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EXHIBIT 10.34
CONFORMED
COPY
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WASHINGTON MUTUAL, INC.
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AMENDED AND RESTATED FOUR-YEAR CREDIT AGREEMENT
Dated as of November 25, 1997
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THE FIRST NATIONAL BANK OF CHICAGO
BANK OF AMERICA N.T. & S.A.,
as Syndication Agents
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.......................................... 17
1.03 Classes and Types of Loans................................................... 18
Section 2. Commitments, Loans, Notes and Prepayments...................................... 19
2.01 Syndicated Loans............................................................. 19
2.02 Borrowings of Syndicated Loans............................................... 19
2.03 Money Market Loans........................................................... 19
2.04 Changes of Commitments....................................................... 25
2.05 Facility Fee................................................................. 25
2.06 Lending Offices.............................................................. 25
2.07 Several Obligations; Remedies Independent.................................... 25
2.08 Evidence of Debt............................................................. 26
2.09 Prepayments.................................................................. 27
2.10 Extension of Commitment Termination Date..................................... 27
Section 3. Payments of Principal and Interest............................................. 29
3.01 Repayment of Loans........................................................... 29
3.02 Interest..................................................................... 29
Section 4. Payments; Pro Rata Treatment; Computations; Etc................................ 30
4.01 Payments..................................................................... 30
4.02 Pro Rata Treatment........................................................... 31
4.03 Computations................................................................. 32
4.04 Minimum Amounts.............................................................. 32
4.05 Certain Notices.............................................................. 32
4.06 Non-Receipt of Funds by the Administrative Agent............................. 33
4.07 Sharing of Payments, Etc..................................................... 34
Section 5. Yield Protection, Etc.......................................................... 36
5.01 Additional Costs............................................................. 36
5.02 Limitation on Types of Loans................................................. 39
5.03 Illegality................................................................... 39
5.04 Treatment of Affected Loans.................................................. 40
5.05 Compensation................................................................. 40
5.06 U.S. Taxes................................................................... 41
5.07 Replacement of Banks......................................................... 42
Section 6. Conditions Precedent........................................................... 43
6.01 Conditions to Effectiveness.................................................. 43
6.02 Loans........................................................................ 45
(3)
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Section 7. Representations and Warranties................................................. 45
7.01 Corporate Existence.......................................................... 45
7.02 Financial Condition.......................................................... 46
7.03 Litigation................................................................... 46
7.04 No Breach.................................................................... 46
7.05 Action....................................................................... 47
7.06 Approvals.................................................................... 47
7.07 ERISA........................................................................ 47
7.08 Taxes........................................................................ 47
7.09 Investment Company Act....................................................... 48
7.10 Public Utility Holding Company Act........................................... 48
7.11 Material Agreements and Liens................................................ 48
7.12 Environmental Matters........................................................ 49
7.13 Subsidiaries................................................................. 49
7.14 True and Complete Disclosure................................................. 49
Section 8. Covenants of the Company....................................................... 50
8.01 Financial Statements Etc..................................................... 50
8.02 Litigation................................................................... 54
8.03 Existence, Etc............................................................... 54
8.04 Insurance.................................................................... 55
8.05 Prohibition of Fundamental Changes........................................... 55
8.06 Limitation on Liens.......................................................... 56
8.07 Lines of Business............................................................ 58
8.08 Use of Proceeds.............................................................. 58
8.09 Adequate Capitalization...................................................... 58
8.10 Certain Financial Covenants.................................................. 59
Section 9. Events of Default.............................................................. 59
Section 10. The Administrative Agent...................................................... 63
10.01 Appointment, Powers and Immunities.......................................... 63
10.02 Reliance by Administrative Agent............................................ 64
10.03 Defaults.................................................................... 65
10.04 Rights as a Bank............................................................ 65
10.05 Indemnification............................................................. 65
10.06 Non-Reliance on Administrative Agent and Other Banks........................ 66
10.07 Failure to Act.............................................................. 66
10.08 Resignation or Removal of Administrative Agent.............................. 67
10.09 Syndication Agents.......................................................... 67
Section 11. Miscellaneous................................................................. 67
11.01 Waiver...................................................................... 67
11.02 Notices..................................................................... 68
11.03 Expenses, Etc............................................................... 69
11.04 Amendments, Etc............................................................. 70
11.05 Successors and Assigns...................................................... 70
11.06 Assignments and Participations.............................................. 70
11.07 Survival.................................................................... 74
11.08 Captions.................................................................... 75
(4)
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11.09 Counterparts................................................................ 75
11.10 Governing Law; Submission to Jurisdiction................................... 75
11.11 Waiver of Jury Trial........................................................ 75
11.12 Treatment of Certain Information; Confidentiality........................... 75
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
(5)
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AMENDED and RESTATED FOUR-YEAR CREDIT AGREEMENT dated as of November
25, 1997, 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, certain Banks (the "Original Banks") and the
Administrative Agent are party to a Credit Agreement dated as of December 10,
1996 (the "Original Credit Agreement") providing for Loans (as hereinafter
defined) in an aggregate principal amount not to exceed $100,000,000. The
Company has requested that the Banks and the Administrative Agent agree, and the
Banks and the Administrative Agent are willing, to amend and restate the
Original Credit Agreement to provide for, among other things, Loans (as
hereinafter defined) in an aggregate principal amount not to exceed
$200,000,000.
Accordingly, the parties hereto agree to amend and restate the
Original Credit Agreement so that, as amended and restated, it reads in its
entirety as provided herein.
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"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).
Amended and Restated Credit Agreement
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"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"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.
"Amendment Effective Date" shall mean the date on which all of the
conditions set forth in Section 6.01 hereof shall have been satisfied or waived
by the Banks.
"Applicable Facility Fee Rate" and "Applicable Margin" shall mean,
during any period when any Rating Group set forth below is in effect, with
respect to any facility fee payable hereunder or any Type of Syndicated Loan
outstanding hereunder, the percentage set forth below opposite such fee or Type
of Syndicated Loan for such Rating Group:
===========================================================================================================
Fee or Loan Rating Rating Rating Rating Rating
Group Group Group Group Group
I II III IV V
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Facility
Fee .090% .100% .125% .150% .250%
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Eurodollar
Loans .210% .250% .275% .300% .500%
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Alternate
Base Rate 0.0% 0.0% 0.0% 0.0% 0.0%
Loans
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For the purposes of this Agreement, any change in the Applicable Facility Fee
Rate or Applicable Margin by reason of a change in the Xxxxx'x 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" shall mean, for any day, the annual assessment
rate in effect on such day that is payable by a member
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of the Bank Insurance Fund classified as "well-capitalized" and within
supervisory subgroup "B" (or a comparable successor risk classification) within
the meaning of 12 C.F.R. Part 327 (or any successor provision) to the Federal
Deposit Insurance Corporation for insurance by such Corporation of time deposits
made in dollars at the offices of such member in the United States; provided
that if, as a result of any change in any law, rule or regulation, it is no
longer possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance to the
Banks.
