Exhibit 10(b)
CASH SUBORDINATION AGREEMENT
AGREEMENT dated as of January 31, 1997 between THE ADVEST GROUP,
INC., a Delaware corporation (the "Lender") and ADVEST, INC., a
Delaware corporation (the "Organization").
1. GENERAL - Subject to the terms and conditions hereinafter set
forth, the Organization promises to pay to the Lender or assigns, on
December 31, 2006 (the "Scheduled Maturity Date") at the principal
office of the Organization, the sum of Ten Million ($10,000,000)
Dollars and interest payable semi-annually on the last day of June and
December in each year at the rate of 8% per annum from the date hereof.
By written notice delivered to the Organization at its principal office
and to the New York Stock Exchange, Inc. (the "Exchange") no sooner
than 6 months from the date hereof, the Lender may accelerate such
payment date to the last business day of a calendar month not less than
6 months after the receipt of such notice by both the Organization and
the Exchange, but the right of the Lender to receive payment of the
principal amount hereof and interest shall remain subordinate as
hereinafter provided.
2. SUSPENDED REPAYMENT - The Organization's obligation to pay
the principal amount hereof on the Scheduled Maturity Date or any
accelerated maturity date shall be suspended and the obligation shall
not mature for any period of time during which after giving effect to
such payment (together with (a) the payment of any other obligation of
the Organization payable at or prior to the payment hereof and (b) the
return of any Secured Demand Note and the Collateral therefor held by
the Organization and returnable at or prior to the payment hereof)
(i) in the event that the Organization is not operating
pursuant to the alternative net capital requirement provided
for in paragraph (a)(1)(ii) of Rule 15c3-1 (the "Rule") under
the Securities Exchange Act of 1934, as amended (the "Act"),
the aggregate indebtedness of the Organization would exceed
1200 percentum of its net capital as those terms are defined
in the Rule or any successor rule as in effect at the time
payment is to be made (or such other percentum as may be made
applicable to the Organization at the time of such payment by
the Exchange or the Securities and Exchange Commission (the
"SEC")), or
(ii) in the event that the Organization is operating
pursuant to such alternative net capital requirement, the net
capital of the Organization would be less than 5 percentum
(or such other percentum as may be made applicable to the
Organization at the time of such payment by the Exchange or
the SEC) of aggregate debit items computed in accordance with
Exhibit A to Rule 15c33 under the Act or any successor rule
as in effect at such time, or
(iii) in the event that the Organization is registered as
a futures commission merchant under the Commodity Exchange
Act (the "CEA"), the net capital of the Organization (as
defined in the CEA or the regulations thereunder as in effect
at the time of such payment) would be less than 6 percentum
(or such other percentum as may be made applicable to the
Organization at the time of such payment by the Commodity
Futures Trading Commission (the "CFTC")) of the
funds required to be segregated pursuant to the CEA and the
regulations thereunder and the foreign futures or foreign
options secured amount less the market value of commodity
options purchased by customers on or subject to the rules of
a contract market or a foreign board of trade, provided,
however, the deduction for each customer shall be limited to
the amount of customer funds in such customer's account and
foreign futures and foreign options secured amounts., or
(iv) the Organization's net capital, as defined in the
Rule or any successor rule as in effect at the time of such
payment, would be less than 120 percentum (or such other
percentum as may be made applicable to the Organization at
the time of such payment by the Exchange or the SEC) of the
minimum dollar amount required by the Rule as in effect at
such time (or such other dollar amount as may be made
applicable to the Organization at the time of such payment by
the Exchange or the SEC), or
(v) in the event that the Organization is registered as
a futures commission merchant under the CEA and if its net
capital, as defined in the CEA or the regulations thereunder
as in effect at the time of such payment, would be less than
120 percentum (or such other percentum as may be made
applicable to the Organization at the time of such payment by
the CFTC) of the minimum dollar amount required by the CEA or
the regulations thereunder as in effect at such time (or such
other dollar amount as may be made applicable to the
Organization at the time of such payment by the CFTC), or
(vi) in the event that the Organization is subject to
the provisions of paragraph (a)(6)(v) or (a)(7)(iv) or
(c)(2)(x)(B)(1) of the Rule, the net capital of the
Organization would be less than the amount required to
satisfy the 1000% test (or such other percentum test as may
be made applicable to the Organization at the time of such
payment by the Exchange or the SEC stated in such applicable
paragraph
(the net capital necessary to enable the Organization to avoid such
suspension of its obligation to pay the principal amount hereof being
hereinafter referred to as the "Applicable Minimum Capital") and during
any such suspension the Organization shall, as promptly as consistent
with the protection of its customers, reduce its business to a
condition whereby the principal amount hereof with accrued interest
thereon could be paid (together with (a) the payment of any other
obligation of the Organization payable at or prior to the payment
hereof and (b) the return of any Secured Demand Note and the Collateral
therefor held by the Organization and returnable at or prior to the
payment hereof) without the Organization's net capital being below the
Applicable Minimum Capital, at which time the Organization shall repay
the principal amount hereof plus accrued interest thereon on not less
than 5 days' prior written notice to the Exchange. This loan shall
mature on the first day at which under this paragraph the Organization
has an obligation to pay the principal amount hereof. If pursuant to
the terms hereof the Organization's obligation to pay the principal
amount hereof is suspended and does not mature, the Organization and
the Lender recognize and agree that the Organization may be summarily
suspended by the Exchange.
