Exhibit 10.255
$800,000,000
CREDIT AGREEMENT
(364-DAY COMMITMENT)
dated as of June 20, 2003
Among
THE XXXXXXX XXXXXX CORPORATION
and
CITICORP USA, INC.,
as Administrative Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
and
BANK OF AMERICA, N.A.
BANK ONE, NA
PNC BANK, NATIONAL ASSOCIATION
and
WESTLB AG, NEW YORK BRANCH
as Co-Documentation Agents
and
CITICORP NORTH AMERICA, INC.,
as Sole Lead Arranger and Sole Book Manager
Table of Contents
1. DEFINITIONS...............................................................1
2. THE CREDIT FACILITY......................................................11
2.1 The Revolving Credit Facility...................................11
2.2 Term Loan Facility..............................................12
2.3 Evidence of Borrowing/Promissory Notes..........................12
2.4 Making of Revolving Loans and Term Loans, Borrowings;
Interest Periods; Notice........................................13
2.5 Conversion and Continuation Elections...........................14
2.6 Interest Periods................................................16
2.7 Interest Rates..................................................16
2.8 Substitute Rates................................................17
2.9 Fees............................................................17
2.10 Reduction of Credit.............................................18
2.11 Termination Date; Extensions....................................19
2.12 Payments by the Lenders to the Agent............................19
2.13 Sharing of Payments, Etc........................................20
2.14 Computation of Fees and Interest................................20
3. PAYMENT..................................................................21
3.1 Repayment.......................................................21
3.2 Method of Payment...............................................21
3.3 Optional Prepayment.............................................21
3.4 Taxes/Net Payments..............................................21
3.5 Illegality......................................................22
3.6 Increased Costs and Reduction of Return.........................23
3.7 Funding Losses..................................................23
3.8 Certificates of Lenders.........................................24
3.9 Substitution of Lenders.........................................24
3.10 Survival........................................................24
4. CONDITIONS...............................................................24
4.1 Conditions Precedent to the Effectiveness of this Agreement.....24
4.2 Conditions Precedent to Revolving Loans and Term Loans..........26
5. REPRESENTATIONS AND WARRANTIES...........................................26
5.1 Organization and Good Standing..................................26
5.2 Corporate Power and Authority...................................27
5.3 Enforceability..................................................27
5.4 No Violation of Laws or Agreements..............................27
5.5 No Consents.....................................................27
5.6 Financial Statements............................................27
5.7 Broker Subsidiary Licenses, Etc.................................27
5.8 Broker Subsidiary/Broker Registration...........................27
5.9 Broker Subsidiary/SIPC..........................................27
5.10 Taxes...........................................................28
5.11 ERISA...........................................................28
5.12 No Extension of Credit for Default Remedy/Hostile Acquisition...28
5.13 Use of Proceeds/Margin Regulations..............................28
5.14 Authorized Persons..............................................28
5.15 Material Contracts..............................................28
5.16 Litigation......................................................29
5.17 Investment Company..............................................29
6. AFFIRMATIVE COVENANTS....................................................29
6.1 Notice of Events of Default.....................................29
6.2 Financial Statements............................................29
6.3 Insurance.......................................................29
6.4 Books and Records...............................................29
6.5 Change in Business..............................................29
7. NEGATIVE COVENANTS.......................................................30
7.1 Net Capital.....................................................30
7.2 Minimum Tangible Net Worth......................................30
7.3 Merger/Disposition of Assets....................................30
7.4 Broker Subsidiary Indebtedness..................................30
7.5 Indebtedness Secured by Subsidiary Stock........................31
7.6 Liens and Encumbrances..........................................31
8. EVENTS OF DEFAULT........................................................31
8.1 Defaults........................................................31
8.2 Remedies........................................................33
9. THE AGENT................................................................33
9.1 Appointment and Authorization...................................33
9.2 Delegation of Duties............................................34
9.3 Liability of Agent..............................................34
9.4 Reliance by Agent...............................................34
9.5 Notice of Default...............................................35
9.6 Credit Decision.................................................35
9.7 Indemnification of Agent........................................35
9.8 Agent in Individual Capacity....................................36
9.9 Successor Agent.................................................36
9.10 Withholding Tax.................................................36
9.11 Co-Agents.......................................................38
10. MISCELLANEOUS............................................................38
10.1 Amendments and Waivers..........................................38
10.2 Notices.........................................................39
10.3 No Waiver-Cumulative Remedies...................................41
10.4 Costs and Expenses..............................................41
10.5 Borrower Indemnification........................................41
10.6 Payments Set Aside..............................................42
10.7 Successors and Assigns..........................................43
10.8 Assignments, Participations Etc.................................43
10.9 Confidentiality.................................................45
10.10 Notification of Addresses, Lending Offices, Etc.................46
10.11 Counterparts....................................................46
10.12 Severability....................................................46
10.13 No Third Parties Benefited......................................46
10.14 Governing Law and Jurisdiction..................................46
10.15 Waiver of Jury Trial............................................47
10.16 Entire Agreement................................................47
10.17 Headings........................................................47
Net Capital Ratio for Broker Subsidiary.......................................10
Net Capital Ratio for SCM.....................................................10
SCHEDULES:
Schedule 1 - Lenders' Commitments
Schedule 2 - List of Borrowing Agreements
Schedule 6.2 - Compliance Certificate
Schedule 10.2 - Notices
EXHIBITS:
Exhibit A-1 - Revolving Note
Exhibit A-2 - Term Note
Exhibit B - Borrowing Advice
Exhibit C - Notice of Conversion/Continuation
Exhibit D - Commitment and Termination Date Extension Request
Exhibit E - Borrower's Opinion of Counsel
Exhibit F - Form of Notice of Assignment and Acceptance
CREDIT AGREEMENT (364-DAY COMMITMENT)
-------------------------------------
THIS CREDIT AGREEMENT (364-DAY COMMITMENT) ("this Agreement") is entered
into as of June 20, 2003, among The Xxxxxxx Xxxxxx Corporation, a Delaware
corporation (the "Borrower"), the several financial institutions from time to
time party to this Agreement (collectively the "Lenders"; individually each a
"Lender"), and Citicorp USA, Inc., as administrative agent for the Lenders (the
"Agent").
WHEREAS, the Lenders are willing to make from time to time Revolving Loans
to the Borrower through June 18, 2004, and to make Term Loans to the Borrower on
or before June 18, 2004, and maturing no later than June 17, 2005, upon the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. The following terms have the following meanings:
Affiliate: As to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the other
Person, whether through the ownership of voting securities, membership
interests, by contract, or otherwise.
Agent: Citicorp USA in its capacity as administrative agent for the Lenders
hereunder and any successor agent appointed under Section 9.9.
Agent-Related Persons: Citicorp USA and any successor agent appointed under
Section 9.9, together with Citicorp USA's Affiliate, the Arranger, and the
officers, directors, employees, agents and attorney-in-fact of such Persons
and Affiliate.
Agreement: This Credit Agreement.
Agent's Payment Office: The address for payments set forth on the signature
page hereto in relation to the Agent, or such other address as the Agent
may from time to time specify.
Applicable Margin: (i) with respect to Federal Funds Rate Loans, 0.40%; and
(ii) with respect to Eurodollar Rate Loans, 0.40%.
Arranger: Citicorp North America, Inc.
Assignee: The meaning specified in Section 10.8.
Attorney Costs: Without duplication, (1) all fees and disbursements of any
law firm or other external counsel, and (2) the allocated cost of internal
legal services and all disbursements of internal counsel.
Bankruptcy Code: The Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
ss.101, et seq.).
Base Rate: For any day, the higher of: (a) 0.50% per annum above the
Federal Funds Rate; and (b) the rate of interest in effect for such day as
publicly announced from time to time by Citibank, N.A. as its "Base Rate".
The "Base Rate" is a rate set by Citibank, N.A. based upon various factors
including Citibank, N.A.'s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate.
Any change in such rate announced by Citibank, N.A. shall take effect at
the opening of business on the day specified in the public announcement of
such change.
Base Rate Loan: A Revolving Loan or Term Loan that bears interest based on
the Base Rate.
Borrowing: A borrowing hereunder consisting of Revolving Loans or Term
Loans of the same Type made to the Borrower on the same day by the Lenders
under Section 2 and, other than in the case of a Base Rate Loan or Federal
Funds Rate Loan, having the same Interest Period.
Borrowing Advice: A written request made by the Borrower with respect to
any Loan substantially in the form of Exhibit B specifying the information
required in Section 2.4 hereof and executed by the Borrower from time to
time.
Borrowing Agreements: The credit agreement(s) between the Borrower and the
lenders listed in Schedule 2.
Borrowing Date: Any date on which a Borrowing occurs under Section 2.4.
Broker Subsidiary: Xxxxxxx Xxxxxx & Co., Inc., a California corporation,
and its successors and assigns.
Business Day: A day other than a Saturday, Sunday or any other day on which
commercial banks are authorized or required to close in California or New
York and, if the applicable Business Day relates to a Eurodollar Rate Loan,
such a day on which dealings are carried on in the applicable offshore
dollar interbank market.
Capital Adequacy Regulation: Any guideline, directive or requirement of any
central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
Change in Control: The consummation of a reorganization, merger or
consolidation by the Borrower or the sale or other disposition of all or
substantially all of the assets of the Borrower (a "Business Combination"),
unless, following such Business Combination, (i) no person or entity
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Borrower or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 35% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation (except to the extent that such ownership
existed prior to the Business Combination); and (ii) at least a majority of
the members of the board of directors of the corporation resulting from
such Business Combination were members of the board of directors of the
Borrower as of the time of the action of the board of directors of the
Borrower providing for such Business Combination.
Citicorp USA: Citicorp USA, Inc., a Delaware corporation.
Closing Date: The date (not before June 20, 2003) on which all conditions
precedent set forth in Section 4 are satisfied or waived by all Lenders or,
in the case of subsection 4.1(g), waived by the person entitled to receive
such payment.
Code: The Internal Revenue Code of 1986, as amended, and Regulations
promulgated thereunder.
Commitment: The meaning specified in Section 2.1.
Commitment Fee: The meaning specified in subsection 2.9(b).
Consolidated Tangible Net Worth: With respect to any Person, as of any date
of determination, all amounts that would, in accordance with GAAP, be
included under shareholders' equity on a consolidated balance sheet of such
Person as at such date, plus any preferred stock, less all assets of such
Person and its Subsidiaries (determined on a consolidated basis) at such
date that would be classified as intangible assets in accordance with GAAP,
including, without limitation, trade or service marks, franchises, trade
names and goodwill. Controlled Subsidiary: Any corporation 80% of whose
voting stock (except for any qualifying shares) is owned directly or
indirectly by the Borrower.
Conversion/ Continuation Date: Any date on which under Section 2.5, the
Borrower (a) converts Loans of one Type to another Type, or (b) continues
as Loans of the same Type, but with a new Interest Period, Loans having
Interest Periods expiring on such date.
Credit: The aggregate amount of the Commitments of all Lenders to make
Revolving Loans under the Revolving Credit Facility and Term Loans under
the Term Loan Facility in an amount not to exceed Eight Hundred Million and
no/100 Dollars ($800,000,000.00).
Default: Any event or circumstance which, with the giving of notice, the
lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default.
Dollars, dollars, and $: Each mean lawful money of the United States.
Effective Amount: With respect to any Revolving Loans and Term Loans on any
date, the aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of Revolving Loans
and Term Loans occurring on such date.
Eligible Assignee: (i) A commercial bank organized under the laws of the
United States, or any state thereof, and having total equity capital of at
least $1,000,000,000 and a senior debt rating of a least "A" by Standard &
Poor's Ratings Service, a Division of The XxXxxx-Xxxx Companies, Inc. or at
least "A-2" by Xxxxx'x Investors Service, Inc. or, if not rated by either
of the foregoing organizations, an equivalent rating from a nationally
recognized statistical rating organization; or (ii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the OECD), or a
political subdivision of any such country, and having total equity capital
of at least $1,000,000,000 and a senior debt rating of at least "A" by
Standard & Poor's Ratings Service, a Division of The XxXxxx-Xxxx Companies,
Inc. or at least "A-2" by Xxxxx'x Investors Service, Inc., or, if not rated
by either of the foregoing organizations, an equivalent rating from a
nationally recognized statistical rating organization; provided that such
bank is acting through a branch or agency located in the United States.
Eurodollar Base Rate: For any Interest Period:
(a) the rate per annum equal to the rate determined by the Agent to be
the offered rate that appears on the page of the Telerate screen (or
any successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall
cease to be available, the rate per annum equal to the rate determined
by the Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum equal to the average
(rounded upward to the next 1/100th of 1%) of the rates of interest
per annum notified to the Agent by each Reference Lender as the rate
at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by such
Reference Lender in its capacity as a Lender and with a term
equivalent to such Interest Period would be offered by its Offshore
Lending Office to major banks in the offshore Dollar market at their
request at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period.
Eurodollar Rate: The rate obtained by dividing (i) Eurodollar Base Rate by
(ii) a percentage (expressed as a decimal) equal to 1.00 minus the
Eurodollar Rate Reserve Percentage.
Eurodollar Rate Loan: A Revolving Loan or Term Loan that bears interest
based on the Eurodollar Rate.
Eurodollar Rate Reserve Percentage: For any Interest Period for any Loan
for which the Eurodollar Rate has been selected or is applicable, the
percentage (expressed as a decimal) as calculated by the Agent that is in
effect on the first day of such Interest Period, as prescribed by the Board
of Governors of the U.S. Federal Reserve System (or any successor), for
determining reserve requirements to be maintained by the Agent under
Regulation D (or any successor regulation thereof) as amended to the date
hereof (including such reserve requirements as become applicable to the
Agent pursuant to phase-in or other similar requirements of Regulation D at
any time subsequent to the date hereof) in respect of "Eurocurrency
liabilities" (as defined in Regulation D). The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in the
Eurodollar Rate Reserve Percentage.
Event of Default: Any of the events or circumstances specified in Section
8.1.
Exchange Act: The Securities and Exchange Act of 1934, as amended, and
regulations promulgated thereunder.
Federal Funds Rate: For any day, the interest rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York.
Federal Funds Effective Rate: For any day, an interest rate per annum equal
to the arithmetic mean as determined by the Agent of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, received by the Agent by
each of three Federal funds brokers of recognized standing in New York City
prior to 11:00 a.m. (San Francisco time) selected by Agent in its sole
discretion.
Federal Funds Rate Loan: A Revolving Loan or Term Loan that bears interest
based on the Federal Funds Effective Rate.
Fee Letter: The meaning specified in subsection 2.9(a).
FRB: The Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
GAAP: Generally accepted accounting principles set forth from time to time
in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances as of the
date of determination.
Governmental Authority: Any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
Hedge Agreements: Interest rate swap, interest rate cap or interest rate
collar agreements.
Indebtedness: As to any corporation, any obligation of, or guaranteed or
assumed by, such corporation for (i) borrowed money evidenced by bonds,
debentures, notes or other similar instruments, (ii) the deferred purchase
price of property or services (excluding trade and other accounts payable),
(iii) the leasing of tangible personal property under leases which, under
any applicable Financial Accounting Standards Board Statement, have been or
should be recorded as capitalized leases or (iv) direct or contingent
obligations under letters of credit issued for the account of such
corporation.
Indemnified Liabilities: The meaning specified in Section 10.5.
Indemnified Person: The meaning specified in Section 10.5.
Insolvency Proceeding: As to a debtor, (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshaling of assets for creditors, or
other similar arrangement in respect of its creditors generally or any
substantial portion of its creditors, undertaken under U.S. Federal, state
or foreign law, including the Bankruptcy Code.
Interest Payment Date: As to any Loan other than a Base Rate Loan or
Federal Funds Rate Loan, the last day of each Interest Period applicable to
such Loan and, as to any Base Rate Loan or Federal Funds Rate Loan, the
last Business Day of each calendar quarter, provided, however, that if any
Interest Period for a Eurodollar Rate Loan exceeds three months, the date
that falls three months after the beginning of such Interest Period and
after each Interest Payment Date thereafter is also an Interest Payment
Date.
Interest Period: Any period specified in accordance with Section 2.6
hereof.
Intermediate Parent: Schwab Holdings, Inc., a Delaware corporation and its
successors and assigns.
Lender: The meaning specified in the introductory clause hereto.
Lending Office: As to any Lender, the office or offices of such Lender
specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on Schedule 10.2, or such other office
or offices as such Lender may from time to time notify the Borrower and the
Agent.
Loan: An extension of credit by a Lender to the Borrower under Section 2 in
the form of a Revolving Loan or Term Loan.
Loan Document: This Agreement, any Notes, the Fee Letter, and all other
documents delivered to the Agent or any Lender in connection herewith.
