EXECUTION COPY
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364-DAY AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
August 10, 2000
between
WASHINGTON MUTUAL, INC. and
WASHINGTON MUTUAL FINANCE CORPORATION,
as Borrowers
The LENDERS Party Hereto
BANK OF AMERICA, N.A.,
BANC ONE CAPITAL MARKETS, INC. and
CITIBANK, N.A.
as Syndication Agents,
CHASE SECURITIES, INC.,
as Book Manager and Lead Arranger
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$1,200,000,000
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<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined
Terms.............................................1
SECTION 1.02. Classification of Loans and
Borrowings....................17
SECTION 1.03. Terms
Generally...........................................18
SECTION 1.04. Accounting Terms;
GAAP....................................18
ARTICLE II
THE CREDITS
SECTION 2.01. The
Commitments...........................................18
SECTION 2.02. Loans and
Borrowings......................................19
SECTION 2.03. Requests for Syndicated
Borrowings........................20
SECTION 2.04. Competitive Bid
Procedure.................................21
SECTION 2.05. Funding of
Borrowings.....................................23
SECTION 2.06. Interest
Elections........................................23
SECTION 2.07. Termination and Reduction of the
Commitments..............25
SECTION 2.08. Repayment of Loans; Evidence of
Debt......................25
SECTION 2.09. Prepayment of
Loans.......................................28
SECTION 2.10. Fees......................................................28
SECTION 2.11. Interest..................................................29
SECTION 2.12. Alternate Rate of
Interest................................30
SECTION 2.13. Increased
Costs...........................................31
SECTION 2.14. Break Funding
Payments....................................32
SECTION 2.15. Taxes.....................................................33
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs..................................................34
SECTION 2.17. Mitigation Obligations; Replacement of
Lenders............35
SECTION 2.18. Extension of Commitment Termination
Date..................36
SECTION 2.19. Illegality................................................38
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization;
Powers......................................38
SECTION 3.02. Authorization;
Enforceability.............................38
SECTION 3.03. Governmental Approvals; No
Conflicts......................38
SECTION 3.04. Financial Condition; No Material Adverse
Change...........39
SECTION 3.05. Properties................................................39
SECTION 3.06. Litigation and Environmental
Matters......................39
SECTION 3.07. Compliance with Laws and
Agreements.......................39
SECTION 3.08. Investment and Holding Company
Status.....................40
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SECTION 3.09. Taxes.....................................................40
SECTION 3.10. ERISA.....................................................40
SECTION 3.11. Disclosure................................................40
SECTION 3.12. Use of Credit.............................................40
SECTION 3.13. Material Agreements and
Liens.............................41
SECTION 3.14. Subsidiaries..............................................41
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective
Date............................................42
SECTION 4.02. Each Credit
Event.........................................43
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other
Information................43
SECTION 5.02. Notices of Material
Events................................45
SECTION 5.03. Existence; Conduct of
Business............................46
SECTION 5.04. Payment of
Obligations....................................46
SECTION 5.05. Maintenance of Properties;
Insurance......................46
SECTION 5.06. Books and Records; Inspection
Rights......................46
SECTION 5.07. Compliance with
Laws......................................46
SECTION 5.08. Use of
Proceeds...........................................46
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Liens.....................................................47
SECTION 6.02. Fundamental
Changes.......................................48
SECTION 6.03. Certain Restrictions on
Subsidiaries......................49
SECTION 6.04. Certain Financial
Covenants...............................49
SECTION 6.05. Insured Subsidiary
Capital................................50
SECTION 6.06. Payment of
Dividends......................................50
ARTICLE VII
EVENTS OF DEFAULT................................50
ARTICLE VIII
AGENTS
SECTION 8.01 Administrative
Agent.......................................53
SECTION 8.02 Syndication
Agents.........................................55
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices...................................................55
SECTION 9.02. Waivers;
Amendments.......................................56
SECTION 9.03. Expenses; Indemnity; Damage
Waiver........................57
SECTION 9.04. Successors and
Assigns....................................58
SECTION 9.05. Survival..................................................61
SECTION 9.06. Counterparts; Integration;
Effectiveness..................61
SECTION 9.07. Severability..............................................62
SECTION 9.08. Right of
Setoff...........................................62
SECTION 9.09. Governing Law; Jurisdiction;
Etc..........................62
SECTION 9.10. WAIVER OF JURY
TRIAL......................................63
SECTION 9.11. Headings..................................................63
SECTION 9.12. Treatment of Certain Information;
Confidentiality.........63
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Subsidiaries
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Opinion of Counsel to the Borrowers
EXHIBIT C - Form of Opinion of Special New York Counsel to Chase
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364-DAY AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 10,
2000, between WASHINGTON MUTUAL, INC. ("WAMU"), and WASHINGTON MUTUAL FINANCE
CORPORATION ("FINANCE"; each of WAMU and Finance is herein referred to as a
"BORROWER" and, collectively, as the "BORROWERS"), the LENDERS party hereto, and
THE CHASE MANHATTAN BANK, as Administrative Agent.
WAMU and Finance (formerly known as Aristar, Inc.), the lenders
named therein and Chase, as administrative agent, are parties to a Credit
Agreement dated as of August 11, 1999 (as heretofore modified and supplemented
and in effect on the date hereof immediately before the amendment and
restatement contemplated hereby, the "EXISTING CREDIT AGREEMENT"). The Borrowers
have requested that the Lenders party hereto amend the Existing Credit Agreement
to (i) increase the aggregate amount of the credit available thereunder from
$600,000,000 to $1,200,000,000 and (ii) make certain other modifications to the
Existing Credit Agreement, and restate the Existing Credit Agreement as so
amended in its entirety. The Lenders are willing to so agree and, accordingly,
the parties hereto hereby agree that the Existing Credit Agreement shall be
amended and restated as of the date hereof (subject to Section 5.01) in its
entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ACQUISITION" shall mean any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which WAMU and/or
one or more of its Subsidiaries (in one transaction or as the most recent
transaction in a series of related transactions) (a) acquires any going business
or all or substantially all of the assets of any Person (or division or
operating unit thereof), whether through purchase of assets, merger or otherwise
or, (b) directly or indirectly acquires control of securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests of any corporation, limited liability company,
partnership, association or other entity.
"ADJUSTED LIBO RATE" means, for the Interest Period for any
Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
MULTIPLIED by (b) the Statutory Reserve Rate for such Interest Period.
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"ADMINISTRATIVE AGENT" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
for such day plus 1% and (c) the Federal Funds Effective Rate for such day plus
1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate, as the case may be.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the aggregate principal amount of the Syndicated Loans
held by the Lenders or, if no Syndicated Loans are outstanding, the Commitments
most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day, with respect to any ABR Loan,
zero, or with respect to any Syndicated Eurodollar Loan, or with respect to the
facility fees or utilization fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption, "Eurodollar
Spread", "Facility Fee Rate" or "Utilization Fee Rate", respectively, based upon
the ratings by Moody's and S&P, respectively, applicable on such date to the
Index Debt:
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Eurodollar Facility Fee Utilization Fee
-----------
Index Debt Spread Rate Rate
------ ---- --------
Ratings
--------------
(S&P/Moody's)
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if > 33-1/3% if > 66-
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Utilization 2/3%
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Utilization
-----------
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Category 1 > A+/A1 .230% .070% .050% .050%
--
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Category 2 A-/A3 .270% .080% .125% .175%
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Category 3 BBB+/Baa1 .350% .100% .150% .200%
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Category 4 BBB/Baa2 .500% .125% .150% .200%
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Category 5 BBB-/Baa3 .600% .150% .150% .200%
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For purposes of the foregoing, "UTILIZATION" means, at any time, the
result (expressed as a percentage) obtained by dividing (a) the sum at such time
of the aggregate outstanding principal amount of the Loans by (b) the aggregate
outstanding Commitments (and for this purpose, each Non-Extending Lender shall
be deemed to have a Commitment in an amount equal to the aggregate outstanding
principal amount of its Non-Extending Lender Term Loans and, in the case of any
Lender that has outstanding Term Loans at such time, such Lender shall be deemed
to have a Commitment in an amount equal to the aggregate outstanding principal
amount of its Term Loans).
For purposes of the foregoing, (i) if either Moody's or S&P shall
not have in effect a rating for the Index Debt of a Borrower (other than by
reason of the circumstances referred to in the last sentence of this
definition), then such rating agency shall be deemed to have established a
rating for the Index Debt of such Borrower in Category 5; and (ii) if the
ratings established or deemed to have been established by Moody's and S&P for
the Index Debt shall be changed (other than as a result of a change in the
rating system of Moody's or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrowers and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
Subject to the foregoing,
(a) with respect to any facility fees payable under Section
2.10(a), the Applicable Rate shall be determined by reference to the
higher Index Debt rating assigned by Moody's and S&P to the Borrower with
the lower overall Index Debt rating assigned by Moody's and S&P; PROVIDED
that if there shall be a difference of two or more rating categories
between the ratings assigned by Moody's and S&P to the Index Debt of the
Borrower by reference to whose Index Debt the Applicable Rate is to be
determined, such Applicable Rate shall be determined by reference to the
Index Debt rating that is one category lower than the higher of the two
Index Debt ratings assigned by Moody's and S&P; and
(b) with respect to any utilization fees payable by a Borrower
under Section 2.10(b) and any Syndicated Eurodollar Loan made to such
Borrower, the Applicable Rate shall be determined by reference to the
higher Index Debt rating assigned by Moody's and S&P to such Borrower;
PROVIDED that if there shall be a difference of two or more rating
categories between the ratings assigned by Moody's and S&P to the Index
Debt of such Borrower, such Applicable Rate shall be determined by
reference to the Index Debt rating that is one category lower than the
higher of the two Index Debt ratings assigned by Moody's and S&P.
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"ASSESSMENT RATE" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States of America; provided that if, as a
result of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"ASSET SECURITIZATION" shall mean a public or private transfer of
installment receivables, credit card receivables, lease receivables or any other
type of secured or unsecured financial assets which transfer is recorded as a
sale according to GAAP as of the date of such transfer.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to and including the Commitment Termination Date.
"BANK REGULATORY AUTHORITY" means the Board, the Comptroller of the
Currency, the Federal Deposit Insurance Corporation and all other relevant bank
regulatory authorities (including relevant state bank regulatory authorities).
"BASE CD RATE" means, for any day, the sum of (a) the Three-Month
Secondary CD Rate for such day multiplied by the Statutory Reserve Rate for such
day plus (b) the Assessment Rate for such day.
"BOARD" means the Board of Governors of the Federal Reserve System
of the United States of America.
"BORROWERS" means collectively, Finance and WAMU.
"BORROWING" means (a) all ABR Loans made to, or converted or
continued by, a Borrower on the same date or (b) all Syndicated Eurodollar Loans
or Competitive Loans made to a Borrower of the same Class and Type that have the
same Interest Period (or any single Competitive Loan made to such Borrower that
does not have the same Interest Period as any other Competitive Loan of the same
Type). For purposes hereof, the date of a Syndicated Borrowing comprising one or
more Loans that have been converted or continued shall be the effective date of
the most recent conversion or continuation of such Loan or Loans.
"BORROWING REQUEST" means a request by a Borrower for a Syndicated
Borrowing in accordance with Section 2.03.
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"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in Dollar deposits in the London interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
SEC thereunder as in effect on the date hereof), of shares representing more
than 25% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of WAMU; (b) during any period of 25 consecutive
calendar months, a majority of the Board of Directors of WAMU ceasing to be
composed of individuals (i) who were members of said Board on the first day of
such period, (ii) whose election or nomination to said Board was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of said Board or (iii) whose election
or nomination to said Board was approved by individuals referred to in clauses
(i) and (ii) above constituting at the time of such election or nomination at
least a majority of said Board; (c) the acquisition by any Person or group of
direct or indirect possession of the power to direct or cause to direct the
management or policies of WAMU, whether through the ability to exercise voting
power, by contract or otherwise; or (d) the failure of WAMU to own at least 80%
of the outstanding capital stock of Finance.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CHASE" means The Chase Manhattan Bank.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are Syndicated
Loans or Competitive Loans.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITMENTS" means, collectively, the Revolving Credit
Commitments.
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"COMMITMENT TERMINATION DATE" means August 9, 2001 as such date may
be extended pursuant to Section 2.18.
"COMPETITIVE", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.04.
"COMPETITIVE BID" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.04.
"COMPETITIVE BID RATE" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"COMPETITIVE BID REQUEST" means a request by a Borrower for
Competitive Bids in accordance with Section 2.04.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CONSOLIDATED ASSETS" shall mean, at any date, the amount at which
the assets of WAMU and its Subsidiaries are or should be shown on a consolidated
statement of financial position prepared in accordance with GAAP as at such
date.
"CONSOLIDATED EQUITY" shall mean, at any date, the amount of
stockholders' equity of WAMU and its Subsidiaries determined on a consolidated
basis without duplication in accordance with GAAP (and, for the purposes of
Section 6.04 only, shall include Special Preferred Equity Securities, but only
to the extent that such Special Preferred Equity Securities could be treated as
Tier 1 capital of WAMU if WAMU were a bank holding company subject to regulation
by the Board).
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of Finance in its
consolidated financial statements as of such date.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings
disclosed in Schedule III and the environmental matters disclosed in Schedule
IV.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"DOUBLE LEVERAGE RATIO" means, at any date, the ratio of (a) the sum
of (i) the aggregate book value of the Investments of WAMU in the capital notes
and stock of its Subsidiaries as at such date PLUS (ii) the aggregate amount of
intangibles (including purchased
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mortgage servicing rights and purchased credit card relationships) of
the Subsidiaries of WAMU as at such date to (b) Consolidated Equity as at such
date.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of either Borrower or any of
their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY RIGHTS" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE" means, with respect to a Borrower, any trade or
business (whether or not incorporated) that, together with such Borrower, is
treated as a single employer under Section 414(b) or (c) of the Code, or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by either Borrower or any of their
respective ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the distribution of or receipt by
either Borrower or any of their respective ERISA Affiliates from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan or the institution of
proceedings by from the PBGC or a plan administrator in relation to the
foregoing; (f) the incurrence by either
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Borrower or any of their respective ERISA Affiliates of any liability
(including the obligation to satisfy secondary liability as a result of a
purchaser default) with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; (g) the receipt by either Borrower or any of their
respective ERISA Affiliates of any notice, or the receipt by any Multiemployer
Plan from either Borrower or any of their respective ERISA Affiliates of any
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (h) the institution of
a proceeding by a fiduciary of any Multiemployer Plan against either Borrower or
any of their respective ERISA Affiliates to enforce Section 515 of ERISA, which
proceeding is not dismissed within 30 days; or (i) the adoption of an amendment
to any Plan that, pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the trust of which such
Plan is a part if either Borrower or any of their respective ERISA Affiliates
fails to timely provide security to the Plan in accordance with the provisions
of said Sections.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to (a) in the case of a
Syndicated Loan or Borrowing, the Adjusted LIBO Rate, or (b) in the case of a
Competitive Loan or Borrowing, the LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCLUDED TAXES" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of either Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which such Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by such Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
or is attributable to such Foreign Lender's failure or inability to comply with
Section 2.15(e), except to the extent that such Foreign Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
such Borrower with respect to such withholding tax pursuant to Section 2.15(a).
"EXISTING COMMITMENT TERMINATION DATE" has the meaning assigned to
such term in Section 2.18(a).
"EXISTING CREDIT AGREEMENT" has the meaning assigned to such term in
the preamble.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if
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such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"FINANCE" means Washington Mutual Finance Corporation, a Delaware
corporation, formerly known as Aristar, Inc.
"FINANCIAL OFFICER" means, with respect to a Borrower, the chief
financial officer, principal accounting officer, treasurer or controller of such
Borrower.
"FIXED RATE" means, with respect to any Competitive Loan (other than
a Competitive Eurodollar Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"FIXED RATE LOAN" means a Competitive Loan bearing interest at a
Fixed Rate.
"FOREIGN LENDER" means any Lender that is organized under the laws
of a jurisdiction other than that in which either Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; PROVIDED, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
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"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEX DEBT" means, with respect to a Borrower, senior, unsecured,
long-term indebtedness for borrowed money of such Borrower that is not
guaranteed by any other Person or subject to any other credit enhancement.
"INSURED SUBSIDIARY" means any insured depositary institution (as
defined in 12 U.S.C. 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 either Borrower.
"INTEREST ELECTION REQUEST" means a request by a Borrower to convert
or continue a Syndicated Borrowing in accordance with Section 2.06.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, each
Quarterly Date, (b) with respect to any Eurodollar Loan, the last day of each
Interest Period therefor and, in the case of any Interest Period for a
Eurodollar Loan that is more than three months long, each day prior to the last
day of such Interest Period that occurs at intervals of three months after the
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first day of such Interest Period and (c) with respect to any Fixed Rate Loan,
the last day of the Interest Period therefor and, in the case of any Interest
Period for a Fixed Rate Loan that is more than 90 days long (unless otherwise
specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90 days after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Loan.