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The Organization agrees that, if its obligation to pay the principal
amount hereof is ever suspended for a period of six months or more, it
will promptly take whatever steps are necessary to effect a repaid and
orderly complete liquidation of its business. If payment is made of
all or any part of the principal hereof on the Scheduled Maturity Date
or any accelerated maturity date and if immediately after any such
payment the Organization's net capital is less than the Applicable
Minimum Capital, the Lender agrees irrevocably (whether or not such
Lender had any knowledge or notice of such fact at the time of any such
payment) to repay to the Organization, its successors or assigns, the
sum so paid, to be held by the Organization pursuant to the provisions
hereof as if such payment had never been made; provided, however, that
any suit for the recovery of any such payment must be commended within
two years of the date of such payment.
3. SUBORDINATION OF OBLIGATIONS - The Lender irrevocably agrees
that the obligations of the Organization under this agreement with
respect to the payment of principal and interest are and shall be fully
and irrevocably subordinate in right of payment and subject to the
prior payment or provision for payment in full of all claims of all
other present and future creditors of the Organization whose claims are
not similarly subordinated (claims hereunder shall rank pari passu with
claims similarly subordinated) and to claims which are now or hereafter
expressly stated in the instruments creating such claims to be senior
in right of payment to the claims of the class of this claim arising
out of any matter occurring prior to the date on which the
Organization's obligation to make such payment matures consistent with
the provisions hereof. In the event of the appointment of a receiver
or trustee of the Organization or in the event of its insolvency,
liquidation pursuant to the Securities Investor Protection Act of 1970
("SIPA") or otherwise, its bankruptcy, assignment for the benefit of
creditors, reorganization whether or not pursuant to bankruptcy laws,
or any other marshaling of the assets and liabilities of the
Organization, the holder hereof shall not be entitled to participate or
share, ratably or otherwise, in the distribution of the assets of the
Organization until all claims of all other present and future creditors
of the Organization, whose claims are senior hereto, have been fully
satisfied, or adequate provision has been made therefor.