Minimum Tangible Net Worth: As of the Closing Date, and the last day of
each fiscal quarter thereafter, the greater of:
(a) $2,000,000,000, or
(b) the sum of -
(i) $2,000,000,000, plus
(ii) 50% of the sum of cumulative Net Earnings for each fiscal
quarter commencing with the fiscal quarter ended June 30, 2003.
Net Capital Ratio: As of the date of determination, that percentage of net
capital to aggregate debit items of any entity subject to the Net Capital
Rule 15c3-1 promulgated by the Securities Exchange Commission pursuant to
the Securities Exchange Act of 1934 and any successor or replacement rule
or regulation therefor.
Net Earnings: With respect to any fiscal period, the consolidated net
income of the Borrower and its Subsidiaries, after taking into account all
extraordinary items, taxes and other proper charges and reserves for the
applicable period, determined in accordance with U.S. generally accepted
accounting principles, consistently applied.
Note: A promissory note executed by the Borrower in favor of a Lender
pursuant to Section 2.3 in substantially the form of Exhibits A-1 and A-2.
Notice of Conversion/ Continuation: A notice in substantially the form of
Exhibit C.
Obligations: All borrowings, debts, liabilities, obligations, covenants and
duties arising under any Loan Document owing by the Borrower to any Lender,
the Agent, or any Indemnified Person, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become
due, now existing or hereafter arising.
Person: An individual, partnership, corporation, limited liability company,
business trust, unincorporated association, trust, joint venture or
Governmental Authority.
Pro Rata Share: As to any Lender at any time, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at such time
of such Lender's Commitment divided by the combined Commitments of all
Lenders.
Reference Lenders: Citicorp USA, Bank of America, N.A. and Bank One, NA.
Replacement Lender: The meaning specified in Section 3.9.
Required Lenders: At any time at least two Lenders then holding in excess
of 50% of the then aggregate unpaid principal amount of the Loans, or, if
no such principal amount is then outstanding, at least two Lenders then
having in excess of 50% of the Commitments.
Requirement of Law: As to any Person, any law (statutory or common),
treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
Responsible Officer: Any senior vice president or more senior officer of
the Borrower, or any other officer having substantially the same authority
and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer, executive vice president-finance,
controller or the treasurer of the Borrower, or any other officer having
substantially the same authority and responsibility.
Revolving Credit Facility: The revolving credit facility available to the
Borrower pursuant to Section 2.1 hereof.
Revolving Loan: The meaning specified in Section 2.1, and may be a Base
Rate Loan, Federal Funds Rate Loan or a Eurodollar Rate Loan (each a "Type"
of Revolving Loan).
Revolving Note: The meaning specified in Section 2.3.
Revolving Termination Date: The earlier to occur of:
(a) June 18, 2004; and
(b) the date on which the Commitments terminate in accordance with the
provisions of this Agreement.
SCM: Schwab Capital Markets L.P., a New Jersey limited partnership, and its
successors and assigns.
SEC: The Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
Senior Medium- Term Notes, Series A: Senior debt securities or senior
subordinated debt securities issued by The Xxxxxxx Xxxxxx Corporation with
a maturity between 9 months and 30 years in accordance with the Senior
Indenture, as amended, and the Senior Subordinated Indenture, as amended,
both dated as of July 15, 1993 by and between The Xxxxxxx Xxxxxx
Corporation and The Chase Manhattan Bank, as trustee.
Subsidiary: Any corporation or other entity of which a sufficient number of
voting securities or other interests having power to elect a majority of
the board of directors or other persons performing similar functions are at
the time directly or indirectly owned by the Borrower.
Term Commitment: Eight Hundred Million and no/100 Dollars
($800,000,000.00).
Term Loan: The meaning specified in Section 2.2 and may be a Base Rate
Loan, Federal Funds Rate Loan or Eurodollar Rate Loan (each a "Type" of
Term Loan).
Term Loan Facility: The term loan facility available to the Borrower
pursuant to Section 2.2 hereof.
Term Loan Maturity Date: The meaning specified in Section 2.2.
Term Note: The meaning specified in Sectionm 2.3.
Type: The meaning specified in the definition of "Revolving Loan".
2. THE CREDIT FACILITY.
2.1 The Revolving Credit Facility Each Lender severally agrees, on the
terms and conditions set forth herein, to make loans to the Borrower (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding, together with the principal amount
of Term Loans outstanding in favor of such Lender at such time, the amount set
forth on Schedule 1 (such amount together with the Lender's Pro Rata Share of
the Term Commitment, as the same may be reduced under Section 2.10 or as a
result of one or more assignments under Section 10.8, the Lender's
"Commitment"); provided, however, that, after giving effect to any Borrowing of
Revolving Loans, the Effective Amount of all outstanding Revolving Loans shall
not at any time exceed the combined Commitments; and provided further that the
Effective Amount of the Revolving Loans, together with all Term Loans
outstanding at such time, of any Lender shall not at any time exceed such
Lender's Commitment. Within the limits of each Lender's Commitment, and subject
to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.1, prepay under Section 3.3 and reborrow under this Section 2.1.
2.2 Term Loan Facility. Each Lender severally agrees, on the terms and
conditions set forth herein, to make Loans to the Borrower during the period
from the Closing Date to June 18, 2004, in an aggregate amount not to exceed
such Lender's Pro Rata Share of the Term Commitment. The Borrower from time to
time may borrow under the Term Loan Facility (and may reborrow any amount
theretofore prepaid) until close of business on June 18, 2004, for a term not to
exceed 364 days from the date of the Borrowing. Each such loan under the Term
Loan Facility (a "Term Loan") shall be in the minimum amount of $10,000,000 and
shall become due and payable on the last day of the term selected by the
Borrower for such Term Loan (the "Term Loan Maturity Date"), which shall in no
event be later than 364 days from the date of such Term Loan. The maximum
availability under the Term Loan Facility shall be the amount of the Credit
minus the aggregate outstanding principal amount of Revolving Loans and Term
Loans made by the Lenders; provided, however, that to the extent the proceeds of
a Term Loan are used to repay an outstanding Revolving Loan (or a portion
thereof), such Revolving Loan (or portion thereof) shall not be considered part
of the aggregate principal amount of outstanding Revolving Loans made by the
Lenders for purposes of this sentence (such maximum availability hereafter being
referred to as the "Term Loan Availability"). Under no circumstances shall the
aggregate outstanding principal amount of Term Loans and Revolving Loans made by
the Lenders exceed the Credit, and under no circumstances shall any Lender be
obligated (i) to make any Term Loan (nor may the Borrower reborrow any amount
heretofore prepaid) after June 18, 2004, or (ii) to make any Term Loan in excess
of the Term Loan Availability. Each Term Loan made hereunder shall fully and
finally mature and be due and payable in full on the Term Loan Maturity Date
specified in the Borrowing Advice for such Term Loan; provided, however, that to
the extent the Borrowing Advice for any Term Loan selects an Interest Period
that expires before the Term Loan Maturity Date specified in such Borrowing
Advice, the Borrower may from time to time select additional interest rate
options and Interest Periods (none of which shall extend beyond the Term Loan
Maturity Date for such Term Loan) by delivering a Borrowing Advice or Notice of
Conversion/Continuation, as applicable.
2.3 Evidence of Borrowing/Promissory Notes. The obligation of the Borrower
to repay the aggregate unpaid principal amount of the Revolving Loans and Term
Loans shall be evidenced by promissory notes of the Borrower (respectively the
"Revolving Note and the Term Note") in substantially the form attached hereto as
Exhibits A-1 and A-2, with the blanks appropriately completed, payable to the
order of each Lender in the principal amount of its Commitment, bearing interest
as hereinafter specified. Each Revolving Note and Term Note shall be dated, and
shall be delivered to each Lender, on the date of the execution and delivery of
this Agreement by the Borrower. Each Lender shall, and is hereby authorized by
the Borrower to, endorse on the schedule contained on the Revolving Note and
Term Note, or on a continuation of such schedule attached thereto and made a
part thereof, appropriate notations regarding the Revolving Loans and Term Loans
evidenced by such Note as specifically provided therein and such Lender's record
shall be conclusive absent manifest error; provided, however, that the failure
to make, or error in making, any such notation shall not limit or otherwise
affect the obligations of the Borrower hereunder or under the Revolving Note and
Term Note. The Agent, by notice to the Borrower (to be given not later than two
Business Days prior to the initial Borrowing or Term Loan hereunder) may request
that Revolving Loans or Term Loans made hereunder for which the interest
calculation is to be based on the Eurodollar Rate be evidenced by separate
Revolving Notes (in the case of Revolving Loans) and Term Notes (in the case of
Term Loans), substantially in the form of Exhibit A-1 hereto (in the case of
Revolving Loans) and Exhibit A-2 hereto (in the case of Term Loans), payable to
the order of each Lender for the account of its office, branch or affiliate it
may designate as its Lending Office.
2.4 Making of Revolving Loans and Term Loans, Borrowings; Interest Periods;
Notice. (a) Each Borrowing of Revolving Loans or Term Loans shall be made upon
Borrower's irrevocable written notice delivered to the Agent in the form of a
Borrowing Advice (which notice must be received by the Agent prior to 10:00 a.m.
San Francisco time for a Eurodollar Rate Loan, and prior to 11:00 a.m. San
Francisco time for a Base Rate Loan or a Federal Funds Rate Loan) (i) the same
Business Day as the requested Borrowing Date in the case of Base Rate Loans and
Federal Funds Rate Loans to be made on such Business Day, or (ii) three Business
Days prior to the requested Borrowing Date in the case of Eurodollar Rate Loans,
with each Borrowing Advice setting forth the following information:
(A) the requested Borrowing Date, which shall be a Business
Day, on which such Revolving Loan or Term Loan is to be made;
(B) for a Eurodollar Rate Loan, the duration of the Interest
Period selected in accordance with Section 2.6 hereof (if the
Borrowing Advice fails to specify the duration of the Interest
Period for any Borrowing comprised of a Eurodollar Rate Loan,
such Interest Period shall be three months);
(C) the Type of Loans comprising the Borrowing and the
interest rate option selected in accordance with Section 2.7
hereof; and
(D) the aggregate principal amount of the Revolving Loan or
Term Loan (which shall be in an aggregate minimum amount of
$10,000,000) to which such Interest Period and interest rate
shall apply.
(b) The Agent will promptly notify each Lender of its receipt of any
Borrowing Advice and of the amount of such Lender's Pro Rata Share of that
Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the Borrower at the
Agent's Payment Office by 1:00 p.m. San Francisco time on the Borrowing
Date requested by the Borrower in funds immediately available to the Agent.
Each Loan to the Borrower under this Agreement shall be made by 1:30 p.m.
(San Francisco time) on the date of the Requested Borrowing Date, and shall
be in immediately available funds (in the aggregate amount made available
to the Agent by the Lenders) wired to the Borrower's account at Citibank,
N.A. (Account 4055-4016) or such other account as may be designated by the
Borrower in writing.
(d) After giving effect to any Borrowing, there may not be more than
ten (10) different Interest Periods in effect.
(e) Unless the Agent shall have received notice from a Lender prior to
the date of any Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date
of such Borrowing in accordance with subsection (c) of this Section and the
Agent may, in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrower until the
date such amount is repaid to the Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate.
If such Lender shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
With respect to any Borrowing having an Interest Period ending on or before June
18, 2004, if prior to the last day of the Interest Period for such Borrowing the
Borrower fails timely to provide a Notice of Conversion/Continuation in
accordance with Section 2.5, such Borrowing shall, on the last day of the
then-existing Interest Period for such Borrowing, automatically convert into a
Base Rate Loan. In the event of any such automatic conversion, the Borrower on
the date of such conversion shall be deemed to make a representation and
warranty to the Lenders that, to the best of the Borrower's knowledge,
(i) neither the Broker Subsidiary nor SCM is in violation of minimum net capital
requirements as described in Section 7.1, (ii) the Borrower's Consolidated
Tangible Net Worth is not below the Minimum Tangible Net Worth as described in
Section 7.2, and (iii) no amount owing with respect to any Commitment Fee, any
outstanding Borrowing, or any interest thereon, or any other amount hereunder,
is due and unpaid. If prior to the last day of the Interest Period applicable to
any Term Loan the Borrower fails timely to provide a Notice of
Conversion/Continuation in accordance with Section 2.5, such Term Loan shall, on
the last day of the then-existing Interest Period for such Term Loan,
automatically, have applicable to it a new Interest Period of thirty (30) days
(or, in the event there are fewer than thirty (30) days remaining to the Term
Loan Maturity Date for such Term Loan, an Interest Period of the number of days
remaining to such Term Loan Maturity Date) and shall bear interest at the Base
Rate.
2.5 Conversion and Continuation Elections.
(a) The Borrower may, upon irrevocable written notice to the Agent in
accordance with this Section 2.5:
(i) elect, as of any Business Day, in the case of Base Rate Loans
or Federal Funds Rate Loans, or as of the last day of the applicable
Interest Period, in the case of any other Type of Loan, to convert any
such Loan (or any part thereof in an amount not less than
$10,000,000), into Loans of any other Type; or
(ii) elect as of the last day of the applicable Interest Period,
to continue any Loans having Interest Periods expiring on such day (or
any part thereof in an amount not less than $10,000,000);
provided, that if at any time the aggregate amount of Eurodollar Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $10,000,000, such Eurodollar Rate Loans shall
automatically convert into Base Rate Loans.
(b) The Borrower shall deliver a Notice of Conversion/Continuation to
be received by the Agent not later than 10:00 a.m. San Francisco time for a
Eurodollar Rate Loan, and not later than 11:00 a.m. San Francisco time for
a Base Rate Loan or a Federal Funds Rate Loan, at least (i) three Business
Days in advance of the Conversion/Continuation Date, as to any Loan that is
to be converted into or continued as a Eurodollar Rate Loan; and (ii) the
same Business Day as the Conversion/Continuation Date, as to any Loan that
is to be converted into a Base Rate Loan or Federal Funds Rate Loan,
specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of the Loan or Loans to be converted or
renewed;
(C) the Type of Loan or Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate Loans or
Federal Funds Rate Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Rate Loans, the Borrower has failed to select timely a new
Interest Period to be applicable to such Eurodollar Rate Loans, or if any
Default or Event of Default then exists, the Borrower shall be deemed to
have elected to convert such Eurodollar Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Lender of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by
the Borrower, the Agent will promptly notify each Lender of the details of
any automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the
Loans with respect to which the notice was given as held by each Lender.
(e) Unless the Required Lenders otherwise agree, during the existence
of a Default or Event of Default, the Borrower may not elect to have a Loan
converted into or continued as a Eurodollar Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
there may not be more than ten (10) different Interest Periods in effect.
2.6 Interest Periods. The Borrower may select for any Eurodollar Rate Loan
the Interest Period (as defined in the next sentence) for each Borrowing, it
being understood that the Borrower may request multiple Borrowings on the same
day and may select a different Interest Period for each such Borrowing. An
Interest Period shall be each period, as selected by the Borrower in accordance
with the terms of this Agreement, in the case of each Borrowing, beginning on
the Borrowing Date of such Loan or on the Conversion/Continuation Date on which
the Loan is converted into or continued as a Eurodollar Rate Loan, and ending on
the date specified by the Borrower, subject to the numerically corresponding day
in the first, second, third or sixth month thereafter, in the case of any
Interest Period that is to be based on the Eurodollar Rate, provided that if the
last day of an Interest Period would be a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day, unless
such next succeeding Business Day is in a different calendar month, in which
case such interest period shall end on the next preceding Business Day;
provided, however, that (i) no Interest Period applicable to any Revolving Loan
shall extend beyond the Revolving Termination Date; and (ii) no Interest Period
applicable to any Term Loan shall extend beyond the Term Loan Maturity Date
specified in the Borrowing Advice for such Term Loan, which in no event shall be
later than June 17, 2005.
2.7 Interest Rates.
(a) (i) Each Revolving Loan, while outstanding, shall bear interest
from the applicable Borrowing Date at a rate per annum equal to the
Eurodollar Rate, the Federal Funds Effective Rate, or the Base Rate, as the
case may be, (and subject to the Borrower's right to convert to other Types
of Loans under Section 2.5) plus the Applicable Margin.
(ii) Each Term Loan, while outstanding, shall bear interest from
the applicable Borrowing Date at a rate per annum equal to the
Eurodollar Rate, the Federal Funds Effective Rate, or the Base Rate,
as the case may be, (and subject to the Borrower's right to convert to
other Types of Loans under Section 2.5) plus the sum of the Applicable
Margin and 0.25% per annum.
(b) Interest on each Revolving Loan and Term Loan shall be paid in
arrears on each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Loans under Section 3.3 for the portion of the
Loan so prepaid and upon payment (including prepayment) in full thereof,
and, during the existence of any Event of Default interest shall be paid on
demand of the Agent at the request or with the consent of the Required
Lenders.
