibit A-2 hereto, dated the date hereof, duly
executed by such Applicable Borrower and payable to such Tranche A-(MC) Lender
in a principal amount equal to the amount of its Tranche A-(MC) Commitment as
originally in effect and otherwise duly completed.
(c) The Tranche B-($) Loans made by each Tranche B-($) Lender
to any Applicable Borrower shall be evidenced by a promissory note
substantially in the form of Exhibit A-3 hereto, dated the date hereof, duly
executed by such Applicable Borrower and payable to such Tranche B-($) Lender
in a principal amount equal to the amount of its Tranche B-($) Commitment as
originally in effect and otherwise duly completed.
(d) The Tranche B-(MC) Loans made by each Tranche B-(MC)
Lender to any Applicable Borrower shall be evidenced by a promissory note
substantially in the form of Exhibit A-4 hereto, dated the date hereof, duly
executed by such Applicable Borrower and payable to such Tranche B-(MC) Lender
in a principal amount equal to the amount of its Tranche B-(MC) Commitment as
originally in effect and otherwise duly completed.
(e) The Money Market Loans made by any Lender to any
Applicable Borrower shall be evidenced by a single promissory note
substantially in the form of Exhibit A-5 hereto, dated the date hereof, duly
executed by such Applicable Borrower and payable to such Lender and otherwise
duly completed.
(f) The date, amount, Type, Currency, interest rate and
duration of Interest Period of each Loan made by each Lender to a Borrower, and
each payment made on account of the principal thereof, shall be recorded by
such Lender on its books and, prior to any transfer of any Note evidencing
Loans held by it, endorsed by such Lender on the schedule attached to such Note
or any continuation thereof; provided that the failure of such Lender to make
any such
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recordation (or any error in making any such recordation) or endorsement shall
not affect the obligations of the Applicable Borrower to make a payment when
due of any amount owing hereunder or under such Note in respect of such Loans.
(g) No Lender shall be entitled to have its Notes substituted
or exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's Commitment, Loans and Notes pursuant to Section 11.06
hereof (and, if requested by any Lender, the Applicable Borrower agrees to so
exchange any Note).
2.09 Optional Prepayments. Subject to Section 4.04 hereof,
each Borrower shall have the right to prepay Syndicated Loans made to such
Borrower at any time or from time to time, provided that: (a) such Borrower
shall give the Administrative Agent notice of each such prepayment 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) any prepayment of a Eurocurrency Loan on a day other than the last day
of the Interest Period for such Loan shall be subject to the payment of any
compensation payable under Section 5.05 hereof. Money Market Loans may not be
prepaid.
2.10 Extension of Commitment Termination Date.
(a) The Applicable Borrowers may, by notice to the
Administrative Agent (which shall promptly deliver a copy to each of the
Lenders) given not less than 60 days and not more than 90 days prior to any of
the first, second and third anniversaries of the date of this Agreement,
request that the Lenders extend the Commitment Termination Date then in effect
for any Tranche (the "Existing Commitment Termination Date") to the date one
year following the Existing Commitment Termination Date; provided that in no
event may (i) the Applicable Borrowers request more than three such extensions
with respect to any Tranche, (ii) the Applicable Borrowers request more than
one extension for any Tranche with respect to any such anniversary date and
(iii) any such extension be effected with respect to any Tranche unless such
request shall be made by each Applicable Borrower under such Tranche. Each
Lender, acting in its sole discretion, shall, by notice to the Applicable
Borrowers and the Administrative Agent given not later than the date 30 days
prior to the relevant anniversary of the date of this Agreement with respect to
which such extension was requested (the "Consent Date"), advise the Applicable
Borrowers whether or not such Lender agrees to such extension; provided that
(i) the election of any Lender to agree to such extension shall not obligate
any other Lender to agree to such extension, (ii) any such notice, once given,
shall be revocable until the Consent Date and (iii) any Lender under any
Tranche that is a Non-Extending Lender (as defined below) with respect to an
extension request made under such Tranche with respect to any anniversary of
the date of this Agreement may not agree (other than with respect to a
Commitment acquired from another Lender after the Consent Date) to an extension
request made under such Tranche with respect to a subsequent anniversary of the
date of this Agreement.
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(b) If, on the Consent Date, the Administrative Agent shall
have received from Lenders under the applicable Tranche holding Commitments
under such Tranche in an aggregate amount more than 50% of the aggregate amount
of the Commitments under such Tranche notices (which have not been revoked)
agreeing to extend the Existing Commitment Termination Date as provided in
Section 2.10(a) hereof, then, effective as of the Consent Date, the Existing
Commitment Termination Date shall be extended to the date one year following
the Existing Commitment Termination Date; provided that (i) if the
Administrative Agent shall not have received such notices, the Existing
Commitment Termination Date shall remain unchanged and (ii) the Commitment of
any Lender (a "Non-Extending Lender") that notified the Administrative Agent
that such Lender elected not to agree to extend the Existing Commitment
Termination Date as provided in Section 2.10(a) hereof or that failed to
deliver a notice to the Administrative Agent agreeing to such an extension (or
that revoked any such notice of agreement prior to the Consent Date and
thereafter failed to deliver another such notice) shall terminate on the
Existing Commitment Termination Date.
(c) The Applicable Borrowers, acting jointly, shall have the
right at any time after the Consent Date but prior to the date as of which the
Commitment of a Non-Extending Lender terminates to replace such Non-Extending
Lender with one or more other banks or other lenders (which may include any
other Lender, each a "Replacement Lender") with the approval (in the case of a
Replacement Lender that is not already a Lender) of the Administrative Agent
(which approval shall not be unreasonably withheld or delayed), each of which
Replacement Lender(s) shall have entered into an agreement in form and
substance satisfactory to the Applicable Borrowers and the Administrative Agent
pursuant to which such Replacement Lender(s) shall (i) assume all or any
portion of the Commitment(s) of the Non-Extending Lender as if such
Non-Extending Lender had agreed to any extension of the Commitment Termination
Date previously effected pursuant to Section 2.10(b) hereof (and, if any such
Replacement Lender is a Lender, its Commitment shall be in addition to such
Lender's Commitment hereunder on such date) and (ii) purchase all of such
Non-Extending Lender's Loans hereunder for consideration equal to the aggregate
outstanding principal amount of such Non-Extending Lender's Loans, together
with interest thereon to the date of such purchase, and satisfactory
arrangements are made for payment to such Non-Extending Lender of all other
amounts payable hereunder to such Non-Extending Lender on or prior to the date
of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 5.05 hereof as if all of such Non-Extending
Lender's Loans were being prepaid in full on such date). Without prejudice to
the survival of any other agreement of the Borrowers hereunder, the agreements
of the Borrowers contained in Sections 2.12, 5.01, 5.06, 11.03 and 11.13 hereof
(without duplication of any payments made to such Non-Extending Lender by the
Borrowers or the Replacement Lender) shall survive for the benefit of such
Non-Extending Lender under this Section 2.10 with respect to the time prior to
such replacement. The right of the Applicable Borrowers to replace a
Non-Extending Lender with a Replacement Lender is subject to the requirement
that, immediately after giving effect to such replacement, no Lender under any
Tranche shall hold a Commitment under such Tranche in an aggregate amount
exceeding 25% of the aggregate amount of the Commitments under such Tranche.
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(d) Any extension of the Existing Commitment Termination Date
pursuant to this Section 2.10 shall be effective only if:
(i) no Default shall have occurred and be continuing on the
date of the notice requesting such extension and the Consent Date; and
(ii) each of the representations and warranties made by COB
in Section 7 hereof (other than the Excluded Representations, but, if
such extension relates to the Tranche B-($) Commitment Termination
Date or the Tranche B-(MC) Commitment Termination Date, including the
representations and warranties made by COFC in Section 7 hereof, other
than the Excluded Representations) shall be true and correct in all
material respects on and as of the date of the notice requesting such
extension and the Consent Date 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).
Each notice requesting an extension of the Existing Commitment Termination Date
pursuant to this Section 2.10 shall constitute a certification to the effect
set forth in the preceding sentence (both as of the date of such notice and the
Consent Date).
2.11 Increases in Commitments.
(a) The Applicable Borrowers, acting jointly, shall have the
right at any time on or after the first anniversary of the date of this
Agreement to increase the aggregate amount of the Commitments hereunder to an
amount not to exceed $2,250,000,000 by causing one or more banks or other
financial institutions, which may include any Lender already party to this
Agreement, to become a "Lender" party to this Agreement or (in the case of any
Lender already party to this Agreement) to increase the amount of such Lender's
Commitment; provided that (i) the addition of any bank or other financial
institution to this Agreement that is not already a Lender shall be subject to
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed) and (ii) the Commitment of any bank or other
financial institution becoming a "Lender" party to this Agreement, and any
increase in the amount of the Commitment of any Lender already party to this
Agreement, shall be in an amount equal to an integral multiple of $1,000,000
and not less than $10,000,000.
(b) Any increase in the aggregate amount of the Commitments
pursuant to Section 2.11(a) hereof shall be effective only upon the execution
and delivery to the Applicable Borrowers and the Administrative Agent of a
commitment increase letter in substantially the form of Exhibit I hereto (a
"Commitment Increase Letter"), which Commitment Increase Letter shall be
delivered to the Administrative Agent not less than five Business Days prior to
the Commitment Increase Date and shall specify (i) the amount and Tranche of
the Commitment of any bank or other financial institution becoming a "Lender"
party to this Agreement or of any increase in the amount of the Commitment
under any Tranche of any Lender already party to this
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Agreement and (ii) the date such increase is to become effective (the
"Commitment Increase Date").
(c) Any increase in the aggregate amount of the Commitments
pursuant to this Section 2.11 shall not be effective unless:
(i) no Default shall have occurred and be continuing on the
Commitment Increase Date;
(ii) each of the representations and warranties made by COB
in Section 7 hereof (other than the Excluded Representations, but, if
such increase relates to the aggregate amount of the Tranche B-($)
Commitments or the Tranche B-(MC) Commitments, including the
representations and warranties made by COFC in Section 7 hereof, other
than the Excluded Representations) shall be true and correct in all
material respects on and as of the Commitment Increase Date 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);
(iii) no notice of borrowing of Syndicated Loans under any
Tranche affected by such increase in the aggregate amount of the
Commitments shall have been given, in each case, on and as of such
Commitment Increase Date;
(iv) immediately after giving effect to such increase in the
aggregate amount of the Commitments, no Lender under any Tranche shall
hold a Commitment under such Tranche in an aggregate amount exceeding
25% of the aggregate amount of the Commitments under such Tranche;
(v) immediately after giving effect to such increase, the
aggregate amount of Tranche A-(MC) Commitments shall not exceed
$350,000,000;
(vi) immediately after giving effect to such increase, the
aggregate amount of Tranche B-($) Commitments shall not exceed
$250,000,000;
(vii) no such increase may be effected in respect of Tranche
B-(MC) Commitments; and
(viii) the Administrative Agent shall have received (with
sufficient copies for each of the Lenders) each of (x) a certificate
of the corporate secretary or assistant secretary of the Applicable
Borrowers as to the taking of any corporate action necessary in
connection with such increase and (y) an opinion or opinions of
counsel to the Applicable Borrowers as to their corporate power and
authority to borrow hereunder after giving effect to such increase.
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Each notice requesting increase in the aggregate amount of the Commitments
pursuant to this Section 2.11 shall constitute a certification to the effect
set forth in clauses (i) and (ii) of the preceding sentence.
(d) No Lender shall at any time be required to agree to a
request of a Borrower to increase its Commitment or obligations hereunder.
2.12 Undertaking of COB. COB hereby agrees with each Lender
and the Administrative Agent as follows:
(a) Undertaking to Pay. At the request of FSB, and for
account of FSB as provided in Section 2.12(d) hereof, COB hereby irrevocably
undertakes in favor of the Administrative Agent that COB will honor the
Administrative Agent's sight drafts drawn on COB and payable to the order of
the Administrative Agent upon presentation of such drafts to COB at the address
to which notices are deliverable to COB under Section 11.02 hereof accompanied
by a written certification referred to below (such undertaking to honor such
drafts being herein called, the "Undertaking"). Each draft must be accompanied
by written certification of the Administrative Agent in the form of Exhibit J
to this Agreement. Each draft drawn under and in compliance with the
Undertaking will be duly honored by COB forthwith upon presentation by paying
the amount of such draft to the Administrative Agent at the Administrative
Agent's Account in the manner specified in Section 4.01 hereof.
(b) Amount Available. The aggregate amount available to be
drawn under this Section 2.12 shall be equal to (i) the FSB Borrowing Limit
plus (ii) interest (computed on the basis of a year of 360 days) that would
accrue on the FSB Borrowing Limit for a period of 360 days at a rate per annum
equal to 12%. Partial and multiple drawings under this Section 2.12 are
permitted. The Undertaking shall expire on the date 100 days following the
latest Commitment Termination Date, as the same may be extended from time to
time.
(c) Certain Terms and Conditions. All charges and
commissions incurred by COB in connection with the issuance or administration
of the Undertaking (including any drawing in respect of the Undertaking) shall
be for account of FSB. This Section 2.12 sets forth in full the terms of the
Undertaking, and the Undertaking shall not in any way be amended, modified,
amplified or limited by reference to any other Section or provision of this
Agreement or any document, instrument or agreement referred to herein, and any
such reference shall not be deemed to incorporate in this Section 2.12 by
reference any document, instrument or agreement. The obligations of COB in
respect of the Undertaking are independent of any of the obligations of any
other party to this Agreement and of any obligations of COB under any other
Section or provision of this Agreement (and accordingly the Undertaking is
intended to be both a "credit" and a "letter of credit" within the meaning of
Article 5 of the New York Uniform Commercial Code), and the entitlement of the
Administrative Agent to draw under the Undertaking is subject only to
compliance by the Administrative Agent with the express conditions to drawing
set forth in this Section 2.12. The Undertaking may not be assigned or
transferred other than to a successor Administrative Agent appointed in
accordance with Section 10.08 hereof.
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(d) Reimbursement. FSB agrees to reimburse COB for any
drawing by the Administrative Agent under the Undertaking, without notice or
demand of any kind, not later than 1:00 p.m. (New York time) on the Business
Day following such drawing, in an amount equal to the amount of such drawing.
COB hereby agrees that until the payment and satisfaction in full of the
principal of and interest on the Loans made by the Lenders to, and the Notes
held by each Lender of, FSB and all other amounts from time to time owing to
the Lenders or the Administrative Agent by FSB hereunder and under the Notes
and the expiration or termination of the Commitments COB shall not exercise any
right or remedy to collect any amount owing by FSB to COB under this Section
2.12(d).
(e) UCP. The Undertaking is subject to the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 (the "UCP"). In the event of any conflict between
the law of the State of New York (which, pursuant to Section 11.10 hereof,
governs this Agreement) and the UCP, the UCP shall control. Notwithstanding
Article 17 of the UCP, if the Undertaking expires during an interruption of
business as described in said Article 17, COB shall effect payment if the
Undertaking is drawn against within 30 days after the resumption of business.
(f) Distribution of Proceeds of Drawing. Each payment
received by the Administrative Agent in connection with any drawing under the
Undertaking shall be promptly applied by the Administrative Agent to the
obligations of FSB in respect of which such drawing was made.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans. Each Borrower hereby promises to
pay to the Administrative Agent for account of each Lender the principal of
each Loan made by such Lender to such Borrower, and each such Loan shall
mature, on the last day of the Interest Period therefor.
3.02 Interest. Each Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender to such Borrower for the
period from and including the date of such Loan to but excluding the date such
Loan shall be paid in full, at the following rates per annum:
(a) if such Loan is a Base Rate Loan, the Base Rate (as in
effect from time to time) plus the Applicable Margin;
(b) if such Loan is a Eurocurrency Loan, the Eurocurrency
Rate for such Loan for the Interest Period therefor plus the
Applicable Margin;
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(c) if such Loan is a LIBOR Market Loan, the Eurocurrency
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 hereof; and
(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 hereof.
Notwithstanding the foregoing, each Borrower hereby promises
to pay to the Administrative Agent for account of each relevant Lender interest
at the applicable Post-Default Rate on any principal of any Loan made by such
Lender to such Borrower, and on any other amount payable by such Borrower to or
for account of such Lender hereunder or under the Notes, that shall not be paid
in full when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the due date
thereof to but excluding the date the same is paid in full. Accrued interest
on each Loan shall be payable (i) on the last day of the Interest Period
therefor and, if such Interest Period is longer than 90 days (in the case of a
Set Rate Loan) or three months (in the case of a Eurocurrency Loan or a LIBOR
Market Loan), at 90-day or three-month intervals, respectively, following the
first day of such Interest Period, and (ii) in the case of any Loan, upon the
payment or prepayment thereof (but only on the principal amount so paid or
prepaid), 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 Administrative
Agent shall give notice thereof to the Lenders to which such interest is
payable and to the Applicable Borrower.
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Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal of and interest on any Loan and of all other amounts to
be made by a Borrower under this Agreement and the Notes shall be made in the
Currency in which such Loan or other amount is denominated, in immediately
available funds, without deduction, set-off or counterclaim, to the
Administrative Agent at the Administrative Agent's Account for the Currency in
which such Loan or other amount is denominated, not later than 1:00 p.m. Local
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), provided that if a new Loan is to be made to a
Borrower under any Tranche by any Lender on a date on which such Borrower is to
repay any principal of an outstanding Loan of such Lender under such Tranche
and in the same Currency, such Lender shall apply the proceeds of such new Loan
to the payment of the principal to be repaid and only an amount equal to the
difference between the principal to be borrowed and the principal to be repaid
shall be made available by such Lender to the Administrative Agent as provided
in Section 2.02 hereof or paid by the Applicable Borrower to the Administrative
Agent pursuant to this Section 4.01, as the case may be. All amounts owing
under this Agreement and the Notes (other than principal of and interest on
Loans denominated in an Alternative Currency) are denominated and payable in
Dollars.
(b) Any Lender for whose account any such payment is to be
made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of the Borrower
obligated to make such payment with such Lender (with notice to such Borrower
and the Administrative Agent), provided that such Lender's failure to give such
notice shall not affect the validity thereof.
