U.S. $122,500,000
REVOLVING CREDIT AGREEMENT
Dated as of March 24, 1994
Among
ADVANTA CORP.,
THE BANKS NAMED HEREIN
as Banks
and
MELLON BANK, N.A.
as Agent
and
NATIONSBANK OF TEXAS, N.A.
as Co-Agent
[Facility A] 2
[Facility A]
T A B L E O F C O N T E N T S
Section Page - - - ------- ----
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01 Certain Definitions............................ 1 1.02 Construction................................... 14 1.03 GAAP/RAP....................................... 15
ARTICLE II
THE CREDITS
2.01 Revolving Loans................................ 15 2.02 Extension of Expiration Date;
Term Loan Option............................. 16
(a) Extension of Expiration Date.............. 16
(b) Term Loan Option.......................... 18 2.03 The Notes...................................... 19 2.04 Making of Revolving Loans...................... 19 2.05 Commitment Fee; Utilization Fee; Closing Fee... 20
(a) Commitment Fee............................. 20
(b) Utilization Fee............................ 21
(c) Closing Fee................................ 21 2.06 Termination or Reduction....................... 21 2.07 Interest Rates; Maturity Periods;
Transactional Amounts........................ 22
(a) Optional Basis of Borrowing................ 22
(i) Base Rate Option....................... 22
3
(ii)
(ii) Euro-Rate Option...................... 23
(b) Interest Periods.......................... 24
(c) Transactional Amounts..................... 25
(d) Interest After Maturity................... 25
(e) Euro-Rate Unascertainable;
Impracticability......................... 25 2.08 Prepayments.................................... 27 2.09 Interest Payment Dates......................... 27 2.10 Payments....................................... 28 2.11 Additional Compensation in
Certain Cirsumstances........................ 28
(a) Increased Costs or Reduced Return
Resulting from Taxes, Reserves, Capital
Adequacy Requirements, Expenses, etc....... 28
(b) Indemnity.................................. 30 2.12 Taxes.......................................... 31
(a) Payments Net of Taxes..................... 31
(b) Indemnity................................. 32
(c) Withholding and Backup Withholding........ 32 2.13 Funding by Branch, Subsidiary or Affiliate..... 33
(a) Notional Funding.......................... 33
(b) Actual Funding............................ 34
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Organization and Qualification................. 34 3.02 Corporate Power and Authorization.............. 35 3.03 Audited Annual Financial Statements............ 35 3.04 Interim Financial Statements................... 35 3.05 Consolidating Financial Statements............. 35 3.06 CNB Financial Statements....................... 36 3.07 Absence of Material Adverse Changes............ 36 4
(iii)
3.08 Litigation..................................... 36 3.09 No Conflicting Laws or Agreements;
Consents and Approvals........................ 36 3.10 Execution and Binding Effect................... 37 3.11 Erisa Compliance............................... 37 3.12 Taxes.......................................... 37 3.13 Regulation U................................... 37 3.14 Environmental Matters.......................... 38 3.15 Investment Company; Bank Holding Company;
Public Utility Holding Company............... 39 3.16 CNB Capitalization............................. 39 3.17 Absence of Undisclosed Liabilities............. 39 3.18 Absence of Events of Default................... 39 3.19 Title to Property.............................. 39 3.20 Subsidiaries and Other Investments............. 40 3.21 Accurate and Complete Disclosure............... 40
ARTICLE IV
CONDITIONS OF LENDING
4.01 Initial Loans.................................. 41
(a) Agreement; Notes........................... 41
(b) Corporate Proceedings...................... 41
(c) Good Standing Certificates................. 41
(d) Financial Statements....................... 41
(e) Opinion of Counsel......................... 42
(f) Officers' Certificates..................... 42
(g) Fees, Expenses, etc........................ 42
(h) Details, Proceedings and Documents......... 42 4.02 Conditions to all Loans........................ 42
(a) Notice..................................... 42
(b) Representations and Warranties............. 43