(c) After the principal amount of any Revolving Loan or Term Loan,
accrued interest upon such Loan, the commitment fee, or any other amount
hereunder shall have become due and payable by acceleration, or otherwise,
it shall thereafter (until paid) bear interest, payable on demand, (i)
until the end of the Interest Period with respect to such Loan at a rate
per annum equal to 2% per annum in excess of the rate or rates in effect
with respect to such Loan, and (ii) thereafter, at a rate per annum equal
to 2% per annum in excess of the Base Rate.
2.8 Substitute Rates. If upon receipt by the Agent of a Borrowing Advice
relating to any Borrowing or of a Notice of Conversion/Continuation:
(a) the Agent shall determine that by reason of changes affecting the
London interbank market, adequate and reasonable means do not exist for
ascertaining the applicable Eurodollar Rate with respect to any Interest
Period; or
(b) the Agent shall determine that by reason of any change since the
date hereof in any applicable law or governmental regulation (other than
any such change in the regulations described in the definition of
Eurodollar Rate Reserve Percentage in Section 1 hereof), guideline or order
(or any interpretation thereof), the adoption or enactment of any new law
or governmental regulation or order or any other circumstance affecting the
Lenders or the London interbank market, the Eurodollar Rate shall no longer
represent the effective cost to the Lenders of U.S. dollar deposits in the
relevant amount and for the relevant period; or
(c) Agent shall determine that, as a result of any change since the
date hereof in any applicable law or governmental regulation or as a result
of the adoption of any new applicable law or governmental regulation, the
applicable Eurodollar Rate would be unlawful;
then, the Agent will promptly so notify the Borrower and each Lender, whereupon,
the obligation of the Lenders to make or maintain Eurodollar Rate Loans
hereunder shall be suspended until the Agent upon the instruction of the
Required Lenders revokes such notice in writing. Upon receipt of such notice,
the Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it and, at its election, submit a
Borrowing Advice or Notice of Conversion/Continuation selecting another Type of
Loan. If the Borrower does not revoke such Notice or give a Notice as provided
herein, the Lenders shall make, convert or continue the Loans, as proposed by
the Borrower in the amount specified in the applicable notice submitted by the
Borrower, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Eurodollar Rate Loans.
2.9 Fees.
(a) Arrangement, Agency Fees. The Borrower shall pay an arrangement
fee to the Arranger for the Arranger's account, and shall pay an agency fee
to the Agent for the Agent's account, as required by the letter agreement
("Fee Letter") between the Borrower, the Agent and the Arranger dated April
29, 2002.
(b) Commitment Fee. The Borrower shall pay to the Agent for the
account of each Lender a commitment fee (the "Commitment Fee") on the
actual daily unused portion of such Lender's Commitment computed on a
quarterly basis in arrears on the last Business Day of each quarter based
upon the daily utilization for that quarter as calculated by the Agent,
equal to nine-one hundredths of one percent (0.09%) per annum. For purposes
of calculating utilization under this subsection, the Commitments shall be
deemed used to the extent of the Effective Amount of Revolving Loans and
Term Loans then outstanding. Such Commitment Fee shall accrue from the
Closing Date to the Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each quarter commencing on
the quarter ending June 30, 2003 through the Revolving Termination Date,
with the final payment to be made on the Revolving Termination Date;
provided that, in connection with any reduction or termination of
Commitments under Section 2.10, the accrued commitment fee calculated for
the period ending on such date shall also be paid on the date of such
reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination
date to such quarterly payment date.
(c) Utilization Fee. The Borrower shall pay to the Agent for the
account of each Lender quarterly in arrears commencing on June 30, 2003 a
utilization fee equal to one tenth of one percent (0.10%) per annum on the
aggregate amount of outstanding Revolving Loans and Term Loans, provided
that the outstanding amount of such Loans exceeds fifty percent (50%) of
the aggregate amount of all the Commitments of the Lenders to the Borrower.
2.10 Reduction of Credit. The Borrower, from time to time, upon at least
three (3) Business Days' written notice to the Agent, may terminate the
commitments, or permanently reduce the Commitments by an aggregate minimum
amount of $10,000,000, without penalty or premium; unless after giving effect
thereto and to any prepayments of Loans made on the effective date thereof, the
Effective Amount of all Revolving Loans and Term Loans together would exceed the
amount of the combined Commitments then in effect. Once reduced in accordance
with this Section, the Commitments may not be increased. Any reduction of the
Commitments shall be applied to each Lender's Commitment according to its Pro
Rata Share. All accrued Commitment Fees to, but not including, the effective
date of any reduction or termination of Commitments, shall be paid on the
effective date of such reduction or termination. During the continuation of the
Credit, the computation of the Commitment Fee and the Lenders' obligations to
make Revolving Loans or Term Loans shall be based upon such reduced Commitments.
In the event the Credit shall be reduced to zero pursuant to this Section, the
Credit shall be deemed terminated, and any Commitment Fee or any other amount
payable hereunder then accrued shall become immediately payable. Such
termination of the Credit shall terminate the Borrower's obligations with
respect to the Commitment Fee to the extent not theretofore accrued and shall
terminate the Lenders' obligations to make any further Revolving Loans or Term
Loans under this Agreement.
2.11 Termination Date; Extensions. The termination date of each Lender's
Commitment with respect to the Credit (the "Termination Date"), including both
the Revolving Credit Facility under Section 2.1 hereof and the Term Loan
Facility under Section 2.2 hereof, is initially June 18, 2004. At any time no
earlier than forty-five (45) days and no later than thirty (30) days prior to
the Termination Date then in effect (whether the initial Termination Date of
June 18, 2004 or any later Termination Date as extended under this Section
2.11), the Borrower may, by written notice to the Agent in the form attached as
Exhibit D hereto, request that the Termination Date be extended for a period of
364 calendar days. Such request shall be irrevocable and binding upon the
Borrower. In no event will any Lender agree to approve any extension more than
thirty (30) days before the Termination Date then in effect. If each Lender
agrees to so extend its Commitment and the Termination Date (which agreement may
be given or withheld in such Lender's sole and absolute discretion), the Agent
shall evidence such agreement by executing and returning to the Borrower a copy
of the Borrower's written request no later than fifteen (15) days after the
Agent's receipt of the Borrower's written request. If the Agent fails to so
respond to and accept the Borrower's request for extension of the Termination
Date then in effect, the Lenders' Commitments shall be terminated on the
Termination Date then in effect. If, on the other hand, the Agent so responds to
and accepts the Borrower's request for extension of the Termination Date, then
upon receipt by the Borrower of a copy of the Borrower's written request
countersigned by the Agent, (i) the Lenders' Commitments then in effect and the
Termination Date then in effect shall automatically be extended for the 364-day
period specified in such written request, and (ii) each reference in this
Agreement to "June 18, 2004", and "June 17, 2005" (and any prior extension
thereof pursuant to this Section 2.11) also shall automatically be
correspondingly extended for 364 days.
2.12 Payments by the Lenders to the Agent.
(a) Unless the Agent receives notice from a Lender on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at
least one Business Day in the case of a Eurodollar Rate Loan, or, in the
case of a Base Rate Loan or Federal Funds Rate Loan, prior to noon (12:00)
San Francisco time on the date of such Borrowing, that such Lender will not
make available as and when required hereunder to the Agent for the account
of the Company the amount of that Lender's Pro Rata Share of the Borrowing,
the Agent may assume that each Lender has made such amount available to the
Agent in immediately available funds on the Borrowing Date and the Agent
may (but shall not be so required), in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to
the extent any Lender shall not have made its full amount available to the
Agent in immediately available funds and the Agent in such circumstances
has made its full amount available to the Borrower such Lender shall on the
Business Day following such Borrowing Date make such amount available to
the Agent, together with interest at the Federal Funds Rate for each day
during such period. A notice of the Agent submitted to any Lender with
respect to amounts owing under this subsection (a) shall be conclusive,
absent manifest error. If such amount is so made available, such payment to
the Agent shall constitute such Lender's Loan on the date of Borrowing for
all purposes of this Agreement. If such amount is not made available to the
Agent on the Business Day following the Borrowing Date, the Agent will
notify the Borrower of such failure to fund and, upon demand by the Agent,
the Borrower shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a
Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other
Lender on any Borrowing Date.
2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Pro Rata Share, such Lender shall
immediately (a) notify the Agent of such fact, and (b) purchase from the other
Lenders such participation in the Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment pro rata with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender
the purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.5) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participation purchased under this Section and will in each case notify the
Lenders following any such purchase or repayment.
2.14 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by Citibank N.A.'s "Base Rate" shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of interest, and all computation of fees
under subsection 2.9(b) and (c) shall be made on the basis of a 360-day
year and actual days elapsed. Interest and such fees shall accrue during
each period during which interest or such fees are computed from and
including the first day thereof to and excluding the last day thereof.
(b) If any Reference Lender's Commitment shall terminate (otherwise
than on termination of all the Commitments), or for any reason whatsoever
such Reference Lender shall cease to be a Lender hereunder, such Reference
Lender shall thereupon cease to be a Reference Lender, and the
determination of the Eurodollar Base Rate under subsection (c) of the
definition of such term shall be determined on the basis of the rates as
notified by the remaining Reference Lenders.
3. PAYMENT.
3.1 Repayment.
(a) The Term Credit. The Borrower shall repay to the Agent for the
account of the Lenders the aggregate principal amount of the Term Loans
outstanding on each Term Loan Maturity Date, as applicable.
(b) The Revolving Credit. The Borrower shall repay to the Agent, for
the account of the Lenders, on the Revolving Termination Date the aggregate
principal amount of Revolving Loans outstanding on such date.
3.2 Method of Payment. All payments hereunder and under the Revolving Note
and the Term Note shall be payable in lawful money of the United States of
America and in immediately available funds not later than 12:00 noon (San
Francisco time) on the date when due at the principal office of the Agent or at
such other place as the Agent may, from time to time, designate in writing to
the Borrower.
3.3 Optional Prepayment. Subject to Section 3.7, the Borrower shall be
entitled at any time or from time to time, upon not less than one (1) Business
Day irrevocable notice to the Agent, to ratably prepay Loans in whole or in part
in minimum amounts of $10,000,000 without premium or penalty. Each notice of
payment shall specify the date and aggregate principal amount of any such
prepayment and the Type(s) of Loans to be repaid. The Agent will promptly notify
each Lender of its receipt of any such Notice and of such Lender's Pro Rata
Share of such prepayment. If such Notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount, specified in such Notice
shall be due and payable on the date specified therein, together with all
accrued interest to each such date on the amount prepaid, and any amounts
required in accordance with Section 3.7 hereof as a result of such prepayment.
3.4 Taxes/Net Payments. All payments by Borrower hereunder and under the
Revolving Note and the Term Note to the Agent or any Lender shall be made
without set-off or counterclaim and in such amounts as may be necessary in order
that all such payments, after deduction or withholding for or on account of any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any Governmental Authority or taxing authority thereof
(collectively, "Taxes"), shall not be less than the amounts otherwise specified
to be paid under this Agreement. The Borrower shall pay all Taxes when due and
shall promptly send to the Lender original tax receipts or copies thereof
certified by the relevant taxing authority together with such other documentary
evidence with respect to such payments as may be required from time to time by
the Agent. If the Borrower fails to pay any Taxes to the appropriate taxing
authorities when due or fails to remit to the Agent or Lender any such original
tax receipts or certified copies thereof as aforesaid or other required
documentary evidence, the Borrower shall indemnify the Agent or Lender within
thirty (30) days of demand by the Lender or Agent for any taxes, interest or
penalties that may become payable by the Agent or Lender as a result of such
failure.
Notwithstanding the foregoing, (i) the Borrower shall not be liable for the
payment of any tax on or measured by the net income of any Lender pursuant to
the laws of the jurisdiction where an office of such Lender making any loan
hereunder is located or does business, and (ii) the foregoing obligation to
gross up the payments to any Lender so as not to deduct or offset any
withholding taxes or Taxes paid or payable by the Borrower with respect to any
payments to such Lender shall not apply (x) to any payment to any Lender which
is a "foreign corporation, partnership or trust" within the meaning of the Code
if such Lender is not, on the date hereof (or on the date it becomes a Lender
under this Agreement pursuant to the assignment terms of this Agreement), or on
any date hereafter that it is a Lender under this Agreement, entitled to submit
either a Form W-8BEN or any successor form thereto (relating to such Lender and
entitling it to a complete exemption from withholding on all interest to be
received by it hereunder in respect of the Loans) or Form W-8ECI or any
successor form thereto (relating to all interest to be received by such Lender
hereunder in respect of the Loans) of the U.S. Department of Treasury, or (y) to
any item referred to in the preceding sentence that would not have been imposed
but for the failure by such Lender to comply with any applicable certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connections of such Lender with the United
States if such compliance is required by statute or regulation of the United
States as a precondition to relief or exemption from such item.
3.5 Illegality.
(a) If any Lender determines that the introduction of any Requirement of
Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make Eurodollar Rate Loans,
then, on notice thereof by the Lender to the Borrower through the Agent, any
obligation of that Lender to make Eurodollar Rate Loans shall be suspended until
the Lender notifies the Agent and the Borrower that the circumstances giving
rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any Eurodollar
Rate Loan, the Borrower shall, upon its receipt of notice of such fact and
demand from such Lender (with a copy to the Agent), prepay in full such
Eurodollar Rate Loans of that Lender then outstanding, together with interest
accrued thereon and amounts required under Section 3.7, either on the last day
of the Interest Period thereof, if the Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if the Lender may not
lawfully continue to maintain such Eurodollar Rate Loan. If the Borrower is
required to so prepay any Eurodollar Rate Loan, then concurrently with such
prepayment, the Borrower shall borrow from the affected Lender, in the amount of
such repayment, a Base Rate Loan or Federal Funds Rate Loan.
(c) If the obligation of any Lender to make or maintain Eurodollar Rate
Loans has been so terminated or suspended, the Borrower may elect, by giving
notice to the Lender through the Agent that all Loans which would otherwise be
made by the Lender as Eurodollar Rate Loans shall be instead Base Rate Loans, or
Federal Funds Rate Loans.
(d) Before giving any notice to the Agent under this Section, the affected
Lender shall designate a different Lending Office with respect to its Eurodollar
Rate Loans if such designation will avoid the need for giving such notice or
making such demand and will not, in the judgment of the Lender, be illegal or
otherwise disadvantageous to the Lender.
3.6 Increased Costs and Reduction of Return.
(a) If any Lender determines that, due to either (i) the introduction of or
any change (other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Eurodollar Rate) in or in the
interpretation of any law or regulation, or (ii) the compliance by that Lender
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost to such Lender of agreeing to make or making, funding or maintaining
any Eurodollar Rate Loan, then the Borrower shall be liable for, and shall from
time to time, upon demand (with a copy of such demand to be sent to the Agent),
pay to the Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the Lender (or
its Lending Office) or any corporation controlling the Lender with any Capital
Adequacy Regulation, affects or would affect the amount of capital required or
expected to be maintained by the Lender or any corporation controlling the
Lender and determines that the amount of such capital is increased as a
consequence of its Commitment, Loans, credits or obligations under this
Agreement then, upon demand of such Lender to the Borrower through the Agent,
the Borrower shall pay to the Lender, from time to time as specified by the
Lender, additional amounts sufficient to compensate the Lender for the cost of
such increase.
3.7 Funding Losses. The Borrower shall reimburse each Lender and hold each
Lender harmless from any loss or expense which the Lender may sustain or incur
as a consequence of:
(a) the failure of the Borrower to make on a timely basis any payment of
principal of any Eurodollar Rate Loan;
(b) the failure of the Borrower to borrow, continue or convert a Loan after
the Borrower has given (or is deemed to have given) a Notice of Borrowing or a
Notice of Conversion/Continuation;
(c) the failure of the Borrower to make any prepayment in accordance with
any notice delivered under Section 3.3;
(d) the prepayment or other payment (including after acceleration thereof)
of any Eurodollar Rate Loan on a day that is not the last day of the relevant
Interest Period; or
(e) the automatic conversion under Section 2.5 of any Eurodollar Rate Loan
to a Base Rate Loan on a day that is not the last day of the relevant Interest
Period,
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Loans or from fees
payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section and under subsection 3.6(a), each Eurodollar Rate Loan made by a
Lender and each related reserve, special deposit or similar requirement shall be
conclusively deemed to have been funded at the LIBO-based rate used in
determining the Eurodollar Rate for such Eurodollar Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan is
in fact so funded,.
3.8 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Section 3 shall deliver to the Borrower (with a copy to
the Agent) a certificate setting forth in reasonable detail the amount payable
to the Lender hereunder and such certificate shall be conclusive and binding on
the Borrower in the absence of manifest error.
