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EXHIBIT 10.2
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FOUR-YEAR CREDIT AGREEMENT
dated as of
August 11, 1999
between
WASHINGTON MUTUAL, INC.
ARISTAR, INC.,
as Borrowers
The LENDERS Party Hereto
BANK OF AMERICA, N.A.
BANC ONE CAPITAL MARKETS, INC.
BANK OF MONTREAL,
as Syndication Agents
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$600,000,000
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................20
SECTION 1.03. Terms Generally................................................20
SECTION 1.04. Accounting Terms; GAAP.........................................20
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments................................................21
SECTION 2.02. Loans and Borrowings...........................................21
SECTION 2.03. Requests for Syndicated Borrowings.............................22
SECTION 2.04. Competitive Bid Procedure......................................23
SECTION 2.05. Funding of Borrowings..........................................26
SECTION 2.06. Interest Elections.............................................26
SECTION 2.07. Termination and Reduction of the Commitments...................28
SECTION 2.08. Repayment of Loans; Evidence of Debt...........................29
SECTION 2.09. Prepayment of Loans............................................30
SECTION 2.10. Fees...........................................................31
SECTION 2.11. Interest.......................................................32
SECTION 2.12. Alternate Rate of Interest.....................................33
SECTION 2.13. Increased Costs................................................33
SECTION 2.14. Break Funding Payments.........................................35
SECTION 2.15. Taxes..........................................................35
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....36
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.................39
SECTION 2.18. Extension of Commitment Termination Date.......................40
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers...........................................42
SECTION 3.02. Authorization; Enforceability..................................42
SECTION 3.03. Governmental Approvals; No Conflicts...........................42
SECTION 3.04. Financial Condition; No Material Adverse Change................43
SECTION 3.05. Properties.....................................................43
SECTION 3.06. Litigation and Environmental Matters...........................43
SECTION 3.07. Compliance with Laws and Agreements............................44
SECTION 3.08. Investment and Holding Company Status..........................44
SECTION 3.09. Taxes..........................................................44
SECTION 3.10. ERISA..........................................................44
SECTION 3.11. Disclosure.....................................................45
SECTION 3.12. Use of Credit..................................................45
SECTION 3.13. Material Agreements and Liens..................................45
SECTION 3.14. Subsidiaries...................................................46
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date.................................................46
SECTION 4.02. Each Credit Event..............................................48
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.....................48
SECTION 5.02. Notices of Material Events.....................................50
SECTION 5.03. Existence; Conduct of Business.................................51
SECTION 5.04. Payment of Obligations.........................................51
SECTION 5.05. Maintenance of Properties; Insurance...........................51
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SECTION 5.06. Books and Records; Inspection Rights...........................52
SECTION 5.07. Compliance with Laws...........................................52
SECTION 5.08. Use of Proceeds................................................52
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Liens..........................................................53
SECTION 6.02. Fundamental Changes............................................54
SECTION 6.03. Certain Restrictions on Subsidiaries...........................55
SECTION 6.04. Certain Financial Covenants....................................55
SECTION 6.05. Insured Subsidiary Capital.....................................56
SECTION 6.06. Payment of Dividends...........................................56
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
AGENTS
SECTION 8.01 Administrative Agent............................................60
SECTION 8.02 Syndication Agents..............................................62
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices........................................................63
SECTION 9.02. Waivers; Amendments............................................63
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................64
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SECTION 9.04. Successors and Assigns.........................................65
SECTION 9.05. Survival.......................................................69
SECTION 9.06. Counterparts; Integration; Effectiveness.......................69
SECTION 9.07. Severability...................................................70
SECTION 9.08. Right of Setoff................................................70
SECTION 9.09. Governing Law; Jurisdiction; Etc...............................70
SECTION 9.10. WAIVER OF JURY TRIAL...........................................71
SECTION 9.11. Headings.......................................................71
SECTION 9.12. Treatment of Certain Information; Confidentiality..............71
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SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Subsidiaries
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Opinion of Counsel to the Borrower
EXHIBIT C - Form of Opinion of Special New York Counsel to Chase
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FOUR-YEAR CREDIT AGREEMENT dated as of August 11, 1999, between
WASHINGTON MUTUAL, INC. ("WAMU"), and ARISTAR, INC. ("Aristar"; each of WAMU and
Aristar is herein referred to as a "Borrower" and, collectively, as the
"Borrowers"), the LENDERS party hereto, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
The Borrowers have requested that the Lenders (as so defined)
make loans to them in an aggregate principal amount not exceeding $600,000,000
at any one time outstanding. The Lenders are prepared to make such loans upon
the terms and conditions hereof, and, accordingly, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition" shall mean any transaction, or any series of
related transactions, consummated after the date of this Agreement, by which
WAMU and/or one or more of its Subsidiaries (in one transaction or as the most
recent transaction in a series of related transactions) (a) acquires any going
business or all or substantially all of the assets of any Person (or division or
operating unit thereof), whether through purchase of assets, merger or otherwise
or, (b) directly or indirectly acquires control of securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests of any corporation, limited liability company,
partnership, association or other entity.
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
Four-Year Credit Agreement
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"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate for such day plus 1% and (c) the Federal Funds Effective Rate for such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the aggregate principal amount of the Syndicated Loans
held by the Lenders or, if no Syndicated Loans are outstanding, the Commitments
most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
Loan, zero, or with respect to any Syndicated Eurodollar Loan, or with respect
to the facility fees or utilization fees payable hereunder, as the case may be,
the applicable rate per annum set forth below under the caption, "Eurodollar
Spread", "Facility Fee Rate" or "Utilization Fee Rate", respectively, based upon
the ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on such date to the
Index Debt:
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Index Debt
Ratings Eurodollar Facility Fee Utilization Fee
(S&P/▇▇▇▇▇'▇) Spread Rate Rate
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Category 1 (chi)A+/A1 .210% .090% .050%
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Category 2 A-/A3 .250% .100% .100%
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Category 3 BBB+/Baa1 .325% .125% .125%
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Category 4 BBB/Baa2 .475% .150% .125%
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Category 5 (alpha)BBB-/Baa3 .550% .200% .125%
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, (▇) if either ▇▇▇▇▇'▇ or S&P
shall not have in effect a rating for the Index Debt of a Borrower (other than
by reason of the circumstances referred to in the last sentence of this
definition), then such rating agency shall be deemed to have established a
rating for the Index Debt of such Borrower in Category 5; and (ii) if the
ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for
the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of ▇▇▇▇▇'▇ or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrowers and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
Subject to the foregoing,
(a) with respect to any facility fees payable under Section
2.10(a):
(i) the Applicable Rate with respect to Tranche A shall be
determined by reference to the higher Index Debt rating assigned by
▇▇▇▇▇'▇ and S&P to the Borrower with the lower overall Index Debt rating
assigned by ▇▇▇▇▇'▇ and S&P; and
(ii) the Applicable Rate with respect to Tranche B shall be
determined by reference to higher Index Debt rating assigned by ▇▇▇▇▇'▇
and S&P to Aristar;
provided that if there shall be a difference of two or more rating categories
between the ratings assigned by ▇▇▇▇▇'▇ and S&P to the Index Debt of the
Borrower by reference to whose Index Debt the Applicable Rate is to be
determined, such Applicable Rate shall be determined by reference to the Index
Debt rating that is one category lower than the higher of the two Index Debt
ratings assigned by ▇▇▇▇▇'▇ and S&P; and
(b) with respect to any utilization fees payable by a Borrower
under Section 2.10(b) and any Syndicated Eurodollar Loan made to such Borrower,
the Applicable Rate shall be determined by reference to the higher Index Debt
rating assigned by ▇▇▇▇▇'▇ and S&P to such Borrower, provided that if there
shall be a difference of two or more rating categories between the ratings
assigned by ▇▇▇▇▇'▇ and S&P to the Index Debt of such Borrower, such Applicable
Rate shall be determined by reference to the Index Debt rating that is one
category lower than the higher of the two Index Debt ratings assigned by ▇▇▇▇▇'▇
and S&P.
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"Aristar" means Aristar, Inc., a Delaware corporation.
"Assessment Rate" means, for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States of America; provided that if, as a
result of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Asset Securitization" shall mean a public or private transfer
of installment receivables, credit card receivables, lease receivables or any
other type of secured or unsecured financial assets which transfer is recorded
as a sale according to generally accepted accounting principles as of the date
of such transfer.
"Availability Period" means the period from and including the
Effective Date to and including the Commitment Termination Date.
"Bank Regulatory Authority" means the Board, the Comptroller of
the Currency, the Federal Deposit Insurance Corporation and all other relevant
bank regulatory authorities (including relevant state bank regulatory
authorities).
"Base CD Rate" means, for any day, the sum of (a) the
Three-Month Secondary CD Rate for such day multiplied by the Statutory Reserve
Rate for such day plus (b) the Assessment Rate for such day.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowers" means collectively, Aristar and WAMU.
"Borrowing" means (a) all ABR Loans made to, or converted or
continued by, a Borrower on the same date or (b) all Syndicated Eurodollar Loans
or Competitive Loans made to a Borrower of the same Class and Type that have the
same Interest Period (or any single Competitive Loan made to such Borrower that
does not have the same Interest Period as any other Competitive Loan of the same
Type). For purposes hereof, the date of a Syndicated Borrowing comprising one or
more Loans that have been converted or continued shall be the effective date of
the most recent conversion or continuation of such Loan or Loans.
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"Borrowing Request" means a request by a Borrower for a
Syndicated Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" shall mean (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
SEC thereunder as in effect on the date hereof), of shares representing more
than 25% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of WAMU; (b) during any period of 25 consecutive
calendar months, a majority of the Board of Directors of WAMU ceasing to 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; (c) the acquisition by any Person or group of
direct or indirect possession of the power to direct or cause to direct the
management or policies of WAMU, whether through the ability to exercise voting
power, by contract or otherwise; or (d) the failure of WAMU to own at least 80%
of the outstanding capital stock of Aristar.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank.
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"Class", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are Syndicated
Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitments" means, collectively, the Tranche A Commitments and
the Tranche B Commitments.
"Commitment Termination Date" means August 11, 2003 as such date
may be extended pursuant to Section 2.18.
"Competitive", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.04.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for
Competitive Bids in accordance with Section 2.04.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Consolidated Assets" shall mean, at any date, the amount at
which the assets of WAMU and its Subsidiaries are or should be shown on a
consolidated statement of financial position prepared in accordance with GAAP as
at such date.
