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EXHIBIT 10.18
[CONFORMED COPY]
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WASHINGTON MUTUAL, INC.
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FOUR-YEAR CREDIT AGREEMENT
Dated as of December 10, 1996
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THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
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Section 1. Definitions and Accounting Matters.................................................................. 1
1.01 Certain Defined Terms............................................................................ 1
1.02 Accounting Terms and Determinations.............................................................. 16
1.03 Classes and Types of Loans....................................................................... 17
Section 2. Commitments, Loans, Notes and Prepayments........................................................... 17
2.01 Syndicated Loans................................................................................. 17
2.02 Borrowings of Syndicated Loans................................................................... 18
2.03 Money Market Loans............................................................................... 18
2.04 Changes of Commitments........................................................................... 23
2.05 Facility Fee..................................................................................... 24
2.06 Lending Offices.................................................................................. 24
2.07 Several Obligations; Remedies Independent........................................................ 24
2.08 Notes............................................................................................ 24
2.09 Prepayments...................................................................................... 25
2.10 Extension of Commitment Termination Date......................................................... 25
Section 3. Payments of Principal and Interest.................................................................. 27
3.01 Repayment of Loans............................................................................... 27
3.02 Interest......................................................................................... 27
Section 4. Payments; Pro Rata Treatment; Computations; Etc..................................................... 29
4.01 Payments......................................................................................... 29
4.02 Pro Rata Treatment............................................................................... 29
4.03 Computations..................................................................................... 30
4.04 Minimum Amounts.................................................................................. 30
4.05 Certain Notices.................................................................................. 30
4.06 Non-Receipt of Funds by the Administrative Agent................................................. 31
4.07 Sharing of Payments, Etc......................................................................... 32
Section 5. Yield Protection, Etc............................................................................... 34
5.01 Additional Costs................................................................................. 34
5.02 Limitation on Types of Loans..................................................................... 36
5.03 Illegality....................................................................................... 37
5.04 Treatment of Affected Loans...................................................................... 37
5.05 Compensation..................................................................................... 38
5.06 U.S. Taxes....................................................................................... 39
5.07 Replacement of Banks............................................................................. 40
(i)
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Section 6. Conditions Precedent................................................................................ 41
6.01 Initial Loan..................................................................................... 41
6.02 Initial and Subsequent Loans..................................................................... 42
Section 7. Representations and Warranties...................................................................... 43
7.01 Corporate Existence.............................................................................. 43
7.02 Financial Condition.............................................................................. 43
7.03 Litigation....................................................................................... 45
7.04 No Breach........................................................................................ 45
7.05 Action........................................................................................... 45
7.06 Approvals........................................................................................ 46
7.07 ERISA............................................................................................ 46
7.08 Taxes............................................................................................ 46
7.09 Investment Company Act........................................................................... 46
7.10 Public Utility Holding Company Act............................................................... 46
7.11 Material Agreements and Liens.................................................................... 47
7.12 Environmental Matters............................................................................ 47
7.13 Subsidiaries..................................................................................... 47
7.14 True and Complete Disclosure..................................................................... 48
Section 8. Covenants of the Company............................................................................ 48
8.01 Financial Statements Etc......................................................................... 48
8.02 Litigation....................................................................................... 52
8.03 Existence, Etc................................................................................... 52
8.04 Insurance........................................................................................ 53
8.05 Prohibition of Fundamental Changes............................................................... 54
8.06 Limitation on Liens.............................................................................. 55
8.07 Lines of Business................................................................................ 56
8.08 Use of Proceeds.................................................................................. 56
8.09 Adequate Capitalization.......................................................................... 57
8.10 Certain Financial Covenants...................................................................... 57
Section 9. Events of Default................................................................................... 58
Section 10. The Administrative Agent........................................................................... 62
10.01 Appointment, Powers and Immunities.............................................................. 62
10.02 Reliance by Administrative Agent................................................................ 63
10.03 Defaults........................................................................................ 63
10.04 Rights as a Bank................................................................................ 63
10.05 Indemnification................................................................................. 64
10.06 Non-Reliance on Administrative Agent and Other Banks............................................ 64
10.07 Failure to Act.................................................................................. 65
10.08 Resignation or Removal of Administrative Agent.................................................. 65
Section 11. Miscellaneous...................................................................................... 66
11.01 Waiver.......................................................................................... 66
11.02 Notices......................................................................................... 66
(ii)
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11.03 Expenses, Etc................................................................................... 67
11.04 Amendments, Etc................................................................................. 68
11.05 Successors and Assigns.......................................................................... 68
11.06 Assignments and Participations.................................................................. 69
11.07 Survival........................................................................................ 71
11.08 Captions........................................................................................ 71
11.09 Counterparts.................................................................................... 71
11.10 Governing Law; Submission to Jurisdiction....................................................... 71
11.11 Waiver of Jury Trial............................................................................ 72
11.12 Treatment of Certain Information; Confidentiality............................................... 72
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Subsidiaries
SCHEDULE III - Litigation
EXHIBIT A-1 - Form of Syndicated Note
EXHIBIT A-2 - Form of Money Market Note
EXHIBIT B - Form of Opinion of Counsel to the Company
EXHIBIT C - Form of Opinion of Special New York Counsel to Chase
EXHIBIT D - Form of Money Market Quote Request EXHIBIT E - Form of Money
Market Quote
EXHIBIT F - Form of Confidentiality Agreement EXHIBIT G - Form of Assignment
and Acceptance
(iii)
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CREDIT AGREEMENT dated as of December 10, 1996, between:
WASHINGTON MUTUAL, INC., a corporation duly organized and validly existing under
the laws of the State of Washington (the "Company"); each of the lenders that is
a signatory hereto identified under the caption "BANKS" on the signature pages
hereto and each lender that becomes a "Bank" after the date hereof pursuant to
Section 11.06(b) hereof (individually, a "Bank" and, collectively, the "Banks");
and THE CHASE MANHATTAN BANK, a New York banking association, as agent for the
Banks (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Company has requested that the Banks make loans to it in
an aggregate principal amount not exceeding $100,000,000 at any one time
outstanding and the Banks are prepared to make such loans upon the terms and
conditions hereof. Accordingly, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Acquisition" shall mean any transaction, or any series of
related transactions, consummated after the date of this Agreement, by which the
Company and/or one or more of its Subsidiaries (in one transaction or as the
most recent transaction in a series of related transactions) (i) acquires any
going business or all or substantially all of the assets of any firm or
corporation (or division or operating unit thereof), whether through purchase of
assets, merger or otherwise, (ii) directly or indirectly acquires control of at
least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors or (iii) directly or
indirectly acquires control of an ownership interest in any partnership or joint
venture (including a joint venture in corporate form).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
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"Alternate Base Rate" shall mean, for any day, a rate per
annum equal to the highest of (a) the Federal Funds Rate for such day plus 1/2
of 1%, (b) the Prime Rate for such day and (c) the Base CD Rate plus 1%. Each
change in any interest rate provided for herein based upon the Alternate Base
Rate resulting from a change in the Alternate Base Rate shall take effect at the
time of such change in the Alternate Base Rate.
"Alternate Base Rate Loans" shall mean Syndicated Loans that
bear interest at rates based upon the Alternate Base Rate.
"American Savings" shall mean American Savings Bank, a
California savings bank.
"Applicable Facility Fee Rate" and "Applicable Margin" shall
mean, during any period when any Rating Group set forth below is in effect, with
respect to any facility fee payable hereunder or any Type of Syndicated Loan
outstanding hereunder, the percentage set forth below opposite such fee or Type
of Syndicated Loan for such Rating Group:
==================================================================================================================
Fee or Loan Rating Rating Rating Rating Rating
Group Group Group Group Group
I II III IV V
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Facility
Fee .090% .100% .125% .150% .250%
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Eurodollar
Loans .210% .250% .275% .300% .500%
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Alternate
Base Rate 0.0% 0.0% 0.0% 0.0% 0.0%
Loans
==================================================================================================================
For the purposes of this Agreement, any change in the Applicable Facility Fee
Rate or Applicable Margin by reason of a change in the ▇▇▇▇▇'▇ Rating or the
Standard & Poor's Rating shall become effective on the date of announcement or
publication by the respective Rating Agency of a change in such Rating or, in
the absence of such announcement or publication, on the effective date of such
changed rating.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member
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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; 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
Banks.
"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.
"Bank Regulatory Authority" shall mean the Board of Governors
of the Federal Reserve System, the Comptroller of the Currency, the Federal
Deposit Insurance Corporation and all other relevant bank regulatory authorities
(including, without limitation, relevant state bank regulatory authorities).
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"Business Day" shall mean any day (a) on which commercial
banks are not authorized or required to close in New York City and (b) if such
day relates to the giving of notices or quotes in connection with a LIBOR
Auction or to a borrowing of, a payment or prepayment of principal of or
interest on, or an Interest Period for, a Eurodollar Loan or a LIBOR Market Loan
or
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a notice by the Company with respect to any such borrowing, payment, prepayment
or Interest Period, that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"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 Securities and Exchange Commission 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 the Company;
(b) during any period of 25 consecutive calendar months, a majority of the Board
of Directors of the Company 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; or
(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 the
Company, whether through the ability to exercise voting power, by contract or
otherwise.
"Chase" shall mean The Chase Manhattan Bank.
"Class" shall have the meaning assigned to such term in
Section 1.03 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
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"Commitment" shall mean, as to each Bank, the obligation of
such Bank to make Syndicated Loans pursuant to Section 2.01 hereof in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount set opposite the name of such Bank on the signature pages hereof
under the caption "Commitment" or, in the case of a Person that becomes a Bank
pursuant to an assignment permitted under Section 11.06(b) hereof, as specified
in the respective instrument of assignment pursuant to which such assignment is
effected (as the same may be reduced at any time or from time to time pursuant
to Section 2.04 hereof).
"Commitment Termination Date" shall mean the date one day
prior to the date four years after the date hereof, as the same may be extended
pursuant to Section 2.10 hereof; provided that, if such date is not a Business
Day, the Commitment Termination Date shall be the next preceding Business Day.
"Consolidated Assets" shall mean, at any date, the amount at
which the assets of the Company 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 the Company and its Subsidiaries determined on a
consolidated basis without duplication in accordance with GAAP at such date.
"Consolidated Reserves" shall mean, at any date, the amount of
loan loss reserves held by the Company and its Subsidiaries at such date
determined on a consolidated basis without duplication in accordance with GAAP.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"Double Leverage Ratio" shall mean, at any date, the ratio of
(a) the sum of (i) the aggregate book value of the Investments of the Company in
the capital notes and stock of its Subsidiaries plus (ii) the aggregate book
value of intangibles (including, without limitation, purchased mortgage
servicing
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rights and purchased credit card relationships) of the Company at such date to
(b) Consolidated Equity at such date.
"Environmental Laws" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or 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" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business that is a member of any group of organizations (i) described in Section
414(b) or (c) of the Code of which the Company is a member and (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of
which the Company is a member.
"Eurodollar Loans" shall mean Syndicated Loans that bear
interest at rates based on rates referred to in the definition of "Fixed Base
Rate" in this Section 1.01.
"Event of Default" shall have the meaning assigned to such
term in Section 9 hereof.
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"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Fee Letter" shall mean the fee letter dated as of November 4,
1996 between the Company and the Administrative Agent.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) reported at 10:00 a.m., London time on the
date two Business Days prior to the first day of such Interest Period on
Telerate Access Service Page 3750 (British Bankers Association Settlement Rate)
as the London Interbank Offered Rate for Dollar deposits having a term
comparable to such Interest Period and in an amount equal to the amount of such
Fixed Rate Loan (or, if said Page shall cease to be publicly available or if the
information contained on said Page, in the sole judgment of the Administrative
Agent, shall cease to accurately reflect such London Interbank Offered Rate, the
Fixed Base Rate for such Loans shall mean the rate reported by any publicly
available source of similar market data selected by the Administrative Agent
that, in the sole judgment of the Administrative Agent, accurately reflects such
London Interbank Offered Rate).
"Fixed Rate Loans" shall mean Eurodollar Loans and, for the
purposes of the definition of "Fixed Base Rate" in this Section 1.01 and in
Section 5 hereof, LIBOR Market Loans.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those that, in
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accordance with the last sentence of Section 1.02(a) hereof, are to be used in
making the calculations for purposes of determining compliance with this
Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) Property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of such debtor's obligations or an agreement to assure a creditor
against loss, and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other similar instrument
for the benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of business. The terms "Guarantee" and
"Guaranteed" used as a verb shall have a correlative meaning.
"Indebtedness" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan,
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money) arising, and accrued
expenses incurred, in the ordinary course of business so long as such trade
accounts payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Guarantees by such Person of
Indebtedness of others.
"Information Memorandum" shall mean the Confidential
Information Memorandum dated as of November 1996 and the
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Supplementary Information dated as of November 1996, in each case regarding the
Company and this financing.
"Insured Subsidiary" shall mean any insured depositary
institution (as defined in 12 U.S.C. ss.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. ss.1841 (or any successor provision), as
amended, re-enacted or redesignated from time to time) by the Company.
"Interest Period" shall mean:
(a) with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth
calendar month thereafter, or, any other period to which all the Banks
have consented, as the Company may select as provided in Section 4.05
hereof, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent
calendar month;
(b) with respect to any Alternate Base Rate Loan, each period
commencing on the date such Alternate Base Rate Loan is made and ending
on the Commitment Termination Date;
(c) with respect to any Set Rate Loan, the period commencing
on the date such Set Rate Loan is made and ending on any Business Day
no fewer than 7 days thereafter, as the Company may select as provided
in Section 2.03(b) hereof; and
(d) with respect to any LIBOR Market Loan, the period
commencing on the date such LIBOR Market Loan is made and ending on the
numerically corresponding day in such subsequent month, as the Company
may select as provided in Section 2.03(b) hereof, except that each
Interest Period that commences on the last Business Day of a calendar
month (or any day for which there is no numerically corresponding day
in the appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month.
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Notwithstanding the foregoing: (i) if any Interest Period for
any Syndicated Loan or Money Market Loan would otherwise end after the
Commitment Termination Date, such Interest Period shall not be available
hereunder for such period; (ii) each Interest Period that would otherwise end on
a day that is not a Business Day shall end on the next succeeding Business Day
(or, in the case of an Interest Period for a Eurodollar Loan or a LIBOR Market
Loan, if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and (iii) no Interest Period for any
Loan (other than a Set Rate Loan) shall have a duration of less than one month
and, if the Interest Period for any Eurodollar or LIBOR Market Loan would
otherwise be a shorter period, such Loan shall not be available hereunder for
such period.
"Interest Rate Protection Agreement" shall mean, for any
Person, an interest rate swap, cap or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person); (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 Interest Rate Protection Agreement.
"LIBO Margin" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(C) hereof.
"LIBOR Auction" shall mean a solicitation of Money Market
Quotes setting forth LIBO Margins based on the Fixed Base Rate pursuant to
Section 2.03 hereof.
▇▇
- ▇▇ -
"▇▇▇▇▇ ▇▇▇▇▇▇ Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of Fixed Base Rates pursuant
to a LIBOR Auction.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"Loans" shall mean Syndicated Loans and Money Market Loans.
"Majority Banks" shall mean Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have
terminated, Banks holding more than 50% of the aggregate unpaid principal amount
of the Loans.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the Property, business, operations or financial condition of the Company
and its Subsidiaries taken as a whole, (b) the ability of the Company to perform
its obligations hereunder and under the Notes, (c) the validity or
enforceability of this Agreement or of the Notes, (d) the rights and remedies of
the Banks and the Administrative Agent hereunder and under the Notes or (e) the
timely payment of the principal of or interest on the Loans or other amounts
payable in connection therewith.
"Money Market Borrowing" shall have the meaning assigned to
such term in Section 2.03(b) hereof.
"Money Market Loan Limit" shall have the meaning assigned to
such term in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean the loans provided for by
Section 2.03 hereof.