(c) No Defaults................................ 43
ARTICLE V
AFFIRMATIVE COVENANTS
5.01 Basic Reporting Requirements................... 43
(a) Annual Audit Reports....................... 43 5
(iv)
(b) Quarterly Consolidated Reports............. 44
(c) CNB Financial Statements................... 45
(d) Consolidating Reports...................... 45
(e) Compliance Certificates.................... 45
(f) Asset Quality Reports...................... 46
(g) Certain Other Reports and Information...... 46
(h) Further Information........................ 47
(i) Notice of Certain Events................... 47
(j) Visitation; Verification................... 49 5.02 Insurance...................................... 49 5.03 Payment of Taxes and Other Potential
Charges and Priority Claims.................. 49 5.04 Preservation of Existence and Franchises....... 50 5.05 Maintenance of Properties...................... 50 5.06 Avoidance of Other Conflicts................... 50 5.07 CNB Capitalization............................. 51 5.08 Financial Accounting Practices................. 51 5.09 Use of Proceeds................................ 51 5.10 Continuation of or Change in Business.......... 51 5.11 Consolidated Tax Return........................ 52 5.12 Fiscal Year.................................... 52 5.13 Restrictions on Stock Payments, Etc............ 52
ARTICLE VI
NEGATIVE COVENANTS
6.01 Financial Covenants............................ 52
(a) Consolidated Tangible Net Worth............ 52
(b) Double Leverage Ratio...................... 52
(c) Total Liabilities to
Consolidated Tangible Net Worth............ 52
(d) Consolidated Interest Coverage Ratio....... 52
(e) Contingent Obligations..................... 53
(f) Doubtful Accounts Managed and/or Owned..... 53 6.02 Liens.......................................... 53 6.03 Mergers, Acquisitions, etc..................... 56 6.04 Dispositions of Properties..................... 57 6
(v)
6.05 Dealings with Affiliates....................... 57 6.06 Limitations on Other Restrictions
on Dividends by Subsidiaries, etc............ 58
ARTICLE VII
EVENTS OF DEFAULT
7.01 Events of Default.............................. 60
ARTICLE VIII
THE AGENT
8.01 Appointment.................................... 63 8.02 Delegation of Duties........................... 63 8.03 Exculpatory Provisions......................... 63 8.04 Reliance by Agent.............................. 64 8.05 Notice of Default.............................. 65 8.06 Non-Reliance on Agent and Other Banks.......... 65 8.07 Indemnification................................ 66 8.08 Agent In Its Individual Capacity............... 66 8.09 Successor Agent................................ 66 8.10 Calculations................................... 67 8.11 Agent's Fees................................... 67 8.12 Funding by Agent............................... 67 8.13 Co-Agent....................................... 68
ARTICLE IX
MISCELLANEOUS
9.01 Holidays...................................... 68 9.02 Records....................................... 68 9.03 Amendments and Waivers........................ 68 9.04 No Implied Waiver; Cumulative Remedies........ 69 7
(vi)
9.05 Notices....................................... 70 9.06 Expenses; Taxes; Indemnity.................... 70 9.07 Severability.................................. 72 9.08 Prior Understandings.......................... 72 9.09 Duration; Survival............................ 72 9.10 Counterparts.................................. 72 9.11 Limitation on Payments........................ 72 9.12 Set-Off....................................... 73 9.13 Sharing of Collections........................ 73 9.14 Successors and Assigns;
Participations; Assignments................. 74
(a) Successors and Assigns................... 74
(b) Participations........................... 74
(c) Assignments.............................. 75
(d) Register................................. 77
(e) Financial and Other Information.......... 77
(f) Assignments to Federal Reserve Bank...... 78 9.15 Governing Law; Submission to Jursidiction
Waiver of Jury Trial; Limitation of
Liability................................... 78
(a) Governing Law............................ 78
(b) Certain Waivers.......................... 78
(c) Limitation of Liability.................. 79
EXHIBIT A Promissory Note...........................