3.9 Substitution of Lenders. Upon the receipt by the Borrower from any
Lender (an "Affected Lender") of a claim for compensation under Section 3.6, the
Borrower may: (i) request the Affected Lender to use its best efforts to obtain
a replacement bank or financial institution satisfactory to the Borrower to
acquire and assume all or a ratable part of all of such Affected Lender's Loans
and Commitment (a "Replacement Lender"); (ii) request one or more of the other
Lenders to acquire and assume all or part of such Affected Lender's Loans and
Commitment (but no other Lender shall be required to do so); or (iii) designate
a Replacement Lender. Any such designation of a Replacement Lender under clause
(ii) or (iii) shall be subject to the prior written consent of the Agent (which
consent shall not be unreasonably withheld).
3.10 Survival. The agreements and obligations of the Borrower in this
Section 3 shall survive the payment of all other Obligations.
4. CONDITIONS.
4.1 Conditions Precedent to the Effectiveness of this Agreement. The
obligation of each Lender to make its initial extension of credit hereunder is
subject to the condition that the Agent has received on or before the Closing
Date all of the following in form and substance satisfactory to the Agent and
each Lender, in sufficient copies for each Lender;
(a) This Agreement and the Notes executed by each party thereto.
(b) A copy of a resolution or resolutions adopted by the Board of
Directors or Executive Committee of the Borrower, certified by the
Secretary or an Assistant Secretary of the Borrower as being in full force
and effect on the date hereof, authorizing the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, and a copy of the Certificate of Incorporation and the
By-Laws of the Borrower, similarly certified.
(c) A certificate, signed by the Secretary or an Assistant Secretary
of the Borrower and dated the date hereof, as to the incumbency of the
person or persons authorized to execute and deliver this Agreement.
(d) A certificate signed by the Chief Financial Officer, Treasurer or
Corporate Controller of the Borrower that, as of the date hereof, there has
been no material adverse change in its consolidated financial condition
since December 31, 2002 not reflected on its Quarterly Report on Form 10-Q
filed with the SEC for the period ending March 31, 2003.
(e) A certificate, signed by the Secretary or an Assistant Secretary
of the Borrower and dated the date hereof, as to the persons authorized to
execute and deliver a Borrowing Advice, a Notice of
Conversion/Continuation, and the Revolving Notes and the Term Notes. The
Agent and each Lender may rely on such certificate with respect to the
Revolving Loans and Term Loans hereunder unless and until it shall have
received an updated certificate and, after receipt of such updated
certificate, similarly may rely thereon.
(f) A written opinion, dated the date hereof, of counsel for the
Borrower, in the form of Exhibit E.
(g) Evidence of payment by the Borrower of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the Closing
Date, together with Attorney Costs of Citicorp USA to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney
Costs as shall constitute Citicorp USA's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling
of accounts between the Borrower and Citicorp USA); including any such
costs, fees and expenses arising under or referenced in Sections 2.9 and
10.4.
(h) Written evidence that all of the Borrowing Agreements have been or
concurrently herewith are being terminated.
(i) A certificate, signed by the Chief Financial Officer, Treasurer or
an Assistant Treasurer of the Borrower and dated as of the date hereof,
which confirms that after giving effect to this Agreement, the aggregate
principal amount of credit available under all of the Borrower's committed
unsecured revolving credit facilities combined will not exceed the amount
authorized under the resolutions of the Borrower referenced in subsection
4.1(b).
4.2 Conditions Precedent to Revolving Loans and Term Loans. The obligation
of each Lender to make any Revolving Loan or Term Loan to be made by it
(including its initial Revolving Loan), or to continue or convert any Loan under
Section 2.5 is subject to the satisfaction of the following conditions precedent
on the relevant Borrowing Date or Conversion/Continuation Date:
The Agent shall have received a Borrowing Advice or a Notice of
Conversion/Continuation, as applicable. Each Borrowing Advice or Notice of
Conversion/Continuation given by the Borrower shall be deemed to be a
representation and warranty by the Borrower to each Lender, effective on and as
of the date of such Notice and as of such Borrowing Date for a Revolving Loan or
Term Loan covered thereby, that (i) the representations and warranties set forth
in Section 5 hereof are true and correct as of such date, and (ii) no Default or
Event of Default has occurred and is continuing. No Lender shall be required to
make any Loan hereunder if:
(a) the Credit, the Revolving Credit Facility (in the case of a
Revolving Loan) or the Term Loan Facility (in the case of a Term Loan) has
been terminated; or
(b) any of the representations or warranties of the Borrower set forth
in Section 5 hereof shall prove to have been untrue in any material respect
when made, or when any Default or Event of Default as defined in Section 8,
has occurred; or
(c) the Broker Subsidiary or SCM is in violation of minimum net
capital requirements as described in Section 7.1; or
(d) the Borrower's Consolidated Tangible Net Worth is below the
Minimum Tangible Net Worth as described in Section 7.2; or
(e) any amount owing with respect to any Commitment Fee or any
outstanding Revolving Loan or Term Loan or any interest thereon or any
other amount payable hereunder is due and unpaid.
5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and each Lender, as of
the date of delivery of this Agreement and as of the date of any Revolving Loan
or Term Loan, as follows:
5.1 Organization and Good Standing. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware and has full power, authority and legal right and has all governmental
licenses, authorizations, qualifications and approvals required to own its
property and assets and to transact the business in which it is engaged; and all
of the outstanding shares of capital stock of Borrower have been duly authorized
and validly issued, are fully paid and non-assessable.
5.2 Corporate Power and Authority. The Borrower has full power, authority
and legal right to execute and deliver, and to perform its obligations under,
this Agreement, and to borrow hereunder, and has taken all necessary corporate
and legal action to authorize the borrowings hereunder on the terms and
conditions of this Agreement and to authorize the execution and delivery of this
Agreement, and the performance of the terms thereof.
5.3 Enforceability. This Agreement has been duly authorized and executed by
the Borrower, and when delivered to the Lenders will be a legal, valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, except, in each case, as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
5.4 No Violation of Laws or Agreements. The execution and delivery of this
Agreement by the Borrower and the performance of the terms hereof will not
violate any provision of any law or regulation or any judgment, order or
determination of any court or governmental authority or of the charter or
by-laws of, or any securities issued by, the Borrower or any provision of any
mortgage, indenture, loan or security agreement, or other instrument, to which
the Borrower is a party or which purports to be binding upon it or any of its
assets in any respect that reasonably could be expected to have a material
adverse effect on the Borrower and its Subsidiaries taken as a whole on a
consolidated basis; nor will the execution and the delivery of this Agreement by
the Borrower and the performance of the terms hereof result in the creation of
any lien or security interest on any assets of the Borrower pursuant to the
provisions of any of the foregoing.
5.5 No Consents. Except as disclosed in writing by Borrower, no consents of
others (including, without limitation, stockholders and creditors of the
Borrower) nor any consents or authorizations of, exemptions by, or
registrations, filings or declarations with, any Governmental Authority are
required to be obtained by the Borrower in connection with the execution and
delivery of this Agreement and the performance of the terms thereof.
5.6 Financial Statements. The consolidated financial statements of the
Borrower contained in the documents previously delivered to each Lender have
been prepared in accordance with U.S. generally accepted accounting principles
and present fairly the consolidated financial position of the Borrower.
5.7 Broker Subsidiary Licenses, Etc. The Broker Subsidiary possesses all
material licenses, permits and approvals necessary for the conduct of its
business as now conducted and as presently proposed to be conducted as are
required by law or the applicable rules of the SEC and the National Association
of Securities Dealers, Inc.
5.8 Broker Subsidiary/Broker Registration. The Broker Subsidiary is
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended.
5.9 Broker Subsidiary/SIPC. The Broker Subsidiary is not in arrears with
respect to any assessment made upon it by the Securities Investor Protection
Corporation, except for any assessment being contested by the Broker Subsidiary
in good faith by appropriate proceedings and with respect to which adequate
reserves or other provisions are being maintained to the extent required by U.S.
generally accepted accounting principles.
5.10 Taxes. The Borrower has paid and discharged or caused to be paid and
discharged all taxes, assessments, and governmental charges prior to the date on
which the same would have become delinquent, except to the extent that such
taxes, assessments or charges are being contested in good faith and by
appropriate proceedings by or on behalf of the Borrower and with respect to
which adequate reserves or other provisions are being maintained to the extent
required by U.S. generally accepted accounting principles.
5.11 ERISA. The Borrower is in compliance with the provisions of and
regulations under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the Internal Revenue Code of 1986, as amended, applicable
to any pension or other employee benefit plan established or maintained by the
Borrower or to which contributions are made by the Borrower (the "Plans"). The
Borrower has met all of the funding standards applicable to each of its Plans,
and there exists no event or condition that would permit the institution of
proceedings to terminate any of the Plans under Section 4042 of ERISA. The
estimated current value of the benefits vested under each of the Plans does not,
and upon termination of any of the Plans will not, exceed the estimated current
value of any such Plan's assets. The Borrower has not, with respect to any of
the Plans, engaged in a prohibited transaction set forth in Section 406 of ERISA
or Section 4975(c) of the Internal Revenue Code of 1986.
5.12 No Extension of Credit for Default Remedy/Hostile Acquisition. The
Borrower will not use any amounts borrowed by it under this Agreement to remedy
a default under any mortgage, indenture, agreement or instrument under which
there may be issued any Indebtedness of the Borrower to any bank or bank holding
company, or their respective assignees, for borrowed money. Further, the
Borrower will not use any amounts advanced to it under this Agreement for the
immediate purpose of acquiring a company where the Board of Directors or other
governing body of the entity being acquired has made (and not rescinded) a
public statement opposing such acquisition.
5.13 Use of Proceeds/Margin Regulations. The Borrower will use the proceeds
for general corporate purposes, including, without limitation, for the back-up
of the issuance of commercial paper notes. The Borrower will not use the
proceeds of any loan provided hereby in such a manner as to result in a
violation of Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
5.14 Authorized Persons. The persons named for such purpose in the
certificates delivered pursuant to subsection 4.1(e) hereof are authorized to
execute Borrowing Advices.
5.15 Material Contracts. Borrower is not in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, note or
lease to which the Borrower is a party or by which it may be bound.
5.16 Litigation. There is no action, suit or proceeding pending against, or
to the knowledge of the Borrower, threatened against or affecting, the Borrower
or any of its Subsidiaries before any court, arbitrator, governmental body,
agency or official in which there is a significant probability of an adverse
decision which could have a material adverse affect on the business or the
financial condition of the Borrower.
5.17 Investment Company. The Borrower is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
6. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that so long as any Lender shall have a
Commitment hereunder or any Loan or other obligation hereunder shall remain
outstanding, unpaid or unsatisfied and until full payment of all amounts due to
the Lenders hereunder, it will, unless and to the extent the Required Lenders
waive compliance in writing:
6.1 Notice of Events of Default. Give prompt notice to the Agent and each
Lender, no later than three Business Days after becoming aware thereof, of any
Default or Event of Default.
6.2 Financial Statements. Deliver to the Agent, in form and detail
satisfactory to the Agent and the Required Lenders with sufficient copies for
each Lender, within ten Business Days of the filing thereof with the SEC, a copy
of each registration statement filed under the Securities Act of 1933, a copy of
each filing (including exhibits) made by the Borrower with the SEC under the
Securities Exchange Act of 1934, as amended, accompanied by a compliance
certificate with an attached schedule of calculations (in the form attached
hereto as Schedule 6.2) demonstrating compliance with the Section 7.1 and 7.2
financial covenants; and, in the event the Borrower requests an extension of any
such filing from the SEC, promptly (but not later than the second Business Day
following the filing of such request) deliver a copy of such request to the
Agent.
6.3 Insurance. Maintain and keep in force in adequate amounts such
insurance as is usual in the business carried on by the Borrower and cause the
Broker Subsidiary to maintain and keep in force in adequate amounts such
insurance as is usual in the business carried on by the Broker Subsidiary.
6.4 Books and Records. Maintain adequate books, accounts and records and
prepare all financial statements required hereunder in accordance with U.S.
generally accepted accounting principles and practices and in compliance with
the regulations of any governmental regulatory body having jurisdiction thereof.
6.5 Change in Business. Advise the Agent and such Lender, in a timely
manner, of material changes to the nature of business of the Borrower or the
Broker Subsidiary as at present conducted. The Broker Subsidiary is at present
engaged in the business of providing financial services, primarily to individual
investors and/or their advisors.
7. NEGATIVE COVENANTS.
The Borrower covenants and agrees that so long as any Lender shall have any
Commitment hereunder, or any Loan or other obligation, shall remain outstanding,
unpaid or unsatisfied and until full payment of all amounts due to the Lenders
hereunder, unless and to the extent the Required Lenders waive compliance in
writing:
7.1 Net Capital. The Borrower will not permit the Broker Subsidiary to
allow (a) the average of two consecutive month-end Net Capital Ratios to be less
than 7%, or (b) any month-end Net Capital Ratio to be less than 5%. The Borrower
similarly will not permit SCM to allow (i) the average of two consecutive
month-end Net Capital Ratios to be less than 7%, or (ii) any month-end Net
Capital Ratio to be less than 5%.
7.2 Minimum Tangible Net Worth. The Borrower will not allow its
Consolidated Tangible Net Worth to fall below the Minimum Tangible Net Worth.
7.3 Merger/Disposition of Assets. The Borrower will not (i) permit either
Broker Subsidiary or Intermediate Parent to (a) merge or consolidate, unless the
surviving company is a Controlled Subsidiary, or (b) convey or transfer its
properties and assets substantially as an entirety except to one or more
Controlled Subsidiaries; or (ii) except as permitted by subsection 7.3(i) sell,
transfer or otherwise dispose of any voting stock of Broker Subsidiary or
Intermediate Parent, or permit either Broker Subsidiary or Intermediate Parent
to issue, sell or otherwise dispose of any of its voting stock, unless, after
giving effect to any such transaction, Broker Subsidiary or Intermediate Parent,
as the case may be, remains a Controlled Subsidiary.
7.4 Broker Subsidiary Indebtedness. The Borrower will not permit the Broker
Subsidiary to create, incur or assume any Indebtedness other than:
(a) (i) Indebtedness to customers, other brokers or dealers,
securities exchanges or securities markets, self-regulatory organizations,
clearing houses and like institutions (including, without limitation,
letters of credit or similar credit support devices issued for the account
of Broker Subsidiary and for the benefit of any of the foregoing in order
to comply with any margin, collateral or similar requirements imposed by or
for the benefit of any of the foregoing), (ii) "broker call" credit, (iii)
indebtedness consisting of borrowings secured solely by margin loans made
by Broker Subsidiary, together with any underlying collateral of Broker
Subsidiary, (iv) stock loans, (v) obligations to banks for disbursement
accounts, (vi) Indebtedness incurred for the purchase of tangible personal
property on a non-recourse basis or for the leasing of tangible personal
property under a capitalized lease, (vii) Indebtedness incurred for the
purchase, installation or servicing of computer equipment and software, and
(viii) Indebtedness incurred in the ordinary course of the Broker
Subsidiary's business, to the extent not already included in the foregoing
clauses (i) through (vii);
(b) intercompany Indebtedness; and
(c) other Indebtedness in the aggregate not exceeding $100,000,000.
7.5 Indebtedness Secured by Subsidiary Stock. The Borrower will not, and
will not permit any Subsidiary at any time directly or indirectly to create,
assume, incur or permit to exist any Indebtedness secured by a pledge, lien or
other encumbrance (hereinafter referred to as a "lien") on the voting stock of
any Subsidiary without making effective provision whereby the Revolving Notes
and the Term Notes shall be secured equally and ratably with such secured
Indebtedness so long as other Indebtedness shall be so secured; provided,
however, that the foregoing covenant shall not be applicable to Permitted Liens
(as defined in Section 7.6 below).
7.6 Liens and Encumbrances. The Borrower will not create, incur, assume or
suffer to exist any lien or encumbrance upon or with respect to any of its
properties, whether now owned or hereafter acquired, except the following (the
"Permitted Liens"):
(a) liens securing taxes, assessments or governmental charges or
levies, or in connection with workers' compensation, unemployment insurance
or social security obligations, or the claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like persons not yet
delinquent or which are being contested in good faith by appropriate
proceedings with respect to which adequate reserves or other provisions are
being maintained to the extent required by U.S. generally accepted
accounting principles;
(b) liens not for borrowed money incidental to the conduct of its
business or the ownership of property that do not materially detract from
the value of any item of property;
(c) attachment, judgment or other similar liens arising in the
connection with court proceedings that do not, in the aggregate, materially
detract from the value of its property, materially impair the use thereof
in the operation of its businesses and (i) that are discharged or stayed
within sixty (60) days of attachment or levy, or (ii) payment of which is
covered in full (subject to customary and reasonable deductibles) by
insurance or surety bonds; and
(d) liens existing at Closing Date provided that the obligations
secured thereby are not increased.