"INTEREST PERIOD" means:
(a) for any Borrowing (other than an ABR Borrowing), the
Interest Period of the Loan or Loans constituting such Borrowing;
(b) for any Syndicated Eurodollar Loan, the period commencing on the
date of such Loan and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as
specified in the applicable Borrowing Request or Interest Election
Request;
(c) for any Competitive Eurodollar Loan, the period commencing on
the date of such Loan and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months thereafter, as
specified in the applicable Competitive Bid Request; and
(d) for any Fixed Rate Loan, the period (which shall not be less
than 7 days or more than 180 days) commencing on the date of such Loan and
ending on the date specified in the applicable Competitive Bid Request;
PROVIDED, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Loan initially shall be the date on which such
Loan is made and, in the case of a Syndicated Loan, thereafter shall be the
effective date of the most recent conversion or continuation of such Loan.
"INVESTMENt" means, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including any
"short sale" or any sale of any securities at a time when such securities are
not owned by the Person entering into such sale); (b) the making of any deposit
with, or advance, loan or other extension of credit to, any other Person
(including the purchase of property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such property to
such Person); (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
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and (without duplication) any amount committed to be advanced, lent or extended
to such Person; or (d) the entering into of any Hedging Agreement.
"LENDERS" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO RATE" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for the offering of Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the LIBO Rate for such Interest Period shall
be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOANS" means the loans made by the Lenders to the Borrowers (or to
either of them) pursuant to this Agreement.
"MAJOR SUBSIDIARIES" shall mean Washington Mutual Bank and
Washington Mutual Bank, FA.
"MARGIN" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"MARGIN STOCK" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
either Borrower and its Subsidiaries, in each case, taken as a whole, (b) the
ability of either Borrower to perform any of its obligations under this
Agreement or (c) the rights of or benefits available to the Lenders under this
Agreement.
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"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans),
or obligations in respect of one or more Hedging Agreements, of any one or more
of the Borrowers and their respective Subsidiaries in an aggregate principal
amount exceeding $40,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of any Person in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that such Person would be required to pay if
such Hedging Agreement were terminated at such time.
"MATURITY DATE" has the meaning assigned to such term in Section
2.08(b)(i).
"MOODY'S" means Moody's Investors Service, Inc.
-------
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NON-EXTENDING LENDER" has the meaning set forth in Section 2.18(a).
"NON-EXTENDING LENDER TERM LOAN MATURITY DATE" has the meaning
assigned to such term in Section 2.08(b)(ii).
"NON-EXTENDING LENDER TERM LOAN" has the meaning assigned to such
term in Section 2.08(b)(ii).
"NON-MATERIAL SUBSIDIARIES" shall mean, as at any date, Subsidiaries
of WAMU the total assets of which, in the aggregate, do not exceed one percent
(1%) of the Consolidated Assets of WAMU and all of its Subsidiaries, as at such
date.
"NON-PERFORMING ASSETS" shall mean, as at any date, the sum, for
WAMU and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of the following: (a) non-accrual loans
PLUS (b) accruing loans past due 90 days or more PLUS (c) other non-performing
assets PLUS (d) other real estate owned PLUS (e) without duplication for amounts
included as other real estate owned, property acquired pursuant to in-substance
foreclosures.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
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(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) cash deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in
the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that in the aggregate are not material in amount and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of any of the Borrowers
and their Subsidiaries;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which either Borrower
or any of their respective ERISA Affiliates is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by Chase as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"QUARTERLY DATES" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"REGISTER" has the meaning assigned to such term in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
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"REPURCHASE ARRANGEMENTS" shall mean repurchase and reverse
repurchase arrangements with respect to securities and financial instruments.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 50% of the sum of
the total Revolving Credit Exposures and unused Commitments at such time
(PROVIDED that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all purposes after the Loans become due and
payable pursuant to Article VII or the Commitments expire or terminate, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders).
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of Finance, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of capital stock of Finance or of any option,
warrant or other right to acquire any such shares of capital stock of Finance.
"REVOLVING CREDIT COMMITMENT" means as to each Lender, the
obligation of such Lender to make Syndicated Loans pursuant to Section 2.01, as
such commitment may be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Revolving Credit Commitment is set forth on Schedule I, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed such Revolving
Credit Commitment, as applicable. The initial aggregate amount of the Revolving
Credit Commitments shall be $1,200,000,000.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at any
time, the aggregate outstanding principal amount of such Lender's Syndicated
Loans at such time.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to any or all of the functions of said
Commission.
"SENIOR INDEBTEDNESS" means all Indebtedness of Finance other
than Subordinated Indebtedness.
"SPECIAL PREFERRED EQUITY SECURITIES" shall mean preferred equity
securities, if any, issued by a wholly-owned Subsidiary of WAMU of the type
marketed under proprietary names such as MIPS, SKIS and TOPRS.
"S&P" means Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies, Inc.
"STATUTORY RESERVE RATE" means, for any day (or for the Interest
Period for any Eurodollar Borrowing), a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one MINUS the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental
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reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject on such day (or, with respect to an Interest
Period, the denominator of which is the number one MINUS the arithmetic mean of
such aggregates for the days in such Interest Period) (a) with respect to the
Base CD Rate, for new negotiable nonpersonal time deposits in Dollars of over
$100,000 with maturities approximately equal to three months and (b) with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"SUBORDINATED INDEBTEDNESS" means all Indebtedness of Finance which
is subordinate and junior in right and time of payment to any other Indebtedness
(including all Loans and interest thereon).
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SYNDICATED LOAN" means a Loan made pursuant to Section 2.01
including each Term Loan and Non-Extending Lender Term Loan that has been
converted from a Syndicated Loan pursuant to Section 2.08(b)(i) or (ii).
"TANGIBLE NET WORTH" means, as at any date,
(a) with respect to WAMU, the sum of:
(i) Consolidated Equity as at such date; MINUS
(ii) the amount of Special Preferred Equity Securities, to the
extent otherwise included in Consolidated Equity, as at such date;
MINUS
(iii) the sum for WAMU and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) of
the cost of treasury shares and the book value of all assets that
should be classified as intangibles (without duplication of
deductions in respect of items already deducted in arriving at
Consolidated Equity) but in any event including goodwill, minority
interests, research and development costs, trademarks, trade names,
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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,
1999, all determined as at such date.
(b) with respect to Finance, the stockholders' equity of Finance and
its Consolidated Subsidiaries less the amount (to the extent reflected in
determining such consolidated stockholders' equity) of all unamortized
debt discount and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, anticipated future
benefit of tax loss carry-forwards, copyrights organization or
developmental expenses and other intangible assets of Finance and its
Consolidated Subsidiaries, all determined on a consolidated basis as of
such date MINUS the aggregate principal amount of Indebtedness as at such
date owing to Finance or any Subsidiaries of Finance by WAMU or any
Subsidiaries of WAMU that are not Finance or Subsidiaries of Finance.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOAN" has the meaning assigned to such term in Section
2.08(b)(i).
"THREE-MONTH SECONDARY CD RATE" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrowers of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans constituting such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"WAMU" means Washington Mutual, Inc., a Washington corporation.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
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SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Syndicated Loan"), by Type (e.g., a "Eurodollar Loan") or by any
combination thereof. Borrowings also may be classified and referred to by
Class (e.g., a "Syndicated Borrowing"), by Type (e.g., a "Eurodollar
Borrowing") or by any combination thereof.
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Borrowers notify the Administrative Agent that the Borrowers
request an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrowers that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision is amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. THE COMMITMENTS. Subject to the terms and conditions
set forth herein, each Lender agrees to make Syndicated Loans to either or both
of the Borrowers from time to time during the Availability Period in an
aggregate principal amount that will not result in (a) such Lender's Revolving
Credit Exposure exceeding such Lender's Commitment PLUS the aggregate principal
amount of such Lender's outstanding Term Loans and Non-Extending Lender Term
Loans or (b) the sum of the total Revolving Credit Exposures PLUS the aggregate
principal amount of outstanding Competitive Loans exceeding the sum of the total
Commitments PLUS the
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aggregate principal amount of outstanding Term Loans and
Non-Extending Lender Term Loans. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Syndicated Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made as
part of a Borrowing consisting of Loans of the same Type made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.12, (i) each Syndicated
Borrowing shall be constituted entirely of ABR Loans or Eurodollar Loans as the
relevant Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be constituted entirely of Eurodollar Loans or Fixed Rate Loans
as the relevant Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the relevant Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the
commencement of the Interest Period for any Syndicated Eurodollar Borrowing,
such Borrowing shall be in an aggregate amount of $10,000,000 or a larger
multiple of $1,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger
multiple of $1,000,000; provided that an ABR Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of 10 Syndicated
Eurodollar Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods. Notwithstanding any
other provision of this Agreement, the Borrowers shall not be entitled to
request, or to elect to convert to or continue as a Syndicated Eurodollar
Borrowing, any Borrowing if the Interest Period requested therefor would end
after the Commitment Termination Date except that a Borrower shall be entitled
to request, or to elect to convert to or continue as a Syndicated Eurodollar
Borrowing, any Borrowing after it has provided notice to convert the Syndicated
Loans constituting (or to constitute) such Borrowing to Term Loans in accordance
with Section 2.08(b)(i) or Non-Extending Lender Term Loans in accordance with
Section 2.08(b)(ii) if the Interest Period requested therefor would end after
the Commitment Termination Date so long as such requested Interest Period would
not end after the Maturity Date or the Non-Extending Lender Term Loan Maturity
Date, respectively.
(e) Treatment of Loans Outstanding under the Existing Credit
Agreement. In the event that any loans under the Existing Credit Agreement shall
remain outstanding on the
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Effective Date, then any then-outstanding "Interest Periods" (as defined in
the Existing Credit Agreement) shall automatically be terminated and such loans
shall be continued as Syndicated Loans hereunder and the Lenders hereunder
shall, on the Effective Date, take such actions, and make such adjustments among
themselves, as shall be necessary so that such loans are held hereunder pro rata
in accordance with their respective Commitments, including by purchasing the
loans under the Existing Credit Agreement of any "Lenders" under the Existing
Credit Agreement that are not becoming Lenders hereunder. On the Effective Date,
the Borrower shall cause to be paid to each "Lender" party to the Existing
Credit Agreement, all amounts that would be owing to such Lender under Section
2.14 of the Existing Credit Agreement as if the "Loans" of such Lender under the
Existing Credit Agreement were being repaid on the Effective Date, whether or
not any such loans are actually repaid on the Effective Date.
SECTION 2.03. Requests for Syndicated Borrowings. To request a
Syndicated Borrowing, the relevant Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Syndicated Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the relevant Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Syndicated Eurodollar Borrowing, the Interest
Period therefor, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.05.
If no election as to the Type of Syndicated Borrowing is specified, then the
requested Syndicated Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Syndicated Eurodollar Borrowing, then
the relevant Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
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SECTION 2.04. Competitive Bid Procedure.
(a) Requests for Bids by the Borrowers. Subject to the terms and
conditions set forth herein, from time to time during the period from the
Effective Date to but excluding the Commitment Termination Date either Borrower
or both Borrowers may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the sum of the total Commitments plus outstanding Term Loans and Non-Extending
Lender Term Loans. To request Competitive Bids, the relevant Borrower shall
notify the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that the
Borrowers may submit up to (but not more than) two Competitive Bid Requests on
the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the relevant Borrower. Each
such telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or
a Fixed Rate Borrowing;
(iv) the Interest Period for such Borrowing, which shall be a
period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender may (but shall not have
any obligation to) make one or more Competitive Bids to the relevant Borrower in
response to a Competitive Bid Request. Each Competitive Bid by a Lender must be
in a form approved by the Administrative Agent and must be received by the
Administrative Agent by telecopy, in the case of a Competitive Eurodollar
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before the proposed date of such Competitive Borrowing, and in the case of a
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Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved by the Administrative Agent may be
rejected by the Administrative Agent, and the Administrative Agent shall notify
the applicable Lender of such rejection as promptly as practicable. Each
Competitive Bid shall specify (i) the principal amount (which shall be
$10,000,000 or a larger multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested by the relevant
Borrower) of the Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Competitive Bid Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
Interest Period for each such Loan and the last day thereof.
(c) Notification of Bids by Administrative Agent. The Administrative
Agent shall promptly notify the relevant Borrower by telecopy of the Competitive
Bid Rate and the principal amount specified in each Competitive Bid and the
identity of the Lender that shall have made such Competitive Bid.
(d) Acceptance of Bids by the Borrowers. Subject only to the
provisions of this paragraph, the relevant Borrower may accept or reject any
Competitive Bid. Such Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopy in a form approved by the Administrative Agent,
whether and to what extent it has decided to accept or reject each Competitive
Bid, in the case of a Competitive Eurodollar Borrowing, not later than 10:30
a.m., New York City time, three Business Days before the date of the proposed
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
10:30 a.m., New York City time, on the proposed date of the Competitive
Borrowing; provided, that (i) the failure of such Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) such Borrower
shall not accept a Competitive Bid made at a particular Competitive Bid Rate if
such Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by such Borrower
shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) of this proviso, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) of this proviso, no Competitive Bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a principal
amount of $10,000,000 or a larger multiple of $1,000,000; provided further that
if a Competitive Loan must be in an amount less than $10,000,000 because of the
provisions of clause (iv) of the first proviso of this paragraph, such
Competitive Loan may be in an amount of $1,000,000 or any multiple thereof, and
in calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to such clause
(iv) the amounts shall be rounded to multiples of $1,000,000 in a manner
determined by the relevant Borrower. A notice given by the relevant Borrower
pursuant to this paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent. The
Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so
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accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative Agent
shall elect to submit a Competitive Bid in its capacity as a Lender, it shall
submit such Competitive Bid directly to the relevant Borrower at least one
quarter of an hour earlier than the time by which the other Lenders are required
to submit their Competitive Bids to the Administrative Agent pursuant to
paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings.
---------------------
(a) Funding by Lenders. Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, New York City time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the
relevant Borrower by promptly crediting the amounts so received, in like funds,
to an account of such Borrower maintained with the Administrative Agent in New
York City and designated by such Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the relevant Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
the relevant Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to such Borrower
to but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the Federal Funds Effective Rate or (ii) in the case of
such Borrower, the interest rate applicable to ABR Loans. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections.
------------------
(a) Elections by the Borrowers for Syndicated Borrowings. Each
Syndicated Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Syndicated Eurodollar Borrowing, shall
have the Interest Period specified in such Borrowing Request. Thereafter, the
relevant Borrower may elect to convert such Borrowing to a Borrowing of a
different Type or to continue such Borrowing as a Borrowing of the same Type
and, in the case of a Syndicated Eurodollar Borrowing, may elect the Interest
Period therefor, all as provided in this Section. The relevant Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate Borrowing. This
Section shall not
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apply to Competitive Borrowings, which may not be converted or
continued except as provided in Section 2.19.
(b) Notice of Elections. To make an election pursuant to this
Section, the relevant Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Syndicated Borrowing of
the Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the relevant Borrower.
(c) Information in Interest Election Requests. Each telephonic
-----------------------------------------
and written Interest Election Request shall specify the following information
in compliance with Section 2.02:
(i) the name of the Borrower and the Borrowing to which such
Interest Election Request applies and, if different options are being
elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information
to be specified pursuant to clauses (iii) and (iv) of this paragraph shall
be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which shall
be a period contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the relevant Borrower
fails to deliver a timely Interest Election Request with respect to a Syndicated
Eurodollar Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders,
so notifies the relevant Borrower, then, so long as an Event of Default is
continuing (i) no outstanding
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Syndicated Borrowing may be converted to or continued as a Syndicated
Eurodollar Borrowing and (ii) unless repaid, each Syndicated Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period therefor.
SECTION 2.07. Termination and Reduction of the Commitments.
--------------------------------------------
(a) Scheduled Termination.
---------------------
(i) Unless previously terminated, the Commitments shall
terminate at the close of business on the Commitment Termination Date;
and
(ii) The Commitments of each Non-Extending Lender shall terminate as
provided in Section 2.18(c).
(b) Voluntary Termination or Reduction. The Borrowers may at any
time terminate, or from time to time reduce, the Commitments; provided that (i)
each reduction of the Commitments shall be in an amount that is an integral
multiple of $10,000,000 and (ii) the Borrowers shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.09, the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans would
exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrowers
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrowers pursuant to this Section shall
be irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrowers may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrowers (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction
of the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Repayment. Each Borrower hereby unconditionally promises to
---------
pay the Loans as follows:
(i) subject to Sections 2.18, 2.08(b)(i) and 2.08(b)(ii), to the
Administrative Agent for account of the Lenders, on the Commitment
Termination Date, the then unpaid principal amount of the Syndicated Loans
made to such Borrower that are outstanding at the close of business on the
Commitment Termination Date, and
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(ii) to the Administrative Agent for account of the respective
Lender the then unpaid principal amount of each Competitive Loan of such
Lender made to such Borrower on the last day of the Interest Period
therefor.
(b) Term-Out Option.