"Consolidated Equity" shall mean, at any date, the amount of
stockholders' equity of WAMU and its Subsidiaries determined on a consolidated
basis without duplication in accordance with GAAP (and, for the purposes of
Section 6.04 only, shall include Special Preferred Equity Securities, but only
to the extent that such Special Preferred Equity Securities could be treated as
Tier 1 capital of WAMU if WAMU were a bank holding company subject to regulation
by the Board of Governors of the Federal Reserve System).
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"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of Aristar
in its consolidated financial statements as of such date.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule III and the environmental matters disclosed in Schedule
IV.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Double Leverage Ratio" means, at any date, the ratio of (a) the
sum of (i) the aggregate book value of the Investments of WAMU in the capital
notes and stock of its Subsidiaries as at such date plus (ii) the aggregate
amount of intangibles (including purchased mortgage servicing rights and
purchased credit card relationships) of the Subsidiaries of WAMU as at such date
to (b) Consolidated Equity as at such date.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of either Borrower or any of
their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or
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securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means, with respect to a Borrower, any trade
or business (whether or not incorporated) that, together with such Borrower, is
treated as a single employer under Section 414(b) or (c) of the Code, or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by either Borrower or any of their
respective ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the distribution of or receipt by
either Borrower or any of their respective ERISA Affiliates from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan or the institution of
proceedings by from the PBGC or a plan administrator in relation to the
foregoing; (f) the incurrence by either Borrower or any of their respective
ERISA Affiliates of any liability (including the obligation to satisfy secondary
liability as a result of a purchaser default) with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; (g) the receipt by
either Borrower or any of their respective ERISA Affiliates of any notice, or
the receipt by any Multiemployer Plan from either Borrower or any of their
respective ERISA Affiliates of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA; (h) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against either Borrower or any of their respective ERISA
Affiliates to enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days; or (i) 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 either
Borrower or any of their respective ERISA Affiliates fails to timely provide
security to the Plan in accordance with the provisions of said Sections.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by
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reference to (a) in the case of a Syndicated Loan or Borrowing, the Adjusted
LIBO Rate, or (b) in the case of a Competitive Loan or Borrowing, the LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of either Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which such Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by such
Borrower under Section 2.17(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.15(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from such Borrower with respect to such withholding tax
pursuant to Section 2.15(a).
"Existing Commitment Termination Date" has the meaning
attributed thereto in Section 2.18(a).
"Existing Credit Facilities" means, collectively, (a) the
Amended and Restated Credit Agreement dated as of August 22, 1996 among Aristar,
the lenders party thereto and Bank of Montreal, as administrative agent for such
lenders, as heretofore amended, (b) the Amended and Restated 364-Day Credit
Agreement dated as of November 25, 1997 between WAMU, the lenders party thereto
and Chase, as administrative agent for such lenders, as heretofore amended, and
(c) the Amended and Restated Four-Year Credit Agreement dated as of November 25,
1997 between WAMU, the lenders party thereto and Chase, as administrative agent
for such lenders, as heretofore amended.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
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"Financial Officer" means, with respect to a Borrower, the chief
financial officer, principal accounting officer, treasurer or controller of such
Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other
than a Competitive Eurodollar Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which either Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon
17
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gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means, with respect to a Borrower, senior,
unsecured, long-term indebtedness for borrowed money of such Borrower that is
not guaranteed by any other Person or subject to any other credit enhancement.
"Insured Subsidiary" means 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 either Borrower.
"Interest Election Request" means a request by a Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.06.
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"Interest Payment Date" means (a) with respect to any ABR Loan,
each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day of
each Interest Period therefor and, in the case of any Interest Period for a
Eurodollar Loan that is more than three months long, each day prior to the last
day of such Interest Period that occurs at intervals of three months after the
first day of such Interest Period and (c) with respect to any Fixed Rate Loan,
the last day of the Interest Period therefor and, in the case of any Interest
Period for a Fixed Rate Loan that is more than 90 days long (unless otherwise
specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90 days after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Loan.
"Interest Period" means:
(a) for any Borrowing (other than an ABR Borrowing), the
Interest Period of the Loan or Loans constituting such Borrowing;
(b) for any Syndicated Eurodollar Loan, the period commencing on
the date of such Loan and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months thereafter, as
specified in the applicable Borrowing Request or Interest Election
Request;
(c) for any Competitive Eurodollar Loan, the period commencing
on the date of such Loan and ending on the numerically corresponding day
in the calendar month that is one, two, three or six months thereafter,
as specified in the applicable Competitive Bid Request; and
(d) for any Fixed Rate Loan, the period (which shall not be less
than 7 days or more than 180 days) commencing on the date of such Loan
and ending on the date specified in the applicable Competitive Bid
Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Loan initially shall be the date on which such
Loan is made and, in the case of a Syndicated Loan, thereafter shall be the
effective date of the most recent conversion or continuation of such Loan.
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"Investment" means, 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 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); (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; or (d) the entering into of any Hedging Agreement.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service of Bridge
Information Services (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for the
offering of Dollar deposits with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then
the LIBO Rate for such Interest Period shall be the rate at which Dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrowers (or
to either of them) pursuant to this Agreement.
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"Major Subsidiaries" shall mean Washington Mutual Bank and
Washington Mutual Bank, FA.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, operations, prospects or condition, financial or
otherwise, of either Borrower and its Subsidiaries, in each case, taken as a
whole, (b) the ability of either Borrower to perform any of its obligations
under this Agreement or (c) the rights of or benefits available to the Lenders
under this Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrowers and their respective Subsidiaries in an aggregate
principal amount exceeding $40,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of any Person in respect
of any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Person would be required to
pay if such Hedging Agreement were terminated at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Non-Extending Lender" has the meaning set forth in Section
2.18(a).
"Non-Material Subsidiaries" shall mean, as at any date,
Subsidiaries of WAMU the total assets of which, in the aggregate, do not exceed
one percent (1%) of the Consolidated Assets of WAMU and all of its Subsidiaries,
as at such date.
"Non-Performing Assets" shall mean, as at any date, the sum, for
WAMU and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of the following: (a) non-accrual loans
plus (b) accruing loans past due 90 days or more plus (c) other non-performing
assets plus (d) other real estate owned plus (e) without duplication for
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amounts included as other real estate owned, property acquired pursuant to
in-substance foreclosures.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) cash deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that in the aggregate are not material in amount and
do not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of any of the Borrowers
and their Subsidiaries;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
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"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which either Borrower
or any of their respective ERISA Affiliates is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Quarterly Dates" means 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.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Repurchase Arrangements" shall mean repurchase and reverse
repurchase arrangements with respect to securities and financial instruments.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 50% of the sum of
the total Revolving Credit Exposures and unused Commitments at such time
(provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all purposes after the Loans become due and
payable pursuant to Article VII or the Commitments expire or terminate, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders).
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of Aristar, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of capital stock of Aristar or of any option,
warrant or other right to acquire any such shares of capital stock of Aristar.
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"Revolving Credit Exposure" means, with respect to any Lender at
any time, the aggregate outstanding principal amount of such Lender's Syndicated
Loans at such time.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to any or all of the functions of said
Commission.
"Senior Indebtedness" means all Indebtedness of Aristar other
than Subordinated Indebtedness.
"Special Preferred Equity Securities" shall mean preferred
equity securities, if any, issued by a wholly-owned Subsidiary of WAMU of the
type marketed under proprietary names such as MIPS, SKIS and TOPRS.
"S&P" means Standard & Poor's Ratings Services, a Division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Statutory Reserve Rate" means, for any day (or for the Interest
Period for any Eurodollar Borrowing), a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject on such
day (or, with respect to an Interest Period, the denominator of which is the
number one minus the arithmetic mean of such aggregates for the days in such
Interest Period) (a) with respect to the Base CD Rate, for new negotiable
nonpersonal time deposits in Dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate, for eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subordinated Indebtedness" means all Indebtedness of Aristar
which is subordinate and junior in right and time of payment to any other
Indebtedness (including all Loans and interest thereon).
"Subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date,
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as well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Syndicated Loan" means a Loan made pursuant to Section 2.01.
"Tangible Net Worth" means, as at any date,
(a) with respect to WAMU, the sum of:
(i) Consolidated Equity as at such date; minus
(ii) the amount of Special Preferred Equity
Securities, to the extent otherwise included in Consolidated
Equity, as at such date; minus
(iii) the sum for WAMU and its Subsidiaries
(determined on a consolidated basis without duplication in
accordance with GAAP) of the cost of treasury shares and the
book value of all assets that should be classified as
intangibles (without duplication of deductions in respect of
items already deducted in arriving at Consolidated Equity) but
in any event including goodwill, minority interests, research
and development costs, trademarks, trade names, copyrights,
patents and franchises, unamortized debt discount and expense,
all reserves and any write-up in the book value of assets
resulting from a revaluation thereof subsequent to December 31,
1998, all determined as at such date.
(b) with respect to Aristar, the stockholders' equity of
Aristar and its Consolidated Subsidiaries less the amount (to the extent
reflected in determining such consolidated stockholders' equity) of 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 of Aristar and its
Consolidated Subsidiaries, all determined on a consolidated basis as of
such date minus the aggregate principal amount of Indebtedness as at
such date owing to Aristar or any Subsidiaries of Aristar by WAMU or any
Subsidiaries of WAMU that are not Aristar or Subsidiaries of Aristar.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
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"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Tranche" means Tranche A or Tranche B.
"Tranche A Commitment" means as to each Tranche A Lender, the
obligation of such Lender to make Syndicated Loans pursuant to Section 2.01(a),
as such commitment may be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Tranche A
Lender's Commitment is set forth on Schedule I, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed such Commitment, as
applicable. The initial aggregate amount of the Tranche A Commitments shall be
$250,000,000.
"Tranche A Lender" means a Lender having a Tranche A Commitment
or holding Tranche A Loans.
"Tranche A Loans" shall mean the loans provided for in Section
2.01(a).
"Tranche B Commitment" means as to each Tranche B Lender, the
obligation of such Lender to make Syndicated Loans pursuant to Section 2.01(b),
as such commitment may be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Tranche B
Lender's Commitment is set forth on Schedule I, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed such Commitment, as
applicable. The initial aggregate amount of the Tranche B Commitments shall be
$350,000,000.
"Tranche B Lender" means a Lender having a Tranche B Commitment
or holding Tranche B Loans.