8. EVENTS OF DEFAULT.
8.1 Defaults. The occurrence of any of the following events shall
constitute an "Event of Default":
(a) The Borrower shall fail to pay any interest with respect to the
Revolving Notes or the Term Notes or any Commitment Fee in accordance with
the terms hereof within 10 days after such payment is due.
(b) The Borrower shall fail to pay any principal with respect to the
Revolving Notes or the Term Notes in accordance with the terms thereof on
the date when due.
(c) Any representation or warranty made by the Borrower herein or
hereunder or in any certificate or other document furnished by the Borrower
hereunder shall prove to have been incorrect when made (or deemed made) in
any respect that is materially adverse to the interests of the Lenders or
their rights and remedies hereunder.
(d) Except as specified in (a) and (b) above, the Borrower shall
default in the performance of, or breach, any covenant of the Borrower with
respect to this Agreement, and such default or breach shall continue for a
period of thirty days after there has been given, by registered or
certified mail, to the Borrower by the Agent a written notice specifying
such default or breach and requiring it to be remedied.
(e) An event of default as defined in any mortgage, indenture,
agreement or instrument under which there may be issued, or by which there
may be secured or evidenced, any Indebtedness of the Borrower in a
principal amount not less than $75,000,000, shall have occurred and shall
result in such Indebtedness becoming or being declared due and payable
prior to the date on which it otherwise would become due and payable, or an
event of default or a termination event as defined in any Hedge Agreement
shall have occurred and shall result in a net payment obligation of the
Borrower thereunder of not less than $75,000,000; provided, however, that
if such event of default shall be remedied or cured by the Borrower, or
waived by the holders of such Indebtedness, within twenty days after the
Borrower has received written notice of such event of default and
acceleration, then the Event of Default hereunder by reason thereof shall
be deemed likewise to have thereupon been remedied, cured or waived without
further action upon the part of either the Borrower or the Agent and
Lenders.
(f) Any involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief against the Borrower or the Broker Subsidiary, or against all or a
substantial part of the property of either of them, under Title 11 of the
United States Code or any other federal, state or foreign bankruptcy,
insolvency, reorganization or similar law, (ii) the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Borrower or the Broker Subsidiary or for all or a
substantial part of the property of either of them, or (iii) the winding-up
or liquidation of the Borrower or the Broker Subsidiary; and, in any such
case, such involuntary proceeding or involuntary petition shall continue
undismissed for 60 days, or, before such 60-day period has elapsed, there
shall be entered an order or decree ordering the relief requested in such
involuntary proceeding or involuntary petition.
(g) The Borrower or the Broker Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case under such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Borrower or
Broker Subsidiary or for any substantial part of its respective properties,
or shall make any general assignment for the benefit of creditors, or shall
fail generally to pay its respective debts as they become due or shall take
any corporate action in furtherance of any of the foregoing.
(h) A final judgment or judgments for the payment of money in excess
of $75,000,000 in the aggregate shall be entered against the Borrower by a
court or courts of competent jurisdiction, and the same shall not be
discharged (or provisions shall not be made for such discharge), or a stay
of execution thereof shall not be procured, within 30 days from the date of
entry thereof and the Borrower shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal.
(i) At any time after a Change in Control, the Borrower fails to
maintain at least one of the following credit ratings for its Senior
Medium-Term Notes, Series A: (a) BBB- (or better) by Standard & Poor's
Ratings Service, a Division of The XxXxxx-Xxxx Companies, Inc., or (b) Baa3
(or better) by Xxxxx'x Investors Service, Inc.
8.2 Remedies. If an Event of Default occurs and is continuing, then and in
every such case the Agent shall, at the request of, or may, with the consent of,
the Required Lenders (i) declare the Commitment of each Lender to make Loans to
be terminated whereupon such Commitments and obligation shall be terminated, and
declare the unpaid principal of all outstanding Loans, any and all accrued and
unpaid interest, any accrued and unpaid Commitment Fees, or any other amounts
owing or payable under the Notes, to be immediately due and payable, by a notice
in writing to the Borrower, and upon such declaration such principal, interest,
Commitment Fees, or other amounts payable hereunder and accrued thereon shall
become immediately due and payable, together with any funding losses that may
result as a consequence of such declaration, without presentment, demand,
protest or other notice of any kind, all of which are expressly waived by the
Borrower; provided, however, that in the case of any of the Events of Default
specified in subsection (f) or (g) of Section 8.1, automatically without any
notice to the Borrower or any other act by the Agent, the Credit and the
obligations of each Lender to make Loans shall automatically terminate and the
unpaid principal amount of all outstanding Loans, any accrued and unpaid
interest, any accrued and unpaid Commitment Fees or any other amounts payable
hereunder shall become immediately due and payable, together with any funding
losses that may result as a consequence thereof, without further act of the
Agent or any Lender and without presentment, demand, protest or other notice of
any kind, all of which are expressly waived by the Borrower.
9. THE AGENT.
9.1 Appointment and Authorization. Each Lender hereby irrevocably (subject
to Section 9.9) appoints, designates and authorizes the Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or responsibilities
except those expressly set forth, nor shall the Agent have or be deemed to have
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
9.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by the Borrower or any Subsidiary or
Affiliate of the Borrower, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Borrower or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower or any of the
Borrower's Subsidiaries or Affiliates.
9.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel
to the Borrower), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any
such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement or any other Loan Document
in accordance with a request or consent of the Required Lenders and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by Agent to such
Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory
to the Lender.
9.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Lenders, unless the Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Required Lenders in
accordance with Section 8; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.
9.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Borrower and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of any of
the Agent-Related Persons.
9.7 Indemnification of Agent. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to the Agent-Related Persons of
any portion of such Indemnified Liabilities resulting solely from any such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Agent upon demand for its ratable
share, of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein to the extent that the Agent
is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
9.8 Agent in Individual Capacity. Citicorp USA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Borrower and its
Subsidiaries and Affiliates as though Citicorp USA were not the Agent hereunder
and without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Citicorp USA or its Affiliates may receive
information regarding the Borrower or its Affiliates (including information that
may be subject to confidentiality obligations in favor of the Borrower or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Citicorp USA shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent.
9.9 Successor Agent. The Agent may, and at the request of the Required
Lenders shall, resign as Agent upon 30 days' notice to the Lenders and Borrower.
If the Agent resigns under this Agreement, the Required Lenders, with the
consent of the Borrower, which consent shall not be unreasonably withheld, shall
appoint from among the Lenders a successor agent for the Lenders which successor
agent shall be approved by the Borrower. If no successor agent is appointed
prior to the effective date of the resignation of the Agent, the Agent with the
consent of the Borrower, which consent shall not be unreasonably withheld, may
appoint, after consulting with the Lenders and the Borrower, a successor agent
from among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 9 and Sections 10.4 and 10.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as provided
for above. The retiring Agent shall refund to Borrower that portion of any
agency fee paid to such Agent as is not earned due to such Agent's resignation,
prorated to the date of such Agent's resignation.
9.10 Withholding Tax.
(a) If any Lender is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Section 1441 or 1442 of the Code,
such Lender agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed
IRS Form W-8BEN before the payment of any interest in the first
calendar year and before the payment of any interest in any subsequent
calendar year during which the Form W-8BEN (or any successor thereto)
then in effect expires;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed copies of IRS Form W-8ECI or any
successor form thereto before the payment of any interest is due in
the first taxable year of such Lender and before the payment of any
interest in any subsequent calendar year during which the Form W-8ECI
(or any successor thereto) then in effect expires; and
(iii) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from,
or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form W-8BEN and such
Lender sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Company to such Lender, such Lender
agrees to notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Lender.
To the extent of such percentage amount, the Agent will treat such Lender's
IRS Form W-8BEN or any successor form thereto as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form W-8ECI or any successor form thereto with the Agent
sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Company to such Lender, such Lender agrees
to undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation required
by subsection (a) of this Section are not delivered to the Agent or if any
Lender which is a "foreign corporation, partnership or trust" within the
meaning of the Code is not entitled to claim exemption from or a reduction
of U.S. withholding tax under Section 1441 or 1442 of the Code, then the
Agent shall withhold from any interest payment to such Lender not providing
such forms or other documentation an amount equivalent to the applicable
withholding tax.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered, was not properly executed,
or because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason other than the Agent's
gross negligence or willful misconduct) such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent as
tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Agent under this
Section, together with all costs and expenses (including Attorney Costs).
The obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of the Agent.
9.11 Co-Agents. None of the Lenders identified on the facing page or
signature pages of this Agreement as a "co-agent", "managing agent",
"syndication agent" or "documentation agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders so identified as a "co-agent", "syndication agent" or "documentation
agent" shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
10. MISCELLANEOUS.
10.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or by the Agent at the written request of the Required Lenders) and the
Borrower and acknowledged by the Agent, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Lenders and the Borrower and
acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.2);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders or
any of them to take any action hereunder; or
(e) amend this Section, or Section 2.13, or any provision herein
providing for consent or other action by all Lenders;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Required
Lenders or all the Lenders, as the case may be, affect the rights or duties
of the Agent under this Agreement or any other Loan Document, and (ii) the
Fee Letter may be amended or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
10.2 Notices.
(a) All notices, requests and other communications shall be either (i)
in writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by the
Borrower by facsimile shall be immediately confirmed by a telephone call to
the recipient at the number specified on Schedule 10.2) or (ii) as and to
the extent set forth in clause (d) below, by electronic mail.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, faxed or e-mailed, be effective when
delivered for overnight (next-day) delivery, transmitted in legible form by
facsimile machine (provided that the sender has retained its facsimile
machine-generated confirmation of the receipt of such fax by the
recipient's facsimile machine) or transmitted by e-mail (provided that the
e-mail was sent to the e-mail address provided by the recipient and that
the e-mail was not returned to the sender as undeliverable), respectively,
or if mailed, upon the third Business Day after the date deposited into the
U.S. mail, or if delivered, upon delivery; except that notices pursuant to
Section 2 or 9 shall not be effective until actually received by the Agent.
(c) The agreement of the Agent and the Lenders herein to receive
certain notices by telephone, facsimile or e-mail is solely for the
convenience of the Borrower, the Agent and the Lenders. The Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting
to be a Person who is named in the then-current certificate delivered
pursuant to subsection 4.1(e) hereof as authorized to execute Borrowing
Advices (each an "Authorized Person") and the Lenders shall not have any
liability to the Borrower or other Person on account of any action taken or
not taken by the Agent or the Lenders in reliance upon such telephonic,
facsimile or e-mail notice, provided the Agent and the Lenders reasonably
believe such Person to be an Authorized Person. The obligation of the
Borrower to repay the Loans shall not be affected in any way to any extent
by any failure by the Agent and the Lenders to receive written confirmation
of any telephonic, facsimile or e-mail notice or the receipt by the Agent
and the Lenders of a confirmation which is at variance with the terms
understood by the Agent and the Lenders to be contained in the telephonic,
facsimile or e-mail notice.
(d) The compliance certificate described in Section 6.2 shall be
delivered to the Agent by the Borrower by mail or overnight delivery.
Except for the compliance certificate described in Section 6.2, materials
required to be delivered pursuant to Section 6.2 shall be delivered to the
Agent in an electronic medium format reasonably acceptable to the Agent by
e-mail at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrower agrees that the Agent
may make such materials (collectively, the "Communications") available to
the Lenders by posting such materials on IntraLinks, "e-Disclosure" (the
Agent's internet delivery system that is part of SSB Direct, Global Fixed
Income's primary web portal) or a substantially similar electronic
transmission system (collectively, the "Platform"). In addition, to the
extent the Borrower in its sole discretion so elects and confirms in
writing or by e-mail to the Agent, any other written information,
documents, instruments or other material relating to the Borrower, any of
its Subsidiaries or any other materials or matters relating to this
Agreement, the Notes or any of the transactions contemplated hereby and
supplied by the Borrower to the Agent (other than any such communication
that (i) relates to a request for a new, or a conversion of an existing,
Borrowing (including any election of an interest rate or Interest Period
relating thereto), (ii) relates to the payment of any principal or other
amount due hereunder prior to the scheduled date therefor, (iii) provides
notice of any Default or Event of Default or (iv) is required to be
delivered to satisfy any condition precedent set forth in Section 4.1 or
Section 4.2), shall, to the extent of such election and confirmation by the
Borrower, constitute materials that are "Communications" for purposes of
this subparagraph (d). The Borrower and each of the Lenders acknowledges
that (i) the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided "as is"
and "as available" and (iii) neither the Agent nor any of its Affiliates
warrants the accuracy, adequacy or completeness of the Communications or
the Platform and each expressly disclaims liability for errors or omissions
in the Communications or the Platform (provided, as to such disclaimer,
that the Agent and its Affiliates have not been grossly negligent or
engaged in any willful misconduct in respect of the Platform). No warranty
of any kind, express, implied or statutory, including, without limitation,
any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other
code defects, is made by the Agent or any of its Affiliates in connection
with the Platform.
(e) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement.
Each Lender agrees (i) to notify the Agent in writing of such Lender's
e-mail address to which a Notice may be sent by electronic transmission
(including by electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time thereafter to
ensure that the Agent has on record an effective e-mail address for such
Lender) and (ii) that any Notice may be sent to such e-mail address.
10.3 No Waiver-Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
10.4 Costs and Expenses. The Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Citicorp USA including in its capacity
as Agent and Lender within five Business Days after demand, subject to
subsection 4.1(g) for all reasonable costs and expenses incurred by
Citicorp USA including in its capacity as Agent and Lender in
connection with the development, preparation, delivery, administration
and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this
Agreement, any Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including reasonable
Attorney Costs incurred by Citicorp USA (including in its capacity as
Agent and Lender with respect thereto); and
(b) pay or reimburse the Agent, the Arranger and each Lender
within five Business Days after demand (subject to subsection 4.1(g))
for all reasonable costs and expenses (including reasonable Attorney
Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an Event
of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including
in any Insolvency Proceeding or appellate proceeding). In connection
with any claim, demand, action or cause of action relating to the
enforcement, preservation or exercise of any rights or remedies
covered by this Section 10.4 against the Borrower, all Lenders shall
be represented by the same legal counsel selected by such Lenders;
provided, that if such legal counsel determines in good faith that
representing all such Lenders would or could result in a conflict of
interest under laws or ethical principles applicable to such legal
counsel or that a claim is available to a Lender that is not available
to all such Lenders, then to the extent reasonably necessary to avoid
such a conflict of interest or to permit an unqualified assertion of
such a claim, each Lender shall be entitled to separate representation
by legal counsel selected by that Lender, with all such legal counsel
using reasonable efforts to avoid unnecessary duplication of effort by
counsel for all Lenders.
10.5 Borrower Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold the Agent-Related
Persons, and each Lender and each of its respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time (including at any time following repayment of the Loans and the
termination, resignation or replacement of the Agent or replacement of any
Lender) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Borrower shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities resulting from the gross negligence or willful
misconduct of such Indemnified Person. If any claim, demand, action or cause of
action is asserted against any Indemnified Person, such Indemnified Person shall
promptly notify Borrower, but the failure to so promptly notify Borrower shall
not affect Borrower's obligations under this Section unless such failure
materially prejudices Borrower's right to participate in the contest of such
claim, demand, action or cause of action, as hereinafter provided. If requested
by Borrower in writing, such Indemnified Person shall in good faith contest the
validity, applicability and amount of such claim, demand, action or cause of
action and shall permit Borrower to participate in such contest. Any Indemnified
Person that proposes to settle or compromise any claim or proceeding for which
Borrower may be liable for payment of indemnity hereunder shall give Borrower
written notice of the terms of such proposed settlement or compromise reasonably
in advance of settling or compromising such claim or proceeding and shall obtain
Borrower's prior consent. In connection with any claim, demand, action or cause
of action covered by this Section 10.5 against more than one Indemnified Person,
all such Indemnified Person shall be represented by the same legal counsel
selected by the Indemnified Persons and reasonably acceptable to Borrower;
provided, that if such legal counsel determines in good faith that representing
all such Indemnified Persons would or could result in a conflict of interest
under laws or ethical principles applicable to such legal counsel or that a
defense or counterclaim is available to an Indemnified Person that is not
available to all such Indemnified Persons, then to the extent reasonably
necessary to avoid such a conflict of interest or to permit unqualified
assertion of such a defense or counterclaim, each Indemnified Person shall be
entitled to separate representation by legal counsel selected by that
Indemnified Person and reasonably acceptable to Borrower, with all such legal
counsel using reasonable efforts to avoid unnecessary duplication of effort by
counsel for all Indemnified Persons. The agreements in this Section shall
survive payment of all other Obligations.