---------------
(i) If the Commitment Termination Date shall not have been extended,
each Borrower may, by notice to the Administrative Agent not less than 10
days prior to the Commitment Termination Date convert all Syndicated Loans
made to such Borrower that are outstanding on the Commitment Termination
Date to term loans (each, a "Term Loan" and collectively, the "Term
Loans"). Each Term Loan shall bear interest, until the payment in full
thereof, at the rates provided for in Section 2.11 and shall otherwise
constitute a Syndicated Loan for all purposes of this Agreement. The
relevant Borrower hereby unconditionally promises to pay to the
Administrative Agent for account of the Lenders the unpaid principal
amount of the Term Loans made to such Borrower that are outstanding on the
date that is six months after the Commitment Termination Date (or, if such
date is not a Business Day, the next preceding Business Day) (the
"Maturity Date"). Anything in this Section 2.08(b)(i) to the contrary
notwithstanding, any such conversion shall be subject to the conditions
precedent that: (i) no Default shall have occurred and be continuing on
the Commitment Termination Date and (ii) the representations and
warranties made by such Borrower in Article III hereof shall be true and
complete on and as of such Commitment Termination Date with the same force
and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date). Each notice of conversion
delivered by either Borrower in accordance with this Section 2.08(b)(i)
shall constitute a certification by such Borrower to the effect set forth
in the preceding sentence (both as of the date of such notice date and,
unless such Borrower, after delivery of such notice, otherwise notifies
the Administrative Agent prior to the Commitment Termination Date, as of
such date).
(ii) If the requisite percentage of Lenders have agreed to extend
the Commitment Termination Date pursuant to Section 2.18, each Borrower
may convert all Syndicated Loans of Non-Extending Lenders to such Borrower
that are outstanding on the applicable Existing Commitment Termination
Date to term loans (each, a "Non-Extending Lender Term Loan") by notice to
the Administrative Agent and the Non-Extending Lenders not less than 10
days prior to such Existing Commitment Termination Date. Each
Non-Extending Lender Term Loan shall bear interest, until the payment in
full thereof, at the rates provided for in Section 2.11 and shall
otherwise constitute a Syndicated Loan for all purposes of this Agreement.
The relevant Borrower hereby unconditionally promises to pay to the
Administrative Agent for account of the Lenders the unpaid principal
amount of the Non-Extending Lender Term Loans made to such Borrower that
are outstanding on the date that is six months after the applicable
Existing Commitment Termination Date (or, if such date is not Business
Day, the next preceding Business Day) (a "Non-Extending Lender Term Loan
Maturity Date"). Anything in this Section 2.08(b)(ii) to the contrary
notwithstanding, any such conversion shall be subject to the conditions
precedent that: (i) no Default shall have occurred and be continuing on
the applicable Existing Commitment Termination Date and (ii) the
representations and warranties made
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by such Borrower in Article III hereof
shall be true and complete on and as of such Existing Commitment
Termination Date with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date). Each
notice of conversion delivered by either Borrower in accordance with this
Section 2.08(b)(ii) shall constitute a certification by such Borrower to
the effect set forth in the preceding sentence (both as of the date of
such notice date and, unless the Borrower, after delivery of such notice,
otherwise notifies the Administrative Agent prior to the applicable
Existing Commitment Termination Date, as of such date).
(c) Manner of Payment. Prior to any repayment or prepayment of any
Borrowings hereunder, the relevant Borrower shall select the Borrowing or
Borrowings to be paid and shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than 11:00 a.m., New York
City time, three Business Days before the scheduled date of such repayment;
provided that each repayment of Borrowings by a Borrower shall be applied to
repay any outstanding ABR Borrowings of such Borrower before any other
Borrowings. If the relevant Borrower fails to make a timely selection of the
Borrowing or Borrowings to be repaid or prepaid, such payment shall be applied,
first, to pay any outstanding ABR Borrowings of such Borrower and, second, to
other Borrowings of such Borrower in the order of the remaining duration of
their respective Interest Periods (the Borrowing with the shortest remaining
Interest Period to be repaid first), and for these purposes, Competitive Loans
shall be deemed to be in the same Class as Loans. Each payment of a Syndicated
Borrowing shall be applied ratably to the Loans included in such Borrowing.
(d) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of each Borrower to such Lender resulting from each Loan made
by such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(e) Maintenance of Loan Accounts by the Administrative Agent. The
Administrative Agent shall maintain accounts in which it shall record (i) the
name of the Borrower and the amount of each Loan to such Borrower made
hereunder, the Class and Type thereof and each Interest Period therefor, (ii)
the amount of any principal or interest due and payable or to become due and
payable from each Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent from either Borrower hereunder for
account of the Lenders and each Lender's share thereof.
(f) Effect of Entries. The entries made in the accounts maintained
pursuant to paragraph (d) or (e) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of either
Borrower to repay the Loans in accordance with the terms of this Agreement.
(g) Promissory Notes. Any Lender may request that Loans made by it
be evidenced by a promissory note. In such event, the relevant Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the
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Administrative Agent. If any
Lender requests that the Loans made by it be evidenced by a promissory note, and
such Lender is a Lender under the Existing Credit Agreement, the Borrower will
not be obligated to execute and deliver any such promissory note to such Lender
unless such Lender shall first have delivered any existing promissory notes
executed and delivered to such Lender pursuant to the Existing Credit Agreement
to the Administrative Agent. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans.
-------------------
(a) Optional Prepayments Right to Prepay Borrowings. Each Borrower
shall have the right at any time and from time to time to prepay any Borrowing
in whole or in part, subject to the requirements of this Section; provided that
no Borrower shall have the right to prepay any Competitive Loan without the
prior consent of the Lender thereof.
(b) Notices, Etc. The relevant Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any optional
prepayment hereunder of a Borrowing made by such Borrower (i) in the case of
prepayment of a Syndicated Eurodollar Borrowing or of a Competitive Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before the
date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice relating to a Syndicated Borrowing or Competitive
Borrowing, the Administrative Agent shall advise the relevant Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of a Borrowing of the same Type as provided
in Section 2.02. Each prepayment of a Syndicated Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.11 and shall
be made in the manner specified in Section 2.08(c).
SECTION 2.10. Fees.
----
(a) Facility Fee. Each Borrower agrees to pay to the Administrative
Agent for account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the date hereof to but
excluding the date such Commitment terminates; provided that, if such Lender
continues to have any Revolving Credit Exposure after its Commitment terminates,
then such facility fee shall continue to accrue on the daily aggregate
outstanding principal amount of Loans (including Competitive Loans) of such
Lender from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any Loans outstanding.
Accrued facility fees shall be payable on each Quarterly Date,
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on each date the
Commitments of any Lender terminate, on each Non-Extending Lender Term Loan
Maturity Date and on the Maturity Date, commencing on the first such date to
occur after the date hereof; provided that any facility fees accruing after the
date on which the Commitments terminate (or, with respect to facility fees owing
by a Borrower in the event that such Borrower elects to convert Syndicated Loans
to Term Loans as provided in Section 2.08(b)(i), accruing after the Maturity
Date) shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) Utilization Fee. Each Borrower agrees to pay a fee to the
Administrative Agent for account of each Lender a utilization fee, which shall
accrue at the Applicable Rate on the daily aggregate outstanding principal
amount of Loans (including Competitive Loans) of such Lender for each day on
which the aggregate outstanding principal amount of the Loans equals or exceeds
an amount equal to 33-1/3% of the Commitments (and for this purpose, each
Non-Extending Lender shall be deemed to have a Commitment in an amount equal to
the aggregate outstanding principal amount of its Non-Extending Lender Term
Loans and, in the case of any Lender that has outstanding Term Loans at such
time, such Lender shall be deemed to have a Commitment in an amount equal to the
aggregate outstanding principal amount of its Term Loans). Accrued utilization
fees shall be payable on each Quarterly Date, on each date the Commitments of
any Lender terminate, on each Non-Extending Lender Term Loan Maturity Date and
on the Maturity Date, commencing on the first such date to occur after the date
hereof; provided that any utilization fees accruing after the date on which the
Commitments terminate (or, with respect to utilization fees owing by a Borrower
in the event that such Borrower elects to convert Syndicated Loans to Term Loans
as provided in Section 2.08(b)(i), accruing after the Maturity Date) shall be
payable on demand. All utilization fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). Utilization fees payable
under this Section 2.10(b) with respect to any day shall be allocated between
the Borrowers pro rata according to the respective aggregate outstanding
principal amounts of Loans owing by the Borrowers on such day.
(c) Administrative Agent Fees. The Borrowers agree to pay to
-------------------------
the Administrative Agent, for its own account, fees payable in the amounts
and at the times separately agreed upon between the Borrowers and the
Administrative Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent for
distribution, in the case of facility fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.11. Interest.
--------
(a) ABR Loans. The Loans constituting each ABR Borrowing shall bear
interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to (i) in the case of a
Syndicated Eurodollar Loan, the Adjusted LIBO Rate for the Interest Period for
such Borrowing plus the Applicable Rate (plus, in
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the case of any Syndicated
Eurodollar Loan which is a Term Loan or Non-Extending Lender Term Loan, .250%),
or (ii) in the case of a Competitive Eurodollar Borrowing, the LIBO Rate for the
Interest Period for such Borrowing plus (or minus, as applicable) the Margin
applicable to such Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest
----------------
at a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by
either Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Syndicated Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Loan prior to the Commitment Termination Date), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Syndicated Eurodollar Borrowing prior to the end of the Interest Period
therefor, accrued interest on such Borrowing shall be payable on the effective
date of such conversion.
(f) Computation. All interest hereunder shall be computed on the
basis of a year of 360 days except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
--------------------------
commencement of the Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Competitive Eurodollar Loan, the Lender that is required
to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or
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maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
continuation of any Syndicated Borrowing as, a Syndicated Eurodollar Borrowing
shall be ineffective, (ii) if any Borrowing Request requests a Syndicated
Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii)
any request by the relevant Borrower for a Competitive Eurodollar Borrowing
shall be ineffective; provided that if the circumstances giving rise to such
notice do not affect all the Lenders, then requests by the such Borrower for
Competitive Eurodollar Borrowings may be made to Lenders that are not affected
thereby.
SECTION 2.13. Increased Costs.
---------------
(a) Increased Costs Generally. If any Change in Law shall:
-------------------------
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the relevant Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change
in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's capital or on the capital of such Lender's
holding company, if any, as a consequence of this Agreement or the Loans made by
such Lender to a level below that which such Lender or such Lender's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), then from time to time each Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender's holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender setting
forth the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the relevant Borrower and
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shall be conclusive
absent manifest error. Such Borrower(s) shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation; provided that neither Borrower
shall be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender notifies the relevant Borrower(s) of the Change in Law giving
rise to such increased costs or reductions and of such Lender's intention to
claim compensation therefor; provided further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the six-month
period referred to above shall be extended to include the period of retroactive
effect thereof.
(e) Competitive Loans. Notwithstanding the foregoing provisions of
this Section, a Lender shall not be entitled to compensation pursuant to this
Section in respect of any Competitive Loan if the Change in Law that would
otherwise entitle it to such compensation shall have been publicly announced
prior to submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period therefor (including as a result of an Event
of Default or as a result of the failure to satisfy the conditions precedent to
the conversion of Syndicated Loans to Term Loans or Non-Extending Lender Term
Loans set forth in Section 2.03(b)(i) or (ii), as the case may be) (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any
Syndicated Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.09(b) and is revoked in accordance herewith), (d) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e)
the assignment of any Eurodollar Loan or Fixed Rate Loan other than on the last
day of an Interest Period therefor as a result of a request by either Borrower
pursuant to Section 2.17, then, in any such event, the relevant Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, the loss to any Lender attributable to
any such event shall be deemed to include an amount determined by such Lender to
be equal to the excess, if any, of (i) the amount of interest that such Lender
would pay for a deposit equal to the principal amount of such Loan for the
period from the date of such payment, conversion, failure or assignment to the
last day of the then current Interest Period for such Loan (or, in the case of a
failure to borrow, convert or continue, the duration of the Interest Period that
would have resulted from such borrowing, conversion or continuation) if the
interest rate payable on such deposit were equal to the Adjusted LIBO Rate for
such Interest Period, over (ii) the amount of interest that such Lender would
earn on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for Dollar deposits from other banks in
the eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the relevant Borrower and
shall be conclusive absent manifest error. Such Borrower
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shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.15. Taxes.
-----
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of each Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
either Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. In addition, each
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall indemnify
the Administrative Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Administrative Agent or such
Lender, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the relevant Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by the relevant Borrower to a Governmental
Authority, such Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the relevant Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to such Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by such Borrower,
such properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a reduced
rate.
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SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
---------------------------------------------------
Set-offs.
--------
(a) Payments by the Borrowers. Each Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest or fees, or
under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon, New York
City time, on the date when due, in immediately available funds, without set-off
or counterclaim; provided that if a new Loan is to be made by any Lender to a
Borrower on a date such Borrower is to repay any principal of an outstanding
Loan of such Lender, such Lender shall apply the proceeds of such new Loan to
the payment of the principal to be repaid by such Borrower and only an amount
equal to the difference between the principal to be borrowed and the principal
to be repaid shall be made available by such Lender to the Administrative Agent
as provided in Section 2.05 or paid by such Borrower to the Administrative Agent
pursuant to this paragraph, as the case may be. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York,
except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be
made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for account of any other Person to
the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each payment of facility fee and utilization fee under Section 2.10
shall be made for account of the Lenders, and each termination or reduction of
the amount of the Commitments under Section 2.07 shall be applied to the
respective Commitments of the Lenders, pro rata according to the amounts of
their respective Commitments; (ii) each Syndicated Borrowing shall be allocated
pro rata among the Lenders according to the amounts of their respective
Commitments (in the case of the making of Syndicated Loans) or their respective
Loans (in the case of conversions and continuations of Loans); (iii) each
payment or prepayment of principal of Syndicated Loans by the relevant Borrower
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held by them; and
(iv) each payment of interest on Syndicated Loans by the relevant Borrower shall
be made for account of the Lenders pro rata in accordance with the respective
amounts of interest on such Loans then due and payable to the Lenders.
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(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Syndicated Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate amount
of its Syndicated Loans and accrued interest thereon then due than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Syndicated Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Syndicated Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by either Borrower pursuant
to and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
either Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall
have received notice from the relevant Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders hereunder
that such Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.05(b) or 2.16(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.13, or if either Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for
account of any Lender pursuant to Section 2.15, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
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another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.13 or 2.15, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 2.13, or if either Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for account of any Lender
pursuant to Section 2.15, or if any Lender defaults in its obligation to fund
Loans hereunder, then such Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
such Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Competitive Loans), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the relevant Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.13 or payments required to be made pursuant to Section 2.15, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
relevant Borrower to require such assignment and delegation cease to apply.
SECTION 2.18. Extension of Commitment Termination Date.
----------------------------------------
(a) The Borrowers may, by notice to the Administrative Agent (which
shall promptly notify the Lenders) not later than 45 days and not earlier than
60 days prior to the Commitment Termination Date then in effect hereunder (the
"Existing Commitment Termination Date"), request that the Lenders extend the
Commitment Termination Date for an additional 364 days from the Existing
Commitment Termination Date. Each Lender, acting in its sole discretion, shall,
by notice to the Borrowers and the Administrative Agent given not earlier than
45 days prior to the Existing Commitment Termination Date, but not later than
the date (herein, the "Consent Date") that is 30 days prior to the Existing
Commitment Termination Date (except that, if such date is not a Business Day,
such notice shall be given on the next succeeding Business Day), advise the
Borrowers and the Administrative Agent whether or not such Lender agrees to such
extension; provided that, if such Lender gives notice of its consent to such
extension prior to the Consent Date, such Lender may revoke such consent at any
time prior to the Consent Date by giving notice of such revocation to the
Borrowers and the Administrative Agent; and provided further that each Lender
that determines not to extend the Commitment Termination Date (a "Non-Extending
Lender") shall notify the Administrative Agent (which
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shall notify the Lenders)
of such fact promptly after such determination (but in any event no later than
the Consent Date) and any Lender that does not advise the Borrowers on or before
the Consent Date shall be deemed to be a Non-Extending Lender. The election of
any Lender to agree to such extension shall not obligate any other Lender to so
agree.
(b) If (and only if) the total of the Commitments of the Lenders
that have agreed so to extend the Commitment Termination Date shall be at least
51% of the aggregate amount of the Commitments in effect immediately prior to
the Consent Date, the Borrowers shall have the right on or before the Existing
Commitment Termination Date to replace each Non-Extending Lender with, and
otherwise add to this Agreement, one or more other lenders (which may include
any Lender, each prior to the Existing Commitment Termination Date an
"Additional Commitment Lender") with the approval of the Administrative Agent
(which approval shall not be unreasonably withheld), each of which Additional
Commitment Lenders shall have entered into an agreement in form and substance
satisfactory to the Borrowers and the Administrative Agent pursuant to which
such Additional Commitment Lender shall, effective as of the Existing Commitment
Termination Date, undertake a Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Commitment shall be in addition to such Lender's
Commitment hereunder on such date).
(c) If (and only if) the total of the Commitments of the Lenders
that have agreed so to extend the Commitment Termination Date shall be at least
51% of the aggregate amount of the Commitments in effect immediately prior to
the Consent Date, then, effective as of the Existing Commitment Termination
Date, the Existing Commitment Termination Date shall be extended to the date
falling 364 days after the Existing Commitment Termination Date (except that, if
such date is not a Business Day, such Commitment Termination Date as so extended
shall be the next preceding Business Day) and each Additional Commitment Lender
shall thereupon become a "Lender" for all purposes of this Agreement.