"Transactions" means the execution, delivery and performance by
the Borrowers of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
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"Type", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans constituting such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"WAMU" means Washington Mutual, Inc., a Washington corporation.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Syndicated Loan"), by Type (e.g., a "Eurodollar Loan"), by Tranche
(e.g., a "Tranche A Loan")or by any combination thereof. Borrowings also may be
classified and referred to by Class (e.g., a "Syndicated Borrowing"), by Type
(e.g., a "Eurodollar Borrowing"), by Tranche (e.g., a "Tranche A Borrowing") or
by any combination thereof.
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrowers notify the Administrative Agent that the Borrowers
request an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application
27
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thereof on the operation of such provision (or if the Administrative Agent
notify the Borrowers that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments
(a) Tranche A Loans. Subject to the terms and conditions set
forth herein, each Tranche A Lender agrees to make Syndicated Loans to either or
both of the Borrowers from time to time during the Availability Period in an
aggregate principal amount that will not result in (a) such Lender's Revolving
Credit Exposure under such Tranche exceeding such Lender's Commitment under such
Tranche or (b) the sum of the total Revolving Credit Exposures under such
Tranche plus the aggregate principal amount of outstanding Competitive Loans
under such Tranche exceeding the total Commitments under such Tranche. Within
the foregoing limits and subject to the terms and conditions set forth herein,
the Borrowers may borrow, prepay and reborrow Syndicated Tranche A Loans.
(b) Tranche B Loans. Subject to the terms and conditions set
forth herein, each Tranche B Lender agrees to make Syndicated Loans to Aristar
from time to time during the Availability Period in an aggregate principal
amount that will not result in (a) such Lender's Revolving Credit Exposure under
such Tranche exceeding such Lender's Commitment under such Tranche or (b) the
sum of the total Revolving Credit Exposures under such Tranche plus the
aggregate principal amount of outstanding Competitive Loans under such Tranche
exceeding the total Commitments under such Tranche. Within the foregoing limits
and subject to the terms and conditions set forth herein, Aristar may borrow,
prepay and reborrow Syndicated Tranche B Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made
as part of a Borrowing consisting of Loans of the same Type made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to
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be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments and Competitive Bids of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
(b) Type of Loans. Subject to Section 2.12, (i) each Syndicated
Borrowing shall be constituted entirely of ABR Loans or Eurodollar Loans as the
relevant Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be constituted entirely of Eurodollar Loans or Fixed Rate Loans
as the relevant Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the relevant Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the
commencement of the Interest Period for any Syndicated Eurodollar Borrowing,
such Borrowing shall be in an aggregate amount of $10,000,000 or a larger
multiple of $1,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger
multiple of $1,000,000; provided that an ABR Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments.
Borrowings of more than one Type and Class and Tranche may be outstanding at the
same time; provided that there shall not at any time be more than a total of 10
Syndicated Eurodollar Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods. Notwithstanding
any other provision of this Agreement, the Borrowers shall not be entitled to
request, or to elect to convert to or continue as a Syndicated Eurodollar
Borrowing, any Borrowing if the Interest Period requested therefor would end
after the Commitment Termination Date.
SECTION 2.03. Requests for Syndicated Borrowings. To request a
Syndicated Borrowing, the relevant Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Syndicated Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the relevant Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
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(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Syndicated Eurodollar Borrowing, the
Interest Period therefor, which shall be a period contemplated by the
definition of the term "Interest Period";
(v) in the case of a Borrowing by Aristar, the Tranche under
which such Borrowing is to be made; and
(vi) the location and number of the relevant Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Syndicated Borrowing is specified, then the
requested Syndicated Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Syndicated Eurodollar Borrowing, then
the relevant Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
(a) Requests for Bids by the Borrowers. Subject to the terms and
conditions set forth herein, from time to time during the period from the
Effective Date to but excluding the Commitment Termination Date either Borrower
or both Borrowers may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans under any
Tranche available to it; provided that the sum of the total Revolving Credit
Exposures under such Tranche plus the aggregate principal amount of outstanding
Competitive Loans under such Tranche at any time shall not exceed the total
Commitments under such Tranche. To request Competitive Bids, the relevant
Borrower shall notify the Administrative Agent of such request by telephone, in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, four Business Days before the date of the proposed Borrowing and, in the
case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time,
one Business Day before the date of the proposed Borrowing; provided that the
Borrowers may submit up to (but not more than) two Competitive Bid Requests
under a Tranche on the same day, but a Competitive Bid Request under such
Tranche shall not be made within five Business Days after the date of any
previous Competitive Bid Request under such Tranche, unless any and all such
previous Competitive Bid Requests shall have been withdrawn
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or all Competitive Bids received in response thereto rejected. Each such
telephonic Competitive Bid Request shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Competitive Bid Request in
a form approved by the Administrative Agent and signed by the relevant Borrower.
Each such telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or
a Fixed Rate Borrowing;
(iv) the Interest Period for such Borrowing, which shall be a
period contemplated by the definition of the term "Interest Period";
(v) in the case of a Borrowing by Aristar, the Tranche under
which such Borrowing is to be made; and
(vi) the location and number of the relevant Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender under the relevant
Tranche may (but shall not have any obligation to) make one or more Competitive
Bids to the relevant Borrower in response to a Competitive Bid Request. Each
Competitive Bid by a Lender must be in a form approved by the Administrative
Agent and must be received by the Administrative Agent by telecopy, in the case
of a Competitive Eurodollar Borrowing, not later than 9:30 a.m., New York City
time, three Business Days before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m.,
New York City time, on the proposed date of such Competitive Borrowing.
Competitive Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender of such rejection as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be $10,000,000 or a larger multiple of $1,000,000 and which
may equal the entire principal amount of the Competitive Borrowing requested by
the relevant Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Competitive Bid Rates at which
the Lender is prepared to make such Loan or Loans (expressed
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as a percentage rate per annum in the form of a decimal to no more than four
decimal places) and (iii) the Interest Period for each such Loan and the last
day thereof.
(c) Notification of Bids by Administrative Agent. The
Administrative Agent shall promptly notify the relevant Borrower by telecopy of
the Competitive Bid Rate and the principal amount specified in each Competitive
Bid and the identity of the Lender that shall have made such Competitive Bid.
(d) Acceptance of Bids by the Borrowers. Subject only to the
provisions of this paragraph, the relevant Borrower may accept or reject any
Competitive Bid. Such Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopy in a form approved by the Administrative Agent,
whether and to what extent it has decided to accept or reject each Competitive
Bid, in the case of a Competitive Eurodollar Borrowing, not later than 10:30
a.m., New York City time, three Business Days before the date of the proposed
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
10:30 a.m., New York City time, on the proposed date of the Competitive
Borrowing; provided, that (i) the failure of such Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) such Borrower
shall not accept a Competitive Bid made at a particular Competitive Bid Rate if
such Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by such Borrower
shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) of this proviso, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) of this proviso, no Competitive Bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a principal
amount of $10,000,000 or a larger multiple of $1,000,000; provided further that
if a Competitive Loan must be in an amount less than $10,000,000 because of the
provisions of clause (iv) of the first proviso of this paragraph, such
Competitive Loan may be in an amount of $1,000,000 or any multiple thereof, and
in calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to such clause
(iv) the amounts shall be rounded to multiples of $1,000,000 in a manner
determined by the relevant Borrower. A notice given by the relevant Borrower
pursuant to this paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent. The
Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and
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conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative
Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it
shall submit such Competitive Bid directly to the relevant Borrower at least one
quarter of an hour earlier than the time by which the other Lenders are required
to submit their Competitive Bids to the Administrative Agent pursuant to
paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the relevant Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower maintained with the Administrative Agent
in New York City and designated by such Borrower in the applicable Borrowing
Request or Competitive Bid Request.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the relevant Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
the relevant Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to such Borrower
to but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the Federal Funds Effective Rate or (ii) in the case of
such Borrower, the interest rate applicable to ABR Loans. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections.
(a) Elections by the Borrowers for Syndicated Borrowings. Each
Syndicated Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Syndicated Eurodollar Borrowing, shall
have the Interest Period specified in such Borrowing Request. Thereafter, the
relevant Borrower may elect to convert such Borrowing to a Borrowing of a
different Type or to continue such Borrowing as a Borrowing of the same Type
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and, in the case of a Syndicated Eurodollar Borrowing, may elect the Interest
Period therefor, all as provided in this Section. The relevant Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the relevant Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Syndicated Borrowing of
the Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the relevant Borrower.
(c) Information in Interest Election Requests. Each telephonic
and written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the name of the Borrower and the Borrowing to which such
Interest Election Request applies and, if different options are being
elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) of this
paragraph shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration.
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(d) Notice by the Administrative Agent to Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the relevant
Borrower fails to deliver a timely Interest Election Request with respect to a
Syndicated Eurodollar Borrowing prior to the end of the Interest Period
therefor, then, unless such Borrowing is repaid as provided herein, at the end
of such Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the relevant Borrower, then, so long as an Event
of Default is continuing (i) no outstanding Syndicated Borrowing may be
converted to or continued as a Syndicated Eurodollar Borrowing and (ii) unless
repaid, each Syndicated Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period therefor.
SECTION 2.07. Termination and Reduction of the Commitments.
(a) Scheduled Termination.
(i) Unless previously terminated, the Commitments shall
terminate at the close of business on the Commitment Termination Date;
and
(ii) The Commitments of each Non-Extending Lender shall
terminate as provided in Section 2.18(c).
(b) Voluntary Termination or Reduction. The Borrowers may at any
time terminate, or from time to time reduce, the Commitments under any Tranche;
provided that (i) each reduction of the Commitments shall be in an amount that
is an integral multiple of $10,000,000 and (ii) the Borrowers shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.09, the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrowers
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrowers pursuant to this Section shall
be irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrowers may state that such notice is conditioned upon the
effectiveness of other credit
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facilities, in which case such notice may be revoked by the Borrowers (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
(a) Repayment. Each Borrower hereby unconditionally promises to
pay the Loans as follows:
(i) subject to Section 2.18, to the Administrative Agent for
account of the Lenders, on the Commitment Termination Date, the then
unpaid principal amount of the Syndicated Loans made to such Borrower
that are outstanding at the close of business on the Commitment
Termination Date, and
(ii) to the Administrative Agent for account of the respective
Lender the then unpaid principal amount of each Competitive Loan of such
Lender made to such Borrower on the last day of the Interest Period
therefor.