(c) Each Borrower shall, at the time of making each payment
under this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans or other amounts payable by such Borrower hereunder to which such
payment is to be applied (and in the event that such Borrower fails to so
specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Requisite Lenders (with respect to COB or FSB as
Borrower) or Majority Tranche B Lenders (with respect to COFC as Borrower),
subject to Section 4.02 hereof, may determine to be appropriate).
(d) Each payment received by the Administrative Agent under
this Agreement or any Note for account of any Lender shall be paid by the
Administrative 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.
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(e) If the due date of any payment under this Agreement or
any Note 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 under Section 2.01 hereof of Syndicated
Loans of a particular Tranche from the Lenders holding Commitments
under such Tranche shall be made from such Lenders, each payment under
Section 2.05(a) hereof of facility fee to the Lenders under such
Tranche (allocated between the Borrowers in accordance with the last
two sentences of Section 2.05(a) hereof), and each termination or
reduction under Section 2.04 hereof of the Commitments under such
Tranche shall be applied to the respective Commitments of the Lenders
under such Tranche, pro rata according to the amounts of their
respective Commitments under such Tranche;
(b) except as otherwise provided in Section 5.04 hereof,
Eurocurrency Loans under a particular Tranche having the same Interest
Period shall be allocated among the Lenders under such Tranche pro
rata according to the amounts of their respective Commitments under
such Tranche;
(c) each payment or prepayment of principal of Syndicated
Loans under a Tranche, and each payment under Section 2.05 hereof of
utilization fee to the Lenders under such Tranche, shall be made by a
Borrower (allocated between the Borrowers in accordance with the last
sentence of Section 2.05(b) hereof) for account of the Lenders under
such Tranche pro rata according to the respective unpaid principal
amounts of the Syndicated Loans of such Tranche owing by such Borrower
held by such Lenders; and
(d) each payment of interest on Syndicated Loans under a
Tranche shall be made by a Borrower for account of the Lenders under
such Tranche pro rata according to the amounts of interest on such
Loans then due and payable by such Borrower to such Lenders.
4.03 Computations. Interest on Money Market Loans and
Eurocurrency Loans and facility and utilization fee 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
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, (a) 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 (b) interest on Eurocurrency Loans denominated in Pounds Sterling shall be
computed on the basis of a year of 365 or 366 days, as the case may be.
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4.04 Minimum Amounts. Except for prepayments made pursuant
to Section 5.04 hereof, each borrowing and partial prepayment of principal of
Loans (other than Money Market Loans) shall aggregate to an integral multiple
of $1,000,000 and not less than $10,000,000 (borrowings or prepayments of Loans
of different Types or, in the case of Eurocurrency Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings
and prepayments for purposes of the foregoing, one for each Type or Interest
Period), provided that (a) the aggregate principal amount of Eurocurrency Loans
under Tranche A-($) having the same Interest Period shall aggregate to an
integral multiple of $1,000,000 and not less than $20,000,000, (b) the
aggregate principal amount of Eurocurrency Loans under any of Tranche A-(MC),
Tranche B-($) and Tranche B-(MC) having the same Interest Period and
denominated in the same Currency shall aggregate to an integral multiple of
$1,000,000 and not less than $5,000,000 (or, in the case of Loans denominated
in an Alternative Currency, the Foreign Currency Equivalent thereof (rounded to
the nearest 1,000 units of such Alternative Currency)) and (c) if any
Eurocurrency Loans would otherwise be in a lesser principal amount for any
period, such Loans shall be Base Rate Loans during such period.
4.05 Certain Notices. Except as otherwise provided in
Section 2.03 hereof with respect to Money Market Loans, notices by a Borrower
to the Administrative Agent of terminations or reductions of the Commitments
and of borrowings and optional prepayments of Loans, of Tranches, Currencies
and Types of Loans and of the duration of Interest Periods shall be irrevocable
and shall be effective only if received by the Administrative Agent not later
than 11:00 a.m. New York time on the number of Business Days prior to the date
of the relevant termination, reduction, borrowing or prepayment or the first
day of such Interest Period specified below:
Number of
Type Business Days Prior
---- -------------------
Termination or reduction 3
of Commitments
Borrowing or prepayment of same day
Base Rate Loans
Borrowing or prepayment of, 3
or duration of Interest
Period for, Eurocurrency Loans
denominated in Dollars
Borrowing or prepayment of, 4
or duration of Interest
Period for, Eurocurrency Loans
denominated in an Agreed
Alternative Currency
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Each such notice of termination or reduction shall specify the amount and
Tranche of the Commitments to be terminated or reduced. Each such notice of
borrowing or optional prepayment shall be in substantially the form of Exhibit
D hereto and shall specify the Loans to be borrowed or prepaid and the amount
(subject to Section 4.04 hereof), Tranche, Currency (in the case of Tranche
A-(MC) Loans or Tranche B-(MC) Loans) and Type of each Loan to be borrowed or
prepaid, the date of borrowing or optional prepayment (which shall be a
Business Day), the Interest Period of the Loans to be borrowed or prepaid and
the identity of the Applicable Borrower; provided that any notice of borrowing
given by FSB shall also be signed by COB. The Administrative Agent shall
promptly notify the affected Lenders of the contents of each such notice.
4.06 Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative Agent shall have been notified by a Lender or a
Borrower (the "Payor") prior to the date on which the Payor is to make payment
to the Administrative 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 Administrative 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 Administrative Agent, the Administrative 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 Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date (the "Advance Date") such amount was so made
available by the Administrative Agent until the date the Administrative Agent
recovers such amount at a rate per annum equal to the Federal Funds Rate for
such day and, if such recipient(s) shall fail promptly to make such payment,
the Administrative Agent shall be entitled to recover such amount, on demand,
from the Payor, together with interest as aforesaid, provided that if neither
the recipient(s) nor the Payor shall return the Required Payment to the
Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be
made by a Borrower to the Lenders, such Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the obligation of such Borrower under Section
3.02 hereof to pay interest on the Required Payment at the
Post-Default Rate), it being understood that the return by the
recipient(s) of the Required Payment to the Administrative Agent shall
not limit such obligation of such Borrower under said Section 3.02 to
pay interest at the Post-Default Rate in respect of the Required
Payment; and
(ii) if the Required Payment shall represent proceeds of a
Loan to be made by the Lenders to a Borrower, the Payor and such
Borrower shall each be obligated retroactively
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to the Advance Date to pay interest in respect of the Required Payment
pursuant to whichever of the rates specified in Section 3.02 hereof is
applicable to the Type of such Loan, it being understood that the
return by such Borrower of the Required Payment to the Administrative
Agent shall not limit any claim such Borrower may have against the
Payor in respect of such Required Payment.
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 a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for
the credit or 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 to such Borrower or any other amount payable by such Borrower to
such Lender hereunder, that is not paid when due (regardless of whether such
deposit or other indebtedness is then due to such Borrower), in which case it
shall promptly notify such Borrower and the Administrative Agent thereof,
provided that such Lender's failure to give such notice shall not affect the
validity thereof.
(b) If any Lender shall obtain from a Borrower payment of any
principal of or interest on any Syndicated Loan under any Tranche owing to such
Lender or payment of any other amount owing under this Agreement (other than in
respect of Money Market Loans) through the exercise of any right of set-off,
banker's lien or counterclaim or similar right or otherwise (other than from
the Administrative 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 Syndicated Loans of such Tranche or such other amounts in
respect of such Tranche due hereunder from such Borrower to such Lender than
the percentage received by any other Lender under such Tranche, 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 of such Tranche
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 under such Tranche 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 of such Tranche or such other amounts, respectively,
owing to each of the Lenders under such Tranche. To such end all the Lenders
under such Tranche 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) The Borrower obligated in respect of such Loans or other
amounts agrees that any Lender so purchasing such a participation (or direct
interest) may exercise all rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans or other amounts (as the case may be) owing to
such Lender in the amount of such participation.
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(d) 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 a 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 shall pay directly to each Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Fixed Rate Loans owing by such Borrower or its
obligation to make to such Borrower any Fixed Rate Loans hereunder, 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) shall subject any Lender (or its Applicable Lending
Office for any of such Loans) to any tax, duty or other charge in
respect of such Loans or its Notes or changes the basis of taxation of
any amounts payable to such Lender under this Agreement or its Notes
in respect of any of such Loans (excluding changes in the rate of tax
on the overall net income of such Lender or of such Applicable Lending
Office by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than, in the case of any Lender for any
period as to which a Borrower is required to pay any amount under
Section 5.01(d) hereof, the reserves against "Eurocurrency
liabilities" under Regulation D referred to therein) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of
such Loans or any deposits referred to in the definition of "Fixed
Base Rate" in Section 1.01 hereof), or any commitment of such Lender
(including, without limitation, the Commitment(s) of such Lender
hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or its
Commitment(s).
If any Lender requests compensation from a Borrower under this Section 5.01(a),
such Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make Eurocurrency
Loans to such Borrower until the Regulatory
51
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Change giving rise to such request ceases to be in effect (in which case the
provisions of Section 5.04 hereof 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), if any Lender shall have
determined that 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, (ii) in connection with the
"Euro" (or some other similar unit of account) becoming a currency in its own
right in connection with European monetary union contemplated by the Maastricht
Treaty or (iii) implementing 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) hereafter issued by any
government or governmental or supervisory authority implementing at the
national level the Basle Accord, has or would have the effect of reducing the
rate of return on assets or equity of such Lender (or any Applicable Lending
Office of such Lender or any bank holding company of which such Lender is a
subsidiary) as a consequence of such Lender's Commitment to make or maintain
Loans to a Borrower or Loans made to such Borrower 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, then such Borrower shall pay directly to each Lender from time to time
on request such amounts as such Lender may determine to be necessary to
compensate such Lender (or, without duplication, such bank holding company) for
such reduction.
(c) Each Lender shall notify the relevant Borrower of any
event occurring after the date hereof entitling such Lender to compensation
from such Borrower under paragraph (a) or (b) of this Section 5.01 as promptly
as practicable, but in any event within 45 days, after such Lender obtains
actual knowledge thereof; provided that (i) if any Lender fails to give such
notice within 45 days after it obtains actual knowledge of such an event, such
Lender shall, with respect to compensation payable by such Borrower pursuant to
this Section 5.01 in respect of any costs resulting from such event, only be
entitled to payment under this Section 5.01 for costs incurred from and after
the date 45 days prior to the date that such Lender does give such notice and
(ii) 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 the
relevant 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
52
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compensate such Lender under this Section 5.01, shall be conclusive, provided
that such determinations and allocations are made on a reasonable basis.
(d) Without limiting the effect of the foregoing, the
Applicable Borrower shall pay to each Lender on the last day of the Interest
Period therefor so long as such Lender is maintaining reserves against
"Eurocurrency liabilities" under Regulation D (or, unless the provisions of
paragraph (b) above are applicable, so long as such Lender is, by reason of any
Regulatory Change, maintaining reserves against any other category of
liabilities that includes deposits by reference to which the interest rate on
Fixed Rate Loans is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Lender that includes
any Fixed Rate Loans) an additional amount (determined by such Lender and
notified to such Borrower through the Administrative Agent) equal to the
product of the following for each Fixed Rate Loan for each day during such
Interest Period:
(i) the principal amount of such Fixed Rate Loan outstanding
on such day; and
(ii) the remainder of (x) a fraction the numerator of which
is the rate (expressed as a decimal) at which interest accrues on such
Fixed Rate Loan for such Interest Period as provided in this Agreement
(less the Applicable Margin) and the denominator of which is one minus
the effective rate (expressed as a decimal) at which such reserve
requirements are imposed on such Lender on such day minus (y) such
numerator; and
(iii) 1/360.
5.02 Limitation on Types of Loans 02 Limitation on Types of
Loans. Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Fixed Base Rate for any Interest Period:
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the
relevant deposits referred to in the definition of "Fixed Base Rate"
in Section 1.01 hereof are not being provided in the relevant amounts
or Currencies or for the relevant maturities for purposes of
determining rates of interest for either Type of Fixed Rate Loans as
provided herein; or
(b) with respect to any Tranche, the Majority Tranche Lenders
under such Tranche determine (or any Lender that has outstanding a
Money Market Quote with respect to a LIBOR Market Loan determines),
which determination shall be conclusive, and notify (or notifies, as
the case may be) the Administrative Agent that the relevant rates of
interest referred to in the definition of "Fixed Base Rate" in Section
1.01 hereof upon the basis of which the rate of interest for
Eurocurrency Loans (or LIBOR Market Loans, as the case may be) in any
Currency for such Interest Period under such Tranche is to be
determined will not adequately and fairly reflect the cost to such
Lenders (or to such quoting Lender) of making or maintaining
Eurocurrency Loans (or LIBOR Market Loans, as the case may be) in such
Currency for such Interest Period;
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then the Administrative Agent shall give each affected Borrower and Lender
prompt notice thereof and, so long as such condition remains in effect, the
Lenders (or such quoting Lender) shall be under no obligation to make
additional Eurocurrency Loans in such Currency, and such Lender shall no longer
be obligated to make any LIBOR Market Loan in such Currency that it has offered
to make.
5.03 Illegality; Agreed Alternative Currencies.
(a) 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 Eurocurrency Loans or LIBOR
Market Loans in any Currency hereunder (and, in the sole opinion of such
Lender, the designation of a different Applicable Lending Office would either
not avoid such unlawfulness or would be disadvantageous to such Lender), then
such Lender shall promptly notify each affected Borrower thereof (with a copy
to the Administrative Agent) and such Lender's obligation to make Eurocurrency
Loans in such Currency shall be suspended until such time as such Lender may
again make and maintain Eurocurrency Loans in such Currency (in which case the
provisions of Section 5.04 hereof shall be applicable), and such Lender shall
no longer be obligated to make any LIBOR Market Loan in such Currency that it
has offered to make.
(b) Notwithstanding any other provision of this Agreement, if
(i) the "Euro" (or some other similar unit of account) shall become a currency
in its own right in connection with European monetary union contemplated by the
Maastricht Treaty and (ii) with respect to either Tranche A-(MC) or Tranche
B-(MC), the Majority Tranche Lenders under such Tranche determine, which
determination shall be conclusive, and notify the Administrative Agent that
such event shall require one or more Lenders to perform obligations that have
become incapable of performance or the performance of which is fundamentally
different in character than the nature of performance contemplated at the time
of the execution and delivery of this Agreement, then no Lender under such
Tranche shall thereafter be obligated to make any Syndicated Loan available in
an Agreed Alternative Currency included in or converted into the "Euro" (and no
Lender under such Tranche shall be obligated to make a LIBOR Market Loan in
such Currency that it has offered to make).
5.04 Treatment of Affected Loans. If the obligation of any
Lender to make Eurocurrency Loans in Dollars shall be suspended pursuant to
Section 5.01 or 5.03 hereof, then, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 5.01 or 5.03 hereof
that gave rise to such suspension no longer exist (which such Lender agrees to
do promptly upon such circumstances ceasing to exist), all Loans that would
otherwise be made by such Lender as Eurocurrency Loans in Dollars shall be made
instead as Base Rate Loans. If the obligation of any Lender to make
Eurocurrency Loans denominated in any Agreed Alternative Currency shall be
suspended pursuant to Section 5.01 or 5.03 hereof, then, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.01 or 5.03 hereof that gave rise to such suspension no longer exist
(which such Lender agrees to do
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promptly upon such circumstances ceasing to exist), all Loans that would
otherwise be made by such Lender as Eurocurrency Loans in such Agreed
Alternative Currency shall, except as provided in the immediately preceding
sentence, be made instead as Eurocurrency Loans denominated in Dollars.
5.05 Compensation. Each Borrower shall pay to the
Administrative Agent for account of each Lender, upon the request of such
Lender through the Administrative Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate such Lender
for any loss, cost or expense that such Lender determines is attributable to:
(a) any payment or mandatory or optional prepayment of a
Fixed Rate Loan or a Set Rate Loan made by such Lender to such
Borrower (which shall not include the return by a Borrower pursuant to
Section 4.06 hereof of any Required Payment previously advanced to
such Borrower by the Administrative Agent on behalf of a Lender) for
any reason (including, without limitation, the acceleration of the
Loans pursuant to Section 9 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) to borrow a Fixed Rate
Loan or a Set Rate Loan (with respect to which, in the case of a Money
Market Loan, such Borrower has accepted a Money Market 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(b) hereof.
Such compensation shall be equal to 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 not borrowed for the period from the date of such
payment, prepayment 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 Eurocurrency Rate for such Loan for such Interest
Period 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 Eurocurrency Loan or a LIBOR Market Loan) or the United States
secondary certificate of deposit market (if such Loan is a Set Rate Loan) for
deposits denominated in the relevant Currency of leading banks in amounts
comparable to such principal amount and with maturities comparable to such
period (as reasonably determined by such Lender). Any Lender requesting
compensation pursuant to this Section 5.05 will furnish to the relevant
Borrower a certificate setting forth its computation of the amount of such
compensation, which certificate shall be conclusive as to the amount of such
compensation provided that the computations made therein are made on a
reasonable basis.
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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 from such Borrower to such non-U.S. Person hereunder
after deduction for or withholding in respect of any U.S. Taxes imposed with
respect to such payment (or in lieu thereof, payment of such U.S. Taxes 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 any Lender hereunder unless such Lender
is, on the date hereof (or on the date it becomes a Lender hereunder
as provided in Section 11.06(b) hereof) and on the date of any change
in the Applicable Lending Office of such Lender, either entitled to
submit a Form 1001 (relating to such Lender and entitling it to a
complete exemption from withholding on all interest to be received by
it hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the
Loans), or
(ii) to any U.S. Taxes imposed solely by reason of 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. Taxes.
For the purposes of this Section 5.06(a), (A) "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 State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"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, (C) "Form 1001" shall mean Form 1001 (Ownership,
Exemption, or Reduced Rate Certificate) of the Department of the Treasury of
the United States of America and (D) "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). Each of the Forms referred to in the foregoing
clauses (C) and (D) shall include 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.
(b) Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30
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days after it is required by law to remit such deduction or withholding to any
relevant taxing or other authority, the relevant Borrower shall deliver to the
Administrative Agent for delivery to such non-U.S. Person evidence satisfactory
to such Person of such deduction, withholding or payment (as the case may be).