"Money Market Notes" shall mean the promissory notes provided
for by Section 2.08(b) hereof and all promissory notes delivered in substitution
or exchange therefor, in each case as
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the same shall be modified and supplemented and in effect from time to time.
"Money Market Quote" shall mean an offer in accordance with
Section 2.03(c) hereof by a Bank to make a Money Market Loan with one single
specified interest rate.
"Money Market Quote Request" shall have the meaning assigned
to such term in Section 2.03(b) hereof.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor thereto.
"▇▇▇▇▇'▇ Rating" shall mean, as of any date of determination
thereof, the rating most recently published by Moody's relating to the
unsecured, unguaranteed senior long-term debt securities of the Company then
outstanding.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by the
Company or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Non-Material Subsidiaries" shall mean, as at any date,
Subsidiaries of the Company the total assets of which, in the aggregate, do not
exceed one percent (1%) of the Consolidated Assets of the Company and all of its
Subsidiaries, as at such date.
"Non-Performing Assets" shall mean, as at any date, the sum,
for the Company 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) restructured loans and
leases plus (d) other real estate owned plus (e) without duplication for amounts
included as other real estate owned, property acquired pursuant to in substance
foreclosures.
"Notes" shall mean the Syndicated Notes and the Money Market
Notes.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
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"Person" shall mean any individual, corporation, company,
voluntary association, partnership, limited liability company, joint venture,
trust, unincorporated organization or government (or any agency, instrumentality
or political subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and that is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean a rate per annum equal to 2%
plus the Alternate Base Rate as in effect from time to time, provided that, with
respect to principal of a Eurodollar Loan or a Money Market Loan that shall
become due (whether at stated maturity, by acceleration or otherwise) on a day
other than the last day of the Interest Period therefor, the "Post-Default Rate"
shall be, for the period from and including such due date to but excluding the
last day of such Interest Period, 2% plus the interest rate for such Loan as
provided in Section 3.02 hereof and, thereafter, the rate provided for above in
this definition.
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at its principal office as its prime commercial lending rate.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" shall mean the last Business Day of each
March, June, September and December, the first of which shall be the first such
day after the date hereof.
"Rating" shall mean the ▇▇▇▇▇'▇ Rating or the Standard &
Poor's Rating.
"Rating Agency" shall mean either Moody's or Standard &
Poor's.
"Rating Group" shall mean any of Rating Group I, Rating Group
II, Rating Group III, Rating Group IV and Rating Group V.
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"Rating Group I" shall mean (a) no Event of Default has
occurred and is continuing and (b) the ▇▇▇▇▇'▇ Rating is at or above A1 and the
Standard & Poor's Rating is at or above A+; "Rating Group II" shall mean (a) no
Event of Default has occurred and is continuing, (b) the ▇▇▇▇▇'▇ Rating is at or
above A3 and the Standard & Poor's Rating is at or above A- and (c) Rating Group
I is not in effect; "Rating Group III" shall mean (a) no Event of Default has
occurred and is continuing, (b) the ▇▇▇▇▇'▇ Rating is at or above Baa1 and the
Standard & Poor's Rating is at or above BBB+ and (c) neither Rating Group I nor
Rating Group II is in effect; "Rating Group IV" shall mean (a) no Event of
Default has occurred and is continuing, (b) the ▇▇▇▇▇'▇ Rating is at or above
Baa2 and the Standard & Poor's Rating is at or above BBB and (c) none of Rating
Group I, Rating Group II or Rating Group III is in effect; and "Rating Group V"
shall mean that none of Rating Group I, Rating Group II, Rating Group III or
Rating Group IV is in effect; provided that (A) if the ▇▇▇▇▇'▇ Rating and the
Standard & Poor's Rating fall into different Rating levels and one of such
Ratings is no more than one Rating level lower than the other of such Ratings,
then the applicable Rating Group shall be based upon the higher of such Ratings
and (B) if the ▇▇▇▇▇'▇ Rating and the Standard & Poor's Rating fall into
different Rating levels and one of such Ratings is two Rating levels lower than
the other of such Ratings, then the applicable Rating Group shall be based upon
a hypothetical Rating that would fall into the Rating level that is one lower
than the Rating level into which the higher of such Ratings falls.
"Regulations A, D, G, U and X" shall mean, respectively,
Regulations A, D, G, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" shall mean, with respect to any Bank, any
change after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Bank under any Federal, state or foreign law or regulations
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
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"Repurchase Arrangements" shall mean repurchase and reverse
repurchase arrangements with respect to securities and financial instruments.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Set Rate" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(D) hereof.
"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Set Rates pursuant to Section 2.03 hereof.
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Set Rates pursuant to a Set Rate
Auction.
"Standard & Poor's" shall mean Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor
thereto.
"Standard and Poor's Rating" shall mean, as of any date of
determination thereof, the rating most recently published by Standard & Poor's
relating to the unsecured, unguaranteed senior long term debt securities of the
Company then outstanding.
"Statutory Reserve Rate" means 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 of Governors of the Federal Reserve System
to which the Administrative Agent is subject, for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities approximately equal to
three months. The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
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(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Syndicated Loans" shall mean the loans provided for by
Section 2.01 hereof, which may be Alternate Base Rate Loans and/or Eurodollar
Loans.
"Syndicated Notes" shall mean the promissory notes provided
for by Section 2.08(a) hereof and all promissory notes delivered in substitution
or exchange thereof, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Tangible Net Worth" shall mean, as at any date, the sum for
the Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following:
(a) total stockholders' equity; minus
(b) the sum of the following: 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 total stockholders' 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, 1995.
"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 of Governors of the Federal Reserve System 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
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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.
"Type" shall have the meaning assigned to such term in Section
1.03 hereof.
"Wholly-Owned Subsidiary" shall mean, with respect to any
Person, any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or indirectly owned or
controlled by such Person or one or more Wholly-Owned Subsidiaries of such
Person or by such Person and one or more Wholly-Owned Subsidiaries of such
Person.
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1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Banks hereunder shall (unless otherwise disclosed to the Banks in writing at
the time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Banks hereunder (which, prior to the delivery of the
first financial statements under Section 8.01 hereof, shall mean the audited
financial statements as at December 31, 1995 referred to in Section 7.02
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Banks pursuant to Section 8.01 hereof (or,
prior to the delivery of the first financial statements under Section 8.01
hereof, used in the preparation of the audited financial statements as at
December 31, 1995 referred to in Section 7.02 hereof) unless (i) the Company
shall have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Majority Banks shall so object
in writing within 30 days after delivery of such financial statements, in either
of which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 8.01 hereof, shall mean
the audited financial statements referred to in Section 7.02 hereof).
(b) The Company shall deliver to the Banks at the same time as
the delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been
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made in accordance with the last sentence of subsection (a) above and (ii)
reasonable estimates of the difference between such statements arising as a
consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8 hereof, the Company will
not, and will not permit any of its Subsidiaries to, change the last day of its
fiscal year from December 31, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30,
respectively.
1.03 Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan refers to whether
such Loan is a Money Market Loan or a Syndicated Loan, each of which constitutes
a Class. The "Type" of a Loan refers to whether such Loan is a Alternate Base
Rate Loan, a Eurodollar Loan, a Set Rate Loan or a LIBOR Market Loan, each of
which constitutes a Type. Loans may be identified by both Class and Type.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Syndicated Loans. Each Bank severally agrees, on the
terms and conditions of this Agreement, to make loans to the Company in Dollars
during the period from and including the date hereof to but not including the
Commitment Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Commitment of such Bank as
in effect from time to time, provided that the aggregate principal amount of all
Syndicated Loans, together with the aggregate principal amount of all Money
Market Loans, at one time outstanding shall not exceed the aggregate amount of
the Commitments at such time. Subject to the terms and conditions of this
Agreement, during such period the Company may borrow, repay and reborrow the
amount of the Commitments by means of Alternate Base Rate Loans and Eurodollar
Loans; provided that no more than three separate Interest Periods in respect of
Eurodollar Loans from each Bank may be outstanding at any one time.
2.02 Borrowings of Syndicated Loans. The Company shall give
the Administrative Agent notice of each borrowing hereunder as provided in
Section 4.05 hereof. Not later than
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1:00 p.m. New York time on the date specified for each borrowing of Syndicated
Loans hereunder, each Bank shall make available the amount of the Syndicated
Loan or Loans to be made by it on such date to the Administrative Agent, at an
account in New York designated by the Administrative Agent, in immediately
available funds, for account of the Company. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company designated by the
Company.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, at any time
prior to the Commitment Termination Date the Company may, as set forth in this
Section 2.03, request the Banks to make offers to make Money Market Loans to the
Company in Dollars. The Banks may, but shall have no obligation to, make such
offers and the Company may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.03. Money Market Loans may be
LIBOR Market Loans or Set Rate Loans (each a "Type" of Money Market Loan),
provided that:
(i) there may be no more than fifteen different Interest
Periods for both Syndicated Loans and Money Market Loans outstanding at
the same time (for which purpose Interest Periods described in
different lettered clauses of the definition of the term "Interest
Period" shall be deemed to be different Interest Periods even if they
are coterminous); and
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans,
at any one time outstanding shall not exceed the aggregate amount of
the Commitments at such time.
(b) When the Company wishes to request offers to make Money
Market Loans, it shall give the Administrative Agent (which shall promptly
notify the Banks) notice (a "Money Market Quote Request") so as to be received
no later than 11:00 a.m. New York time on (x) the fourth Business Day prior to
the date of borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Business Day next preceding the date of borrowing proposed therein, in the
case of a Set Rate Auction (or, in any
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such case, such other time and date as the Company and the Administrative Agent,
with the consent of the Majority Banks, may agree). The Company may request
offers to make Money Market Loans for up to three different Interest Periods in
a single notice (for which purpose Interest Periods in different lettered
clauses of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous); provided that the
request for each separate Interest Period shall be deemed to be a separate Money
Market Quote Request for a separate borrowing (a "Money Market Borrowing"). Each
such notice shall be substantially in the form of Exhibit D hereto and shall
specify as to each Money Market Borrowing:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $10,000,000 (or a larger multiple of
$1,000,000) but shall not cause the limits specified in Section 2.03(a)
hereof to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Money Market Quotes requested for a
particular Interest Period are seeking quotes for LIBOR Market Loans or
Set Rate Loans; and
(v) if the Money Market Quotes requested are seeking quotes
for Set Rate Loans, the date on which the Money Market Quotes are to be
submitted if it is before the proposed date of borrowing (the proposed
date of such borrowing or, if the date on which such Money Market
Quotes are to be submitted is before the proposed date of borrowing,
such submission date is called the "Quotation Date").
Except as otherwise provided in this Section 2.03(b), no Money Market Quote
Request shall be given within five Business Days (or such other number of days
as the Company and the Administrative Agent, with the consent of the Majority
Banks, may agree) of any other Money Market Quote Request.
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(c) (i) Each Bank may submit one or more Money Market Quotes,
each constituting an offer to make a Money Market Loan in response to
any Money Market Quote Request; provided that, if the Company's request
under Section 2.03(b) hereof specified more than one Interest Period,
such Bank may make a single submission containing one or more Money
Market Quotes for each such Interest Period. Each Money Market Quote
must be submitted to the Administrative Agent not later than (x) 2:00
p.m. New York time on the fourth Business Day prior to the proposed
date of borrowing, in the case of a LIBOR Auction or (y) 10:00 a.m. New
York time on the Quotation Date, in the case of a Set Rate Auction (or,
in any such case, such other time and date as the Company and the
Administrative Agent, with the consent of the Majority Banks, may
agree); provided that any Money Market Quote may be submitted by Chase
(or its lending office) only if Chase (or such lending office) notifies
the Company of the terms of the offer contained therein not later than
(x) 1:00 p.m. New York time on the fourth Business Day prior to the
proposed date of borrowing, in the case of a LIBOR Auction or (y) 9:45
a.m. New York time on the Quotation Date, in the case of a Set Rate
Auction. Subject to Sections 5.02(b), 5.03, 6.02 and 9 hereof, any
Money Market Quote so made shall be irrevocable except with the consent
of the Administrative Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall be substantially in the
form of Exhibit E hereto and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
shall be at least $5,000,000 (or a larger multiple of
$1,000,000); provided that the aggregate principal amount of
all Money Market Loans for which a Bank submits Money Market
Quotes (x) may be greater or less than the Commitment of such
Bank but (y) may not exceed the principal amount of the Money
Market Borrowing for a particular Interest Period for which
offers were requested;
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(C) in the case of a LIBOR Auction, the margin above
or below the applicable Fixed Base Rate (the "LIBO Margin")
offered for each such Money Market Loan, expressed as a
percentage (rounded upwards, if necessary, to the nearest
1/10,000th of 1%) to be added to or subtracted from the
applicable Fixed Base Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Money Market
Loan (the "Set Rate"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Company, no
Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Money Market Quote Request and, in particular, no
Money Market Quote may be conditioned upon acceptance by the Company of
all (or some specified minimum) of the principal amount of the Money
Market Loan for which such Money Market Quote is being made, provided
that the submission by any Bank containing more than one Money Market
Quote may be conditioned on the Company not accepting offers contained
in such submission that would result in such Bank making Money Market
Loans pursuant thereto in excess of a specified aggregate amount (the
"Money Market Loan Limit").
(d) The Administrative Agent shall (x) in the case of a Set
Rate Auction, as promptly as practicable after the Money Market Quote is
submitted (but in any event not later than 10:15 a.m. New York time on the
Quotation Date) or (y) in the case of a LIBOR Auction, by 4:00 p.m. New York
time on the day a Money Market Quote is submitted, notify the Company of the
terms (i) of any Money Market Quote submitted by a Bank that is in accordance
with Section 2.03(c) hereof and (ii) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Administrative
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Administrative Agent's
notice to the Company shall specify (A) the aggregate principal amount of the
Money
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Market Borrowing for which offers have been received and (B) the respective
principal amounts and LIBO Margins or Set Rates, as the case may be, so offered
by each Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 a.m. New York time on (x) the third
Business Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) the Quotation Date, in the case of a Set Rate Auction (or, in any
such case, such other time and date as the Company and the Administrative Agent,
with the consent of the Majority Banks, may agree), the Company shall notify the
Administrative Agent of its acceptance or nonacceptance of the offers so
notified to it pursuant to Section 2.03(d) hereof (which notice shall specify
the aggregate principal amount of offers from each Bank for each Interest Period
that are accepted, it being understood that the failure of the Company to give
such notice by such time shall constitute nonacceptance) and the Administrative
Agent shall promptly notify each affected Bank. The notice from the
Administrative Agent shall also specify the aggregate principal amount of offers
for each Interest Period that were accepted and the lowest and highest LIBO
Margins and Set Rates that were accepted for each Interest Period. The Company
may accept any Money Market Quote in whole or in part (provided that any Money
Market Quote accepted in part shall be at least $5,000,000 or a larger multiple
of $1,000,000); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $10,000,000 (or a larger multiple of
$1,000,000) but shall not cause the limits specified in Section 2.03(a)
hereof to be violated;
(iii) acceptance of offers may, subject to clause (v) below,
be made only in ascending order of LIBO Margins or Set Rates, as the
case may be, in each case beginning with the lowest rate so offered;
(iv) the Company may not accept any offer where the
Administrative Agent has advised the Company that such offer fails to
comply with Section 2.03(c)(ii) hereof or otherwise
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fails to comply with the requirements of this Agreement (including,
without limitation, Section 2.03(a) hereof);
(v) the aggregate principal amount of each Money Market
Borrowing from any Bank may not exceed any applicable Money Market Loan
Limit of such Bank.
If offers are made by two or more Banks with the same LIBO Margins or Set Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Company among such Banks as nearly as
possible (in amounts of at least $5,000,000 or larger multiples of $1,000,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Company of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted in accordance with the terms and conditions of this Section 2.03
shall, not later than 1:00 p.m. New York time on the date specified for the
making of such Loan, make the amount of such Loan available to the
Administrative Agent at an account in New York designated by the Administrative
Agent in immediately available funds, for account of the Company. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Company on such date by depositing
the same, in immediately available funds, in an account of the Company
maintained with Chase at the Principal Office designated by the Company.