(b) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings hereunder, the relevant Borrower shall select the Borrowing or
Borrowings to be paid and shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than 11:00 a.m., New York
City time, three Business Days before the scheduled date of such repayment;
provided that each repayment of Borrowings by a Borrower shall be applied to
repay any outstanding ABR Borrowings of such Borrower before any other
Borrowings. If the relevant Borrower fails to make a timely selection of the
Borrowing or Borrowings to be repaid or prepaid, such payment shall be applied,
first, to pay any outstanding ABR Borrowings of such Borrower and, second, to
other Borrowings of such Borrower in the order of the remaining duration of
their respective Interest Periods (the Borrowing with the shortest remaining
Interest Period to be repaid first), and for these purposes, Competitive Loans
shall be deemed to be in the same Class as Loans. Each payment of a Syndicated
Borrowing shall be applied ratably to the Loans included in such Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of each Borrower to such Lender resulting from each Loan made
by such Lender, including the Tranche, the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
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(d) Maintenance of Loan Accounts by the Administrative Agent.
The Administrative Agent shall maintain accounts in which it shall record (i)
the name of the Borrower and the amount of each Loan to such Borrower made
hereunder, the Class, Type and Tranche thereof and each Interest Period
therefor, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent from either Borrower
hereunder for account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of either Borrower to repay the Loans in accordance with the terms of this
Agreement.
(g) Promissory Notes. Any Lender may request that Loans made by
it be evidenced by a promissory note. In such event, the relevant Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans.
(a) Optional Prepayments Right to Prepay Borrowings. Each
Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to the requirements of this Section;
provided that no Borrower shall have the right to prepay any Competitive Loan
without the prior consent of the Lender thereof.
(b) Notices, Etc. The relevant Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any optional
prepayment hereunder of a Borrowing made by such Borrower (i) in the case of
prepayment of a Syndicated Eurodollar Borrowing or of a Competitive Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before the
date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such
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notice relating to a Syndicated Borrowing or Competitive Borrowing, the
Administrative Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Borrowing of the same Type as provided in Section
2.02. Each prepayment of a Syndicated Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.11 and shall be made in the
manner specified in Section 2.08(b).
SECTION 2.10. Fees.
(a) Facility Fee. With respect to each Tranche, the relevant
Borrower(s) agree(s) to pay to the Administrative Agent for account of each
Lender under such Tranche a facility fee, which shall accrue at the Applicable
Rate on the daily amount of the Commitment of such Lender (whether used or
unused) under such Tranche during the period from and including the date hereof
to but excluding the date such Commitment terminates; provided that, if such
Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily
aggregate outstanding principal amount of Loans (including Competitive Loans) of
such Lender from and including the date on which its Commitment terminates to
but excluding the date on which such Lender ceases to have any Loans
outstanding. Accrued facility fees shall be payable on each Quarterly Date and
on each date the Commitments of any Lender terminate, commencing on the first
such date to occur after the date hereof; provided that any facility fees
accruing after the date on which the Commitments terminate shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) Utilization Fee. With respect to each Tranche, the relevant
Borrower(s) agree(s) to pay a fee to the Administrative Agent for account of
each Lender under such Tranche a utilization fee, which shall accrue at the
Applicable Rate on the daily aggregate outstanding principal amount of Loans
(including Competitive Loans) of such Lender under such Tranche for each day on
which the aggregate outstanding principal amount of the Loans under such Tranche
equals or exceeds an amount equal to 50% of the Commitments under such Tranche.
Accrued utilization fees shall be payable on each Quarterly Date and on each
date the Commitments of any Lender terminate, commencing on the first such date
to occur after the date hereof; provided that any utilization fees accruing
after the date on which the Commitments terminate shall be payable on demand.
All utilization fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day). Utilization fees payable under this Section 2.10(b)
with respect to any day under Tranche A shall be allocated between the Borrowers
pro rata according to the respective
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aggregate outstanding principal amounts of Loans under such Tranche owing by the
Borrowers on such day.
(c) Administrative Agent Fees. The Borrowers agree to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrowers and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on
the dates due, in immediately available funds, to the Administrative Agent for
distribution, in the case of facility fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.11. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to (i) in the case of a
Syndicated Eurodollar Loan, the Adjusted LIBO Rate for the Interest Period for
such Borrowing plus the Applicable Rate, or (ii) in the case of a Competitive
Eurodollar Borrowing, the LIBO Rate for the Interest Period for such Borrowing
plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest
at a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by
either Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Syndicated Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Loan prior to the Commitment Termination Date), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Syndicated Eurodollar
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Borrowing prior to the end of the Interest Period therefor, accrued interest on
such Borrowing shall be payable on the effective date of such conversion.
(f) Computation. All interest hereunder shall be computed on the
basis of a year of 360 days except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
(or, in the case of a Competitive Eurodollar Loan, the Lender that is
required to make such Loan) that the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
continuation of any Syndicated Borrowing as, a Syndicated Eurodollar Borrowing
shall be ineffective, (ii) if any Borrowing Request requests a Syndicated
Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii)
any request by the relevant Borrower for a Competitive Eurodollar Borrowing
shall be ineffective; provided that if the circumstances giving rise to such
notice do not affect all the Lenders, then requests by the such Borrower for
Competitive Eurodollar Borrowings may be made to Lenders that are not affected
thereby.
SECTION 2.13. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the relevant Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time each
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) Certificates from Lenders. A certificate of a Lender setting
forth the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the relevant Borrower and shall be conclusive
absent manifest error. Such Borrower(s) shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that neither
Borrower shall be required to compensate a Lender pursuant to this Section for
any increased costs or reductions incurred more than six months prior to the
date that such Lender notifies the relevant Borrower(s) of the Change in Law
giving rise to such increased costs or reductions and of such Lender's intention
to claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period of
retroactive effect thereof.
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(e) Competitive Loans. Notwithstanding the foregoing provisions
of this Section, a Lender shall not be entitled to compensation pursuant to this
Section in respect of any Competitive Loan if the Change in Law that would
otherwise entitle it to such compensation shall have been publicly announced
prior to submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period therefor (including as a result of an Event
of Default) (b) the conversion of any Syndicated Eurodollar Loan other than on
the last day of an Interest Period therefor, (c) the failure to borrow, convert,
continue or prepay any Syndicated Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.09(b) and is revoked in accordance herewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of an Interest Period therefor as a result of a
request by either Borrower pursuant to Section 2.17, then, in any such event,
the relevant Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, the loss
to any Lender attributable to any such event shall be deemed to include an
amount determined by such Lender to be equal to the excess, if any, of (i) the
amount of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period, over (ii)
the amount of interest that such Lender would earn on such principal amount for
such period if such Lender were to invest such principal amount for such period
at the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for Dollar deposits from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the relevant Borrower and shall be conclusive
absent manifest error. Such Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of each Borrower hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if either Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable
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shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent or Lender (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) Payment of Other Taxes by the Borrowers. In addition, each
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall
indemnify the Administrative Agent and each Lender, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the relevant Borrower by a Lender, or
by the Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the relevant Borrower to a
Governmental Authority, such Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the relevant Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to such Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by such Borrower,
such properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a reduced
rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Borrowers. Each Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in
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immediately available funds, without set-off or counterclaim; provided that if a
new Loan is to be made by any Lender to a Borrower on a date such Borrower is to
repay any principal of an outstanding Loan of such Lender, such Lender shall
apply the proceeds of such new Loan to the payment of the principal to be repaid
by such Borrower 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 2.05 or paid
by such Borrower to the Administrative Agent pursuant to this paragraph, as the
case may be. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except that payments pursuant to Sections 2.13,
2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall
be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each payment of facility fee and utilization fee under Section 2.10
with respect to a Tranche shall be made for account of the Lenders under such
Tranche, and each termination or reduction of the amount of the Commitments
under such Tranche under Section 2.07 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; (ii) each Syndicated
Borrowing under a Tranche shall be allocated pro rata among the Lenders under
such Tranche according to the amounts of their respective Commitments under such
Tranche (in the case of the making of Syndicated Loans) or their respective
Loans under such Tranche (in the case of conversions and continuations of
Loans); (iii) each payment or prepayment of principal of Syndicated Loans under
a Tranche by the relevant Borrower shall be made for account of the Lenders
under such Tranche pro rata in accordance with the respective unpaid principal
amounts of the Syndicated Loans under such Tranche held by them; and (iv) each
payment of interest on Syndicated Loans
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under a Tranche by the relevant Borrower shall be made for account of the
Lenders under such Tranche pro rata in accordance with the respective amounts of
interest on such Loans then due and payable to such Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Syndicated Loans under any
Tranche resulting in such Lender receiving payment of a greater proportion of
the aggregate amount of its Syndicated Loans under such Tranche and accrued
interest thereon then due than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Syndicated Loans of such Tranche of other Lenders
under such Tranche to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders under such Tranche ratably in accordance
with the aggregate amount of principal of and accrued interest on their
respective Syndicated Loans under such Tranche; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by either Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans under any Tranche
to any assignee or participant, other than to either Borrower or any Subsidiary
or Affiliate thereof (as to which the provisions of this paragraph shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from the relevant Borrower prior to the date on which
any payment is due to the Administrative Agent for account of the Lenders
hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders under such Tranche the amount due. In such event, if such Borrower has
not in fact made such payment, then each of the Lenders under such Tranche
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Federal Funds Effective
Rate.
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(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(b) or 2.16(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.13, or if either Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for
account of any Lender pursuant to Section 2.15, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.13 or 2.15, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 2.13, or if either Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for account of any Lender
pursuant to Section 2.15, or if any Lender defaults in its obligation to fund
Loans hereunder, then such Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
such Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Competitive Loans), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the relevant Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.13 or payments required to be made pursuant to Section 2.15, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the
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circumstances entitling the relevant Borrower to require such assignment and
delegation cease to apply.
SECTION 2.18. Extension of Commitment Termination Date.
(a) The Borrowers may, by notice to the Administrative Agent
(which shall promptly notify the Lenders) not later than 45 days and not earlier
than 60 days prior to the Commitment Termination Date then in effect hereunder
(the "Existing Commitment Termination Date"), request that the Lenders extend
the Commitment Termination Date for an additional year from the Existing
Commitment Termination Date. Each Lender, acting in its sole discretion, shall,
by notice to the Borrowers and the Administrative Agent given not earlier than
45 days prior to the Existing Commitment Termination Date, but not later than
the date (herein, the "Consent Date") that is 30 days prior to the Existing
Commitment Termination Date (except that, if such date is not a Business Day,
such notice shall be given on the next succeeding Business Day), advise the
Borrowers and the Administrative Agent whether or not such Lender agrees to such
extension; provided that, if such Lender gives notice of its consent to such
extension prior to the Consent Date, such Lender may revoke such consent at any
time prior to the Consent Date by giving notice of such revocation to the
Borrowers and the Administrative Agent; and provided further that each Lender
that determines not to extend the Commitment Termination Date (a "Non-Extending
Lender") shall notify the Administrative Agent (which shall notify the Lenders)
of such fact promptly after such determination (but in any event no later than
the Consent Date) and any Lender that does not advise the Borrowers on or before
the Consent Date shall be deemed to be a Non-Extending Lender. The election of
any Lender to agree to such extension shall not obligate any other Lender to so
agree.