4. PERMISSIVE PREPAYMENT - With the prior written permission of
the Exchange, the Organization may, at its option, pay all or any
portion of the principal amount hereof to the Lender prior to the
Scheduled Maturity Date (such payment being hereinafter referred to as
"Prepayment") at any time subsequent to one year from the effective
date of this agreement. No Prepayment shall be made, however, if after
giving effect thereto (and to all other payments of principal of
outstanding subordination agreements of the Organization, including the
return of any Secured Demand Note and the Collateral therefor held by
the Organization, the maturity or accelerated maturity of which are
scheduled to occur within six months after the date such Prepayment is
to occur pursuant to the provisions of this paragraph, or on or prior
to the Scheduled Maturity Date for payment of the principal amount
hereof disregarding this paragraph, whichever date is earlier) without
reference to any projected profit or loss of the Organization,
(i) in the event that the Organization is not operating
pursuant to the alternative net capital requirement provided
for in paragraph(a)(1)(ii) of the Rule, the aggregate
indebtedness of the Organization would exceed 1000 percentum
of its net capital as those terms are defined in the Rule or
any successor rule as in effect at the time
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such Prepayment is to be made (or such other percentum as may
be made applicable at such time to the Organization by the
Exchange or the SEC, or
(ii) in the event that the Organization is operating
pursuant to such alternative net capital requirement, the net
capital of the Organization would be less than 5 percentum
(or such other percentum as may be made applicable to the
Organization at the time of such Prepayment by the Exchange
or the SEC) of aggregate debit items computed in accordance
with Exhibit A to Rule 15c33 under the Act or any successor
rule as in effect at such time, or
(iii) in the event that the Organization is registered as
a futures commission merchant under the CEA, the net capital
of the Organization (as defined in the CEA or the regulations
thereunder as in effect at the time of such Prepayment) would
be less than 7 percentum (or such other percentum as may be
made applicable to the Organization at the time of such
Prepayment by the CFTC) of the funds required to be
segregated pursuant to the CEA and the regulations thereunder
and the foreign futures or foreign options secured amount
less the market value of commodity options purchased by
customers on or subject to the rules of a contract market or
a foreign board of trade, provided, however, the deduction
for each customer shall be limited to the amount of customer
funds in such customer's account and foreign futures and
foreign options secured amounts, or
(iv) the Organization's net capital, as defined in the
Rule or any successor rule as in effect at the time of such
Prepayment, would be less than 120 percentum (or such other
percentum as may be made applicable to the Organization at
the time of such Prepayment by the Exchange or the SEC) of
the minimum dollar amount required by the Rule as in effect
at such time (or such other dollar amount as may be made
applicable to the Organization at the time of such Prepayment
by the Exchange or the SEC), or
(v) in the event that the Organization is registered as
a futures commission merchant under the CEA, its net capital,
as defined in the CEA or the regulations thereunder as in
effect at the time of such Prepayment would be less than 120
percentum (or such other percentum as may be made applicable
to the Organization at the time of such Prepayment by the
CFTC) of the minimum dollar amount required by the CEA or the
regulations thereunder as in effect at such time or such
other dollar amount as may be made applicable to the
Organization at the time of such Prepayment by the CFTC, or
(vi) in the event that the Organization is subject to
the provisions of paragraph (a)(6)(v) or (a)(7)(iv) or
(c)(2)(x)(B)(1) of the Rule, the net capital of the
Organization would be less than the amount required to
satisfy the 1000% test (or such other percentum test as may
be made applicable to the Organization at the time of such
Prepayment by the Exchange or the SEC) stated in such
applicable paragraph.
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If Prepayment is made of all or any part of the principal hereof prior
to the Scheduled Maturity Date and if the Organization's net capital is
less than the amount required to permit such Prepayment pursuant to the
foregoing provisions of this paragraph, the Lender agrees irrevocably
(whether or not such Lender had any knowledge or notice of such fact at
the time of such Prepayment) to repay the Organization, its successors
or assigns, the sum so paid to be held by the Organization pursuant to
the provisions hereof as if such Prepayment had never been made;
provided, however, that any suit for the recovery of any such
Prepayment must be commenced within two years of the date of such
Prepayment.
5. ACCELERATION IN EVENT OF INSOLVENCY - The Organization's
obligation to pay the unpaid principal amount hereof shall forthwith
mature, together with interest accrued thereon, in the event of any
receivership, insolvency, liquidation pursuant to SIPA or otherwise,
bankruptcy, assignment for the benefit of creditors, reorganization
whether or not pursuant to bankruptcy laws, or any other marshaling of
the assets and liabilities of the Organization; but payment of the same
shall remain subordinate as hereinabove set forth.
6. EFFECT OF DEFAULT - Default in any payment hereunder,
including the payment of interest, shall not accelerate the maturity
hereof except as herein specifically provided, and the obligation to
make payment shall remain subordinated as hereinabove set forth.
7. NON-LIABILITY OF EXCHANGE - The Lender irrevocably agrees
that the loan evidenced hereby is not being made in reliance upon the
standing of the Organization as a member organization of the Exchange
or upon the Exchange's surveillance of the Organization's financial
position or its compliance with the Constitution, Rules and practices
of the Exchange. The Lender has made such investigation of the
Organization and its partners, officers, directors and stockholders as
the Lender deems necessary and appropriate under the circumstances.
The Lender is not relying upon the Exchange to provide any information
concerning or relating to the Organization and agrees that the Exchange
has no responsibility to disclose to the Lender any information
concerning or relating to the Organization which it may now, or any
future time, have. The Lender agrees that neither the Exchange, its
Special Trust Fund, nor any director, officer, trustee or employee of
the Exchange or said Trust Fund shall be liable to the Lender with
respect to this agreement or the repayment of the loan evidenced hereby
or any interest hereon.