(c) If a Lender or an affiliate with whom such Lender files a
consolidated tax return (or equivalent) subsequently receives the benefit in
any country of a tax credit or an allowance resulting from U.S. Taxes with
respect to which it has received a payment of an additional amount under this
Section 5.07, such Lender will pay to the relevant Borrower such part of that
benefit as in the opinion of such Lender will leave it (after such payment) in
a position no more and no less favorable than it would have been in if no
additional payment had been required to be paid, provided always that (i) such
Lender will be the sole judge of the amount of any such benefit and of the date
on which it is received, (ii) such Lender will have the absolute discretion as
to the order and manner in which it employs or claims tax credits and
allowances available to it and (iii) such Lender will not be obliged to
disclose to any Borrower any information regarding its tax affairs or tax
computations.
5.07 Replacement of Lenders. If any Lender requests
compensation pursuant to Section 5.01 or 5.06 hereof, or any Lender's
obligation to make Loans of any Type or in any Currency shall be suspended
pursuant to Section 5.01 or 5.03 hereof, or any Lender becomes a Defaulting
Lender pursuant to Section 11.04 hereof (any such Lender requesting such
compensation, or whose obligations are so suspended, or that becomes and
remains a Defaulting Lender, being herein called a "Subject Lender"), the
Borrowers, upon three Business Days notice, may (jointly but not severally)
require that such Subject Lender transfer all of its right, title and interest
under this Agreement and such Subject Lender's Notes to any bank or other
financial institution (a "Proposed Lender") identified by the Borrowers that is
satisfactory to the Administrative Agent (i) if such Proposed Lender agrees to
assume all of the obligations of such Subject Lender hereunder, and to purchase
all of such Subject Lender's Loans hereunder for consideration equal to the
aggregate outstanding principal amount of such Subject Lender's Loans, together
with interest thereon to the date of such purchase, and satisfactory
arrangements are made for payment to such Subject Lender of all other amounts
payable hereunder to such Subject Lender on or prior to the date of such
transfer (including any fees accrued hereunder and any amounts that would be
payable under Section 5.05 hereof as if all of such Subject Lender's Loans were
being prepaid in full on such date) and (ii) if such Subject Lender has
requested compensation pursuant to Section 5.01 or 5.06 hereof, such Proposed
Lender's aggregate requested compensation, if any, pursuant to said Section
5.01 or 5.06 with respect to such Subject Lender's Loans is lower than that of
the Subject Lender. Subject to the provisions of Section 11.06(b) hereof, such
Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Borrowers hereunder,
the agreements of the Borrowers contained in Sections 2.12, 5.01, 5.06, 11.03
and 11.13 hereof (without duplication of any payments made to such Subject
Lender by the Borrowers or the Proposed Lender) shall survive for the benefit
of such Subject Lender under this Section 5.07 with respect to the time prior
to such replacement.
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Section 6. Conditions Precedent.
6.01 Conditions to Effectiveness. The effectiveness of the
amendment and restatement of the Existing Credit Agreement provided for hereby
as of the Restatement Date is subject to the conditions precedent that the
Administrative Agent shall have received the following documents (with, in the
case of clauses (a), (b), (c), (d), (e) and (h) below, sufficient copies for
each Lender), each of which shall be satisfactory to the Administrative Agent
and special New York counsel to Chase in form and substance:
(a) Corporate Documents. Certified copies of the charter and
by-laws (or equivalent documents) of each Borrower and of all
corporate authority for each Borrower (including, without limitation,
board of director resolutions and evidence of the incumbency,
including specimen signatures, of officers) with respect to the
execution, delivery and performance of the Basic Documents and each
other document to be delivered by such Borrower from time to time in
connection herewith and the Loans hereunder (and the Administrative
Agent and each Lender may conclusively rely on such certificate until
it receives notice in writing from the relevant Borrower to the
contrary).
(b) Officer's Certificate. A certificate of a senior officer
of each Borrower, dated the Restatement Effective Date, to the effect
that, after giving effect to any borrowing of Loans to be made on the
Restatement Effective Date, (i) no Default shall have occurred and be
continuing and (ii) the representations and warranties made by the
Borrowers in Section 7 hereof (including the last sentence of Section
7.02 hereof and in Section 7.03 hereof) shall be true and complete on
and as of the Restatement Effective Date 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).
(c) Opinion of Counsel to the Borrowers. An opinion, dated
the Restatement Effective Date, of McGuire, Woods, Battle & Boothe,
counsel to the Borrowers, substantially in the form of Exhibit B-1
hereto and covering such other matters as the Administrative Agent may
reasonably request (and the Borrowers hereby instruct such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
(d) Opinion of Counsel to the Borrowers. An opinion, dated
the Restatement Effective Date, of John Finneran, Esq., counsel to the
Borrowers, substantially in the form of Exhibit B-2 hereto and
covering such other matters as the Administrative Agent may reasonably
request (and the Borrowers hereby instruct such counsel to deliver
such opinion to the Lenders and the Administrative Agent).
(e) Opinion of Special New York Counsel to Chase. An
opinion, dated the Restatement Effective Date, of Milbank, Tweed,
Hadley & McCloy, special New York
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counsel to Chase, substantially in the form of Exhibit C hereto (and
Chase hereby instructs such counsel to deliver such opinion to the
Lenders).
(f) Notes. The Notes, duly completed and executed for each
Lender.
(g) Existing Indebtedness. No Loans shall be outstanding
under the Existing Credit Agreement other than Tranche C Loans (as
defined in the Existing Credit Agreement) made to COFC prior to the
date hereof in an aggregate outstanding principal amount not to exceed
$70,000,000 and with an Interest Period ending not later than November
29, 1996.
(h) Other Documents. Such other documents as the
Administrative Agent or special New York counsel to Chase may
reasonably request.
The effectiveness of the obligations of any Lender hereunder is also subject to
the payment by the Borrowers of such fees as the Borrowers shall have agreed to
pay or deliver to any Lender or the Administrative Agent in connection
herewith, including, without limitation, the reasonable fees and expenses of
Milbank, Tweed, Hadley & McCloy, special New York counsel to Chase, in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the Notes (to the extent that statements for such fees and
expenses have been delivered to the Borrowers), but subject to the limitations
set forth in the commitment letter dated October 4, 1996 from Chase and Chase
Securities Inc. addressed to the Borrowers.
6.02 Initial and Subsequent Loans. The obligation of any
Lender to make any Loan (including any Money Market Loan) to a Borrower upon
the occasion of each borrowing hereunder is subject to the further conditions
precedent that:
(a) in the case of a Syndicated Loan, the Applicable Borrower
shall have given notice of such borrowing by delivery of a Notice of
Borrowing in substantially the form of Exhibit D hereto to the
Administrative Agent;
(b) in the case of a Money Market Loan, the Applicable
Borrower shall have requested that the Lenders make offers to make
Money Market Loans by delivery of a Money Market Quote Request in
substantially the form of Exhibit E hereto to the Administrative
Agent; and
(c) both immediately prior to the making of such Loan and
also after giving effect thereto and to the intended use thereof, but
only if such borrowing will increase the outstanding aggregate
principal amount of the Loans under any Tranche owing by such Borrower
to any Lender hereunder:
(i) no Default shall have occurred and be
continuing; and
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(ii) the representations and warranties made by such
Borrower in Section 7 hereof (other than the Excluded
Representations, but, if such borrowing will increase the
outstanding aggregate principal amount of the Loans under any
Tranche owing by COFC to any Lender hereunder, including the
representations and warranties made by each Borrower in
Section 7 hereof, other than the Excluded Representations)
shall be true and complete on and as of the date of the making
of such Loan 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).
Section 7. Representations and Warranties. Each Borrower
represents and warrants to the Administrative Agent and the Lenders that:
7.01 Corporate Existence. Each of such Borrower and its
Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect. COB is a
member in good standing with the Federal Reserve System, and COB's deposit
accounts are insured by the Federal Deposit Insurance Corporation, and no
proceedings for the termination or revocation of such insurance are pending or,
to the knowledge of any Borrower, threatened.
7.02 Financial Condition. COFC has heretofore furnished to
each of the Lenders a consolidated balance sheet of COFC and its Subsidiaries
as at December 31, 1995 and the related consolidated statements of income,
changes in stockholders'/division equity and cash flows of COFC and its
Subsidiaries for the fiscal year ended on said date, with the opinion thereon
of Ernst & Young LLP, and the unaudited consolidated balance sheet of COFC and
its Subsidiaries as at September 30, 1996 and the related consolidated
statements of income, changes in stockholders'/division equity and cash flows
of COFC and its Subsidiaries for the nine-month period ended on such date. All
such financial statements present fairly, in all material respects, the
consolidated financial condition of COFC and its Subsidiaries as at said dates
and the consolidated results of their operations and their cash flows for the
fiscal year and nine-month period ended on said dates (subject, in the case of
such financial statements as at September 30, 1996, to normal year-end audit
adjustments), all in accordance with generally accepted accounting principles
in the United States of America and practices applied on a consistent basis.
Since December 31, 1995, there has been no material adverse change in the
Property, business, operations, financial condition, prospects or
capitalization of COFC and its Subsidiaries taken as a whole from that set
forth in said financial statements as at said date.
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7.03 Litigation. Except as identified in Schedule 7.03
hereto, there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of any Borrower) threatened against or affecting COFC or any of
its Subsidiaries as to which there is a reasonable possibility of an adverse
determination that could (either individually or in the aggregate) have a
Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of this
Agreement and the Notes and the other Basic Documents, the consummation of the
transactions herein contemplated or compliance with the terms and provisions
hereof will conflict with or result in a breach of, or require any consent
under, the charter or by-laws of any Borrower, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which COFC
or any of its Subsidiaries is a party or by which any of them or any of their
Property is bound or to which any of them is subject, or constitute a default
under any such agreement or instrument, except for any such conflict, breach or
default that, or consent that if not obtained, could not (either individually
or in the aggregate) have a Material Adverse Effect and could not subject the
Administrative Agent or any Lender to liability.
7.05 Action. Each Borrower has all necessary corporate
power, authority and legal right to execute, deliver and perform its
obligations under each of the Basic Documents to which it is a party and to
consummate the transactions contemplated thereby; the execution, delivery and
performance by each Borrower of each of the Basic Documents to which it is a
party and the consummation of the transactions contemplated thereby have been
duly authorized by all necessary corporate action on its part (including,
without limitation, any required shareholder approvals); and this Agreement has
been duly and validly executed and delivered by each Borrower and constitutes,
and each of the other Basic Documents to which it is a party when executed and
delivered for value will constitute, its legal, valid and binding obligation,
enforceable against such Borrower in accordance with its terms, except as may
be limited by (a) bankruptcy, insolvency, receivership, conservatorship,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) such enforceability may be limited
by the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
7.06 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency, or any securities exchange, are necessary for the execution,
delivery or performance by any Borrower of this Agreement or any of the other
Basic Documents to which any Borrower is a party or for the consummation of any
the transactions contemplated hereby or thereby or for the legality, validity
or enforceability hereof or thereof.
7.07 Use of Credit. No part of the proceeds of the Loans
hereunder will be used to buy or carry any Margin Stock.
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7.08 ERISA. Each Plan, and, to the knowledge of each
Borrower, each Multiemployer Plan, is in compliance in all material respects
with, and has been administered in all material respects in compliance with,
the applicable provisions of ERISA, the Code and the Age Discrimination in
Employment Act, as amended, and no event or condition has occurred and is
continuing as to which any Borrower would be under an obligation to furnish a
report to the Lenders under Section 8.01(k) hereof.
7.09 Taxes. COFC and its Subsidiaries are members of an
affiliated group of corporations filing consolidated returns for Federal income
tax purposes, of which COFC is the "common parent" (within the meaning of
Section 1504 of the Code) of such group. COFC and its Subsidiaries have filed
all Federal income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by COFC or any of its
Subsidiaries. The charges, accruals and reserves on the books of COFC and its
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Borrowers, adequate. No Borrower has given or been requested to
give a waiver of the statute of limitations relating to the payment of any
Federal, state, local and foreign taxes or other impositions.
7.10 Investment Company Act. Neither COFC nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.11 Public Utility Holding Company Act. Neither COFC 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.
7.12 Environmental Matters. Each of COFC and its
Subsidiaries has obtained all environmental, health and safety permits,
licenses and other authorizations required under all Environmental Laws to
carry on its business as now being or as proposed to be conducted, except to
the extent failure to have any such permit, license or authorization would not
(either individually or in the aggregate) have a Material Adverse Effect. Each
of such permits, licenses and authorizations is in full force and effect, and
each of COFC and its Subsidiaries is in compliance with the terms and
conditions thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in
any regulation, code, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved thereunder, except to
the extent failure to comply therewith would not (either individually or in the
aggregate) have a Material Adverse Effect.
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7.13 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of any Borrower to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement or included
herein or delivered pursuant hereto, when taken as a whole, do not contain any
untrue statement of material fact or omit to state any material fact necessary
to make the statements herein or therein, in light of the circumstances under
which they were made, not misleading. All written information furnished after
the date hereof by or on behalf of any Borrower to the Administrative Agent and
the Lenders in connection with this Agreement and the transactions contemplated
hereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified.
Notwithstanding anything in this Section 7 to the contrary, neither COB nor FSB
makes any representations or warranties under any of Sections 7.01, 7.04, 7.05,
7.06, 7.10, 7.11 and 7.12 as to COFC or any of its Subsidiaries (other than
with respect to COB, FSB and/or any of their respective Subsidiaries).
Section 8. Covenants. Each Borrower covenants and agrees
with the Lenders and the Administrative Agent that, so long as any Commitment
or Loan is outstanding and until payment in full of all amounts payable by each
Borrower hereunder:
8.01 Financial Statements Etc. Each Borrower shall deliver
or cause to be delivered to each of the Lenders:
(a) as soon as available and in any event within 60 days
after the end of each of the first three quarterly fiscal periods of
each fiscal year of COFC, consolidated statements of income, changes
in stockholders'/division equity and cash flows of COFC and its
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 sheet of COFC and its Subsidiaries as at the end
of such period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding periods in
the preceding fiscal year (except that, in the case of balance sheets,
such comparison shall be to the last day of the prior fiscal year),
accompanied by a certificate of a senior financial officer of COFC,
which certificate shall state that said financial statements present
fairly, in all material respects, the consolidated financial condition
and results of operations of COFC and its Subsidiaries in accordance
with generally accepted accounting principles in the United States of
America, consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments) (or, in lieu thereof,
copies of COFC's Quarterly Report on Form 10-Q as filed with the SEC
containing such financial statements and information);
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(b) as soon as available and in any event within 120 days
after the end of each fiscal year of COFC, consolidated statements of
income, changes in stockholders'/division equity and cash flows of
COFC and its Subsidiaries for such fiscal year and the related
consolidated and consolidating balance sheets of COFC and its
Subsidiaries as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding consolidated figures as of
the end of and 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
financial statements present fairly, in all material respects, the
consolidated financial condition and results of operations and cash
flows of COFC and its Subsidiaries as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles in the United States of America (or, in lieu thereof,
copies of COFC's Annual Report on Form 10-K as filed with the SEC
containing such financial statements and information);
(c) as soon as available and in any event within 60 days
after the end of each of the first three quarterly fiscal periods of
each fiscal year of COB, consolidated statements of income, changes in
stockholders' equity and cash flows of COB and its 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 sheet of COB and its Subsidiaries as at the end of such
period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding periods in
the preceding fiscal year (except that, in the case of balance sheets,
such comparison shall be to the last day of the prior fiscal year),
accompanied by a certificate of a senior financial officer of COB,
which certificate shall state that said financial statements present
fairly, in all material respects, the consolidated financial condition
and results of operations of COB and its Subsidiaries in accordance
with generally accepted accounting principles in the United States of
America, consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(d) as soon as available and in any event within 120 days
after the end of each fiscal year of COB, consolidated statements of
income, changes in stockholders' equity and cash flows of COB and its
Subsidiaries for such fiscal year and the related consolidated and
consolidating balance sheets of COB and its Subsidiaries as at the end
of such fiscal year, setting forth in each case in comparative form
the corresponding consolidated figures as of the end of and 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 financial statements
present fairly, in all material respects, the consolidated financial
condition and results of operations and cash flows of COB and its
Subsidiaries as at the end of, and for, such fiscal year in accordance
with generally accepted accounting principles in the United States of
America;
(e) as soon as available and in any event within 60 days
after the end of each of the first three quarterly fiscal periods of
each fiscal year of FSB, consolidated statements of income, changes in
stockholders' equity and cash flows of FSB and its Subsidiaries for
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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 sheet of FSB and its Subsidiaries as at the end of such
period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding periods in
the preceding fiscal year (except that, in the case of balance sheets,
such comparison shall be to the last day of the prior fiscal year),
accompanied by a certificate of a senior financial officer of FSB,
which certificate shall state that said financial statements present
fairly, in all material respects, the consolidated financial condition
and results of operations of FSB and its Subsidiaries in accordance
with generally accepted accounting principles in the United States of
America, consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(f) as soon as available and in any event within 120 days
after the end of each fiscal year of FSB, consolidated statements of
income, changes in stockholders' equity and cash flows of FSB and its
Subsidiaries for such fiscal year and the related consolidated and
consolidating balance sheets of FSB and its Subsidiaries as at the end
of such fiscal year, setting forth in each case in comparative form
the corresponding consolidated figures as of the end of and 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 financial statements
present fairly, in all material respects, the consolidated financial
condition and results of operations and cash flows of FSB and its
Subsidiaries as at the end of, and for, such fiscal year in accordance
with generally accepted accounting principles in the United States of
America;
(g) as soon as available and in any event within 60 days
after the end of each quarterly fiscal period of each fiscal year of
COB, the "Consolidated Reports of Condition and Income" for COB and
its Insured Subsidiaries, all prepared in accordance with regulatory
accounting principles prescribed by the Federal Financial Institutions
Examination Counsel;
(h) as soon as available and in any event within 60 days
after the end of each quarterly fiscal period of each fiscal year of
FSB, the "Consolidated Reports of Condition and Income" for FSB and
its Insured Subsidiaries, all prepared in accordance with regulatory
accounting principles prescribed by the Federal Financial Institutions
Examination Counsel;
(i) promptly upon their becoming available, copies of all
registration statements (excluding exhibits to such registration
statements, and other than registration statements filed on Form S-8
or any successor form) and regular periodic reports filed on Form
10-K, Form 10-Q or Form 8-K (or any successor form), if any, that any
Borrower shall have filed with the SEC or any national securities
exchange;
(j) promptly upon the mailing thereof to the shareholders of
COFC generally, copies of all financial statements, reports and proxy
statements so mailed;
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(k) as soon as possible, and in any event within ten days
after any Borrower knows or has reason to believe that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan has occurred or exists, a statement signed by a
senior financial officer of such Borrower setting forth details
respecting such event or condition and the action, if any, that such
Borrower or its ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or given
to the PBGC by such Borrower or an ERISA Affiliate with respect to
such event or condition, except that a copy of any notice required to
be filed for an event described in subparagraph (i) below may be
provided at a later date (to be no later than the date such notice is
filed) if it has not been filed as of the date of the signed statement
described above):
(i) any reportable event, as defined in Section
4043(c) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which the requirement to provide 30
days' notice to the PBGC under Section 4043(a) or Section
4043(b) of ERISA applies, other than a reportable event for
which the requirement to provide such notice has been waived
by regulation or for which the PBGC has announced in Technical
Update 95-3 (or any subsequent administrative guideline) that
it will not apply a penalty for failure to provide such notice
(provided that a failure to meet the minimum funding standard
of Section 412 of the Code or Section 302 of ERISA, including,
without limitation, the failure to make on or before its due
date a required installment under Section 412(m) of the Code
or Section 302(e) of ERISA, shall be 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 Plan;
(ii) the distribution under Section 4041(c) of ERISA
of a notice of intent to terminate any Plan or any action
taken by any Borrower or an ERISA Affiliate to terminate any
Plan under Section 4041(c) of ERISA;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by any Borrower or any ERISA Affiliate of a notice
from a Multiemployer Plan that such action has been taken by
the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by any Borrower or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by any Borrower
or any ERISA Affiliate of notice from a 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;
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(v) the institution of a proceeding by a fiduciary
of any Multiemployer Plan against any Borrower or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is
not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if any Borrower or an ERISA
Affiliate fails to timely provide security to such Plan in
accordance with the provisions of said Sections;
(l) within five days after any executive officer of any
Borrower obtains knowledge of the occurrence of any Default, if such
Default is continuing, a notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter
as possible, a description of the action that the Borrowers have taken
or propose to take with respect thereto;
(m) promptly after any Borrower knows that a change in the
Debt Rating assigned by any Rating Agency has occurred, a notice
describing the same;
(n) at the time any set of financial statements is furnished
pursuant to paragraph (a), (b), (c), (d), (e) or (f) above, a
certificate of a senior financial officer of each Borrower (i) to the
effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in
reasonable detail and describing the action that the Borrowers have
taken or propose to take with respect thereto) and (ii) setting forth
in reasonable detail (including, without limitation, as to the
component parts of relevant definitions of accounting terms included
in Section 1.01 hereof) the computations necessary to determine
whether such Borrower is in compliance with its obligations under
Sections 8.07 and 8.08 hereof as of the end of the respective
quarterly fiscal period or fiscal year; and
(o) from time to time such other information regarding the
financial condition, operations, business or prospects of COFC or any
of its Subsidiaries as any Lender or the Administrative Agent may
reasonably request.