(b) If (and only if) the total of the Commitments of the Lenders
that have agreed so to extend the Commitment Termination Date shall be at least
66-2/3% of the aggregate amount of the Commitments in effect immediately prior
to the Consent Date, the Borrowers shall have the right on or before the
Existing Commitment Termination Date to replace each Non-Extending Lender with,
and otherwise add to this Agreement, one or more other lenders (which may
include any Lender, each prior to the Existing Commitment Termination Date an
"Additional Commitment Lender") with the approval of the Administrative Agent
(which approval shall not be unreasonably withheld), each of which Additional
Commitment Lenders shall have entered into an agreement in form and substance
satisfactory to the Borrowers and the Administrative Agent pursuant to which
such Additional Commitment Lender shall, effective as of the Existing Commitment
Termination Date, undertake a Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Commitment shall be in addition to such Lender's
Commitment hereunder on such date).
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(c) If (and only if) the total of the Commitments of the Lenders
that have agreed so to extend the Commitment Termination Date shall be at least
66-2/3% of the aggregate amount of the Commitments in effect immediately prior
to the Consent Date, then, effective as of the Existing Commitment Termination
Date, the Existing Commitment Termination Date shall be extended to the date
falling one year days after the Existing Commitment Termination Date (except
that, if such date is not a Business Day, such Commitment Termination Date as so
extended shall be the next preceding Business Day) and each Additional
Commitment Lender shall thereupon become a "Lender" for all purposes of this
Agreement.
Notwithstanding the foregoing, the extension of the Existing
Commitment Termination Date shall not be effective with respect to any Lender
unless:
(i) no Default shall have occurred and be continuing on each of
the date of the notice requesting such extension, on the Consent Date
and on the Existing Commitment Termination Date;
(ii) each of the representations and warranties made by the
Borrowers in Article 3 hereof shall be true and complete on and as of
each of the date of the notice requesting such extension, the Consent
Date and the Existing Commitment Termination 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); and
(iii) each Non-Extending Lender shall have been paid in full by
the Borrowers all amounts owing to such Lender hereunder on or before
the Existing Commitment Termination Date.
Even if the Existing Commitment Termination Date is extended as aforesaid, the
Commitment of each Non-Extending Lender shall terminate on the Existing
Commitment Termination Date. Notwithstanding anything herein contained, the
Commitment Termination Date may not be extended more than three times under this
Section 2.18.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of such Borrower and
its Subsidiaries (except Non-Material Subsidiaries) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within such Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by such Borrower and constitutes
a legal, valid and binding obligation of such Borrower, enforceable in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions with respect to such Borrower (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of such Borrower or any
of its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon such Borrower or any of its Subsidiaries or assets, or
give rise to a right thereunder to require any payment to be made by any such
Person, and (d) will not result in the creation or imposition of any Lien on any
asset of such Borrower or any of its Subsidiaries.
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SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. Such Borrower has heretofore furnished
to the Lenders its consolidated balance sheet and statements of income,
stockholders' equity and cash flows (i) as of and for the fiscal year ended
December 31, 1998, reported on by Deloitte & Touche LLP, independent public
accountants for WAMU and Aristar, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 1999, certified by the chief
financial officer of such Borrower. Such financial statements present fairly, in
all material respects, the financial position and results of operations and cash
flows of such Borrower and its Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii) of
the first sentence of this paragraph.
(b) No Material Adverse Change. From December 31, 1998 to the
date of this Agreement, there has been no material adverse change in the
business, assets, operations, prospects or condition, financial or otherwise, of
such Borrower and its Subsidiaries, taken as a whole.
(c) Year 2000 Issues. Such Borrower is aware of the problem that
may be presented for certain computer systems by use of date fields and the like
prior to, on and after January 1, 2000 and has developed and is implementing a
plan to help assure that the computer systems of such Borrower and its
Subsidiaries (including systems and equipment supplied by others or with which
such Borrower or any of its Subsidiaries' systems interface) will not be
materially affected by such problems. The cost of such development and
implementation and of the reasonably foreseeable consequences of the "Year 2000
problem" to such Borrower and its Subsidiaries is not anticipated to result in a
Default under this Agreement or to have a Material Adverse Effect.
SECTION 3.05. Properties. Such Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except to the extent that failure to have
such title could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of such Borrower, threatened against or affecting
such Borrower or any of its Subsidiaries (i) as to which there is a reasonable
likelihood of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material
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Adverse Effect (other than the Disclosed Matters) or (ii) that involve this
Agreement or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters and
except with respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, neither
such Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.07. Compliance with Laws and Agreements. Such Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
such Borrower nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Such Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan, and there were no
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) as of the date of the most recent
financial statements in which such underfunded Plans would be reflected.
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SECTION 3.11. Disclosure. Such Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements,
certificates, schedules or other information furnished by or on behalf of such
Borrower to the Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, such Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. Use of Credit. Neither such Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock in violation of
Regulations T, U or X of the Board, and no part of the proceeds of any Loan
hereunder will be used to buy or carry any Margin Stock in violation of
Regulations T, U or X of the Board.
SECTION 3.13. Material Agreements and Liens.
(a) Material Agreements. Part A of Schedule II is a complete and
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, such Borrower or any of its
Subsidiaries (excluding Repurchase Arrangements, deposits, annuities or Federal
funds transactions, each entered into by such Borrower or any of its
Subsidiaries in the ordinary course of its business, Hedging Agreements or
borrowings from the Federal Home Loan Bank and any commercial paper or medium
term note program of such Borrower or any of its Subsidiaries), outstanding on
the date hereof the aggregate principal or face amount of which equals or
exceeds (or may equal or exceed) $10,000,000, and the aggregate principal or
face amount outstanding or that may become outstanding under each such
arrangement is correctly described in Part A of Schedule II.
(b) Liens. Part B of Schedule II is a complete and correct list
of each Lien securing Indebtedness of any Person outstanding on the date hereof
(excluding Repurchase Arrangements, deposits, annuities or Federal funds
transactions, each entered into by such Borrower or any of its Subsidiaries in
the ordinary course of its Business, and Hedging Agreements or borrowings from
the Federal Home Loan Bank) the aggregate principal or face amount of which
equals or exceeds (or may equal or exceed) $10,000,000 and covering any
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property of either Borrower or any of their Subsidiaries, and the aggregate
Indebtedness secured (or that may be secured) by each such Lien and the property
covered by each such Lien is correctly described in Part B of Schedule II.
SECTION 3.14. Subsidiaries.
(a) Subsidiaries. Set forth in Part A of Schedule V is a
complete and correct list of all of the Subsidiaries of such Borrower as of the
date hereof, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule V, (x) such
Borrower and its Subsidiaries owns, free and clear of Liens, and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Part A of Schedule V, (y) all of the issued and
outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person.
(b) Restrictions on Subsidiaries. None of the Subsidiaries of
such Borrower is, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in Section 6.03.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. The obligations of the Lenders to
make Loans hereunder shall not become effective until the date on which the
Administrative Agent shall have received each of the following documents, each
of which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance (or such condition shall
have been waived in accordance with Section 9.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Borrowers. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of ▇▇▇▇▇▇
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▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇, counsel for the Borrowers, substantially in
the form of Exhibit B, and covering such other matters relating to the
Borrowers, this Agreement or the Transactions as the Required Lenders
shall reasonably request (and the Borrowers hereby instruct such counsel
to deliver such opinion to the Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
special New York counsel to Chase, substantially in the form of Exhibit
C (and Chase hereby instructs such counsel to deliver such opinion to
the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of each Borrower, the
authorization of the Transactions and any other legal matters relating
to the Borrowers, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of each Borrower, confirming compliance with the conditions set
forth in the lettered clauses of the first sentence of Section 4.02.
(f) Cancellation of Existing Credit Facilities. Evidence that
the Existing Credit Facilities shall have been (or shall be
simultaneously) cancelled and all amounts owing thereunder shall have
been paid in full.
(g) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to Chase may reasonably
request.
The obligation of any Lender to make its initial Loan hereunder
is also subject to the payment by the Borrowers of such fees as the Borrowers
shall have agreed to pay to any Lender or the Administrative Agent or Chase in
its capacity as lead Arranger in connection herewith, including the reasonable
fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP special New York
counsel to Chase, in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Loans hereunder (to the extent that
statements for such fees and expenses have been delivered to the Borrowers).
