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[CONFORMED COPY]
EXHIBIT 10.17
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WASHINGTON MUTUAL, INC.
_____________________________
364-DAY CREDIT AGREEMENT
Dated as of December 10, 1996
______________________________
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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. . . . . . . . . . . . . . . . . . . . . . . . . 28
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.01 Initial Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.02 Initial and Subsequent Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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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
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
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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
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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:
Rating Rating Rating
Fee or Loan Group Group Group
I II III
Facility Fee .0750% .1000% .1250%
Eurodollar
Loans .2750% .3000% .3250%
Alternate Base Rate
Loans 0.0% 0.0% 0.0%
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 of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk
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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 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.
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"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.
"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
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reduced at any time or from time to time pursuant to Section 2.04 hereof).
"Commitment Termination Date" shall mean the date 364 days
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 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,
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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.
"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
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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 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
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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 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. Section 1813(c) (or any successor
provision), as amended, re-enacted or redesignated from time to time, that is
controlled (within the meaning of 12 U.S.C. Section 1841 (or any successor
provision), as amended, re-enacted or redesignated from time to time) by the
Company.
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"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.
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
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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.
"LIBOR Market 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.
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"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 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.
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"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.
"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
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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 and Rating Group III.
"Rating Group I" shall mean (a) no Event of Default has
occurred and is continuing and (b) the ▇▇▇▇▇'▇ Rating is at or above A3 or 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 Baa1 or the Standard & Poor's Rating is at or above BBB+ and (c)
Rating Group I is not in effect; "Rating Group III" shall mean neither Rating
Group I nor Rating Group II 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
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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.
"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
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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
(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.
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"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next
preceding Business Day) by the Board 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 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.
Credit Agreement
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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 made in accordance with the last sentence of
subsection (a) above
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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 1:00 p.m. New York time on
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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 such case, such other time and date as
the Company and the Administrative Agent, with the consent of the Majority
Banks, may
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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.
(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
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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;
(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,
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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 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
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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 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
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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 (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
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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.
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
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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.
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 days and not more than
90 days prior to the Commitment Termination Date then in effect hereunder (the
"Existing Commitment Termination Date"), request that the Banks extend the
Commitment Termination Date for an additional 360 days from the Consent Date
(as defined below). Each Bank, acting in its sole discretion, shall, by notice
to the Company and the Administrative Agent given on the date and only the date
(herein, the "Consent Date") that is 30 days prior to the Existing Commitment
Termination Date (except that, if such date is not a Business Day, such notice
shall be given on the next succeeding Business Day), advise the 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
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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
Existing Commitment Termination Date to replace each Non-extending Bank with,
and otherwise add to this Agreement, one or more other banks (which may include
any Bank, each prior to the Existing Commitment Termination 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 Existing Commitment Termination
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 Termination Date shall be at
least 66-2/3% of the aggregate amount of the Commitments in effect immediately
prior to the Consent Date, then, effective as of the Existing Commitment
Termination Date, the Existing Commitment Termination Date shall be extended to
the date falling 360 days after the Consent 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 Existing Commitment Termination 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 Existing
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Commitment Termination Date with the same force and effect as if made
on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date); and
(iii) each Non-extending Bank shall have been paid in full by
the Company all amounts owing to such Bank hereunder on or before the
Existing Termination Date.
Even if the Existing Commitment Termination Date is extended as aforesaid, the
Commitment of each Non-extending Bank shall terminate on the Existing
Commitment Termination 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.
(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) plusthe
Applicable Margin plus, 0.05% per annum at any time when 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
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Applicable Margin, plus, 0.05% per annum at any time when 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 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.
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Section 4. Payments; Pro Rata
Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, 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 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
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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 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
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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
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),
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make the amount thereof available to the intended recipient(s) on such date;
and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate per
annum equal to the Federal Funds Rate for such day and, if such recipient(s)
shall fail promptly to make such payment, the Administrative Agent shall be
entitled to recover such amount, on demand, from the Payor, together with
interest as aforesaid, provided that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Administrative Agent within three
Business Days of the Advance Date, then, retroactively to the Advance Date, the
Payor and the recipient(s) shall each be obligated to pay interest on the
Required Payment as follows:
(i) if the Required Payment shall represent a payment to be
made by 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.
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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 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
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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.
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
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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 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).
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(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 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
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(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.
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
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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 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;
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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.
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
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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 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
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relevant taxing or other authority, the Company shall deliver to the
Administrative Agent for delivery to such non-U.S. Person evidence satisfactory
to such Person of such deduction, withholding or payment (as the case may be).