8.02 Litigation. Each Borrower will promptly give to each
Lender notice of all legal or arbitral proceedings, and of all investigations
or proceedings by or before any governmental or regulatory authority or agency,
and any material development in respect of such legal or other proceedings,
against or affecting such Borrower or any of its Subsidiaries, except
investigations or proceedings (a) as to which there is no reasonable
possibility of an adverse determination or (b) that, if adversely determined,
would not (either individually or in the aggregate) have a Material Adverse
Effect.
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8.03 Existence, Etc. Each Borrower will, and will cause each
of its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
rights, privileges, licenses and franchises necessary or desirable in
the normal conduct of its business (provided that nothing in this
Section 8.03 shall prohibit any transaction expressly permitted under
Section 8.05 hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory
authorities (including, without limitation, ERISA, all Environmental
Laws and the FDIA and all rules and regulations promulgated
thereunder) if failure to comply with such requirements could (either
individually or in the aggregate) have a Material Adverse Effect;
(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 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 in accordance
with generally accepted accounting principles in the United States of
America;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted, except to the extent that the failure to maintain any such
Property in good working order and condition would not (either
individually or in the aggregate) have a Material Adverse Effect and
would not interfere in the ordinary conduct of its business or
operations;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles in the United States of America consistently
applied; and
(f) permit representatives of any Lender or the
Administrative Agent, during normal business hours, to examine, copy
and make extracts from its books and records, to inspect any of its
Properties, and to discuss its business and affairs with its officers,
all to the extent reasonably requested by such Lender or the
Administrative Agent (as the case may be); provided that no Borrower
shall be required to provide (i) the names of, or other information
that could be used to identify, account holders, (ii) any proprietary
strategic insights or statistical models concerning account holders or
potential account holders, (iii) information regarding the specific
nature or application of any of the information-based strategies
employed by COFC and its Subsidiaries in the conduct of their business
or (iv) any proprietary plans or other proprietary information
relating to the development of the business of COFC and its
Subsidiaries.
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8.04 Insurance. Each Borrower will, and will cause each of
its Subsidiaries to, maintain (either in its own name or in the name of a
Borrower) with financially sound and responsible insurance companies, insurance
on all their respective properties in at least such amounts and against at
least such risks (and with such risk retention) as are usually insured against
in the same general area by companies of established repute engaged in the same
or a similar business; and will furnish to the Lenders, upon request from the
Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
8.05 Prohibition of Fundamental Changes. No Borrower will,
nor will it permit any of its Subsidiaries to: (a) enter into any transaction
of merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); or (b) convey, sell, lease,
transfer or otherwise dispose of, in one transaction or a series of
transactions (a "Transfer"), all or substantially all of its business or
Property; provided that:
(i) any Subsidiary of COB may be merged or consolidated with
or into, or Transfer all or substantially all of its business or
Property to, (x) COB if COB is the continuing, surviving or transferee
corporation or (y) any other Subsidiary of COB;
(ii) any Subsidiary of FSB may be merged or consolidated with
or into, or Transfer all or substantially all of its business or
Property to, (x) FSB if FSB is the continuing, surviving or transferee
corporation or (y) any other Subsidiary of FSB;
(iii) the restriction set forth in clause (b) above shall
apply, in the case of COB, only to a Transfer of Managed Receivables;
(iv) any Subsidiary of COFC (other than COB, FSB or any of
their respective Subsidiaries) may be merged or consolidated with or
into, or Transfer all or substantially all of its business or Property
to, (x) COFC if COFC is the continuing, surviving or transferee
corporation or (y) any other Subsidiary of COFC;
(v) COFC or any of its Subsidiaries (other than COB) may be
merged or consolidated with or into, or Transfer all or substantially
all of its business or Property to, COB;
(vi) any Subsidiary of COFC (other than COB) may merge or
consolidate with or into, or Transfer all or substantially all of its
business or Property to, any Person (other than COFC or any of its
Subsidiaries) so long as (x) the continuing, surviving or transferee
corporation is a Subsidiary of COFC and (y) no Event of Default has
occurred and is continuing immediately prior to such merger,
consolidation or Transfer or would result therefrom; and
(vii) nothing in this Section 8.05 shall prohibit COFC or any
of its Subsidiaries from the sale of credit card loans and other
finance receivables pursuant to securitizations.
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8.06 Limitation on Liens. No Borrower will, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
(a) any Lien existing on any Property of any corporation at
the time such corporation becomes a Subsidiary of a Borrower and not
created in contemplation of such event;
(b) any Lien on any Property securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the cost of
acquiring such Property, provided that such Lien attaches to such
Property concurrently with or within 90 days after the acquisition
thereof;
(c) any Lien on any Property of any corporation existing at
the time such corporation is merged or consolidated with or into COFC
or any of its Subsidiaries and not created in contemplation of such
event;
(d) any Lien existing on any Property prior to the
acquisition thereof by COFC or any of its Subsidiaries and not created
in contemplation of such acquisition;
(e) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted
by any of the foregoing clauses of this Section 8.06, provided that
such Indebtedness is not increased and is not secured by any
additional Property;
(f) Liens for taxes not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate
reserves (in the good faith judgment of the management of the relevant
Borrower) have been established;
(g) Liens in respect of Property of COFC or any of its
Subsidiaries imposed by law (i) which are incurred in the ordinary
course of business and (x) which do not in the aggregate materially
detract from the value of such Property or materially impair the use
thereof in the operation of the business of COFC or any of its
Subsidiaries or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the Property subject to such Lien
or (ii) which do not relate to material liabilities of COFC and its
Subsidiaries and do not in the aggregate materially detract from the
value of the Property of COFC and its Subsidiaries taken as a whole;
provided that no Lien permitted under this clause (g) may secure any
obligation in an amount exceeding $10,000,000;
(h) Liens arising in the ordinary course of business in
connection with securitizations of credit cards and other finance
receivables by COFC or any of its Subsidiaries;
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(i) Liens on cash and readily marketable securities securing
obligations in respect of Swap Agreements in an amount not to exceed
the (i) net mark to market exposure of the counterparty thereunder
(subject to customary minimum transfer thresholds and periodic
valuations) plus (ii) any additional amounts requested by
counterparties in accordance with their general internal credit
guidelines or policies with respect to particular types of Swap
Agreements; and
(j) Liens on Property of a Borrower and its Subsidiaries not
otherwise permitted by the foregoing clauses of this Section 8.06
securing Indebtedness of such Borrower or any of its Subsidiaries in
an aggregate principal or face amount not to exceed 10% of Tangible
Net Worth with respect to such Borrower.
8.07 Financial Covenants.
(a) No Borrower will permit its Delinquency Ratio on the last
day of any calendar month to exceed 5.5% (with respect to FSB, subject to the
proviso to the definition of "Delinquency Ratio" in Section 1.01 hereof).
(b) No Borrower will permit its Tier 1 Capital to Managed
Receivables Ratio on any date to be less than 4.0%; provided that the Tier 1
Capital to Managed Receivables Ratio of any Borrower may be less than 4.0%
during any period of 90 days so long as (i) on the last day of the fiscal
quarter ending on or immediately prior to such 90-day period, the Tier 1
Capital to Managed Receivables Ratio of such Borrower was not less than 4.0%
and (ii) at no time during such 90-day period is the Tier 1 Capital to Managed
Receivables Ratio of such Borrower less than 3.5%.
(c) No Borrower will permit its Leverage Ratio on any date to
exceed 10.0 to 1.
(d) COFC will not permit Tangible Net Worth with respect to
COFC on any date of determination to be less than the sum of (i) $500,000,000
plus (ii) 40% of COFC Cumulative Net Income as of the last day of the fiscal
quarter of COFC most recently ended plus (z) 40% of COFC Cumulative Equity
Proceeds as of such date of determination.
(e) COFC will not permit the Double Leverage Ratio on any
date of determination to exceed 1.25 to 1.
(f) Neither COB nor FSB will permit its Tier 1 Leverage Ratio
on any date to be less than 5.0%.
(g) Neither COB nor FSB will permit the Tier 1 Capital to
Risk Adjusted Assets Ratio on any date to be less than 6.0%.
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(h) Neither COB nor FSB will permit its Total Capital to Risk
Adjusted Assets Ratio on any date to be less than 10.0%.
(i) COB will not permit its Tangible Net Worth on any date to
be less than $450,000,000. FSB will not permit its Tangible Net Worth on any
date to be less than $25,000,000.
8.08 Regulatory Capital. Each Borrower will cause each of
its Insured Subsidiaries to be (and each of COB and FSB so long as it is an
Insured Subsidiary will be) at all times "adequately capitalized" for purposes
of 12 U.S.C. Section 1831o, as amended, re-enacted or redesignated from time to
time, and at all times to maintain (and each of COB and FSB so long as
it is an Insured Subsidiary will maintain) such amount of capital as may be
prescribed from time to time, whether by regulation, agreement or order, by
each Bank Regulatory Authority having jurisdiction over such Insured
Subsidiary.
8.09 Lines of Business.
(a) COB will not, nor will it permit any of its Subsidiaries
to, engage to any extent in any line or lines of business activity other than
as permitted by its charter and as necessary to conduct the business of a
limited purpose credit card bank.
(b) FSB will not, nor will it permit any of its Subsidiaries
to, engage to any extent in any line or lines of business activity other than
as permitted by its charter.
(c) COFC will not, nor will it permit any of its Subsidiaries
to, engage to any material extent in any line or lines of business activity
other than consumer-oriented or consumer-related business activities and
database marketing activities, and other business activities to the extent such
other business activities are direct applications of the information-based
strategies and related proprietary strategies used by COB in the conduct of its
business on the date of this Agreement.
8.10 Use of Proceeds. Each Borrower will use the proceeds of
the Loans made to such Borrower hereunder for general corporate purposes (in
compliance with all applicable legal and regulatory requirements, including,
without limitation, Regulations G, T, U and X and the Securities Act and the
Exchange Act and the regulations thereunder); provided that (a) neither the
Administrative Agent nor any Lender shall have any responsibility as to the use
of any of such proceeds and (b) no Borrower will use the proceeds of the Loans
made hereunder to acquire directly or indirectly a majority of the voting stock
issued by, or all or substantially all of the assets of, any Person except with
the prior written consent of the Board of Directors of such Person or any
controlling shareholder of such Person.
Notwithstanding anything in this Section 8 to the contrary, neither COB nor FSB
shall have any obligation (a) to cause COFC or any of its Subsidiaries (other
than with respect to COB, FSB and/or any of their respective Subsidiaries) to
take or refrain from taking any action or (b) to
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cause or prevent any event or circumstance from occurring with respect to COFC
or any of its Subsidiaries (other than with respect to COB, FSB and/or any of
their respective Subsidiaries).
Section 9. Events of Default. If one or more of the
following events (herein called "Events of Default") shall occur and be
continuing:
(a) Any Borrower shall: (i) default in the payment of any
principal of any Loan when due (whether at stated maturity or at
mandatory or optional prepayment); or (ii) default in the payment of
any interest on any Loan, any fee or any other amount payable by it
hereunder when due and such default shall have continued unremedied
for five or more days; or
(b) Any Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness aggregating $35,000,000 (or its equivalent in any
other currency or currencies) or more; or any event specified in any
note, agreement, indenture or other document evidencing or relating to
any such Indebtedness shall occur if the effect of such event is to
cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its
stated maturity; or COFC or any of its Subsidiaries shall default in
the payment or delivery when due (whether upon termination or
liquidation or otherwise), under one or more Swap Agreements, of
amounts or property required to be paid or delivered having an
aggregate fair market value of $35,000,000 (or its equivalent in any
other currency or currencies) or more; or
(c) Any representation, warranty or certification made or
deemed made herein (or in any modification or supplement hereto) by
any Borrower, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof, shall prove to
have been false or misleading as of the time made, deemed made or
furnished in any material respect; or
(d) Any Borrower shall default in the performance of any of
its obligations under any of Sections 8.01(l), 8.01(m), 8.05, 8.06,
8.07, 8.08, 8.09 and 8.10 hereof; or any Borrower shall default in the
performance of any of its other obligations in this Agreement and such
default shall continue unremedied for a period of 30 or more days
after notice thereof to such Borrower by the Administrative Agent or
any Lender (through the Administrative Agent); or
(e) Any Borrower or any of its Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
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(f) Any Borrower or any of its Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by,
a receiver, conservator, custodian, trustee, examiner or liquidator of
itself or of all or a substantial part of its Property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up,
or composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the Bankruptcy
Code or (vi) take any corporate action for the purpose of effecting
any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of any Borrower or any of its Subsidiaries, in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
receiver, conservator, custodian, trustee, examiner, liquidator or the
like of such Borrower or Subsidiary or of all or any substantial part
of its Property or (iii) similar relief in respect of such Borrower or
Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and
such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or
more days; or an order for relief against any Borrower or any of its
Subsidiaries shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) Any Insured Subsidiary shall cease accepting deposits or
making commercial loans on the instruction of any Bank Regulatory
Authority with authority to give such instruction other than pursuant
to an instruction generally applicable to banks organized under the
jurisdiction of organization of such Insured Subsidiary; or
(i) Any Insured Subsidiary shall cease to be an insured bank
under the FDIA and all rules and regulations promulgated thereunder;
or
(j) Any Insured Subsidiary shall be required (whether or not
the time allowed by the appropriate Bank Regulatory Authority for the
submission of such plan has been established or elapsed) to submit a
capital restoration plan of the type referred to in 12 U.S.C.
Section 1831o(b)(2)(C), as amended, re-enacted or redesignated from
time to time; or
(k) COFC shall Guarantee in writing the capital of any
Insured Subsidiary as part of or in connection with any agreement or
arrangement with any Bank Regulatory Authority; or
(l) A final judgment or judgments for the payment of money of
$35,000,000 (or its equivalent in any other currency or currencies) or
more in the aggregate shall be rendered by one or more courts,
administrative tribunals or other bodies having
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jurisdiction against any Borrower or any of its Subsidiaries and the
same shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured,
within 30 days from the date of entry thereof and the relevant
Borrower or Subsidiary shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(m) An event or condition specified in Section 8.01(k) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, any Borrower or any ERISA Affiliate shall
incur or in the opinion of the Majority Lenders shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan or the
PBGC (or any combination of the foregoing) that, in the determination
of the Majority Lenders, would (either individually or in the
aggregate) have a Material Adverse Effect; or
(n) The expiration or termination of the Undertaking or the
failing or ceasing of the Undertaking to be in full force and effect
(in either case other than in accordance with its terms) prior to the
expiration or termination of all Commitments and the irrevocable
payment in full of all amounts owing by FSB under this Agreement; or
COB shall disaffirm, disclaim, repudiate or reject, in whole or in
part, or challenge the validity of, the Undertaking; or
(o) COFC shall at any time fail to own and control,
beneficially and of record (free and clear of all Liens and other
encumbrances), at least 95% of the issued and outstanding shares of
capital stock of each class of Voting Securities issued by COB; or
COFC shall at any time fail to own and control, beneficially and of
record (free and clear of all Liens and other encumbrances), at least
95% of the issued and outstanding shares of capital stock of each
class of Voting Securities issued by FSB; or
(p) During any period of 25 consecutive calendar months, a
majority of the Board of Directors of COFC shall no longer be composed
of individuals (i) who were members of said Board on the first day of
such period, (ii) whose election or nomination to said Board was
approved by individuals referred to in clause (i) above constituting
at the time of such election or nomination at least a majority of said
Board or (iii) whose election or nomination to said Board was approved
by individuals referred to in clauses (i) and (ii) above constituting
at the time of such election or nomination at least a majority of said
Board; or
(q) Any person or group of persons (within the meaning of
Section 13 or 14 of the Exchange Act, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the SEC under the Exchange Act) of 20% or more of the issued and
outstanding shares of voting common stock issued by COFC;
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THEREUPON: (1) in the case of an Event of Default other than one referred to
in clause (f) or (g) of this Section 9 with respect to any Borrower, (A) upon
request of the Majority Tranche Lenders with respect to the relevant Tranche,
the Administrative Agent will, by notice to the Applicable Borrowers, terminate
the Commitments under such Tranche and they shall thereupon terminate, and (B)
upon request of Lenders holding more than 50% of the aggregate unpaid principal
amount of the Loans owing by a Borrower, the Administrative Agent will, by
notice to such Borrower declare the principal amount then outstanding of, and
the accrued interest on, the Loans and all other amounts payable by such
Borrower hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05 hereof) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by such Borrower; and (2) in the case of the occurrence
of an Event of Default referred to in clause (f) or (g) of this Section 9 with
respect to any Borrower, the Commitments under each Tranche shall automatically
be terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by the Borrowers hereunder
and under the Notes (including, without limitation, any amounts payable under
Section 5.05 hereof) shall automatically become immediately due and payable
without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by each Borrower.