(g) Except for the purpose and to the extent expressly stated
in Sections 2.04(b) and 2.05 hereof, the amount of any Money Market Loan made by
any Bank shall not constitute a utilization of such Bank's Commitment.
2.04 Changes of Commitments.
(a) The aggregate amount of the Commitments shall be
automatically reduced to zero on the Commitment Termination Date.
(b) The Company shall have the right at any time or from time
to time (i) so long as no Syndicated Loans or Money Market Loans are
outstanding, to terminate the Commitments and
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(ii) to reduce the aggregate unused amount of the Commitments (for which purpose
use of the Commitments shall be deemed to include the aggregate principal amount
of all Money Market Loans); provided that (x) the Company shall give notice of
each such termination or reduction as provided in Section 4.05 hereof and (y)
each partial reduction shall be in a multiple of $10,000,000.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.05 Facility Fee. The Company shall pay to the Administrative
Agent for account of each Bank a facility fee on the daily average amount of
such Bank's Commitment (whether or not utilized), for the period from and
including the date hereof to but not including the earlier of the date such
Commitment is terminated and the Commitment Termination Date, at a rate per
annum equal to the Applicable Facility Fee Rate. Accrued facility fee shall be
payable on each Quarterly Date in arrears and on the earlier of the date the
Commitments are terminated and the Commitment Termination Date.
2.06 Lending Offices. The Loans of each Type made by each Bank
shall be made and maintained at such Bank's lending office for Loans of such
Type.
2.07 Several Obligations; Remedies Independent. The failure of
any Bank to make any Loan to be made by it on the date specified therefor shall
not relieve any other Bank of its obligation to make its Loan on such date, but
neither any Bank nor the Administrative Agent shall be responsible for the
failure of any other Bank to make a Loan to be made by such other Bank, and
(except as otherwise provided in Section 4.06 hereof) no Bank shall have any
obligation to the Administrative Agent or any other Bank for the failure by such
Bank to make any Loan required to be made by such Bank. The amounts payable by
the Company at any time hereunder and under the Notes to each Bank shall be a
separate and independent debt and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it shall not
be necessary for any other Bank or the Administrative Agent to consent to, or be
joined as an additional party in, any proceedings for such purposes.
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2.08 Notes.
(a) The Syndicated Loans made by each Bank shall be evidenced
by a single promissory note of the Company substantially in the form of Exhibit
A-1 hereto, dated the date hereof, payable to such Bank in a principal amount
equal to the amount of its Commitment as originally in effect and otherwise duly
completed.
(b) The Money Market Loans made by any Bank shall be evidenced
by a single promissory note of the Company substantially in the form of Exhibit
A-2 hereto, dated the date hereof, payable to such Bank and otherwise duly
completed.
(c) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan of each Class made by each Bank to
the Company, and each payment made on account of the principal thereof, shall be
recorded by such Bank on its books and, prior to any transfer of the Note
evidencing the Loans of such Class held by it, endorsed by such Bank on the
schedule attached to such Note or any continuation thereof; provided that the
failure of such Bank to make any such recordation or endorsement shall not
affect the obligations of the Company to make a payment when due of any amount
owing hereunder or under such Note in respect of such Loans.
(d) No Bank shall be entitled to have its Notes substituted or
exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Bank's Commitment, Loans and Notes pursuant to Section 11.06
hereof (and, if requested by any Bank, the Company agrees to so exchange any
Note).
2.09 Prepayments. Subject to Sections 4.04 and 5.05 hereof,
the Company shall have the right to prepay Syndicated Loans at any time or from
time to time, provided that the Company shall give the Administrative Agent
notice of each such prepayment as provided in Section 4.05 hereof (and, upon the
date specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder). Money Market Loans may not be prepaid without
the consent of the Bank holding such Loan.
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2.10 Extension of Commitment Termination Date.
(a) The Company may, by notice to the Administrative Agent
(which shall promptly notify the Banks) not less than 60 and not more than 90
days prior to each of the first and second anniversaries of the date of this
Agreement (a "Relevant Anniversary Date"), request that the Banks extend the
Commitment Termination Date (the "Existing Commitment Termination Date") for one
year after such Existing Commitment Termination Date). Each Bank, acting in its
sole discretion, shall, by notice to the Company and the Administrative Agent
given not later than the date (herein, the "Consent Date") that is 30 days
immediately after the date of such request (except that, if such date is not a
Business Day, such notice shall be given on the next succeeding Business Day),
advise the Company whether or not such Bank agrees to such extension; provided
that each Bank that determines not to extend the Commitment Termination Date (a
"Non-extending Bank") shall notify the Administrative Agent (which shall notify
the Banks) of such fact promptly after such determination (but in any event no
later than the Consent Date) and any Bank that does not advise the Company on or
before the Consent Date shall be deemed to be a Non-extending Bank. The election
of any Bank to agree to such extension shall not obligate any other Bank to so
agree.
(b) If (and only if) the total of the Commitments of the Banks
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 Company shall have the right on or before the Relevant
Anniversary Date to replace each such Non-extending Bank with, and otherwise add
to this Agreement, one or more other banks (which may include any Bank, each
prior to the Relevant Anniversary Date an "Additional Commitment Bank") with the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld), each of which Additional Commitment Banks shall have entered into an
agreement in form and substance satisfactory to the Company and the
Administrative Agent pursuant to which such Additional Commitment Bank shall,
effective as of the Relevant Anniversary Date, undertake a Commitment (and, if
any such Additional Commitment Bank is already a Bank, its Commitment shall be
in addition to such Bank's Commitment hereunder on such date).
(c) If (and only if) the total of the Commitments of the Banks
that have agreed so to extend the Commitment
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Termination Date together with the additional Commitments of the Additional
Commitment Banks that will become effective on the Relevant Anniversary Date
shall aggregate 100% of the aggregate amount of the Commitments in effect
immediately prior to the Consent Date, then effective as of the Relevant
Anniversary Date, the Existing Commitment Termination Date shall be extended to
the date falling one year 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 Bank shall thereupon become a "Bank" 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 Bank
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 Relevant Anniversary Date;
(ii) each of the representations and warranties made
by the Company in Section 7 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 Relevant Anniversary 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 Bank shall have been paid in
full by the Company all amounts owing to such Bank hereunder on or
before the Relevant Anniversary Date.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Company hereby promises to pay the Administrative
Agent for account of each Bank the principal amount of each of such Bank's
Syndicated Loans, and each Syndicated Loan shall mature, on the last day of the
Interest Period for such Syndicated Loan.
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(b) The Company hereby promises to pay to the Administrative
Agent for account of each Bank that makes any Money Market Loan the principal
amount of such Money Market Loan, and such Money Market Loan shall mature, on
the last day of the Interest Period for such Money Market Loan.
3.02 Interest. The Company hereby promises to pay to the
Administrative Agent for account of each Bank interest on the unpaid principal
amount of each Loan made by such Bank for the period from and including the date
of such Loan to but excluding the date such Loan shall be paid in full, at the
following rates per annum:
(a) during such periods as such Loan is a Alternate Base Rate
Loan, the Alternate Base Rate (as in effect from time to time) plus the
Applicable Margin plus 0.10% per annum at any time when Rating Group V
is in effect (or 0.05% per annum at any time when any other Rating
Group is in effect) and the Loans outstanding shall exceed 50% of the
Commitments;
(b) during such periods as such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Fixed Base Rate for such
Loan for such Interest Period plus the Applicable Margin, plus 0.10%
per annum at any time when Rating Group V is in effect (or 0.05% per
annum at any time when any other Rating Group is in effect) and the
Loans outstanding shall exceed 50% of the Commitments;
(c) if such Loan is a LIBOR Market Loan, the Fixed Base Rate
for such Loan for the Interest Period therefor plus (or minus) the LIBO
Margin quoted by the Bank making such Loan in accordance with Section
2.03 hereof; and
(d) if such Loan is a Set Rate Loan, the Set Rate for such
Loan for the Interest Period therefor quoted by the Bank making such
Loan in accordance with Section 2.03 hereof.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Bank interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank and on any
other amount payable by the Company hereunder or under the Notes held by such
Bank to or for account of such Bank, that shall not be paid in full when due
(whether at
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stated maturity, by acceleration or otherwise), for the period from and
including the due date thereof to but excluding the date the same is paid in
full. Accrued interest on each Loan shall be payable (i) in the case of a
Alternate Base Rate Loan on the Quarterly Dates in arrears, (ii) in the case of
a Eurodollar Loan or a Money Market Loan, on the last day of each Interest
Period therefor and, if such Interest Period is longer than 90 days (in the case
of a Set Rate Loan) or three months (in the case of a Eurodollar Loan or a LIBOR
Market Loan), at 90-day or three-month intervals, respectively, following the
first day of such Interest Period, and (iii) in the case of any Loan, upon the
payment or prepayment thereof (but only on the principal amount so paid or
prepaid), except that interest payable at the Post-Default Rate shall be payable
from time to time on demand. Promptly after the determination of any interest
rate provided for herein or any change therein, the Administrative Agent shall
give notice thereof to the Banks to which such interest is payable and to the
Company.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Company
under this Agreement and the Notes and the Fee Letter, shall be made in Dollars,
in immediately available funds, without deduction, set-off or counterclaim, to
the Administrative Agent at an account in New York designated by the
Administrative Agent, not later than 1:00 p.m. New York time on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day).
(b) The Company shall, at the time of making each payment
under this Agreement or any Note for account of any Bank, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans or other amounts payable by the Company hereunder to which such
payment is to be applied (and in the event that the Company fails to so specify,
or if an Event of Default has occurred and is continuing, the Administrative
Agent may distribute such payment to the Banks for
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application in such manner as it or the Majority Banks, subject to Section 4.02
hereof, may determine to be appropriate).
(c) Each payment received by the Administrative Agent under
this Agreement or any Note for account of any Bank shall be paid by the
Administrative Agent promptly to such Bank, in immediately available funds, for
account of such Bank's lending office for the Loan or other obligation in
respect of which such payment is made.
(d) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) each borrowing of Syndicated Loans from the Banks under
Section 2.01 hereof shall be made from the Banks, each payment of facility fee
under Section 2.05 hereof shall be made for account of the Banks, and each
termination or reduction of the amount of the Commitments under Section 2.04
hereof shall be applied to the respective Commitments of the Banks, pro rata
according to the amounts of their respective Commitments; (b) except as
otherwise provided in Section 5.04 hereof, Eurodollar Loans having the same
Interest Period shall be allocated pro rata among the Banks according to the
amounts of their respective Commitments; (c) each payment or prepayment of
principal of Syndicated Loans by the Company shall be made for account of the
Banks pro rata in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by them; and (d) each payment of interest on Syndicated
Loans by the Company shall be made for account of the Banks pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Banks.
4.03 Computations. Interest on Money Market Loans, Eurodollar
Loans and facility fee shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable and interest on Alternate Base Rate
Loans shall be computed on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed (including the first date but excluding the last
day) occurring in the period for which payable. Notwithstanding the foregoing,
for each day the
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Alternate Base Rate is calculated by reference to the Federal Funds Rate, the
interest on Alternate Base Rate Loans shall be computed on the basis of a year
of 360 days and actual days elapsed.
4.04 Minimum Amounts. Each borrowing of Syndicated Loans shall
be in an aggregate amount at least equal to $5,000,000 (in the case of Alternate
Base Rate Loans) and $10,000,000 (in the case of Eurodollar Loans) or larger
multiples of $1,000,000 in excess thereof; and each prepayment of principal of
Syndicated Loans shall be in an aggregate amount at least equal to $5,000,000 or
larger multiples of $1,000,000 (borrowings or prepayments of Loans of different
Types or, in the case of Eurodollar Loans, having different Interest Periods, at
the same time hereunder to be deemed separate borrowings and prepayments for
purposes of the foregoing, one for each Type or Interest Period).
4.05 Certain Notices. Except as otherwise provided in Section
2.03 hereof with respect to Money Market Loans, notices by the Company to the
Administrative Agent of terminations or reductions of the Commitments and of
borrowings and optional prepayments of Loans, of Types of Loans and of the
duration of Interest Periods shall be irrevocable and shall be effective only if
received by the Administrative Agent not later than 10:00 a.m. New York time on
the number of Business Days prior to the date of the relevant termination,
reduction, borrowing or prepayment or the first day of such Interest Period
specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing of Alternate
Base Rate Loans same day
Prepayment of Alternate Base
Rate Loans 1
Borrowing and duration of
Interest Period for, and
prepayment of, Eurodollar Loans 3
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Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing or
optional prepayment shall specify the Loans to be borrowed or prepaid and the
amount (subject to Section 4.04 hereof) and Type of each Loan to be borrowed or
prepaid and the date of borrowing or optional prepayment (which shall be a
Business Day). Each such notice of the duration of an Interest Period shall
specify the Loans to which such Interest Period is to relate. The Administrative
Agent shall promptly notify the Banks of the contents of each such notice.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Bank or the Company (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Bank) the proceeds of a Loan to be
made by such Bank hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Banks hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day and, if
such recipient(s) shall fail promptly to make such payment, the Administrative
Agent shall be entitled to recover such amount, on demand, from the Payor,
together with interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Administrative Agent
within three Business Days of the Advance Date, then, retroactively to the
Advance Date, the Payor and the recipient(s) shall each be obligated to pay
interest on the Required Payment as follows:
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(i) if the Required Payment shall represent a payment to be
made by the Company to the Banks, the Company and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the obligation of the Company under Section
3.02 hereof to pay interest on the Required Payment at the Post-Default
Rate), it being understood that the return by the recipient(s) of the
Required Payment to the Administrative Agent shall not limit such
obligation of the Company under said Section 3.02 to pay interest at
the Post-Default Rate in respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a
Loan to be made by the Banks to the Company, the Payor and the Company
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment pursuant to whichever of
the rates specified in Section 3.02 hereof is applicable to the Type of
such Loan, it being understood that the return by the Company of the
Required Payment to the Administrative Agent shall not limit any claim
the Company may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Bank may
otherwise have, each Bank shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
credit or account of the Company at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Bank's Loans
or any other amount payable to such Bank hereunder, that is not paid when due
(regardless of whether such deposit or other indebtedness are then due to the
Company), in which case it shall promptly notify the Company and the
Administrative Agent thereof, provided that such Bank's failure to give such
notice shall not affect the validity thereof.
(b) If any Bank shall obtain from the Company payment of any
principal of or interest on any Loan of any Class owing to it or payment of any
other amount under this Agreement through
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the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise (other than from the Administrative Agent as provided
herein), and, as a result of such payment, such Bank shall have received a
greater percentage of the principal of or interest on the Loans of such Class or
such other amounts then due hereunder by the Company to such Bank than the
percentage received by any other Bank, it shall promptly purchase from such
other Banks participations in (or, if and to the extent specified by such Bank,
direct interests in) the Loans of such Class or such other amounts,
respectively, owing to such other Banks (or in interest due thereon, as the case
may be) in such amounts, and make such other adjustments from time to time as
shall be equitable, to the end that all the Banks shall share the benefit of
such excess payment (net of any expenses that may be incurred by such Bank in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans of such Class or such other
amounts, respectively, owing to each of the Banks. To such end all the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) The Company agrees that any Bank so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans or other amounts (as the case may
be) owing to such Bank in the amount of such participation.
(d) Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Company. If, under any applicable bankruptcy,
insolvency or other similar law, any Bank receives a secured claim in lieu of a
set-off to which this Section 4.07 applies, such Bank shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
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Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Company shall pay directly to each Bank from time to
time such amounts as such Bank may reasonably determine to be necessary to
compensate such Bank for any costs that such Bank determines are attributable to
its making or maintaining of any Fixed Rate Loans or its obligation to make any
Fixed Rate Loans hereunder, or any reduction in any amount receivable by such
Bank hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
(i) shall subject any Bank (or its lending office for any of
such Loans) to any tax, duty or other charge in respect of such Loans
or its Notes or changes the basis of taxation of any amounts payable to
such Bank under this Agreement or its Notes in respect of any of such
Loans (excluding changes in the rate of tax on the overall net income
or gross receipts of such Bank or of such lending office by the
jurisdiction in which such Bank has its principal office or such
lending office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than, in the case of any Bank for any
period as to which the Company is required to pay any amount under
paragraph (d) below, the reserves against "Eurocurrency liabilities"
under Regulation D therein referred to) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities
of, such Bank (including, without limitation, any of such Loans or any
deposits referred to in the definition of "Fixed Base Rate" in Section
1.01 hereof), or any commitment of such Bank (including, without
limitation, the Commitment of such Bank hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or its
Commitment.
If any Bank requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Bank (with a
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- 38 -
copy to the Administrative Agent), suspend the obligation of such Bank
thereafter to make Eurodollar Loans until the Regulatory Change giving rise to
such request ceases to be in effect (in which case the provisions of Section
5.04 hereof shall be applicable), provided that such suspension shall not affect
the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Company shall pay directly to
each Bank from time to time on request such amounts as such Bank may reasonably
determine to be necessary to compensate such Bank (or, without duplication, the
bank holding company of which such Bank is a subsidiary) for any costs that it
determines are attributable to the maintenance by such Bank (or any lending
office or such bank holding company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) of any court or
governmental or monetary authority (i) following any Regulatory Change or (ii)
implementing any risk-based capital guideline or other requirement (whether or
not having the force of law and whether or not the failure to comply therewith
would be unlawful) hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle Accord, of
capital in respect of its Commitment or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Bank (or any lending office or such bank holding
company) to a level below that which such Bank (or any lending office or such
bank holding company) could have achieved but for such law, regulation,
interpretation, directive or request).
(c) Each Bank shall notify the Company of any event occurring
after the date hereof entitling such Bank to compensation under paragraph (a) or
(b) of this Section 5.01 as promptly as practicable, but in any event within 60
days, after such Bank obtains actual knowledge thereof; provided that (i) if any
Bank fails to give such notice within 60 days after it obtains actual knowledge
of such an event, such Bank shall, with respect to compensation payable pursuant
to this Section 5.01 in respect of any costs resulting from such event, only be
entitled to payment under this Section 5.01 for costs incurred from and after
the date 60 days prior to the date that such Bank does give such notice and (ii)
each Bank will designate a different lending office for the Loans of such
Bank affected by such event if such
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- 39 -
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Bank, be disadvantageous to such Bank.
Each Bank will furnish to the Company a certificate setting forth in reasonably
specific detail the basis and amount of each request by such Bank for
compensation under paragraph (a) or (b) of this Section 5.01. Determinations and
allocations by any Bank for purposes of this Section 5.01 of the effect of any
Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the
effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on
its costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Bank under this Section 5.01, shall be conclusive,
provided that such determinations and allocations are made on a reasonable
basis.
(d) Without limiting the effect of the foregoing, the Company
shall pay to each Bank on the last day of each Interest Period so long as such
Bank is maintaining reserves against "Eurocurrency liabilities" under Regulation
D (or, unless the provisions of paragraph (b) above are applicable, so long as
such Bank is, by reason of any Regulatory Change, maintaining reserves against
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Loans or LIBOR Market Loans is determined as
provided in this Agreement or against any category of extensions of credit or
other assets of such Bank that includes any Eurodollar Loans or LIBOR Market
Loans) an additional amount (reasonably determined by such Bank and notified to
the Company through the Administrative Agent) equal to the product of the
following for each Eurodollar Loan or LIBOR Market Loan for each day during such
Interest Period:
(i) the principal amount of such Eurodollar Loan or LIBOR
Market Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is
the rate (expressed as a decimal) at which interest accrues on such
Eurodollar Loan or LIBOR Market Loan for such Interest Period as
provided in this Agreement (less the Applicable Margin) and the
denominator of which is one minus the effective rate (expressed as a
decimal) at which such reserve requirements are imposed on such Bank on
such day minus (y) such numerator; and
(iii) 1/360.
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5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any Fixed Base
Rate for any Interest Period:
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the relevant
deposits referred to in the definition of "Fixed Base Rate" in Section
1.01 hereof are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for
either Type of Fixed Rate Loans as provided herein; or
(b) the Majority Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a LIBOR Market Loan
determines), which determination shall be conclusive, and notify (or
notifies, as the case may be) the Administrative Agent that the
relevant rates of interest referred to in the definition of "Fixed Base
Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans (or LIBOR Market Loans, as the case may
be) for such Interest Period is to be determined are not likely
adequately to cover the cost to such Banks (or to such quoting Bank) of
making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Company and each Bank prompt notice
thereof and, so long as such condition remains in effect, the Banks (or such
quoting Bank) shall be under no obligation to make additional Eurodollar Loans.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its lending
office to honor its obligation to make Eurodollar Loans or LIBOR Market Loans
hereunder (and, in the sole opinion of such Bank, the designation of a different
lending office would either not avoid such unlawfulness or would be
disadvantageous to such Bank), then such Bank shall promptly notify the Company
thereof (with a copy to the Administrative Agent) and such Bank's obligation to
make Eurodollar Loans shall be suspended until such time as such Bank may again
make Eurodollar Loans (in which case the provisions of Section 5.04 hereof shall
be applicable), and such Bank shall no longer be
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obligated to make any LIBOR Market Loan that it has offered to make.
5.04 Treatment of Affected Loans. If the obligation of any
Bank to make a Eurodollar Loan shall be suspended pursuant to Section 5.01 or
5.03 hereof, such Bank's Eurodollar Loans shall be made instead as Alternate
Base Rate Loans and, if such Bank has Eurodollar Loans outstanding, each such
Eurodollar Loan shall be converted to an Alternate Base Rate Loan on such date
prior to the last day of the Interest Period for such Eurodollar Loan as such
Bank may specify to the Company with a copy to the Administrative Agent, and to
the extent that such Bank's Eurodollar Loans have been so converted, all
payments and prepayments of principal that would otherwise be applied to such
Bank's Eurodollar Loans shall be applied instead to its Alternate Base Rate
Loans.
5.05 Compensation. The Company shall pay to the Administrative
Agent for account of each Bank, upon the request of such Bank through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any loss, cost or expense
that such Bank determines is attributable to:
(a) any payment or prepayment of a Fixed Rate Loan or a Set
Rate Loan made by such Bank for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9 hereof)
on a date other than the last day of the Interest Period for such Loan;
or
(b) any failure by the Company for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 6 hereof to be satisfied) to borrow a Fixed Rate
Loan or a Set Rate Loan (with respect to which, in the case of a Money
Market Loan, the Company has accepted a Money Market Quote) from such
Bank on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 or 2.03(b) hereof;
provided, however, that such Bank shall have delivered to the Company a
certificate as to the amount of such loss, cost or expense, which certificate
shall be conclusive, provided that the determination of such compensation is
made on a reasonable basis.
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Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid or
not borrowed for the period from the date of such payment, prepayment or failure
to borrow to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the amount of interest
that otherwise would have accrued on such principal amount at a rate per annum
equal to the interest component of the amount such Bank would have bid in the
London interbank market (if such Loan is a Eurodollar Loan or a LIBOR Market
Loan) or the United States secondary certificate of deposit market (if such Loan
is a Set Rate Loan) for Dollar deposits of leading banks in amounts comparable
to such principal amount and with maturities comparable to such period (as
reasonably determined by such Bank), or if such Bank shall cease to make such
bids, the equivalent rate, as reasonably determined by such Bank, derived from
Telerate Access Service Page 3750 (British Bankers Association Settlement Rate)
or other publicly available source as described in the definition of "Fixed Base
Rate" in Section 1.01 hereof).
5.06 U.S. Taxes.
(a) The Company agrees to pay to each Bank that is not a U.S.
Person such additional amounts as are necessary in order that the net payment of
any amount due to such non-U.S. Person hereunder after deduction for or
withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Bank hereunder unless such Bank is,
on the date hereof (or on the date it becomes a Bank hereunder as
provided in Section 11.06(b) hereof) and on the date of any change in
the lending office of such Bank, either entitled to submit a Form 1001
(relating to such Bank and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect
of the Loans) or Form 4224 (relating to all
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interest to be received by such Bank hereunder in respect of the
Loans); provided that it being understood that, if thereafter as a
result of any change in law or regulation such Bank becomes unable to
submit the Form previously submitted, the foregoing obligation to pay
such additional amounts shall apply; or
(ii) to any U.S. Taxes imposed solely by reason of the failure
by such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning
the nationality, residence, identity or connections with the United
States of America of such non-U.S. Person if such compliance is
required by statute or regulation of the United States of America as a
precondition to relief or exemption from such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "U.S. Person" shall mean a
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"U.S. Taxes" shall mean any present or future tax, assessment or other charge or
levy imposed by or on behalf of the United States of America or any taxing
authority thereof or therein, (C) "Form 1001" shall mean Form 1001 (Ownership,
Exemption, or Reduced Rate Certificate) of the Department of the Treasury of the
United States of America and (D) "Form 4224" shall mean Form 4224 (Exemption
from Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of the Treasury of the
United States of America (or in relation to either such Form such successor and
related forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which such
Form relates). Each of the Forms referred to in the foregoing clauses (C) and
(D) shall include such successor and related forms as may from time to time be
adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the
Administrative Agent or any Bank from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law to
remit such deduction or withholding to any relevant taxing or other authority,
the Company shall deliver to
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the Administrative Agent for delivery to such non-U.S. Person evidence
satisfactory to such Person of such deduction, withholding or payment (as the
case may be).
5.07 Replacement of Banks. If any Bank requests compensation
pursuant to Section 5.01 or 5.06 hereof, or any Bank's obligation to make
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof (any
such Bank requesting such compensation, or whose obligations are so suspended,
being herein called a "Requesting Bank"), the Company, upon three Business Days
notice, may require that such Requesting Bank transfer all of its right, title
and interest under this Agreement and such Requesting Bank's Notes to any bank
or other financial institution (a "Proposed Bank") identified by the Company
that is satisfactory to the Administrative Agent in its reasonable determination
(i) if such Proposed Bank agrees to assume all of the obligations of such
Requesting Bank hereunder, and to purchase all of such Requesting Bank's Loans
hereunder for consideration equal to the aggregate outstanding principal amount
of such Requesting Bank's Loans, together with interest thereon to the date of
such purchase, and satisfactory arrangements are made for payment to such
Requesting Bank of all other amounts payable hereunder to such Requesting Bank
on or prior to the date of such transfer (including any fees accrued hereunder
and any amounts that would be payable under Section 5.05 hereof as if all of
such Requesting Bank's Loans were being prepaid in full on such date) and (ii)
if such Requesting Bank has requested compensation pursuant to Section 5.01 or
5.06 hereof, such Proposed Bank's aggregate requested compensation, if any,
pursuant to said Section 5.01 or 5.06 with respect to such Requesting Bank's
Loans is lower than that of the Requesting Bank. Subject to the provisions of
Section 11.06(b) hereof, such Proposed Bank shall be a "Bank" for all purposes
hereunder, provided that no such Proposed Bank shall as a result of such
purchase hold more than 25% of the aggregate amount of the Commitments. Without
prejudice to the survival of any other agreement of the Company hereunder the
agreements of the Company contained in Sections 5.01, 5.06 and 11.03 hereof
(without duplication of any payments made to such Requesting Bank by the Company
or the Proposed Bank) shall survive for the benefit of such Requesting Bank
under this Section 5.07 with respect to the time prior to such replacement.
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Section 6. Conditions Precedent.
6.01 Initial Loan. The obligation of any Bank to make its
initial Loan hereunder is subject to the conditions precedent that the
Administrative Agent shall have received the following documents (with, in the
case of clauses (a), (b), (c) and (d) below, sufficient copies for each Bank),
each of which shall be satisfactory to the Administrative Agent (and to the
extent specified below, to each Bank) in form and substance:
(a) Corporate Documents. Certified copies of the charter and
by-laws (or equivalent documents) of the Company and of all corporate
authority for the Company (including, without limitation, board of
director resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution, delivery and
performance of this Agreement and the Notes and each other document to
be delivered by the Company from time to time in connection herewith
and the Loans hereunder (and the Administrative Agent and each Bank may
conclusively rely on such certificate until it receives notice in
writing from the Company to the contrary).
(b) Officer's Certificate. A certificate of a senior officer
of the Company, dated the date hereof, to the effect set forth in the
first sentence of Section 6.02 hereof.
(c) Opinion of Counsel to the Company. An opinion, dated the
date hereof, of ▇▇▇▇▇▇ Pepper & Shefelman, counsel to the Company,
substantially in the form of Exhibit B hereto and covering such other
matters as the Administrative Agent or any Bank may reasonably request
(and the Company hereby instructs such counsel to deliver such opinion
to the Banks and the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase. An opinion,
dated the date hereof, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New
York counsel to Chase, substantially in the form of Exhibit C hereto
(and Chase hereby instructs such counsel to deliver such opinion to the
Banks).
(e) Notes. The Notes, duly completed and executed for each
Bank.
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(f) Other Documents. Such other documents as the
Administrative Agent or any Bank or special New York counsel to Chase
may reasonably request.
The obligation of any Bank to make its initial Loan hereunder is also subject to
the payment by the Company of such fees as the Company shall have agreed to pay
or deliver to any Bank or the Administrative Agent in connection herewith,
including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to Chase, in connection with
the negotiation, preparation, execution and delivery of this Agreement and the
Notes and the making of the Loans hereunder (to the extent that statements for
such fees and expenses have been delivered to the Company).
6.02 Initial and Subsequent Loans. The obligation of any Bank
to make any Loan (including any Money Market Loan and such Bank's initial
Syndicated Loan) to the Company upon the occasion of each borrowing hereunder is
subject to the further conditions precedent that, both immediately prior to the
making of such Loan and also after giving effect thereto and to the intended use
thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in
Section 7 hereof (except, in the case of any borrowing that does not
increase the total principal amount of the Loans outstanding of any
Bank, the representations and warranties in Sections 7.03, 7.07 or 7.12
hereof) shall be true and complete on and as of the date of the making
of such Loan with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific
date).
Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the preceding sentence
(both as of the date of such notice and, unless the Company otherwise notifies
the Administrative Agent prior to the date of such borrowing, as of the date of
such borrowing).
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Section 7. Representations and Warranties. The Company
represents and warrants to the Administrative Agent and the Banks that:
7.01 Corporate Existence. Each of the Company and its
Subsidiaries (except Non-Material Subsidiaries): (a) is a corporation,
partnership or other entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization; (b) has all
requisite corporate or other power, and has all material governmental licenses,
authorizations, consents and approvals, necessary to own its assets and carry on
its business as now being or as proposed to be conducted, except where the
failure to have any such license authorization, consent or approval would not
have a Material Adverse Effect; and (c) is qualified to do business and is in
good standing in all jurisdictions in which the nature of the business conducted
by it makes such qualification necessary and where failure so to qualify could
(either individually or in the aggregate) have a Material Adverse Effect.
7.02 Financial Condition.
(a) The Company has heretofore furnished to each of the Banks
the consolidated statement of financial position of the Company and its
Subsidiaries as at December 31, 1995 and the related consolidated statements of
income, stockholders' equity and cash flows of the Company and its Subsidiaries
for the fiscal year ended on said date, with the opinion thereon of Deloitte &
Touche LLP, and the unaudited consolidated statement of financial position of
the Company and its Subsidiaries as at September 30, 1996 and the related
consolidated statements of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for the nine-month period ended on such date. All
such financial statements present fairly, in all material respects, the
consolidated financial position of the Company and its Subsidiaries as at said
dates, and the consolidated results of operations for the fiscal year and
nine-month period ended on said dates (subject, in the case of such financial
statements as at September 30, 1996, to normal year-end audit adjustments), all
in accordance with generally accepted accounting principles and practices
applied on a consistent basis. From December 31, 1995 until the date of this
Agreement, there has been no material adverse change in the consolidated
financial condition, operations, business or prospects taken as a whole of the
Company
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and its Subsidiaries from that set forth in said financial statements as at said
date.
(b) The Company has heretofore furnished to each of the Banks
the "Reports of Condition and Income" (report no. FFIEC 032) of each Insured
Subsidiary as at September 30, 1996 for the three fiscal quarters ended on said
date. Such report presents fairly, in all material respects, the financial
condition of such Insured Subsidiary as at said date and the results of its
operations for the nine-month period ended on said date, all in accordance with
regulatory accounting principles prescribed by Federal Financial Institutions
Examination Council.
(c) The Company has heretofore furnished to each of the Banks
the Statements of Condition and Operations (Office of Thrift Supervision Form
1313) for each Insured Subsidiary as of September 1996. Such statements present
fairly, in all material respects, the financial condition of each such Insured
Subsidiary as of September 1996 and the results of its operations for the
nine-month period ended on said date, all in accordance with Office of Thrift
Supervision instructions.
(d) The Company has heretofore furnished to each of the Banks
the consolidated balance sheet of Keystone Holdings, Inc., a Texas corporation
("Keystone") and its Subsidiaries as at December 31, 1995 and the related
consolidated statements of earnings, stockholder's equity and cash flows of
Keystone and its Subsidiaries for the fiscal year ended on said date, with the
opinion thereon of KPMG Peat Marwick LLP, and the unaudited condensed balance
sheet of Keystone and its Subsidiaries as at June 30, 1996 and the related
condensed consolidated statements of earnings, stockholder's equity and cash
flows of Keystone and its Subsidiaries for the six-month period ended on such
date. All such financial statements present fairly, in all material respects,
the consolidated financial position of Keystone and its Subsidiaries as at said
dates, and the consolidated results of operations for the fiscal year and
six-month period ended on said dates (subject in the case of such financial
statements as at June 30, 1996, to normal year-end audit adjustments), all in
accordance with generally accepted accounting principles and practices applied
on a consistent basis. From December 31, 1995 until the date of this Agreement,
there has been no material adverse change in the consolidated financial
position, operations, business or prospects taken as a whole of Keystone
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and its Subsidiaries from that set forth in said financial statements as at said
date.
7.03 Litigation. Except as disclosed to the Banks in Schedule
III hereto, there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of the Company) threatened against the Company or any of its
Subsidiaries that are reasonably likely (either individually or in the
aggregate) to have a Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of this
Agreement and the Notes, the consummation of the transactions herein
contemplated or compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent under, the charter or
by-laws of the Company, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which any of them or any of their Property is bound or to which any
of them is subject, or constitute a default under any such agreement or
instrument.
7.05 Action. The Company has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement and the Notes; the execution, delivery and performance by the
Company of this Agreement and the Notes have been duly authorized by all
necessary corporate action on its part (including, without limitation, any
required shareholder approvals); and this Agreement has been duly and validly
executed and delivered by the Company and constitutes, and each of the Notes
when executed and delivered for value will constitute, its legal, valid and
binding obligation, enforceable against the Company 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).
7.06 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency, or any securities exchange, are necessary for the execution, delivery
or
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performance by the Company of this Agreement or the Notes or for the legality,
validity or enforceability hereof or thereof.
7.07 ERISA. Each Plan, and, to the knowledge of the Company,
each Multiemployer Plan, is in compliance in all respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law (except where
failure so to comply would not have a Material Adverse Effect), and no event or
condition has occurred and is continuing as to which the Company would be under
an obligation to furnish a report to the Banks under Section 8.01(g) hereof.
7.08 Taxes. The Company and its Subsidiaries are members of an
affiliated group of corporations filing consolidated returns for Federal income
tax purposes, of which the Company is the "common parent" (within the meaning of
Section 1504 of the Code) of such group. The Company and its Subsidiaries have
filed all Federal income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
Subsidiaries, except for any such tax being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained. The
charges, accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion of the
Company, adequate.
7.09 Investment Company Act. Neither the Company nor any of
its Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.10 Public Utility Holding Company Act. Neither the Company
nor any of its Subsidiaries is a "holding company", or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
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7.11 Material Agreements and Liens.
(a) Part A of Schedule I hereto 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, the Company or any of its Subsidiaries
(excluding Repurchase Arrangements, deposits, annuities or Federal funds
transactions, each entered into by the Company or a Subsidiary in the ordinary
course of its business, and Interest Rate Protection Agreements or borrowings
from the Federal Home Loan Bank), outstanding on the date of this Agreement 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 said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list
of each Lien securing Indebtedness of any Person outstanding on the date of this
Agreement (excluding Repurchase Arrangements, deposits, annuities or Federal
funds transactions, each entered into by the Company or a Subsidiary in the
ordinary course of its Business, and Interest Rate Protection 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 Property of the Company or any of its 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 said
Schedule I.
7.12 Environmental Matters. Each of the Company and its
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except to the extent
failure to have any such permit, license or authorization would not (either
individually or in the aggregate) have a Material Adverse Effect.
7.13 Subsidiaries. Set forth in Schedule II hereto is a
complete and correct list of all of the Subsidiaries of the Company as of the
date of this Agreement together with, for each
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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 Schedule II hereto, (x) each of the Company 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
Schedule II hereto, (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.
7.14 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Company to the Administrative Agent or any Bank in connection with
the negotiation, preparation or delivery of this Agreement or included herein or
delivered pursuant hereto, when taken as a whole (together with the Information
Memorandum) do not, as of the date of this Agreement, contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements herein or therein, in light of the circumstances under which they
were made, not misleading. All written information furnished after the date of
this Agreement by the Company and its Subsidiaries to the Administrative Agent
and the Banks in connection with this Agreement and the transactions
contemplated hereby will be true, complete and accurate in every material
respect, or (in the case of projections) made in good faith and based on
estimates believed by management to be reasonable, on the date as of which such
information is stated or certified. There is no fact known to the Company that
could have a Material Adverse Effect that has not been disclosed herein or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Banks for use in connection with the transactions
contemplated hereby.
Section 8. Covenants of the Company. The Company covenants and
agrees with the Banks and the Administrative Agent that, so long as any
Commitment or Loan is outstanding and until payment in full of all amounts
payable by the Company hereunder:
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8.01 Financial Statements Etc. The Company shall deliver to
each of the Banks:
(a) as soon as available and in any event within 60 days after
the end of each quarterly fiscal period of each fiscal year of the
Company, consolidated statements of income, stockholders' equity and
cash flows of the Company and its Subsidiaries for such period and for
the period from the beginning of the respective fiscal year to the end
of such period, and the related consolidated statements of financial
position of the Company and its Subsidiaries as at the end of such
period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding periods in the
preceding fiscal year (except that, in the case of statements of
financial position, such comparison shall be to the last day of the
prior fiscal year), accompanied by a certificate of a senior financial
officer of the Company, which certificate shall state that said
consolidated financial statements present fairly, in all material
respects, the consolidated financial position and results of operations
of the Company and its Subsidiaries, in accordance with generally
accepted accounting principles, consistently applied, as at the end of,
and for, such period (subject to normal year-end audit adjustments) (it
being understood that delivery to the Bank of the Company's Report on
Form 10-Q filed with the SEC shall satisfy the financial statement
requirements of this Section 8.01(a) so long as the information
required to be contained in such Report is substantially the same as
that required under this Section 8.01(a));
(b) as soon as available and in any event within 105 days
after the end of each fiscal year of the Company, consolidated
statements of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for such fiscal year and the related
consolidated statements of financial position of the Company and its
Subsidiaries as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding consolidated figures for the
preceding fiscal year, and accompanied by an opinion thereon of
Deloitte & Touche, LLP or independent certified public accountants of
recognized national standing, which opinion shall state that said
consolidated financial statements present fairly, in all material
respects, the
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consolidated financial position and results of operations of the
Company and its Subsidiaries as at the end of, and for, such fiscal
year in accordance with generally accepted accounting principles, 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 the Company was not in
compliance with Section 8.10 hereof, insofar as such Section relates to
accounting matters (it being understood that delivery to the Bank of
the Company's Report on Form 10-K filed with the SEC shall satisfy the
financial statement requirements of this Section 8.01(b) so long as the
information required to be contained in such Report is substantially
the same as that required under this Section 8.01(b));
(c) promptly upon their becoming available, and in any event
within 60 days after the end of each quarterly fiscal period of each
fiscal year of the Company, the "Reports of Condition and Income"
(report no. FFIEC 032, or any successor form thereto) of each Insured
Subsidiary as is required to file such report, all such reports
prepared in accordance with regulatory accounting principles prescribed
by the Federal Financial Institutions Examination Council;
(d) promptly upon their becoming available, and in any event
within 60 days after the end of each quarterly fiscal period the
Statements of Condition and Operations, including all supporting
schedules (Office of Thrift Supervision Form 1313, or any successor
form thereto) for each Insured Subsidiary that is required to file such
statements, all such statements prepared in accordance with Office of
Thrift Supervision instructions.
(e) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Company shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange or the Office of Thrift Supervision;
(f) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
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(g) within ten days after the Company knows or has reason to
believe that any of the events or conditions specified below with
respect to any Plan or Multiemployer Plan has occurred or exists, a
statement signed by a senior financial officer of the Company setting
forth details respecting such event or condition and the action, if
any, that the Company or its ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be
filed with or given to the PBGC by the Company or an ERISA Affiliate
with respect to such event or condition):
(i) any reportable event, as defined in Section
4043(c) of ERISA and the regulations issued thereunder, with
respect to a Plan, that is required to be reported to the PBGC
and as to which the PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event (provided that
a failure to meet the minimum funding standard of Section 412
of the Code or Section 302 of ERISA, including, without
limitation, the failure to make on or before its due date a
required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); and any request for a waiver
under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken
by the Company or an ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Company or any ERISA Affiliate that
results in liability under Section 4201
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or 4204 of ERISA (including the obligation to satisfy
secondary liability as a result of a purchaser default) or the
receipt by the Company or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Company or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is
not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if the Company or an ERISA
Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections;
(h) promptly after the Company knows or has reason to believe
that any Default has occurred, a notice of such Default describing the
same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Company
has taken or proposes to take with respect thereto; and
(i) from time to time such other information regarding the
financial condition, operations, business or prospects of the Company
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Bank or the Administrative Agent may
reasonably request.
The Company will furnish to each Bank, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
senior financial officer of the Company (i) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Company has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Company is in compliance with
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Sections 8.06(g), 8.09 and 8.10 hereof as of the end of the respective quarterly
fiscal period or fiscal year.
8.02 Litigation. The Company will promptly give to each Bank
notice of all legal or arbitral proceedings, and of all proceedings by or before
any governmental or regulatory authority or agency, and any material development
in respect of such legal or other proceedings, affecting the Company or any of
its Subsidiaries, except proceedings that are not (either individually or in the
aggregate) reasonably likely to have a Material Adverse Effect.
8.03 Existence, Etc. The Company will, and will cause each of
its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 8.03 shall (i) with respect to the Company or
any Significant Subsidiary (as defined in Section 8.05 hereof),
prohibit any transaction expressly permitted under Section 8.05 hereof
or (ii) with respect to any Subsidiary (other than a Significant
Subsidiary), prohibit such Subsidiary 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 (as defined in Section 8.05 hereof) by or of
such Subsidiary);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements could (either individually
or in the aggregate) have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto (or
in the case of any Person that becomes a Subsidiary after the date
hereof by Acquisition promptly upon becoming aware of penalties
attaching thereto), except for any such tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained;
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(d) maintain all of its material Properties used or useful in
its business in good working order and condition, ordinary wear and
tear excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
(f) permit representatives of any Bank or the Administrative
Agent, during normal business hours, to examine, copy and make extracts
from its books and records (subject to Section 11.12 hereof), to
inspect any of its Properties, and to discuss its business and affairs
with its officers, all to the extent reasonably requested by such Bank
or the Administrative Agent (as the case may be).
8.04 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations.
8.05 Prohibition of Fundamental Changes. The Company will not,
nor will it permit any of its Significant Subsidiaries to, enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution).
The Company will not, nor will it permit any of its
Significant Subsidiaries to, convey, sell, lease, transfer or otherwise dispose
of (a "Disposition"), in one transaction or a series of transactions, all or
substantially all of its Property, whether now owned or hereafter acquired (for
which purpose, the Disposition of all or substantially all of the capital stock
of a Significant Subsidiary of the Company shall be deemed to be the Disposition
by such Significant Subsidiary of all or substantially all of the Property of
such Significant Subsidiary).
Notwithstanding the foregoing provisions of this Section 8.05:
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(a) any Significant Subsidiary of the Company may be merged or
consolidated with or into: (i) the Company if the Company shall be the
continuing or surviving corporation or (ii) any other Subsidiary of the
Company; provided that (x) if any such transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary
shall be the continuing or surviving corporation;
(b) any Significant Subsidiary of the Company may make a
Disposition of any or all of its Property (upon voluntary liquidation
or otherwise) to the Company or a Wholly-Owned Subsidiary of the
Company; and
(c) the Company or any Significant Subsidiary of the Company
may merge or consolidate with any other Person if (i) in the case of a
merger or consolidation of the Company, the Company 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 the Company and (ii) after giving effect thereto no
Default would exist hereunder.
For purposes of this Section 8.05, "Significant Subsidiary" shall mean, at any
time, any Subsidiary of the Company if, at such time, such Subsidiary would
qualify as a "significant subsidiary" of the Company under Regulation S-X of the
SEC as in effect on the date hereof.
8.06 Limitation on Liens. The Company will not create, incur,
assume or suffer to exist any Lien upon any of its Property, whether now owned
or hereafter acquired, except:
(a) Liens in existence on the date hereof and listed in Part B
of Schedule I hereto;
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is
not material with respect to it or its financial condition, adequate
reserves with respect thereto are maintained on the books of the
Company or the affected Subsidiaries, as the case may be, in accordance
with GAAP;
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(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and
Liens securing judgments but only to the extent for an amount and for a
period not resulting in an Event of Default under Section 9(m) hereof;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries;
(g) Liens upon real and/or tangible personal Property acquired
after the date hereof (by purchase, construction or otherwise) by the
Company each of which Liens either (A) existed on such Property before
the time of its acquisition and was not created in anticipation thereof
or (B) was created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost
(including the cost of construction) of such Property; provided that
(i) no such Lien shall extend to or cover any Property of the Company
or such Subsidiary other than the Property so acquired and improvements
thereon and (ii) the principal amount of Indebtedness secured by any
such Lien shall at no time exceed 80% of the fair market value (as
determined in good faith by a senior financial officer of the Company)
of such Property at the time it was acquired (by purchase, construction
or otherwise);
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(h) Liens arising out of Repurchase Arrangements;
(i) Liens arising out of or securing Interest Rate
Protection Agreements; and
(j) Liens arising out of Asset Securitizations.
8.07 Lines of Business. The Company 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 (a) the business of owning and
operating a depository institution (as defined in 12 U.S.C.
Section.1461(b)(1)(A)), a consumer finance company, a mortgage company, an
insurance company, a trust company, an investment advisor or a securities
broker-dealer, (b) the business of providing other financial services or (c) any
business that may be engaged in by a Washington state chartered savings bank (as
defined in RCW 32.04.020) or a Federal savings association (as defined in 12
U.S.C. Section.1462(5)) or a Subsidiary of any of them.