"Asset Securitization" shall mean a public or private transfer of
installment receivables, credit card receivables, lease receivables or any other
type of secured or unsecured financial assets which transfer is recorded as a
sale according to generally accepted accounting principles as of the date of
such transfer.
"Bank Regulatory Authority" shall mean the Board of Governors of the
Federal Reserve System, the Comptroller of the Currency, the Federal Deposit
Insurance Corporation and all other relevant bank regulatory authorities
(including, without limitation, relevant state bank regulatory authorities).
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"Base CD Rate" shall mean 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 reduced at any time or from time to time pursuant
to Section 2.04 hereof).
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"Commitment Termination Date" shall mean the date one day prior to
the date four years after the date hereof, as the same may be extended pursuant
to Section 2.10 hereof; provided that, if such date is not a Business Day, the
Commitment Termination Date shall be the next preceding Business Day.
"Consolidated Assets" shall mean, at any date, the amount at which
the assets of the Company and its Subsidiaries are or should be shown on a
consolidated statement of financial position prepared in accordance with GAAP as
at such date.
"Consolidated Equity" shall mean, at any date, the amount of
stockholders' equity of the Company and its Subsidiaries determined on a
consolidated basis without duplication in accordance with GAAP (and, for the
purposes of Section 8.10 of this Agreement only, shall include Special Preferred
Equity Securities, but only to the extent that such preferred equity securities
could be treated as Tier 1 capital of the Company if the Company were a bank
holding company subject to regulation by the Board of Governors of the Federal
Reserve System).
"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
Amended and Restated Credit Agreement
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wastes into the indoor or outdoor environment, including, without limitation,
ambient air, soil, surface water, ground water, wetlands, land or subsurface
strata, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which the Company is a member and (ii) solely for purposes
of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11)
of the Code and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, described in Section 414(m) or (o) of the Code of which the
Company is a member.
"Eurodollar Loans" shall mean Syndicated Loans that bear interest at
rates based on rates referred to in the definition of "Fixed Base Rate" in this
Section 1.01.
"Event of Default" shall have the meaning assigned to such term in
Section 9 hereof.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the
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Administrative Agent.
"Fee Letter" shall mean the fee letter dated as of October 24, 1997
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 display
page 3750 (British Bankers Association Settlement Rate) of the Dow Xxxxx Markets
(Telerate) Service 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 similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
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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 October 1997 regarding the Company and this financing.
"Insured Subsidiary" shall mean any insured depositary institution
(as defined in 12 U.S.C. ss.1813(c) (or any successor provision), as amended,
re-enacted or redesignated from time to time, that is controlled (within the
meaning of 12 U.S.C. ss.1841 (or any successor provision), as amended,
re-enacted or redesignated from time to time) by the Company.
"Interest Period" shall mean:
(a) with respect to any Eurodollar Loan, each period commencing on
the date such Eurodollar Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, or, any other period to which all the Banks have consented, as
the Company may select as provided in Section 4.05 hereof, except that
each Interest Period that commences on the last Business Day of a calendar
month (or on any day for which there is no numerically corresponding day
in the appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month;
(b) with respect to any Alternate Base Rate Loan, each period
commencing on the date such Alternate Base Rate Loan
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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 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
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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.
"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 (if any), (c) the validity or
enforceability of this Agreement or of the Notes (if any), (d) the rights and
remedies of the Banks and the Administrative Agent hereunder and under the Notes
(if any) 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.
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"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 (if any)
provided for by Section 2.08(d) 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 Xxxxx'x Investors Service, Inc. or any
successor thereto.
"Xxxxx'x Rating" shall mean, as of any date of determination
thereof, the rating most recently published by Moody's relating to the
unsecured, unguaranteed senior long-term debt securities of the Company then
outstanding.
"Multiemployer Plan" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Non-Material Subsidiaries" shall mean, as at any date, Subsidiaries
of the Company the total assets of which, in the aggregate, do not exceed one
percent (1%) of the Consolidated Assets of the Company and all of its
Subsidiaries, as at such date.
"Non-Performing Assets" shall mean, as at any date, the sum, for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of the following: (a) non-accrual loans
plus (b) accruing loans past due 90 days or more plus (c) other non-performing
assets 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 Syndicated Notes and Money Market Notes.
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"Original Notes" shall mean the promissory notes of the Company
delivered to each Original Bank pursuant to the Original Credit Agreement.
"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
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 Xxxxx'x 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
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Group II, Rating Group III, Rating Group IV and Rating Group V.
"Rating Group I" shall mean (a) no Event of Default has occurred and
is continuing and (b) the Xxxxx'x Rating is at or above A1 and the Standard &
Poor's Rating is at or above A+; "Rating Group II" shall mean (a) no Event of
Default has occurred and is continuing, (b) the Xxxxx'x Rating is at or above A3
and the Standard & Poor's Rating is at or above A- and (c) Rating Group I is not
in effect; "Rating Group III" shall mean (a) no Event of Default has occurred
and is continuing, (b) the Xxxxx'x Rating is at or above Baa1 and the Standard &
Poor's Rating is at or above BBB+ and (c) neither Rating Group I nor Rating
Group II is in effect; "Rating Group IV" shall mean (a) no Event of Default has
occurred and is continuing, (b) the Xxxxx'x Rating is at or above Baa2 and the
Standard & Poor's Rating is at or above BBB and (c) none of Rating Group I,
Rating Group II or Rating Group III is in effect; and "Rating Group V" shall
mean that none of Rating Group I, Rating Group II, Rating Group III or Rating
Group IV is in effect; provided that (A) if the Xxxxx'x 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 Xxxxx'x 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.
"Register" has the meaning set forth in Section 11.06.
"Regulations A, D, G, U and X" shall mean, respectively, Regulations
A, D, G, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" shall mean, with respect to any Bank, any change
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Bank under any Federal, state or foreign law or regulations
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
"Repurchase Arrangements" shall mean repurchase and
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xxxxxxx xxxxxxxxxx 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.
"Special Preferred Equity Securities" shall mean preferred equity
securities, if any, issued by a Wholly-Owned Subsidiary of the Company of the
type marketed under proprietary names such as MIPS, SKIS and TOPRS.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., or any successor thereto.
"Standard & Poor's Rating" shall mean, as at 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" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board of Governors of the Federal Reserve System
to which the Administrative Agent is subject, for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities approximately equal to
three months. The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other
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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 (if any) provided
for by Section 2.08(d) hereof and all promissory notes delivered in substitution
or exchange thereof, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Tangible Net Worth" shall mean, as at any date, the sum of:
(a) Consolidated Equity; minus
(b) the amount of Special Preferred Equity Securities, to the
extent otherwise included in Consolidated Equity; minus
(c) the sum for the Company and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) of
the cost of treasury shares and the book value of all assets that
should be classified as intangibles (without duplication of
deductions in respect of items already deducted in arriving at
Consolidated Equity) but in any event including goodwill, minority
interests, research and development costs, trademarks, trade names,
copyrights, patents and franchises, unamortized debt discount and
expense, all reserves and any write-up in the book value of assets
resulting from a revaluation thereof subsequent to December 31,
1996.