8. STATUS OF PROCEEDS - The proceeds of the loan evidenced
hereby shall be dealt with in all respects as capital of the
Organization, shall be subject to the risks of its business, and may be
deposited in an account or accounts in the Organization's name in any
bank or trust company.
9. FUTURES COMMISSION MERCHANTS - If the Organization is a
futures commission merchant, as that term is defined in the CEA, the
Organization agrees, consistent with the requirements of Section
1.17(h) of the regulations of the CFTC (17 CFR 1.17(h)), that:
(a) whenever prior written notice by the Organization to the
Exchange is required pursuant to the provisions of this agreement, the
same prior written notice shall be given by the Organization to (i) the
CFTC at its principal office in Washington, D.C., Attention Chief
Accountant of Division of Trading and Markets, and/or (ii) the
commodity exchange of which the
5
Organization is a member and which is then designated by the CFTC as
the Organization's designated selfregulatory organization (the "DSRO"),
and
(b) whenever prior written consent, permission or approval of the
Exchange is required pursuant to the provisions of this agreement, the
Organization shall also obtain the prior written consent, permission or
approval of the CFTC and/or of the DSRO, and
(c) whenever the Organization receives written notice of
acceleration of maturity pursuant to the provisions of this agreement,
the Organization shall promptly give written notice thereof to the CFTC
at the address above stated and/or to the DSRO.
10. DEFINITION OF ORGANIZATION - The term "Organization" as used
in this agreement shall include the Organization, its heirs, executors,
administrators, successors and assigns.
11. EFFECT OF EXCHANGE MEMBERSHIP TERMINATION - Upon termination
of the Organization as a member organization of the Exchange, the
references herein to the Exchange shall be deemed to refer to the
Examining Authority. The term "Examining Authority" shall refer to the
regulatory body having responsibility for inspecting or examining the
Organization for compliance with financial responsibility requirements
under Section 9(c) of SIPA and Section 17(d) of the Act.
12. UPON WHOM BINDING - The provisions of this agreement shall be
binding upon the Lender, his or its heirs, executors, administrators,
successors and assigns and upon the Organization.
13. ARBITRATION - Any controversy arising out of or relating to
this agreement shall be submitted to and settled by arbitration
pursuant to the Constitution and Rules of the Exchange. The
Organization and the Lender shall be conclusively bound by such
arbitration.
14. EFFECTIVE DATE - This agreement shall be effective from the
date on which it is approved by the Exchange and shall not be modified
or amended without the prior written approval of the Exchange.
15. ENTIRE AGREEMENT - This instrument embodies the entire
agreement between the Organization and the Lender and no other evidence
of such agreement has been or will be executed without the prior
written consent of the Exchange.
16. GOVERNING LAW - This agreement shall be deemed to have been
made under, and shall be governed by, the laws of the State of New York
in all respects.
17. CANCELLATION - This agreement shall not be subject to
cancellation by either party.
18. SECURITY INTERESTS - The Lender agrees that it is not taking
and will not take or assert as security for the payment of the note any
security interest in or lien upon, whether
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created by contract, statute or otherwise, any property of the
organization or any property in which the organization may have an
interest, which is or at any time may be in the possession or subject
to the control of the Lender. The Lender hereby waives, and further
agrees that it will not seek to obtain payment of the note in whole or
in any part by exercising any right of set-off it may assert or possess
whether created by contract, statute or otherwise. Any agreement
between the organization and the Lender (whether in the nature of a
general loan and collateral agreement, a security or pledge agreement
or otherwise) shall be deemed amended hereby to the extent necessary so
as not to be inconsistent with the provisions of this paragraph.
19. PURCHASE FOR INVESTMENT - The Lender represents that it
is acquiring the obligations of the Organization represented by this
Agreement for its own account and not with a view to the distribution
thereof. Lender understands that those obligations have not been
registered under the Securities Act or any state securities or "Blue
Sky" laws and may be resold only if registered pursuant to the
provisions of the Securities Act and any applicable state securities or
"Blue Sky" laws or if an exemption from registration is available.
IN WITNESS WHEREOF the parties hereto have set their
hands and seals as of this 31st day of January, 1997.