8.08 Use of Proceeds. The Company will use the proceeds of the
Loans hereunder solely for general corporate purposes, including commercial
paper back-up (in compliance with all applicable legal and regulatory
requirements, including, without limitation, Regulations G, U and X and the
Securities Act of 1933 and the Securities Exchange Act of 1934 and the
regulations thereunder); provided that, without the consent of each Bank, the
Company 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 the Company 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 Bank shall have
any responsibility as to the use of any of such proceeds.
8.09 Adequate Capitalization. The Company shall assure that
each Insured Subsidiary shall be adequately capitalized at all times. For
purposes of this Section 8.09,
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"adequately capitalized" shall have the meaning assigned such term by Section 38
of the Federal Deposit Insurance Act, as amended or any successor act thereto.
8.10 Certain Financial Covenants.
(a) Double Leverage Ratio. The Company will not permit at any
time its Double Leverage Ratio to be greater than 1.25 to 1.00.
(b) Ratio of Consolidated Equity to Consolidated Assets. The
Company will not permit at any time its ratio of Consolidated Equity to
Consolidated Assets to be less than 0.05 to 1.00.
(c) Minimum Tangible Net Worth. The Company will not permit at
any time its Tangible Net Worth to be less than the Base Minimum
Tangible Net Worth plus the sum of 50% of the net income of the Company
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
the Company ending after the date as of which the Base Minimum Tangible
Net Worth is determined as set forth below. For purposes of this
Section 8.10(c), "Base Minimum Tangible Net Worth" shall mean
$1,151,250,000, which amount was determined as of September 30, 1996;
provided that if the Company shall acquire American Savings, "Base
Minimum Tangible Net Worth" shall mean 75% of the Tangible Net Worth of
the Company and its Subsidiaries determined as of, and after giving
effect to, the Acquisition of American Savings.
(d) Maximum Non-Performing Assets. The Company will not permit
at any time its Non-Performing Assets to constitute more than 4% of the
Company's Consolidated Assets.
(e) Minimum Equity and Reserves. The Company will not permit
at any time its Consolidated Equity plus Consolidated Reserves to be
less than 300% of its Non-Performing Assets.
Section 9. Events of Default. If one or more of the following
events (herein called "Events of Default") shall occur and be continuing:
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(a) The Company shall: (i) default in the payment of any
principal of any Loan when due (whether at stated maturity or at
mandatory or optional prepayment); or (ii) default in the payment of
any interest on any Loan, any fee or any other amount payable by it
hereunder when due and such default shall have continued unremedied for
three or more Business Days; or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness aggregating $25,000,000 or more; or any event
specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the
effect of such event is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset
to a level so that securities evidencing such Indebtedness trade at a
level specified in relation to the par value thereof; or the Company
shall default in the payment when due of any amount aggregating
$25,000,000 or more under any Interest Rate Protection Agreement; or
any event specified in any Interest Rate Protection Agreement shall
occur if the effect of such event is to cause, or to permit,
termination or liquidation payment or payments aggregating $25,000,000
or more to become due; or
(c) Any representation, warranty or certification made or
deemed made herein (or in any modification or supplement hereto) by the
Company, or any certificate furnished to any Bank or the Administrative
Agent pursuant to the provisions hereof, shall prove to have been false
or misleading as of the time made or furnished in any material respect;
or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 8.01(h), 8.05, 8.06, 8.08, 8.09 or
8.10 hereof; or the Company shall default in the performance of any of
its other obligations in this Agreement and such default shall continue
unremedied for a period of thirty or more days after notice thereof to
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the Company by the Administrative Agent or any Bank (through the
Administrative Agent); or
(e) The Company or any of its Subsidiaries (other than a
Non-Material Subsidiary) shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) The Company or any of its Subsidiaries (other than a
Non-Material Subsidiary) shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the benefit of
its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of the Company or any of its Subsidiaries (other
than a Non-Material Subsidiary), in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its
debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of the Company or such Subsidiary or
of all or any substantial part of its Property or (iii) similar relief
in respect of the Company or such Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against the
Company or such Subsidiary shall be entered in an involuntary case
under the Bankruptcy Code; or
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(h) The Company 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 the
Company and its Subsidiaries taken as a whole; or any Bank Regulatory
Authority shall issue a cease and desist order to or in respect of the
Company or any of its Subsidiaries; or
(i) Any Insured Subsidiary shall cease accepting deposits or
making 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; or
(j) Any Bank Regulatory Authority shall notify any Insured
Subsidiary that such Insured Subsidiary's capital stock has become
impaired; or any Insured Subsidiary shall cease to be an insured bank
under the Federal Deposit Insurance Act, as amended, and the rules and
regulations promulgated thereunder; or
(k) 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
(l) The Company 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; or
(m) A final judgment or judgments for the payment of money of
$25,000,000 or more in the aggregate (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted liability in
respect of such judgment) or of $75,000,000 or more in the aggregate
(regardless of insurance coverage) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Company or any of its Subsidiaries and the same shall not
be discharged or paid (or provision shall not be
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made for such discharge or payment), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof
and the Company or the relevant Subsidiary shall not, within said
period of 30 days, or such longer period during which execution of the
same shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(n) An event or condition specified in Section 8.01(g) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, the Company or any ERISA Affiliate shall
incur or in the opinion of the Majority Banks shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan or the PBGC
(or any combination of the foregoing) that, in the determination of the
Majority Banks, would (either individually or in the aggregate) have a
Material Adverse Effect; or
(o) A Change in Control shall occur;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9 with respect to the Company, (A) the
Administrative Agent may and, upon request of the Majority Banks, will, by
notice to the Company, terminate the Commitments and they shall thereupon
terminate, and (B) the Administrative Agent may and, upon request of the Banks
holding more than 50% of the aggregate unpaid principal amount of the Loans
shall, by notice to the Company declare the principal amount then outstanding
of, and the accrued interest on, the Loans and all other amounts payable by the
Company hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05 hereof) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company; and (2) in the case of the occurrence of
an Event of Default referred to in clause (f) or (g) of this Section 9 with
respect to the Company, the Commitments shall automatically be terminated and
the principal amount then outstanding of, and the accrued interest on, the Loans
and all other amounts payable by the Company hereunder and under the Notes
(including, without limitation, any amounts payable under Section 5.05 hereof)
shall automatically become immediately due and payable without
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presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company.
Section 10. The Administrative Agent.
10.01 Appointment, Powers and Immunities. Each Bank hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
with such powers as are specifically delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 10.05 and the first sentence of Section 10.06 hereof
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this
Agreement be a trustee for any Bank;
(b) shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, any Note or any other document referred to or provided
for herein or for any failure by the Company or any other Person to
perform any of its obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or in connection herewith, except
for its own gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of
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a Note as the holder thereof for all purposes hereof unless and until a notice
of the assignment or transfer thereof shall have been filed with the
Administrative Agent, together with the consent of the Company to such
assignment or transfer (to the extent required by Section 11.06(b) hereof).
10.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including, without limitation, any thereof by telephone,
telecopy, telegram or cable) reasonably believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent. As to any matters not
expressly provided for by this Agreement, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions given by the Majority Banks, and such instructions
of the Majority Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
10.03 Defaults. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Bank or the Company specifying
such Default and stating that such notice is a "Notice of Default". In the event
that the Administrative Agent receives such a notice of the occurrence of a
Default, the Administrative Agent shall give prompt notice thereof to the Banks.
The Administrative Agent shall (subject to Section 10.07 hereof) take such
action with respect to such Default as shall be directed by the Majority Banks,
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Banks except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Majority
Banks or all of the Banks.
10.04 Rights as a Bank. With respect to its Commitment and the
Loans made by it, Chase (and any successor acting as Administrative Agent) in
its capacity as a Bank hereunder shall have the same rights and powers hereunder
as any
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other Bank and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. Chase (and any successor acting as Administrative Agent) and its
affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to, make investments in and generally engage in any kind of
banking, trust or other business with the Company (and any of its Subsidiaries
or affiliates) as if it were not acting as the Administrative Agent, and Chase
(and any such successor) and its affiliates may accept fees and other
consideration from the Company for services in connection with this Agreement or
otherwise without having to account for the same to the Banks.
10.05 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 11.03 hereof,
but without limiting the obligations of the Company under said Section 11.03)
ratably in accordance with their respective Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Administrative Agent (including
by any Bank) arising out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other documents contemplated
by or referred to herein or the transactions contemplated hereby (including,
without limitation, the costs and expenses that the Company is obligated to pay
under Section 11.03 hereof, but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof or
of any such other documents, provided that no Bank shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
10.06 Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and its Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the Administrative Agent or any
other Bank, and based on such documents and information as
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it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement or any other document
referred to or provided for herein or to inspect the Properties or books of the
Company or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Company or any of
its Subsidiaries (or any of their affiliates) that may come into the possession
of the Administrative Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required of
the Administrative Agent hereunder, the Administrative Agent shall in all cases
be fully justified in failing or refusing to act hereunder unless it shall
receive further assurances to its satisfaction from the Banks of their
indemnification obligations under Section 10.05 hereof against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
10.08 Resignation or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Company, and the Administrative Agent may be
removed at any time with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor Administrative Agent, after consultation with the Company (unless an
Event of Default shall have occurred and is continuing). If no successor
Administrative Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Majority Banks'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, after consultation with the Company (unless
an Event of Default shall have occurred and is continuing) appoint a successor
Administrative Agent, that shall be a bank that has an office in New York, New
York. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor
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Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 10 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Administrative
Agent or any Bank to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement or
any Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
The Company irrevocably waives, to the fullest extent
permitted by applicable law, any claim that any action or proceeding commenced
by the Administrative Agent or any Bank relating in any way to this Agreement
should be dismissed or stayed by reason, or pending the resolution, of any
action or proceeding commenced by the Company relating in any way to this
Agreement whether or not commenced earlier. To the fullest extent permitted by
applicable law, the Company shall take all measures necessary for any such
action or proceeding commenced by the Administrative Agent or any Bank to
proceed to judgment prior to the entry of judgment in any such action or
proceeding commenced by the Company.
11.02 Notices. All notices, requests and other communications
provided for herein (including, without limitation, any modifications of, or
waivers, requests or consents under, this Agreement) shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, or with respect to notices given pursuant
to Section 2.03 hereof, by telephone,
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confirmed in writing by telecopier by the close of business on the day the
notice is given, as follows:
(a) if to the Company, to it at Washington Mutual, Inc., ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(Telecopy No. 206-554-5954);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Agent Bank Services Group, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy No. (212)
270-1789);
(c) if to any other Bank, 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. Except as
otherwise provided in this Agreement, 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.
11.03 Expenses, Etc. The Company agrees to pay or reimburse
each of the Banks and the Administrative Agent for: (a) all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
special New York counsel to Chase) in connection with (i) the negotiation,
preparation, execution and delivery of this Agreement and the Notes and the
making of the Loans hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this Agreement or any
of the Notes (whether or not consummated); (b) all reasonable out-of-pocket
costs and expenses of the Banks and the Administrative Agent (including, without
limitation, the reasonable fees and expenses of legal counsel and allocated
costs of in-house counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial
77
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or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
11.03; and (c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the Notes or any other document referred to
herein.
The Company hereby agrees to indemnify the Administrative
Agent and each Bank and their respective directors, officers, employees,
attorneys and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any of them
(including, without limitation, any and all losses, liabilities, claims, damages
or expenses incurred by the Administrative Agent to any Bank, whether or not the
Administrative Agent or any Bank is a party thereto) arising out of or by reason
of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
Loans hereunder or any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of the Loans hereunder, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
11.04 Amendments, Etc. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be modified or
supplemented only by an instrument in writing signed by the Company and the
Majority Banks, or by the Company and the Administrative Agent acting with the
consent of the Majority Banks, and any provision of this Agreement may be waived
by the Majority Banks or by the Administrative Agent acting with the consent of
the Majority Banks; provided that: (a) except as provided in Section 2.10
hereof, no modification, supplement or waiver shall, unless by an instrument
signed by all of the Banks or by the Administrative Agent acting with the
consent of all of the Banks: (i) increase or extend the term of the Commitments,
or extend the time or waive any requirement for the reduction or termination of
the Commitments, (ii) extend the date fixed for the payment of principal of or
interest on any Loan or any fee hereunder, (iii) reduce the amount of any such
payment of
78
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principal, (iv) reduce the rate at which interest is payable thereon or any fee
is payable hereunder, (v) alter the rights or obligations of the Company to
prepay Loans, (vi) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied as between the
Banks or Types or Classes of Loans, (vii) alter the terms of this Section 11.04,
(viii) modify the definition of the term "Majority Banks" or modify in any other
manner the number or percentage of the Banks required to make any determinations
or waive any rights hereunder or to modify any provision hereof, or (ix) waive
any of the conditions precedent set forth in Section 6.01 hereof; and (b) any
modification or supplement of Section 10 hereof, or of any of the rights or
duties of the Administrative Agent hereunder, shall require the consent of the
Administrative Agent.
11.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.06 Assignments and Participations.
(a) The Company may not assign any of its rights or
obligations hereunder or under the Notes without the prior consent of all of the
Banks and the Administrative Agent.
(b) Each Bank may assign any of its Loans, its Notes, and its
Commitment (but only with the consent of the Company and the Administrative
Agent, each of which consents will not be unreasonably withheld); provided that
(i) no such consent by the Company or the Administrative Agent
shall be required in the case of any assignment to another Bank or an
affiliate of a Bank;
(ii) except to the extent the Company and the Administrative
Agent shall otherwise consent, any such partial assignment (other than
to another Bank) shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Bank of its Loans, Note or
Commitment shall be made in such manner so that the same portion of its
Loans, Note and Commitment is assigned to the respective assignee;
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(iv) each such assignment shall be effected by an Assignment
and Acceptance in the form of Exhibit G hereto; and
(v) each assignee, if it shall not be a Bank, shall deliver to
the Administrative Agent an Administrative Questionnaire.
Upon execution and delivery by the assignor and the assignee to the Company and
the Administrative Agent (if applicable) of such Assignment and Acceptance, and
upon consent thereto by the Company and the Administrative Agent to the extent
required above and the delivery to the Administrative Agent of the assignee's
completed Administrative Questionnaire, the assignee shall have, to the extent
of such assignment (unless otherwise consented to by the Company and the
Administrative Agent), the obligations, rights and benefits of a Bank hereunder
holding the Commitment and Loans (or portions thereof) assigned to it and
specified in such Assignment and Acceptance (in addition to the Commitment and
Loans, if any, theretofore held by such assignee) and the assigning Bank shall,
to the extent of such assignment, be released from the Commitment (or portion
thereof) so assigned. Upon each such assignment the assigning Bank shall pay the
Administrative Agent an assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
held by it, or in its Commitment, provided that such Participant shall not have
any rights or obligations under this Agreement or any Note (the Participant's
rights against such Bank in respect of such participation to be those set forth
in the agreements executed by such Bank in favor of the Participant). All
amounts payable by the Company to any Bank under Section 5 hereof in respect of
Loans held by it, and its Commitment, shall be determined as if such Bank had
not sold or agreed to sell any participations in such Loans and Commitment, and
as if such Bank were funding each of such Loan and Commitment in the same way
that it is funding the portion of such Loan and Commitment in which no
participations have been sold. In no event shall a Bank that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder except that such Bank may agree with the Participant that it
will not, without the consent of the Participant, agree to (i) increase or
extend the term of such Bank's Commitment, (ii) extend the date fixed for the
payment of principal of or
80
- 76 -
interest on the related Loan or Loans or any portion of any fee hereunder
payable to the Participant, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee or (v) consent to any
modification, supplement or waiver hereof to the extent that the same, under
Section 11.04 hereof, requires the consent of each Bank.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 11.06, any Bank may
(without notice to the Company, the Administrative Agent or any other Bank and
without payment of any fee) (i) assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank
and (ii) assign all or any portion of its rights under this Agreement and its
Loans and its Notes to an affiliate. No such assignment to a Federal Reserve
Bank shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Company
or any of its Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary
notwithstanding, no Bank may assign or participate any interest in any Loan held
by it hereunder to the Company or any of its affiliates or Subsidiaries without
the prior consent of each Bank.