Notwithstanding the foregoing, no Event of Default under any
of paragraphs (a), (b), (c), (d) or (l) of this Section 9 solely with respect
to COFC or any of its Subsidiaries (other than COB, FSB and/or any of their
respective Subsidiaries) shall in and of itself permit the Administrative Agent
or the Lenders (a) to declare the principal amount then outstanding of, and the
accrued interest on, the Loans owing by COB or FSB or any other amounts payable
by COB or FSB hereunder or under the Notes to be forthwith due and payable or
(b) to terminate the Commitments (except with respect to a termination of the
Tranche B-($) Commitments or Tranche B-(MC) Commitments insofar as the same
relate to Tranche B-($) Loans or Tranche B-(MC) Loans made or to be made to
COFC).
Section 10. The Administrative Agent.
10.01 Appointment, Powers and Immunities. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
with such powers as are specifically delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 10.05 and the first sentence of Section 10.06 hereof
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 shall not by reason of this
Agreement be a trustee for any Lender;
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(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties made by any other Person
contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by any of them from any
other Person under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other document referred to or provided for
herein 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; and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or in connection herewith, except
for its own gross negligence or willful misconduct.
The Administrative 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 Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes
hereof unless and until a notice of the assignment or transfer thereof shall
have been filed with the Administrative Agent, together with the consent of the
Applicable Borrower to such assignment or transfer (to the extent required by
Section 11.06(b) hereof).
10.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including, without limitation, any thereof by telephone,
telecopy, telegram or cable) reasonably and in good faith 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 Administrative Agent.
As to any matters not expressly provided for by this Agreement, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions given by the
Majority Lenders, and such instructions of the Majority Lenders and any action
taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
10.03 Defaults. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or a Borrower specifying
such Default and stating that such notice is a "Notice of Default". In the
event that the Administrative Agent receives such a notice of the occurrence of
a Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Sections 10.07 and 11.04
hereof) take such action with respect to such Default as shall be directed by
the Majority Lenders, provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such 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,
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only with the consent or upon the authorization of the Majority Lenders, the
Majority Tranche Lenders with respect to a particular Tranche, the Majority
Tranche B Lenders, the Requisite Lenders or all of the Lenders.
10.04 Rights as a Lender. With respect to its Commitment and
the Loans made by it, Chase (and any successor acting as Administrative 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 Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include Chase (and any successor acting
as Administrative Agent) in its individual capacity. Chase (and any successor
acting as Administrative 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 any Borrower (and any of its Subsidiaries or Affiliates) as if it
were not acting as the Administrative Agent, and Chase (and any such successor)
and its affiliates may accept fees and other consideration from any Borrower
for services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
10.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 11.03 hereof,
but without limiting the obligations of the Borrowers under said Section 11.03)
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 Administrative 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
documents contemplated by or referred to herein or the transactions
contemplated hereby (including, without limitation, the costs and expenses that
any Borrower is obligated to pay under Section 11.03 hereof, but excluding,
unless a 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 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 Administrative
Agent.
10.06 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of each
Borrower and its Subsidiaries and decision to enter into this Agreement and
that it will, independently and without reliance upon the Administrative 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. The Administrative Agent
shall not be required to keep itself informed as to the performance or
observance by any Borrower of this Agreement or any other document referred to
or provided for herein or to inspect the Properties or books of any Borrower or
any of its Subsidiaries. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent
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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 Borrower or any of its Subsidiaries (or any of their affiliates) that may
come into the possession of the Administrative Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required
of the Administrative Agent hereunder, the Administrative Agent shall in all
cases be fully justified in failing or refusing to act hereunder unless it
shall receive further assurances to its satisfaction from the Lenders of their
indemnification obligations under Section 10.05 hereof against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
10.08 Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrowers, and the Administrative Agent
may be removed at any time with or without cause by the Majority Lenders. Upon
any such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent's
giving of notice of resignation or the Majority Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, that shall be
a bank with a combined capital and surplus of at least $500,000,000 that has an
office in New York, New York. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the
provisions of this Section 10 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 Administrative Agent.
10.09 Co-Agents; Etc. None of the Documentation Agent, the
Syndication Agent, the Co-Agents and the Lead Manager shall have any
obligations under this Agreement except (a) in its capacity as a "Lender"
hereunder and (b) if and so long as such Person is the "Administrative Agent"
hereunder, in its capacity as Administrative Agent hereunder.
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Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Administrative
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
any Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any Note
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.
11.02 Notices. All notices, requests and other
communications provided for herein (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including, without limitation, by telecopy), or,
with respect to notices given pursuant to Section 2.03 hereof, 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 telecopier or personally delivered or, in
the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
11.03 Expenses, Etc. Each Borrower agrees to pay or
reimburse each of the Lenders and the Administrative Agent for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy, special New York counsel to Chase) in connection with
(i) the negotiation, preparation, execution and delivery of this Agreement and
the making of the Loans hereunder (subject to the limitations set forth in the
commitment letter dated October 4, 1996 from Chase and Chase Securities Inc.
addressed to the Borrowers) and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this Agreement or any
of the other Basic Documents (whether or not consummated); (b) all reasonable
out-of-pocket costs and expenses of the Lenders and the Administrative Agent
(including, without limitation, the reasonable fees and expenses of legal
counsel, including, if applicable, the allocated costs of in-house counsel) in
connection with (i) any Default and any enforcement or collection proceedings
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 11.03; 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 Basic Documents or any other document referred to herein;
provided that COB shall have no such payment or reimbursement obligation in
connection with Loans made to COFC.
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Each Borrower hereby agrees to indemnify the Administrative
Agent and the Lenders and their affiliates and the respective directors,
officers, employees, attorneys and agents thereof from, and hold each of them
harmless against, 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 Administrative 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, and whether or not the Administrative Agent or any Lender is
a party to such litigation or other proceedings) relating to this Agreement or
the Loans hereunder or any actual or proposed use by any Borrower or any of its
Subsidiaries of the proceeds of any of the Loans hereunder, including, without
limitation, the reasonable fees and disbursements of counsel, including, if
applicable, the allocated costs of in-house 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);
provided that COB shall have no liability under the foregoing indemnity in
connection with events or circumstances relating solely to COFC or any of its
Subsidiaries (other than COB or any of its Subsidiaries).
11.04 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be modified or
supplemented only by an instrument in writing signed by the Borrowers and the
Majority Lenders, or by the Borrowers and the Administrative Agent acting with
the consent of the Majority Lenders, and any provision of this Agreement may be
waived only by an instrument in writing signed by the Majority Lenders or by
the Administrative 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 under the relevant Tranche or by the
Administrative Agent acting with the consent of all of the Lenders under such
Tranche: (i) increase, or extend the term of the Commitments under such
Tranche, or extend the time or waive any requirement for the reduction or
termination of the Commitments under such Tranche, (ii) extend the date fixed
for the payment of principal of or interest on any Loan under such Tranche or
any fee payable hereunder in respect of such Tranche, (iii) reduce the amount
of any such payment of principal, (iv) reduce the rate at which interest is
payable on such principal or any such fee is payable or (v) alter the rights or
obligations of an Applicable Borrower to prepay Loans under such Tranche; (b)
no modification, supplement or waiver shall, unless by an instrument signed by
all of the Lenders or by the Administrative Agent acting with the consent of
all of the Lenders: (i) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied as between the
Lenders under different Tranches or as between Syndicated Loans or Money Market
Loans, (ii) alter the terms of this Section 11.04 or Section 2.12, 4.02, 4.07
or 10.09 hereof, (iii) modify the definition of the term "Majority Lenders",
"Majority Tranche Lenders", "Majority Tranche B Lenders" or "Requisite 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, or (iv) waive any of the conditions precedent set forth in
Section 6.01 hereof; (c) notwithstanding the foregoing, if default by COFC in
the performance of any provision of this Agreement, or any other event or
circumstance,
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would constitute an Event of Default under any of paragraphs (a), (b), (c), (d)
or (l) of Section 9 hereof solely with respect to COFC or any of its
Subsidiaries (other than COB or any of its Subsidiaries), then, except with
respect to the matters relating to Tranche B-($) or Tranche B-(MC) identified
in the lettered subclauses of clause (a) above (the modification, supplement or
waiver of which shall require the consent of all of the Tranche B-($) Lenders
or Tranche B-(MC) Lenders, as the case may be), such provision may be modified,
supplemented or waived, and any such Event of Default may be waived, by an
instrument in writing signed by the Borrowers and the Majority Tranche Lenders
with respect to Tranche B-($) or Tranche B-(MC), as the case may be, or by the
Borrowers and the Administrative Agent acting with the consent of the Majority
Tranche Lenders with respect to Tranche B-($) or Tranche B-(MC), as the case
may be; and (d) any modification or supplement of Section 10 hereof, or of any
of the rights or duties of the Administrative Agent hereunder, shall require
the consent of the Administrative Agent. For purposes of this Section 11.04
and Section 11.06(c) hereof, no modification, supplement or waiver relating to
any of Sections 7, 8 and 9 of this Agreement shall be deemed to increase, or
extend the term of, the Commitments under any Tranche.
Anything in this Agreement to the contrary notwithstanding, if
at a time when the conditions precedent set forth in Section 6 hereof to any
Loan hereunder are, in the opinion of the Majority Lenders, satisfied, any
Lender shall fail to fulfill its obligations to make such Loan (any such
Lender, a "Defaulting Lender") then, for so long as such failure shall
continue, the Defaulting Lender shall (unless the Borrowers and the Majority
Lenders, determined as if the Defaulting Lender were not a "Lender" hereunder,
shall otherwise consent in writing) be deemed for all purposes relating to
amendments, modifications, waivers or consents under this Agreement (including,
without limitation, under this Section 11.04) to have no Loans or Commitments,
shall not be treated as a "Lender" hereunder when performing the computation of
Majority Lenders, Majority Tranche Lenders with respect to any Tranche,
Majority Tranche B Lenders or Requisite Lenders, and shall have no rights under
the preceding paragraph of this Section 11.04; provided that any action taken
by the other Lenders pursuant to this paragraph with respect to the matters
referred to in clause (a) or (b) of the preceding paragraph shall not be
effective as against the Defaulting Lender.
11.05 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.
11.06 Assignments and Participations.
(a) No Borrower may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders
and the Administrative Agent.
(b) Each Lender may (with the consent of the Administrative
Agent and the Applicable Borrowers) assign any of its Loans, Note(s) and
Commitment(s); provided that:
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(i) no such consent by any Borrower or the Administrative
Agent shall be required in the case of any assignment to (x) a
subsidiary or other affiliate of such Lender or (y) another Lender;
(ii) except to the extent the Administrative Agent and the
Applicable Borrowers shall otherwise consent, any such partial
assignment (other than to another Lender) shall be in an amount at
least equal to $10,000,000 (in the case of Tranche A-($)) or
$5,000,000 (in the case of Tranche A-(MC), Tranche B-($) or Tranche
B-(MC));
(iii) each such assignment by a Lender of its Syndicated
Loans, Note(s) or Commitment under any Tranche shall be made in such
manner so that the same portion of its Syndicated Loans, Note(s) and
Commitment under such Tranche is assigned to the respective assignee;
(iv) upon each such assignment, the assignor and assignee
shall deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee in the
amount of $3,500;
(v) upon each such assignment, if the assignee is not already
a Lender, the assignee shall deliver to the Administrative Agent an
Administrative Questionnaire (and the Administrative Agent shall
thereafter deliver a copy thereof to COB); and
(vi) no consent by a Borrower or the Administrative Agent to
any such assignment shall be unreasonably withheld or delayed (it
being agreed that it will not be unreasonable for the Applicable
Borrower(s) to withhold consent to an assignment to any assignee whose
long-term debt obligations are then rated below Baa3 by Moody's
Investors Service, Inc. or below BBB- by Standard & Poor's Ratings
Services).
Upon acceptance by the Administrative Agent of such Assignment and Acceptance
as provided below, from and after the effective date specified in such
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto, subject to Section 11.07 hereof). Upon its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in clause (iv) of this Section 11.06(b) and any
consent of the Borrowers to such assignment required by this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
effectiveness thereof in the register maintained by it for such purpose. No
assignment shall be effective for purposes of this Agreement unless it has been
accepted and so recorded in such register.
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(c) A Lender may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
held by it, or in its Commitment(s), provided that such Participant shall not
have any rights or obligations under this Agreement or any Note (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by a Borrower to any Lender under Section 5
hereof in respect of Loans held by it, and its Commitment(s), shall be
determined as if such Lender had not sold or agreed to sell any participations
in such Loans and Commitment(s), and as if such Lender were funding each of
such Loan and Commitment(s) in the same way that it is funding the portion of
such Loan and Commitment(s) in which no participations have been sold. In no
event shall a Lender that sells a participation under any Tranche agree with
the Participant to take or refrain from taking any action hereunder 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 of such
Lender's Commitment under such Tranche, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans under such
Tranche or any portion of any fee hereunder payable to the Participant under
such Tranche, (iii) reduce the amount of any such payment of principal, (iv)
reduce the rate at which interest is payable on such principal, or any such fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee or (v) consent to any
modification, supplement or waiver hereof to the extent that the same, under
Section 11.04 hereof, requires the consent of each Lender under such Tranche or
all of the Lenders.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 11.06, any Lender may
(without notice to any Borrower, the Administrative Agent or any other Lender
and without payment of any fee) assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank.
(e) A Lender may furnish any information concerning any
Borrower or any of its 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 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to any Borrower or any of its Affiliates or Subsidiaries,
and none of the Borrowers and their respective Affiliates and Subsidiaries
shall acquire any such assignment or participation, without the prior consent
of each Lender.
11.07 Survival. The obligations of each Borrower under
Sections 2.12, 5.01, 5.05, 5.06, 11.03 and 11.13 hereof, and the obligations of
the Lenders under Section 10.05 hereof, shall survive the repayment of the
Loans and the termination of the Commitments and, in the case of any Lender
that may assign any interest in its Commitment or Loans hereunder, shall
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survive the making of such assignment, notwithstanding that such assigning
Lender may cease to be a "Lender" hereunder. In addition, each representation
and warranty made, or deemed to be made by a notice of any Loan, 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 Loan, any
Default that may arise by reason of such representation or warranty proving to
have been false or misleading, notwithstanding that such Lender or the
Administrative Agent may have had notice or knowledge or reason to believe that
such representation or warranty was false or misleading at the time such Loan
was made.
11.08 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.
11.09 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.
11.10 Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York without reference to choice of law doctrine.
Each Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of the Supreme
Court of the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of New York,
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
11.11 Waiver of Jury Trial. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
85
-81-
11.12 Treatment of Certain Information; Confidentiality.
(a) Each Borrower acknowledges that from time to time
financial advisory, investment banking and other services may be offered or
provided to such Borrower or one or more of its Subsidiaries (in connection
with this Agreement or otherwise) by any Lender or by one or more subsidiaries
or affiliates of such Lender, and each Borrower hereby authorizes each Lender
to share any information delivered to such Lender by such Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Agreement, to any such subsidiary or affiliate,
it being understood that any such subsidiary or affiliate receiving such
information shall be bound by the provisions of paragraph (b) below as if it
were a Lender hereunder. Such authorization shall survive the repayment of the
Loans and the termination of the Commitments.
(b) Each Lender and the Administrative 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 the same nature and in accordance with safe and sound banking
practices, any non-public information supplied to it by any Borrower pursuant
to this Agreement that is identified by such Borrower as being confidential at
the time the same is delivered to the Lenders or the Administrative Agent,
provided that nothing herein shall limit the disclosure of any such information
(i) after such information shall have become public (other than through a
violation of this Section 11.12), (ii) to the extent required by statute, rule,
regulation or judicial process, (iii) to counsel for any of the Lenders or the
Administrative Agent, (iv) to bank examiners (or any other regulatory authority
having jurisdiction over any Lender or the Administrative Agent), or to
auditors or accountants, (v) to the Administrative Agent or any other Lender,
(vi) in connection with any litigation to which any one or more of the Lenders
or the Administrative Agent is a party, or in connection with the enforcement
of rights or remedies hereunder, (vii) to a subsidiary or affiliate of such
Lender as provided in paragraph (a) above or (viii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee
or participant (or prospective assignee or participant) first executes and
delivers to the respective Lender a Confidentiality Agreement substantially in
the form of Exhibit G hereto (or executes and delivers to such Lender an
acknowledgement to the effect that it is bound by the provisions of this
Section 11.12(b), which acknowledgement may be included as part of the
respective assignment or participation agreement pursuant to which such
assignee or participant acquires an interest in the Loans hereunder); provided,
further, that in no event shall any Lender or the Administrative Agent be
obligated or required to return any materials furnished by any Borrower. The
obligations of any assignee that has executed a Confidentiality Agreement in
the form of Exhibit G hereto shall be superseded by this Section 11.12 upon the
date upon which such assignee becomes a Lender hereunder pursuant to Section
11.06(b) hereof.