10.6 Payments Set Aside. To the extent that the Borrower makes a payment to
the Agent or the Lenders, or the Agent or the Lenders exercise any right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Lender in its discretion) to be repaid to a trustee, receiver or
any other party, in connection with any Insolvency Proceeding or otherwise, then
(a) to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Agent upon demand its pro rata share
of any amount so recovered from or repaid by the Agent.
10.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Lender.
10.8 Assignments, Participations Etc.
(a) Any Lender may, with the written consent of the Agent and the
Borrower, which consent shall not be unreasonably withheld (except
Borrower's consent shall not be required if (i) a Default or an Event of
Default exists and is continuing, and (ii) the Eligible Assignee is not
engaged in the securities brokerage business or the investment advisory
business), at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Agent shall be required
in connection with any assignment and delegation by a Lender to an Eligible
Assignee that is an Affiliate of such Lender) (each an "Assignee") all, or
any ratable part of all, of the Loans, the Commitments, and the other
rights and obligations of such Lender hereunder, in a minimum amount of
$10,000,000; provided, however, that the Borrower and, the Agent may
continue to deal solely and directly with such Lender in connection with
the interest so assigned to an Assignee until (A) written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the
Borrower and the Agent by such Lender and the Assignee; (B) such Lender and
its Assignee shall have delivered to the Borrower and the Agent an
Assignment and Acceptance in the form of Exhibit D ("Assignment and
Acceptance") together with any Note or Notes subject to such assignment;
and (C) the assignor Lender or Assignee has paid to the Agent a processing
fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor
Lender and the Borrower that it has received (and the Borrower and the
Agent have provided their consent with respect to) an executed Assignment
and Acceptance and payment of the above-referenced processing fee, (i) the
Assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a
Lender under the Loan Documents, and (ii) the assignor Lender shall, to the
extent that rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent
that it has received an executed Assignment and Acceptance and payment of
the processing fee (and provided that it consents to such assignment in
accordance with subsection 10.8(a)), the Borrower shall execute and deliver
to the Agent, new Notes evidencing such Assignee's assigned Loans and
Commitment and, if the assignor Lender has retained a portion of its Loans
and its Commitment, replacement Notes in the principal amount of the
Commitment retained by the assignor Lender (such Notes to be in exchange
for, but not in payment of, the Notes held by such Lender). Immediately
upon each Assignee's making its processing fee payment under the Assignment
and Acceptance, this Agreement shall be deemed to be amended to the extent,
but only to the extent, necessary to reflect the addition of the Assignee
and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assignor Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Borrower (a "Participant")
participating interests in any Loans, the Commitment of that Lender and the
other interests of that Lender (the "originating Lender") hereunder and
under the other Loan Documents; provided, however, that (i) the originating
Lender's obligations under this Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the performance of
such obligations, (iii) the Borrower, and the Agent shall continue to deal
solely and directly with the originating Lender in connection with the
originating Lender's rights and obligations under this Agreement and the
other Loan Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to approve
any amendment to, or any consent or waiver with respect to, this Agreement
or any other Loan Document. Any Lender that sells a participation to any
Person that is a "foreign corporation, partnership or trust" within the
meaning of the Code shall include in its participation agreement with such
Person a covenant by such Person that such Person will comply with the
provisions of Section 9.10 as if such Person were a Lender and provide that
the Agent and the Borrower shall be third party beneficiaries of such
covenant.
(e) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note
held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in
any manner permitted under applicable law.
(f) Any Lender (a "Granting Lender") may, with notice to the Agent,
grant to a special purpose funding vehicle (an "SPC") the option to fund
all or any part of any Loan that such Granting Lender would otherwise be
obligated to fund pursuant to this Agreement. The funding of a Loan by an
SPC hereunder shall utilize the Revolving Credit Commitment of the Granting
Lender to the same extent, and as if, such Loan were funded by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable for so long as, and to the extent, the Granting
Lender provides such indemnity or makes such payment. Notwithstanding
anything to the contrary contained in the foregoing or anywhere else in
this Agreement, (i) nothing herein shall constitute a commitment by any SPC
to fund any Loan, (ii) if an SPC elects not to exercise such option or
otherwise fails to fund all or any part of such Loan, the Granting Lender
shall be obligated to fund such Loan pursuant to the terms hereof, and
(iii) the Borrower and Agent shall continue to deal exclusively with the
Granting Lender and any funding by an SPC hereunder shall not constitute an
assignment, assumption or participation of any rights or obligations of the
Granting Lender. Any SPC may disclose on a confidential basis any
non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or guarantee to
such SPC, provided, as a condition precedent to such disclosure, (A) such
agency, dealer or provider has delivered to such Granting Lender for the
benefit of Borrower a written confidentiality agreement substantially
similar to Section 10.9, and (B) simultaneous with or prior to such
disclosure, such Granting Lender has given written notice to Borrower of
the agency, dealer or provider to which such disclosure is being made and
the contents of such disclosure. This Section may not be amended without
the prior written consent of each Granting Lender, all or any part of whose
Loan is being funded by an SPC at the time of such amendment.
10.9 Confidentiality. Each Lender agrees to hold any confidential
information that it may receive from Borrower or from the Agent on such
Borrower's behalf, pursuant to this Agreement in confidence, except for
disclosure: (a) to legal counsel and accountants for Borrower or any Lender;
(b) to other professional advisors to Borrower or any Lender, provided that the
recipient has delivered to such Lender a written confidentiality agreement
substantially similar to this Section 10.9; (c) to regulatory officials having
jurisdiction over any Lender; (d) as required by applicable law or legal process
or in connection with any legal proceeding in which any Lender and Borrower are
adverse parties; and (e) to another financial institution in connection with a
disposition or proposed disposition to that financial institution of all or part
of any Lender's interests hereunder or a participation interest in the Revolving
Note and/or the Term Note, each in accordance with Section 10.8 hereof, provided
that the recipient has delivered to such Lender a written confidentiality
agreement substantially similar to this Section 10.9. Each Lender further agrees
that it will not use such confidential information in any activity or for any
purpose other than the administration of credit facilities extended to Borrower
and its Subsidiaries and, without limitation, will take such steps as are
reasonably appropriate to preclude access to any such confidential information
to be obtained by any Person employed by any Lender, or by an affiliate of any
Lender, who is not involved in the administration of credit facilities extended
to Borrower and its Subsidiaries. For purposes of the foregoing, "confidential
information" shall mean any information respecting Borrower or its Subsidiaries
reasonably specified by Borrower as confidential, other than (i) information
filed with any governmental agency and available to the public, and
(ii) information disclosed by Borrower to any Person not associated with
Borrower without a written confidentiality agreement substantially similar to
this Section 10.9. Certain of the confidential information pursuant to this
Agreement is or may be valuable proprietary information that constitutes a trade
secret of Borrower or its Subsidiaries; neither the provision of such
confidential information to any Lender or the limited disclosures thereof
permitted by this Section 10.9 shall affect the status of any such confidential
information as a trade secret of Borrower and its Subsidiaries. Each Lender, and
each other Person who agrees to be bound by this Section 10.9, acknowledges that
any breach of the agreements contained in this Section 10.9 would result in
losses that could not be reasonably or adequately compensated by money damages.
Accordingly, if any Lender or any other person breaches its obligations
hereunder, such Lender or such other Person recognizes and consents to the right
of Borrower, Intermediate Parent, and/or Broker Subsidiary to seek injunctive
relief to compel such Lender or other Person to abide by the terms of this
Section 10.9. Notwithstanding anything herein to the contrary, the Borrower and
its officers, directors, employees, agents and advisors and the Lenders and
their officers, directors, employees, agents and advisors may disclose to any
and all persons, without limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the Borrower or
the Lenders, as the case may be, if any, relating to such U.S. tax treatment and
tax structure. In interpreting the immediately preceding sentence, it is the
express intent of the parties that each taxpayer that is or may become a party
to this Agreement is expressly authorized to disclose whatever information (but
only such information) as may be necessary and/or required such that the
transactions contemplated hereby will not be "confidential transactions" within
the meaning of either Treas. Reg. Section 1.6011-4(b)(3) or Treas. Reg. Section
301.6111-2(a)(2)(ii), as such regulations maybe amended, modified or clarified.
For there purposes, "tax treatment" and "tax structure" shall have the meanings
ascribed in Treas. Reg. Section 1.6011-4(c)(8)-(9), and shall not include
information related to the identity of any participant.
10.10 Notification of Addresses, Lending Offices, Etc. Each Lender shall
notify the Agent in writing of any changes in the address to which notices to
the Lender should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
10.11 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.12 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.13 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Borrower, the Lenders, the
Agent and the Arranger, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
10.14 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE
AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE
AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE BORROWER, THE
AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO.
10.15 Waiver of Jury Trial. THE BORROWER, THE LENDERS AND THE AGENT
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE AGENT EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
10.16 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the
Borrower, the Lenders and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
10.17 Headings. Articles and Section headings in this Agreement are
included herein for the convenience of reference only.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
Borrower:
THE XXXXXXX XXXXXX CORPORATION
By:/s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Lenders:
CITICORP USA, INC., as Agent and
individually as Lender
By:/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Attorney-In-Fact
---------------------------------
BANK OF AMERICA, N.A.
By:/s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
----------------------------------
Title: Vice President
---------------------------------
BANK ONE, NA
By:/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------------
Title: Associate Director
---------------------------------
PNC BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
WESTLB AG, NEW YORK BRANCH
By:/s/ Xxxxxxx X. Law
------------------------------------
Name: Xxxxxxx X. Law
----------------------------------
Title: Executive Director
---------------------------------
By:/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Director
---------------------------------
COMMERZBANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By:/s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Assistant Vice President
---------------------------------
By:/s/ Xxxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxxx X. XxXxxxxx
----------------------------------
Title: Vice President
---------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ W. Xxx Xxxxxxx
------------------------------------
Name: W. Xxx Xxxxxxx
----------------------------------
Title: First Vice President
---------------------------------
LLOYDS TSB BANK PLC
By:/s/ Xxxxxxx X.X. Tuck
------------------------------------
Name: Xxxxxxx X.X. Xxxx
----------------------------------
Title: Vice President, Financial
Institutions, USA TD20
---------------------------------
By:/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------------
Title: Director Project Finance (USA)
B374
---------------------------------
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By:/s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
By:/s/ Jan de Jonge
------------------------------------
Name: Jan de Jonge
----------------------------------
Title: Vice President
---------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
By:/s/ Xxxx X. XxXxxxxx
------------------------------------
Name: Xxxx X. XxXxxxxx
----------------------------------
Title: Vice President
---------------------------------
BANK OF HAWAII
By:/s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
----------------------------------
Title: Vice President
---------------------------------
BNP PARIBAS
By:/s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title: Managing Director
---------------------------------
By:/s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:/s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Sr. Vice President
---------------------------------
XXXXXX TRUST AND SAVINGS BANK
By:/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Vice President
---------------------------------
HSBC BANK USA
By:/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
----------------------------------
Title: First Vice President
---------------------------------
JPMORGAN CHASE BANK
By:/s/ Pandora Xxxxxx
------------------------------------
Name: Pandora Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
MELLON BANK, N.A.
By:/s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
UBS AG, CAYMAN ISLANDS BRANCH
By:/s/ Xxxxxxxx X'Xxxxx
------------------------------------
Name: Xxxxxxxx X'Xxxxx
----------------------------------
Title: Director
---------------------------------
By:/s/ Xxxxxxx Saint
------------------------------------
Name: Xxxxxxx Saint
----------------------------------
Title: Associate Director
---------------------------------
U.S. BANK, N.A.
By:/s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Title: Vice President
---------------------------------
FIRST HAWAIIAN BANK
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President, Manager
---------------------------------
Schedule 1
----------
LENDERS' COMMITMENTS
--------------------
The Xxxxxxx Xxxxxx Corporation $800,000,000 Credit Agreement (364-Day
Commitment) dated as of June 20, 2003.
Lender Commitment Amount
1. Citicorp USA, Inc. 1. $75,000,000
2. Bank of America, N.A. 2. 65,000,000
3. Bank One, NA 3. 65,000,000
4. PNC Bank, National Association 4. 65,000,000
5. WestLB AG, New York Branch 5. 65,000,000
6. Commerzbank AG New York and 6. 45,000,000
Grand Cayman Branches
7. Credit Lyonnais 7. 45,000,000
8. Lloyds TSB Bank plc 8. 45,000,000
9. Norddeutsche Landesbank Girozentrale, 9. 45,000,000
New York Branch and/or Cayman Islands Branch
10. Xxxxx Fargo Bank, National Association 10. 45,000,000
11. Bank of Hawaii 11. 25,000,000
12. BNP Xxxxxxx 00. 25,000,000
13. First Tennessee Bank National Association 13. 25,000,000
14. Xxxxxx Trust and Savings Bank 14. 25,000,000
15. HSBC Bank USA 15. 25,000,000
16. JPMorgan Chase Bank 16. 25,000,000
17. Mellon Bank, N.A. 17. 25,000,000
18. UBS AG, Cayman Islands Branch 18. 25,000,000
19. U.S. Bank, N.A. 19. 25,000,000
20. First Hawaiian Bank 20. 15,000,000
Total $800,000,000
Schedule 2
----------
LIST OF BORROWING AGREEMENTS
----------------------------
1. $1,000,000,000 Credit Agreement (364-Day Commitment) dated as of June
20, 2002 among the Borrower, the lenders party thereto, and Citicorp USA, Inc.,
as administrative agent for such lenders.
Schedule 6.2
------------
COMPLIANCE CERTIFICATE
----------------------
I, ____________________, certify that I am the _______________________ of
The Xxxxxxx Xxxxxx Corporation (the "Borrower"), and that as such I am
authorized to execute this Compliance Certificate on behalf of the Borrower, and
do hereby further certify on behalf of the Borrower that:
1. I have reviewed the terms of that certain Credit Agreement (364-Day
Commitment) dated as of June 20, 2003 among the Borrower, the financial
institutions named therein (the "lenders") and Citicorp USA, Inc., as Agent for
the lenders (the "Credit Agreement"), and I have made, or have caused to be made
by employees or agents under my supervision, a detailed review of the
transactions and conditions of the Borrower during the accounting period covered
by the attached financial statements dated ______________, 200__.
2. The examination described in paragraph 1 did not disclose, and I have no
knowledge of the existence of any condition or event which constitutes a Default
or Event of Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Compliance Certificate,
except as set forth below.
3. Schedule I attached hereto sets forth financial data and computations
evidencing compliance with the covenants set forth in Sections 7.1 and 7.2 of
the Credit Agreement, all of which data and computations are true, complete and
correct. Capitalized terms not otherwise defined herein are defined in the
Credit Agreement.
4. Described below are the exceptions, if any, to paragraph 2 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event.
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered this ___ day of
_____________ 200__.
By:__________________________________
Name:________________________________
Title:_______________________________
The Xxxxxxx Xxxxxx Corporation
Credit Agreement (364-Day Commitment)
Dated as of June 20, 2003
Schedule I
to
Compliance Certificate
(Dollars in Thousands)
1. Net Capital Ratio of the Broker Subsidiary and SCM.
Requirement: Broker Subsidiary and SCM - month-end ratio not less than 5%,
2-month average not less than 7%.
Net Capital Ratio for Broker Subsidiary
---------------------------------------
Month Month-end Ratio 2-Month Average
----- --------------- ---------------
Net Capital Ratio for SCM
-------------------------
Month Month-end Ratio 2-Month Average
----- --------------- ---------------
2. Minimum Tangible Net Worth of Borrower.
Requirement: As of _____________, 200___, required Minimum Tangible Net
Worth is $2,000,000,000 plus 50% of cumulative Net Earnings from June 30,
2003.
Schedule 10.2
-------------
NOTICES
-------
If to the Borrower:
If by U.S. mail: The Xxxxxxx Xxxxxx Corporation
Treasury Department
Attn: Xxxxxxx Xxxxxx or Successor
000 Xxxx Xx. (Mail Stop SF120KNY-09-305)
Xxx Xxxxxxxxx, XX 00000
If by hand delivery
(including courier
and overnight
messenger service): The Xxxxxxx Xxxxxx Corporation
Treasury Department
Attn: Xxxxxxx Xxxxxx or Successor
000 Xxxxxx Xx. 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Agent:
See information under Citicorp USA, Inc. in table below pertaining to
Lenders.