Notwithstanding the foregoing, the extension of the Existing
Commitment Termination Date shall not be effective with respect to any Lender
unless:
(i) no Default shall have occurred and be continuing on each of the
date of the notice requesting such extension, on the Consent Date and on
the Existing Commitment Termination Date;
(ii) each of the representations and warranties made by the
Borrowers in Article 3 hereof shall be true and complete on and as of each
of the date of the notice requesting such extension, the Consent Date and
the Existing Commitment Termination Date with the same force and effect as
if made on and as of such date (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such
specific date); and
(iii) subject to Section 2.08(b)(ii), each Non-Extending Lender
shall have been paid in full by the Borrowers all amounts owing to such
Lender hereunder on or before the Existing Commitment Termination Date.
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Even if the Existing Commitment Termination Date is extended as aforesaid, the
Commitment of each Non-Extending Lender shall terminate on the Existing
Commitment Termination Date.
SECTION 2.19. Illegality. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Lender or its
applicable lending office to honor its obligation to make or maintain Eurodollar
Loans hereunder to either Borrower, then such Lender shall promptly notify such
Borrower thereof (with a copy to the Administrative Agent) and (i) such Lender's
obligation to such Borrower to make or continue, or to convert Loans of any
other Type into, Syndicated Eurodollar Loans shall be suspended until such time
as such Lender may again make and maintain Syndicated Eurodollar Loans to such
Borrower (in which case the provisions of Section 2.19 hereof shall be
applicable), (ii) such Lender shall no longer be obligated to make any
Competitive Eurodollar Loan to such Borrower that it has offered to make and
(iii) upon written notice to such Borrower by such Lender (with a copy to the
Administrative Agent), each outstanding Eurodollar Loan of such Lender to such
Borrower shall be automatically converted into an ABR Loan on the date specified
by such Lender in such notice.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of such Borrower and its
Subsidiaries (except Non-Material Subsidiaries) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within such Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by such Borrower and constitutes
a legal, valid and binding obligation of such Borrower, enforceable in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
with respect to such Borrower (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of such Borrower or any of its Subsidiaries or
any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon such
Borrower or any of its Subsidiaries
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or assets, or give rise to a right
thereunder to require any payment to be made by any such Person, and (d) will
not result in the creation or imposition of any Lien on any asset of such
Borrower or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) Financial Condition. Such Borrower has heretofore furnished to
the Lenders its consolidated balance sheet and statements of income,
stockholders' equity and cash flows (i) as of and for the fiscal year ended
December 31, 1999, reported on by Deloitte & Touche LLP, independent public
accountants for WAMU and Finance, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 2000, certified by the chief
financial officer of such Borrower. Such financial statements present fairly, in
all material respects, the financial position and results of operations and cash
flows of such Borrower and its Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii) of
the first sentence of this paragraph.
(b) No Material Adverse Change. From December 31, 1999 to the date
of this Agreement, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of such
Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. Such Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except to the extent that failure to have
such title could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
------------------------------------
(a) Actions, Suits and Proceedings. There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of such Borrower, threatened against or affecting
such Borrower or any of its Subsidiaries (i) as to which there is a reasonable
likelihood of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve
this Agreement or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters and
except with respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, neither
such Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.07. Compliance with Laws and Agreements. Such Borrower and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental
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Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status. Neither such
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Such Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which such Person has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan, and there were no underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) as of the date of the most recent financial statements in
which such underfunded Plans would be reflected.
SECTION 3.11. Disclosure. Such Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements,
certificates, schedules or other information furnished by or on behalf of such
Borrower to the Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, such Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. USE OF CREDIT. Neither such Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock in violation of Regulations T, U
or X of the Board, and no part of the proceeds of any Loan hereunder will be
used to buy or carry any Margin Stock in violation of Regulations T, U or X of
the Board.
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SECTION 3.13. MATERIAL AGREEMENTS AND LIENS.
(a) MATERIAL AGREEMENTS. Part A of Schedule II is a complete and
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, such Borrower or any of its
Subsidiaries (excluding this Agreement, the Existing Credit Agreement,
Repurchase Arrangements, deposits, annuities or Federal funds transactions, each
entered into by such Borrower or any of its Subsidiaries in the ordinary course
of its business, Hedging Agreements or borrowings from the Federal Home Loan
Bank and any commercial paper or medium term note program of such Borrower or
any of its Subsidiaries), outstanding on the date hereof the aggregate principal
or face amount of which equals or exceeds (or may equal or exceed) $10,000,000,
and the aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in Part A of
Schedule II.
(b) LIENS. Part B of Schedule II is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof
(excluding Repurchase Arrangements, deposits, annuities or Federal funds
transactions, each entered into by such Borrower or any of its Subsidiaries in
the ordinary course of its Business, and Hedging Agreements or borrowings from
the Federal Home Loan Bank) the aggregate principal or face amount of which
equals or exceeds (or may equal or exceed) $10,000,000 and covering any property
of either Borrower or any of their Subsidiaries, and the aggregate Indebtedness
secured (or that may be secured) by each such Lien and the property covered by
each such Lien is correctly described in Part B of Schedule II.
SECTION 3.14. SUBSIDIARIES.
(a) Subsidiaries. Set forth in Part A of Schedule V is a complete
and correct list of all of the Subsidiaries of such Borrower as of July 1, 2000,
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Part A of Schedule V, (x) such Borrower and
its Subsidiaries owns, free and clear of Liens, and has the unencumbered right
to vote, all outstanding ownership interests in each Person shown to be held by
it in Part A of Schedule V, (y) all of the issued and outstanding capital stock
of each such Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
(b) Restrictions on Subsidiaries. None of the Subsidiaries of such
Borrower is, on the date hereof, subject to any indenture, agreement, instrument
or other arrangement of the type described in Section 6.03.
ARTICLE IV
CONDITIONS
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SECTION 4.01. EFFECTIVE DATE. This Agreement (and the amendment and
restatement of the Existing Credit Agreement to be effected hereby), and the
obligations of the Lenders to make Loans hereunder, shall not become effective
until the date on which the Administrative Agent shall have received each of the
following documents, each of which shall be satisfactory to the Administrative
Agent (and to the extent specified below, to each Lender) in form and substance
(or such condition shall have been waived in accordance with Section 9.02):
(a) EXECUTED COUNTERPARTS. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Borrowers. A favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Heller Ehrman White & McAuliffe LLP, counsel for the
Borrowers, substantially in the form of Exhibit B, and covering such other
matters relating to the Borrowers, this Agreement or the Transactions as
the Required Lenders shall reasonably request (and the Borrowers hereby
instruct such counsel to deliver such opinion to the Lenders and the
Administrative Agent).
(c) Opinion of Special New York Counsel to Chase. An opinion, dated
the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP, special New
York counsel to Chase, substantially in the form of Exhibit C (and Chase
hereby instructs such counsel to deliver such opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Borrower, the
authorization of the Transactions and any other legal matters relating to
the Borrowers, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective Date
and signed by the President, a Vice President or a Financial Officer of
each Borrower, confirming compliance with the conditions set forth in the
lettered clauses of the first sentence of Section 4.02.
(f) Other Documents. Such other documents as the Administrative
---------------
Agent or any Lender or special New York counsel to Chase may reasonably
request.
The obligation of any Lender to make its initial Loan hereunder is
also subject to the payment by the Borrowers of such fees as the Borrowers shall
have agreed to pay to any Lender or the Administrative Agent or Chase in its
capacity as lead Arranger in connection herewith, including the reasonable fees
and expenses of Milbank, Tweed, Hadley & McCloy LLP special New York counsel to
Chase, in connection with the negotiation, preparation, execution and delivery
of this Agreement and the Loans hereunder (to the extent that statements for
such fees and expenses have been delivered to the Borrowers).
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The Administrative Agent shall notify the Borrowers and the Lenders
of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) on or prior to 3:00 p.m., New
York City time, on August 10, 2000 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
-----------------
to make a Loan to the relevant Borrower on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) the representations and warranties of such Borrower set forth in
this Agreement (except, in the case of any Borrowing that does not
increase the outstanding aggregate principal amount of the Loans of any
Lender, the representations and warranties in Sections 3.06(a), 3.06(b)
and 3.10) shall be true and correct on and as of the date of such
Borrowing (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date); and
(b) at the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the relevant Borrower on the date thereof as to the matters specified in the
preceding sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, each Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. Such
Borrower will furnish to the Administrative Agent and each Lender (provided that
only WAMU shall furnish the reports referred to in paragraphs (f) and (g)
below):
(a) within 105 days after the end of each fiscal year of such
Borrower, the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of such Borrower and its
Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by Deloitte & Touche LLP or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of such Borrower and its Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied and a
statement of such accountants to the effect that, in making the
examination necessary for their opinion, nothing came to their attention
that caused them to believe that such Borrower was not in
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compliance with
Section 6.04 hereof, insofar as such Section relates to accounting matters
(it being understood that delivery to the Lender of such Borrower's Report
on Form 10-K filed with the SEC shall satisfy the financial statement
requirements of this Section 5.01(a) so long as the information required
to be contained in such Report is substantially the same as that required
under this Section 5.01(a));
(b) within 75 days after the end of each of the first three fiscal
quarters of each fiscal year of such Borrower, the consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows of such Borrower and its Subsidiaries as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for (or, in the case of
the balance sheet, as of the end of) the corresponding period or periods
of the previous fiscal year, all certified by a Financial Officer of such
Borrower as presenting fairly in all material respects the financial
condition and results of operations of such Borrower and its Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes
(it being understood that delivery to the Lender of such Borrower's Report
on Form 10-Q filed with the SEC shall satisfy the financial statement
requirements of this Section 5.01(b) so long as the information required
to be contained in such Report is substantially the same as that required
under this Section 5.01(b));
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer of
such Borrower (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section
6.04, and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
such Borrower or any of its Subsidiaries with the SEC, or with any
national securities exchange or the Office of Thrift Supervision, or
distributed by such Borrower to its shareholders generally, as the case
may be;
(f) promptly upon their becoming available, and in any event within
90 days after the end of each fiscal quarter of each fiscal year of WAMU,
the "Reports of Condition and Income" (report no. H(b)-11, or any
successor form thereto) of WAMU, all such
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reports prepared in accordance
with regulatory accounting principles prescribed by the Federal Financial
Institutions Examination Council;
(g) promptly upon their becoming available, and in any event within
75 days after the end of each fiscal quarter of each fiscal year of WAMU,
the Statements of Condition and Operations, including all supporting
schedules (Office of Thrift Supervision Form 1313, or any successor form
thereto) for Washington Mutual Bank, FA, all such statements prepared in
accordance with Office of Thrift Supervision instructions; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of such
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02. Notices of Material Events. Each Borrower will
--------------------------
furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
such Borrower or any of its Affiliates that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of such Borrower and its Subsidiaries in an aggregate
amount exceeding $35,000,000;
(d) the assertion of any environmental matter by any Person against,
or with respect to the activities of, such Borrower or any of its
Subsidiaries and any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other than
any environmental matter or alleged violation that, if adversely
determined, would not (either individually or in the aggregate) have a
Material Adverse Effect; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of such Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. Each Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges
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and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
(a) any merger, consolidation, liquidation, dissolution or other transaction
permitted under Section 6.02 and (b) any Subsidiary that is not a Major
Subsidiary of such Borrower from entering into any merger or consolidation or
amalgamation or from liquidating, winding up or dissolving, itself (or suffering
any liquidation or dissolution) or prohibit a disposition by or of such
Subsidiary.
SECTION 5.04. Payment of Obligations. Each Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
such Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. Each Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. Each Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. Each Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. Compliance with Laws. Each Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. Each Borrower will use the proceeds
of the Loans hereunder (after giving effect to the extension and renewal of
Indebtedness outstanding under the Existing Credit Agreement as contemplated by
Section 2.02(e)) solely for general corporate purposes, including commercial
paper back-up, in the ordinary course of business (in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations U and X and the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations thereunder);
provided that, without the consent of each Lender, such Borrower may not use the
proceeds of any of the Loans hereunder to finance or refinance, directly or
indirectly, an Acquisition of any Person (or the acquisition of (i) more than
50% of the publicly traded stock (of any class) of any Person or (ii) any of the
publicly
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traded stock (of any class) of any Person after such Borrower or any of
its Subsidiaries shall have been required to file a Schedule 13D under the
Securities Exchange Act of 1934, as amended, with respect to such stock) unless
such Acquisition (or acquisition) has been approved by the board of directors of
such Person or officers thereof duly authorized to do so; provided further that
neither the Administrative Agent nor any Lender shall have any responsibility as
to the use of any of such proceeds.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, each Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Liens. Such Borrower will not, nor (where such
Borrower is Finance) will it permit any of its Subsidiaries (other than Insured
Subsidiaries) to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of such Borrower or any of
its Subsidiaries existing on the date hereof and set forth in Part B of
Schedule II;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by such Borrower or any of its Subsidiaries or
existing on any property or asset of any Person that becomes a Subsidiary
of such Borrower after the date hereof prior to the time such Person
becomes such a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary of such Borrower, as the case may be, (ii) such Lien
shall not apply to any other property or assets of such Borrower or any of
its Subsidiaries and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes such a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by such Borrower or any of its Subsidiaries; provided that (i)
such security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (ii) the Indebtedness secured thereby
does not exceed 80% of the cost of acquiring, constructing or improving
such fixed or capital assets and (iii) such security interests shall not
apply to any other property or assets of such Borrower or any of its
Subsidiaries;
(e) Liens arising out of Repurchase Arrangements;
(f) Liens arising out of or securing Hedging Agreements;
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(g) Liens arising out of Asset Securitizations and not involving
all, or substantially all, of the assets of the respective transferor;
(h) Liens in favor of WAMU and its Subsidiaries (other than by
Finance or any of its Subsidiaries) arising in connection with
intercompany transactions between WAMU and any of such Subsidiaries;
(i) Liens in favor of Finance and its Subsidiaries arising in
connection with intercompany transactions between Finance and any of
such Subsidiaries;
(j) Liens involving the pledge by WAMU of any interest in capital
stock of, or other ownership interest in, any Subsidiary of WAMU (other
than a Major Subsidiary or Finance);
(k) Liens involving the pledge of any interest in a debt instrument
made to WAMU by any Subsidiary of WAMU (other than a Major Subsidiary);
(l) Liens involving the pledge of property of WAMU or any of its
Subsidiaries (other than by Finance or any of its Subsidiaries) securing
Indebtedness in an aggregate principal amount not exceeding 2% of the
Tangible Net Worth of WAMU; and
(m) Liens involving the pledge of property of Finance or any of its
Subsidiaries securing Indebtedness in an aggregate principal amount not
exceeding 5% of the Tangible Net Worth of Finance.
SECTION 6.02. Fundamental Changes.
-------------------
(a) Mergers, Consolidations, Disposal of Assets, Etc. Such Borrower
will not, nor will it permit any of its Major Subsidiaries to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
assets, or all or substantially all of the stock of any of its Subsidiaries (in
each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Major Subsidiary may
merge into WAMU in a transaction in which WAMU is the surviving corporation,
(ii) any Major Subsidiary may merge into any Subsidiary of WAMU in a transaction
in which the surviving entity is a wholly owned Subsidiary of WAMU, (iii) any
Major Subsidiary may sell, transfer, lease or otherwise dispose of its assets to
WAMU or to another wholly owned Subsidiary of WAMU, (iv) such Borrower or any
Major Subsidiary of such Borrower may merge or consolidate with any other Person
if (x) in the case of a merger or consolidation of such Borrower, such Borrower
is the surviving corporation and, in any other case, the surviving corporation
is, after giving effect to such merger or consolidation, a wholly owned
Subsidiary of such Borrower and (y) after giving effect thereto no Default would
exist hereunder and (v) any Subsidiary of either Borrower may liquidate or
dissolve if the relevant Borrower determines in good faith that such liquidation
or dissolution is in the best interests of such Borrower and is not materially
disadvantageous to the Lenders; provided that if any such
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merger shall be
between a Subsidiary and a wholly owned Subsidiary of such Borrower , then the
wholly owned Subsidiary shall be the continuing or surviving corporation.
(b) Lines of Business. Such Borrower will not, nor will it permit
any of its Subsidiaries to, engage to any substantial extent in any line or
lines of business activity other than (i) the business of owning and operating a
depository institution (as defined in 12 U.S.C. ss.1813(c)), a consumer finance
company, a mortgage company, an insurance company, a trust company, an
investment advisor or a securities broker-dealer, (ii) the business of providing
other financial services or (iii) any business that may be engaged in by a
Washington state chartered savings bank (as defined in RCW 32.04.020), a Federal
savings association (as defined in 12 U.S.C. 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.
SECTION 6.03. Certain Restrictions on Subsidiaries. Such Borrower
will not permit any of its Subsidiaries to enter into, after the date hereof,
any indenture, agreement, instrument or other arrangement that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances, guarantees or Investments or the sale,
assignment, transfer or other disposition of property if the effect of any such
indenture, agreement, instrument or other arrangement could reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.04. Certain Financial Covenants.
---------------------------
(a) WAMU.
----
(i) Double Leverage Ratio. WAMU will not permit the Double
---------------------
Leverage Ratio to exceed 1:30 to 1:00 at any time.