11.13 Judgment Currency. This is an international loan
transaction in which the specification of Dollars or an Alternative Currency,
as the case may be (the "Specified Currency"), and any payment in New York City
or the country of the Specified Currency, as the
86
-82-
case may be (the "Specified Place"), is of the essence, and the Specified
Currency shall be the currency of account in all events relating to Loans
denominated in the Specified Currency. The payment obligations of the
Borrowers under this Agreement and the Notes shall not be discharged by an
amount paid in another currency or in another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on conversion to
the Specified Currency and transfer to the Specified Place under normal banking
procedures does not yield the amount of the Specified Currency at the Specified
Place due hereunder. If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due hereunder in the Specified Currency into
another currency (the "Second Currency"), the rate of exchange which shall be
applied shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the Specified Currency with the Second
Currency on the Business Day next preceding that on which such judgment is
rendered. The obligation of each Borrower in respect of any such sum due from
it to the Administrative Agent or any Lender hereunder shall, notwithstanding
the rate of exchange actually applied in rendering such judgment, be discharged
only to the extent that on the Business Day following receipt by the
Administrative Agent or such Lender, as the case may be, of any sum adjudged to
be due hereunder or under the Notes in the Second Currency to the
Administrative Agent or such Lender, as the case may be, may in accordance with
normal banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged to be
due; and each Borrower hereby, as a separate obligation and notwithstanding any
such judgment, agrees to indemnify the Administrative Agent or such Lender, as
the case may be, against, and to pay the Administrative Agent or such Lender,
as the case may be, on demand in the Specified Currency, any difference between
the sum originally due to the Administrative Agent or such Lender, as the case
may be, in the Specified Currency and the amount of the Specified Currency so
purchased and transferred.
87
-83-
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.
CAPITAL ONE FINANCIAL
CORPORATION
By /s/ Murray P. Abrams
----------------------
Title: Assistant Treasurer
Address for Notices:
Capital One Financial
Corporation
2980 Fairview Park Drive
Suite 1300
Falls Church, VA 22042-4525
Attention: Murray P. Abrams
Telecopier No.: 703-205-1093
Telephone No.: 703-205-1074
88
-84-
CAPITAL ONE BANK
By /s/ Murray P. Abrams
----------------------
Title: Assistant Treasurer
Address for Notices:
Capital One Bank
2980 Fairview Park Drive
Suite 1300
Falls Church, VA 22042-4525
Attention: Murray P. Abrams
Telecopier No.: 703-205-1093
Telephone No.: 703-205-1074
89
-85-
CAPITAL ONE, F.S.B.
By /s/ Murray P. Abrams
----------------------
Title: Assistant Treasurer
Address for Notices:
Capital One, F.S.B.
2980 Fairview Park Drive
Suite 1300
Falls Church, VA 22042-4525
Attention: Murray P. Abrams
Telecopier No.: 703-205-1093
Telephone No.: 703-205-1074
90
-86-
LENDERS
THE CHASE MANHATTAN BANK
By /s/ Susan F. Herzog
------------------------------------
Title: Vice President
NATIONSBANK, N.A.
By /s/ Kate Galletly
-------------------------------------
Title: Senior Vice President
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ Karen L. Beyer
------------------------------------
Title: Vice President
BANK OF AMERICA, NT&SA
By /s/ Kurt Cordoza
-------------------------------------
Title: Director
COMMERZBANK AG, NEW YORK BRANCH
By /s/ Juergen Schmieding
-----------------------------------
Title: Vice President
By /s/ Andrew R. Campbell
---------------------------------
Title: Assistant Cashier
91
-87-
CREDIT SUISSE
By /s/ William P. Murray
-----------------------------------
Title: Member of Senior Management
By /s/ Kristinn R. Kristinsson
------------------------------------
Title: Associate
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By /s/ Gayma Z. Shivnarain
----------------------------------
Title: Vice President
By /s/ Dale F. Oberst
-------------------------------------
Title: Associate
FIRST UNION NATIONAL BANK OF VIRGINIA
By /s/ Douglas T. Davis
------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By /s/ David G. Dobbins
-----------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Robert E. O'Connell
-----------------------------------
Title: Vice President
92
-88-
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By /s/ Takuya Honjo
------------------------------------
Title: Senior Vice President
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By /s/ Didier Magloire
-----------------------------------
Title: Vice President
By /s/ Robert Mendeles
------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By /s/ Donald M. MacKinnon
-------------------------------
Title: Vice President
BARCLAYS BANK PLC
By /s/ Karen M. Wagner
----------------------------------
Title: Associate Director
CITIBANK, N.A.
By /s/ Robert Goldstein
-------------------------------------
Title: Vice President,
Attorney-In-Fact
93
-89-
ABN-AMRO BANK, N.V. NEW YORK BRANCH
By /s/ Victor J. Fennon
-------------------------------------
Title: Vice President
By /s/ David W. Eastep
-----------------------------------
Title: Assistant Vice President
COMERICA BANK
By /s/ Tamara J. Gurne
------------------------------------
Title: Account Officer
CREDIT LYONNAIS NEW YORK BRANCH
AND CAYMAN ISLANDS BRANCH
By /s/ Renaud D'Herbes
-----------------------------------
Title: Senior Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By /s/ Emilio Martinez
------------------------------------
Title: Vice President
THE SANWA BANK, LIMITED, ATLANTA AGENCY
By /s/ William M. Plough
-----------------------------------
Title: Vice President
By /s/ Andrew N. Hammond
------------------------------
Title: Vice President
94
-90-
CIBC INC.
By /s/ Gerald J. Girardi
--------------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
PNC BANK, NATIONAL ASSOCIATION
By /s/ Robert E. Bjorhus
------------------------------------
Title: Vice President
BANK OF TOKYO-MITSUBISHI, LIMITED
NEW YORK BRANCH
By /s/ Yukio Yanaka
------------------------------------
Title: Senior Vice President
BANK OF MONTREAL
By /s/ Inba Ponnusamy
---------------------------------
Title: Director
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Stephanie R. Rogers
-----------------------------------
Title: Vice President
FIRST HAWAIIAN BANK
By /s/ Robert M. Wheeler
-----------------------------------
Title: Vice President
95
-91-
KREDIETBANK N.V., GRAND CAYMAN BRANCH
By /s/ Robert Snauffer
-------------------------------------
Title: Vice President
By /s/ Thomas R. Lalli
------------------------------------
Title: Vice President
THE SAKURA BANK, LIMITED
By /s/ Yasumasa Kikuchi
-----------------------------------
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED
By /s/ John C. Kissinger
-------------------------------------
Title: Joint General Manager
UNION BANK OF CALIFORNIA, N.A.
By /s/ Alison A. Mason
------------------------------------
Title: Vice President
BANK HAPOALIM, B.M.
By /s/ John M. Orpen
------------------------------------
Title: Vice President
By /s/ Vincent R. Henchek
-----------------------------------
Title: Vice President
96
-92-
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Susan F. Herzog
-----------------------
Title: Vice President
Address for Notices to
Chase as Administrative Agent:
The Chase Manhattan Bank
Agent Bank Services Group
1 Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Ms. Laura Rebecca
Telecopy No.: 212-552-7253
97
SCHEDULE 2.01
COMMITMENTS
- --------------------------------------------------------------------------------------------------------------------
NAME OF LENDER TRANCHE A-($) TRANCHE A-(MC) TRANCHE B-($) TRANCHE B-(MC) TOTAL
- --------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $50,000,000 $20,000,000 $10,000,000 $15,000,000 $95,000,000
- --------------------------------------------------------------------------------------------------------------------
NationsBank, N.A. $45,000,000 $15,000,000 $15,000,000 $10,000,000 $85,000,000
- --------------------------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company of $45,000,000 $15,000,000 $15,000,000 $10,000,000 $85,000,000
New York
- --------------------------------------------------------------------------------------------------------------------
Bank of America, NT&SA $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
- --------------------------------------------------------------------------------------------------------------------
Commerzbank AG, New York Branch $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
- --------------------------------------------------------------------------------------------------------------------
Credit Suisse $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
- --------------------------------------------------------------------------------------------------------------------
Deutsche Bank AG, New York and/or $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
Cayman Islands Branches
- --------------------------------------------------------------------------------------------------------------------
First Union National Bank of $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
Virgina
- --------------------------------------------------------------------------------------------------------------------
The Bank of New York $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
- --------------------------------------------------------------------------------------------------------------------
The First National Bank of Chicago $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
- --------------------------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, $60,000,000 $0 $15,000,000 $0 $75,000,000
Limited, New York Branch
- --------------------------------------------------------------------------------------------------------------------
Union Bank of Switzerland, New $50,000,000 $10,000,000 $10,000,000 $5,000,000 $75,000,000
York Branch
- --------------------------------------------------------------------------------------------------------------------
Fleet National Bank $55,000,000 $5,000,000 $10,000,000 $0 $70,000,000
- --------------------------------------------------------------------------------------------------------------------
Barclays Bank PLC $40,000,000 $10,000,000 $2,000,000 $10,000,000 $62,000,000
- --------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $45,000,000 $10,000,000 $0 $0 $55,000,000
- --------------------------------------------------------------------------------------------------------------------
ABN-AMRO Bank, N.V. New York $30,000,000 $10,000,000 $5,000,000 $5,000,000 $50,000,000
Branch
- --------------------------------------------------------------------------------------------------------------------
Comerica Bank $40,000,000 $5,000,000 $5,000,000 $0 $50,000,000
- --------------------------------------------------------------------------------------------------------------------
Credit Lyonnais New York Branch $35,000,000 $5,000,000 $10,000,000 $0 $50,000,000
and Cayman Islands Branch
- --------------------------------------------------------------------------------------------------------------------
Societe Generale, New York Branch $35,000,000 $10,000,000 $5,000,000 $0 $50,000,000
- --------------------------------------------------------------------------------------------------------------------
The Sanwa Bank, Limited, Atlanta $35,000,000 $5,000,000 $10,000,000 $0 $50,000,000
Agency
- --------------------------------------------------------------------------------------------------------------------
CIBC Inc. $35,000,000 $5,000,000 $5,000,000 $0 $45,000,000
- --------------------------------------------------------------------------------------------------------------------
PNC Bank, National Association $20,000,000 $10,000,000 $5,000,000 $5,000,000 $40,000,000
- --------------------------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi, Limited $15,000,000 $10,000,000 $5,000,000 $5,000,000 $35,000,000
- --------------------------------------------------------------------------------------------------------------------
Bank of Montreal $15,000,000 $10,000,000 $8,000,000 $0 $33,000,000
- --------------------------------------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. $20,000,000 $0 $10,000,000 $0 $30,000,000
- --------------------------------------------------------------------------------------------------------------------
First Hawaiian Bank $20,000,000 $0 $5,000,000 $0 $25,000,000
- --------------------------------------------------------------------------------------------------------------------
Kredietbank N.V., Grand Cayman $25,000,000 $0 $0 $0 $25,000,000
Branch
- --------------------------------------------------------------------------------------------------------------------
The Sakura Bank, Limited $25,000,000 $0 $0 $0 $25,000,000
- --------------------------------------------------------------------------------------------------------------------
The Sumitomo Bank, Limited $25,000,000 $0 $0 $0 $25,000,000
- --------------------------------------------------------------------------------------------------------------------
Union Bank of California, N.A. $25,000,000 $0 $0 $0 $25,000,000
- --------------------------------------------------------------------------------------------------------------------
Bank Hapoalim, B.M. $10,000,000 $0 $5,000,000 $0 $15,000,000
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
$1,150,000,000 $225,000,000 $225,000,000 $100,000,000 $1,700,000,000
- --------------------------------------------------------------------------------------------------------------------
98
SCHEDULE 7.03
CERTAIN LITIGATION
During 1995, COFC and COB became involved in three purported
class action suits relating to certain collection practices engaged in by
Signet Bank and, subsequently, by COB. The complaints in these three cases
allege that Signet Bank, COFC and/or COB violated a variety of federal and
state statutes and constitutional and common law duties by filing collection
lawsuits, obtaining judgements and pursuing garnishment proceedings in the
Virginia state courts against defaulted credit card customers who were not
residents of Virginia. These cases have been filed in the Superior Court of
California in the County of Alamenda, Southern Division, on behalf of a class
of California residents, in the United States District Court for the District
of Connecticut on behalf of a nationwide class, and in the United States
District Court for the Middle District of Florida on behalf of a nationwide
class (except for California). The complaints in these three cases seek
unspecified statutory damages, compensatory damages, punitive damages,
restitution, attorneys' fees and costs, a permanent injunction and other
equitable relief.
On July 31, 1996, the Florida case was dismissed without
prejudice, which permits further proceedings. The plaintiff has since noticed
her appeal to the United States Court of Appeals for the Eleventh Circuit and
refiled certain claims arising out of state law in Florida state court.
On September 30 1996, the Connecticut court entered judgement
in favor of COB on plaintiff's federal claims and dismissed without prejudice
plaintiff's state law claims. The plaintiff has refiled, on behalf of a class
of Connecticut residents, her claims arising out of state law in a Connecticut
state court.
In connection with the transfer of substantially all of Signet
Bank's credit card business to COB in November 1994, COFC and COB agreed to
indemnify Signet Bank for certain liabilities incurred in litigation arising
from that business, which may include liabilities, if any, incurred in the
three purported class action cases described above. Because no specific
measure of damages is demanded in any of the complaints and each of these cases
is in early stages of litigation, an informed assessment of the ultimate
outcome of these cases cannot be made at this time. Management believes,
however, that there are meritorious defenses to these lawsuits and intends to
defend them vigorously. In addition, although these lawsuits, if determined
adversely to COFC or COB, could have a material adverse effect on the financial
condition of COFC and its Subsidiaries during a specific fiscal period,
management of COFC believes that such lawsuits will not have a material adverse
effect on the ability of any Borrower to make timely payment of the principal
of or interest on the Loans or other amounts payable by such Borrower under
this Agreement or the Notes.
99
EXHIBIT A-1
[Form of Tranche A-($) Note]
PROMISSORY NOTE
$
--------------- November 25, 1996
New York, New York
FOR VALUE RECEIVED, [CAPITAL ONE BANK, a bank chartered under
the laws of the Commonwealth of Virginia][CAPITAL ONE, F.S.B., a Federal
savings bank chartered under the laws of the United States of America] (the
"Borrower"), hereby promises to pay to the order of __________________ (the
"Lender"), for account of its respective Applicable Lending Offices provided
for by the Credit Agreement referred to below, at the principal office of The
Chase Manhattan Bank at 270 Park Avenue, New York, New York 10017, the
principal sum of _______________ Dollars (or such lesser amount as shall equal
the aggregate unpaid principal amount of the Tranche A-($) Loans made by the
Lender to the Borrower under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and
in the principal amounts provided in the Credit Agreement, and to pay interest
on the unpaid principal amount of each such Tranche A-($) Loan, at such office,
in like money and funds, for the period commencing on the date of such Tranche
A-($) Loan until such Tranche A-($) 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 of each Tranche A-($) Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation (or any error in
making any such recordation) or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Tranche A-($) Loans made by the
Lender.
This Note is one of the Tranche A-($) Notes referred to in the
Amended and Restated Credit Agreement dated as of November 25, 1996 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") among Capital One Financial Corporation, Capital One Bank, Capital
One, F.S.B., the lenders party thereto (including the Lender) and The Chase
Manhattan Bank, as Administrative Agent, and evidences Tranche A-($) 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.
100
-2-
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 11.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York without reference to choice of law
doctrine.
[CAPITAL ONE BANK]
[CAPITAL ONE, F.S.B.]
By
-------------------------
Title:
101
-3-
SCHEDULE OF TRANCHE A-($) LOANS
This Note evidences Tranche A-($) 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 having
Interest Periods of the durations set forth below, subject to the payments and
prepayments of principal set forth below:
Principal Maturity Amount Unpaid
Amount Type of Interest Date of Paid or Principal Notation
of Loan Loan Rate Loan Prepaid Amount Made By
------- ---- ---- ---- ------- ------ -------
102
EXHIBIT A-2
[Form of Tranche A-(MC) Note]
PROMISSORY NOTE
$
---------------
November 25, 1996
New York, New York
FOR VALUE RECEIVED, [CAPITAL ONE BANK, a bank chartered under
the laws of the Commonwealth of Virginia][CAPITAL ONE, F.S.B., a Federal
savings bank chartered under the laws of the United States of America] (the
"Borrower"), hereby promises to pay to the order of __________________ (the
"Lender"), for account of its respective Applicable Lending Offices provided
for by the Credit Agreement referred to below, at the principal office of The
Chase Manhattan Bank at 270 Park Avenue, New York, New York 10017, the
principal sum of _______________ Dollars (or such other amount as shall equal
the aggregate unpaid principal amount of the Tranche A-(MC) Loans made by the
Lender to the Borrower under the Credit Agreement), in the respective
Currencies in which such Loans are denominated 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
Tranche A-(MC) Loan, at such office, in like money and funds, for the period
commencing on the date of such Tranche A-(MC) Loan until such Tranche A-(MC)
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The date, amount, Type, Currency, interest rate and duration
of Interest Period of each Tranche A-(MC) 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, provided that the failure of the Lender to make any such recordation
(or any error in making 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 Tranche A-(MC) Loans
made by the Lender.
This Note is one of the Tranche A-(MC) Notes referred to in
the Amended and Restated Credit Agreement dated as of November 25, 1996 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") among Capital One Financial Corporation, Capital One Bank, Capital
One, F.S.B., the lenders party thereto (including the Lender) and The Chase
Manhattan Bank, as Administrative Agent, and evidences Tranche A-(MC) 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.
103
-2-
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 11.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York without reference to choice of law
doctrine.
[CAPITAL ONE BANK]
[CAPITAL ONE, F.S.B.]