The Administrative Agent shall notify the Borrowers and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) on or prior to
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3:00 p.m., New York City time, on August 11, 1999 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan to the relevant Borrower on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) the representations and warranties of such Borrower set
forth in this Agreement (except, in the case of any Borrowing that does
not increase the outstanding aggregate principal amount of the Loans of
any Lender, the representations and warranties in Sections 3.06(a),
3.06(b) and 3.10) shall be true and correct on and as of the date of
such Borrowing (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific
date); and
(b) at the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the relevant Borrower on the date thereof as to the matters specified in the
preceding sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, each Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. Such
Borrower will furnish to the Administrative Agent and each Lender (provided that
only WAMU shall furnish the reports referred to in paragraphs (f) and (g)
below):
(a) within 105 days after the end of each fiscal year of such
Borrower, the audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows of such Borrower and
its Subsidiaries as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
all reported on by Deloitte & Touche LLP or other independent public
accountants of recognized national standing (without a "going concern"
or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that
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such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of such
Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied and a statement of such accountants to the
effect that, in making the examination necessary for their opinion,
nothing came to their attention that caused them to believe that such
Borrower was not in compliance with Section 6.04 hereof, insofar as such
Section relates to accounting matters (it being understood that delivery
to the Lender of such Borrower's Report on Form 10-K filed with the SEC
shall satisfy the financial statement requirements of this Section
5.01(a) so long as the information required to be contained in such
Report is substantially the same as that required under this Section
5.01(a));
(b) within 75 days after the end of each of the first three
fiscal quarters of each fiscal year of such Borrower, the consolidated
balance sheet and related statements of operations, stockholders' equity
and cash flows of such Borrower and its Subsidiaries as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for
(or, in the case of the balance sheet, as of the end of) the
corresponding period or periods of the previous fiscal year, all
certified by a Financial Officer of such Borrower as presenting fairly
in all material respects the financial condition and results of
operations of such Borrower and its Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes (it being understood that
delivery to the Lender of such Borrower's Report on Form 10-Q filed with
the SEC shall satisfy the financial statement requirements of this
Section 5.01(b) so long as the information required to be contained in
such Report is substantially the same as that required under this
Section 5.01(b));
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer
of such Borrower (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Section 6.04, and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such
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financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by such Borrower or any of its Subsidiaries with the SEC, or with
any national securities exchange or the Office of Thrift Supervision, or
distributed by such Borrower to its shareholders generally, as the case
may be;
(f) promptly upon their becoming available, and in any event
within 90 days after the end of each fiscal quarter of each fiscal year
of WAMU, the "Reports of Condition and Income" (report no. H(b)-11, or
any successor form thereto) of WAMU, all such reports prepared in
accordance with regulatory accounting principles prescribed by the
Federal Financial Institutions Examination Council;
(g) promptly upon their becoming available, and in any event
within 75 days after the end of each fiscal quarter of each fiscal year
of WAMU, the Statements of Condition and Operations, including all
supporting schedules (Office of Thrift Supervision Form 1313, or any
successor form thereto) for Washington Mutual Bank, FA, all such
statements prepared in accordance with Office of Thrift Supervision
instructions; and
(h) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of such Borrower or any of its Subsidiaries, or compliance
with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. Notices of Material Events. Each Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting such Borrower or any of its Affiliates that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of such Borrower and its Subsidiaries in
an aggregate amount exceeding $35,000,000;
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(d) the assertion of any environmental matter by any Person
against, or with respect to the activities of, such Borrower or any of
its Subsidiaries and any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other
than any environmental matter or alleged violation that, if adversely
determined, would not (either individually or in the aggregate) have a
Material Adverse Effect; and
(e) any other development (including a development arising out
of a "Year 2000 problem") that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of such Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. Each Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
(a) any merger, consolidation, liquidation, dissolution or other transaction
permitted under Section 6.02 and (b) any Subsidiary that is not a Major
Subsidiary of such Borrower from entering into any merger or consolidation or
amalgamation or from liquidating, winding up or dissolving, itself (or suffering
any liquidation or dissolution) or prohibit a disposition by or of such
Subsidiary.
SECTION 5.04. Payment of Obligations. Each Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
such Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. Each
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
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SECTION 5.06. Books and Records; Inspection Rights. Each
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. Each
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. Each Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. Each Borrower will use the
proceeds of the Loans hereunder solely for general corporate purposes, including
commercial paper back-up, in the ordinary course of business (in compliance with
all applicable legal and regulatory requirements, including, without limitation,
Regulations U and X and the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations thereunder);
provided that, without the consent of each Lender, such Borrower may not use the
proceeds of any of the Loans hereunder to finance or refinance, directly or
indirectly, an Acquisition of any Person (or the acquisition of (i) more than
50% of the publicly traded stock (of any class) of any Person or (ii) any of the
publicly traded stock (of any class) of any Person after such Borrower or any of
its Subsidiaries shall have been required to file a Schedule 13D under the
Securities Exchange Act of 1934, as amended, with respect to such stock) unless
such Acquisition (or acquisition) has been approved by the board of directors of
such Person or officers thereof duly authorized to do so; provided further that
neither the Administrative Agent nor any Lender shall have any responsibility as
to the use of any of such proceeds.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, each Borrower covenants and agrees with the Lenders that:
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SECTION 6.01. Liens. Such Borrower will not, nor (where such
Borrower is Aristar) will it permit any of its Subsidiaries (other than Insured
Subsidiaries) to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of such Borrower or any of
its Subsidiaries existing on the date hereof and set forth in Part B of
Schedule II;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by such Borrower or any of its Subsidiaries or
existing on any property or asset of any Person that becomes a
Subsidiary of such Borrower after the date hereof prior to the time such
Person becomes such a Subsidiary; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary of such Borrower, as the case may be,
(ii) such Lien shall not apply to any other property or assets of such
Borrower or any of its Subsidiaries and (iii) such Lien shall secure
only those obligations which it secures on the date of such acquisition
or the date such Person becomes such a Subsidiary, as the case may be
and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by such Borrower or any of its Subsidiaries; provided that (i)
such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (ii) the Indebtedness
secured thereby does not exceed 80% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iii) such
security interests shall not apply to any other property or assets of
such Borrower or any of its Subsidiaries;
(e) Liens arising out of Repurchase Arrangements;
(f) Liens arising out of or securing Hedging Agreements;
(g) Liens arising out of Asset Securitizations and not involving
all, or substantially all, of the assets of the respective transferor;
(h) Liens in favor of WAMU and its Subsidiaries (other than by
Aristar or any of its Subsidiaries) arising in connection with
intercompany transactions between WAMU and any of such Subsidiaries;
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(i) Liens in favor of Aristar and its Subsidiaries arising in
connection with intercompany transactions between Aristar and any of
such Subsidiaries;
(j) Liens involving the pledge by WAMU of any interest in
capital stock of, or other ownership interest in, any Subsidiary of WAMU
(other than a Major Subsidiary or Aristar);
(k) Liens involving the pledge of any interest in a debt
instrument made to WAMU by any Subsidiary of WAMU (other than a Major
Subsidiary);
(l) Liens involving the pledge of property of WAMU or any of its
Subsidiaries (other than by Aristar or any of its Subsidiaries) securing
Indebtedness in an aggregate principal amount not exceeding 2% of the
Tangible Net Worth of WAMU; and
(m) Liens involving the pledge of property of Aristar or any of
its Subsidiaries securing Indebtedness in an aggregate principal amount
not exceeding 5% of the Tangible Net Worth of Aristar.
SECTION 6.02. Fundamental Changes.
(a) Mergers, Consolidations, Disposal of Assets, Etc. Such
Borrower will not, nor will it permit any of its Major Subsidiaries to, merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of
its assets, or all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (i) any Major
Subsidiary may merge into WAMU in a transaction in which WAMU is the surviving
corporation, (ii) any Major Subsidiary may merge into any Subsidiary of WAMU in
a transaction in which the surviving entity is a wholly owned Subsidiary of
WAMU, (iii) any Major Subsidiary may sell, transfer, lease or otherwise dispose
of its assets to WAMU or to another wholly owned Subsidiary of WAMU, (iv) such
Borrower or any Major Subsidiary of such Borrower may merge or consolidate with
any other Person if (x) in the case of a merger or consolidation of such
Borrower, such Borrower is the surviving corporation and, in any other case, the
surviving corporation is, after giving effect to such merger or consolidation, a
wholly owned Subsidiary of such Borrower and (y) after giving effect thereto no
Default would exist hereunder and (v) any Subsidiary of either Borrower may
liquidate or dissolve if the relevant Borrower determines in good faith that
such liquidation or dissolution is in the best interests of such Borrower and is
not materially disadvantageous to the Lenders; provided that if any such
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merger shall be between a Subsidiary and a wholly owned Subsidiary of such
Borrower , then the wholly owned Subsidiary shall be the continuing or surviving
corporation.
(b) Lines of Business. Such Borrower will not, nor will it
permit any of its Subsidiaries to, engage to any substantial extent in any line
or lines of business activity other than (i) the business of owning and
operating a depository institution (as defined in 12 U.S.C. Section 1813(c)), a
consumer finance company, a mortgage company, an insurance company, a trust
company, an investment advisor or a securities broker-dealer, (ii) the business
of providing other financial services or (iii) any business that may be engaged
in by a Washington state chartered savings bank (as defined in RCW 32.04.020), a
Federal savings association (as defined in 12 U.S.C. Section 1462(5)) or a bank
holding company (as defined in 12 U.S.C. Section 1841(a)) or a Subsidiary of any
of them.
SECTION 6.03. Certain Restrictions on Subsidiaries. Such
Borrower will not permit any of its Subsidiaries to enter into, after the date
hereof, any indenture, agreement, instrument or other arrangement that, directly
or indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances, guarantees or Investments or the sale,
assignment, transfer or other disposition of property if the effect of any such
indenture, agreement, instrument or other arrangement could reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.04. Certain Financial Covenants.
(a) WAMU
(i) Double Leverage Ratio. WAMU will not permit the Double
Leverage Ratio to exceed 1:30 to 1:00 at any time.
(ii) Tangible Net Worth. WAMU will not permit its Tangible Net
Worth at any time to be less than the sum of (x) $5,500,000,000 plus (y)
40% of the net income of WAMU and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP and for
which purpose any net loss shall be deemed to be a net income of zero)
for each fiscal quarter of WAMU ending after June 30, 1999 plus (z) 40%
of the aggregate net proceeds received by WAMU from the issuance by WAMU
after the date of this Agreement of shares of its capital stock
(iii) Maximum Non-Performing Assets. WAMU will not permit
Non-Performing Assets at any time to constitute more than 4.5% of
Consolidated Assets at such time.
(b) Aristar
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(i) Tangible Net Worth. Aristar will not permit its Tangible Net
Worth at any time to be less than the sum of (x) $275,000,000 plus (y)
40% of the net income of Aristar and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP and for
which purpose any net loss shall be deemed to be a net income of zero)
for each fiscal quarter of Aristar ending after June 30, 1999.
(ii) Senior Debt Ratio. Aristar will not permit the ratio of (x)
the aggregate principal amount of all Senior Indebtedness (other than
Indebtedness owing among Aristar and its Consolidated Subsidiaries)
outstanding at any time to (y) its Tangible Net Worth at such time to be
greater than 10.0 to 1.0.
(iii) Permissible Indebtedness. Aristar will not permit the
aggregate amount of all Indebtedness (other than Indebtedness among
Aristar and its Consolidated Subsidiaries) outstanding at any time owed
by its Consolidated Subsidiaries (other than Insured Subsidiaries) to
exceed 15% of the aggregate amount of all Indebtedness (other than
Indebtedness owing among Aristar and its Consolidated Subsidiaries) then
outstanding of Aristar and its Consolidated Subsidiaries (other than
Insured Subsidiaries).