EXHIBIT B Form of Loan Request......................
EXHIBIT C Term Loan Note............................
8
Facility A
REVOLVING CREDIT AGREEMENT
This AGREEMENT, dated as of March 24, 1994, by and among ADVANTA CORP., a Delaware Corporation (hereinafter called the "Company"), the Banks named in Section 2.01 hereof (hereinafter each called a "Bank" and collectively called the "Banks") and MELLON BANK, N.A., a national banking association, as agent for the Banks under this Agreement (hereinafter in such capacity called the "Agent");
PRELIMINARY STATEMENT:
WHEREAS, the Company has requested and the Banks and the Agent are willing to make available to the Company, upon all of the terms and conditions herein set forth, a revolving credit facility;
NOW THEREFORE, in consideration of their mutual agreements hereinafter set forth and intending to be legally bound hereby, the parties hereto agree as follows;
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain definitions. In addition to other words and terms defined elsewhere in this Agreement, as used herein the following words and terms shall have the following meanings, respectively, unless the context hereof otherwise clearly requires:
"Active Subsidiary" shall mean any Subsidiary of the Company which has, at the time of determination, engaged in any business activity or operations whatsoever (except for any activity-related exclusively to the continuation or preservation of its corporate existence), either directly or indirectly and either individually or together with one or more other such Subsidiaries for or at any time during the Rolling Period immediately preceeding the date of determination.
"Affiliate" of a Person (the "Specified Person") shall mean (a) any Person which directly or indirectly controls, or is controlled by, or is under common control with, the Specified Person, (b) any director or executive officer (or, in the case of a Person which is not a corporation, any individual having analogous powers) of the Specified Person or of a Person who is an Affiliate of the Specified Person within the meaning of the preceding clause (a). For purposes 9 of the preceding sentence, "control" of a Person includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Revolving Credit Agreement as amended, modified or supplemented from time to time.
"Applicable Closing Fee Percentage" shall mean, for each Bank, the percentage set forth below opposite the amount of the Initially Offered Combined Commitment Amount of such Bank. The "Initially Offered Combined Commitment Amount" of each Bank shall be an amount equal to the sum of (i) the amount of the Commitment to this Agreement initially offered by such Bank to the Agent; plus (ii) the amount of the commitment to the Three Year Revolving Credit Agreement initially offered by such Bank to the Agent both as determined by the Agent and in each case unreduced by any subsequent allocation or reduction by the Agent.
Initially Offered Combined Applicable Closing
Commitment Amount Fee Percentage
-------------------------- ------------------
$20,000,000 or higher .15%
$15,000,000 - $19,999,999 .10%
$10,000,000 - $14,999,999 .075%
"Applicable Commitment Fee Percentage" shall mean, for any day, (i) .1875% for any such day during which the Rating Level is 1-7; (ii) .25% for any such day during which the Rating Level is 8 or 9; (iii) .35% for any such day during which the Rating Level is 10; and (iv) .45% for any such day during which the Rating Level is 11. Each change in the Applicable Commitment Fee Percentage resulting from a change of the Rating Level shall become effective on the effective date of such change in the Rating Level.
"Applicable Margin" shall mean, for any day, the percentage set forth below which corresponds to the Rating Level in effect on any such day. Each change in the Applicable Margin for any Loan which results from a change in the Rating Level shall become effective on the effective date of such change in the Rating Level.
- 2 - 10
Rating Level Percentage
------------ ----------
1 - 7 .625%
8 or 9 .75%
10 1.00%
11 1.50%
"Applicable Utilization Fee Percentage" shall mean, for each day, (a) .25% for any such day during which the Rating Level is 1-7; (b) .325% for any such day during which the Rating Level is 8 or 9; (c) .5% for any such day during which the Rating Level is 10; and (d) .75% for any such day during which the Rating Level is 11. Each change in the Applicable Utilization Fee resulting from a change in the Rating Level shall become effective on the effective date of such change in the Rating Level.