By
-------------------------
Title:
104
-3-
SCHEDULE OF TRANCHE A-(MC) LOANS
This Note evidences Tranche A-(MC) Loans made under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, of the Types and Currencies, bearing interest at the rates
and having Interest Periods of the durations set forth below, subject to the
payments and prepayments of principal set forth below:
Principal Type and Maturity Amount Unpaid
Amount Currency Interest Date of Paid or Principal Notation
of Loan of Loan Rate Loan Prepaid Amount Made By
------- ------- ---- ---- ------- ------ -------
105
EXHIBIT A-3
[Form of Tranche B-($) Note]
PROMISSORY NOTE
$
---------------
November 25, 1996
New York, New York
FOR VALUE RECEIVED, [CAPITAL ONE BANK, a bank chartered under
the laws of the Commonwealth of Virginia][CAPITAL ONE, F.S.B., a Federal
savings bank chartered under the laws of the United States of America][CAPITAL
ONE FINANCIAL CORPORATION, a corporation organized under the laws of the State
of Delaware] (the "Borrower"), hereby promises to pay to the order of
__________________ (the "Lender"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank at 270 Park Avenue, New York, New
York 10017, the principal sum of _______________ Dollars (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Tranche B-($) Loans
made by the Lender to the Borrower under the Credit Agreement), in lawful money
of the United States of America and in immediately available funds, on the
dates and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Tranche B-($) Loan, at
such office, in like money and funds, for the period commencing on the date of
such Tranche B-($) Loan until such Tranche B-($) 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 of each Tranche B-($) Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation (or any error in
making any such recordation) or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Tranche B-($) Loans made by the
Lender.
This Note is one of the Tranche B-($) Notes referred to in the
Amended and Restated Credit Agreement dated as of November 25, 1996 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") among Capital One Financial Corporation, Capital One Bank, Capital
One, F.S.B., the lenders party thereto (including the Lender) and The Chase
Manhattan Bank, as Administrative Agent, and evidences Tranche B-($) 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.
106
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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 11.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York without reference to choice of law
doctrine.
[CAPITAL ONE BANK]
[CAPITAL ONE, F.S.B.]
[CAPITAL ONE FINANCIAL CORPORATION]
By
-------------------------
Title:
107
-3-
SCHEDULE OF TRANCHE B-($) LOANS
This Note evidences Tranche B-($) 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 having
Interest Periods of the durations set forth below, subject to the payments and
prepayments of principal set forth below:
Principal Maturity Amount Unpaid
Amount Type of Interest Date of Paid or Principal Notation
of Loan Loan Rate Loan Prepaid Amount Made By
------- ---- ---- ---- ------- ------ -------
108
EXHIBIT A-4
[Form of Tranche B-(MC) Note]
PROMISSORY NOTE
$
---------------
November 25, 1996
New York, New York
FOR VALUE RECEIVED, [CAPITAL ONE BANK, a bank chartered under
the laws of the Commonwealth of Virginia][CAPITAL ONE, F.S.B., a Federal
savings bank chartered under the laws of the United States of America][CAPITAL
ONE FINANCIAL CORPORATION, a corporation organized under the laws of the State
of Delaware] (the "Borrower"), hereby promises to pay to the order of
__________________ (the "Lender"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank at 270 Park Avenue, New York, New
York 10017, the principal sum of _______________ Dollars (or such other amount
as shall equal the aggregate unpaid principal amount of the Tranche B-(MC)
Loans made by the Lender to the Borrower under the Credit Agreement), in the
respective Currencies in which such Loans are denominated 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 Tranche B-(MC) Loan, at such office, in like money and funds, for the
period commencing on the date of such Tranche B-(MC) Loan until such Tranche
B-(MC) Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount, Type, Currency, interest rate and duration
of Interest Period of each Tranche B-(MC) 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, provided that the failure of the Lender to make any such recordation
(or any error in making 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 Tranche B-(MC) Loans
made by the Lender.
This Note is one of the Tranche B-(MC) Notes referred to in
the Amended and Restated Credit Agreement dated as of November 25, 1996 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") among Capital One Financial Corporation, Capital One Bank, Capital
One, F.S.B., the lenders party thereto (including the Lender) and The Chase
Manhattan Bank, as Administrative Agent, and evidences Tranche B-(MC) 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.
109
-2-
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 11.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York without reference to choice of law
doctrine.
[CAPITAL ONE BANK]
[CAPITAL ONE, F.S.B.]
[CAPITAL ONE FINANCIAL CORPORATION]
By
-------------------------
Title:
110
-3-
SCHEDULE OF TRANCHE B-(MC) LOANS
This Note evidences Tranche B-(MC) Loans made under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, of the Types and Currencies, bearing interest at the rates
and having Interest Periods of the durations set forth below, subject to the
payments and prepayments of principal set forth below:
Principal Type and Maturity Amount Unpaid
Amount Currency Interest Date of Paid or Principal Notation
of Loan of Loan Rate Loan Prepaid Amount Made By
------- ------- ---- ---- ------- ------ -------
111
EXHIBIT A-5
[Form of Money Market Note]
PROMISSORY NOTE
November 25, 1996
New York, New York
FOR VALUE RECEIVED, [CAPITAL ONE BANK, a bank chartered under
the laws of the Commonwealth of Virginia][CAPITAL ONE, F.S.B., a Federal
savings bank chartered under the laws of the United States of America][CAPITAL
ONE FINANCIAL CORPORATION, a corporation organized under the laws of the State
of Delaware] (the "Borrower"), hereby promises to pay to the order of
__________________ (the "Lender"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank at 270 Park Avenue, New York, New
York 10017, the aggregate unpaid principal amount of the Money Market Loans
made by the Lender to the Borrower under the Credit Agreement, in the
respective Currencies in which such Loans are denominated 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 Money Market Loan, at such office, in like money and funds, for the period
commencing on the date of such Money Market Loan until such Money Market Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
The date, amount, Tranche, Type, Currency, interest rate and
maturity date of each Money Market 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, provided
that the failure of the Lender to make any such recordation (or any error in
making 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 Money Market Loans made by the Lender.
This Note is one of the Money Market Notes referred to in the
Amended and Restated Credit Agreement dated as of November 25, 1996 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") among Capital One Financial Corporation, Capital One Bank, Capital
One, F.S.B., the lenders party thereto (including the Lender) and The Chase
Manhattan Bank, as Administrative Agent, and evidences Money Market 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.
112
-2-
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Money Market Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York without reference to choice of law
doctrine.
[CAPITAL ONE BANK]
[CAPITAL ONE, F.S.B.]
[CAPITAL ONE FINANCIAL CORPORATION]
By
-------------------------
Title:
113
-3-
SCHEDULE OF MONEY MARKET LOANS
This Note evidences Money Market Loans made under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, under the Tranches and of the Types and Currencies, bearing
interest at the rates and maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
Tranche,
Principal Type and Maturity Amount Unpaid
Amount Currency Interest Date of Paid or Principal Notation
of Loan of Loan Rate Loan Prepaid Amount Made By
------- ------- ---- ---- ------- ------ -------
114
EXHIBIT B-1
[Form of Opinion of Special Counsel to the Borrowers]
__________, 199_
Each of the Lenders party
to the Credit Agreement
referred to below
The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as special counsel to Capital One Financial
Corporation ("COFC"), Capital One Bank ("COB"), Capital One, F.S.B. ("FSB" and,
collectively with COFC and COB, the "Borrowers") in connection with (i) the
Amended and Restated Credit Agreement (the "Credit Agreement") dated as of
November 25, 1996 among the Borrowers, the Lenders party thereto and The Chase
Manhattan Bank, as Administrative Agent, providing for loans to be made by the
Lenders to the Borrowers in an aggregate principal amount not exceeding
$1,700,000,000 (or, to the extent specified in the Credit Agreement, its
equivalent in certain foreign currencies and as such amount may be increased
pursuant to Section 2.11 of the Credit Agreement) and (ii) the various other
agreements, instruments and other documents referred to in the next following
paragraph. Capitalized terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement. This opinion is being
delivered pursuant to Section 6.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes; and
115
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(c) such records of the Borrowers and such other
documents as we have deemed necessary as a basis for
the opinions expressed below.
The agreements, instruments and other documents referred to in clauses (a) and
(b) above are collectively referred to as the "Credit Documents".
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as copies. When relevant facts were not independently established, we have
relied upon statements of governmental officials and upon representations made
in or pursuant to the Credit Documents and certificates of appropriate
representatives of the Borrowers.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Borrowers):
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and constitute
legal, valid, binding and enforceable obligations of,
all of the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. A Virginia court or a Federal court sitting in Virginia in
a diversity action should, under conflicts of law principles observed
by the courts of Virginia, if properly presented with the issue, give
effect to those provisions of the Credit Documents providing that such
documents are to be governed by and construed in accordance with the
laws of the State of New York.
2. Each Borrower has all requisite corporate power to execute
and deliver, and to perform its obligations under, the Credit
Documents to which it is a party. Each Borrower has all requisite
corporate power to borrow under the Credit Agreement.
3. The execution, delivery and performance by each Borrower
of each Credit Document to which it is a party, and the borrowings by
each Borrower under the Credit
116
-3-
Agreement, have been duly authorized by all necessary corporate action
on the part of such Borrower.
4. Each Credit Document constitutes the legal, valid and
binding obligation of each Borrower, enforceable against each Borrower
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally (as such laws would
apply in the event of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect to, COB or
FSB) and except as the enforceability of the Credit Documents is
subject to the application of general principles of equity (regardless
of whether considered in a proceeding in equity or at law), including,
without limitation, (i) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (ii)
concepts of materiality, reasonableness, good faith and fair dealing.
5. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency
of the United States of America or the Commonwealth of Virginia is
required on the part of any Borrower for the execution, delivery or
performance by any Borrower of any of the Credit Documents to which
such Borrower is a party or for the borrowings by any Borrower under
the Credit Agreement.
6. The execution, delivery and performance by each Borrower
of, and the consummation by each Borrower of the transactions
contemplated by, the Credit Documents to which such Borrower is a
party do not and will not (i) violate any provision of its charter or
by-laws (or equivalent constitutional documents) or (ii) violate any
law, rule or regulation of the United States of America or the
Commonwealth of Virginia.
The foregoing opinions are subject to the following comments
and qualifications:
(a) The enforceability of Section 11.03 of the Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) laws limiting the
enforceability of provisions exculpating or exempting a party from, or
requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(b) The enforceability of provisions in the Credit Documents
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(c) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such
Lender may impose, (ii) Section 4.07(c) of the Credit
117
-4-
Agreement, (iii) the second sentence of Section 11.10 of the Credit
Agreement, insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to any of
the Credit Documents and (iv) Section 11.13 of the Credit Agreement.
(d) We express no opinion in paragraph 6 above as to whether,
by reason of the assumption by COB of the Undertaking set forth in
Section 2.12 of the Credit Agreement, COFC would be required to
licensed as a bank holding company under the Bank Holding Company Act
of 1956, as amended (the "BHCA"), by reason of the failure of COB to
fall within the exclusion from the definition of the term "bank"
contained in Section 2(c)(2)(F) of the BHCA.
The foregoing opinions are limited to matters involving the
Federal laws of the United States, the Delaware General Corporation Law and the
laws of the State of New York and the Commonwealth of Virginia, and we do not
express any opinion as to the laws of any other jurisdiction.
At the request of our clients, this opinion letter is,
pursuant to Section 6.01(c) of the Credit Agreement, provided to you by us in
our capacity as special counsel to the Borrowers and may not be relied upon by
any Person for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
118
EXHIBIT B-2
[Form of Opinion of Counsel to the Borrowers]
__________, 199_
Each of the Lenders party
to the Credit Agreement
referred to below
The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
I have acted as counsel to Capital One Financial Corporation
("COFC"), Capital One Bank ("COB"), Capital One, F.S.B. ("FSB" and,
collectively with COFC and COB, the "Borrowers") in connection with (i) the
Amended and Restated Credit Agreement (the "Credit Agreement") dated as of
November 25, 1996 among the Borrowers, the Lenders party thereto and The Chase
Manhattan Bank, as Administrative Agent, providing for loans to be made by the
Lenders to the Borrowers in an aggregate principal amount not exceeding
$1,700,000,000 (or, to the extent specified in the Credit Agreement, its
equivalent in certain foreign currencies and as such amount may be increased
pursuant to Section 2.11 of the Credit Agreement) and (ii) the various other
agreements, instruments and other documents referred to in the next following
paragraph. Capitalized terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement. This opinion letter is
being delivered pursuant to Section 6.01(d) of the Credit Agreement.
In rendering the opinions expressed below, I have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes; and
(c) such records of the Borrowers and such other
documents as I have deemed necessary as a basis for
the opinions expressed below.
119
-2-
The agreements, instruments and other documents referred to in clauses (a) and
(b) above are collectively referred to as the "Credit Documents".
In my examination, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as originals and
the conformity with authentic original documents of all documents submitted to
me as copies. When relevant facts were not independently established, I have
relied upon statements of governmental officials and upon representations made
in or pursuant to the Credit Documents and certificates of appropriate
representatives of the Borrowers.
In rendering the opinions expressed below, I have assumed,
with respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Borrowers):
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and constitute
legal, valid, binding and enforceable obligations of,
all of the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the qualifications set forth below, and having considered such questions of law
as I have deemed necessary as a basis for the opinions expressed below, I am of
the opinion that:
1. COFC is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. COB is a
bank duly organized, validly existing and in good standing under the
laws of the Commonwealth of Virginia. FSB is a savings bank duly
organized, validly existing and in good standing under the laws of the
United States of America.
2. Each Borrower has all requisite corporate power to execute
and deliver, and to perform its obligations under, the Credit
Documents to which it is a party. Each Borrower has all requisite
corporate power to borrow under the Credit Agreement.
3. The execution, delivery and performance by each Borrower
of each Credit Document to which it is a party, and the borrowings by
each Borrower under the Credit Agreement, have been duly authorized by
all necessary corporate action on the part of such Borrower.
120
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4. Each Credit Document has been duly executed and delivered
by each Borrower party thereto.
5. The execution, delivery and performance by each Borrower
of, and the consummation by each Borrower of the transactions
contemplated by, the Credit Documents to which such Borrower is a
party do not and will not (a) violate any provision of its charter or
by-laws (or equivalent constitutional documents), (b) violate any
applicable law, rule or regulation, (c) violate any order, writ,
injunction or decree of any court or governmental authority or agency
or any arbitral award applicable to any Borrower or any of its
Subsidiaries of which I have knowledge (after due inquiry) or (d)
result in a breach of, constitute a default under, require any consent
under, or result in the acceleration or required prepayment of any
indebtedness pursuant to the terms of, any agreement or instrument of
which I have knowledge (after due inquiry) to which any Borrower or
any of its Subsidiaries is a party or by which any of them is bound or
to which any of them is subject, or result in the creation or
imposition of any Lien upon any Property of any Borrower or any of its
Subsidiaries pursuant to the terms of any such agreement or
instrument, except for any such conflict, breach, violation, default
or consent that if not obtained, or Lien that if created, could not
(either individually or in the aggregate) have a Material Adverse
Effect and could not subject the Administrative Agent or any Lender to
liability.
6. Except as set forth in Schedule 7.03 of the Credit
Agreement, I have no knowledge (after due inquiry) of any legal or
arbitral proceedings, or any proceedings by or before any governmental
or regulatory authority or agency, pending or threatened against or
affecting any Borrower or any of its Subsidiaries or any of their
respective Properties, except proceedings that, if adversely
determined, would not have a Material Adverse Effect.
The foregoing opinions are limited to matters involving the
Federal laws of the United States, the Delaware General Corporation Law and the
law of the Commonwealth of Virginia, and I do not express any opinion as to the
laws of any other jurisdiction.
At the request of my clients, this opinion letter is, pursuant
to Section 6.01(d) of the Credit Agreement, provided to you by me in my
capacity as counsel to the Borrowers and may not be relied upon by any Person
for any purpose other than in connection with the transactions contemplated by
the Credit Agreement without, in each instance, my prior written consent.
Very truly yours,
121
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
__________, 199_
Each of the Lenders party
to the Credit Agreement
referred to below
The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank ("Chase") in connection with (i) the Amended and Restated Credit
Agreement dated as of November 25, 1996 (the "Credit Agreement") among Capital
One Financial Corporation ("COFC"), Capital One Bank ("COB"), Capital One,
F.S.B ("FSB" and, collectively with COFC and COB, the "Borrowers"), the Lenders
party thereto and Chase, as Administrative Agent, providing for loans to be
made by the Lenders to the Borrowers in an aggregate principal amount not
exceeding $1,700,000,000 (or, to the extent specified in the Credit Agreement,
its equivalent in certain foreign currencies and as such amount may be
increased pursuant to Section 2.11 of the Credit Agreement) and (ii) the
various other agreements, instruments and other documents referred to in the
next following paragraph. Capitalized terms used but not defined herein have
the respective meanings given to such terms in the Credit Agreement. This
opinion letter is being delivered pursuant to Section 6.01(e) of the Credit
Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes; and
122
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(c) such records of the Borrowers and such other
documents as we have deemed necessary as a basis for
the opinions expressed below.
The agreements, instruments and other documents referred to in clauses (a) and
(b) above are collectively referred to as the "Credit Documents".
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as copies. When relevant facts were not independently established, we have
relied upon representations made in or pursuant to the Credit Documents.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except to
the extent set forth in the opinions below as to the
Borrowers) constitute legal, valid, binding and
enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Documents
constitutes the legal, valid and binding obligation of each Borrower,
enforceable against each Borrower in accordance with its terms, except as may
be limited by bankruptcy, insolvency, receivership, conservatorship,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally (as such laws would apply in the event of the
insolvency, receivership, conservatorship or reorganization of, or other
similar occurrence with respect to, COB or FSB) and except as the
enforceability of the Credit Documents is subject to the application of general
principles of equity (regardless of whether considered in a proceeding in
equity or at law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good faith
and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 11.03 of the Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities
123
-3-
laws and the public policy underlying such laws and (ii) laws limiting
the enforceability of provisions exculpating or exempting a party
from, or requiring indemnification of a party for, liability for its
own action or inaction, to the extent the action or inaction involves
gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) The enforceability of provisions in the Credit Documents
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such
Lender may impose, (ii) Section 4.07(c) of the Credit Agreement, (iii)
the second sentence of Section 11.10 of the Credit Agreement, insofar
as such sentence relates to the subject matter jurisdiction of the
United States District Court for the Southern District of New York to
adjudicate any controversy related to any of the Credit Documents and
(iv) Section 11.13 of the Credit Agreement.