"Three-Month Secondary CD Rate" shall mean, 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,
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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.
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, 1996 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, 1996 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
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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 that affects the calculation of the Company's Double
Leverage Ratio, Consolidated Equity, Consolidated Assets, Tangible Net Worth or
Non-Performing Assets and (ii) reasonable estimates of the differences in such
calculations 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
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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 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
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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 agree). The Company may request offers to make Money
Market Loans for up to three different Interest Periods in a single notice (for
which purpose Interest Periods in different lettered clauses of the definition
of the term "Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous); provided that the request for each separate
Interest Period shall be deemed to be a separate Money Market Quote Request for
a separate borrowing (a "Money Market Borrowing"). Each such notice shall be
substantially in the form of Exhibit D hereto and shall specify as to each Money
Market Borrowing:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $10,000,000 (or a larger multiple of $1,000,000)
but shall not cause the limits specified in Section 2.03(a) hereof to be
violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Money Market Quotes requested for a
particular Interest Period are seeking quotes for LIBOR Market Loans or
Set Rate Loans; and
(v) if the Money Market Quotes requested are seeking quotes
for Set Rate Loans, the date on which the Money Market Quotes are to be
submitted if it is before the proposed date of borrowing (the proposed
date of such borrowing or, if the date on which such Money Market Quotes
are to be submitted is before the proposed date of borrowing, such
submission date is called the "Quotation Date").
Except as otherwise provided in this Section 2.03(b), no Money Market Quote
Request shall be given within five Business Days (or such other number of days
as the Company and the Administrative Agent, with the consent of the Majority
Banks, may agree) of any other Money Market Quote Request.
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(c) (i) Each Bank may submit one or more Money Market Quotes, each
constituting an offer to make a Money Market Loan in response to any Money
Market Quote Request; provided that, if the Company's request under
Section 2.03(b) hereof specified more than one Interest Period, such Bank
may make a single submission containing one or more Money Market Quotes
for each such Interest Period. Each Money Market Quote must be submitted
to the Administrative Agent not later than (x) 2:00 p.m. New York time on
the fourth Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (y) 10:00 a.m. New York time on the Quotation
Date, in the case of a Set Rate Auction (or, in any such case, such other
time and date as the Company and the Administrative Agent, with the
consent of the Majority Banks, may agree); provided that any Money Market
Quote may be submitted by Chase (or its lending office) only if Chase (or
such lending office) notifies the Company of the terms of the offer
contained therein not later than (x) 1:00 p.m. New York time on the fourth
Business Day prior to the proposed date of borrowing, in the case of a
LIBOR Auction or (y) 9:45 a.m. New York time on the Quotation Date, in the
case of a Set Rate Auction. Subject to Sections 5.02(b), 5.03, 6.02 and 9
hereof, any Money Market Quote so made shall be irrevocable except with
the consent of the Administrative Agent given on the instructions of the
Company.
(ii) Each Money Market Quote shall be substantially in the
form of Exhibit E hereto and shall specify:
(A) the proposed date of borrowing and the Interest Period
therefor;
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount shall be at
least $5,000,000 (or a larger multiple of $1,000,000); provided that
the aggregate principal amount of all Money Market Loans for which a
Bank submits Money Market Quotes (x) may be greater or less than the
Commitment of such Bank but (y) may not exceed the principal amount
of the Money Market Borrowing for a particular Interest Period for
which offers were requested;
(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
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to or subtracted from the applicable Fixed Base Rate;
(D) in the case of a Set Rate Auction, the rate of interest
per annum (rounded upwards, if necessary, to the nearest 1/10,000th
of 1%) offered for each such Money Market Loan (the "Set Rate"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Company, no
Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in
the applicable Money Market Quote Request and, in particular, no Money
Market Quote may be conditioned upon acceptance by the Company of all (or
some specified minimum) of the principal amount of the Money Market Loan
for which such Money Market Quote is being made, provided that the
submission by any Bank containing more than one Money Market Quote may be
conditioned on the Company not accepting offers contained in such
submission that would result in such Bank making Money Market Loans
pursuant thereto in excess of a specified aggregate amount (the "Money
Market Loan Limit").
(d) The Administrative Agent shall (x) in the case of a Set Rate
Auction, as promptly as practicable after the Money Market Quote is submitted
(but in any event not later than 10:15 a.m. New York time on the Quotation Date)
or (y) in the case of a LIBOR Auction, by 4:00 p.m. New York time on the day a
Money Market Quote is submitted, notify the Company of the terms (i) of any
Money Market Quote submitted by a Bank that is in accordance with Section
2.03(c) hereof and (ii) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote submitted by such Bank
with respect to the same Money Market Quote Request. Any such subsequent Money
Market Quote shall be disregarded by the Administrative Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Administrative Agent's notice to the Company
shall specify (A) the aggregate principal amount of the Money 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
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consent of the Majority Banks, may agree), the Company shall notify the
Administrative Agent of its acceptance or nonacceptance of the offers so
notified to it pursuant to Section 2.03(d) hereof (which notice shall specify
the aggregate principal amount of offers from each Bank for each Interest Period
that are accepted, it being understood that the failure of the Company to give
such notice by such time shall constitute nonacceptance) and the Administrative
Agent shall promptly notify each affected Bank. The notice from the
Administrative Agent shall also specify the aggregate principal amount of offers
for each Interest Period that were accepted and the lowest and highest LIBO
Margins and Set Rates that were accepted for each Interest Period. The Company
may accept any Money Market Quote in whole or in part (provided that any Money
Market Quote accepted in part shall be at least $5,000,000 or a larger multiple
of $1,000,000); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $10,000,000 (or a larger multiple of
$1,000,000) but shall not cause the limits specified in Section 2.03(a)
hereof to be violated;
(iii) acceptance of offers may, subject to clause (v) below,
be made only in ascending order of LIBO Margins or Set Rates, as the case
may be, in each case beginning with the lowest rate so offered;
(iv) the Company may not accept any offer where the
Administrative Agent has advised the Company that such offer fails to
comply with Section 2.03(c)(ii) hereof or otherwise 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
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such offers. Determinations by the Company of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been
accepted in accordance with the terms and conditions of this Section 2.03 shall,
not later than 1:00 p.m. New York time on the date specified for the making of
such Loan, make the amount of such Loan available to the Administrative Agent at
an account in New York designated by the Administrative Agent in immediately
available funds, for account of the Company. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company on such date by depositing the same,
in immediately available funds, in an account of the Company maintained with
Chase at the Principal Office designated by the Company.
(g) Except for the purpose and to the extent expressly stated in
Sections 2.04(b) and 2.05 hereof, the amount of any Money Market Loan made by
any Bank shall not constitute a utilization of such Bank's Commitment.