SECTION 6.05. Insured Subsidiary Capital. Such Borrower will at
all times ensure that none of its Insured Subsidiaries is "undercapitalized",
"significantly undercapitalized" or "critically undercapitalized" for purposes
of 12 U.S.C. Section 1831o, as amended, re-enacted or redesignated from time to
time; and such Borrower and its Insured Subsidiaries will at all times maintain
such amount of capital as may be prescribed by all applicable Bank Regulatory
Authorities, whether by guideline, regulation, agreement or order.
SECTION 6.06. Payment of Dividends. Such Borrower will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, provided Aristar may
declare and pay dividends with respect to its capital stock provided that, at
the time of declaration and payment thereof and after giving effect thereto, no
Event of Default shall have occurred and be continuing.
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ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) either Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) either Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of either Borrower or any of their Subsidiaries in or in
connection with this Agreement or any amendment or modification hereof,
or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof, shall prove to have been incorrect in
any material respect when made or deemed made;
(d) either Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a), 5.03
(with respect to the Borrower's existence), 5.08 or in Article VI (other
than Section 6.02(b);
(e) either Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other than
those specified in clause (a), (b) or (d) of this Article) and such
failure shall continue unremedied for a period of 30 or more days after
notice thereof from the Administrative Agent (given at the request of
any Lender) to such Borrower;
(f) either Borrower or any of their Subsidiaries shall fail to
make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
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Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of either Borrower or any of
their Subsidiaries (other than Non-Material Subsidiaries) or its debts,
or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for either
Borrower or any of their Subsidiaries (other than Non-Material
Subsidiaries) or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for a
period of 60 or more days or an order or decree approving or ordering
any of the foregoing shall be entered;
(i) either Borrower or any of their Subsidiaries (other than
Non-Material Subsidiaries) shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for such
Borrower or any of its Subsidiaries (other than Non-Material
Subsidiaries) or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) either Borrower or any of their Subsidiaries (other than
Non-Material Subsidiaries) shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $40,000,000 (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted liability in
respect of such judgment) or $120,000,000 (regardless of insurance
coverage) shall be rendered against either Borrower or any of their
Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to attach or levy upon any assets of either Borrower
or any of their Subsidiaries to enforce any such judgment;
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(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) a Change in Control shall occur;
(n) WAMU or any of its Subsidiaries and any Bank Regulatory
Authority shall enter into any supervisory agreement, consent order or
any agreement (in writing or otherwise) affecting in any material
respect the management, business, properties, condition (financial or
otherwise) or operations, present or prospective, of WAMU and its
Subsidiaries taken as a whole; or any Bank Regulatory Authority shall
issue a cease and desist order to or in respect of WAMU or any of its
Subsidiaries;
(o) any Insured Subsidiary shall cease accepting deposits or
making commercial loans on the instruction of any Federal, state or
other regulatory body 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;
(p) (i) any Bank Regulatory Authority shall notify any Insured
Subsidiary that such Insured Subsidiary's capital stock has become
impaired; (ii) any of Washington Mutual Bank, Washington Mutual Bank fsb
or Washington Mutual Bank, FA shall, cease to be an insured bank under
the Federal Deposit Insurance Act, as amended, and the rules and
regulations promulgated thereunder; or (iii) any Insured Subsidiary
(other than Washington Mutual Bank, Washington Mutual Bank fsb or
Washington Mutual Bank, FA) shall pursuant to an order of any Bank
Regulatory Authority, cease to be an insured bank under the Federal
Deposit Insurance Act, as amended, and the rules and regulations
promulgated thereunder; provided however, in the case of (ii) and (iii)
that the event is not the result of a transaction permitted under
Section 6.02(a) or Section 5.03;
(q) 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
(r) WAMU shall Guarantee in writing (voluntarily or otherwise)
the capital of any Insured Subsidiary as part of or in connection with
any agreement or arrangement with any Bank Regulatory Authority;
then, and in every such event (other than an event with respect to the relevant
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by
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notice to such Borrower, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments available to such
Borrower, and thereupon the Commitments available to such Borrower shall
terminate immediately, and (ii) declare the Loans to such Borrower then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of such Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by such Borrower; and in case of any event with
respect to such Borrower described in clause (h) or (i) of this Article, the
Commitments available to such Borrower shall automatically terminate and the
principal of the Loans to such Borrower then outstanding, together with accrued
interest thereon and all fees and other obligations of such Borrower accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
such Borrower.
ARTICLE VIII
AGENTS
SECTION 8.01 Administrative Agent.
(a) Subject to Section 8.10(f), each of the Lenders hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
(b) The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative Agent,
and such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers or any Subsidiaries
or other Affiliates thereof as if it were not the Administrative Agent
hereunder.
(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have
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any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrowers or any of their respective
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders or in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by a Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and reasonably believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for a Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
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(f) The Administrative Agent may resign at any time by notifying
the Lenders and the Borrowers. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrowers, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent's resignation shall nonetheless become effective and (1)
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and (2) the Required Lenders shall perform the duties of
the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrowers to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrowers and such successor. After the Administrative
Agent's resignation hereunder, the provisions of this Article and Section 9.03
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 Administrative Agent.
(g) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges 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 from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
SECTION 8.02 Syndication Agents. The Syndication Agents named on
the cover page of this Agreement, in their capacity as such, shall have no
obligation, responsibility or required performance hereunder and shall not
become liable in any manner to any party hereto. No party hereto shall have any
obligation or liability, or owe any performance, hereunder, to the Syndication
Agents in their capacity as such.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to WAMU, to it at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy No.(▇▇▇) ▇▇▇-▇▇▇▇;
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to Aristar, to WAMU at the address specified in (a) above
and to Aristar at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No. (813)
632-4586);
(c) if to the Administrative Agent, to The Chase Manhattan Bank,
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention
of Loan and Agency Services Group (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇;
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrowers and the
Administrative Agent). All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay
by the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this
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Agreement or consent to any departure by the Borrowers therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Borrowers and the Required Lenders or by the
Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of each Lender, (ii) reduce the principal amount of
any Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender, (iv) alter the manner in
which payments or prepayments of principal, interest or other amounts hereunder
shall be applied as among the Lenders or Tranches or Types or Classes of Loans,
without the written consent of each Lender, or (v) change any of the provisions
of this Section or the definition of the term "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; and provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written
consent of the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrowers shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
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(b) Indemnification by the Borrowers. The Borrowers, jointly and
severally, shall indemnify the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by either Borrower or any of
their Subsidiaries, or any Environmental Liability related in any way to either
Borrower or any of their Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulting from the gross negligence or wilful
misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrowers
fail to pay any amount required to be paid by them to the Administrative Agent
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent in its capacity
as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, neither Borrower shall assert, and each Borrower
hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable not later than ten days after written demand therefor.
SECTION 9.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrowers
may not assign or otherwise transfer any of their
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respective rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by either Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the relevant Borrower and the Administrative
Agent must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment to
a Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
relevant Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,000, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the relevant Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h), (i) or (j) of Article VII has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each 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 but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
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(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in New York City a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrowers,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. 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 paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrowers or the Administrative Agent, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
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(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.13 or 2.15 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the relevant Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.15 unless the relevant Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of such Borrower, to comply with Section 2.15(e) as
though it were a Lender.
(g) Certain Pledges. Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to the Borrowers or Affiliates. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to either Borrower or
any of its respective Affiliates or Subsidiaries without the prior consent of
each Lender.
(i) Special Purpose Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle (an "SPC") of such Granting Lender, identified
as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrowers, the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make,
provided that (i) nothing herein shall constitute a commitment to make any Loan
by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall make such
Loan pursuant to the terms hereof, and (iii) the rights of any such SPC shall be
derivative of the rights of the Granting Lender, and such SPC shall be subject
to all of the restrictions upon the Granting Lender herein contained. Each SPC
shall be conclusively presumed to have made arrangements with its Granting
Lender for the exercise of voting and other rights hereunder in a manner which
is acceptable to the SPC, the Administrative Agent, the Lenders and the
Borrowers, and each of the Administrative Agent, the Lenders and the Borrowers
shall be entitled to rely upon and deal solely with the Granting Lender with
respect to Loans made by or through its SPC. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by the Granting Lender. Each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding senior indebtedness of any SPC, it will not institute
against, or
75
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join any other person in instituting against, such SPC, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State thereof, in respect
of claims arising out of this Agreement, provided that the Granting Lender for
each SPC hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage and expense arising out of their inability to
institute any such proceeding against its SPC. In addition, notwithstanding
anything to the contrary contained in this Section 9.04(i), any SPC may (i) with
the prior written consent of the relevant Borrower and the Administrative Agent
(which consents shall not be unreasonably withheld) but without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to its Granting Lender or to any financial institutions providing liquidity
and/or credit facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by such SPC to
fund such Loans (but nothing contained herein shall be construed in derogation
of the obligation of the Granting Lender to make Loans hereunder), provided that
neither the consent of the SPC or of any such assignee shall be required for
amendments or waivers hereunder except for those amendments or waivers for which
the consent of participants is required under Section 9.02, and (ii) disclose on
a confidential basis (in the same manner described in Section 9.12) any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of a surety, guarantee or credit or liquidity
enhancement to such SPC.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
76
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Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the relevant Borrower against any of and all
the obligations of such Borrower now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Borrower hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be
77
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conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against the Borrowers or
their respective properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
9.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. 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
78
- 72 -
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) of this Section as if it were a Lender hereunder. Such
authorization shall survive the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this paragraph, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (vii) with the consent of the
Borrowers or (viii) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this paragraph or (B) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrowers. For the purposes of this paragraph,
"Information" means all information received from either Borrower relating to
such Borrower or its business, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by such Borrower; provided that, in the case of information received
from such Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
79
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
WASHINGTON MUTUAL, INC.
By
--------------------------------------
Name:
Title:
ARISTAR, INC.
By
--------------------------------------
Name:
Title:
80
- 74 -
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By
--------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By
--------------------------------------
Name:
Title:
BANK OF MONTREAL
By
--------------------------------------
Name:
Title:
FIRST NATIONAL BANK OF CHICAGO
By
--------------------------------------
Name:
Title:
81
- 75 -
▇▇▇▇▇ FARGO BANK
By
--------------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By
--------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By
--------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA
By
--------------------------------------
Name:
Title:
82
- 76 -
CITIBANK, N.A.