(ii) Tangible Net Worth. WAMU will not permit its Tangible Net Worth
at any time to be less than the sum of (x) $6,160,000,000 plus (y) 40% of
the net income of WAMU and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP and for which purpose
any net loss shall be deemed to be a net income of zero) for each fiscal
quarter of WAMU ending after June 30, 2000 plus (z) 40% of the aggregate
net proceeds received by WAMU from the issuance by WAMU after the date of
this Agreement of shares of its capital stock
(iii) Maximum Non-Performing Assets. WAMU will not permit
Non-Performing Assets at any time to constitute more than 4.5% of
Consolidated Assets at such time.
(b) Finance.
-------
(i) Tangible Net Worth. Finance will not permit its Tangible Net
Worth at any time to be less than the sum of (x) $300,000,000 plus (y) 40%
of the net income of Finance 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 Finance ending after June 30, 2000.
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(ii) Senior Debt Ratio. Finance will not permit the ratio of (x) the
aggregate principal amount of all Senior Indebtedness (other than
Indebtedness owing among Finance and its Consolidated Subsidiaries)
outstanding at any time to (y) its Tangible Net Worth at such time to be
greater than 10.0 to 1.0.
(iii) Permissible Indebtedness. Finance will not permit the
aggregate amount of all Indebtedness (other than Indebtedness among
Finance and its Consolidated Subsidiaries) outstanding at any time owed by
its Consolidated Subsidiaries (other than Insured Subsidiaries) to exceed
15% of the aggregate amount of all Indebtedness (other than Indebtedness
owing among Finance and its Consolidated Subsidiaries) then outstanding of
Finance and its Consolidated Subsidiaries (other than Insured
Subsidiaries).
SECTION 6.05. Insured Subsidiary Capital. Such Borrower will at all
times ensure that none of its Insured Subsidiaries is "undercapitalized",
"significantly undercapitalized" or "critically undercapitalized" for purposes
of 12 U.S.C. ss.1831o, as amended, re-enacted or redesignated from time to time;
and such Borrower and its Insured Subsidiaries will at all times maintain such
amount of capital as may be prescribed by all applicable Bank Regulatory
Authorities, whether by guideline, regulation, agreement or order.
SECTION 6.06. Payment of Dividends. Such Borrower will not, and will
not permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment; provided that Finance may
declare and pay dividends with respect to its capital stock if, at the time of
declaration and payment thereof and after giving effect thereto, no Event of
Default shall have occurred and be continuing.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) either Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) either Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue unremedied
for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of either Borrower or any of their Subsidiaries in or in connection
with this Agreement or any amendment or modification hereof, or in any
report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any
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amendment or
modification hereof, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) either Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect to
the Borrower's existence), 5.08 or in Article VI (other than Section
6.02(b));
(e) either Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) and such failure
shall continue unremedied for a period of 30 or more days after notice
thereof from the Administrative Agent (given at the request of any Lender)
to such Borrower;
(f) either Borrower or any of their Subsidiaries shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of either Borrower or any of their Subsidiaries (other
than Non-Material Subsidiaries) or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for either Borrower or any of their Subsidiaries
(other than Non-Material Subsidiaries) or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for a period of 60 or more days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) either Borrower or any of their Subsidiaries (other than
Non-Material Subsidiaries) shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding
or petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for such Borrower or any of
its Subsidiaries (other than Non-Material Subsidiaries) or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the
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benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(j) either Borrower or any of their Subsidiaries (other than
Non-Material Subsidiaries) shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $40,000,000 (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect
of such judgment) or $120,000,000 (regardless of insurance coverage) shall
be rendered against either Borrower or any of their Subsidiaries or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of either Borrower or any of their
Subsidiaries to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) a Change in Control shall occur;
(n) WAMU or any of its Subsidiaries and any Bank Regulatory
Authority shall enter into any supervisory agreement, consent order or any
agreement (in writing or otherwise) affecting in any material respect the
management, business, properties, condition (financial or otherwise) or
operations, present or prospective, of WAMU and its Subsidiaries taken as
a whole; or any Bank Regulatory Authority shall issue a cease and desist
order to or in respect of WAMU or any of its Subsidiaries;
(o) any Insured Subsidiary shall cease accepting deposits or making
commercial loans on the instruction of any Federal, state or other
regulatory body with authority to give such instruction other than
pursuant to an instruction generally applicable to banks organized under
the jurisdiction of organization of such Insured Subsidiary;
(p) (i) any Bank Regulatory Authority shall notify any Insured
Subsidiary that such Insured Subsidiary's capital stock has become
impaired; (ii) any of Washington Mutual Bank, Washington Mutual Bank fsb
or Washington Mutual Bank, FA shall, cease to be an insured bank under the
Federal Deposit Insurance Act, as amended, and the rules and regulations
promulgated thereunder; or (iii) any Insured Subsidiary (other than
Washington Mutual Bank, Washington Mutual Bank fsb or Washington Mutual
Bank, FA) shall pursuant to an order of any Bank Regulatory Authority,
cease to be an insured bank under the Federal Deposit Insurance Act, as
amended, and the rules and regulations promulgated thereunder; provided
however, in the case of (ii) and (iii) that the event is not the result of
a transaction permitted under Section 6.02(a) or Section 5.03;
(q) any Insured Subsidiary shall be required (whether or not the
time allowed by the appropriate Bank Regulatory Authority for the
submission of such plan has been
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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
(r) WAMU shall Guarantee in writing (voluntarily or otherwise) the
capital of any Insured Subsidiary as part of or in connection with any
agreement or arrangement with any Bank Regulatory Authority;
then, and in every such event (other than an event with respect to the relevant
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to such Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments available to such Borrower, and thereupon the
Commitments available to such Borrower shall terminate immediately, and (ii)
declare the Loans to such Borrower then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of such Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
such Borrower; and in case of any event with respect to such Borrower described
in clause (h) or (i) of this Article, the Commitments available to such Borrower
shall automatically terminate and the principal of the Loans to such Borrower
then outstanding, together with accrued interest thereon and all fees and other
obligations of such Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by such Borrower.
ARTICLE VIII
AGENTS
SECTION 8.01 Administrative Agent.
(a) Subject to Section 8.01(f), each of the Lenders hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
(b) The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers or any Subsidiaries
or other Affiliates thereof as if it were not the Administrative Agent
hereunder.
(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have
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any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrowers or any of their respective
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders or in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by a Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and reasonably believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for a Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) The Administrative Agent may resign at any time by notifying the
Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall
have the right, in consultation with the Borrowers, to appoint a successor. If
no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent's
resignation shall nonetheless become effective and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and
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communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
agent as provided for above in this paragraph. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrowers to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrowers and such successor. After the Administrative
Agent's resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
(g) Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
SECTION 8.02 Syndication Agents. The Syndication Agents named on the
cover page of this Agreement, in their capacity as such, shall have no
obligation, responsibility or required performance hereunder and shall not
become liable in any manner to any party hereto. No party hereto shall have any
obligation or liability, or owe any performance, hereunder, to the Syndication
Agents in their capacity as such.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to WAMU, to it at 1201 3rd Avenue, Seattle, Washington
98101, Attention of Marangal I. Domingo (Telecopy No.(206) 554-4954;
Telephone No. (206) 461-8956);
(b) if to Finance, to WAMU at the address specified in (a) above
and to Finance at 8900 Grand Oak Circle, Tampa, Florida 33637,
Attention of Phil Goodeve (Telecopy No. (813) 632-4582; Telephone No.
(813) 632-4586);
(c) if to the Administrative Agent, to The Chase Manhattan Bank,
1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081, Attention
of Loan and Agency Services Group (Telecopy No. (212) 552-5658;
Telephone No. (212) 552-7500), with a copy to The Chase Manhattan Bank,
270 Park Avenue, New York, New York 10017,
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Attention of Christine
Herrick (Telecopy No. (212) 270-1789; Telephone No. (212) 270-9747); and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrowers and the
Administrative Agent). All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments.
-------------------
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by
the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrowers
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders or by the
Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of each Lender, (ii) reduce the principal amount of
any Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender, (iv) alter the manner in
which payments or prepayments of principal, interest or other amounts hereunder
shall be applied as among the Lenders or Types or Classes of Loans, without the
written consent of each Lender, or (v) change any of the provisions of this
Section or the definition of the term "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; and provided further that
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
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SECTION 9.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) Indemnification by the Borrowers. The Borrowers, jointly and
severally, shall indemnify the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by either Borrower or any of
their Subsidiaries, or any Environmental Liability related in any way to either
Borrower or any of their Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulting from the gross negligence or wilful
misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrowers fail
to pay any amount required to be paid by them to the Administrative Agent under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, neither Borrower shall assert, and each Borrower hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.
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(e) Payments. All amounts due under this Section shall be payable
not later than ten days after written demand therefor.
SECTION 9.04. Successors and Assigns.
----------------------
(a) Assignments Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrowers may not
assign or otherwise transfer any of their respective rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by either Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the relevant Borrower and the Administrative
Agent must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment to
a Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
relevant Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,000, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the relevant Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h), (i) or (j) of Article VII has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
364-DAY CREDIT AGREEMENT
<PAGE>
-59-
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in New York City a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrowers,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrowers or the Administrative Agent, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
(f) Limitations on Rights of Participants. A Participant shall not
be entitled to receive any greater payment under Section 2.13 or 2.15 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the relevant Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.15 unless the relevant Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of such Borrower, to comply with Section 2.15(e) as
though it were a Lender.
364-DAY CREDIT AGREEMENT
<PAGE>
-60-
(g) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to the Borrowers or Affiliates. Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan held by it hereunder to either Borrower or any of its
respective Affiliates or Subsidiaries without the prior consent of each Lender.
(i) Special Purpose Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle (an "SPC") of such Granting Lender, identified
as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrowers, the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make;
provided that (i) nothing herein shall constitute a commitment to make any Loan
by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall make such
Loan pursuant to the terms hereof, and (iii) the rights of any such SPC shall be
derivative of the rights of the Granting Lender, and such SPC shall be subject
to all of the restrictions upon the Granting Lender herein contained. Each SPC
shall be conclusively presumed to have made arrangements with its Granting
Lender for the exercise of voting and other rights hereunder in a manner which
is acceptable to the SPC, the Administrative Agent, the Lenders and the
Borrowers, and each of the Administrative Agent, the Lenders and the Borrowers
shall be entitled to rely upon and deal solely with the Granting Lender with
respect to Loans made by or through its SPC. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by the Granting Lender. Each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof,
in respect of claims arising out of this Agreement; provided that the Granting
Lender for each SPC hereby agrees to indemnify, save and hold harmless each
other party hereto for any loss, cost, damage and expense arising out of their
inability to institute any such proceeding against its SPC. In addition,
notwithstanding anything to the contrary contained in this Section 9.04(i), any
SPC may (i) with the prior written consent of the relevant Borrower and the
Administrative Agent (which consents shall not be unreasonably withheld) but
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Lender or to any financial institutions
providing liquidity and/or credit facilities to or for the account of such SPC
to fund the Loans made by such SPC or to support the securities (if any) issued
by such SPC to fund such Loans (but nothing contained herein shall be construed
in derogation of the obligation of the Granting Lender to make Loans hereunder);
provided that neither the consent of the SPC or of any such assignee shall be
required for amendments or waivers hereunder except for those amendments or
waivers for which the consent of participants
364-DAY CREDIT AGREEMENT
<PAGE>
-61-
is required under Section 9.02,
and (ii) disclose on a confidential basis (in the same manner described in
Section 9.12) any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of a surety, guarantee or credit or
liquidity enhancement to such SPC.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the relevant Borrower against any of and all
the obligations of such Borrower now or hereafter existing under this Agreement
held by such
364-DAY CREDIT AGREEMENT
<PAGE>
-62-
Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Etc.
--------------------------------
(a) Governing Law. This Agreement shall be construed in
-------------
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrowers or their respective
properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
9.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE
364-DAY CREDIT AGREEMENT
<PAGE>
-63-
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Treatment of Certain Information; Confidentiality.
-------------------------------------------------
(a) Treatment of Certain Information. Each Borrower acknowledges
that from time to time financial advisory, investment banking and other services
may be offered or provided to such Borrower or one or more of its Subsidiaries
(in connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and each Borrower hereby authorizes
each Lender to share any information delivered to such Lender by such Borrower
and its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate receiving
such information shall be bound by the provisions of paragraph (b) of this
Section as if it were a Lender hereunder. Such authorization shall survive the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this paragraph, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (vii) with the consent of the
Borrowers or (viii) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this paragraph or (B) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrowers. For the purposes of this paragraph,
"Information" means all information received from either Borrower relating to
such Borrower or its business, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by such Borrower; provided that, in the case of information received
from such Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
364-Day Credit Agreement
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
WASHINGTON MUTUAL, INC.
By /s/ RICHARD D. LODGE
-------------------------
Name: Richard D. Lodge
Title: Senior Vice President and Treasurer
WASHINGTON MUTUAL FINANCE CORPORATION
By /s/ FAY L. CHAPMAN
-------------------------
Name: Fay L. Chapman
Title:Executive Vice President
364-DAY CREDIT AGREEMENT
<PAGE>
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent
By /s/ CHRISTINE HERRICK
-------------------------
Name: Christine Herrick
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ CHRISTINE DAVIS
------------------------------
Name: Christine Davis
Title: Principal
CITIBANK, N.A.
By:/s/ DAVID O. CASPAR
------------------------
Name: David O. Caspar
Title: Vice President
BANK ONE, NA
By:/s/ ROBERT C. ENGLISH
------------------------------
Name: Robert C. English
Title: Senior Vice President
BANK OF MONTREAL
By:/s/ BRIAN L. BANKE
------------------------------
Name: Brian L. Banke
Title: Director
364-DAY CREDIT AGREEMENT
<PAGE>
WELLS FARGO BANK
By:/s/ JULIUS YOUNG
------------------------------
Name: Julius Young
Title: Vice President
ABN AMRO BANK N.V.
By:/s/ BRUCE D. BALLENTINE
------------------------------
Name: Bruce D. Ballentine
Title: Group Vice President
By:/s/ SHINJI KURIYAMA
------------------------------
Name: Shinji Kuriyama
Title: Corporate Banking Officer
FIRST UNION NATIONAL BANK
By:/s/ JANE W. WORKMAN
------------------------------
Name: Jane W. Workman
Title: Senior Vice President
UNION BANK OF CALIFORNIA
By:/s/ WILLIAM J. MCGILL, JR
------------------------------
Name: William J. McGill, Jr
Title: S.V.P.
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ EDWARD W. LEONG
------------------------------
Name: Edward W. Leong
Title: First Vice President
364-DAY CREDIT AGREEMENT
<PAGE>
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By:/s/ RAYMOND K. MILLER By:/s/ LEO. G. KAPAKOS
----------------------- ---------------------
Name: Raymond K. Miller Name: Leo G. Kapakos
Title: Director Title: Associate Director
THE BANK OF NEW YORK
By:/s/ DENNIS A. GRAHAM
------------------------------
Name: Dennis A. Graham
Title: Vice President
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:/s/ NAMEYMA Z. SHIVNARAM By:/s/ JOHN S. MCGILL
--------------------------- -------------------
Name: Nameyma Z. Shivnaram Name: John S. McGill
Title: Director Title: Director
KEY BANK
By:/s/ RICHARD J. AMENY, JR.
------------------------------
Name: Richard J. Ameny, Jr.