"Assignment Notice" shall have the meaning assigned to such term in Section 9.14(c) hereof.
"Assets" of any Person at any time shall mean the assets of such Person at such time, determined and consolidated in accordance with GAAP.
"Base Rate" and "Base Rate Option" shall have the meanings assigned to those terms in Section 2.07(a)(i) hereof.
"Base Rate Loan" shall mean any Loan bearing interest under the Base Rate Option.
"Business Day" shall mean any day other than a Saturday, Sunday, public holiday under the laws of the Commonwealth of Pennsylvania or other day on which banking institutions are authorized or obligated to close in New York or Pennsylvania.
"Call Reports" shall mean Consolidated Reports of Condition and Income prepared in accordance with rules prescribed by the Federal Financial Institutions Examination Council.
"Change of Control" shall mean that Dennis Alter shall cease for any reason (other than by reason of death or disability) to serve as Chairman of the Board of Directors of the Company, or shall cease to own directly or indirectly (or by or through his estate) at least 10% of the issued and outstanding voting capital stock of the Company.
- 3 - 11
"Closing Date" shall mean March 24, 1994.
"CNB" shall mean Colonial National Bank USA, an indirect wholly (except for directors' qualifying shares) owned banking Subsidiary of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended and any successor statute of similar import, and regulations thereunder, in each case as in effect from time to time. References to sections of the Code shall be construed to also refer to any successor sections.
"Commitment" and "Current Commitment" shall have the meanings assigned to those terms in Section 2.01 hereof.
"Consolidated Assets" shall mean the Assets of the Company and its Consolidated Subsidiaries, determined and consolidated in accordance with GAAP.
"Consolidated EBIT" for any period, with respect to the Company and its Consolidated Subsidiaries shall mean the sum of (a) Consolidated Net Income for such period, (b) Consolidated Interest Expense for such period, (c) charges against income for foreign, federal, state and local income taxes for such period, (d) extraordinary losses to the extent included in determining such Consolidated Net Income, minus (e) extraordinary gains to the extent included in determining such Consolidated Net Income, all as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Coverage Ratio" for any period shall mean the ratio of Consolidated EBIT for such period to Consolidated Interest Expense for such period.
"Consolidated Interest Expense" for any period shall mean the total interest expense of the Company and its Consolidated Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" shall mean the net income from continuing operations (after taxes) of the Company and its Consolidated Subsidiaries, determined and consolidated in accordance with GAAP, excluding, however, non-cash extraordinary items.
"Consolidated Net Worth" shall mean the consolidated stockholder's equity of the Company and its Consolidated Subsidiaries determined and consolidated in accordance with GAAP.
- 4 - 12
"Consolidated Subsidiaries" at any particular time shall mean those Subsidiaries of the Company whose accounts are, or should be, consolidated with those of the Company in accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean the consolidated stockholders' equity of the Company and its Consolidated Subsidiaries, determined and consolidated in accordance with GAAP, except that there shall be deducted therefrom all treasury stock and all Intangibles of the Company and its Consolidated Subsidiaries.
"Contingent Obligation" shall mean any and all obligations of the Company for Indebtedness of the Company or of any Person, the liability for which is not absolute but is instead dependent upon the occurrence of some event or events including, without limitation, any Guaranty of or by the Company and all undrawn letters of credit issued for the account of the Company for which the Company is otherwise directly or indirectly obligated to make reimbursement upon any drawing thereunder.
"Corresponding Source of Funds" shall mean in the case of any Euro-Rate Loan, the proceeds of hypothetical receipts by a Notional Euro-Rate Funding Office of one or more Dollar deposits in the interbank eurodollar market at the beginning of the Euro-Rate Interest Period applicable to such Loan, having maturities approximately equal to such Interest Period and in an aggregate amount approximately equal to such Loan.
"Dollar", "Dollars" and the symbol "$" shall mean lawful money of the United States of America.