2.04 Changes of Commitments.
(a) The aggregate amount of the Commitments shall be automatically
reduced to zero on the Commitment Termination Date.
(b) The Company shall have the right at any time or from time to
time (i) so long as no Syndicated Loans or Money Market Loans are outstanding,
to terminate the Commitments and (ii) to reduce the aggregate unused amount of
the Commitments (for which purpose use of the Commitments shall be deemed to
include the aggregate principal amount of all Money Market Loans); provided that
(x) the Company shall give notice of each such termination or reduction as
provided in Section 4.05 hereof and (y) each partial reduction shall be in a
multiple of $10,000,000.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.05 Facility Fee. The Company shall pay to the Administrative
Agent for account of each Bank a facility fee on the daily average amount of
such Bank's Commitment (whether or not utilized), for the period from and
including the date hereof to but not including the earlier of the date such
Commitment is terminated and the Commitment Termination Date, at a rate per
annum equal to the Applicable Facility Fee Rate. Accrued facility fee shall be
payable on each Quarterly Date in arrears and on the earlier of the date the
Commitments are terminated and
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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 (if any) 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 (if
any), 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. Evidence of Debt.
(a) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Bank
resulting from each Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Bank hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Banks and each Bank's
share thereof.
(c) The entries in the accounts maintained pursuant to paragraph
(a) or (b) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Bank or the Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Company to repay the Loans
in accordance with the terms of this Agreement.
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(d) Any Bank may request that Loans made by it be evidenced by a
promissory note. In such event, Syndicated Loans made by such Bank (if any)
shall be evidenced by a single promissory note of the Company substantially in
the form of Exhibit A-1 hereto, and Money Market Loans made by such Bank (if
any) shall be evidenced by a single promissory note of the Company substantially
in the form of Exhibit A-2 hereto.
(e) No Bank shall be entitled to have its Notes (if any)
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 45 days and not more than 60 days
prior to each of the first and second anniversaries of the date of this
Agreement (a "Relevant Anniversary Date"), request that the Banks extend the
Commitment Termination Date (the "Existing Commitment Termination Date") for one
year after such Existing Commitment Termination Date. Each Bank, acting in its
sole discretion, shall, by notice to the Company and the Administrative Agent
given not later than the date (herein, the "Consent Date") that is 30 days
immediately after the date of such request (except that, if such date is not a
Business Day, such notice shall be given on the next succeeding Business Day)
but not more than 15 days prior to the Consent Date, advise the Company and the
Administrative Agent whether or not such Bank agrees to such extension; provided
that, if such Bank gives notice of its consent to such extension not later than
Consent Date, such Bank may revoke such consent at any time not later than the
Consent Date by giving notice of such revocation to the Company and the
Administrative Agent; and provided further 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
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promptly after such determination (but in any event no later than the Consent
Date) and any Bank that does not advise the Company on or before the Consent
Date shall be deemed to be a Non-extending Bank. The election of any Bank to
agree to such extension shall not obligate any other Bank to so agree.
(b) If (and only if) the total of the Commitments of the Banks
that have agreed so to extend the Commitment Termination Date shall be at least
66-2/3% of the aggregate amount of the Commitments in effect immediately prior
to the Consent Date, the Company shall have the right on or before the Relevant
Anniversary Date to replace each Non-extending Bank with, and otherwise add to
this Agreement, one or more other banks (which may include any Bank, each prior
to the Relevant Anniversary Date an "Additional Commitment Bank") with the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld), each of which Additional Commitment Banks shall have entered into an
agreement in form and substance satisfactory to the Company and the
Administrative Agent pursuant to which such Additional Commitment Bank shall,
effective as of the Relevant Anniversary Date, undertake a Commitment (and, if
any such Additional Commitment Bank is already a Bank, its Commitment shall be
in addition to such Bank's Commitment hereunder on such date).
(c) If (and only if) the total of the Commitments of the Banks
that have agreed so to extend the Commitment Termination Date together with the
additional Commitments of the Additional commitment Banks that will become
effective on the Anniversary Date shall aggregate 100% of the aggregate amount
of the Commitments in effect immediately prior to the Consent Date, then,
effective as of the Relevant Anniversary Date, the Existing Commitment
Termination Date shall be extended to the date falling one-year after the
Existing Commitment Termination Date (except that, if such date is not a
Business Day, such Commitment Termination Date as so extended shall be the next
preceding Business Day) and each Additional Commitment Bank shall thereupon
become a "Bank" for all purposes of this Agreement.
Notwithstanding the foregoing, the extension of the Existing
Commitment Termination Date shall not be effective with respect to any Bank
unless:
(i) no Default shall have occurred and be continuing on each
of the date of the notice requesting such extension, on the Consent Date
and on the Relevant Anniversary Date;
(ii) each of the representations and warranties made by the
Company in Section 7 hereof shall be true and
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complete on and as of each of the date of the notice requesting such
extension, the Consent Date and the Relevant Anniversary Date with the
same force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(iii) each Non-extending Bank shall have been paid in full by
the Company all amounts owing to such Bank hereunder on or before the
Relevant Anniversary Date.
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) plus the
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 Applicable Margin, plus, 0.05% per annum
at any time when Loans outstanding shall exceed 50% of the Commitments;
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(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.
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 (if any) 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
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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 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
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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 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
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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), 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
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duplication of the obligation of the Company under Section 3.02 hereof to
pay interest on the Required Payment at the Post-Default Rate), it being
understood that the return by the recipient(s) of the Required Payment to
the Administrative Agent shall not limit such obligation of the Company
under said Section 3.02 to pay interest at the Post-Default Rate in
respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a
Loan to be made by the Banks to the Company, the Payor and the Company
shall each be obligated retroactively to the Advance Date to pay interest
in respect of the Required Payment pursuant to whichever of the rates
specified in Section 3.02 hereof is applicable to the Type of such Loan,
it being understood that the return by the Company of the Required Payment
to the Administrative Agent shall not limit any claim the Company may have
against the Payor in respect of such Required Payment.
4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Bank may
otherwise have, each Bank shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
credit or account of the Company at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Bank's Loans
or any other amount payable to such Bank hereunder, that is not paid when due
(regardless of whether such deposit or other indebtedness are then due to the
Company), in which case it shall promptly notify the Company and the
Administrative Agent thereof, provided that such Bank's failure to give such
notice shall not affect the validity thereof.
(b) If any Bank shall obtain from the Company payment of any
principal of or interest on any Loan of any Class owing to it or payment of any
other amount under this Agreement through 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
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other Banks (or in interest due thereon, as the case may be) in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Banks shall share the benefit of such excess payment (net of
any expenses that may be incurred by such Bank in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid principal of and/or
interest on the Loans of such Class or such other amounts, respectively, owing
to each of the Banks. To such end all the Banks shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
(c) The Company agrees that any Bank so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans or other amounts (as the case may
be) owing to such Bank in the amount of such participation.