ADVEST, INC.
By:____________________________ (L.S.)
Xxxxxx X. Xxxxxxxxxx
Senior Vice President and
Chief Financial Officer
THE ADVEST GROUP, INC.
By:_____________________________ (L.S.)
Xxxxxx X. Xxxxxxxxxx
Senior Vice President and
Chief Financial Officer
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NOT NEEDED (added to paragraphs of agreement)
AMENDMENT TO CASH SUBORDINATION AGREEMENT
DATED _____________________
The following quoted language shall be inserted into Paragraph
2(iii) on page 2 and Paragraph 4 (iii) on page 5 of the subordination
agreement to which this amendment is attached immediately following, in
both instances, the word "thereunder":
"and the foreign futures or foreign options secured amount less
the market value of commodity options purchased by customers on or
subject to the rules of a contract market or a foreign board of
trade, provided, however, the deduction for each customer shall be
limited to the amount of customer funds in such customer's account
and foreign futures and foreign options secured amounts."
Date___________________ ____________________________
Name of Organization
By:____________________________ (L.S.)
By:____________________________
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Form of Opinion Under Rule 313(d) For Offering Not Registered
Under the Securities Act of 1933
January 29, 1997
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
I am Assistant General Counsel of Advest, Inc., a Delaware
corporation, and have acted as counsel for Advest, Inc. in connection
with the offering and sale by Advest, Inc. of its evidence of
indebtedness in the form of a Cash Subordination Agreement (the
"Securities") in the amount of $10,000,000 to The Advest Group, Inc.,
its parent corporation, for the purpose of raising capital under Rules
325 and 326 of the Board of Directors of the New York Stock Exchange,
Inc. For the purpose of complying with your Rule 313(d), this opinion
is being furnished to you with respect to the applicability of the
registration requirements of the Securities Act of 1933, as amended
(the "Act"), to such offers and sales.
As such counsel, I am familiar with the action taken by Advest,
Inc. in connection with the above mentioned offer and sale. I have
examined such corporate records and other documents as I have deemed
necessary for the opinions hereinafter expressed and have considered
other transactions pursuant to which Advest, Inc. has raised capital in
the past, or expects to do so in the future, the relationship between
Advest, Inc. and The Advest Group, Inc., the disclosure of information
by Advest, Inc. to The Advest Group, Inc. and the representations by
The Advest Group, Inc. as to its intention to hold the securities for
investment and not with a view to the distribution thereof.
Based upon the foregoing, and having regard to legal
considerations which I deem relevant, I am of the opinion that the
above mentioned offer and sale of the Securities by Advest, Inc. did
not involve any public offering of securities within the meaning of
Section 4(2) of the Act, and accordingly the registration provisions of
the Act are inapplicable to such transactions.
In respect of those jurisdictions the "blue sky" laws of which I
consider applicable to the above transactions, I have examined such
laws and are of the view that no action need be taken by Advest, Inc.
in respect of such transactions under such laws. This statement is
based upon an examination of such laws and of the published rules and
regulations (if any) of the authorities administering such laws, as
reported in standard compilations and communications with such
authorities in certain instances, and is subject to the broad
discretionary powers of the authorities administering such laws,
authorizing them, among other things, to withdraw exemptions accorded
by statute, to impose additional requirements, to refuse registrations
and to issue stop orders.
Sincerely yours,
Xxxxx X. Xxxxxxxx
Assistant General Counsel
9
NOT NEEDED -- added to paragraph 18
SUBJECT: Subordinated Loan from Member Organization to Member
Organization - "Set-Off" Provision
Any loan agreement with a member organization must
incorporate in the body of the note language patterned after the
following paragraph, and must be submitted for Exchange approval:
"The lender agrees that it is not taking and will not take or
assert as security for the payment of the note any security interest in
or lien upon, whether created by contract, statute or otherwise, any
property of the organization or any property in which the organization
may have an interest, which is or at any time may be in the possession
or subject to the control of the lender. The lender hereby waives, and
further agrees that it will not seek to obtain payment of the note in
whole or in any part by exercising any right of set-off it may assert
or possess whether created by contract, statute or otherwise. Any
agreement between the organization and the lender (whether in the
nature of a general loan and collateral agreement, a security or pledge
agreement or otherwise) shall be deemed amended hereby to the extent
necessary so as not to be inconsistent with the provisions of this
paragraph."
10