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 and its Subsidiaries from that set forth in said financial statements
as at said date.
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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 performance by the Company of this
Agreement or the Notes or for the legality, validity or enforceability hereof
or thereof.
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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.
Credit Agreement
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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 such
Subsidiary, (i) the
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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 consolidated financial position and results of
operations of the Company and its Subsidiaries as at the end of, and
for,
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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;
(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
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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 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;
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(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 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
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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;
(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
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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:
(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
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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;
(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;
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(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);
(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,
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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, "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.
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(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:
(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
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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 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
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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
(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
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(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 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,
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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 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
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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 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
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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 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
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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 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
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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 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
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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,
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. (212)
552-7490), with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(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
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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 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
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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 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
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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;
(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
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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
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"
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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
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.
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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 Confidentiality Agreement
substantially in the form of Exhibit F hereto (or executes and delivers to such
Bank and the Company an
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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.
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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
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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
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
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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
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
Credit Agreement
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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
85
- 81 -
collateral. Such additional collateral must meet or exceed specific
value requirements provided for in the Pledge Agreement.
86
- 83 -
SCHEDULE II
Subsidiaries
See attached.
87
Description of Subsidiaries SCHEDULE II
Page 1
LISTING OF SUBSIDIARIES OF WMI
ERROR! BOOKMARK NOT ▇▇▇▇▇▇▇.▇▇▇▇ 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, Washington 100%
Inc.
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%
* Inactive or dormant subsidiary
** All ownership is in form common stock
*** Non-Material Subsidiary
88
Description of Subsidiaries SCHEDULE II
Page 2
Preston Properties California, Inc.*** ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Washington 100%
Services Corp.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Services Washington Mutual Bank Washington 100%
Corporation***
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 100%
Chartered
Washington Mutual Financial Services, Washington Mutual Bank Oregon 100%
Inc.*** fsb
Washington Mutual Insurance Brokerage Washington Mutual Bank Montana 100%
Services, Inc.*** fsb
Washington Mutual Insurance Services, Washington Mutual Bank Washington 100%
Inc.*** fsb
Washington Mutual Insurance Services of Washington Mutual Bank Idaho 100%
Idaho, 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 or dormant subsidiary
** All ownership is in form common stock
*** Non-Material Subsidiary
89
SCHEDULE III
Litigation
None.
SCHEDULE III
90
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
364-Day 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 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.
Syndicated Note
91
- 2 -
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement,
this Note may not be assigned by the 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:
Syndicated Note
92
- 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
--------- ------ ---- -------- -------- --------- ------ --------
Syndicated Note
93
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
364-Day 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 the Bank thereunder. Terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
Money Market Note
94
- 2 -
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Money Market Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement,
this Note may not be assigned by the 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:
Money Market Note
95
- 3 -
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
---- --------- ---- -------- -------- ------- --------- --------
Money Market Note
96
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 364-Day 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 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
Opinion of Counsel to the Company
97
- 2 -
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:
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.
Opinion of Counsel to the Company
98
- 3 -
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.
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
Opinion of Counsel to the Company
99
- 4 -
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 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
Opinion of Counsel to the Company
100
- 5 -
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.
(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.
Opinion of Counsel to the Company
101
- 6 -
(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.
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,
Opinion of Counsel to the Company
102
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 364-Day 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.
In rendering the opinions expressed below, we have assumed,
with respect to all of the Credit Documents, that:
Opinion of Special Counsel to Chase
103
- 2 -
(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 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.
Opinion of Special Counsel to Chase
104
- 3 -
(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.
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
Opinion of Special Counsel to Chase
105
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 364-Day 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.
Money Market Quote Request
106
- 2 -
__________________________
[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.
Money Market Quote Request
107
EXHIBIT E
[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 364-Day 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").
__________________________
* All numbered footnotes appear on the last page of this Exhibit.
Money Market Quote
108
- 2 -
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 a Set Rate Loan, specify rate of
interest per annum (rounded to the nearest 1/10,000 of 1%).
Money Market Quote
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EXHIBIT F
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: 364-Day 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
[participation][assignment] mentioned above and (B) you shall use reasonable
precautions, in accordance with your customary
Confidentiality Agreement
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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.
Confidentiality Agreement
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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_________________________
Confidentiality Agreement
112
EXHIBIT G
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day 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 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
Notice of Assignment
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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 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).
Notice of Assignment
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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.
Notice of Assignment
115
Schedule 1 to
Assignment and Acceptance
relating to the 364-Day 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.
By:___________________________
Notice of Assignment
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Title:]
Notice of Assignment