If to the Lenders:
Credit Contact Operations Contact Lending Office Payment Instructions
-------------- ------------------ -------------- --------------------
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx 000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx ABA #: 000000000
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 28255-0001 Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
Attention: Xxxx Xxxxxxx Attention: Xxxx Xxxxxxxx Acct #: 1366212250600
(000) 000-0000 (000) 000-0000 Attention: Credit Services
Fax: (000) 000-0000 Fax: (000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Corporation
Bank of Hawaii Bank of Hawaii Bank of Hawaii Bank of Hawaii
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxx., 0xx Xxxxx 000 Xxxxxxxx Xxxx. XXX #: 0000-00000
00xx Xxxxx Xxxxxxx, XX 00000 0xx Xxxxx Xxxxxxxx, XX
Xxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxxx Xxxxxxx, XX 00000 Acct #: 9298-540626
Attention: Xxxxx Xxxxx (000) 000-0000 Acct Name:
Vice President Fax: (000) 000-0000 Bank of Hawaii
(000) 000-0000 Attn:
Fax: (000) 000-0000 Business Loan Center
Ref: The Xxxxxxx Xxxxxx
Corporation
Bank One, NA Bank One, NA Bank One, NA Bank One, NA
000 X. 00xx Xxxxxx (Main Office Chicago) One Bank Xxx Xxxxx (Xxxx Xxxxxx Xxxxxxx)
Xxx Xxxx, XX 00000 Xxx Xxxx Xxx Xxxxx Xxxxxxx, XX 00000 ABA #: 000000000
Attention: Xxxxxx X. Xxxxxx Chicago, IL 60670 Chicago, IL
First Vice President Attention: Xxxxxx Xxxxxxxxx Acct #: 481152860000
(000) 000-0000 Asst. Vice President Acct Name:
Fax: (000) 000-0000 (000) 000-0000 LS2 Incoming Clearing
Fax: (000) 000-0000 Attention:
Xxxxxx Xxxxxxxxx
BNP Paribas BNP Paribas BNP Paribas BNP New York
000 0xx Xxxxxx, 00xx Xxxxx 000 0xx Xxxxxx, 00xx Xxxxx 000 0xx Xxxxxx, 00xx Xxxxx XXX #: 000000000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxxxx Acct #: 10313000103
Director (000) 000-0000 Attn: Loan Services
(000) 000-0000 Fax: (000) 000-0000 Clearing Account
Fax: (000) 000-0000
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc. Citibank NA
000 Xxxxxxxxx Xxxxxx 0 Xxxx'x Xxx, Xxxxx 000 000 Xxxx Xxxxxx XXX #: 000-000-000
Xxx Xxxx, XX 00000 Xxx Xxxxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX
Attention: Xxxxxxx Xxxxxxxxxx Attention: Xxx Xxxxxx Acct #: 40610794
Vice President Assistant Manager Acct Name:
(000) 000-0000 (000) 000-0000 Wall Street Fees
Fax: (000) 000-0000 Fax: (000) 000-0000 Attention: Xxx Xxxxxx
Ref: The Xxxxxxx Xxxxxx
Corporation
Commerzbank AG New York and Commerzbank AG New York and Commerzbank AG New York Commerzbank AG New York
Grand Cayman Branches Grand Cayman Branches and Grand Cayman Branches and Grand Cayman Branches
Two World Financial Center Two World Financial Center Two World Financial Center ABA #: 000000000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Acct. No. 150-1035104
Attention: Xxxxxxx XxXxxxxx Attention: Xxxxx Xxxxx Attention:Xxxxxxxx for The Xxxxxxx Xxxxxx
Vice President Asst. Vice President Xxxxxxxxxx Corporation
(000) 000-0000 (000) 000-0000 (000) 000-0000 Attn: Commercial
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000 Lending Service
Credit Lyonnais, Credit Lyonnais, Credit Lyonnais, Credit Lyonnais,
New York Branch New York Branch New York Branch New York Branch
0000 0xx Xxxxxx 0000 0xx Xxxxxx 0000 0xx Xxxxxx XXX #: 000-000-000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX
Attention: Xxxxxxx Xxxxxxxxxx Attention: Xxxx Xxxxxx Acct #:
Vice President Asst. Vice President 01-88179-3701-00
(000) 000 0000 (000) 000-0000 Acct Name:
Fax: (000) 000 0000 Fax: (000) 000-0000 Loan Servicing
Attention: X. Xxxxxx
Ref: The Xxxxxxx
Xxxxxx Corporation
First Hawaiian Bank First Hawaiian Bank First Hawaiian Bank First Hawaiian Bank
000 Xxxxxx Xxxxxx, 00xx Xxxxx 000 Xxxxxx Xxxxxx, 00xx Xxxxx 000 Xxxxxx Xxxxxx, 00xx XXX #: 0000-0000-0
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000 Floor Honolulu, HI
Attention: Xxxxxxx X. Xxxxxxx Attention: Xxxxxx Xxxxxxx/ Xxxxxxxx, XX 00000 Acct #: 205150109100
VP / MGR Xxxxx Xxxxxx Attn:
(000) 000-0000 Operations Officer CRED WH LN SVCG
Fax: (000) 000-0000 (000) 000-0000 / 8106 Ref: The Xxxxxxx Xxxxxx
Fax: (000) 000-0000 Corporation
First Tennessee Bank First Tennessee Bank First Tennessee Bank First Tennessee Bank
National Association National Association National Association National Association
000 Xxxxxxx Xxxxxx, 0xx Xxxxx 165 Madison Avenue, 0xx Xxxxx 000 Xxxxxxx Xxxxxx, XXX #: 000000000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000 0xx Xxxxx Xxxxxxx, XX
Attention: Xxxxx X. Xxxxx, Xx. Attention: Xxxxx Xxxxxx Xxxxxxx, XX 00000-0000 Acct #: 114174-6830
Senior Vice Sales Assistant Acct Name:
President (000) 000-0000 Bank Secrecy
(000) 000-0000 Fax: (000) 000-0000 Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Xxxxxx Trust and Savings Bank Xxxxxx Trust and Savings Bank Xxxxxx Trust and Savings Xxxxxx Trust and Savings
000 Xxxx Xxxxxx, 0 Xxxx 000 Xxxx Xxxxxx, 0 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 000 Xxxx Xxxxxx Xxxxxxx, XX
Attn: Xxxxxxx X. Xxxxx Attn: Marielcy Xxxxxx Xxxxxxx, XX 00000 Acct Name: Loan Accounting
Vice President Collateral Specialist Ref: The Xxxxxxx Xxxxxx
(000) 000-0000 (000) 000-0000 Corp
F: (000) 000-0000 F: (000) 000-0000 Attn: X. Xxxxxx
HSBC Bank USA HSBC Bank USA HSBC Bank USA HSBC Bank USA
HSBC Tower, 000 0xx Xxxxxx 0 XXXX Xxxxxx, 00xx Xxxxx 0 XXXX Xxxxxx XXX #: 000000000
0xx Xxxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 New York, NY
Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxxx Acct #: 000-00000-0
Attention: Xxxx Xxxxx (000) 000-0000 Acct Name:
(000) 000-0000 Fax: (000) 000-0000 Syndications & Asset
Fax: (000) 000-0000 Trading
Attn: Xxxxxxx Xxxxxxx
Ref: The Xxxxxxx Xxxxxx
Corporation
JPMorgan Chase Bank JPMorgan Chase Bank JPMorgan Chase Bank JPMorgan Chase Bank
One Chase Xxxxx Xxx Xxxxx Xxxxx Xxx Xxxxx Xxxxx Acct #: 066-999979
00xx Xxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 ABA #: 000000000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Acct Name:
Attention: Xxxxxxx Xxxxxx Attention: Xxxxx Xxxxxxxxxxx Broker Dealer House
(000) 000-0000 (000) 000-0000 Account
Fax: (000) 000-0000 Fax: (000) 000-0000 Attention: Xxxxx
Xxxxxxxxxxx
Lloyds TSB Bank plc Lloyds TSB Bank plc Lloyds TSB Bank Bank of America
000 Xxxxx Xxxxxx, 00xx Xxxxx 000 Xxxxx Xxxxxx, 00xx Xxxxx xxx, Xxxxx International, Xxx Xxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 One Biscayne Tower, ABA #: 000-000-000
Attention: Xxxxxxx Xxxxxxxx Attention: Xxxxxxxx Xxxxxx Xxxxx 0000 Xxx Xxxx, XX
(000) 000-0000 (212) 930-8914 0 Xxxxxxxx Xxxxxxxxx Xxxx #: 000-000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Xxxxx, XX 00000 Acct Name: Lloyds TSB
Bank plc, Miami
Ref: The Xxxxxxx
Xxxxxx Corporation
Mellon Bank, X.X. Xxxxxx Bank, X.X. Xxxxxx Bank, X.X. Xxxxxx Bank, N.A.
Xxx Xxxx Xxxxx, 00xx Xxxxx 0 Xxxxxx Xxxx Center One Mellon Center ABA #: 000000000
Xxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX
Attention: Xxxxxx X. Xxxxxx Attention: Xxxxxx Xxxxxxx Acct #: 9908 73 800
Vice President (000) 000-0000 Acct Name: Mellon Bank
(000) 000-0000 Fax: (000) 000-0000 Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
Norddeutsche Landesbank Norddeutsche Landesbank Norddeutsche Landesbank Chase Manhattan Bank,
Girozentrale New York Branch Girozentrale New York Branch Girozentrale, Cayman New York
and/or Cayman Islands Branch and/or Cayman Islands Branch Islands Branch ABA #: 000000000
1114 Avenue of the Americas, 1114 Avenue of the Americas, 0000 Xxxxxx xx xxx Xxx Xxxx, XX
00xx Xxxxx 00xx Xxxxx Xxxxxxxx, 00xx Xxxxx Acct Name:
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Norddeutsche Landesbank,
Attention: Xxxxx Xxxxxx Attention: Xxxxxx Xxxxxxxxxxx New York
(000) 000-0000 (000) 000-0000 Acct #: 000-0-000000
Fax: (000) 000-0000 Fax: (000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Credit Facility
PNC Bank, PNC Bank, PNC Bank, PNC Bank,
National Association National Association National Association National Association
000 Xxxxx Xxxxxx 1600 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx XXX #: 000000000
Mailstop: P1-XXXX-2-3 Xxxxxxxxxxxx, XX 00000 Philadelphia, PA Pittsburgh, PA
Xxxxxxxxxx, XX 00000 Attention: Xxxxxxxxx Xxxxx Acct #: 196030010890
Attention: Xxxxxx X. Xxxxxxxxx (000) 000-0000 Acct Name: Corporate
Managing Director Fax:_______________ Banking
(000) 000-0000 Attention: Wire Room
Fax: (000) 000-0000
UBS AG, Cayman Islands Branch UBS AG, Cayman Islands Branch UBS AG, Cayman Islands UBS AG, Cayman Islands
000 Xxxxxxxxxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000 000 Xxxxxxxxxx Xxxxxxxxx XXX #: 026 007 993
Attention: Xxxxxxxx X'Xxxxx Attention: Xxxxx Xxxxxx Xxxxxxxx, XX 00000 Xxxxxxxx, XX
(000) 000-0000 (000) 000-0000 Acct #: WA-894001-001
Fax: (000) 000-0000 Fax: (000) 000-0000 Acct. Name: Banking
Product Services
Attn: Xxxxx Xxxxxx
Ref: The Xxxxxxx Xxxxxx
Corporation
U.S. Bank, X.X. X.X. Bank, X.X. X.X. Bank, X.X. X.X. Bank, N.A.
One XXXxxx Xxxxx, 00xx Xxxxx One XXXxxx Xxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx XXX #: 061000210
Xx. Xxxxx, XX 00000 St. Louis, MO 63101 Xxxxxxx, XX 00000 Oshkosh, WI
Attention: Xxxxx Xxxxxxx Attention: Xxxxx Xxxxx Acct. #: 00018642160600
(000) 000-0000 (000) 000-0000 Acct. Name: Complex
Fax: (000) 000-0000 Fax: (000) 000-0000 Credit Account
Attn: Complex Credits
Ref: The Xxxxxxx Xxxxxx
Corporation
Xxxxx Fargo Bank, Xxxxx Fargo Bank, Xxxxx Fargo Bank, Xxxxx Fargo Bank,
National Association National Association National Association National Association
0xx Xxxxxx xxx Xxxxxxxxx Xxxxxx 201 3rd Street, 0xx Xxxxx 0xx Xxxxxx xxx Xxxxxxxxx XXX #: 000000000
MAC N9305-075 X0000-000 Xxx Xxx Xxxxxxxxx, XX
Xxxxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000 N9305-075 Acct #: 2712507201
Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxx Xxxxxxxxxxx, XX 00000 Account Name:
Vice President Loan Servicing Spec. Member Syndication
(000) 000-0000 Fax: (000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Fax: (000) 000-0000 Corporation, Obligor
#1582242431
XxxxXX XX, Xxx Xxxx Xxxxxx XxxxXX XX, Xxx Xxxx Branch WestLB AG, New York Branch WestLB AG, New York
1211 Avenue of the Americas 1211 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Americas ABA #: 000-000-000
Attention: Xxxxxxx X. Law Attention: Xxxxxx Xxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX
Executive Director (000) 000-0000 Acct #: 000-0-000000
(000) 000-0000 Fax: (000) 000-0000 Acct Name:
Fax: (000)000-0000 WestLB, New York Branch
Attention: Loan
Administration
Ref: The Xxxxxxx Xxxxxx
Corporation
EXHIBIT A-1
-----------
REVOLVING NOTE
--------------
$____________________ (Amount of Commitment) Date: June 20, 2003
For Value Received, The Xxxxxxx Xxxxxx Corporation ("Schwab") hereby
promises to pay to the order of ________________ (the "Lender") to Citicorp USA,
Inc., as Agent, at Agent's office located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, for the account of the applicable Lending Office of the Lender, the
principal amount of ____________________ ($___________) or the aggregate amount
of all Revolving Loans made to Schwab by the Lender, whichever is less, on June
18, 2004. The undersigned also promises to pay interest on the unpaid principal
amount of each Borrowing from the date of such Borrowing until such principal
amount is paid, at the rates per annum, and payable at such times, as are
specified in the Credit Agreement. This Note shall be subject to the terms of
the Credit Agreement, and all principal and interest payable hereunder shall be
due and payable in accordance with the terms of the Credit Agreement.
Schwab hereby authorizes the Lender to endorse on the Schedule attached to
this Note the amount and Type of Revolving Loans made to Schwab by the Lender
and all renewals, conversions, and payments of principal amounts in respect of
such Revolving Loans, which endorsements shall, in the absence of manifest
error, be conclusive as to the outstanding principal amount of all such
Revolving Loans, provided, however, that the failure to make such notation with
respect to any Revolving Loans or payments shall not limit or otherwise affect
the obligation of Schwab under the Credit Agreement or this Note.
This Note is the Revolving Note referred to in the Credit Agreement
(364-Day Commitment), dated as of June 20, 2003 among Schwab, the Lender,
certain other Lenders party thereto, and Citicorp USA, Inc., as Agent for the
Lenders (the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity of this Note, upon the
happening of certain stated events and also for prepayments on account of the
principal of this Note prior to the maturity of this Note upon the terms and
conditions specified in the Credit Agreement.
Principal and interest payments shall be in money of the United States of
America, lawful at such times for the satisfaction of public and private debts,
and shall be in immediately available funds.
Schwab promises to pay the costs of collection, including reasonable
attorney's fees, if default is made in the payment of this Note.
The terms and provisions of this Note shall be governed by the applicable
laws of the State of California.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its officers thereunto duly authorized and directed by appropriate corporate
authority.
The Xxxxxxx Xxxxxx Corporation
By:--------------------------------
Name:------------------------------
Title:-----------------------------
EXHIBIT A-1
-----------
SCHEDULE TO REVOLVING NOTE
--------------------------
Date Amount of Unpaid
Made, Principal Principal Name of
Continued, Continued, Balance of Person
Converted, Type of Amount Converted, Revolving Making
or Paid Loan of Loan or Paid Note Notation
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EXHIBIT A-2
-----------
TERM NOTE
---------
Date: June 20, 2003
FOR VALUE RECEIVED, the undersigned, The Xxxxxxx Xxxxxx Corporation
("Schwab") hereby promises to pay to the order of ___________________ (the
"Lender"), to Citicorp USA, Inc., as Agent, at the Agent's office located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx Xxx Xxxx 00000, for the account of the applicable
Lending Office of the Lender, the principal amount of each Term Loan made by the
Lender to Schwab pursuant to the terms of the Credit Agreement (364-Day
Commitment), dated as of June 20, 2003, as amended, among Schwab, the Lender,
certain other Lenders party thereto, and Citicorp USA, Inc., as Agent for the
Lenders (the "Credit Agreement"), as shown in the schedule attached hereto and
any continuation thereof, in lawful money of the United States and in
immediately available funds on the Term Loan Maturity Date for such Term Loan.
The undersigned also promises to pay interest on the unpaid principal amount of
each Term Loan from the date of such Term Loan until such principal amount is
paid, in like money, at said office for the account of the Lender's applicable
Lending Office, at the rates per annum, and payable at such times as are
specified in the Credit Agreement. This Term Note shall be subject to the terms
of the Credit Agreement and all principal and interest payable hereunder should
be due and payable in accordance with the terms of the Credit Agreement. Terms
defined in the Credit Agreement are used herein with the same meanings.