11.07 Survival. The obligations of the Company under Sections
5.01, 5.05, 5.06 and 11.03 hereof, and the obligations of the Banks under
Section 10.05 hereof, shall survive the repayment of the Loans and the
termination of the Commitments and, in the case of any Bank that may assign any
interest in its Commitment or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Bank may cease to be a "Bank"
hereunder. In addition, each representation and warranty made, or deemed to be
made by a notice of any Loan, herein or pursuant hereto shall survive the making
of such representation and warranty, and no Bank shall be deemed to have
81
- 77 -
waived, by reason of making any Loan, any Default that may arise by reason of
such representation or warranty proving to have been false or misleading,
notwithstanding that such Bank or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such Loan was made.
11.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
11.09 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
11.10 Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. The Company hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of the Supreme Court of the State of New York sitting in New York
County (including its Appellate Division), and of any other appellate court in
the State of New York, for the purposes of all legal proceedings arising out of
or relating to this Agreement or the transactions contemplated hereby. The
Company hereby irrevocably waives, to the fullest extent permitted by applicable
law, any objection that it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
11.11 Waiver of Jury Trial. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
82
- 78 -
11.12 Treatment of Certain Information; Confidentiality.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Bank or by one or more subsidiaries or affiliates
of such Bank and the Company hereby authorizes each Bank to share any
information delivered to such Bank by the Company and its Subsidiaries pursuant
to this Agreement, or in connection with the decision of such Bank to enter into
this Agreement, to any such subsidiary or affiliate, it being understood that
any such subsidiary or affiliate receiving such information shall be bound by
the provisions of paragraph (b) below as if it were a Bank hereunder. Such
authorization shall survive the repayment of the Loans and the termination of
the Commitments.
(b) Each Bank and the Administrative Agent agrees (on behalf
of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Company pursuant to this Agreement
that is identified by the Company as being confidential at the time the same is
delivered to the Banks or the Administrative Agent, provided that nothing herein
shall limit the disclosure of any such information (i) after such information
shall have become public (other than through a violation of this Section 11.12),
(ii) to the extent required by statute, rule, regulation or judicial process,
(iii) to counsel for any of the Banks or the Administrative Agent, (iv) to bank
examiners (or any other regulatory authority having jurisdiction over any Bank
or the Administrative Agent), or to auditors or accountants, (v) to the
Administrative Agent or any other Bank (or to Chase Securities, Inc.), (vi) in
connection with any litigation to which any one or more of the Banks or the
Administrative Agent is a party, or in connection with the enforcement of rights
or remedies hereunder, (vii) to a subsidiary or affiliate of such Bank as
provided in paragraph (a) above or (viii) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers to the
respective Bank a
83
- 79 -
Confidentiality Agreement substantially in the form of Exhibit F hereto (or
executes and delivers to such Bank and the Company an acknowledgement to the
effect that it is bound by the provisions of this Section 11.12(b), which
acknowledgement may be included as part of the respective assignment or
participation agreement pursuant to which such assignee or participant acquires
an interest in the Loans hereunder); provided, further, that in no event shall
any Bank or the Administrative Agent be obligated or required to return any
materials furnished by the Company. The obligations of each Bank under this
Section 11.12 shall supersede and replace the obligations of such Bank under the
confidentiality letter in respect of this financing signed and delivered by such
Bank to the Company prior to the date hereof; in addition, the obligations of
any assignee that has executed a Confidentiality Agreement in the form of
Exhibit F hereto shall be superseded by this Section 11.12 upon the date upon
which such assignee becomes a Bank hereunder pursuant to Section 11.06(b)
hereof.
84
- 80 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
WASHINGTON MUTUAL, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
85
- 81 -
BANKS
Commitment THE CHASE MANHATTAN BANK
$12,500,000
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
Commitment BANK OF AMERICA NATIONAL TRUST
$12,500,000 AND SAVINGS ASSOCIATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
Commitment CREDIT LYONNAIS
$12,500,000 SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Vice President
By
--------------------------------
Title:
By
--------------------------------
Title:
Commitment THE FIRST NATIONAL BANK OF CHICAGO
$12,500,000
By /s/ ▇▇▇▇▇▇ ▇. English
--------------------------------
Title: Authorized Agent
Commitment THE BANK OF TOKYO-MITSUBISHI,
$10,000,000 LTD., SEATTLE BRANCH
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- 82 -
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
Commitment MELLON BANK, N.A.
$10,000,000
By /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------
Title: Vice President
Commitment THE BANK OF NEW YORK
$8,750,000
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
Commitment U.S. BANK OF WASHINGTON,
$8,750,000 NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
Commitment THE DAI-ICHI KANGYO BANK,
$6,250,000 LIMITED, SAN FRANCISCO AGENCY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: General Manager & Agent
Commitment KEY BANK OF WASHINGTON
$6,250,000
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
87
- 83 -
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
88
SCHEDULE I
Material Agreements and Liens
Part A - Material Agreements
1. Senior Notes. The Company issued senior unsecured notes under an
Indenture dated August 25, 1995 between the Company and ▇▇▇▇▇▇ Trust
and Savings Bank, as trustee. The notes bear interest at 7.25% and are
limited to $150,000,000 in aggregate principal amount outstanding. The
notes are due on August 15, 2005 and may not be redeemed prior to
maturity.
2. City of Tampa Note. The Company assumed through acquisition of
Pacific First Federal Savings Bank, a federally chartered association
("Pacific First"), a $75,000,000 note payable to the City of Tampa,
Florida (the "Note"). The Note is subject to periodic principal
withdrawals and has a current outstanding principal balance of
$71,716,667. The Note bears interest at 8.16% and matures on October 1,
1998.
Part B - Liens
1. Mortgage Pass-Through Securities. The Company is successor to
Pacific First Bank, A Federal Savings Bank, which was successor to
Pacific First. Pacific First is the named Pledgor under a certain
Collateral Pledge and Maintenance Agreement dated June 23, 1988 (the
"Pledge Agreement") among First Florida Bank, N.A., as trustee on
behalf of the holders of the City of Tampa Capital Improvement Program
Revenue Bonds, as Pledgee; Chemical Bank, as Collateral Agent for
Pledgee and Pacific First. The Bank of New York Trust Company of
Florida, N.A. is the current successor to the rights and obligations of
First Florida Bank, N.A. under the Pledge Agreement.
In accord with Section 3.02(b) of the Pledge Agreement, the
Pledgee maintains, as collateral for the Company's obligations under
the Note payable to the City of Tampa, a first priority and perfected
security interest in certain mortgage pass-through securities owned by
the Company. Under the terms of the Pledge Agreement, these securities
may be substituted from time to time with certain additional
collateral. Such additional collateral must meet or exceed
89
specific value requirements provided for in the Pledge Agreement.
90
SCHEDULE II
Subsidiaries
See attached.
91
Description of Subsidiaries SCHEDULE II
Page 1
LISTING OF SUBSIDIARIES OF WMI
============================================================================================================================
NAME NAME OF STATE OF PERCENT OF
IMMEDIATE PARENT INCORPORATION AFFILIATE
OWNERSHIP*
----------------------------------------------------------------------------------------------------------------------------
Benefit Service Corporation*** WM Financial, Inc. Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Composite Research & Management Co.*** Washington Mutual, Inc. Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Empire Life Insurance Co. WM Life Insurance Co. Nebraska 100%
(domesticated
Washington 12-12-89)
----------------------------------------------------------------------------------------------------------------------------
GNW Land Company** *** Seacoast Management, Inc. Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Mill Maple Properties, Inc.*** Washington Mutual Bank Oregon 100%
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.*** Washington Mutual, Inc. Washington 100%
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Housing Managers, Inc.*** ▇▇▇▇▇▇▇ ▇▇▇▇▇ Washington 100%
Properties, Inc.
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Insurance Services, Inc.*** ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. Idaho 100%
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Properties, Inc.*** WM Financial, Inc. Washington 100%
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Services, Inc.*** ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Olympus Development Company*** Washington Mutual Bank Utah 100%
fsb
----------------------------------------------------------------------------------------------------------------------------
2425 Service Corporation*** Washington Mutual Bank Utah 100%
fsb
----------------------------------------------------------------------------------------------------------------------------
Pacific First Insurance, Inc.*** Washington Mutual Bank Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Pioneer Properties, Inc.*** Washington Mutual Bank Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Preston Properties California, Inc.*** ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Washington 100%
Services Corp.
============================================================================================================================
* Inactive on dormant subsidiary
** All ownership is in form common stock
*** Non-Material Subsidiary
92
Description of Subsidiaries SCHEDULE II
Page 2
============================================================================================================================
NAME NAME OF STATE OF PERCENT OF
IMMEDIATE PARENT INCORPORATION AFFILIATE
OWNERSHIP*
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Services Corporation*** Washington Mutual Bank Washington 100%
----------------------------------------------------------------------------------------------------------------------------
SS Service Corporation*** Washington Mutual Bank Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Seacoast Management, Inc.*** Washington Mutual Bank Washington 100%
----------------------------------------------------------------------------------------------------------------------------
WM Enterprises & Holdings, Inc.*** Washington Mutual Bank Washington 100%
----------------------------------------------------------------------------------------------------------------------------
WM Financial, Inc.*** Washington Mutual Bank Washington 100%
----------------------------------------------------------------------------------------------------------------------------
WM Life Insurance Co. Washington Mutual, Inc. Arizona 100%
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Bank Washington Mutual, Inc. Washington 100%
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Bank fsb Washington Mutual, Inc. Federally Chartered 100%
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Financial Services, Inc.*** Washington Mutual Bank Oregon 100%
fsb
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Insurance Brokerage Services, Washington Mutual Bank Montana 100%
Inc.*** fsb
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Insurance Services, Inc.*** Washington Mutual Bank Washington 100%
fsb
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Insurance Services of Idaho, Washington Mutual Bank Idaho 100%
Inc.*** fsb
----------------------------------------------------------------------------------------------------------------------------
Western Aero, Ltd.*** Washington Mutual Bank Oregon 100%
----------------------------------------------------------------------------------------------------------------------------
Western Credit Services Co.*** Washington Mutual Bank Oregon 100%
----------------------------------------------------------------------------------------------------------------------------
Western Service Co.*** Washington Mutual Bank Oregon 100%
============================================================================================================================
* Inactive on dormant subsidiary
** All ownership is in form common stock
*** Non-Material Subsidiary
93
SCHEDULE III
Litigation
None.
94
EXHIBIT A-1
[Form of Syndicated Note]
PROMISSORY NOTE
$_______________ December 10, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, WASHINGTON MUTUAL, INC., a Washington
corporation (the "Company"), hereby promises to pay to __________________ (the
"Bank"), for account of its respective lending offices provided for by the
Credit Agreement referred to below, at the principal office of The Chase
Manhattan Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal sum
of _______________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Syndicated Loans made by the Bank to the Company
under the Credit Agreement), in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of each such Syndicated Loan, at such office, in like money and funds,
for the period commencing on the date of such Syndicated Loan until such
Syndicated Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Syndicated Loan made by the Bank to the Company,
and each payment made on account of the principal thereof, shall be recorded by
the Bank on its books and, prior to any transfer of this Note, endorsed by the
Bank on the schedule attached hereto or any continuation thereof, provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Company to make a payment when due of any amount
owing under the Credit Agreement or hereunder in respect of the Syndicated Loans
made by the Bank.
This Note is one of the Syndicated Notes referred to in the
Four-Year Credit Agreement dated as of December 10, 1996 (as modified and
supplemented and in effect from time to time, the "Credit Agreement") between
the Company, the lenders party thereto (including the Bank) and The Chase
Manhattan Bank, as
95
-2-
Administrative Agent, and evidences Syndicated Loans made by the Bank
thereunder. Terms used but not defined in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement,
this Note may not be assigned by the Bank to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
WASHINGTON MUTUAL, INC.
By_________________________
Title:
96
-3-
SCHEDULE OF SYNDICATED LOANS
This Note evidences Syndicated Loans made under the
within-described Credit Agreement to the Company, on the dates, in the principal
amounts, of the Types, bearing interest at the rates and having Interest Periods
(if applicable) of the durations set forth below, subject to the payments and
prepayments of principal set forth below:
Prin-
cipal Duration Amount Unpaid
Amount Type of Paid Prin-
Date of of Interest Interest or cipal Notation
Made Loan Loan Rate Period Prepaid Amount Made by
---- ---- ---- ---- ------ ------- ------ -------
97
EXHIBIT A-2
[Form of Money Market Note]
PROMISSORY NOTE
December 10, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, WASHINGTON MUTUAL, INC., a Washington
corporation (the "Company"), hereby promises to pay to __________________ (the
"Bank"), for account of its respective lending offices provided for by the
Credit Agreement referred to below, at the principal office of The Chase
Manhattan Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the aggregate
unpaid principal amount of the Money Market Loans made by the Bank to the
Company under the Credit Agreement, in lawful money of the United States of
America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Money Market Loan, at such office, in like money
and funds, for the period commencing on the date of such Money Market Loan until
such Money Market Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, Type, interest rate and maturity date of
each Money Market Loan made by the Bank to the Company, and each payment made on
account of the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on the schedule
attached hereto or any continuation thereof, provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the
obligations of the Company to make a payment when due of any amount owing under
the Credit Agreement or hereunder in respect of the Money Market Loans made by
the Bank.
This Note is one of the Money Market Notes referred to in the
Four-Year Credit Agreement dated as of December 10, 1996 (as modified and
supplemented and in effect from time to time, the "Credit Agreement") between
the Company, the lenders party thereto (including the Bank) and The Chase
Manhattan Bank, as Administrative Agent, and evidences Money Market Loans made
by
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the Bank thereunder. Terms used but not defined in this Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Money Market Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement,
this Note may not be assigned by the Bank to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
WASHINGTON MUTUAL, INC.
By_________________________
Title:
99
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SCHEDULE OF LOANS
This Note evidences Loans made under the within-
described Credit Agreement to the Company, on the dates, in the principal
amounts, of the Types, bearing interest at the rates and maturing on the dates
set forth below, subject to the payments and prepayments of principal set forth
below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- ---- ---- ---- ---- ------- ------ -------
100
EXHIBIT B
[Form of Opinion of Counsel to the Company]
__________, 199_
To the Banks party to the
Credit Agreement referred to
below and The Chase
Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to Washington Mutual, Inc. (the
"Company") in connection with (i) the Four-Year Credit Agreement (the "Credit
Agreement") dated as of December 10, 1996, between the Company, the lenders
party thereto and The Chase Manhattan Bank, as Administrative Agent, providing
for loans to be made by said lenders to the Company in an aggregate principal
amount not exceeding $100,000,000 and (ii) the instruments and other documents
referred to in the next following paragraph. Terms used herein without
definition have the meanings assigned to them in the Credit Agreement. This
opinion letter is being delivered pursuant to Section 6.01(c) of the Credit
Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes executed and delivered on the date hereof;
and
(c) such records of the Company and such other documents
as we have deemed necessary as a basis for the
opinions expressed below.
The Credit Agreement and such Notes are collectively referred to as the "Credit
Documents".
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents
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of all documents submitted to us as copies. When relevant facts were not
independently established, we have relied upon statements of governmental
officials and upon representations made in or pursuant to the Credit Documents
and certificates of appropriate representatives of the Company.
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
Company):
(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 all signatories have the legal
capacity to execute and deliver such documents; 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.
For purposes of this letter, when we render an opinion "to our
knowledge" or as to which we have "knowledge," we have based such opinion on (i)
inquiries of the attorneys in our firm who routinely work on matters related to
the Company and (ii) inquiries of representatives of the Company whom we
reasonably believe to have knowledge about the subject matter of the inquiries.
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:
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- 3 -
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Washington. Each Subsidiary of
the Company listed in Annex I hereto is a corporation duly organized
and validly existing under the laws of the respective state indicated
opposite its name in Annex I hereto.
2. The Company has all requisite corporate power to execute
and deliver, and to perform its obligations under, the Credit
Documents. The Company has all requisite corporate power to borrow
under the Credit Agreement.
3. The execution, delivery and performance by the Company of
each Credit Document, and the borrowings by the Company under the
Credit Agreement, have been duly authorized by all necessary corporate
action on the part of the Company.
4. Each Credit Document has been duly executed and delivered
by the Company.
5. If the Credit Documents 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 Credit Documents, each Credit Document would
constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws relating to or
affecting the rights of creditors generally and except as the
enforceability of the Credit Documents is subject to the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
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6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency
of the United States of America or the State of Washington is required
on the part of the Company for the execution, delivery or performance
by the Company of any of the Credit Documents or for the borrowings by
the Company under the Credit Agreement.
7. The execution, delivery and performance by the Company of,
and the consummation by the Company of the transactions contemplated
by, the Credit Documents do not and will not (a) violate any provision
of its Articles of Incorporation or by-laws, (b) violate any applicable
law, rule or regulation, (c) violate any order, writ, injunction or
decree of any court or governmental authority or agency or any arbitral
award applicable to the Company or any of its Subsidiaries of which we
have knowledge or (d) result in a breach of, constitute a default
under, require any consent under, or result in the acceleration or
required prepayment of any indebtedness pursuant to the terms of, any
agreement or instrument of which we have knowledge to which the Company
or any of its Subsidiaries is a party or by which any of them is bound
or to which any of them is subject.
8. Except as set forth in Schedule III to the Credit
Agreement, we have no knowledge of any legal or arbitral proceedings,
or any proceedings by or before any governmental or regulatory
authority or agency, pending or threatened against the Company or any
of its Subsidiaries or any of their respective Properties that are
reasonably likely (either individually or in the aggregate) to have a
Material Adverse Effect.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 11.03 of the Credit
Agreement may be limited by 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
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action or inaction involves negligence, recklessness, willful
misconduct or unlawful conduct.
(B) The enforceability of provisions in the Credit Documents
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Bank is located (other than the State of
Washington) that limit the interest, fees or other charges such Bank
may impose, (ii) Section 4.07(c) of the Credit Agreement, (iii) the
second paragraph of Section 11.01 of the Credit Agreement, (iv) the
first sentence of Section 11.10, (v) the second sentence of Section
11.10 of the Credit Agreement, insofar as such sentence relates to the
subject matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related to
any of the Credit Documents, (vi) the waiver of inconvenient forum set
forth in Section 11.10 of the Credit Agreement, (vii) Section 11.11 of
the Credit Agreement and (viii) the enforceability of provisions in the
Credit Documents that purport to establish evidentiary standards.
(D) The courts of the State of Washington will consider
extrinsic evidence of circumstances surrounding the making of the
Credit Documents to ascertain the intent of the parties in using the
language employed in the Credit Documents, regardless of whether or not
the language used in the Credit Documents is plain and unambiguous on
its face, and may incorporate additional or supplementary terms into
the Credit Documents.
(E) We call to your attention that, under Washington law,
where a provision of contract permits one party to the contract to
recover attorneys' fees, such provision will be construed to permit the
prevailing party in any action to enforce the contract to recover its
reasonable attorneys' fees.
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- 6 -
(F) We have assumed that any compensation owed pursuant to
Section 5.05 of the Credit Agreement is reasonable in amount,
reflecting compensation for actual economic loss. We also not that in
▇▇▇▇▇▇▇▇▇▇ v. Bankers Life Insurance, 110 Wn.2d 716, 757 P.2d 941
(1988) and in ▇▇▇▇▇▇▇ v. Rainier National Bank, 111 Wn.2d 232, 757 P.2d
976 (1988), the Washington Supreme Court indicated that, at least under
certain circumstances, a lender may lose the right to a prepayment fee
by accelerating the debt.
(G) Our opinion in paragraphs 6 and 7(b) above is not intended
to address the issue as to whether any filing or registrations would be
required under applicable securities laws in connection with the sale,
assignment or other transfer by a Bank of any Loan or Note or any
interest or participation therein.
(H) We note that, under Washington law, if a Bank is deemed to
be transacting business as a foreign corporation in the State of
Washington without being qualified to do so, it will not be entitled to
commence a proceeding in the courts in this state with respect to the
Credit Documents unless it qualifies to transact business as a foreign
corporation under the Washington Business Corporation Act and under
Title 30 of the Revised Code of Washington (Banks and Trust Companies),
to the extent such Title is applicable to such Bank. We further note,
however, that no Bank will be subject to the requirement to qualify to
transact business as a foreign corporation solely by reason of the
execution, delivery, performance or enforcement of the Credit
Documents.
The foregoing opinions are limited to matters involving the
Federal laws of the United States and the law of the State of Washington, and we
do not express any opinion as to the laws of any other jurisdiction.
106
- 7 -
At the request of our clients, this opinion letter is,
pursuant to Section 6.01(c) of the Credit Agreement, provided to you by us in
our capacity as counsel to the Company and may not be relied upon by any Person
for any purpose other than in connection with the transactions contemplated by
the Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
107
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
December 10, 1996
To the Banks party to the
Credit 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 (i) the Four-Year Credit Agreement
dated as of December 10, 1996 (the "Credit Agreement") between Washington
Mutual, Inc. (the "Company"), the lenders party thereto and Chase, as
Administrative Agent, providing for loans to be made by said lenders to the
Company in an aggregate principal amount not exceeding $100,000,000 and (ii) the
instruments referred to in the next following paragraph. Terms defined in the
Credit Agreement are used herein as defined therein. This opinion letter is
being delivered pursuant to Section 6.01(d) of the Credit Agreement.
In rendering the opinions expressed below, we have examined
the following agreements and instruments:
(a) the Credit Agreement; and
(b) the Notes executed and delivered on the date hereof.
The Credit Agreement and such Notes are collectively referred to as the "Credit
Documents".
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Credit Documents.
108
- 2 -
In rendering the opinions expressed below, we have assumed,
with respect to all of the Credit Documents, that:
(i) each of the Credit Documents has been duly authorized
by, has been duly executed and delivered by, and
(except to the extent set forth in the opinions below
as to the Company) constitutes legal, valid, binding
and enforceable obligations of, all of the parties
thereto;
(ii) all signatories to the Credit Documents have been
duly authorized; and
(iii) all of the parties to the Credit Documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform the Credit Documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Documents
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other similar laws relating to or affecting the rights of creditors
generally and except as the enforceability of the Credit Documents is subject to
the application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including, without limitation,
(a) the possible unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality, reasonableness, good
faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 11.03 of the Credit
Agreement may be limited by laws limiting the enforceability
109
- 3 -
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 Credit Documents
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Bank is located (other than the State of
New York) that limit the interest, fees or other charges such Bank may
impose, (ii) Section 4.07(c) of the Credit Agreement, (iii) the second
sentence of Section 11.01 of the Credit Agreement, (iv) the second
sentence of Section 11.10 of the Credit Agreement, insofar as such
sentence relates to the subject matter jurisdiction of the United
States District Court for the Southern District of New York to
adjudicate any controversy related to any of the Credit Documents and
(v) the waiver of inconvenient forum set forth in Section 11.10 of the
Credit Agreement with respect to proceedings in the United States
District Court for the Southern District of New York.
The foregoing opinions are limited to matters involving the
Federal laws of the United States and the law of the State of New York, and we
do not express any opinion as to the laws of any other jurisdiction.
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At the request of our client, this opinion letter is, pursuant
to Section 6.01(d) of the Credit Agreement, provided to you by us in our
capacity as special New York counsel to Chase and may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
CDP/TDB
111
EXHIBIT D
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank, as Administrative Agent
From: Washington Mutual, Inc.
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Four-Year Credit Agreement dated as of
December 10, 1996 (the "Credit Agreement") between Washington Mutual, Inc., the
lenders party thereto and The Chase Manhattan Bank, as Administrative Agent, we
hereby give notice that we request Money Market Quotes for the following
proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4]
---- -------- ---------- -------- ----------
Terms used herein have the meanings assigned to them in the Credit
Agreement.
WASHINGTON MUTUAL, INC.
By_________________________
Title:
--------------------------
* All numbered footnotes appear on the last page of this Exhibit.
112
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--------------------------
[1] For use if a Set Rate in a Set Rate Auction is requested to be
submitted before the Borrowing Date.
[2] Each amount must be $10,000,000 or a larger multiple of $1,000,000.
[3] Insert either "LIBO Margin" (in the case of LIBOR Market Loans) or "Set
Rate" (in the case of Set Rate Loans).
[4] A whole number of months, in the case of a LIBOR Market Loan or, in the
case of a Set Rate Loan, a period of not less than 7 days after the
making of such Set Rate Loan and ending on a Business Day.
▇▇▇
▇▇▇▇▇▇▇ ▇
[Form of Money Market Quote]
To: The Chase Manhattan Bank, as Administrative Agent
Attention:
Re: Money Market Quote to
Washington Mutual, Inc. (the "Company")
This Money Market Quote is given in accordance with Section
2.03(c) of the Four-Year Credit Agreement dated as of December 10, 1996 (the
"Credit Agreement") between Washington Mutual, Inc., the lenders party thereto
and The Chase Manhattan Bank, as Administrative Agent. Terms defined in the
Credit Agreement are used herein as defined therein.
In response to the Company's invitation dated __________,
199_, we hereby make the following Money Market Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the
following principal amount[s], for the following Interest Period(s) and
at the following rate(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4] Rate[*5]
---- -------- ---------- -------- ---------- --------
provided that the Company may not accept offers that would result in the
undersigned making Money Market Loans pursuant hereto in excess of $___________
in the aggregate (the "Money Market Loan Limit").
--------------------------
114
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* All numbered footnotes appear on the last page of this Exhibit.
115
- 3 -
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for which
any offer(s) (is/are) accepted, in whole or in part (subject to the third
sentence of Section 2.03(e) of the Credit Agreement and any Money Market Loan
Limit specified above).
Very truly yours,
[NAME OF BANK]
By_________________________
Authorized Officer
Dated: __________, ____
--------------------------
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
(or a larger multiple of $1,000,000).
[3] Indicate "LIBO Margin" (in the case of LIBOR Market Loans) or "Set
Rate" (in the case of Set Rate Loans).
[4] A whole number of months, in the case of a LIBOR Market Loan or, in the
case of a Set Rate Loan, a period of not less than 7 days after the
making of such Set Rate Loan and ending on a Business Day, as specified
in the related Money Market Quote Request.
[5] For a LIBOR Market Loan, specify margin over or under the London
interbank offered rate determined for the applicable Interest Period.
Specify percentage (rounded to the nearest 1/10,000 of 1%) and specify
whether "PLUS" or "MINUS". For
116
- 4 -
a Set Rate Loan, specify rate of interest per annum (rounded to the
nearest 1/10,000 of 1%).
117
EXHIBIT F
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Four-Year Credit Agreement dated as of December 10, 1996 (the
"Credit Agreement"), between Washington Mutual, Inc. (the
"Company"), the lenders party thereto and The Chase Manhattan
Bank, as Administrative Agent.
Dear Ladies and Gentlemen:
As a Bank party to the Credit Agreement, we have agreed with
the Company pursuant to Section 11.12 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided therein, all
non-public information identified by the Company as being confidential at the
time the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to provide
you, as a prospective [holder of a participation in the Loans (as defined in the
Credit Agreement)] [assignee Bank], with certain of such non-public information
subject to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on
behalf of yourself and each of your affiliates, directors, officers, employees
and representatives and for the benefit of us and the Company) that (A) such
information will not be used by you except in connection with the proposed
118
- 2 -
[participation][assignment] mentioned above and (B) you shall use reasonable
precautions, in accordance with your customary procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such information confidential, provided that nothing herein
shall limit the disclosure of any such information (i) after such information
shall have become public (other than through a violation of Section 11.12 of the
Credit Agreement), (ii) to the extent required by statute, rule, regulation or
judicial process, (iii) to your counsel or to counsel for any of the Banks or
the Administrative Agent, (iv) to bank examiners (or any other regulatory
authority having jurisdiction over any Bank or the Administrative Agent), or to
auditors or accountants, (v) to the Administrative Agent or any other Bank (or
to Chase Securities, Inc.), (vi) in connection with any litigation to which you
or any one or more of the Banks or the Administrative Agent are a party, or in
connection with the enforcement of rights or remedies under the Credit
Agreement, (vii) to a subsidiary or affiliate of yours as provided in Section
11.12(a) of the Credit Agreement or (viii) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers to you a
Confidentiality Agreement substantially in the form hereof and that in no event
shall you be obligated to return any materials furnished to you pursuant to this
Confidentiality Agreement.
If you are a prospective assignee, your obligations under this
Confidentiality Agreement shall be superseded by Section 11.12 of the Credit
Agreement on the date upon which you become a Bank under the Credit Agreement
pursuant to Section 11.06(b) thereof.
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- 3 -
Please indicate your agreement to the foregoing by signing as
provided below the enclosed copy of this Confidentiality Agreement and returning
the same to us.
Very truly yours,
[INSERT NAME OF BANK]
By_________________________
The foregoing is agreed to as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By_________________________
120
EXHIBIT G
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Four-Year Credit Agreement, dated as
of December 10, 1996 (as modified and supplemented and in effect from time to
time, the "Credit Agreement"), between Washington Mutual, Inc., a Washington
corporation (the "Company"), the lenders named therein, and The Chase Manhattan
Bank, as agent for such lenders (in such capacity, the "Administrative Agent").
Terms defined in the Credit Agreement are used herein as defined therein.
________________ (the "Assignor") and ________________ (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date as set forth in Schedule 1 hereto (the "Effective Date"), an
interest (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those credit facilities
contained in the Credit Agreement as are set forth on Schedule 1 (individually,
an "Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount and percentage for each Assigned Facility as set forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
instrument or document furnished pursuant thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that it is the beneficial owner of the interest being assigned by it
hereunder and that it has not created any adverse claim upon the interest being
assigned by it hereunder and that such interest is free and clear of any such
adverse claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company, any of
its Subsidiaries or any other obligation or the performance or observance by the
121
- 2 -
Company, any of its Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto; and (iii) attaches the Note(s) held by it
evidencing the Assigned Facilities and requests that the Administrative Agent
exchange such Note(s) for a new Note or Notes payable to the Assignor (if the
Assignor has retained any interest in the Assigned Facility) and a new Note or
Notes payable to the Assignee in the respective amounts which reflect the
assignment being made hereby (and after giving effect to any other assignments
which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 7.02 thereof, the financial
statements delivered pursuant to Section 8.01 thereof, if any, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any other instrument or document furnished pursuant hereto or thereto; (iv)
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers and discretion
under the Credit Agreement or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental thereto; and (v)
agrees that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Bank.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance by the
Administrative Agent pursuant to Section
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- 3 -
11.06(b) of the Credit Agreement, effective as of the Effective Date (which date
shall not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance by the Administrative
Agent).
5. Upon such acceptance, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee which accrue subsequent to the Effective Date.
6. From and after the Effective Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and shall be bound by the provisions thereof and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement except as provided in
Section 11.07 of the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the law of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Assignment and
Acceptance by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
123
Schedule 1 to
Assignment and Acceptance
relating to the Four-Year Credit Agreement,
dated as of December 10, 1996
between Washington Mutual, Inc.,
the lenders named therein and
The Chase Manhattan Bank, as administrative agent for the Banks
(in such capacity, the "Administrative Agent")
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Percentage
Facility Assigned Amount Assigned Assigned
----------------- --------------- --------
[ASSIGNEE] [ASSIGNOR]
By:___________________________ By:__________________________
Title: Title:
[Agreed and] Accepted:
THE CHASE MANHATTAN BANK
By:___________________________
Title:
[Agreed:
WASHINGTON MUTUAL, INC.
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By:___________________________
Title:]