"Double Leverage Ratio" shall mean at any time the ratio of (a) the Company's aggregate investment in the capital stock of its Subsidiaries (including the Company's interest in undistributed earnings of its Subsidiaries) plus goodwill of the Company and its Consolidated Subsidiaries as determined in accordance with GAAP to (b) Consolidated Net Worth.
"Duff & Phelps" shall mean Duff & Phelps Credit Rating Company.
"Environment" shall mean (without limitation) all air, surface water, water vapor, groundwater, drinking water supply, soil or land, including land surface or subsurface, and includes all fish, wildlife and all other natural resources.
- 5 - 13
"Environmental Affiliate" shall mean, with respect to any Person, any other Person whose liability (contingent or otherwise) for any Environmental Claim such person has retained, assumed or otherwise is liable for (by Law, agreement or otherwise).
"Environmental Approvals" shall mean any governmental action pursuant to or required under any federal, state or local Environmental Law.
"Environmental Claim" shall mean, with respect to any Person, any action, suit, proceeding, notice, claim, complaint, lien, demand, request for information or other communication (written or oral) by any other person (including but not limited to any governmental authority, citizens' group or present or former employee of such Person) based upon, alleging, asserting or claiming any actual or potential (a) violation of any Environmental Law, (b) liability under any Environmental Law or (c) liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, material personal injuries, fines or penalties arising out of, based on or resulting from the presence, or release into the Environment, of any Environmental Concern Materials at any location, whether or not owned by such Person.
"Environmental Cleanup Site" shall mean any location which is listed or proposed for listing on the National Priorities List, on CERCLIS or on any similar state list of sites requiring investigation or cleanup.
"Environmental Concern Materials" shall mean (a) any flammable substance, explosive, radioactive material, hazardous material, hazardous waste, toxic substance, solid waste, pollutant, contaminant or any related material, raw material, substance, product or by-product or any substance specified in or regulated by any Environmental Law, (b) any toxic chemical or other substance from or related to industrial, commercial or institutional activities, and (c) asbestos, gasoline, diesel fuel, motor oil, waste and used oil, heating oil and other petroleum products or compounds, polycholorinated biphenyls, radon, urea formaldehyde, lead containing materials, radiation, heat, noise, and other physical agents.
"Environmental Law" shall mean any Law, domestic or foreign, whether now existing or subsequently enacted or amended, relating to (a) pollution or protection of the Environment, including natural resources, (b) exposure of Persons, including but not limited to employees, to
- 6 - 14 Environmental Concern Materials, (c) protection of the public safety, health or welfare from the effects of products, by-products, wastes, emissions, discharges or releases of Environmental Concern Materials or (d) regulation of the use or introduction into commerce of Environmental Concern Materials including their manufacture, formulation, packaging, labeling, distribution, transportation, handling, storage or disposal.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case as in effect from time to time. References to sections of ERISA shall be construed to also refer to any successor sections.
"ERISA Group Member" means each trade or business (whether or not incorporated and whether controlled by, controlling or under common control with the Company) which together with the Company is treated as a single employer under Section 414(b) or 414(c) of the Code.
"Euro-Rate" and "Euro-Rate Option" shall have the meanings assigned to those terms in Section 2.07(a)(ii) hereof.
"Event of Default" shall mean any of the Events of Default described in Article VII hereof.
"Expiration Date" shall be March 22, 1995, or if extended in accordance with Section 2.02, such extended date.
"Federal Funds Effective Rate" shall have the meaning assigned to such term in Section 2.07(a)(i) hereof.
"Fitch" shall mean Fitch Investors' Services, Inc.
"GAAP" shall mean generally accepted accounting principles in the United States of America (as such principles may change from time to time) applied on a consistent basis (except for changes in application with which the Company's independent certified public accountants concur), applied both to classification of items and amounts.
"Guaranty" shall mean, with respect to any Person, any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Indebtedness or other payment obligation o ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.