(d) Nothing contained herein shall require any Bank to exercise
any such right or shall affect the right of any Bank to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Company. If, under any applicable bankruptcy, insolvency or
other similar law, any Bank receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Banks entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
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
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taxation of any amounts payable to such Bank under this Agreement or its
Notes (if any) in respect of any of such Loans (excluding changes in the
rate of tax on the overall net income or gross receipts of such Bank or of
such lending office by the jurisdiction in which such Bank has its
principal office or such lending office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than, in the case of any Bank for any period
as to which the Company is required to pay any amount under paragraph (d)
below, the reserves against "Eurocurrency liabilities" under Regulation D
therein referred to) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such Bank (including,
without limitation, any of such Loans or any deposits referred to in the
definition of "Fixed Base Rate" in Section 1.01 hereof), or any commitment
of such Bank (including, without limitation, the Commitment of such Bank
hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (if any) (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
Amended and Restated Credit Agreement
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Basle Accord, of capital in respect of its Commitment or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Bank (or any lending office or
such bank holding company) to a level below that which such Bank (or any lending
office or such bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request).
(c) Each Bank shall notify the Company of any event occurring
after the date hereof entitling such Bank to compensation under paragraph (a) or
(b) of this Section 5.01 as promptly as practicable, but in any event within 60
days, after such Bank obtains actual knowledge thereof; provided that (i) if any
Bank fails to give such notice within 60 days after it obtains actual knowledge
of such an event, such Bank shall, with respect to compensation payable pursuant
to this Section 5.01 in respect of any costs resulting from such event, only be
entitled to payment under this Section 5.01 for costs incurred from and after
the date 60 days prior to the date that such Bank does give such notice and (ii)
each Bank will designate a different lending office for the Loans of such Bank
affected by such event if such 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)
Amended and Restated Credit Agreement
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equal to the product of the following for each Eurodollar Loan or LIBOR Market
Loan for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan or LIBOR
Market Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which
is the rate (expressed as a decimal) at which interest accrues on such
Eurodollar Loan or LIBOR Market Loan for such Interest Period as provided
in this Agreement (less the Applicable Margin) and the denominator of
which is one minus the effective rate (expressed as a decimal) at which
such reserve requirements are imposed on such Bank on such day minus (y)
such numerator; and
(iii) 1/360.
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
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Bank or its lending office to honor its obligation to make Eurodollar Loans or
LIBOR Market Loans hereunder (and, in the sole opinion of such Bank, the
designation of a different lending office would either not avoid such
unlawfulness or would be disadvantageous to such Bank), then such Bank shall
promptly notify the Company thereof (with a copy to the Administrative Agent)
and such Bank's obligation to make Eurodollar Loans shall be suspended until
such time as such Bank may again make Eurodollar Loans (in which case the
provisions of Section 5.04 hereof shall be applicable), and such Bank shall no
longer be 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 Bank, either entitled to submit a Form 1001
(relating to such Bank and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect of
the Loans) or Form 4224 (relating to all
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interest to be received by such Bank hereunder in respect of the Loans);
provided that it being understood that, if thereafter as a result of any
change in law or regulation such Bank becomes unable to submit the Form
previously submitted, the foregoing obligation to pay such additional
amounts shall apply; or
(ii) to any U.S. Taxes imposed solely by reason of the
failure by such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connections with the United States of
America of such non-U.S. Person if such compliance is required by statute
or regulation of the United States of America as a precondition to relief
or exemption from such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "U.S. Person" shall mean a
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"U.S. Taxes" shall mean any present or future tax, assessment or other charge or
levy imposed by or on behalf of the United States of America or any taxing
authority thereof or therein, (C) "Form 1001" shall mean Form 1001 (Ownership,
Exemption, or Reduced Rate Certificate) of the Department of the Treasury of the
United States of America and (D) "Form 4224" shall mean Form 4224 (Exemption
from Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of the Treasury of the
United States of America (or in relation to either such Form such successor and
related forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which such
Form relates). Each of the Forms referred to in the foregoing clauses (C) and
(D) shall include such successor and related forms as may from time to time be
adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Bank from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the Company
shall deliver to 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).
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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 (if any) 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.
Section 6. Conditions Precedent.
6.01 Conditions to Effectiveness. The effectiveness of the
amendment and restatement of the Original Credit Agreement provided for hereby
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:
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(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 (if any) 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 Xxxxxx 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, Xxxxxx & XxXxxx, 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) Payment of Facility Fee. Evidence that all fees payable to the
Original Banks accrued to the Amendment Effective Date under the Original
Credit Agreement and unpaid have been paid in full.
(f) Other Documents. Such other documents as the Administrative
Agent or any Bank or special New York counsel to Chase may reasonably
request.
The effectiveness of the amendment and restatement of the Original Credit
Agreement provided for hereby 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, Xxxxxx & XxXxxx, special New
York counsel to Chase, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the Notes (if any) and the making
of the Loans
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hereunder (to the extent that statements for such fees and expenses have been
delivered to the Company).
6.02 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).
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
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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, 1996 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, 1997 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, 1997, to normal year-end audit adjustments), all
in accordance with generally accepted accounting principles and practices
applied on a consistent basis. From December 31, 1996 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 and its Subsidiaries from that set forth in said financial statements as
at said date.
7.03 Litigation. Except as disclosed to the Banks in Schedule III
hereto, there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of the Company) threatened against the Company or any of its
Subsidiaries that are reasonably likely (either individually or in the
aggregate) to have a Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of this
Agreement and the Notes (if any), 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.
Amended and Restated Credit Agreement
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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 (if any); the execution, delivery and performance
by the Company of this Agreement and the Notes (if any) 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 (if any) 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 (if any) or for the
legality, validity or enforceability hereof or thereof.
7.07 ERISA. Each Plan, and, to the knowledge of the Company, each
Multiemployer Plan, is in compliance in all respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law (except where
failure so to comply would not have a Material Adverse Effect), and no event or
condition has occurred and is continuing as to which the Company would be under
an obligation to furnish a report to the Banks under Section 8.01(g) hereof.
7.08 Taxes. The Company and its Subsidiaries are members of an
affiliated group of corporations filing consolidated returns for Federal income
tax purposes, of which the Company is the "common parent" (within the meaning of
Section 1504 of the Code) of such group. The Company and its Subsidiaries have
filed all Federal income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
Subsidiaries, except for any such tax being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained. The
charges, accruals and reserves on the books of the Company and its Subsidiaries
in
Amended and Restated Credit Agreement
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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.
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, note 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, Interest Rate Protection Agreements or borrowings from
the Federal Home Loan Bank and any commercial paper or medium term note program
of the Company or any of its Subsidiaries), 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
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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 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.