Title: Assistant Vice President
CREDIT SUISEE FIRST BOSTON
By:/s/ ANDREA SHKANE By:/s/ JAMES H. LEE
--------------------- -------------------
Name: Andrea Shkane Name: James H. Lee
Title: Vice President Title: Asst. Vice President
MELLON BANK
By:/s/ DAVID B. WIRL
------------------------------
Name: David B. Wirl
Title: Assistant Vice President
364-DAY CREDIT AGREEMENT
<PAGE>
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By:/s/ MARIA H DELL AQUILA
------------------------------
Name: Maria H. Dell Aquila
Title: Vice President
BANCA DI ROMA
By:/s/ THOMAS C. WOODRUFF By:/s/ RICHARD G. DIETZ
------------------------------ ------------------------------
Name: Thomas C. Woodruff Name: Richard G. Dietz
Title: Vice President Title: Vice President
SUNTRUST BANK
By:/s/ W. DAVID WISDOM
------------------------------
Name: W. David Wisdom
Title: Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By:/s/ GEORG L. PETERS By:/s/ STEFANIE SCHOLZ
---------------------- --------------------
Name: Georg L. Peters Name: Stefanie Scholz
Title: Vice President Title: AT
CAJA MADRID
By:/s/ PAUL BARRABES
------------------------------
Name: Paul Barrabes
Title: Director Industrialised Markets
(IFI)
By:/s/ JOSE LUIS GARCIA PEREZ
------------------------------
Name: Jose Luis Garcia Perez
Title: Director of Origination
364-DAY CREDIT AGREEMENT
<PAGE>
NATIONAL AUSTRALIA BANK LIMITED
By:/s/ MICHAEL G. MCHUGH
------------------------------
Name: Michael G. McHggh
Title: Vice President
BNP PARIBAS
By:/s/ KATHERINE WOLFE By:/s/ DEBRA WRIGHT
----------------------- -----------------
Name: Katherine Wolfe Name: Debra Wright
Title: Vice President Title: Vice President
THE SANWA BANK, LIMITED
By:/s/ STEVE YAMADA
------------------------------
Name: Steve Yamada
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By:/s/ NELSON Y. CHANG
------------------------------
Name: Nelson Y. Chang
Title: Vice President
364-DAY CREDIT AGREEMENT
<PAGE>
SCHEDULE I
Revolving Credit Commitments
Name of Lender Commitment ($)
-------------- --------------
The Chase Manhattan Bank.......................................75,000,000
Bank of America, N.A...........................................75,000,000
Bank One, NA...................................................75,000,000
Citibank, N.A..................................................75,000,000
Wells Fargo Bank...............................................65,000,000
First Union National Bank......................................65,000,000
Deutsche Bank AG
New York and/or Cayman Islands Branches......................65,000,000
Credit Suisse First Boston.....................................65,000,000
ABN AMRO Bank N.V..............................................50,000,000
Westdeutche Landesbank Girozentrale............................50,000,000
Union Bank of California.......................................40,000,000
Bank of Montreal...............................................40,000,000
The Bank of New York...........................................40,000,000
Key Bank ......................................................40,000,000
National Bank of Australia Limited.............................40,000,000
The Sanwa Bank, Limited........................................40,000,000
The Dai-Ichi Kangyo Bank, Ltd..................................40,000,000
SunTrust Bank, Miami, National Association.....................40,000,000
Caja Madrid....................................................35,000,000
BNP Paribas....................................................35,000,000
Morgan Guaranty Trust Company of New York......................35,000,000
Banca Di Roma..................................................35,000,000
Norddeutsche Landesbank Girozentrale
New York Branch and/or Cayman Islands Branch.................35,000,000
Credit Lyonnais New York Branch................................22,500,000
Mellon Bank....................................................22,500,000
TOTAL $1,200,000,000
=============
Schedule I to Agreement
<PAGE>
SCHEDULE II
Material Agreements and Liens
Part A -
Material Agreements
1. Indenture dated as of February 8, 1996 between Washington Mutual Bank, FA
(under it prior name, American Savings Bank, F.A.) and The Bank of New York, as
trustee, pursuant to which Washington Mutual Bank, FA issued its 6.625 %
Subordinated Notes due February 15, 2006.
2. Indenture dated as of May 15, 1990, as supplemented, between Great Western
Bank and Union Bank, as trustee, pursuant to which Great Western Bank issued its
9.875 % Subordinated Notes due June 15, 2001.
3. Indenture dated as of August 15, 1997 between Home Savings of America, FSB
and the First National Bank of Chicago, as trustee, pursuant to which Home
Savings of America, FSB issued its 6.5 % Subordinated Notes due August 15, 2004.
4. Indenture dated as of October 26, 1993 between Home Savings of America, FSB
and Chemical Trust Company of California, as trustee, pursuant to which Home
Savings of America, FSB issued its 6% Subordinated Notes due November 1, 2000.
5. Assistance Agreement dated as of August 7, 1985 between The Bowery Savings
Bank and the Federal Deposit Insurance Corporation pursuant to which The Bowery
Savings Bank issued its 5.23% Subordinated Note due at September 30, 2000.
6. Term Loan Agreement dated as of August 10, 1998 between Home Savings of
America, FSB and Credit Suisse First Boston pursuant to which Home Savings of
America, FSB borrowed $13,000,000 at 6.15% interest due on August 10, 2000.
7. Advances and Security Agreement dated as of October 1, 1997 between
Washington Mutual Bank, FA (under it prior name, American Savings Bank, F.A.)
and the Federal Home Loan Bank of San Francisco.
8. Tax Sharing Agreement dated as of August 31, 1999 between Washington
Mutual Bank, FA, Washington Mutual, Inc., Washington Mutual Bank fsb,
Washington Mutual Bank, New American Capital, Inc. and Aristar, Inc.
9. Assistance Agreement dated as of December 28, 1988 between Washington
Mutual Bank, FA (under it prior name, American Savings Bank, F.A.), Keystone
Holdings, Inc., New American Holdings, Inc., New American Capital, Inc., N.A.
Capital Holdings, Inc., New West Federal Savings and Loan Association and the
Federal Savings and Loan Insurance Corporation.
Schedule II to Agreement
<PAGE>
-2-
Outstanding Debt Securities
WMI------Washington Mutual, Inc.
WMF------Washington Mutual Finance Corporation
WMBFA----Washington Mutual Bank, FA
NACI-----New American Capital, Inc.
ISSUER SECURITY COUPON MATURITY PRINCIPAL AMOUNT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 7.770% 04/19/2002 $15,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 8.250% 10/01/2002 $250,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 5.880% 02/27/2001 $100,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 8.360% 12/01/2006 $150,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Subordinate Note 7.875% 09/01/2004 $125,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 7.500% 08/15/2006 $750,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 7.500% 08/15/2006 $250,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Subordinate Note 8.250% 04/01/2010 $500,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 8.375% 06/01/2027 $400,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Private Debt 6.150% 08/10/2000 $3,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Senior Note 7.250% 08/15/2005 $150,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMI Private Debt 5.750% 03/30/2001 $2,760,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMBFA Senior Note 9.500% 09/15/2017 $200,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMBFA Subordinate Note 9.875% 06/15/2001 $150,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMBFA Subordinate Note 5.232% 09/30/2000 $100,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMBFA Subordinate Note 6.500% 08/15/2004 $125,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMBFA Private Debt 6.150% 08/10/2000 $13,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMBFA Subordinate Note 6.000% 11/01/2000 $250,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMBFA Subordinate Note 6.625% 02/15/2006 $100,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 6.750% 08/15/2001 $100,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 8.250% 06/15/2005 $450,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 6.000% 08/01/2001 $200,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 6.300% 10/01/2002 $150,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 6.125% 12/01/2000 $150,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 7.750% 06/15/2001 $150,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 7.250% 06/15/2001 $100,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 5.850% 01/27/2004 $200,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 6.000% 05/15/2002 $150,000,000.00
--------------------------------------------------------------------------------
Schedule II to Agreement
<PAGE>
-3-
--------------------------------------------------------------------------------
WMF Senior Note 7.250% 06/15/2006 $250,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Subordinate Note 7.375% 09/01/2004 $300,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WMF Senior Note 6.500% 11/15/2003 $150,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NACI Senior Note 8.250% 12/31/2025 $100,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NACI Senior Note 8.206% 12/31/2027 $300,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NACI Senior Note 8.600% 02/01/2002 $200,000,000.00
================================================================================
Total: $6,583,760,000.00
--------------------------------------------------------------------------------
Part B - Liens
None
Schedule II to Agreement
<PAGE>
SCHEDULE III
Litigation
None
Schedule III to Agreement
<PAGE>
SCHEDULE IV
Environmental Matters
None
Schedule IV to Agreement
<PAGE>
SCHEDULE V
Subsidiaries
See next page
Schedule V to Agreement
<PAGE>
<TABLE>
WMI SUBSIDIARIES / PARTNERSHIPS as of July 1, 2000
<S> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------------
FORMED/INCORPORATED IMMEDIATE PARENT
CORPORATION DATE STATE COMPANY HEADQUARTERS PRIMARY ACTIVITY STATUS CORPORATION /
OWNERSHIP
----------------------------------------------------------------------------------------------------------------------------
110 East 42nd Operating 09/09/82 DE 286 110 East 42nd Property management Active Home Savings of
Company, Inc. Street New York, and maintenance America
NY 10017
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
1905 Agency Incorporated 06/13/95 DE 234 9200 Oakdale Loan investments Active Washington Mutual
Avenue Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
ACD2 09/01/92 CA 248 9200 Oakdale Real property Active Washington Mutual,
Avenue development Inc.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
ACD3 01/31/94 CA 260 9200 Oakdale Real property Active ACD2
Avenue development
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
ACD4 10/26/93 CA 258 9200 Oakdale N/A Inactive ACD2
Avenue
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Capital Trust I 11/19/96 DE 265 9200 Oakdale Trustee of preferred Active Washington Mutual,
Avenue stock Inc.
Chatsworth, CA
91311 Delaware Business
Trust
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Developments, 08/30/71 CA 231 9200 Oakdale Real property Active Washington Mutual,
Inc. Avenue development Inc.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson GGC LLC 06/16/99 CA 240 9200 Oakdale Holds real estate Active ACD2
Avenue developments 64.57% FA
Chatsworth, CA California Aircraft
91311 Holding Corp.
32.02% Ahmanson Land
Company
3.41%
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Insurance, Inc. 11/01/65 CA 228 9200 Oakdale Former holding company Inactive Washington Mutual,
Avenue Inc.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-2-
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Land Company 03/23/89 CA 259 9200 Oakdale Real property Active Washington Mutual
Avenue development Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Marketing, Inc. 01/23/84 CA 268 9200 Oakdale Facilitator of loan Active Washington Mutual
Avenue sales, secondary Bank, FA
Chatsworth, CA marketing
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Mortgage 01/13/83 CA 241 9200 Oakdale Real property lending Active Washington Mutual
Company Avenue Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Obligation 09/06/91 CA 275 9200 Oakdale Diversified financial Active Washington Mutual,
Company Avenue and related services Inc. ( has outside
Chatsworth, CA interest, shares
91311 sold to CS First
Boston)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Ranch Inc. N/A CA N/A N/A N/A Inactive N/A
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Residential 2 01/20/94 CA 261 9200 Oakdale Real property Active Ahmanson Residential
Avenue development Development
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ahmanson Residential 09/01/92 CA 247 9200 Oakdale Real property Active Washington Mutual,
Development Avenue development Inc.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Alabama Service Agency, 05/23/2000 AL N/A 8900 Grand Oak Consumer finance Active Washington Mutual
LLC Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Alta Residential 07/28/97 DE 134 400 East Main St. former holding company Inactive Washington Mutual
Mortgage, Inc. Stockton, CA Bank, FA
95290
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
American Real Estate 00/00/88 DE 056 1201 Third Avenue Managed New West's Inactive New American
Group, Inc. Seattle, WA 98101 assets Capital, Inc.
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-3-
----------------------------------------------------------------------------------------------------------------------------
Aristar Agency, Inc. 01/07/63 DE N/A 8900 Grand Oak Insurance agency Active Washington Mutual
Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Aristar Insurance 12/17/94 SC N/A 8900 Grand Oak Credit-related Active Washington Mutual
Company Circle Tampa, FL insurance Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Aristar Management, Inc. 11/22/66 FL N/A 8900 Grand Oak Purchase supplies, Active Washington Mutual
Circle Tampa, FL paymaster to Aristar Finance Corporation
33637 subsidiaries
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
ARMT, Inc. 02/11/98 DE 400 East Main St. former correspondent Inactive Washington Mutual
Stockton, CA lender Bank, FA
95290
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Azusa Canyon Holding N/A CA 502 9200 Oakdale N/A Inactive Washington Mutual
Corp. Avenue Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Banyon Tree Holding 10/15/96 CA 273 9200 Oakdale Holds real estate Active Rivergrade
Corp. Avenue loans Investment Corp.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Benefit Service 01/23/76 WA 007 1201 Third Avenue Formerly provided Active WM Financial, Inc.
Corporation Seattle, WA 98101 employee benefit
consulting service
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Consumer N/A PA N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Discount Company Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Blazer Financial 05/10/82 LA N/A 8900 Grand Oak Holding company Active Washington Mutual
Corporation Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A NJ N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-4-
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A NY N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A OH N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A PA N/A 8900 Grand Oak Consumer finance Inactive Washington Mutual
Services, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A WI N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A DE N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. dba Circle Tampa, FL Finance Corporation
Washington Mutual 33637
Finance
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A ID N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. dba Circle Tampa, FL Finance Corporation
Washington Mutual 33637
Finance
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A IL N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. dba Circle Tampa, FL Finance Corporation
Washington Mutual 33637
Finance
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A MD N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. dba Circle Tampa, FL Finance Corporation
Washington Mutual 33637
Finance
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A NM N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. dba Circle Tampa, FL Finance Corporation
Washington Mutual 33637
Finance
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A IN N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Services, Inc. of Circle Tampa, FL Finance Corporation
Indiana 33637
dba
Washington Mutual
Finance (MI)
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-5-
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial 01/29/69 FL N/A 8900 Grand Oak General business Active Washington Mutual
Services, Inc. of Miami Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Blazer Financial N/A DE N/A 8900 Grand Oak Consumer Active Washington Mutual
Services, Inc. of Midway Circle Tampa, FL finance/credit card Finance Corporation
33637 company
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Bowery Advisors, Inc. 12/09/70 DE 235 9200 Oakdale N/A Inactive Home Savings of
Avenue America
Irwindale, CA
91706
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Bryant Financial 05/26/70 CA 114 9200 Oakdale Real estate Active New American
Corporation Avenue investments Capital, Inc.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
California Reconveyance 01/20/59 CA 111 9301 Corbin Trustee under real Active Washington Mutual
Company Ave. Suite estate deeds of trust Bank, FA
200
Northridge, CA
91324
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
City Finance 05/30/85 MS N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Company Circle Tampa, FL Finance Corporation
dba's 33637
Public Finance
Corp.(VA) Washington
Mutual Finance (MS, TN,
KY)
Safeway Finance
Corporation of North
Carolina (NC)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
City Holdings 12/20/85 AZ N/A 8900 Grand Oak Credit-related Active Washington Mutual
Reinsurance Life Company Circle Tampa, FL life/disability Finance Corporation
33637 reinsurer
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Coast Fed Mortgage 04/19/84 CA 276 9200 Oakdale Real estate Active Washington Mutual
Corporation Avenue lending/mortgage and Bank, FA
Chatsworth, CA investments
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Coast Mortgage and 02/17/71 CA 301 9200 Oakdale Real estate Inactive Washington Mutual
Realty Investors Avenue development Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-6-
----------------------------------------------------------------------------------------------------------------------------
Commerce Service 11/01/65 CA 227 5000 Rivergrade General insurance Active New American
Corporation Road Chatsworth, agency Capital, Inc.
CA 91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Commercial Loan 12/29/93 CA 270 9200 Oakdale Purchases loans from Active Silver Granite
Partners L. P. Avenue WMB, FA Investment Corp.
Chatsworth, CA 41.3725%
91311 (G)
Washington Mutual
Bank, FA 58.6275%
(L) (L) = Limited
Partnership (G)
General Partnership
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
CPSB Service Corporation 12/22/82 NY 504 9200 Oakdale N/A Inactive Home Savings of
Avenue America
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
CS, Inc. 03/05/86 TX 278 9200 Oakdale Sold Texas REO Inactive Coast Fed Mortgage
Avenue Corporation
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
CSU, Inc. 10/27/88 UT 279 9200 Oakdale Real estate Inactive Coast Fed Mortgage
Avenue Corporation
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Domestic Acceptance 02/03/55 PA N/A 8900 Grand Oak Formerly consumer Inactive Washington Mutual
Corporation Circle Tampa, FL finance Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Domestic Finance 04/21/65 PA N/A 8900 Grand Oak Formerly consumer Inactive Washington Mutual
Corporation Circle Tampa, FL finance Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Exchange Enterprises, 04/14/71 TX 507 9200 Oakdale Real property Inactive Home Savings of
Inc. Avenue development America
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
FA California Aircraft 6/15/99 CA 291 9200 Oakdale Holding company for Active Washington Mutual
Holding Corp. Avenue investment in: Bank, FA
Chatsworth, CA HS Loan Partners LLC
91311 Sutter Bay Associates
LLC
Ahmanson
GGC LLC
Pacific
Centre
Associates
LLC WMGW
Delaware
Holdings
LLC
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Financial Services of 05/06/88 IL 243 One TransAm Plaza Real estate broker Active Home Savings of
Illinois, Inc. Dr. Suite America
300
Oakbrook, IL
60181
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-7-
----------------------------------------------------------------------------------------------------------------------------
First Community 12/17/93 KS N/A 8900 Grand Oak Financial services Active Washington Mutual
Financial Services, Circle Tampa, FL Finance Corporation
Inc. 33637
dba Washington Mutual
Finance (KS, MO)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
First Community 08/11/75 CO N/A 3600 E. Alameda Industrial bank (BIF) Active Blazer Financial
Industrial Bank Ave. Denver, CO Corporation
80209
----------------------------------------------------------------------------------------------------------------------------
Flower Street 11/05/96 CA 256 9200 Oakdale Real property Active ACD3
Corporation Avenue development 58.96272 shares
Chatsworth, CA Ahmanson Residential
91311 2 1.32177 shares
Riverpoint
Associates
39.71551 shares
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Fowler-Hub Credit 08/25/53 OK N/A 8900 Grand Oak Formerly purchased Active Washington Mutual
Services Company Circle Tampa, FL retail installment Finance Corporation
33637 contracts
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Great Western Financial 12/06/95 DE 169 9200 Oakdale Trustee of preferred Active New American
Trust II Avenue stock Capital, Inc.
Chatsworth, CA
91311 Delaware Business
Trust
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Great Western Financial 12/06/95 DE 164 9200 Oakdale Trustee of preferred Active New American
Trust I Avenue stock Capital, Inc.
Chatsworth, CA
91311 Delaware Business
Trust
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Great Western FS 07/09/86 U.S. 102 Citibank Commercial leasing Active WMGW Delaware
Corporation Virgin Building Holdings LLC Series E
Islands Veterans
Drive
P.O. Box
5304
St. Thomas, V. I.