By
--------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
--------------------------------------
Name:
Title:
WESTDEUTCHE LANDESBANK
GIROZENTRALE
By
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
--------------------------------------
Name:
Title:
83
- 77 -
DEUTSCHE BANK AG
By
--------------------------------------
Name:
Title:
KEY BANK
By
--------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By
--------------------------------------
Name:
Title:
MELLON BANK
By
--------------------------------------
Name:
Title:
84
- 78 -
US BANK
By
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By
--------------------------------------
Name:
Title:
BANCA DI ROMA
By
--------------------------------------
Name:
Title:
SUNTRUST BANK, MIAMI,
NATIONAL ASSOCIATION
By
--------------------------------------
Name:
Title:
▇▇
- ▇▇ -
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By
--------------------------------------
Name:
Title:
86
SCHEDULE I
Tranche A Commitments
Name of Tranche A Lender Commitment($)
------------------------ ----------------
The Chase Manhattan Bank 20,833,333.33
Bank of America, N.A. 20,833,333.33
Bank of Montreal 20,833,333.33
First National Bank of Chicago 20,833,333.33
▇▇▇▇▇ Fargo Bank 16,666,666.67
ABN AMRO Bank N.V. 16,666,666.67
First Union National Bank 16,666,666.67
Union Bank of California 14,583,333.33
Citibank, N.A. 13,020,833.33
Credit Lyonnais New York Branch 9,375,000.00
Westdeutche Landesbank Girozentrale 9,375,000.00
The Bank of New York 9,375,000.00
Deutsche Bank AG
NewYork and/or Cayman Islands Branches 9,375,000.00
Key Bank 9,375,000.00
Credit Suisse First Boston 9,375,000.00
Mellon Bank 9,375,000.00
US Bank 4,687,500.00
▇▇▇▇▇▇ Guaranty Trust Company of New York 4,687,500.00
Banca Di Roma 4,687,500.00
SunTrust Bank, Miami, National Association 4,687,500.00
Norddeutsche Landesbank Girozentrale
New York Branch and/or Cayman Islands Branch 4,687,500.00
---------------
$250,000,000.00
===============
Schedule I to Agreement
87
- 2 -
Tranche B Commitments
Name of Tranche B Lender Commitment($)
------------------------ ----------------
The Chase Manhattan Bank 29,166,666.67
Bank of America, N.A. 29,166,666.67
Bank of Montreal 29,166,666.67
First National Bank of Chicago 29,166,666.67
▇▇▇▇▇ Fargo Bank 23,333,333.33
ABN AMRO Bank N.V. 23,333,333.33
First Union National Bank 23,333,333.33
Union Bank of California 20,416,666.67
Citibank, N.A. 18,229,166.67
Credit Lyonnais New York Branch 13,125,000.00
Westdeutche Landesbank Girozentrale 13,125,000.00
The Bank of New York 13,125,000.00
Deutsche Bank AG
New York and/or Cayman Islands Branch 13,125,000.00
Key Bank 13,125,000.00
Credit Suisse First Boston 13,125,000.00
Mellon Bank 13,125,000.00
US Bank 6,562,500.00
▇▇▇▇▇▇ Guaranty Trust Company of New York 6,562,500.00
Banca Di Roma 6,562,500.00
SunTrust Bank, Miami, National Association 6,562,500.00
Norddeutsche Landesbank Girozentrale
New York Branch and/or Cayman Islands Branch 6,562,500.00
---------------
$350,000,000.00
===============
88
SCHEDULE II
Material Agreements and Liens
Part A - Material Agreements
See attached
Part B - Liens
None
Schedule II to Agreement
89
SCHEDULE III
Litigation
None
Schedule III to Agreement
90
SCHEDULE IV
Environmental Matters
None
Schedule IV to Agreement
91
SCHEDULE V
Subsidiaries
See attached
Schedule V to Agreement
92
- 1 -
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Four-Year Credit Agreement dated as of
August [__], 1999 (as amended and in effect on the date hereof, the
"Agreement"), between Washington Mutual, Inc., Aristar, Inc., the Lenders named
therein and The Chase Manhattan Bank, as Administrative Agent for the Lenders.
Terms defined in the Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "Assigned Interest") in
the Assignor's rights and obligations under the Agreement, including the
interests set forth below in the Tranche [A][B](1) Commitment of the Assignor on
the Assignment Date and Competitive Loans and Syndicated Loans owing to the
Assignor which are outstanding on the Assignment Date, together with unpaid
interest accrued on the assigned Loans to the Assignment Date, and the amount,
if any, set forth below of the fees accrued to the Assignment Date for account
of the Assignor. The Assignee hereby acknowledges receipt of a copy of the
Agreement. From and after the Assignment Date (i) the Assignee shall be a party
to and be bound by the provisions of the Agreement and, to the extent of the
interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.15(e) of the Agreement, duly completed and executed by the Assignee, and (ii)
if the Assignee is not already a Lender under the Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
(1) Insert as appropriate.
Assignment and Acceptance
93
- 2 -
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date")(2):
Percentage Assigned of
Facility/Commitment
(set forth, to at
Principal Amount least 8 decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate Commitments
individual of all Lenders
Facility Competitive Loans) thereunder)
-------- ------------------ ----------------------
Commitment Assigned: $ %
Syndicated Loans:
Competitive Loans:
Fees Assigned (if any):
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] ,as Assignor
By:
-------------------------------------
Name:
Title:
-------
(2) Must be at least five Business Days after execution hereof by all
required parties.
94
- 3 -
[NAME OF ASSIGNEE] ,as Assignee
By:
-------------------------------------
Name:
Title:
95
- 4 -
The undersigned hereby consent to the within assignment: 3
WASHINGTON MUTUAL, INC.
By:
----------------------------------
Name:
Title:
ARISTAR, INC.
By:
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
----------------------------------
Name:
Title:
-------
(3) Consents to be included to the extent required by Section 9.04(b) of the
Agreement.
96
EXHIBIT B
[Form of Opinion of Counsel to the Borrowers]
__________, 1999
To the Lenders party to the Agreement referred to
below and The Chase Manhattan Bank,
as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to Washington Mutual, Inc.("WAMU") and
Aristar, Inc. ("Aristar" and together with WAMU, the "Borrowers") in connection
with the Four-Year Credit Agreement (the "Agreement") dated as of August [__],
1999, between the Borrowers, the lenders party thereto and The Chase Manhattan
Bank, as Administrative Agent, providing for loans to be made by said lenders to
the Borrowers in an aggregate principal amount not exceeding $600,000,000. Terms
defined in the Agreement are used herein as defined therein. This opinion letter
is being delivered pursuant to Section 4.01(b) of the Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Agreement; and
(b) such records of the Borrowers and such other documents as we
have deemed necessary as a basis for the opinions expressed below.
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 Agreement 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):
Opinion of Counsel to the Borrowers
97
- 2 -
(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. WAMU is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington. Each Subsidiary
of the Borrowers is a corporation duly organized, validly existing and
in good standing under the laws of the respective state indicated
opposite its name in Schedule V to the Agreement. Each of the Borrowers
and their respective Subsidiaries has all requisite power and authority
to carry on its business as now conducted and, except where the failure
to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required.
2. The Transactions are within the corporate powers of the
Borrowers.
3. The Transactions have been duly authorized by all necessary
corporate action on the part of the Borrowers.
4. The Agreement has been duly executed and delivered by the
Borrowers.
5. Under conflict of law principles for the State of Washington,
the stated choice of New York law to govern the Agreement will be
honored by the courts of the State of Washington and the Agreement will
be construed in accordance with, and will be treated as being governed
by, the law of the State of New York. However, if the Agreement were
stated to be governed by and construed in accordance with the law of the
State of Washington, or if a court of the State of Washington were to
apply the law of the State of Washington to the Agreement, the Agreement
would nevertheless constitute the legal, valid and binding obligation of
WAMU, enforceable against WAMU in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws relating to or affecting
the rights of
98
- 3 -
creditors generally and except as the enforceability of the Agreement is
subject to the application of general principles of equity (regardless
of whether considered in a proceeding in equity or at law), including
(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.
6. The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any
Governmental Authority, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of
the Borrowers or any of their respective Subsidiaries or any order of
any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the
Borrowers or any of their respective Subsidiaries or assets, or give
rise to a right thereunder to require any payment to be made by any such
Person, and (d) will not result in the creation or imposition of any
Lien on any asset of the Borrowers or any of their respective
Subsidiaries.
7. [Except as set forth in Schedules III and IV to the
Agreement,] we have no knowledge (after due inquiry) of any actions,
suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or threatened against or affecting the
Borrowers or any of their respective Subsidiaries (a) as to which there
is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect (other than the
Disclosed Matters) or (b) that involve the Agreement or the
Transactions.
8. Neither of the Borrowers nor any of their respective
Subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 9.03 of the 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, 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.
99
- 4 -
(B) The enforceability of provisions in the Agreement 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
Washington and Delaware) that limit the interest, fees or other charges
such Lender may impose, (ii) the last sentence of Section 2.16(d) of the
Agreement and (iii) the first sentence of Section 9.09(b) of the
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 the
Agreement.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America, the Delaware General Corporation
Law and the law of the State of Washington, 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 4.01(b) of the Agreement, provided to you by us in our 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
Agreement without, in each instance, our prior written consent.
Very truly yours,
100
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
__________, 1999
To the Lenders party to the Agreement referred to
below and The Chase Manhattan Bank,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan
Bank ("Chase") in connection with the Four-Year Credit Agreement (the
"Agreement") dated as of August [__], 1999, between Washington Mutual, Inc.
("WAMU"), Aristar, Inc. ("Aristar" and, together with WAMU, the "Borrowers"),
the lenders party thereto and Chase, as Administrative Agent, providing for
loans to be made by said lenders to the Borrowers in an aggregate principal
amount not exceeding $600,000,000. Terms defined in the Agreement are used
herein as defined therein. This opinion letter is being delivered pursuant to
Section 4.01(c) of the Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Agreement; and
(b) such records of the Borrowers and such other documents as we
have deemed necessary as a basis for the opinions expressed below.
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 Agreement.
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 expressed 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
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(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 the Agreement constitutes the legal,
valid and binding obligation of the Borrowers, enforceable against each Borrower
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws relating to or affecting the rights of creditors generally and except as
the enforceability of the Agreement is subject to the application of general
principles of equity (regardless of whether considered in a proceeding in equity
or at law), including (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 9.03 of the 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, 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 Agreement 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) the last sentence of Section 2.16(d) of the Agreement and
(iii) Section 9.09(b) of the 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 the Agreement.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
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At the request of our client, this opinion letter is, pursuant
to Section 4.01(c) of the 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
Agreement without, in each instance, our prior written consent.
Very truly yours,
RJW/WFC