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:
8.01 Financial Statements Etc. The Company shall deliver to each of
the Banks (except for the items referred to in clauses (c), (d) and (e), which
the Company shall deliver only to
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those Banks that specifically request delivery thereof):
(a) as soon as available and in any event within 75 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, 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
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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 75 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 75 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
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):
Amended and Restated Credit Agreement
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(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;
(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
Amended and Restated Credit Agreement
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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 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
Major 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 Major Subsidiary), prohibit
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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 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 Major Subsidiaries to,
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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 Major
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 Major Subsidiary of the Company shall be deemed to be the Disposition by
such Major Subsidiary of all or substantially all of the Property of such Major
Subsidiary).
Notwithstanding the foregoing provisions of this Section 8.05:
(a) any Major 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 Major Subsidiary of the Company may make a Disposition of
any or all of its Property (upon voluntary liquidation or otherwise) to
the Company or a Wholly-Owned Subsidiary of the Company; and
(c) the Company or any Major 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, "Major Subsidiaries" shall mean Washington
Mutual Bank and Washington Mutual Bank, FA.
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
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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;
(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 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
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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. ss.1461(b)(1)(A)), a consumer
finance company, a mortgage company, an insurance company, a trust company, an
investment advisor or a securities broker-dealer, (b) the business of providing
other financial services or (c) any business that may be engaged in by a
Washington state chartered savings bank (as defined in RCW 32.04.020), a Federal
savings association (as defined in 12 U.S.C. ss.1462(5)) or a bank holding
company (as defined in 12 U.S.C. ss.1841(a)) 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
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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 1.30 to 1.00.
(b) Ratio of Consolidated Equity to Consolidated Assets. The
Company will not permit at any time its ratio of Consolidated Equity to
Consolidated Assets to be less than 0.05 to 1.00.
(c) Minimum Tangible Net Worth. The Company will not permit at any
time its Tangible Net Worth to be less than $3,723,439,000 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 September 30, 1997.
(d) Maximum Non-Performing Assets. The Company will not permit at
any time its Non-Performing Assets to constitute more than 4.5% of the
Company's Consolidated 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 $40,000,000 or more; or any event specified in
any note, agreement, indenture or other document evidencing or relating to
any such Indebtedness shall occur if the effect of such event is to cause,
or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness to
become due, or to be prepaid in full
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(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 $40,000,000 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 $40,000,000 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 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
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(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; any of Washington Mutual Bank, Washington Mutual Bank fsb or
Washington Mutual Bank, FA shall cease to be an insured bank under the
Federal Deposit Insurance Act, as amended, and the rules and regulations
promulgated thereunder; or any Insured Subsidiary (other than Washington
Mutual Bank, Washington Mutual Bank fsb or Washington Mutual Bank, FA)
shall, pursuant to an order of any Bank Regulatory Authority, cease to be
an insured bank under the Federal Deposit Insurance Act, as amended, and
the rules and regulations promulgated thereunder; 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.
ss.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
$40,000,000 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 $120,000,000 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, terminate the Commitments and they shall thereupon
terminate, and (B) the Administrative Agent may and, upon request of the Banks
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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 (if any) (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 (if any)
(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 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
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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 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,
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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 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,
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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 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
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Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Section 10
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
10.09 Syndication Agents. The Syndication Agents identified on the
cover page of this Agreement or of any amendment hereto shall have no duties or
responsibilities hereunder other than as Banks.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Administrative Agent or
any Bank to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
The Company irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the
Administrative Agent or any Bank relating in any way to this Agreement should be
dismissed or stayed by reason, or pending the resolution, of any action or
proceeding commenced by the Company relating in any way to this Agreement
whether or not commenced earlier. To the fullest extent permitted by applicable
law, the Company shall take all measures necessary for any such action or
proceeding commenced by the Administrative Agent or any Bank to proceed to
judgment prior to the entry of judgment in any such action or proceeding
commenced by the Company.
11.02 Notices. All notices, requests and other communications
provided for herein (including, without limitation, any modifications of, or
waivers, requests or consents under, this Agreement) shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, or with respect to notices given pursuant
to Section 2.03 hereof, by telephone, confirmed in writing by telecopier by the
close of business on the day the notice is given, as follows:
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(a) if to the Company, to it at Washington Mutual, Inc., 0000 0xx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention of Xxxxxxxx X. Xxxxxxx
(Telecopy No. 206-554-4954);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxx Xxxxxxx (Telecopy No. (000) 000-0000), with a
copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxxxxx X. Xxxxxxx (Telecopy No. (000) 000-0000);
(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, Xxxxxx & XxXxxx, special New
York counsel to Chase) in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the Notes (if any) and the making
of the Loans hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this Agreement or any
of the Notes (if any) (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 Notes or
any other document referred to herein.
Amended and Restated Credit Agreement
69
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The Company hereby agrees to indemnify the Administrative Agent and
each Bank and their respective directors, officers, employees, attorneys and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages or expenses incurred by any of them (including,
without limitation, any and all losses, liabilities, claims, damages or expenses
incurred by the Administrative Agent to any Bank, whether or not the
Administrative Agent or any Bank is a party thereto) arising out of or by reason
of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
Loans hereunder or any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of the Loans hereunder, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
11.04 Amendments, Etc. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Company and the Majority Banks,
or by the Company and the Administrative Agent acting with the consent of the
Majority Banks, and any provision of this Agreement may be waived by the
Majority Banks or by the Administrative Agent acting with the consent of the
Majority Banks; provided that: (a) except as provided in Section 2.10 hereof, no
modification, supplement or waiver shall, unless by an instrument signed by all
of the Banks or by the Administrative Agent acting with the consent of all of
the Banks: (i) increase or extend the term of the Commitments, or extend the
time or waive any requirement for the reduction or termination of the
Commitments, (ii) extend the date fixed for the payment of principal of or
interest on any Loan or any fee hereunder, (iii) reduce the amount of any such
payment of 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
Amended and Restated Credit Agreement
70
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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 (if any) without the prior consent of all of the
Banks and the Administrative Agent.
(b) Each Bank may assign any of its Loans, its Notes (if any), and
its Commitment (but only with the consent of the Company and the Administrative
Agent, each of which consents will not be unreasonably withheld); provided that
(i) no such consent by the Company or the Administrative
Agent shall be required in the case of any assignment to another Bank or
an affiliate of a Bank;
(ii) except to the extent the Company and the Administrative
Agent shall otherwise consent, any such partial assignment (other than to
another Bank) shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Bank of its Loans, Note (if
any) or Commitment shall be made in such manner so that the same portion
of its Loans, Note (if any) 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.
(c) The Administrative Agent, acting for this purpose as an agent
of the Company, shall maintain at one of its offices in the City of New York a
copy of each such Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Banks, and the Commitment of,
and principal amount of the Loans owing to, each Bank pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Company, the Administrative Agent and the Banks may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Bank hereunder for all purposes of this Agreement,
Amended and Restated Credit Agreement
71
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notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company and any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(d) 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 (i) 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), (ii) the
assigning Bank shall, to the extent of such assignment, be released from the
Commitment (or portion thereof) so assigned and (iii) the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. Upon each such assignment the assigning Bank shall pay
the Administrative Agent an assignment fee of $3,000.
(e) A Bank may sell or agree to sell to one or more other Persons
(each a "Participant") a participation in all or any part of any Loans held by
it, or in its Commitment, provided that such Participant shall not have any
rights or obligations under this Agreement or any Note (the Participant's rights
against such Bank in respect of such participation to be those set forth in the
agreements executed by such Bank in favor of the Participant). All amounts
payable by the Company to any Bank under Section 5 hereof in respect of Loans
held by it, and its Commitment, shall be determined as if such Bank had not sold
or agreed to sell any participations in such Loans and Commitment, and as if
such Bank were funding each of such Loan and Commitment in the same way that it
is funding the portion of such Loan and Commitment in which no participations
have been sold. In no event shall a Bank that sells a participation agree with
the Participant to take or refrain from taking any action hereunder except that
such Bank may agree with the Participant that it will not, without the consent
of the Participant, agree to (i) increase or extend the term of such Bank's
Commitment, (ii) extend the date fixed for the payment of principal of or
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
Amended and Restated Credit Agreement
72
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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.
(f) 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 (if any) 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 (if any) to an affiliate. No such assignment to a Federal
Reserve Bank shall release the assigning Bank from its obligations hereunder.
(g) 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.
(h) 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.
(i) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Bank, identified as such in writing from time to time by
the Granting Bank to the Administrative Agent and the Company, the option to
provide all or any part of any Loan that such Granting Bank would otherwise be
obligated to make, provided that (i) nothing herein shall constitute a
commitment to make any Loan by any SPC, (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Granting Bank shall make such Loan pursuant to the terms hereof, and (iii) the
rights of any such SPC shall be derivative of the rights of the Granting Bank,
and such SPC shall be subject to all of the restrictions upon the Granting Bank
herein contained. Each SPC shall be conclusively presumed to have made
arrangements with its Granting Bank for the exercise of voting and other rights
hereunder in a manner which is acceptable to the SPC, the Administrative Agent,
the Banks and the Company, and each of the Administrative Agent, the Banks and
the Company shall be entitled to rely upon and deal solely with the Granting
Bank with respect to Loans made by or
Amended and Restated Credit Agreement
73
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through its SPC. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by the Granting Bank. Each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof, provided that the Granting Bank for each
SPC hereby agrees to indemnify, save and hold harmless each other party hereto
for any loss, cost, damage and expense arising out of their inability to
institute any such proceeding against its SPC. In addition, notwithstanding
anything to the contrary contained in this Section 11.06(i), any SPC may (i)
with the prior written consent of the Company and the Administrative Agent
(which consents shall not be unreasonably withheld) but without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to its Granting Bank or to any financial institutions providing liquidity and/or
credit facilities to or for the account of such SPC to fund the Loans made by
such SPC or to support the securities (if any) issued by such SPC to fund such
Loans (but nothing contained herein shall be construed in derogation of the
obligation of the Granting Bank to make Loans hereunder), provided that neither
the consent of the SPC or of any such assignee shall be required for amendments
or waivers hereunder except for those amendments or waivers for which the
consent of participants is required under Section 11.04, and (ii) disclose on a
confidential basis (in the same manner described in Section 11.12) any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of a surety, guarantee or credit or liquidity
enhancement to such SPC.
11.07 Survival. The obligations of the Company under Sections 5.01,
5.05, 5.06 and 11.03 hereof, and the obligations of the Banks under Section
10.05 hereof, shall survive the repayment of the Loans and the termination of
the Commitments and, in the case of any Bank that may assign any interest in its
Commitment or Loans hereunder, shall survive the making of such assignment,
notwithstanding that such assigning Bank may cease to be a "Bank" hereunder. In
addition, each representation and warranty made, or deemed to be made by a
notice of any Loan, herein or pursuant hereto shall survive the making of such
representation and warranty, and no Bank shall be deemed to have 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
Amended and Restated Credit Agreement
74
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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 (if any) 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 (IF ANY) OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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
Amended and Restated Credit Agreement
75
- 76 -
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
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.
Amended and Restated Credit Agreement
76
- 77 -
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed as of the day and year first above
written.
WASHINGTON MUTUAL, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Senior Vice President
and Deputy Chief Financial
Officer
Amended and Restated Credit Agreement
77
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BANKS
Commitment THE CHASE MANHATTAN BANK
$20,000,000
By /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------------
Title: Vice President
Commitment BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
$20,000,000
By /s/ Xxxxxxxxx Xxxxx
-----------------------------------------
Title: Vice President
Commitment THE FIRST NATIONAL BANK OF CHICAGO
$20,000,000
By /s/ Xxxxxx X. English
-----------------------------------------
Title: Authorized Agent
Commitment THE BANK OF NEW YORK
$15,000,000
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Title: Vice President
Commitment XXXXX FARGO BANK
$15,000,000
By /s/ Xxxxx X. Xxxxxxxxxxxxx
-----------------------------------------
Title: Vice President
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Title: Assistant Vice President
Commitment BANK OF MONTREAL
$11,500,000
By /s/ J. Xxxxxx Xxxxxxx
-----------------------------------------
Title: Managing Director
Commitment THE BANK OF TOKYO-MITSUBISHI, LTD.,
SEATTLE BRANCH
Amended and Restated Credit Agreement
78
- 79 -
$11,500,000
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
Commitment THE DAI-ICHI KANGYO BANK, LIMITED
SAN FRANCISCO
$11,500,000
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Title: General Manager & Agent
Commitment U.S. BANK NATIONAL ASSOCIATION
$11,500,000
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Title: Vice President
Commitment CITIBANK, N.A.
$8,000,000
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President
Commitment CREDIT LYONNAIS, SAN XXXXXXXXX XXXXXX
$8,000,000
By /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President & Manager
Commitment DEUTSCHE BANK
$8,000,000
By /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------
Title: Vice President
By /s/ Xxxx X. XxXxxx
-----------------------------------------
Title: Vice President
Commitment KEYBANK NATIONAL ASSOCIATION
$8,000,000
By /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------
Amended and Restated Credit Agreement
79
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Title: Vice President
Commitment MELLON BANK, N.A.
$8,000,000
By /s/ Xxxx X. Xxxx
-----------------------------------------
Title: Vice President
Commitment XXXXXX GUARANTY TRUST COMPANY
$8,000,000
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President
Commitment UNION BANK OF CALIFORNIA
$8,000,000
By /s/ Xxx Xxxxxxx
-----------------------------------------
Title: Vice President
Commitment WESTDEUTSCHE LANDESBANK
$8,000,000
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
By /s/ Xxx Xxxxxxx
-----------------------------------------
Title: Associate
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------------
Title: Vice President
Amended and Restated Credit Agreement
80
SCHEDULE III
Litigation
None.
81
EXHIBIT A-1
[Form of Syndicated Note]
PROMISSORY NOTE
$_______________ November 25, 0000
Xxx Xxxx, Xxx Xxxx
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 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, 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 Amended
and Restated Four-Year Credit Agreement dated as of November 25, 1997 (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, providing for Loans in an
aggregate principal amount not to exceed $200,000,000, and evidences Syndicated
Loans made by the Bank thereunder. Terms used but not defined in this Note have
the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of
Syndicated Note
82
the maturity of this Note upon the occurrence of certain events and for
prepayments of Syndicated 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
83
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:
Principal Duration
Amount Type of Amount Unpaid
Date of of Interest Interest Paid or Principal Notation
Made Loan Loan Rate Period Prepaid Amount Made by
---- --------- ---- -------- -------- ------- --------- --------
Syndicated Note
84
EXHIBIT A-2
[Form of Money Market Note]
PROMISSORY NOTE
November 25, 0000
Xxx Xxxx, Xxx Xxxx
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 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, 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
Amended and Restated Four-Year Credit Agreement dated as of November 25, 1997
(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, providing for Loans in an
aggregate principal amount not to exceed $200,000,000, 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.
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.
Money Market Note
85
- 86 -
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
86
- 87 -
SCHEDULE OF MONEY MARKET LOANS
This Note evidences Money Market 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
Amount Maturity
of Type Date Amount Unpaid
Date Notation of Interest of Paid or Principal
Made Loan Loan Rate Loan Prepaid Amount Made by
---- --------- ---- -------- -------- ------- --------- -------
Money Market Note
87
EXHIBIT B
[Form of Opinion of Counsel to the Company]
November 25, 1997
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 Amended and Restated Four-Year Credit Agreement (the
"Credit Agreement") dated as of November 25, 1997, 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 $200,000,000 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 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 (if any);
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 made
in or pursuant to the Credit Documents and certificates of appropriate
representatives of the Company.
Opinion of Counsel to the Company
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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.
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
Opinion of Counsel to the Company
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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 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
Opinion of Counsel to the Company
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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 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.
Opinion of Counsel to the Company
91
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(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 XxXxxxxxxx v.
Bankers Life Insurance, 110 Wn.2d 716, 757 P.2d 941 (1988) and in Xxxxxxx
v. Rainier National Bank, 111 Wn.2d 232, 757 P.2d 976 (1988), the
Washington Supreme Court indicated that, at least under certain
circumstances, a lender may lose the right to a prepayment fee by
accelerating the debt.
(G) Our opinion in paragraphs 6 and 7(b) above is not intended to
address the issue as to whether any filing or registrations would be
required under applicable securities laws in connection with the sale,
assignment or other transfer by a Bank of any Loan or Note or any interest
or participation therein.
(H) We note that, under Washington law, if a Bank is deemed to be
transacting business as a foreign corporation in the State of Washington
without being qualified to do so, it will not be entitled to commence a
proceeding in the courts in this state with respect to the Credit
Documents unless it qualifies to transact business as a foreign
corporation under the Washington Business Corporation Act and under Title
30 of the Revised Code of Washington (Banks and Trust Companies), to the
extent such Title is applicable to such Bank. We further note, however,
that no Bank will be subject to the requirement to qualify to transact
business as a foreign corporation solely by reason of the execution,
delivery, performance or enforcement of the Credit Documents.
The foregoing opinions are limited to matters involving the Federal
laws of the United States and the law of the State of Washington, and we do not
express any opinion as to the laws of any other jurisdiction.
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.
Opinion of Counsel to the Company
92
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Very truly yours,
Opinion of Counsel to the Company
93
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
November 25, 1997
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 the Amended and Restated Four-Year Credit
Agreement dated as of November 25, 1997 (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 $200,000,000. Terms
defined in the Credit Agreement are used herein as defined therein. This opinion
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, instruments:
(a) the Credit Agreement; and
(b) the Notes executed and delivered on the date hereof (if any).
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.
Opinion of Special Counsel to Chase
94
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In rendering the opinions expressed below, we have assumed, with
respect to all of the Credit Documents, that:
(i) each of the Credit Documents has been duly authorized by, has
been duly executed and delivered by, and (except to the extent
set forth in the opinions below as to the Company) constitutes
legal, valid, binding and enforceable obligations of, all of
the parties thereto;
(ii) all signatories to the Credit Documents have been duly
authorized; and
(iii) all of the parties to the Credit Documents are duly organized
and validly existing and have the power and authority
(corporate or other) to execute, deliver and perform the
Credit Documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Documents
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium 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.
(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
Opinion of Counsel to the Company
95
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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 Agreements 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/RMG
Opinion of Special Counsel to Chase
96
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 Amended and Restated Four- Year
Credit Agreement dated as of November 25, 1997 (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
97
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[1] For use if a Set Rate in a Set Rate Auction is requested to be submitted
before the Borrowing Date.
[2] Each amount must be $10,000,000 or a larger multiple of $1,000,000.
[3] Insert either "LIBO Margin" (in the case of LIBOR Market Loans) or "Set
Rate" (in the case of Set Rate Loans).
[4] A whole number of months, in the case of a LIBOR Market Loan or, in the
case of a Set Rate Loan, a period of not less than 7 days after the making
of such Set Rate Loan and ending on a Business Day.
Money Market Quote Request
98
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 Amended and Restated Four-Year Credit Agreement dated as of November 25,
1997 (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
99
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We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for which
any offer(s) (is/are) accepted, in whole or in part (subject to the third
sentence of Section 2.03(e) of the Credit Agreement and any Money Market Loan
Limit specified above).
Very truly yours,
[NAME OF 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
100
EXHIBIT F
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Amended and Restated Four-Year Credit Agreement dated as of
November 25, 1997 (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 procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such
Confidentiality Agreement
101
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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.
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.
Confidentiality Agreement
102
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[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By_________________________
Confidentiality Agreement
103
EXHIBIT G
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Four-Year Credit
Agreement, dated as of November 25, 1997 (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 thereto; and (iii) if any Note(s) are held by it to
evidence the Assigned Facilities, attaches such Note(s) and requests that the
Notice of Assignment
104
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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), together with (if the
Assignee is not already a Bank under the Credit Agreement), an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee.
5. Upon such acceptance, from and after the Effective Date, the
Administrative Agent shall make all payments in respect
Notice of Assignment
105
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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.
Schedule 1 to
Assignment and Acceptance
relating to the Amended and Restated Four-Year Credit Agreement,
dated as of November 25, 1997
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
----------------- --------------- ----------
Notice of Assignment
106
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[ASSIGNEE] [ASSIGNOR]
By:___________________________ By:_____________________________
Title: Title:
[Agreed and] Accepted:
THE CHASE MANHATTAN BANK
By:___________________________
Title:
[Agreed:
WASHINGTON MUTUAL, INC.
By:___________________________
Title:]
Notice of Assignment