(D) With repsect to Section 2.12 of the Credit Agreement, we
call your attention to Wysko Investment Co. v. Great American Bank,
131 B.R. 146 (D. Ariz. 1991), which holds that a bankruptcy court in a
case involving an account party of a letter of credit may enjoin
payment under a letter of credit pursuant to Section 105 of the
Bankruptcy Code in unusual circumstances. Id. at 147. In that case,
the unusual circumstance was the bankruptcy court's finding that the
injunction was necessary for the reorganization of the account party.
Id. at 148. In addition, In re Delaware River Stevedores, Inc., 129
B.R. 38 (Bankr. E.D. Pa. 1991), suggests that "an injunction
prohibiting payment on a L/C could conceivably be appropriate" if
certain factors relating to issuing Section 105(a) injunctions
"generally weighed in the debtor's [account party's] favor". Id. at
42, citing In re Guy C. Long, Inc., 74 B.R. 939 (Bankr. E.D. Pa.
1987). To the extent that the rationale of Wysko Investment Co. or
Delaware River Stevedores would support the issuance by a bankruptcy
court in a case involving FSB of a permanent injunction against
payment under the Undertaking, we are of the opinion that those cases
do not reflect a correct statement of the law in respect of letters of
credit and other undertakings to pay against the presentation of
specified documents and are not controlling precedent in any court
exercising bankruptcy jurisdiction outside of Arizona or the Eastern
District of Pennsylvania, as the case may be. In addition, if any
Person obligated to reimburse COB for payments made under the
Undertaking is subject to a proceeding under the Bankruptcy Code, we
express no opinion as to whether a court exercising bankruptcy
jurisdiction in respect of such Person might issue a temporary
restraining order or other interim relief in order to preserve the
status quo concerning the Undertaking pending a review of the merits
of any request to enjoin payment under the Undertaking.
The foregoing opinions are limited to matters involving the
Federal laws of the United States and the law of the State of New York, and we
do not express any opinion as to the laws of any other jurisdiction.
124
-4-
At the request of our client, this opinion letter is, pursuant
to Section 6.01(e) of the Credit Agreement, provided to you by us in our
capacity as special New York counsel to Chase and may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
BDR/CDP
125
EXHIBIT D
[Form of Notice of Borrowing of Syndicated Loans]
[Date]
To: The Chase Manhattan Bank,
as Administrative Agent
From: [Name of Borrower]
Re: Notice of Borrowing
Pursuant to Section 2.02 of the Amended and Restated Credit Agreement
dated as of November 25, 1996 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") among Capital One Financial Corporation,
Capital One Bank, Capital One, F.S.B., the lenders party thereto and The Chase
Manhattan Bank, as Administrative Agent, the undersigned Borrower hereby gives
notice of a borrowing of Syndicated Loans described below:
Name of Borrower:
------------------
Aggregate Principal
Amount of Loans to be borrowed:
------------------
Tranche of Loans to be borrowed:
------------------
Currency of Loans to be borrowed:
------------------
Type of Loans to be borrowed:
------------------
Business Day of borrowing:
------------------
Interest Period to be applicable: 1/
------------------
This notice of borrowing constitutes a certification by the
undersigned Borrower to the effect set forth in Section 6.02(c) of the Credit
Agreement, both as of the date of this notice of borrowing and, unless the
undersigned notifies the Administrative Agent prior to the date of such
borrowing, as of the date of such borrowing.
If the undersigned Borrower is FSB, then COB has signed this notice of
borrowing on the line provided below.
- ----------------
1/ No Loan may be made to FSB with an Interest Period in excess of six months.
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Terms used herein have the meanings assigned to them in the Credit
Agreement.
[NAME OF BORROWER]
By
-------------------------
Title:
[COB hereby confirms its obligations under
Section 2.12 of the Credit Agreement
after giving effect to the borrowing
of Loans by FSB requested in this notice
of borrowing:
CAPITAL ONE BANK
By
-------------------------
Title:]1/
- --------------------
2/Insert if FSB is the Borrower.
127
EXHIBIT E
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank,
as Administrative Agent
From: [Name of Borrower]
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Amended and Restated Credit Agreement
dated as of November 25, 1996 (as modified and supplemented and in
effect from time to time, the "Credit Agreement") among Capital One Financial
Corporation, Capital One Bank, Capital One, F.S.B., the lenders party thereto
and The Chase Manhattan Bank, as Administrative Agent, we hereby give notice
that we request Money Market Quotes from the Lenders under Tranche
[A-($)][A-(MC)][B-($)][B-(MC)] for the following proposed Money Market
Borrowing(s) under such Tranche:
Borrowing Quotation Type and Interest
Date Date[1] Amount [2] Currency[3] Period[4]
---- ------- ---------- ----------- ---------
If the undersigned Borrower is FSB, then COB has signed this Money
Market Quote Request on the line provided below.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[NAME OF BORROWER]
By
-------------------------
Title:
- --------------------------
* All numbered footnotes appear on the last page of this Exhibit.
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[COB hereby confirms its obligations under
Section 2.12 of the Credit Agreement
after giving effect to the borrowing
of Loans by FSB requested in this
Money Market Quote Request:
CAPITAL ONE BANK
By
-------------------------
Title:]1/
- --------------------------
[1] In the case of Set Rate Loans to be denominated in Dollars, for use if
a Set Rate in a Set Rate Auction is requested to be submitted before the
Borrowing Date.
[2] Each amount must be an integral multiple of $1,000,000 and at least
$5,000,000 (or, in the case of a Borrowing of Money Market Loans
denominated in an Alternative Currency, the Foreign Currency Equivalent
thereof (rounded to the nearest 1,000 units of such Alternative Currency)).
[3] Insert either "LIBO Margin" (in the case of LIBOR Market Loans) or
"Set Rate" (in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or,
in the case of a Set Rate Loan, a period of not less than seven days
after the making of such Set Rate Loan and ending on a Business Day.
No Loan may be made to FSB with an Interest Period in excess of six months.
- --------------------
3/Insert if FSB is the Borrower.
129
EXHIBIT F
[Form of Money Market Quote]
To: The Chase Manhattan Bank,
as Administrative Agent
Attention: Agent Bank Services Group
Re: Money Market Quote to
[Name of Borrower] (the "Borrower")
This Money Market Quote is given in accordance with Section
2.03(c) of the Amended and Restated Credit Agreement dated as of November 25,
1996 (as modified and supplemented and in effect from time to time, the "Credit
Agreement") among Capital One Financial Corporation, Capital One Bank, Capital
One, F.S.B., the lenders party thereto and The Chase Manhattan Bank, as
Administrative Agent. Terms defined in the Credit Agreement are used herein as
defined therein.
In response to the Borrower's invitation dated __________,
199_, we hereby make the following Money Market Quote(s) on the following
terms:
1. Quoting Lender:
2. Person to contact at Quoting Lender:
3. We hereby offer to make Money Market Loan(s) under Tranche
[A-($)][A-(MC)][B-($)][B-(MC)] in the following principal amount[s],
for the following Interest Period(s) and at the following rate(s):
Borrowing Quotation Type and Interest
Date Date[1] Amount [2] Currency[3] Period[4] Rate[5]
---- ------- ---------- ----------- --------- -------
provided that the Borrower may not accept offers that would result in the
undersigned making Money Market Loans pursuant hereto in excess of $___________
in the aggregate (the "Money Market Loan Limit").
- -------------------------
* All numbered footnotes appear on the last page of this Exhibit.
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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 Money Market Loan(s)
for which any offer(s) (is/are) accepted, in whole or in part (subject to the
third sentence of Section 2.03(e) of the Credit Agreement and any Money Market
Loan Limit specified above).
Very truly yours,
[NAME OF LENDER]
By
-------------------------
Authorized Officer
Dated: ,
---------- ----
- -------------------------
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for an integral
multiple of $1,000,000 and at least $5,000,000 (or, in the case of a
Borrowing of Money Market Loans denominated in an Alternative
Currency, the Foreign Currency Equivalent thereof (rounded to the
nearest 1,000 units of such Alternative Currency)).
[3] Indicate "LIBO Margin" (in the case of LIBOR Market Loans) or "Set
Rate" (in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or,
in the case of a Set Rate Loan, a period of not less than seven days
after the making of such Set Rate Loan and ending on a Business Day,
as specified in the related Money Market Quote Request. No Loan may
be made to FSB with an Interest Period in excess of six months.
[5] For a LIBOR Market Loan, specify margin over or under the Eurocurrency
Rate determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/10,000 of 1%) and specify whether
"PLUS" or "MINUS". For a Set Rate Loan, specify rate of interest per
annum (rounded to the nearest 1/10,000 of 1%).
131
EXHIBIT G
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Amended and Restated Credit Agreement dated as of November 25,
1996 (as modified and supplemented and in effect from time to
time, the "Credit Agreement") among Capital One Financial
Corporation, Capital One Bank, Capital One, F.S.B., the
lenders party thereto and The Chase Manhattan Bank, as
Administrative Agent.
Ladies and Gentlemen:
As a Lender party to the Credit Agreement, we have agreed with
the Borrowers pursuant to Section 11.12 of the Credit Agreement to use
reasonable precautions to keep confidential, except as otherwise provided
therein, all non-public information identified by the Borrowers as being
confidential at the time the same is delivered to us pursuant to the Credit
Agreement.
As provided in said Section 11.12, we are permitted to provide
you, as a prospective [holder of a participation in the Loans (as defined in
the Credit Agreement)] [assignee Lender], with certain of such non-public
information subject to the execution and delivery by you, prior to receiving
such non-public information, of a Confidentiality Agreement in this form. Such
information will not be made available to you until your execution and return
to us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on
behalf of yourself and each of your affiliates, directors, officers, employees
and representatives and for the benefit of us and the Borrowers) that (A) such
information will not be used by you except in connection with the proposed
[participation][assignment] mentioned above and (B) you shall use reasonable
precautions, in accordance with your customary procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such information confidential, provided that (x) nothing
herein shall limit the disclosure of any such information (i) after such
information shall have become public (other than through a violation of Section
11.12 of the Credit Agreement), (ii) to the extent required by statute, rule,
regulation or judicial process, (iii) to your counsel or to counsel for any of
the Lenders or the Administrative Agent, (iv) to
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bank examiners (or any other regulatory authority having jurisdiction over any
Lender or the Administrative Agent), or to auditors or accountants, (v) to the
Administrative Agent or any other Lender, (vi) in connection with any
litigation to which you or any one or more of the Lenders or the Administrative
Agent is a party, or in connection with the enforcement of rights or remedies
under the Credit Agreement, (vii) to a subsidiary or affiliate of yours as
provided in Section 11.12(a) of the Credit Agreement or (viii) to any assignee
or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) first executes
and delivers to you a Confidentiality Agreement substantially in the form
hereof and (y) in no event shall you be obligated to return any materials
furnished to you pursuant to this Confidentiality Agreement.
If you are a prospective assignee, your obligations under this
Confidentiality Agreement shall be superseded by Section 11.12 of the Credit
Agreement on the date upon which you become a Lender under the Credit Agreement
pursuant to Section 11.06(b) thereof. This Confidentiality Agreement shall be
governed by, and construed in accordance with, the law of the State of New York
without reference to choice of law doctrine.
Please indicate your agreement to the foregoing by signing as
provided below the enclosed copy of this Confidentiality Agreement and
returning the same to us.
Very truly yours,
[INSERT NAME OF LENDER]
By
-------------------------
Title:
The foregoing is agreed to
as of the date of this letter:
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By
-------------------------
Title:
133
EXHIBIT H
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of November 25, 1996 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") among Capital One Financial Corporation,
Capital One Bank, Capital One, F.S.B., the lenders party thereto and The Chase
Manhattan Bank, as Administrative Agent. Terms defined in the Credit Agreement
are used herein as defined therein.
____________________ (the "Assignor") and ____________________
(the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date as set forth in Schedule 1 hereto (the "Effective Date"), an
interest (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement in an amount and percentage as set forth
on Schedule 1.
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, any other
Basic Document or any other instrument or document furnished pursuant thereto,
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any other Basic Document or any other
instrument or document furnished pursuant thereto, other than that it has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or the Guarantor or any other obligation or
the performance or observance by the Company, the Guarantor or any other
obligor of any of their respective obligations under the Credit Agreement or
any other Basic Document or any other instrument or document furnished pursuant
hereto or thereto; and (iii) attaches the Note(s) held by it evidencing (or to
evidence) its Loan and requests that the Administrative Agent exchange such
Note(s) for a new Note or Notes payable to the Assignor (if the Assignor has
retained any interest in its Loan) and a new Note or Notes payable to the
Assignee in the respective amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (ii) confirms
that it has received a copy of the Credit Agreement, together with copies of
the financial statements referred to in Section 7.02 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; (iii)
agrees that it will,
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independently and without reliance upon the Assignor, the Administrative 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 Agreement, the other Basic
Documents or any other instrument or document furnished pursuant hereto or
thereto; (iv) appoints and authorizes the Administrative Agent to take such
action as administrative agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (v) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance by the
Administrative Agent pursuant to Section 11.06(b) of the Credit Agreement,
effective as of the Effective Date (which date shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignee which accrue subsequent to the Effective Date.
6. From and after 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 other Basic Documents and shall be bound by the
provisions thereof 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 Agreement except as provided in Section 11.07 of
the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the law of the State of New York.
8. This Assignment and Acceptance 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 Assignment
and Acceptance by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
Assignment and Acceptance
135
Schedule 1 to
Assignment and Acceptance
relating to the Amended and Restated Credit Agreement
dated as of November 25, 1996
among Capital One Financial Corporation,
Capital One Bank, Capital One, F.S.B.,
the lenders party thereto and
The Chase Manhattan Bank, as Administrative Agent
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Relevant Commitment Principal Amount Percentage
Tranche Amount Assigned of Loan Assigned Assigned
- ------- ----------------------------------------------------
[ASSIGNEE] [ASSIGNOR]
By By
--------------------------- --------------------------
Title: Title:
Consented to and Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By
-
Title:
Assignment and Acceptance
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Consented to:
CAPITAL ONE FINANCIAL
CORPORATION
By
-
Title:
CAPITAL ONE BANK
By
-
Title:
CAPITAL ONE, F.S.B.
By
-
Title:
Assignment and Acceptance
137
EXHIBIT I
[Form of Commitment Increase Letter]
COMMITMENT INCREASE LETTER
[Date]
Capital One Bank
Capital One, F.S.B.
Capital One Financial Corporation
2980 Fairview Park Drive
Suite 1300
Falls Church, VA 22042-4525
The Chase Manhattan Bank,
as Administrative Agent
Agent Bank Services Group
1 Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Ms. Laura Rebecca
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement
dated as of November 25, 1996 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") among Capital One Financial Corporation,
Capital One Bank, Capital One, F.S.B., the lenders party thereto and The Chase
Manhattan Bank, as Administrative Agent. Terms used but not defined herein
have the respective meanings given to such terms in the Credit Agreement.
This Commitment Increase Letter is delivered pursuant to
Section 2.11 of the Credit Agreement.
If, prior to the execution and delivery of this Commitment
Increase Letter, the undersigned is a Lender already party to the Credit
Agreement, then the undersigned hereby agrees that, effective as of the
Commitment Increase Date set forth below, the Commitment of such Lender under
the Tranche set forth below is increased by an amount equal to the "Commitment
Increase Amount" set forth below.
Assignment and Acceptance
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If, prior to the execution and delivery of this Commitment
Increase Letter, the undersigned is not a Lender already party to the Credit
Agreement, then the undersigned hereby agrees that, effective as of the
Commitment Increase Date set forth below, the undersigned shall have a
Commitment under the Tranche set forth below in an amount equal to the
"Commitment Increase Amount" set forth below.
Commitment Increase Date: ,
------------ ----
Tranche: Tranche [A-($)][A-(MC)][B-($)][B-(MC)]
Commitment Increase Amount: $
-----------------
The undersigned agrees with the Borrowers and the
Administrative Agent that the undersigned will, from and after the Commitment
Increase Date, be a "Lender" under the Credit Agreement (if not already a
"Lender" thereunder) and perform all of the obligations of the undersigned as a
"Lender" under the Credit Agreement in respect of the Commitment Increase
Amount (together with, if already a "Lender" under the Credit Agreement, the
Commitment(s) of the Lender in effect immediately prior to the execution and
delivery of this Commitment Increase Letter).
This Commitment Increase Letter shall be governed by and
construed in accordance with the law of the State of New York without reference
to choice of law doctrine.
Very truly yours,
[INSERT NAME OF LENDER]
By
-------------------------
Title:
Commitment Increase Letter
139
EXHIBIT J
[Form of Drawing Certificate]
DRAWING CERTIFICATE
Capital One Bank
- ------------------
- ------------------
Ladies and Gentlemen:
Reference is made to the Undertaking entered into by Capital
One Bank ("COB") pursuant to Section 2.12 of the Amended and Restated Credit
Agreement dated as of November 25, 1996 (as modified and supplemented and in
effect from time to time, the "Credit Agreement") among Capital One Financial
Corporation, Capital One Bank, Capital One, F.S.B. ("FSB"), the lenders party
thereto and the Administrative Agent named therein. Terms used but not defined
herein have the respective meanings given to such terms in the Credit
Agreement.
The undersigned, a duly authorized representative of the
Administrative Agent (the "Administrative Agent"), hereby certifies that:
1. The Administrative Agent is the beneficiary of the
Undertaking.
2. The Administrative Agent hereby requests payment in an
amount equal to the amount of the draft accompanying this Certificate
(the "Draft"), which amount is not greater than the aggregate amount
due and payable by FSB on the date of this Certificate in respect of
the principal of or interest on the Loans made by the Lenders to, and
the Notes held by each Lender of, FSB or any other amount owing by FSB
to any Lender or the Administrative Agent under the Credit Agreement
or any of the Notes.
3. The amount represented by the Draft has not been paid by
FSB and has not been the subject of and paid pursuant to a prior
drawing by the Administrative Agent under the Undertaking.
4. The date of the Draft is the date of this Certificate.
Commitment Increase Letter
140
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IN WITNESS WHEREOF, the undersigned has executed this
Certificate on [insert date of draft accompanying this Certificate].
[NAME OF ADMINISTRATIVE AGENT],
as Administrative Agent
By
----------------------------
Authorized Representative
Drawing Certificate