00803
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Great Western Service 04/16/87 CA 113 9200 Oakdale Holding company Active New American
Corporation Two Avenue Capital, Inc.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Griffin Financial 09/20/88 OH 288 951 N. Bend Road General insurance Inactive Washington Mutual
Services Insurance Cincinnati, OH agency Bank, FA
Agency, Inc. 45224
----------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Griffin Financial 01/07/36 PA 238 301 Market N/A Inactive New American
Services, Inc. Street, Suite Capital, Inc.
600
Harrisburg, PA
17101
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-8-
----------------------------------------------------------------------------------------------------------------------------
H. F. Ahmanson & Company 07/18/84 NV 226 Crowell Name holding Inactive Washington Mutual,
Building subsidiary Inc.
502 E. John
Street Carson
City, NV 89702
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
H.S. Loan Corporation 12/22/95 CA 242 9200 Oakdale Holding company and ActiveWashington Mutual,
Avenue investor in mortgage Inc.
Chatsworth, CA loans 89.19201 shares
91311 Californian Reconveyance
Company 1.68696 shares
Riverpoint
Associates
36.12103 shares
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Hamburg Glen Cove 05/22/85 NY 513 9200 Oakdale N/A Inactive Home Savings of
Development Corp. Avenue America
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Heritage Auxiliary 12/18/75 CA 277 9200 Oakdale Trustee under deed of Active Washington Mutual
Company, Inc. Avenue trust Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Home Funding Corp. 2/23/89 DE 230 9200 Oakdale Collateralized Inactive Home Savings of
Avenue securities America
Chatsworth, CA transactions
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Home Savings of America 05/10/91 CA 244 9200 Oakdale Holding company/loan Active Washington Mutual
Avenue investment Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
HS Loan Partners LLC 06/17/99 CA 245 9200 Oakdale Purchases loans from Active FA California
Avenue Washington Mutual Aircraft Holding
Chatsworth, CA Bank, FA Corp. 89.73%
91311 Washington Mutual,
Inc.
10.25% California
Reconveyance
Company 0.02%
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Integrated Funding 08/01/79 CA 501 8900 Grand Oak Provides financing to Active Western Financial
Company Circle Tampa, FL Aristar subsidiaries Funding Company
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Irvine Corporate 12/21/94 CA 059 1201 Third Avenue Holds interest in Active Washington Mutual
Center, Inc. Seattle, WA 98101 WMICC Delaware Bank, FA
Holdings LLC
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Ladue Service 12/17/71 MO 506 820 North Main Trustee on Home's Inactive Home Savings of
Corporation Street deeds of trust in America
Sikeston, MO Missouri
63801
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-9-
---------------------------------------------------------------------------------------------------------------------------
LBMC Asset Management, 03/02/99 DE N/A 1100 Town & N/A Inactive Long Beach Mortgage
Inc. Country Rd Company
Orange, CA 92868
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Long Beach Mortgage 04/11/96 DE 130 1100 Town & Subprime Residential Active Washington Mutual,
Company Country Rd Mortgages Inc.
Orange, CA 92868
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Long Beach Mortgage 02/10/99 DE N/A 1100 Town & N/A Active Long Beach Mortgage
Securities corp. Country Rd Company
Orange, CA 92868
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Marion Holdings, Inc. 04/16/87 CA 103 9200 Oakdale Holding company Active Washington Mutual
Avenue Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Marion Street, Inc. 07/02/99 WA 123 12655 SW Center REIT Active Marion Holdings, Inc.
St.
Suite 500
Beverton, OR
97005
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Mayer Group, Inc. 04/29/59 CA 302 9200 Oakdale Real estate N/A Coast Mortgage and
Avenue development Realty Investors
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Mesa Water Company 05/06/66 CA 229 9200 Oakdale Domestic water service Active Ahmanson Land Company
Avenue
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Mill Maple Properties, 09/26/85 OR 519 1201 Third Avenue N/A Inactive Washington Mutual
Inc. Seattle, WA 98101 Bank
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Morecula Development, 10/23/95 CA 055 1201 Third Avenue Real estate Active Uniwest Service
Inc. Seattle, WA 98101 development Corporation
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Murphey Favre Housing 10/09/87 WA 521 1201 Third Avenue Residential real Inactive Murphey Favre
Managers, Inc. Seattle, WA 98101 estate property Properties, Inc.
manager
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-10-
----------------------------------------------------------------------------------------------------------------------------
Murphey Favre 05/16/84 WA 008 1201 Third Avenue Real estate and Active WM Financial, Inc.
Properties, Inc. Seattle, WA 98101 limited partnership
investments
----------------------------------------------------------------------------------------------------------------------------
New American Capital, 11/10/88 DE 052 1201 Third Avenue Holding company Active Washington Mutual,
Inc. Seattle, WA 98101 Inc.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
New Town Service, LLC 1/13/99 MD 131 9324 Lakeside Real estate Active Ahmanson Residential
Blvd. management services Development
Owings Mills, MD
21117
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Olympus Development 06/23/83 UT 067 1201 Third Avenue Real estate Active WMF Utah Holdings
Company Seattle, WA 98101 development Corp.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Oxford Ranch Inc. 01/07/93 CA 250 9200 Oakdale Real property title Active Washington Mutual
Avenue holding company Bank, FA
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Pacific Centre 06/17/99 CA 257 9200 Oakdale Holds real estate Active FA California
Associates LLC Avenue developments Aircraft Holding
Chatsworth, CA Corp. 62.29%
91311 Irvine Corporate
Center,
Inc
31.21%
Washington Mutual,
Inc.
5.44%
ACD3
1.03%
Ahmanson Residential
2
0.03%
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Pioneer Properties, Inc. 02/22/71 WA 048 1201 Third Avenue Real estate Active Washington Mutual,
Seattle, WA 98101 development Inc.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Preston Properties 03/01/92 WA 045 1201 Third Avenue Real estate Inactive Preston Ridge
California, Inc. Seattle, WA 98101 development Financial Services
Corporation
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Preston Ridge Financial 06/19/80 WA 004 1201 Third Avenue Real estate Inactive Washington Mutual
Services Corporation Seattle, WA 98101 development Bank
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Public Finance 06/16/59 WV N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Corporation dba Circle Tampa, FL Finance Corporation
Washington Mutual 33637
Finance
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-11-
----------------------------------------------------------------------------------------------------------------------------
Public Loan Corporation 03/12/51 NV N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Rivergrade Investment 10/26/93 CA 272 9200 Oakdale Holding company Active WMB,
Corp. Avenue FA
Chatsworth, CA 258
91311 shares
Home Savings of
America 327.675
shares Ahmanson
Marketing,
Inc. 14.325
shares
Savings of America,
Inc.
150 shares
Commercial Loan
Partners
250 shares
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Riverpoint Associates N/A CA Partnershi9200 Oakdale Holds real estate Active ACD2
280 Avenue developments 81% Ahmanson
Chatsworth, CA Residential
91311 Development 19%
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Royce Commercial 03/02/74 CA 117 2029 Century Park Real estate brokerage Active New American
Brokerage Company, East Suite Capital, Inc.
Inc., The 3750
L.A., CA 90067
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Savings of America, Inc. 04/11/83 CA 274 9200 Oakdale Name holder and Active Washington Mutual
Avenue investor in mortgage Bank, FA
Chatsworth, CA loans
91311
------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
SeaCoast Management, 09/30/82 WA 520 1201 Third Avenue Management Company Inactive Washington Mutual
Inc. Seattle, WA 98101 Bank
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Seneca Holdings, Inc.. 03/06/58 CA 300 9200 Oakdale Holding Company Active Washington Mutual
Avenue Bank
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Seneca Street, Inc. 07/02/99 WA 121 12655 SW Center REIT Active Seneca Holdings, Inc.
St.
Suite 500
Beverton, OR
97005
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Seville Realty, Inc. 04/10/81 TX 266 4606 FM 1960 Dormant - except for Active Home Savings of
West use to access MLS America
Suite listing by Texas
215 appraisers/ real
Houston, TX 77069 estate brokers
----------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
Sierra Western Mortgage 06/09/83 CA 118 9401 Oakdale Ave. Mortgage brokerage Active Walker & Lee, Inc.
Company Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-12-
----------------------------------------------------------------------------------------------------------------------------
Silver Granite 10/26/93 CA 271 9200 Oakdale Loan Investment Active Savings of America,
Investment Corp. Avenue Inc.
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Snohomish Securities, 02/07/90 CA 120 9200 Oakdale Ave. Holding company Active Washington Mutual
Inc. Chatsworth, CA Bank, FA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
SS Service Corporation 02/19/73 WA 046 1201 Third Avenue Foreclosed property Inactive Washington Mutual
Seattle, WA 98101 Bank
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Stonehedge Partners 06/17/99 CA 252 9200 Oakdale Holds real estate Active Ahmanson
Avenue developments Developments,
Chatsworth, CA Inc. 100%
91311 R. L.. Hertel
Constructors,
Inc. 0%
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
SunPoint Financial 06/13/85 FL 104 2601 10th Ave. CMO issuance Active Washington Mutual
Corporation No. Lake Bank, FA
Worth, FL 33461
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Sutter Bay Associates N/A CA 253 9200 Oakdale Holds real estate Active FA California
LLC Avenue developments Aircraft Holding
Chatsworth, CA Corp. 96.19%
91311 Ahmanson Residential
2
.43% Ahmanson
Residential
3.39%
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Sutter Bay Corporation 11/05/96 CA 255 9200 Oakdale Real property Active Ahmanson Residential
Avenue development Development
Chatsworth, CA
91311 78.84438 shares
Ahamsnon Residential
2 9.94472 shares
Riverpoint
Associates
44.51090 shares
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Tamarack, Inc. 09/28/76 TX 510 9200 Oakdale Real property Inactive Home Savings of
Avenue development America
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
University Street, Inc 07/02/99 WA 122 12655 SW Center REIT Active Marion Holdings, Inc.
St.
Suite 500
Beverton, OR
97005
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Uniwest Service 05/08/73 UT 054 4185 Harrison Property management Active Washington Mutual
Corporation Boulevard Ogden, Bank
UT 84403
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-13-
----------------------------------------------------------------------------------------------------------------------------
Walker & Lee, 09/04/58 CA 108 9401 Oakdale Ave. Holding company Active New American
Inc. Chatsworth, CA Capital, Inc.
dba Great Western Real 91311
Estate
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 09/30/94 WA 001 1201 Third Avenue Consumer banking Active Washington Mutual,
Bank Seattle, WA 98101 Inc.
dba's Commercial banking
Western (under dba's)
Bank
WM Business
Bank
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Bank 04/15/94 OTS 040 201 South Main Consumer banking Active Washington Mutual,
fsb Street Inc.
Suite (Federal Association)
180
Salt lake City,
UT 84111
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual Bank, 12/28/88 OTS 002 400 East Main St. Consumer banking Active New American
FA Stockton, CA Capital, Inc.
95290 (Federal Association)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 05/28/97 CA 068 1201 Third Avenue Holding company for Active Washington Mutual
Brokerage Holdings, Inc. Seattle, WA 98101 non-California Bank, FA
subsidiaries of WMBFA
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual N/A DE 064 1201 Third Avenue Trustee of preferred Active Washington Mutual,
Capital I Seattle, WA 98101 stock Inc.
Delaware business
trust
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 11/21/90 CA 106 9200 Oakdale Ave. Low/moderate income Active Washington Mutual
Community Development, Chatsworth, CA housing Bank, FA
Inc. 91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 11/05/86 DE 802 8900 Grand Oak Holding company Active Great Western
Finance Corporation Circle Tampa, FL Service Corporation
33637 Two
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 04/11/2000 DE N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance Group, LLC Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 04/10/2000 DE N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance of Florida, LLC Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-14-
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 04/10/2000 DE N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance of Mississippi, Circle Tampa, FL Finance Corporation
LLC 33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 03/14/62 NC N/A 8900 Grand Oak Consumer finance and Active Washington Mutual
Finance of North Circle Tampa, FL second mortgages Finance Corporation
Carolina, Inc. 33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 04/10/2000 DE N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance of North Circle Tampa, FL Finance Corporation
Carolina, LLC 33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 04/10/2000 DE N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance of Virginia, LLC Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 10/15/41 CA N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual N/A LA N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 03/14/62 OH N/A 8900 Grand Oak Mortgage lending Active Washington Mutual
Finance, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual N/A TX N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual N/A UT N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance, Inc. Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 04/11/2000 DE N/A 8900 Grand Oak Consumer finance Active Washington Mutual
Finance, LLC Circle Tampa, FL Finance Corporation
33637
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-15-
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 12/23/94 MT 065 1201 Third Avenue Insurance agency Active WMF Utah Holdings
Insurance Brokerage Seattle, WA 98101 Corp.
Services, Inc.
(dba Washington Mutual
Insurance Agency in UT)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 02/06/64 TX 262 5000 Rivergrade Managing general Active New American
Insurance Services Road Chatsworth, insurance agency Capital, Inc.
Managing General CA 91311
Agency, Inc.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 05/24/94 ID 014 8620 West Emerald Idaho insurance agency Active WMF Utah Holdings
Insurance Services of Street Suite Corp.
Idaho, Inc. 120
Boise, ID 83707
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 06/21/85 CA 233 17877 Von Karman Insurance agency Active Washington Mutual
Insurance Services, Inc. Ave. Bank, FA
Fourth Floor
Irvine, CA 92614
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual 06/13/89 TX 289 3003 S. Loop West General insurance Active Washington Mutual
Insurance Services, Inc. Houston, TX 77054 agency Insurance Services,
Inc. (%100
indirectly
controlled)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Mutual, Inc. 08/17/94 WA 070 1201 Third Avenue Holding company Active Publicly traded on
Seattle, WA 98101 NYSE
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Washington Reconveyance 01/26/96 WA 112 9200 Oakdale Trustee under real Active California
Company Chatsworth, CA estate deeds of trust Reconveyance Company
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Western Credit 08/04/88 OR N/A 290 South Fourth Consumer lending Active Washington Mutual
Services, Co. Street Coos Bay, Finance Corporation
OR 97420-0242
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Western Equity 10/09/79 CO 517 N/A N/A Inactive Western Mortgage
Corporation Loan Corporation
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Western Financial 10/06/72 CA N/A 8900 Grand Oak Provides financing to Active Washington Mutual
Funding Company Circle Tampa, FL Washington Mutual Finance Corporation
33637 Finance Corporation
subsidiaries
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-16-
----------------------------------------------------------------------------------------------------------------------------
Western Mortgage Loan 06/26/50 UT 516 4135 Harrison Real estate lending Active Washington Mutual
Corporation Boulevard Ogden, Bank
UT 84403
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Western National 01/03/79 CA 119 9401 Oakdale Ave. Real estate brokerage Inactive Walker & Lee, Inc.
Realtors, Inc. dba Chatsworth, CA
Great Western Real 91311
Estate
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Western Service Co. 04/26/65 OR 518 290 South Fourth Real estate holding Inactive Washington Mutual
Street Coos Bay, company; insurance Bank
OR 97420-0242 agency
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WM Advisors, Inc. 03/24/44 WA 015 1201 Third Avenue Registered investment Active New American
Seattle, WA 90101 advisor Capital, Inc.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WM Enterprises & 04/29/94 WA 012 1201 Third Avenue To hold bank stock N/A Washington Mutual
Holdings, Inc. Seattle, WA 98101 under 12 CFR Bank
362.4(b)(4)(ii)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WM Financial Services, 07/01/44 WA 005 1201 Third Avenue Securities brokerage Active Washington Mutual
Inc. Seattle, WA 98101 under 12 CFR 545.74 Brokerage Holdings,
Inc.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WM Financial, Inc. 01/13/82 WA 006 1201 Third Avenue Holding company Active Washington Mutual
Seattle, WA 98101 Bank
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WM Funds Distributor, 04/17/77 WA 016 1201 Third Avenue Mutual fund Active WM Advisors, Inc.
Inc. Seattle, WA 98101 distributor
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WM Insurance Agency, 07/02/73 WA 027 1201 Third Avenue Insurance agency Active Washington Mutual
Inc. Seattle, WA 98101 Bank
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WM Interactive, Inc. 11/21/96 WA 042 1201 Third Avenue Investment in Active Washington Mutual
Seattle, WA 98101 Integrion for home Bank
banking services.
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-17-
----------------------------------------------------------------------------------------------------------------------------
WM Mortgage Reinsurance 02/28/2000 HI 136 745 Fort Reinsures private Active Washington Mutual
Company, Inc. Street, mortgage insurers Bank
Suiite
800
Honolulu, HI 96813
----------------------------------------------------------------------------------------------------------------------------
WM Shareholder 11/17/86 WA 025 1201 Third Avenue Fund transfer agent Active WM Advisors, Inc.
Services, Inc. Seattle, WA 98101 and shareholder
service
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WMBFA Insurance Agency, 12/08/88 CA 062 1201 Third Avenue Insurance (annuities) Active Washington Mutual
Inc. Seattle, WA 98101 agency Bank, FA
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WMF Utah Holdings Corp. 10/22/76 UT 066 1201 Third Avenue Holding company for Active Washington Mutual
Seattle, WA 98101 non-Utah insurance Bank fsb
agencies
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WMFS Insurance Services 03/09/89 ID 026 1201 Third Avenue Insurance (annuities) Active WM Financial
of Idaho, Inc. Seattle, WA 98101 agency Services, Inc.