This Term Note is one of the Term Notes referred to in, and is entitled to
the benefits of, the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity of this Term Note upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity of the Term Note upon the terms and
conditions specified in the Credit Agreement.
Schwab promises to pay costs of collection, including reasonable attorney's
fees, if default is made in the payment of this Note.
The terms and provisions of this Term Note shall be governed by the
applicable laws of the State of California.
IN WITNESS WHEREOF, the undersigned has caused this Term Note to be
executed by its officer thereunto duly authorized and directed by appropriate
corporate authority.
The Xxxxxxx Xxxxxx Corporation
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT A-2
-----------
SCHEDULE TO TERM NOTE
---------------------
Date Amount of Unpaid
Made, Principal Principal Name of
Continued, Continued, Balance of Person
Converted, Type of Amount Converted, Revolving Making
or Paid Loan of Loan or Paid Note Notation
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EXHIBIT B
---------
BORROWING ADVICE
----------------
1. This Borrowing Advice is executed and delivered by The Xxxxxxx Xxxxxx
Corporation ("Borrower") to you pursuant to that certain Credit Agreement dated
as of June 20, 2003 (the "Credit Agreement"), entered into by Borrower, Citicorp
USA, Inc. ("Citicorp USA") and certain other Lenders parties thereto,
collectively with Citicorp USA (the "Lenders") and Citicorp USA as Agent for the
Lenders (herein "Agent"). Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as defined in the Credit Agreement.
2. Borrower hereby requests that the Lenders make a Revolving [or Term
Loan] for the account of Borrower (at _______________, Account No.
________________) pursuant to Section 2.4 of the Credit Agreement as follows:
(a) Amount of Revolving [or Term Loan]:
(b) Borrowing Date of Revolving [or Term Loan]: _________________.
(c) [If a Revolving Loan] Type of Revolving Loan (check one only):
________ Eurodollar Rate with ________- day Interest Period
________ Federal Funds Rate
________ Base Rate
(d) [If a Term Loan] Type of Term Loan (check one only):
________ Eurodollar Rate with initial ________- day Interest Period
________ Federal Funds Rate
________ Base Rate
(e) [If a Term Loan] Maturity Date of Term Loan:
3. Following this request for a Revolving Loan [or Term Loan], the
aggregate outstanding amount of all Revolving Loans and Term Loans under the
Revolving Note will not exceed the aggregate amount of the Commitments.
4. This Borrowing Advice is executed on ______________ by the Borrower.
BORROWER:
THE XXXXXXX XXXXXX CORPORATION,
a Delaware Corporation
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT C
---------
NOTICE OF CONVERSION/CONTINUATION
---------------------------------
Dated as of: _________________
Citicorp USA, Inc., as Agent
___________________________
___________________________
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (this "Notice") is
delivered to you under the Credit Agreement (364-Day Commitment) dated as of
June 20, 2003 (as amended, restated or otherwise modified, the "Credit
Agreement") by and among The Xxxxxxx Xxxxxx Corporation, a Delaware corporation
(the "Company") (herein "Borrower"); and Citicorp USA, Inc., a Delaware
corporation (herein "Citicorp USA") and the other Lenders signatory thereto
(together with Citicorp USA, collectively "Lenders"), and Citicorp USA as agent
for the Lenders (herein "Agent").
1. This Notice is submitted for the purpose of:
(check one and complete applicable information in accordance with the Credit
Agreement)
[__] Converting or [__] continuing all or a portion of the following
type of Loan:
(a) (check, as applicable)
Base Rate Loan ______________________;
Federal Funds Rate Loan _____________;
Eurodollar Rate Loan ________________.
(b) The aggregate outstanding principal balance of the above Loan is
$_________________.
(c) As applicable, the last day of the current Interest Period for
such Loan is __________________.
(d) The principal amount of such Loan to be [converted or continued]
is $_________________.
(e) Such principal amount should be converted/continued into the
following type of Loan:
Base Rate Loan ______________________;
Federal Funds Rate Loan _____________;
Eurodollar Rate Loan ________________.
(f) The requested effective date of the [conversion/continuation] of
such Loan is _____________________.
(g) As applicable, the requested Interest Period applicable to the
new Loan is _____________________.
2. No Default or Event of Default under the Credit Agreement has occurred
and is continuing or will be caused by the advance requested hereby.
3. The representations and warranties set forth in Section 5 of the Credit
Agreement are true and correct as if made on the date hereof (except for such
representations and warranties as expressly relate to a prior date).
Capitalized terms used herein which are not defined herein shall have the
respective meanings set forth in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned officer of the Company has executed
this Notice of Conversion/Continuation this ___ day of __________, _____.
THE XXXXXXX XXXXXX CORPORATION
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
[must be signed by an Authorized Officer]
EXHIBIT D
---------
COMMITMENT AND TERMINATION DATE EXTENSION REQUEST
-------------------------------------------------
[Bank name and address] [Date]
Reference is made to that certain Credit Agreement (364-Day Commitment)
dated as of June 20, 2003 ("Credit Agreement") entered into by The Xxxxxxx
Xxxxxx Corporation ("Borrower"), Citicorp USA, Inc., as Agent and Lenders party
thereto. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein as defined in the Credit Agreement.
Pursuant to Section 2.11 of the Credit Agreement, Borrower hereby requests
Agent to obtain each Lender's agreement to the extension of such Lender's
Commitment presently in effect, in the amount of $[specify amount of existing
Commitment], and the Termination Date presently in effect, for an additional 364
days.
Agent's execution of a copy of this letter in the space provided below and
the transmission of such executed copy to Borrower shall constitute all Lenders'
acceptance of Borrower's request and all Lenders' agreement to the 364-day
extension sought herein. More specifically, upon the execution of a copy of this
letter by Agent on behalf of Lenders and the transmission thereof to Borrower
within 15 days after Agent's receipt of this letter, (1) the Termination Date as
defined in Section 2.11 of the Credit Agreement shall be extended 364 days and
deemed changed to ___________________, and (2) all other dates appearing in the
Credit Agreement that are referred to in Section 2.11 of the Credit Agreement
shall correspondingly be extended 364 days.
This Commitment and Termination Date Extension Request is executed by
Borrower on ________________.
BORROWER:
THE XXXXXXX XXXXXX CORPORATION,
a Delaware Corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
ACCEPTED AND AGREED:
Agent, on Behalf of Lenders
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT E
---------
BORROWER'S OPINION OF COUNSEL
-----------------------------
June 20, 2003
Citicorp USA, Inc., as Agent
000 Xxxx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Agreement (364-Day Commitment), dated June 20, 2003, among The
Xxxxxxx Xxxxxx Corporation, Citicorp USA, Inc., as Agent and the
Lenders party thereto
Ladies and Gentlemen:
This opinion is delivered at the request of The Xxxxxxx Xxxxxx Corporation
to you in your capacity as Agent, on behalf of the Lenders, under the Credit
Agreement (364-Day Commitment) dated as of June 20, 2003 (the "Credit
Agreement") among The Xxxxxxx Xxxxxx Corporation, a Delaware corporation
("Borrower"), Citicorp USA, Inc., as the Administrative Agent and the Lenders
signatories thereto (each a "Lender" and collectively, the "Lenders"). This
opinion letter speaks as of close of business on June 20, 2003 (hereafter the
"operative date").
We have acted as special counsel to Borrower in connection with the Credit
Agreement. In such capacity we have examined originals, or copies represented to
us by Borrower to be true copies, of the Credit Agreement; and we have obtained
such certificates of such responsible officials of Borrower and of public
officials as we have deemed necessary for purposes of this opinion. We have
assumed without investigation the genuineness of all signatures on original
documents, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as photostatic
copies of originals, and the accuracy and completeness of all corporate records
certified to us by the Borrower to be accurate and complete. We have further
assumed that the Credit Agreement is binding upon and enforceable against the
Agent and the Lenders. As to factual matters, we have relied upon the
representations and warranties contained in and made pursuant to the Credit
Agreement.
Capitalized terms not otherwise defined herein have the meanings given for
such terms in the Credit Agreement. For the purpose of this opinion, "Loan
Documents" as used herein means the Credit Agreement and the Notes.
Based upon the foregoing and in reliance thereon, and subject to the
exceptions and qualifications set forth herein, we are of the opinion that:
1. Borrower is a corporation duly formed, validly existing, and in good
standing under the laws of Delaware.
2. Borrower has all requisite corporate power and authority to execute,
deliver and perform all of its obligations under the Loan Documents.
3. Each Loan Document has been duly authorized, executed and delivered by
Borrower. Each Loan Document constitutes the legal, valid and binding obligation
of Borrower, enforceable against Borrower in accordance with its terms, except
as such validity, binding nature or enforceability may be limited by:
(a) the effect of applicable federal or state bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar laws and court
decisions relating to or affecting creditors' rights generally;
(b) the effect of legal and equitable principles upon the availability of
creditors' remedies, regardless of whether considered in a proceeding in equity
or at law;
(c) the effect of California judicial decisions involving statutes or
principles of equity which have held that certain covenants or other provisions
of agreements, including without limitation those providing for the acceleration
of indebtedness due under debt instruments upon the occurrence of events therein
described, are unenforceable under circumstances where it cannot be demonstrated
that the enforcement of such provisions is reasonably necessary for the
protection of the lender, has been undertaken in good faith under the
circumstances then existing, and is commercially reasonable;
(d) the effect of Section 1670.5 of the California Civil Code, which
provides that a court may refuse to enforce a contract or may limit the
application thereof or any clause thereof which the court finds as a matter of
law to have been unconscionable at the time it was made;
(e) the unenforceability, under certain circumstances, of provisions
purporting to require the award of attorneys' fees, expenses, or costs, where
such provisions do not satisfy the requirements of California Civil Code Section
1717 et seq., or in any action where the lender is not the prevailing party;
(f) the unenforceability, under certain circumstances, of provisions
waiving stated rights or unknown future rights and waiving defenses to
obligations, where such waivers are contrary to applicable law or against public
policy;
(g) the unenforceability, under certain circumstances, of provisions which
provide for penalties, late charges, additional interest in the event of a
default by the borrower or fees or costs related to such charges;
(h) the unenforceability, under certain circumstances, of provisions to the
effect that rights or remedies are not exclusive, that every right or remedy is
cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not
preclude recourse to one or another remedy;
(i) the unenforceability of provisions prohibiting waivers of provisions of
either of the Loan Documents otherwise than in writing to the extent that
Section 1698 of the California Civil Code permits oral modifications that have
been executed;
(j) limitations on the enforceability of release, contribution,
exculpatory, or nonliability provisions, under federal or state securities laws,
Sections 1542 and 1543 of the California Civil Code, and any other applicable
statute or court decisions; and
(k) limitations on the enforceability of any indemnity obligations imposed
upon or undertaken by the borrower to the extent that such obligations do not
satisfy the requirements of Sections 2772 et seq. of the California Civil Code
and any judicial decisions thereunder;
provided that the limitations and qualifications set forth in the immediately
preceding sub-paragraphs (b) through (k) do not, in our opinion, render the
remedies available to the Lenders under the Loan Documents inadequate for the
practical realization of the primary rights and benefits reasonably expected by
an institutional lender in a comparable unsecured credit facility transaction
governed by California law.
The foregoing opinions are subject to the following exceptions and
qualifications:
a. We have not been requested to verify and have not verified the validity,
accuracy, or reasonableness of any of the factual representations contained in
either or both of the Loan Documents, and we express no opinion with respect to
any of such matters.
b. We are members of the bar of the State of California. We are opining
herein only concerning matters governed by the Federal laws of the United States
of America, the substantive laws of the State of California, and the General
Corporation Law of the State of Delaware, and only with respect to Borrower. We
express no opinion concerning the applicability to either or both of the Loan
Documents, or the effect thereon, of the laws of any other jurisdiction.
Furthermore, we express no opinion with respect to choice of law or conflicts of
law, and none of the opinions stated herein shall be deemed to include or refer
to choice of law or conflict of law.
c. We express no opinion on any Federal or state securities laws as they
may relate to either or both of the Loan Documents.
d. We express no opinion as to compliance with the usury laws of any
jurisdiction.
The opinions set forth herein are given as of the operative date. We
disclaim any obligation to notify you or any other person or entity after the
operative date if any change in fact and/or law should change our opinion with
respect to any matters set forth herein. This opinion letter is rendered to you
in your capacity as the Agent on behalf of the Lenders under the Credit
Agreement and may not be relied upon, circulated or quoted, in whole or in part,
by any other person or entity (other than the Lenders and a person or entity who
becomes an assignee or successor in interest of any Lender or acquires a
participation from any Lender consistent with the terms of the Loan Documents)
and shall not be referred to in any report or document furnished to any other
person or entity without our prior written consent; provided, however, that the
foregoing shall not preclude any Lender from describing or otherwise disclosing
the existence or contents of this letter to (i) any bank regulatory authority
having jurisdiction over such Lender, as required by such authority, (ii) a
person or entity who, in good-faith discussions between such Lender and such
person or entity, is proposed to become an assignee or successor in interest of
such Lender or to acquire a participation from the Bank consistent with the
terms of the Loan Documents, and (iii) counsel to the Agent and the Lenders.
Very truly yours,
HOWARD, RICE, NEMEROVSKI,
CANADY, XXXX & RABKIN
A Professional Corporation
By:_____________________________
EXHIBIT F
---------
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
-------------------------------------------
To: CITICORP USA, INC., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day Commitment) dated as
of June 20, 2003 between THE XXXXXXX XXXXXX CORPORATION, a Delaware corporation
("Borrower"), Lenders from time to time party thereto, and CITICORP USA, INC.,
as Administrative Agent (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement", the terms
defined therein being used herein as therein defined).
1. We hereby give you notice of, and request your consent to, the assignment by
_______________________ (the "Assignor") to __________________ (the "Assignee")
of _________% of the right, title and interest of the Assignor in and to the
Loan Documents, including, without limitation, the right, title and interest of
the Assignor in and to the Commitment of the Assignor, and all outstanding Loans
made by the Assignor. Before giving effect to such assignment:
(a) the aggregate amount of the Assignor's Commitment is $_______________.
(b) the aggregate principal amount of its outstanding Loans is
$_____________.
2. The Assignee hereby represents and warrants that it has complied with the
requirements of Section 10.8 of the Agreement in connection with this assignment
and acknowledges and agrees that: (a) other than the representation and warranty
that it is the legal and beneficial owner of the Pro Rata Share being assigned
hereby free and clear of any adverse claim, the Assignor has made no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Agreement or the execution, legality, validity, enforceability, genuineness or
sufficiency of the Agreement of any other Loan Document; (b) the Assignor had
made no representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance by Borrower of the
Obligations; (c) it has received a copy of the Agreement, together with copies
of the most recent financial statements delivered pursuant to Section 6.2
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (d) it will independently and without reliance upon Administrative
Agent or any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement; (e) it appoints and authorizes
Administrative Agent to take such action and to exercise such powers under the
Agreement and the other Loan Documents as are delegated to Administrative Agent
by the Agreement and such other Loan Documents; and (f) it will perform in
accordance with their terms all of the obligations which by the terms of the
Agreement are required to be performed by it as a Lender.
3. The Assignee agrees that, upon receiving your consent to such assignment and
form and after _______________, the Assignee will be bound by the terms of the
Loan Documents, with respect to the interest in the Loan Documents assigned to
it as specified above, as fully and to the same extent as if the Assignee were a
Lender originally holding such interest in the Loan Documents.
4. The following administrative details apply to the Assignee:
(a) Credit Contact:
Assignee name:_______________________________________
Address:_____________________________________________
_____________________________________________
Attention:___________________________________________
Telephone:___________________________________________
Telecopier:__________________________________________
(b) Operations Contract:
Assignee name:_______________________________________
Address:_____________________________________________
_____________________________________________
Attention:___________________________________________
Telephone:___________________________________________
Telecopier:__________________________________________
(c) Lending Office:
Assignee name:_______________________________________
Address:_____________________________________________
_____________________________________________
(d) Payment Instructions:
Assignee name:_______________________________________
ABA No.:_____________________________________________
Account No.:_________________________________________
Attention:___________________________________________
Reference:___________________________________________
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice
of Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[ASSIGNOR]
By:________________________________________
Name:______________________________________
Title:_____________________________________
[ASSIGNEE]
By:________________________________________
Name:______________________________________
Title:_____________________________________
We hereby consent to the
foregoing assignment.
THE XXXXXXX XXXXXX CORPORATION,
as Borrower
By:__________________________
Name:________________________
Title:_______________________
CITICORP USA, INC.,
as Administrative Agent
By:__________________________
Name:________________________
Title:_______________________