----------------------------------------------------------------------------------------------------------------------------
WMFS Insurance Services 02/08/2000 NV 135 1201 Third Avenue Insurance (annuities) Active WM Financial
of Nevada, Inc. Seattle, WA 98101 agency Services, Inc.
----------------------------------------------------------------------------------------------------------------------------
WMFS Insurance 05/24/94 CA 058 1201 Third Avenue Insurance (annuities) Active WM Financial
Services, Inc. Seattle, WA 98101 agency Services, Inc.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WMGW Delaware Holdings 6/16/99 DE 290 9200 Oakdale Commercial Active FA California Aircraft
LLC Avenue leasing/lending Holding Corp. 100%
Chatsworth, CA in Series E
91311 Ahmanson GGC
LLC
100%
in
Series
D
HS
Loan
Partners
LLC
100%
in
Series
C
Sutter
Bay
Associates
LLC
100%
in
Series
A&B
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WMHFA Delaware Holdings 6/21/99 DE 296 9200 Oakdale Holds real property Active Pacific Centre
LLC Avenue contributed by WMI Associates LLC
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
WMICC Delaware Holdings 6/21/99 DE 298 9200 Oakdale Holds real property Active Pacific Centre
LLC Avenue contributed by Irvine Associates LLC
Chatsworth, CA Corporate Center
91311
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
<PAGE>
-18-
----------------------------------------------------------------------------------------------------------------------------
WMRP Delaware Holdings 6/21/99 DE 297 9200 Oakdale Holds real property Active Pacific Centre
LLC Avenue contributed by WMB, FA Associates LLC
Chatsworth, CA
91311
----------------------------------------------------------------------------------------------------------------------------
Schedule V to Agreement
</TABLE>
<PAGE>
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Amended and Restated Credit
Agreement dated as of August 10, 2000 (as amended and in effect on the date
hereof, the "Agreement"), between Washington Mutual, Inc., Washington Mutual
Finance Corporation, the Lenders named therein and The Chase Manhattan Bank, as
Administrative Agent for the Lenders. Terms defined in the Agreement are used
herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse,
to the Assignee named below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Agreement, including the interests
set forth below in the Commitment of the Assignor on the Assignment Date and
Competitive Loans and Syndicated Loans owing to the Assignor which are
outstanding on the Assignment Date, together with unpaid interest accrued on the
assigned Loans to the Assignment Date, and the amount, if any, set forth below
of the fees accrued to the Assignment Date for account of the Assignor. The
Assignee hereby acknowledges receipt of a copy of the Agreement. From and after
the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Agreement and, to the extent of the interests assigned by this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.15(e) of the Agreement, duly completed and executed by the Assignee, and (ii)
if the Assignee is not already a Lender under the Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the law of the State of New York.
Assignment and Acceptance
<PAGE>
-2-
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date")1:
---------------
Percentage Assigned of
Facility/Commitment
(set forth, to at
Principal Amount least 8 decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate Commitments
individual of all Lenders
Facility Competitive Loans) thereunder)
-------- ------------------ ----------------------
Commitment Assigned: $ %
Syndicated Loans:
Competitive Loans:
Fees Assigned (if any):
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
------------------------
By:_________________________
Name:
Title:
[NAME OF ASSIGNEE] , as Assignee
------------------------
By:_________________________
Name:
Title:
---------------------------------
1 Must be at least five Business Days after execution hereof by all required
parties.
Assignment and Acceptance
<PAGE>
-3-
The undersigned hereby consent to the within assignment:2
WASHINGTON MUTUAL, INC.
By:_________________________
Name:
Title:
WASHINGTON MUTUAL FINANCE CORPORATION
By:_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_________________________
Name:
Title:
------------------
2 Consents to be included to the extent required by Section 9.04(b) of the
Agreement.
Assignment and Acceptance
<PAGE>
EXHIBIT B
[Form of Opinion of Counsel to the Borrowers]
August ___, 2000
To the Lenders Party to the Agreement
Referred to Below and The Chase Manhattan Bank,
as Administrative Agent
Re: Washington Mutual, Inc./Washington Mutual Finance Corporation
Ladies and Gentlemen:
We have acted as counsel to Washington Mutual, Inc., a Washington
corporation ("WMI") and its wholly owned, indirect subsidiary Washington Mutual
Finance Corporation, a Delaware corporation ("Finance" and together with WMI,
the "Borrowers"), in connection with the 364 Day Amended and Restated Credit
Agreement, dated August 10, 2000, between the Borrowers, the lenders party
thereto and The Chase Manhattan Bank, as Administrative Agent (the "Agreement").
This opinion is rendered to you pursuant to Section 4.01(b) of the Agreement.
Capitalized terms used without definition in this opinion have the meanings
given to them in the Agreement.
I.
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies. We have based our
opinion upon our review of the following records, documents, instruments and
certificates and such additional certificates relating to factual matters as we
have deemed necessary or appropriate for our opinion:
A. The Agreement;
B. The Articles of Incorporation of the WMI certified by the
Washington Secretary of State as of August _____, 2000, and certified to
us by an officer of WMI as being complete and in full force and effect as
of the date of this opinion and the Articles of Incorporation of Finance
certified by the Delaware Secretary of State as of August ____, 2000, and
certified to us by an officer of Finance as being complete and in full
force and effect as of the date of this opinion;
C. The Bylaws of WMI certified to us by an officer of WMI as being
complete and in full force and effect as of the date of this opinion, and
the Bylaws of Finance
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
-2-
certified to us by an officer of Finance as being complete and in full
force and effect as of the date of this opinion;
D. Records certified to us by an officer of WMI as constituting all
records of proceedings and actions of the board of directors of WMI
relating to the transactions contemplated by the Agreement, and records
certified to us by an officer of Finance as constituting all records of
proceedings and actions of the board of directors of Finance relating to
the transactions contemplated by the Agreement;
E. A Certificate of Existence/Authorization relating to WMI issued
by the Washington Secretary of State, dated August _____, 2000, and a
certificate relating to Finance's incorporation and good standing issued
by the Delaware Secretary of State, dated August ___, 2000; and
F. Certificates relating to the Subsidiaries listed in Annex I to
this opinion, specifically (i) in the case of Washington Mutual Bank, a
Certificate of Good Standing issued by the Washington State Department of
Financial Institutions, and (ii) in the case of Washington Mutual Bank,
FA., a Certificate of Corporate Existence issued by the Office of Thrift
Supervision.
Our opinions expressed in Paragraphs 1, 2, 3 and 4 of Part III as to
the due incorporation/organization and valid existence of WMI, Finance and the
Subsidiaries listed in Annex I hereto is based solely upon the certificates
enumerated in paragraphs E and F above. We have made no additional investigation
after the respective dates of those Certificates of Existence/Authorization in
rendering our opinion expressed in Paragraphs 1, 2, 3 and 4 of Part III.
In connection with our opinions in Paragraphs 10 and 11 of Part III
relating to the agreements and instruments of WMI and Finance, we have not
reviewed, and express no opinion on, (i) financial covenants or similar
provisions requiring financial calculations or determinations to ascertain
compliance, (ii) provisions relating to the occurrence of a "material adverse
event" or words of similar import or (iii) parol evidence bearing on
interpretation or construction. Moreover, to the extent that any agreement or
instrument is governed by the laws of any jurisdiction other than the State of
Washington, our opinion relating to those agreements and instruments is based
solely upon the plain meaning of their language without regard to interpretation
or construction that might be indicated by the laws governing those agreements
and instruments.
Where our opinion relates to our "knowledge," that knowledge is
based upon our examination of the records, documents, instruments and
certificates enumerated or described above and the actual contemporaneous
knowledge of attorneys in this firm who are currently involved in legal
representation of WMI and Finance in connection with the Agreement. We have not
examined any records of any court, administrative tribunal or other similar
entity in connection with our opinion.
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
-3-
II.
We express no opinion as to:
(a) The applicable choice of law rules that may affect the
interpretation or enforcement of the Agreement.
(b) Any securities, tax, anti-trust, land use, safety, environmental
or hazardous materials laws, rules or regulations or laws, rules or
regulations applicable to either the lenders party to the Agreement or to
the Administrative Agent by virtue of their status as financial
institutions engaged in business of the type exemplified by the Agreement.
(c) The effect on the respective obligations of WMI and Finance, and
your rights, under the Agreement of laws relating to fraudulent transfers
and fraudulent obligations set forth in Sections 544 and 548 of the
federal Bankruptcy Code and Chapter 19.40 of the Revised Code of
Washington. We have been advised by you or your counsel that you have
obtained financial information and other knowledge of the credit
facilities, operations and business plan of WMI and Finance sufficient to
satisfy you that (i) neither WMI nor Finance was either insolvent or
inadequately capitalized immediately before the consummation of the
transactions contemplated by the Agreement, (ii) consummation of the
transactions contemplated by the Agreement will not render either WMI or
Finance insolvent or inadequately capitalized and (iii) neither WMI nor
Finance intended to incur, nor believed or reasonably should have believed
that it would incur, debts which it would not be able to pay as they
mature.
This opinion is limited to the federal laws of the United States of
America, the laws of the State of Washington, and the Delaware General
Corporation Law as it relates to corporate formalities, and we disclaim any
opinion as to the laws of any other jurisdiction. We further disclaim any
opinion as to any statute, rule, regulation, ordinance, order or other
promulgation of any regional or local governmental body or as to any related
judicial or administrative opinion.
III.
Based upon the foregoing and our examination of such questions of
law as we have deemed necessary or appropriate for the purpose of our opinion,
and subject to the limitations and qualifications expressed below, it is our
opinion that:
1. WMI has been duly incorporated and is validly existing under the laws
of the State of Washington.
2. Finance has been duly incorporated and is validly existing under the
laws of the State of Delaware.
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
-4-
3. Washington Mutual Bank, a Subsidiary of WMI listed in Annex I hereto, has
been duly organized under the laws of the State of Washington and is authorized
to transact a stock savings bank business in the State of Washington.
4. Washington Mutual Bank, FA, a Subsidiary of WMI listed in Annex I hereto, has
been duly chartered under the laws of the United States and its charter is in
full force and effect.
5. WMI has all requisite corporate power and corporate authority to enter into
and perform its obligations under the Agreement, to own its properties and to
carry on its business as, to our knowledge, it is now conducted.
6. Finance has all requisite corporate power and corporate authority to enter
into and perform its obligations under the Agreement, to own its properties and
to carry on its business as, to our knowledge, it is now conducted.
7. The Agreement has been duly authorized by all necessary corporate action on
the part of the Borrowers and has been duly executed and delivered on behalf of
the Borrowers.
8. Assuming that a court holds that the laws of the State of Washington govern
the interpretation and enforcement of the Agreement, rather than the laws of the
State of New York as stated in the Agreement, the Agreement is a valid and
binding obligation of each of the Borrowers, enforceable against each of the
Borrowers in accordance with its terms, subject, as to enforcement, (i) to
bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws
of general applicability relating to or affecting creditors' rights and (ii) to
general principles of equity, whether such enforceability is considered in a
proceeding in equity or at law. We express no opinion as to whether the laws of
the State of New York or the laws of the State of Washington, or the laws of any
other jurisdiction, would be held to govern the interpretation and enforcement
of the Agreement.
9. No governmental consents, approvals, authorizations, registrations,
declarations or filings are required for the execution and delivery of the
Agreement on behalf of the Borrowers and consummation by the Borrowers of the
transactions contemplated by the Agreement except such as have been obtained or
made.
10. Neither the execution and delivery of the Agreement on behalf of WMI nor the
borrowing of money by WMI contemplated by the Agreement (i) conflicts with any
provision of the Articles of Incorporation or Bylaws of WMI, (ii) violates any
law applicable to WMI or (iii) results in a breach or violation of, or
constitutes a default under, any term of any agreement or instrument of which we
have knowledge to which WMI is a party or by which WMI is bound or to which WMI
is subject.
11. Neither the execution and delivery of the Agreement on behalf of Finance nor
the borrowing of money by Finance contemplated by the Agreement (i) conflicts
with any provision of the Articles of Incorporation or Bylaws of Finance, (ii)
violates any law applicable to Finance or (iii) results in a breach or violation
of, or constitutes a default under, any term of any agreement or
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
-5-
instrument of which we have knowledge to which Finance is a party or by
which Finance is bound or to which Finance is subject.
12. We do not have knowledge of any action, suit or proceeding against Finance
or WMI that is either pending or has been threatened in writing reasonably
likely to have a material adverse effect, other than those set forth in Schedule
III to the Agreement.
IV.
We further advise you that:
(a) As noted, the enforceability of the Agreement is subject
to the effect of general principles of equity. These principles include,
without limitation, concepts of commercial reasonableness, materiality and
good faith and fair dealing. Assuming that a court holds that the laws of
the State of Washington govern the interpretation and enforcement of the
Agreement, as applied to the Agreement, these principles will require you
to act reasonably, in good faith and in a manner that is not arbitrary or
capricious in the administration and enforcement of the Agreement and will
preclude you from invoking penalties for defaults that bear no reasonable
relation to the damage suffered or that would otherwise work a forfeiture.
(b) The effectiveness of indemnities, rights of contribution,
exculpatory provisions and waivers of the benefits of statutory provisions
may be limited on public policy grounds.
(c) Assuming that a court holds that the laws of the State of
Washington govern the interpretation and enforcement of the Agreement,
pursuant to RCW 4.84.330, any provision in an agreement requiring a party
to pay another party's attorneys' fees and costs in actions to enforce the
provisions of such agreement will be construed to entitle the prevailing
party in any action, whether or not that party is the specified party, to
be awarded its reasonable attorneys' fees, costs and necessary
disbursements.
(d) Provisions of the Agreement requiring that waivers must be
in writing may not be binding or enforceable if a non-executory oral
agreement has been created modifying any such provision or an implied
agreement by trade practice or course of conduct has given rise to a
waiver.
V.
This opinion is rendered to each Lender party to the Agreement and
The Chase Manhattan Bank in connection with the Agreement and is solely for
their benefit. This opinion may not be relied upon by any other person, firm,
corporation or other entity, except any person, firm, corporation or other
entity that acquires an interest in the loans contemplated by the
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
-6-
Agreement, without our prior written consent. We disclaim any obligation to
advise you of any change of law that occurs, or any facts of which we become
aware, after the date of this opinion.
Very truly yours,
HELLER EHRMAN WHITE & McAULIFFE LLP
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
-7-
ANNEX I
ENTITY JURISDICTION
Washington Mutual Bank Washington
Washington Mutual Bank, FA Organized under the laws
of the United States
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
-8-
Prepared by:
------------------------------
Signed by:
------------------------------
Approved by:
------------------------------
Date of Approval:
------------------------
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
__________, 2000
To the Lenders party to the Agreement referred to below and The Chase Manhattan
Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan
Bank ("Chase") in connection with the 364-Day Amended and Restated Credit
Agreement (the "Agreement") dated as of August 10, 2000, between Washington
Mutual, Inc. ("WAMU"), Washington Mutual Finance Corporation ("Finance" and,
together with WAMU, the "Borrowers"), the lenders party thereto and Chase, as
Administrative Agent, providing for loans to be made by said lenders to the
Borrowers in an aggregate principal amount not exceeding $1,200,000,000. Terms
defined in the Agreement are used herein as defined therein. This opinion letter
is being delivered pursuant to Section 4.01(c) of the Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Agreement; and
(b) such records of the Borrowers and such other documents as we
have deemed necessary as a basis for the opinions expressed below.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as copies. When relevant facts were not independently established, we have
relied upon representations made in or pursuant to the Agreement.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly executed
and delivered by, and (except to the extent set forth in the opinions expressed
below as to
OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE
<PAGE>
-2-
the Borrowers) constitute legal, valid, binding and enforceable
obligations of, all of the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Agreement constitutes the legal,
valid and binding obligation of the Borrowers, enforceable against each Borrower
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws relating to or affecting the rights of creditors generally and except as
the enforceability of the Agreement is subject to the application of general
principles of equity (regardless of whether considered in a proceeding in equity
or at law), including (a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 9.03 of the Agreement may be
limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such
laws and (ii) laws limiting the enforceability of provisions exculpating
or exempting a party, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
(B) The enforceability of provisions in the Agreement to the effect
that terms may not be waived or modified except in writing may be limited
under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose, (ii) the last sentence of Section 2.16(d) of the Agreement and
(iii) Section 9.09(b) of the Agreement, insofar as such sentence relates
to the subject matter jurisdiction of the United States District Court for
the Southern District of New York to adjudicate any controversy related to
the Agreement.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
At the request of our client, this opinion letter is, pursuant to Section
4.01(c) of the Agreement, provided to you by us in our capacity as special New
York counsel to Chase and
OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE
<PAGE>
-3-
may not be relied upon by any Person for any purpose other than in
connection with the transactions contemplated by the Agreement without, in each
instance, our prior written consent.
Very truly yours,
RJW/WFC
OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE
