EXHIBIT 10.11
LOAN AGREEMENT
BETWEEN
XXXXXX WORLDWIDE, INC., AS BORROWER
AND
SUNGARD DATA SYSTEMS INC., AS LENDER
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DATED AS OF November 4, 2002
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LOAN AGREEMENT
THIS AGREEMENT is made as of November 4, 2002 by and among XXXXXX
WORLDWIDE, INC., a Delaware corporation located at 0000 Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 ("Borrower"); and SUNGARD DATA SYSTEMS INC., a Delaware
corporation located at 0000 Xxxxxxxx Xxxx, Xxxxx XX 00000 ("Lender").
BACKGROUND
Lender's subsidiary, SunGard Financial Systems Inc., is a Delaware
corporation ("SFS"), which provides data processing services to registered
brokers. Borrower (and its affiliates) and Lender (and its affiliate, SFS) are
unrelated corporations that are not affiliated in any manner.
Borrower, through its Material Subsidiaries, operates a correspondent
clearing brokerage business providing clearing services and margin lending
services to other brokerage firms ("Business"). SFS and one of Borrower's
Material Subsidiaries are parties to a Remote Processing Agreement, dated July
10, 1995 as amended from time to time ("Processing Agreement") for certain data
processing services used to operate the Business.
Borrower has borrowed from Lender and has executed a promissory note,
dated May 31, 2002 ("Old Note") in the principal amount("Old Note Principal") of
Three Million Dollars ($3,000,000), plus interest at the rate specified therein.
The Old Note has a maturity date of September 3, 2002, which has been extended
until November 4, 2002, when both the principal and the accrued interest ("Old
Note Accrued Interest") in the amount of Nine Thousand Five Hundred and Sixty
Two Dollars and Fifty Cents ($9,562.50) will be due and payable to Lender.
Borrower desires to borrow from Lender to pay off the Old Note Principal
and Old Note Accrued Interest and to contribute to the capital of its Material
Subsidiaries certain additional funds to provide additional capital to operate
the Business.
Lender desires to lend to Borrower an additional amount to operate the
Business. Lender expects to benefit from such loan by receiving interest
payments on the borrowed funds.
NOW, THEREFORE, in consideration of the mutual agreements and undertakings
set forth in this Agreement, the parties, intending to be legally bound hereby,
agree as follows:
SECTION 1. THE LOAN AND THE NOTE
1.1 The Loan. Lender shall, upon the terms and subject to the
conditions hereinafter set forth and in reliance upon the representations,
warranties and covenants of Borrower contained herein, make a loan ("Loan") to
Borrower in the
principal amount of Six Million Eight Hundred Thousand Dollars ($6,800,000).
Borrower shall use the proceeds of the Loan as specified in its board of
directors resolution attached hereto as Schedule 1.1 ("Permitted Use").
1.2 The Note.
(a) The Loan shall be evidenced by Borrower's promissory note,
substantially in the form attached hereto as Exhibit A ("Note"), in the
principal amount of $6,800,000, duly executed and delivered on behalf of
Borrower.
(b) Interest on the outstanding principal balance of the Note
("Principal Balance") shall be calculated monthly at the end of each calendar
month as follows: (i) if there is no Excess Net Capital (as defined below) at
the prior month's month-end, then the entire Principal Balance shall bear
interest at the Applicable Rate (as defined below); (ii) if there is Excess Net
Capital at the prior month's month-end equal to or greater than the Principal
Balance, then the entire Principal Balance shall bear interest at the Discounted
Rate; and (iii) if there is Excess Net Capital at the prior month's month-end
less than the Principal Balance, then the portion of the Principal Balance equal
to such Excess Net Capital shall bear interest at the Discounted Rate and the
remaining Principal Balance shall bear interest at the Applicable Rate. As used
in this Agreement: "Applicable Rate" means the sum of the Prime Rate (as defined
below) plus two percent (2%) per annum, compounded monthly; "Discounted Rate"
means the Prime Rate, compounded monthly; "Prime Rate" means the rate of
interest per annum publicly announced from time to time by XX Xxxxxx Chase Bank
as its prime rate in effect at its principal office in New York City; and
"Excess Net Capital" means the aggregate net capital (as defined for SEC
regulatory purposes) of the Material Subsidiaries that are registered
broker-dealers with the SEC ("SEC-Regulated Material Subsidiaries") in excess of
five percent (5%) of combined aggregate debit items of the SEC-Regulated
Material Subsidiaries. Accrued interest on the outstanding principal balance of
the Note shall be due and payable monthly in arrears on the second day of each
calendar month commencing December 2, 2002.
(c) The outstanding principal balance of the Note shall be
payable by Borrower in 65 equal monthly payments of $103,031 each on the second
day of each calendar month commencing December 2, 2002 and continuing until
April 2, 2008, and a final payment of the entire remaining principal balance on
May 2, 2008.
1.3 Prepayment. Borrower may prepay, without penalty or premium, all
or any portion of the outstanding principal balance of the Note at any time and
from time to time, provided
that each such prepayment is accompanied by all interest accrued thereon.
Principal prepayments shall be applied to the principal payments due hereunder
in reverse order of when due.
1.4 Payments and Computations. Borrower shall make each payment
hereunder and under the Note not later than 1:00 P.M., Philadelphia time, on the
day when due in lawful money of the United States, in immediately available
funds at the office of Lender at 0000 Xxxxxxxx Xxxx, Xxxxx Xxxxxxxxxxxx 00000.
All computations of interest hereunder shall be made by Lender based upon the
actual number of days elapsed in a year of 365 days. Should any payment of
principal or interest become due and payable on a Saturday, Sunday or legal
holiday under the laws of the State of Pennsylvania, then the payment date
thereof shall be extended to the next succeeding business day, and such
extension of time shall in such case be included in computing such interest. Any
payments made on the Note shall be applied, first, to the payment of accrued and
unpaid interest on the Note then due as well as any accrued and unpaid interest
payable on the principal amount of the Note being paid, and, second, to the
reduction of the outstanding principal balance of the Note. Attached as Exhibit
B to this Agreement are the wiring instructions for Borrower to use in wiring
payments to Lender due hereunder and under the Note.
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Agreement and to make the
Loan, Borrower represents and warrants to Lender (regardless of any
investigation made or information obtained by Lender) as of the date hereof
that, except as set forth on the Schedules attached hereto:
2.1 Organization. Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified or licensed as a foreign corporation in good standing in all
other jurisdictions where the failure to so qualify would have a Material
Adverse Effect (as hereinafter defined). Neither Borrower nor its Material
Subsidiaries is in default under and has not breached its certificate of
incorporation or by-laws such that there would result a Material Adverse Effect.
2.2 Subsidiaries. As used herein, "Subsidiary" means, with respect
to a party, any corporation, firm, association, trust, partnership, joint
venture or other entity (an "Entity") as to which such party directly or
indirectly owns or has the power to vote, or otherwise control fifty percent
(50%) or more of the securities or other interests of any class of such Entity
which are entitled to vote for the election of directors or others performing
similar functions. Borrower's direct and
indirect Subsidiaries that have material operations are described on Schedule
2.2, and are referred to herein as "Material Subsidiaries." The term "Material
Subsidiaries" shall also include Subsidiaries of Borrower to whom any assets of
a Material Subsidiary have been transferred or sold or with whom a Material
Subsidiary has been merged to the extent that any such transferee or merged
entity after the date of this Agreement accounts for either at least 20% of
Borrower's consolidated revenues or at least 10% of Borrower's consolidated
profits.
2.3 Recording and Enforceability. No recording, filing,
registration, notice or other similar action is required to be taken by Borrower
or any Material Subsidiary to ensure the legality, validity, binding effect or
enforceability of this Agreement or the Note, or the other documents and
instruments executed hereunder as against Lender and all third persons provided
that, notwithstanding the forgoing, the Borrower makes no representation with
respect to any remedies that may be available to Lender under applicable law.
2.4 Litigation. There are no (i) Material actions, suits,
arbitrations, claims, investigations, legal or administrative proceedings
pending or, to the knowledge of Borrower and Material Subsidiaries, threatened
against Borrower or any Material Subsidiary, or its properties or assets,
whether at law or in equity, or before or by any federal, state, municipal or
other governmental department commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) governmental inquiries or audits
involving Borrower or any Material Subsidiary which would reasonably be expected
individually or in the aggregate to result in a Material Adverse Effect, or
(iii) judgments, decrees, injunctions or orders of any court, governmental
department, commission, agency, instrumentality or arbitrator against Borrower
or any Material Subsidiary which would reasonably be expected individually or in
the aggregate to result in a Material Adverse Effect.
2.5 Compliance with Law. Borrower's and its Material Subsidiaries'
respective operations, the conduct of their respective businesses as and where
such businesses are presently conducted, and Borrower's and its Material
Subsidiaries' respective assets and their uses comply, in all material respects,
with all applicable laws, rules and regulations. Borrower and its Material
Subsidiaries have obtained and maintain all permits and licenses which are
necessary for the conduct of their businesses, except where the failure to do so
would not have any Material Adverse Effect and would not subject Borrower or its
Material Subsidiaries to any Material penalty.
2.6 Authorization of this Agreement. The execution, delivery and
performance by Borrower of this Agreement and the
Note, have been duly authorized by all requisite corporate action, and each such
agreement constitutes the valid and binding obligation of Borrower, enforceable
in accordance with its terms, subject to the effect of bankruptcy and insolvency
laws and equitable principles. The execution, delivery and performance of this
Agreement and the Note, and the consummation of the transactions contemplated
hereby and thereby, and compliance with the provisions hereof and thereof by
Borrower, will not (a) violate any provision of law, statute, rule or
regulation, or any ruling, writ, injunction, order judgment or decree of any
court, administrative agency or other governmental body applicable to Borrower
or any Material Subsidiary or any of their properties or assets, or (b) conflict
with or result in any breach of any of the terms, conditions or provisions of,
or constitute (with due notice or lapse of time, or both) a default (or give
rise to any right of termination, cancellation or acceleration) under, or result
in the creation of any lien, security interest, charge or encumbrance upon any
of the properties or assets of Borrower or any Material Subsidiary under the
certificate of incorporation or by-laws of Borrower or such Material Subsidiary,
or any note, indenture, mortgage, lease agreement or other contract, agreement
or instrument to which Borrower or a Material Subsidiary is a party or by which
any of them or any of their property is bound or affected.
2.7 No Consent or Approval Required. Except as described in Schedule
2.7 to this Agreement, no consent, approval or authorization of, or declaration
to, or filing with, any governmental or regulatory authority or third person or
entity is required for the valid authorization, execution, delivery and
performance by Borrower or a Material Subsidiary, as the case may be, of this
Agreement or the Note.
2.8 Taxes. Borrower and each Material Subsidiary have filed all
Material federal, state and local tax returns which each of them is required by
law to file and have paid all Material taxes, assessments and other
governmental charges due in respect of such returns, except to the extent that
any such taxes, assessments or other governmental charges are being contested in
good faith and as to which any of Borrower or any such Material Subsidiary has
set aside on its books adequate reserves.
2.9 Financial Information. The financial information of Borrower and
its Subsidiaries provided to Lender for the year 2001 and the period from
January 1 to August 31, 2002 is accurate in all material respects, and there has
been no material adverse change in the financial results, financial condition or
business of Borrower and its Material Subsidiaries since August 31, 2002.
2.10 No Notices of Violations. Neither Borrower nor any Material
Subsidiary has received any notice with respect to Borrower or the Material
Subsidiaries, not heretofore complied with, from any federal, state or local
authority or any insurance, self regulatory body or inspection body to the
effect that any of its properties, facilities, equipment or business procedures
or practices fail to comply in any Material respect with any applicable law,
ordinance, regulation, building or zoning law, or any other requirements of any
such authority or body.
2.11 Disclosure. Neither this Agreement nor any other document,
certificate, instrument or statement furnished or made to Lender by or on behalf
of Borrower in connection with the transactions contemplated hereby contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not misleading.
There is no fact known to a Responsible Officer of Borrower that materially
adversely affects or, so far as the Responsible Officers of Borrower can now
foresee, will Materially adversely affect, the properties, business, prospects,
profits or condition (financial or otherwise) of Borrower or its Material
Subsidiaries or the ability of Borrower to perform its obligations under this
Agreement, which has not been set forth in this Agreement or in the other
documents, certificates or other material furnished to Lender in connection with
the transactions contemplated hereby.
SECTION 3. CLOSING AND CONDITIONS OF LENDING
3.1 Closing. The closing of the Loan and other transactions
contemplated hereby ("Closing") is taking place at the office of Lender at 0000
Xxxxxxxx Xxxx, Xxxxx Xxxxxxxxxxxx, on November 4, 2002, or such other date as is
mutually agreeable to the parties ("Closing Date"). At the Closing, subject to
Section 3.2 hereof, Lender shall deliver to Borrower the principal amount of the
Loan, less the amount for the payoff the Old Note Principal and the Old Note
Accrued Interest, as set forth in Section 1.1 hereof, by wire transfer of
immediately available funds to the account of Borrower, and Borrower shall
immediately use the proceeds as permitted under this Agreement.
3.2 Conditions of Lending. The obligation of Lender to make the Loan
on the Closing Date is subject to the fulfillment, to the satisfaction of Lender
and its counsel, on or before the Closing Date, of the following conditions
precedent:
(a) Borrower shall have delivered to Lender the following, all
of which shall be in form and substance satisfactory to Lender and shall be duly
completed and executed:
(i) The Note, dated the Closing Date, executed by
Borrower.
(ii) A certificate, dated the Closing Date, of the
President and Secretary of Borrower to the effect that (a) attached thereto is a
true and complete copy of the certificate of incorporation and the by-laws of
Borrower, in each case as in effect on the date thereof, (b) attached thereto is
a true and complete copy of all resolutions adopted by the Board of Directors of
Borrower authorizing the execution, delivery and performance of this Agreement
and the Note, and (c) set forth in such certificate is a list of the names and
the true signatures of the Responsible Officers of Borrower (d) the
representations and warranties set forth in Section 2 hereof are true and
correct on and as of the Closing Date, (e) no Event of Default (as defined in
Section 6.1 hereof), and no event which with the passage of time or the giving
of notice, or both, would become an Event of Default, has occurred and is
continuing as of the Closing Date, (f) no material adverse change has occurred
in Borrower's consolidated financial condition between the date of this
Agreement and the Closing Date, and (g) all conditions set forth in this Section
3.2 hereof have been fulfilled on or before the Closing Date.
(b) good standing certificates for Borrower from the States of
Delaware and Texas, dated within five business days before the Closing Date,
(c) Such additional documents, certificates and information as
Lender may require pursuant to the terms hereof or otherwise reasonably request.
(d) The representations and warranties set forth in Section 2
hereof shall be true and correct on and as of the Closing Date.
(e) No Event of Default, and no event which with the passage
of time or the giving of notice, or both, would become an Event of Default,
shall have occurred and be continuing.
(f) No act, omission or event shall have occurred that would
have a Material Adverse Effect on Borrower or any of its Material Subsidiaries.
(g) There shall not be outstanding any court order or
judgment, or any settlement agreement, which, in the opinion of Lender or its
counsel, prevents or restricts, in any material respect, the making of the Loan
or the operation of the Business as contemplated by this Agreement.
SECTION 4. BORROWER'S AFFIRMATIVE COVENANTS
Borrower covenants and agrees that from and after the date hereof and so
long as the Loan or any portion thereof is outstanding, or any obligation or
undertaking to Lender hereunder is not fully performed, Borrower shall comply
with, and shall cause its Material Subsidiaries to comply with, the following
covenants:
4.1 Furnishing Financial Statements. Borrower shall furnish to
Lender or cause to be furnished to Lender:
(a) Within one hundred (100) days after the end of each
calendar year, (i) consolidated financial statements of Borrower and its
Subsidiaries including a profit and loss statement, statement of changes in
stockholder's equity and statement of cash flows for such year and a balance
sheet as of the last day of such year, which statements shall be prepared in
accordance with generally accepted accounting principles consistently applied,
and accompanied by the audit report of Borrower's independent auditors (without
a "going concern" or like qualification or exception and without any
non-ordinary course qualification or exception as to the scope of such audit),
(ii) for its Material Subsidiaries audited financial statements including a
profit and loss statement, statement of changes in stockholder's equity, and
statement of cash flows for such year and balance sheet as of the last day of
such year, which statements shall be prepared in accordance with generally
accepted accounting principles consistently applied, and accompanied by the
audit report of Borrower's independent auditors (without a "going concern" or
like qualification or exception), together with, in the case of Material
Subsidiaries that are registered broker-dealers with the Securities and Exchange
Commission ("SEC") such firm's letter to management, report on internal
accounting control required by SEC Rule 17a-5, and computation of net capital
under SEC Rule 15c3, (iii) for each of the Borrower's other Material
Subsidiaries, unaudited financial statements including a profit and loss
statement, statement of changes in stockholder's equity, and statement of cash
flows for such year and balance sheet as of the last day of such year, which
statements shall be prepared in accordance with generally accepted accounting
principles consistently applied, excluding footnotes.
(b) Within fifty five (55) business days after the end of each
calendar quarter, (i) an unaudited profit and loss statement, statement of
changes in shareholder's equity, and statement of cash flows of Borrower and its
Material Subsidiaries for such quarter and balance sheet of Borrower and its
Material Subsidiaries as of the last day of such quarter, which statements shall
be prepared in accordance with generally accepted
accounting principles consistently applied, excluding footnotes and subject only
to normal year-end audit adjustments, and (ii) Borrower's internally generated
updated forecast model; and, within twenty-five (25) business days after the end
of each calendar quarter the Part II FOCUS Report for such quarter for each
Material Subsidiary that is a registered broker-dealer with the SEC and its
reasonable equivalent for any Material Subsidiary that is a registered
broker-dealer registered with a different agency or outside of the United
States.
(c) Accompanying the financial statements provided pursuant to
paragraphs (a) and (b) of this Section 4.1, a certificate of the chief executive
officer and chief financial officer of Borrower, stating (i) that a review of
the terms of this Agreement has been made by them with a view to determining
whether all of the obligations and covenants hereunder or in connection herewith
have been performed and fulfilled in all material respects (it being understood
that, with respect to obligations and covenants herein that are already
specifically qualified by the word "Material" and/or the phrase "Material
Adverse Effect", Borrower shall not be accorded the unintended benefit of having
compliance with such specific obligations and/or covenants further qualified by
the phrase "in all material respects" immediately preceding this parenthetical
phrase), and (ii) that such review showed that there existed during such period
and there exists as of the date of such certificate no Event of Default and no
act, condition or event which, with the passage of time or the giving of notice,
or both, would constitute an Event of Default, or if any such Event of Default
or act, condition or event existed, specifying the nature thereof, the period of
existence thereof and what action Borrower proposes to take, or has taken, with
respect thereto, which certificate shall be accompanied by all calculations
necessary to evidence compliance with the financial covenant contained herein.
(d) Within thirty (30) days after the end of each calendar
month, (i) an unaudited profit and loss statement of Borrower and its Material
Subsidiaries for such month and balance sheet of Borrower and its Material
Subsidiaries as of the last day of such month, which statements shall be
prepared in accordance with generally accepted accounting principles
consistently applied, excluding footnotes and subject only to normal year-end
audit adjustments, (ii) the Part I FOCUS Report for such month for each Material
Subsidiary that is a registered broker-dealer with the SEC and its reasonable
equivalent for any Material Subsidiary that is a registered broker-dealer
registered with a different agency or outside of the United States.
(e) Promptly after the receipt of same, copies of all
examination reports or other communications received from the NASD, SEC, any
state securities office, or any other regulatory
agency or federal, state or local authority concerning regulatory compliance
deficiencies of a Material Subsidiary that would be reasonably be expected to
have a Material Adverse Effect.
(f) Promptly upon request, such other material information
regarding the operations, business affairs and financial condition of Borrower
and/or any of its Subsidiaries as Lender may, from time to time, reasonably
request.
4.2 [This Section is Intentionally Omitted]
4.3 Capital Requirement. Borrower shall cause its SEC-Regulated
Material Subsidiaries to have and maintain, and the SEC-Regulated Material
Subsidiaries shall have and maintain, regulatory net capital (as defined under
SEC Rule 15c3-1) such that:
(a) for Material Subsidiaries utilizing the alternative
standard of calculating regulatory net capital requirements:
(i) there shall not be any calendar month-end when the
regulatory net capital of any such Material Subsidiary is below two percent (2%)
of its aggregate debit items (as defined under SEC Rule 15c3-3) and;
(ii) there shall not be two consecutive calendar
month-ends when the regulatory net capital of any such Material Subsidiary is
below five percent (5%) of its aggregate debit items (as defined under SEC Rule
15c3-3); or
(b) for Material Subsidiaries utilizing the aggregate
indebtedness standard of calculating regulatory net capital requirements:
(i) there shall not be any calendar month-end when such
aggregate net capital of any Material Subsidiary is below the minimum required
amount as specified in SEC Rule 15c3-1(a); and
(ii) there shall not be two consecutive calendar
month-ends when the aggregate indebtedness of any Material Subsidiary is greater
than 1,200 percent of its regulatory net capital.
4.4 Taxes. Borrower shall and shall cause its Material Subsidiaries
to pay when due all taxes, assessments, charges and levies imposed upon Borrower
or any of its Material
Subsidiaries or any of their properties or which Borrower or any of its Material
Subsidiaries is required to withhold and pay over, and provide evidence of such
payment to Lender if requested, except where such taxes, assessments, or charges
shall be contested in good faith by appropriate proceedings and where adequate
reserves therefor have been set aside on their books, and except to the extent
there would be no Material Adverse Effect.
4.5 Corporate Existence; Compliance with Laws. Borrower shall and
shall cause all of its Material Subsidiaries to preserve and keep in full force
and effect their corporate existence, and comply in all material respects with
any and all applicable NASD, SEC, other applicable self regulatory body, state
securities and other laws, regulations, rules or requirements of any federal,
state, applicable foreign, local or municipal government, agency or department,
except where such obligations to comply shall be contested in good faith by
appropriate proceedings or where non-compliance would not be reasonably expected
to result in a Material Adverse Effect. It is understood that this Section 4.5
shall not prohibit a Permitted Acquisition.
4.6 Inspection. If Lender has reasonable concerns related to this
Agreement then, Borrower shall and shall cause its Material Subsidiaries to
allow any Designated Representative of Lender to visit and inspect any of its
properties, to examine its books of account and other records and files, to make
copies thereof, and to discuss their affairs, business, finances and accounts
with Responsible Officers, all at such reasonable times and as often as Lender
may request, provided Lender notifies Borrower 3 business days prior to any such
visitation, inspection, examination or discussion and gives Borrower the
opportunity to be present, and provided further that such visitations,
inspections, examination and discussions shall not interfere with the reasonable
conduct of the Borrower's or its Subsidiaries businesses and so long as there is
no Event of Default that is then existing, there shall be no more than two such
visitations, examinations and inspections, collectively, per calendar year.
Lender's visitations, inspections, examinations and discussions (including those
under Section 4.17 hereof) are solely for the protection of Lender, and no
action or inaction of Lender shall constitute any representation by Lender that
Borrower is in compliance with the terms of this Agreement or that Lender
approves of Borrower's or any of its Subsidiaries' affairs, business, finances
or accounts. The cost to Lender of Lender's visitations, inspections,
examinations and discussions (including those under Section 4.17 hereof) that
are made prior to an Event of Default or the occurrence of an event which, with
the giving of notice or the passage of time, or both, would
constitute an Event of Default, shall be borne by Lender. Under no circumstances
shall Borrower or any Subsidiary be required to provide Lender with any
confidential information covered by an non-disclosure agreement with a third
party that would prohibit such disclosure (a) with respect to any potential
acquisition; provided that such restriction on disclosure to Lender in this
Section 4.6(a) may continue only so long as there is no acquisition agreement
entered into by Borrower that is binding as to the acquisition or (b) with
respect to a potential new vendor to replace the services or software then
provided by an affiliate of Lender to Borrower or its Subsidiaries.
4.7 [This Section is Intentionally Omitted].
4.8 Notice of Defaults. Borrower shall notify Lender, within ten
business days after any Responsible Officer of Borrower has notice thereof, of
the occurrence of any Event of Default and of the existence of any event which,
with the passage of time or the giving of notice, or both, would reasonably be
expected to constitute an Event of Default.
4.9 Insurance. The Borrower will, and will cause each of the
Subsidiaries to, maintain, with financially sound and reputable insurance
companies insurance in such amounts (with no materially greater risk retention)
and against such risks as are in all material respects customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations. The Borrower will furnish to the
Lender, upon request of the Lender, information in reasonable detail as to the
insurance so maintained.
4.10 Litigation. Borrower shall give prompt written notice to Lender
of any Material litigation proceedings or other Material legal process or order,
which notice shall include a description of management's proposed response
thereto, including any filing or commencement of any action, suit or proceeding
involving Borrower or any of its Material Subsidiaries by or before any court or
any federal, state, municipal or other governmental department, commission,
instrumentality, agency, self regulatory body or any levy of an attachment,
execution or other process against any property or assets of Borrower or any of
its Material Subsidiaries.
4.11 Adverse Change. Borrower will promptly notify Lender of the
occurrence of any Material adverse change affecting Borrower or any of its
Material Subsidiaries, or any Material litigation, arbitration, claim,
investigation or other legal proceeding affecting Borrower or any of its
Material Subsidiaries, which in Borrower's reasonable business judgment would be
likely to have an Material Adverse Effect.
SECTION 5. BORROWER'S NEGATIVE COVENANTS
Borrower covenants and agrees that from and after the date hereof and so
long as the Loan or any portion thereof is outstanding, or any obligation or
undertaking to Lender hereunder is not fully performed, none of Borrower nor its
Subsidiaries will, without the prior written consent of Lender (which shall not
be unreasonably withheld):
5.1 Dissolution or Merger. Wind-up, liquidate or dissolve its
affairs, convey, sell, lease or otherwise dispose of (whether in one transaction
or in a series of transactions) all or substantially all of its properties or
assets (whether now owned or hereafter acquired), except for (a) transactions
occurring solely among the Borrower and any of its Subsidiaries or between or
among its Subsidiaries that would not reasonably be expected to have a Material
Adverse Effect; (b) a Permitted Acquisition; (c) for grants of non-exclusive
licenses by Borrower or its Subsidiaries to third parties of software and other
intellectual property where such grant does not result in the sale of all right,
title and interest therein and would not reasonably be expected to have a
Material Adverse Effect; (d) leases of property in the ordinary course of
business that would not reasonably be expected to have a Material Adverse
Effect; and (e)for the sale of property or assets of an entity that is not a
Prohibited Subsidiary for fair market value, where the proceeds of such sale are
retained by the Borrower or the affected Subsidiary, and where such sale would
not reasonably be expected to result in a Material Adverse Effect.
5.2 Other Borrowings and Liens. Incur, create, assume or permit to
exist any Indebtedness or permit to exist any Lien on any of its properties or
assets (other than Permitted Encumbrances), whether now owned or hereafter
acquired, except (a) in the ordinary course of business consistent with past
practices; (b) in accordance with or pursuant to loan agreements, guaranties,
notes contracts or commitments for the purchase or lease or other acquisition of
property or services or borrowing or security arrangements and Liens in
existence as of the date of this Agreement (including extensions, refinancing
(including with third parties that were not the original lender) and renewals
thereof); (c) other Indebtedness of the Borrower or a Subsidiary of the greater
of $1,000,000 in any one year and/or an aggregate at any time outstanding of
150% of Borrower's net worth measured on a consolidated basis, provided,
however, that (i) at the time of incurrence of such Indebtedness, the Borrower
shall be in compliance with Section 4.3 on a pro forma basis giving effect to
the incurrence of such Indebtedness as if such Indebtedness were incurred on the
last day of the fiscal quarter of the Borrower most recently ended on or prior
to the date of such incurrence (ii) that the incurrence of such Indebtedness
would not otherwise
create an Event of Default and (iii) that such Indebtedness neither individually
nor in the aggregate would reasonably be expected to have a Material Adverse
Effect; (d) indebtedness of the Borrower to any Subsidiary and of any Subsidiary
to the Borrower or any other Subsidiary; or (e) operating loans made by
SEC-Regulated Material Subsidiaries of Borrower to its third party customers
that are made in the ordinary course of the SEC-Regulated Material
Subsidiaries' business and consistent with past practice, such as stock lending
activities.
5.3 Disposal of Assets. Sell, lease, transfer or otherwise dispose
of any part or any amount of its business or assets, real or personal, including
any accounts, contracts or contract rights, software or other proprietary
property, other than in the ordinary course of business consistent with past
practices, except: (a) for a Permitted Acquisition; (b) for grants of
non-exclusive licenses by Borrower or its Subsidiaries to third parties of
software and other intellectual property where such grant does not result in the
sale of all right, title and interest therein and would not reasonably be
expected to have a Material Adverse Effect; (c) leases of property in the
ordinary course of business that would not reasonably be expected to have a
Material Adverse Effect; and (d) for the sale of property or assets of an entity
that is not a Prohibited Subsidiary for fair market value, where the proceeds of
such sale are retained by the Borrower or the affected Subsidiary, and where
such sale would not reasonably be expected to result in a Material Adverse
Effect.
5.4 Discontinuance or Change of Business. Discontinue any
substantial part of its business or change the nature of its business in any
material respect (except for (a) such non-compliance as would not be reasonably
be expected to result in a Material Adverse Effect or (b) for a Permitted
Acquisition) or engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
5.5 Use of Proceeds. Directly or indirectly apply any part of the
proceeds of the Loan to any purpose other than the purpose expressly permitted
under this Agreement.
5.6 Distributions. Authorize or make any distributions, including
the declaration or payment of dividends, the return of capital to its
shareholder, the distribution, payment or delivery of property or cash to its
shareholders or the withdraw of equity capital from any of Borrower's
Subsidiaries, or the redemption, retirement, purchase or other acquisition,
directly or indirectly, of any shares of any class of its stock or any other
security now or hereafter outstanding,
or set aside funds for any such distribution, except as expressly permitted
under this Agreement and except (a) that the Borrower may declare and pay
dividends with respect to its capital stock payable solely in additional shares
of its common stock and (b) that the Borrower may make purchases, not exceeding
5% of outstanding capital stock of Borrower in any one year and not exceeding
two million dollars ($2,000,000) in any one year or eleven million dollars
($11,000,000) in the aggregate, pursuant to and in accordance with plans
approved by the Board of Directors of the Borrower to repurchase outstanding
equity interests of the Borrower under existing shareholder agreements and
provided further that no Event of Default is triggered by the purchases and that
the purchases, neither individually nor in the aggregate would reasonably be
expected to result in a Material Adverse Effect.
5.7 [This Section is Intentionally Omitted.]
5.8 Change in Management. Change or permit a change of more than the
one third (1/3) of the current members of the Executive Committee of Borrower
(as described in Schedule 5.8) except to the extent such change occurs as a
result of the death or incapacity of such member(s). It being understood that
the increase in the number of members of such Executive Committee shall not be,
in and of itself, a breach of this Section 5.8.
5.9 No Misrepresentations or Material Nondisclosure. Furnish Lender
with any certificate required hereunder or other documents filed with the NASD,
SEC, any state or foreign securities office, or any other regulatory agency or
self regulatory body that contains any untrue statement of a material fact or
that omits to state a material fact necessary in order to make it not misleading
in light of the circumstances under which it was furnished.
5.10 Corporate Documents. Amend, alter or repeal, or agree to amend,
alter or repeal, any provision of the certificate of incorporation or by-laws of
Borrower or any of its Material Subsidiaries or take any action that materially
adversely affects the ability of Borrower to perform its obligations under this
Agreement or the Note.
SECTION 6. DEFAULTS AND REMEDIES
6.1 Events of Default. Each of the following is an event of default
("Event of Default") hereunder and under the Note:
(a) Borrower fails to pay any principal or interest on any
Indebtedness under this Agreement or the Note or any fee or any other amount
payable under this Agreement or the Note, when
and as the same shall become due and payable, and such failure shall continue
unremedied for a period of fifteen (15) days.
(b) Borrower or any of its Subsidiaries fail to comply with or
perform as and when required any of the terms, conditions or covenants contained
in Sections 4.3, 4.6, 5.1, 5.2, 5.3, 5.4 or 5.6 hereof.
(c) Borrower or any of its Material Subsidiaries fail to comply with
or perform as and when required any of the terms, conditions or covenants
contained in this Agreement or the Note (except for a failure to pay any
Indebtedness to Lender or a failure to comply with the covenants described in
paragraph (c) above), and such failure continues for more than thirty (30) days
after the date Borrower has received written notice from the Lender of such
failure.
(d) Any financial statement or any representation or warranty of
Borrower or any of its Subsidiaries made herein or in any report, certificate or
other document furnished in connection with this Agreement proves to be false or
misleading in any material respect on and as of the date when made.
(e) Borrower or any of its Material Subsidiaries makes an assignment
for the benefit of its creditors or a composition with its creditors, or is
unable or admits in writing its inability to pay its debts as they mature, or
files a petition in bankruptcy, or commences a federal bankruptcy proceeding in
which an order for relief or such other court order or statutory provision which
authorizes the case to proceed is entered against it, or is adjudicated
insolvent or bankrupt, or petitions or applies to any tribunal for the
appointment of any custodian, receiver, liquidator or trustee of or for it or
any substantial part of its properties or assets, or commences any proceeding
relating to it under any bankruptcy, reorganization, arrangement, readjustment
of debt, receivership, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or there is commenced against
Borrower or any of its Subsidiaries any such proceeding which shall remain
undismissed for a period of ninety (90) days, or an order for relief, order,
judgment or decree approving the petition in any such proceeding is entered; or
Borrower or any of its Subsidiaries by any act or failure to act indicates its
consent to, approval of or acquiescence in any such proceeding or in the
appointment of any custodian, receiver, liquidator or trustee of or for it or
any substantial part of its properties or assets, or suffers any such
appointment to continue undischarged or unstayed for a period of ninety (90)
days; or Borrower or any of its Material Subsidiaries takes any corporate action
for the purpose of effecting any of the foregoing.
(f) Final judgments, decrees or orders for the payment of money
aggregating in excess of Two Hundred and Fifty Thousand Dollars ($250,000) are
entered against Borrower or any of its Material Subsidiaries and any one of such
judgments, decrees or orders remains unsatisfied for more than the longer of
thirty (30) days or as set forth by the applicable court or arbitrator, unless
the same has been appealed and a stay of the enforcement thereof has been
obtained.
(g) The suspension (other than a Permitted Acquisition) by Borrower
or any of its Material Subsidiaries (that accounts for at least twenty five
percent (25%) of the revenue or profits of Borrower, measured on a consolidated
basis) of all or any significant part of their business operations ("significant
part" for purposes of this clause means at least a part of business operations
responsible for producing at least 10% of the profits of the applicable party).
(h) There occurs a default or event of default by Borrower under its
certificate of incorporation or by-laws, and such default or event of default
continues unremedied beyond a 10 day period.
(i) The Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
note, loan agreement, financing agreement or other material contract to which
Borrower or any of its Material Subsidiaries is a party or a guarantor, upon
either the acceleration of any of the payments due or upon demand for payment
under any such notes, loan agreements, financing agreements or other material
contracts; except, with respect to (i) material contracts that are not notes,
loan agreements or financing agreements so long as (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Material Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with generally accepted accounting
principles and (c) such contest effectively suspends collection of the contested
obligation and the enforcement of any lien securing such obligation, (ii) such
non-compliance would not reasonably be expected to nor does result in a Material
Adverse Effect, and (iii) with respect to an existing dispute with NASDAQ
regarding the payment of fees that the Borrower and its Material Subsidiaries
believe in good faith that NASDAQ is not entitled to such non-compliance would
not reasonably be expected to nor does result in a Material Adverse Effect.
(j) An SEC-Regulated Material Subsidiary is required by the NASD to
reduce its business, or is restricted from expanding its business, pursuant to
Rule 3130 promulgated by the NASD, as amended from time to time and such
reduction or
restriction would reasonably be expected to have a Material Adverse Effect.
(k) The Material Subsidiary of Borrower that is a party to the
Remote Processing Agreement (i) is in material uncured breach of a payment or
confidentiality obligation under the Remote Processing Agreement or (ii) has
terminated the Remote Processing Agreement pursuant Section 8.2(b) of the Remote
Processing Agreement, as amended by the Amendment to the Remote Processing
Agreement effective as of August 1, 2002.
(l) A Change in Control occurs except for a Permitted Acquisition.
(m) Borrower or any Material Subsidiary shall admit in writing its
inability or fail generally to pay its debts as they become due.
6.2 Remedies. Upon or after the occurrence of any Event of Default at any
time, Lender may, by written notice to borrower, without demand of performance
and without other notice, do one or more of the following at its sole option:
(a) Increase the rate of interest on the Note to the lower of a rate
equal to the sum of the Applicable Rate on the date of the Event of Default plus
two percent (2%) per annum, or the highest aggregate rate of interest permitted
by law.
(b) Refuse to fund any additional borrowings by Borrower from
Lender, notwithstanding that Lender may have agreed to loan additional amounts
to Borrower before the occurrence of the Event of Default.
(c) Declare the unpaid principal of and interest on the Note and any
or all other obligations of Borrower to Lender hereunder, now existing or
hereafter created, to be immediately due and payable, whereupon the same shall
become due and payable without further presentation, demand, protest or notice
of any kind, all of which are expressly waived, anything herein or in the Note
to the contrary notwithstanding; and Lender may proceed to protect and enforce
Lender's rights either by suit in equity and/or by action at law, whether for
specific performance of any covenant or agreement contained in this Agreement,
the Note or in aid of the exercise of any power granted herein or therein, or
proceed to obtain judgment or any other relief whatsoever appropriate to the
action or proceeding, or proceed to enforce any other legal or equitable right
of a holder of the Note.
(d) Set off, in such order as Lender may determine, any or all of
the unpaid principal of and interest on the Note
and any or all other obligations of Borrower to Lender, now existing or
hereafter created, against any or all of the property of Borrower or its
Material Subsidiaries in Lender's possession at or subsequent to the Event of
Default regardless of the capacity in which Lender possesses such property.
(e) Have and exercise each and every right and remedy granted to it
for a default under the terms of this Agreement, the Note, and any other
document or instrument delivered to Lender pursuant hereto (and notwithstanding
that default under such document or instrument containing such right or remedy
shall not have occurred), together with every right or remedy now or hereafter
available to Lender at law or in equity.
6.3 Remedies Cumulative. All remedies of Lender provided herein or in the
Note, or any other document or instrument delivered to Lender pursuant hereto
(a) are cumulative and concurrent, (b) may be exercised independently,
successively or together against Borrower, its Material Subsidiaries or their
properties at the sole discretion of Lender, (c) shall not be exhausted by any
exercise thereof, but may be exercised as often as occasion therefor may occur,
and (d) shall not be construed to be waived or released by Lender's delay in
exercising, or failure to exercise, them or any of them at any time it may be
entitled to do so.
6.4 Expenses of Enforcement of Remedies. Borrower shall pay, within 30
days of demand by Lender, all reasonable expenses, including reasonable
attorneys' fees and disbursements and court costs, of enforcing any of Lender's
rights and remedies upon an Event of Default.
SECTION 7. LICENSE TO SOFTWARE
7.1 Grant of License. Borrower and its Software Subsidiaries (as defined
below) hereby grant to Lender and its affiliates (collectively, "Licensee") a
non-exclusive, perpetual (subject to the effect of Section 8.3) object code and
source code license to install, test and use (such "use" limited solely to
installing and testing the software but not otherwise for making any commercial
use or exploitation whatsoever of same for itself or any affiliate, it being
understood and agreed that (except to the extent Licensee is entitled to the
expanded license powers under Section 7.3) a prohibited use, among others of the
software would be for Licensee to examine such software for the purposes of
improving any Licensee products or services or creating any new products or
services) only for their own internal purposes, all software used in the
Business ("Software") that is owned by Borrower or any of its Subsidiaries
(collectively, such Software owning Subsidiaries are hereinafter referred to as
"Software Subsidiaries"). The list of such Software is described on Schedule
7.1. Software shall also include any related user documentation, a full source
language, commented statement for the Software, all maintenance documentation
for the same, and any and all names of the principal individuals who developed
the Software to the extent known to the Responsible Officers ("Source Code").
Under no circumstances shall Lender maintain more than one copy of the Software
except to the extent it obtains expanded license rights pursuant to Section 7.3.
7.2 Delivery and Storage. (a) Within sixty days after the date of this
Agreement Borrower and the Software Subsidiaries shall deliver the Software and
Source Code to Lender's attorneys (which shall be a firm of national reputation
reasonably acceptable to Borrower) to this Agreement to be held on behalf of
Licensee in a bank safety deposit box under the name and control of Licensee
("Secure Location") but which Licensee shall not access until the scope of the
license has increased as provided in the first sentence of Section 7.3. Lender's
attorneys have delivered a letter to Borrower, which letter shall in form and
substance contain the language in the attached Exhibit 7.2 and if not such
language then other similar language reasonably acceptable to Lender,
acknowledging the role of Lender's attorneys under this Section 7.2, prior to
Borrower's being required to deliver the Software and Source Code to Lender's
attorneys as set forth in this Section.
(b) Upon the increase scope of the license as provided in the first sentence of
Section 7.3 and without any other action by any party, Licensee, acting through
Lender's attorneys, may remove the Software and Source Code from the Secure
Location. In the case of an Event of Default under Section 6.1(a) that is not
also an Event of Default under Section 6.1(e) Licensee and Lender's attorneys
shall provide prior written notice of such removal with reasonably sufficient
time for Borrower to raise an objection prior to the release of the Software and
Source Code by the Lender's attorneys to the Lender. Licensee shall not be
required to provide such notice to Borrower in the Event of Default under
Section 6.1(e) regardless of whether it is also an Event of Default under
Section 6.1(a).
(c) Promptly after they are available Borrower and the Software Subsidiaries
shall provide such subsequent releases as are deployed by Borrower or the
Software Subsidiaries or are made available to their respective licensees for
storage in the Secure Location. Lender may engage a third party consulting firm
to review and evaluate the Software and Source Code for compliance with this
Agreement (at Lender's expense), which evaluation will be conducted pursuant to
a confidentiality agreement (in form and
substance reasonably acceptable to Borrower) between Borrower and such third
party consulting firm and at the offices of Lender's attorneys or such third
party consulting firm after which the Software and Source Code will be returned
to the Secure Location. Borrower and the Software Subsidiaries shall provide
reasonable cooperation and assistance in such process.
(d) The parties agree that the Software is "intellectual property" as defined in
11 U.S.C. 101 (35A). The parties intend that the licenses granted to Customer
pursuant this Agreement be entitled to the benefits of Section 365(n) of the
Bankruptcy Code. For the purposes of Section 365(n) the "embodiments" of the
Software are the Source Code, the object code of the Software, and the
Documentation of all versions of the Software. In addition, Borrower and the
Software Subsidiaries expressly consent to Licensee's assumption of this
Agreement pursuant to Bankruptcy Code Section 365(c) (1) (B).
(e) Lender shall be responsible for the breaches by Lender's agents of lender's
agents' confidentiality obligations as described in this Agreement.
7.3 Event of Default. Effective immediately and automatically upon the
occurrence of an Event of Default under solely Sections 6.1(a), 6.1(e) or 6.1(i)
hereunder, without any additional action by Borrower, the Software Subsidiaries,
Lender or any other person or entity, the scope of the license to the Software
granted to Licensee shall be increased to be a nonexclusive, worldwide,
perpetual, irrevocable, freely assignable, fully paid and royalty free object
code and source code license to install, test, use, make, sell, reproduce,
distribute, disclose, export, modify, create derivative works based on,
otherwise utilize and otherwise exploit the Software, including the right to
license or sublicense or otherwise make the Software available to others, in
whole or in part, with or without consideration. Licensee agrees that it will
not exploit this larger scope of use for one hundred and eighty (180) days or
such longer period as shall exist until Licensee has begun to incur Costs of
Exploitation ("License Cure Period") after the Event of Default. If during the
License Cure Period Borrower pays in full the amounts owed under this Agreement
and the Note, including the Principal and accrued interest then the scope of the
license shall revert as specified in Section 7.1 hereof. If Borrower does not
pay in full the amounts owed under this Agreement and the Note during the
License Cure Period, and Licensee begins to license the software to third
parties, then after Licensee has fully recovered the amounts owed under this
Agreement and the Note, including the Principal and accrued interest plus the
Costs of Exploitation from the Licensee's profits directly attributable Actual
and Recognizable License Revenues, then Lender agrees that it will pay to
Borrower five
percent (10%) of future Actual and Recognizable License Revenues. The "Costs of
Exploitation" shall include all of Licensee's reasonable costs and expenses to
exploit the Software, including: the costs to modify the Software reasonably
related to making the Software available to generate Actual and Recognizable
Revenue from non-affiliated third parties or to create, purchase, license or
modify any other software it reasonably deems necessary or advisable to exploit
the Software; marketing, administrative and legal costs to the extent directly
attributable to the exploitation of the Software; and sales or other commissions
to the extent directly attributable to the exploitation of the Software (in no
cases shall generalized allocated costs be deemed to be included). Licensee
shall, upon Borrower's reasonable request, provide Borrower with an accounting
of the Costs of Exploitation and Borrower may reasonably audit such accounting.
"Actual and Recognizable License Revenues" shall mean the following percentage
and types of revenue actually received by Licensee that Licensee can recognize
as revenue in accordance with GAAP as applied by Licensee and that is directly
attributable to (a) 100% of the license fees for a license of the Software (b)
80% of the yearly software maintenance fees (with such percentage rate to be
adjusted annually for the increase/decrease in the Consumer Price Index from the
date of license grant to the third party to which the maintenance applies; (c)
45% of the fees received by Licensee for making the Software available via
application service provider or service bureau services and (d) 100% of the fees
in excess of $125/hour (such hourly rate to be adjusted annually for the
increase/decrease in the Consumer Price Index from the date of this Agreement),
if any, for customizing the Software. Nothing in this Agreement shall be deemed
to require Licensee to exploit or license the Software to any third parties or
to continue doing so once Licensee has begun.
7.4 Cooperation. To the extent Borrower or the Software Subsidiaries
executing this Agreement are not the owners of the Software, Borrower and the
Software Subsidiaries shall cause the owners of the Software to execute any
reasonably necessary agreement containing the license grant and the obligations
of Borrower and the Software Subsidiaries under this Section 7.
SECTION 8. GENERAL PROVISIONS
8.1 Further Assurances. Borrower shall, upon Lender's request, execute and
deliver to Lender such further documents and statements and do or cause to be
done and pay the reasonable costs of such further acts or things as Lender, may
reasonably require to effect the transactions contemplated hereby (including any
fees and/or attorneys fees Lender is required to pay to its bankers or their
attorneys to obtain necessary consent or waiver to enter into this Agreement) or
to vest or confirm any right or
remedy herein granted or to be informed of Borrower's, or any of its Material
Subsidiaries' status and affairs.
8.2 Notices. All notices given under this Agreement shall be in writing
and delivered by personal or delivery service, by fax or by first class,
certified, United States mail, postage prepaid, return receipt requested,
addressed to the parties at the following addresses:
If to Borrower:
XXXXXX WORLDWIDE, INC.
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President
Fax Number: 000-000-0000
with a copy to the following:
XXXXXX WORLDWIDE, INC.
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Fax Number: 000-000-0000
If to Lender:
SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: President
Fax Number: 000-000-0000
with a copy to:
SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Fax Number: 000-000-0000
or to such other addresses as may be specified by like notice. All such notices
shall, when delivered, faxed or mailed, be effective when acknowledged,
transmitted with receipt of confirmation by fax or 5 days after being deposited
in the mails, respectively.
8.3 Term of Agreement. This Agreement shall terminate after payment in
full of the Note and the discharge of all obligations and undertakings of
Borrower to Lender arising hereunder. Effective(a) upon termination of this
Agreement and provided that Borrower has paid in full the amounts owed under
this Agreement and the Note or (b) if Lender is in breach of the Agreement with
respect to either (i) Lender's confidentiality obligations hereunder or (ii)
Lender's exercise of remedies pursuant to Section 6.2 or Article VII of this
Agreement as a result of an alleged Event of Default or otherwise, which breach
has damaged Borrower and is not cured within 30 days (or such longer time as may
be reasonable under the circumstances), and, in either case 8.3(a) or 8.3(b) if
Licensee has not properly begun to exploit the larger scope of use described in
and as permitted in Section 7.3 hereof, then the license granted in Section 7.1
hereof shall terminate; it being understood that the license granted in Section
7.1 if and as expanded by Section 7.3 shall survive the termination of the
Agreement provided that Licensee has properly begun to exploit the larger scope
of use described in and as permitted in Section 7.3 hereof. Effective as of the
termination date of such license, Lender shall immediately return all authorized
copies of the Software to Borrower, destroy all copies of the Software located
on any of Licensee's hardware or storage media and certify to Borrower in form
and substance satisfactory to Borrower that it has held and used the Software in
complete accordance with the terms and conditions of this Agreement. If the
Closing hereunder shall not have occurred on or before November 5 as a result of
factors outside the control of Borrower, then Borrower may terminate this
Agreement upon five (5) business days prior written notice to Lender; if the
Closing hereunder shall not have occurred on or before such date as a result of
factors not within the control of Lender, then Lender may terminate this
Agreement upon five (5) business days prior written notice to Borrower.
8.4 Stamp or Excise Tax. Should any stamp or excise tax be payable in
respect of this Agreement, the Note, and the other documents to be delivered
hereunder, or any modification hereof or thereof, Borrower shall pay the same
and shall hold Lender harmless from any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes, except to the
extent not permitted by applicable law or regulation.
8.5 No Waiver. Neither any failure or delay by Lender in exercising any
right, power or privilege hereunder or under the Note shall operate as a waiver
thereof; nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
No notice to or demand on Borrower in any case shall entitle
Borrower to any other or further notice or demand in similar or other
circumstances or shall constitute a waiver of Lender's right to any other or
further action in any circumstances without notice or demand.
8.6 Complete Agreement; Modifications. This Agreement together with the
Note and the non-disclosure agreement incorporated herein pursuant to Section
8.15 constitutes the full understanding among the parties hereto with respect to
the subject matter hereof, and no statements, written or oral, made prior to or
at the signing hereof shall vary or modify the terms hereof. No amendment,
modification or release from any provision hereof shall be effective unless in
writing and executed by the party to be charged therewith and shall be effective
only in the specific instance and for the specific purpose for which given.
8.7 Severability. If any provision of this Agreement or the Note is
prohibited or unenforceable in any jurisdiction, it shall be ineffective in such
jurisdiction only to the extent of such prohibition or unenforceability, and
such prohibition or unenforceability shall not invalidate the balance of such
provision to the extent it is not prohibited or unenforceable nor the remaining
provisions hereof, nor render unenforceable such provision in any other
jurisdiction.
8.8 Persons Bound. This Agreement shall inure to the benefit of and shall
be binding upon Borrower and Lender and their successors and permitted assigns.
Borrower may not assign any of its rights or obligations hereunder without the
prior written consent of Lender, except that Borrower may assign this Agreement
in its entirety to the successor entity in the event of a Permitted Acquisition.
Lender may not assign any of its rights or obligations hereunder without the
prior written consent of Borrower, except in accordance with Section 8.11
hereof.
8.9 Waiver and Release by Borrower. To the maximum extent permitted by
applicable laws, (a) with respect to the Note, Borrower waives protest and
notice of protest of the Note and notice and opportunity to be heard before
exercise by Lender of the remedies of self-help, set-off, or of other summary
procedures permitted by any applicable laws or by any agreement with Borrower,
and, except where required hereby or by any applicable laws, notice of any other
action taken by Lender.
8.10 Assignments by Lender. Notwithstanding any other provision of this
Agreement, Borrower understands that Lender may at any time assign this
Agreement, the Note and/or its rights under Section 7 hereof, in whole or in
part, to an affiliated corporation of Lender.
8.11 Consent to Jurisdiction, Service and Venue. For the purpose of any
suit, action or proceeding arising out of or relating to this Agreement or the
Note, Borrower irrevocably consents and submits to the jurisdiction and venue of
the federal, state and county courts located in the State of Pennsylvania, and
to service of process by first class United States mail, postage prepaid, return
receipt requested, to their addresses set forth in Section 8.2 hereof. Borrower
irrevocably waives any objection which they may now or hereinafter have to the
laying of the venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum and agrees that service of
process in accordance with the foregoing sentence shall be deemed in every
respect effective and valid personal service of process upon each of them. The
provisions of this Section 8.12 shall not limit or otherwise affect the right of
Lender to institute and conduct action in any other appropriate manner,
jurisdiction or court.
8.12 Descriptive Headings. The descriptive headings of the sections and
subsections hereof are for convenience of reference only and shall in no way
affect or be used to construe or interpret this Agreement.
8.13 Governing Law. This Agreement, the Note, and each document incident
thereto shall be governed by and construed in accordance with the substantive
laws of the State of Pennsylvania.
8.14 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument, but all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
8.15 Confidential Information. The existing non-disclosure agreement
between Lender and Borrower is hereby incorporated by reference, and Lender
shall treat as confidential, and shall disclose to persons within Lender and its
affiliated corporations solely on a "need to know" basis, any information
regarding, Borrower or any of its Subsidiaries delivered by Borrower to Lender
that is not publicly available. The provisions of this Section 8.16 shall in no
way limit the disclosure of information to any regulatory body or agency having
jurisdiction over Lender or its affiliated corporations or in any manner
required by law or legal process.
8.16 WAIVER OF JURY TRIAL. LENDER, BORROWER AND THE SOFTWARE SUBSIDIARIES
HEREBY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS
AGREEMENT, THE NOTE AND EACH DOCUMENT INCIDENT THERETO.
8.17 CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
have the meanings specified below:
(a) "Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
(b) "Change in Control" means (1) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of shares representing more than 40% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Borrower; (2)(i) the Borrower consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all of its
properties and assets (determined on a consolidated basis for the Borrower and
the Subsidiaries taken as a whole) to any Person, or (ii) any corporation
consolidates with or merges into the Borrower or a Subsidiary in a transaction
in which the outstanding voting stock of the Borrower is changed into or
exchanged for cash, securities or other property, other than a transaction
solely between the Borrower and a Subsidiary of the Borrower or a transaction
involving only stock consideration which is permitted under Section 6.04; (3)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by persons who were neither (i) nominated by the board
of directors of the Borrower or by the shareholders of Borrower as of the date
of this Agreement nor (ii) appointed by directors so nominated or by the
shareholders of Borrower as of the date of this Agreement; (4) Borrower enters
into any agreement with any person or entity which shall confer upon such person
or entity the right or authority to control or direct any of the Material
business or Material assets of Borrower or any of the Material Subsidiaries.
(c) "Designated Representative of Lender" means those
representatives of Lender whose responsibilities include obtaining information
about Borrower, its Subsidiaries as related to this Agreement and the Note,
provided that Lender shall use commercially reasonable efforts not to designate
as Designated Representatives of Lender, junior employees of Lender unfamiliar
with the business of Borrower.
(d) "GAAP" means generally accepted accounting principles in the
United States of America.
(e) "Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit.
(f) "including" means, whether capitalized or not, including but not
limited to.
(g) "Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind (excluding deferred revenue incurred in the ordinary course
of business), (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable and accrued expenses incurred in the ordinary course of business), (e)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor. The
Indebtedness of any Person shall not on any date include the obligation to make
earnout payments resulting from acquisitions, except to the extent such
obligation would be required to be reflected as a liability on a consolidated
balance sheet of such Person prepared as of such date in accordance with GAAP.
(h) "Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
(i) "Material Adverse Effect" means an event that either (i) has a
material adverse effect on the business, operations, properties, financial
condition or prospects of Borrower and its Subsidiaries taken as a whole, or
(ii) is an event which impairs or is reasonably likely to impair Borrower's
ability to pay its obligations when due hereunder or under the Note.
(j) "Material" means material to the Borrower and its Subsidiaries
taken as a whole, or material to the ability of Borrower to pay its obligations
when due hereunder or under the Note.
(k) "Permitted Encumbrances" means:
(i) liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 4.7;
(ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 4.7;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(v) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary; or
(v) judgment liens in respect of judgments that do not
constitute an Event of Default under Section 6.1(m);
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
(l) "Permitted Acquisition" means (a) any merger, acquisition,
consolidation or similar transaction in which the Borrower and/or its
Subsidiaries are the surviving or continuing corporation and no Change of
Control has occurred and (i) such resulting entity shall execute and deliver to
the Lender an agreement ratifying and assuming the due and punctual payment of
the amounts owing under this Agreement and the Note, to the extent such
ratification and assumption does not otherwise occur by operation of law,
(ii) at the time of such merger, acquisition, consolidation or similar
transaction and immediately after giving effect thereto no default or Event of
Default exists and (iii) after giving effect to such merger, acquisition,
consolidation or similar transaction the surviving company, on a consolidated
basis with all of its subsidiaries and parent and sister companies, would be
permitted to incur at least $1 of additional indebtedness under the terms of
Section 5.2 and would have at least as much net revenue, net profits, net worth,
interest expense coverage ratio and regulated capital (as defined for SEC
purposes) as Borrower did prior to such merger, acquisition, consolidation or
similar transaction (b) any merger, acquisition, consolidation or similar
transaction in which the corporation which results from such transaction is
engaged principally the financial services business and (i) such resulting
entity shall execute and deliver to the Lender an agreement ratifying and
assuming the due and punctual payment of the amounts owing under this Agreement
and the Note, to the extent such ratification and assumption does not otherwise
occur by operation of law, (ii) at the time of such merger, acquisition,
consolidation or similar transaction and immediately after giving effect thereto
no default or Event of Default exists and (iii) after giving effect to such
merger, acquisition, consolidation or similar transaction the surviving company,
on a consolidated basis with all of its subsidiaries and parent and sister
companies, would be permitted to incur at least $1 of additional indebtedness
under the terms of Section 5.2 and would have at least as much net revenue, net
profits, net worth,
interest expense coverage ratio and regulated capital (as defined for SEC
purposes) as Borrower did prior to such merger, acquisition, consolidation or
similar transaction; or (c) any merger, consolidation, acquisition, disposition,
consolidation or other transaction involving a Subsidiary that is not a
Prohibited Subsidiary: (i) so long as the net proceeds from any assets or
property disposed of are at fair market value, (ii) are paid to and/or received
by the Borrower and/or the applicable Subsidiary or are used to reduce amounts
outstanding under this Agreement (iii) and the transaction would not reasonably
be expected to result in a Material Adverse Effect.
(m) "Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
governmental authority or other entity.
(n) "Prohibited Subsidiary" means any of the following: (i) Xxxxxx
Financial Services, Inc., and/or (ii) any Subsidiary of Borrower to whom in any
year more than five percent (5%) of the assets of Xxxxxx Financial Services,
Inc. have been transferred or sold or with whom Xxxxxx Financial Services, Inc.
has been merged it being understood that if in any year more than five percent
(5%) in the aggregate of the assets of Xxxxxx Financial Services, Inc. have been
transferred or sold to two or more Subsidiaries of Borrower, then each such
Subsidiary receiving such assets of Xxxxxx Financial Services, Inc. shall be
deemed a "Prohibited Subsidiary."
(o) "Responsible Officer" means the President, Executive Vice
President, General Counsel, and Chief Financial Officer of the Borrower and to
the extent not the same persons, the members of the Executive Committee of
Borrower.
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXXXX WORLDWIDE, INC. (Borrower)
By: /s/ Xxxxxx X. Son Attest: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------- ----------------------------
Name: Xxxxxx X. Son Name:
Title: President Title: EVP
SUNGARD DATA SYSTEM INC. (Lender)
By: /s/ Xxxxxx Xxxxxxxx Attest: /s/ Xxxx X. Xxxx
--------------------------------- ----------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxx X. Xxxx
Title: Executive Vice President Title: General Counsel, SunGard
Trading Systems BRASS
division
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to
be executed by their duly authorized officers as of the date first above
written.
XXXXXX WORLDWIDE, INC. (Borrower)
By: /s/ Xxxxxx X. Son Attest: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------- ----------------------------
Name: Xxxxxx X. Son Name: Xxxxxx X. Xxxxxxxxxxx
Title: President Title: EVP/Secretary
SUNGARD DATA SYSTEMS INC. (Lender)
By: ________________________________ Attest: ____________________________
Name: Name:
Title: Title:
EXHIBIT A
PROMISSORY NOTE
Principal: $6,800,000 Date: November 4, 2002
FOR VALUE RECEIVED, and intending to be legally bound, Xxxxxx Worldwide,
Inc., a Delaware corporation (hereinafter referred to as "Borrower"), whose
headquarters is located at 0000 Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, hereby
promises to pay to the order of SunGard Data Systems Inc., a Delaware
corporation ("Lender"), at 0000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000
(Attention: Chief Financial Officer), the principal amount of Six Million
Dollars ($6,800,000) on the following terms and conditions:
1. This Note. As used herein, "Note" refers to this Promissory Note and to
any Note or Notes executed and delivered by Borrower in exchange or replacement
hereof pursuant to this Section 1. Upon receipt by Borrower of (a) evidence
satisfactory to Borrower of the loss, theft, destruction or mutilation of this
Note, (b) in case of loss, theft or destruction, indemnity satisfactory to
Borrower, (c) in case of mutilation, surrender and cancellation of this Note,
and (d) reimbursement of all of Borrower's reasonable expenses incidental
thereto, Borrower shall make and deliver a new Note of like tenor in lieu of
this Note.
2. Loan Agreement. This Note is being executed and delivered pursuant to a
Loan Agreement dated as of October 31, 2002 by and among Borrower and Lender
("Loan Agreement").
3. Interest, Principal and Maturity Date. (a) Interest on the outstanding
principal balance of the Note ("Principal Balance") shall be calculated monthly
at the end of each calendar month as follows: (i) if there is no Excess Net
Capital (as defined below) at the prior month's month-end, then the entire
Principal Balance shall bear interest at the Applicable Rate (as defined below);
(ii) if there is Excess Net Capital at the prior month's month-end equal to or
greater than the Principal Balance, then the entire Principal Balance shall bear
interest at the Discounted Rate; and (iii) if there is Excess Net Capital at the
prior month's month-end less than the Principal Balance, then the portion of the
Principal Balance equal to such Excess Net Capital shall bear interest at the
Discounted Rate and the remaining Principal Balance shall bear interest at the
Applicable Rate. As used in this Agreement: "Applicable Rate" means the sum of
the Prime Rate (as defined below) plus two percent (2%) per annum, compounded
monthly; "Discounted Rate" means the Prime Rate, compounded monthly; "Prime
Rate" means the rate of interest per annum publicly announced from time to time
by XX Xxxxxx Xxxxx Bank as its prime rate in effect at its principal office in
New
York City; and "Excess Net Capital" means the aggregate net capital (as defined
for SEC regulatory purposes) of the Material Subsidiaries that are registered
broker-dealers with the SEC ("SEC-Regulated Material Subsidiaries") in excess of
five percent (5%) of combined aggregate debit items of the SEC-Regulated
Material Subsidiaries. Accrued interest on the outstanding principal balance of
the Note shall be due and payable monthly in arrears on the second day of each
calendar month commencing December 2, 2002.
(b) The outstanding principal balance of the Note shall be payable
by Borrower in 65 equal monthly payments of $103,031 each on the second day of
each calendar month commencing December 2, 2002 and continuing until April 2,
2008, and a final payment of the entire remaining principal balance on May 2,
2008.
4. Prepayment. Borrower may prepay, without penalty or premium, all or any
portion of the outstanding principal balance of the Note at any time and from
time to time, provided that each such prepayment is accompanied by all interest
accrued thereon. Principal prepayments shall be applied to the principal
payments due hereunder in reverse order of when due.
5. Payments and Computations. Borrower shall make each payment hereunder
not later than 1:00 P.M., Philadelphia time, on the day when due in lawful money
of the United States, in immediately available funds at the office of Lender at
0000 Xxxxxxxx Xxxx, Xxxxx Xxxxxxxxxxxx 00000. All computations of interest
hereunder shall be made by Lender based upon the actual number of days elapsed
in a year of 365 days. Should any payment of principal or interest become due
and payable on a Saturday, Sunday or legal holiday under the laws of the State
of Pennsylvania, then the payment date thereof shall be extended to the next
succeeding business day, and such extension of time shall in such case be
included in computing such interest. Any payments made on the Note shall be
applied, first, to the payment of accrued and unpaid interest on the Note then
due as well as any accrued and unpaid interest payable on the principal amount
of the Note being paid, and, second, to the reduction of the outstanding
principal balance of the Note. Attached as Exhibit B to the Agreement are the
wiring instructions for Borrower to use in wiring payments to Lender due
hereunder.
6. In case an Event of Default shall occur and be continuing, the
principal of accrued interest on this note may become or be declared to be due
and payable in the manner and with the effect provided in the Loan Agreement.
7. Remedies Cumulative. All remedies of Lender provided herein or in the
Loan Agreement or any other document or
instrument delivered to Lender pursuant thereto (a) are cumulative and
concurrent, (b) may be exercised independently, successively or together against
Borrower or its properties at the sole discretion of Lender, (c) shall not be
exhausted by any exercise thereof, but may be exercised as often as occasion
therefor may occur, and (d) shall not be construed to be waived or released by
Lender's delay in exercising, or failure to exercise, them or any of them at any
time it may be entitled to do so.
8. Expenses of Enforcement of Remedies. Borrower shall pay, upon demand,
all reasonable expenses, including reasonable attorneys' fees and disbursements
and court costs, of enforcing any of Lender's rights and remedies upon an Event
of Default.
9. Notices. All notices given under this Note shall be given in the manner
and as described in the Loan Agreement.
10. No Waiver. Neither any failure or delay by Lender in exercising any
right, power or privilege hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No notice to or
demand on Borrower in any case shall entitle Borrower to any other or further
notice or demand in similar or other circumstances or shall constitute a waiver
of Lender's right to any other or further action in any circumstances without
notice or demand.
11. Severability. If any provision of this Note is prohibited or
unenforceable in any jurisdiction, it shall be ineffective in such jurisdiction
only to the extent of such prohibition or unenforceability, and such prohibition
or unenforceability shall not invalidate the balance of such provision to the
extent it is not prohibited or unenforceable nor the remaining provisions
hereof, nor render unenforceable such provision in any other jurisdiction.
12. Persons Bound. This Note shall be binding upon Borrower and its
successors and assigns, and shall enure to the benefit of Lender and its
successors and assigns.
13. Waiver and Release by Borrower. To the maximum extent permitted by
applicable laws, (a) Borrower hereby waives, diligence, presentment, demand,
protest and notice of protest of this Note and notice and opportunity to be
heard before exercise by Lender of the remedies of self-help, set-off, or of
other summary procedures permitted by any applicable laws or by any agreement
with Borrower, and, except where required hereby or by any applicable laws,
notice of any other action taken by Lender;
and (b) Borrower waives and releases all errors, defects and imperfections in
any proceedings instituted by Lender under the terms of this Note.
14. Assignments by Lender. Lender may at any time assign this Note, in
whole or in part, to an affiliated corporation of Lender.
15. Consent to Jurisdiction, Service and Venue. For the purpose of any
suit, action or proceeding arising out of or relating to this Note, Borrower
irrevocably consents and submits to the jurisdiction and venue of the federal,
state and county courts located in the State of Pennsylvania, and to service of
process by first class United States mail, postage prepaid, return receipt
requested, to its address set forth in the Loan Agreement. Borrower irrevocably
waives any objection which they may now or hereinafter have to the laying of the
venue of any such suit, action or proceeding brought in any such court and any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum and agrees that service of process in
accordance with the foregoing sentence shall be deemed in every respect
effective and valid personal service of process upon each of them. The
provisions of this Section 16 shall not limit or otherwise affect the right of
Lender to institute and conduct action in any other appropriate manner,
jurisdiction or court.
16. Descriptive Headings. The descriptive headings of the sections and
subsections hereof are for convenience of reference only and shall in no way
affect or be used to construe or interpret this Note. Terms defined in the Loan
Agreement are used herein with the same meaning.
17. Governing Law. THIS NOTE HAS BEEN EXECUTED UNDER, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS), EXCEPT
AS SUCH LAWS ARE PREEMPTED BY APPLICABLE FEDERAL LAWS.
18. WAIVER OF JURY TRIAL. LENDER AND BORROWER HEREBY WAIVE ALL RIGHT TO A
TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS NOTE.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by its duly
authorized officers as of the date first above written.
BORROWER:
Xxxxxx Worldwide, Inc.,
a Delaware Corporation
By:____________________________
Name:__________________________
Title:_________________________
Exhibit B
Wiring Instructions
Upon completion of the various necessary agreements, Lender is hereby authorized
to wire the net proceeds of the new loan to Xxxxxx Worldwide, Inc. directly to
our Xxxxxx Financial Services, Inc. subsidiary in accordance with the following
wire instructions:
Chase Manhattan, NY
ABA 000000000
FAO Xxxxxx Financial Services, Inc.
AC# 066600030
FCT: Account number 105000013
Exhibit 7.2
ESCROW AGREEMENT
The undersigned, on this______ day_______________, _____, intending to be
legally bound hereby, appoints the law firm of Blank Rome Xxxxxxx & XxXxxxxx
LLP, Xxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 to be held on behalf of SunGard
Data System Inc. ("SunGard") pursuant to the terms and conditions stated in this
agreement.
1. Creation of Escrow. The undersigned will deliver to Blank:
(a) Software and Source Code as defined in the Loan Agreement
between undersigned dated as of this date ("Escrow Documents"). Blank will
promptly acknowledge receipt of the Escrow Documents to undersigned at the
addresses below.
(b) Blank will place Escrow Documents in a bank safety deposit box
on behalf of SunGard, provided that SunGard shall not have access to the Escrow
Document, except as set forth in paragraph 2 of this agreement.
2. Termination of Escrow. The Escrow Documents are to be released and this
Escrow Agreement shall terminate (except as set forth below) upon the occurrence
of the following events:
(a) Notice from SunGard that Xxxxxx Worldwide, Inc. ("Xxxxxx")
has defaulted under the Loan Agreement, the basis for the default and that
SunGard is entitled to have the Escrow Documents released to it (the "SunGard
Notice");
(i) If SunGard relies solely upon section 6.1(a) of the Loan
Agreement in requesting the release of the Escrow Documents, Blank will provide
written notice to Xxxxxx of the SunGard Notice and upon the expiration of 10
days from the date of Xxxxxx'x receipt of such notice, assuming there is no
objection by Xxxxxx and no recourse to an interpleader action below, will
release the Escrow Documents;
(ii) If SunGard does not rely solely upon section 6.1(a) of
the Loan Agreement, but rather 6.1(e) of the Loan Agreement, the Escrow
Documents shall be released immediately to SunGard; or
(b) Joint instruction from undersigned.
3. Notices. Unless otherwise specified herein, any notice provided to
Blank shall be sufficient only if hand delivered, sent by registered or
certified mail, or sent by reliable overnight courier, and actually received by
Blank at its offices.
4. Obligations of Blank. Blank's obligations hereunder shall be as a
depository only and Blank shall be able to rely conclusively and shall not be
responsible or liable in any manner whatsoever for the sufficiency, correctness,
genuineness or validity of any document,
1
Exhibit 7.2
notice, written instruction, or other instrument furnished to them or deposited
with them, or for the form of execution of any thereof, or for the identity or
authority of any person depositing or furnishing same. In the event any question
arises concerning Blank's duties hereunder, Blank may reasonably and in good
faith consult its counsel and it may rely on the written opinion of such
counsel, which counsel may include members of its firm. Blank will only make the
Escrow Documents available to undersigned, a successor escrow agent, or to some
other person pursuant to any interpleader action, pursuant to the terms of this
agreement.
5. Indemnification. The undersigned, jointly and severally, agree to
indemnify and hold harmless Blank and its partners, employees and
representatives against all losses, claims, liabilities, expenses (including
attorneys' fees and costs of investigation) and damages arising from any error
or judgment or for any act done or omitted by Blank in good faith, or for any
mistake of fact or law, in each case so long as there is no willful misconduct
or gross negligence involved, and Blank is released and exculpated from any
liability hereunder except for its own willful misconduct or gross negligence.
6. Additional Provisions.
(a) No rights are intended to be granted to any third party
beneficiary.
(b) The undersigned agrees that by Blank fulfilling its duties
hereunder or if, as a consequence of fulfilling its duties hereunder, any member
or employee of Blank becomes a party or witness in any proceeding, that fact
will not disqualify Blank or any member thereof from serving as attorney for any
of its clients in that or any other proceeding or matter.
(c) Blank will have the right to resign at any time upon turning
over to the undersigned jointly all of the Escrow Documents then under its
control and, thereafter, it will have no further obligations and/or liabilities
with respect solely to maintenance of the Escrow Documents under this agreement.
If any of undersigned request Blank to commence an interpleader action, Blank
will do so upon receipt of $10,000 as a deposit to reimburse it for expenses.
Payment of the $10,000 will not limit undersigned's liability to Blank if such
amount is not sufficient. If one of the undersigned is the prevailing party in
the interpleader action, the other undersigned party shall be responsible for
paying the costs of such action.
(d) This agreement will terminate when all of the Escrow Documents
will have been properly distributed in accordance with this agreement, and on
termination hereof, the undersigned (jointly and severally) hereby release Blank
from any and all obligations and liabilities arising out of its performance
under this agreement. Paragraph 5, however, shall survive termination of this
agreement.
2
Exhibit 7.2
(e) The provisions of this agreement will be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
legal representatives. This agreement constitutes the entire agreement between
the undersigned and Blank. No rights herein may be assigned by the undersigned
without the prior written consent of Blank and no modification hereof will be
binding or enforceable against Blank unless in writing and signed by Blank. No
rights herein may be assigned by Blank without prior written consent of the
undersigned and no modification hereof will be binding or enforceable against
the undersigned unless in writing and signed by the undersigned. This agreement
will be governed and construed in accordance to the laws of the Commonwealth of
Pennsylvania, applicable to agreements made, delivered and to be performed
entirely in such Commonwealth. No delay in exercising any rights, power or
remedy hereunder will operate as a waiver thereof; nor will any single or
partial exercise of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right.
(f) This agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original.
(g) The undersigned irrevocably consents to the exclusive
jurisdiction of the Courts of Common Pleas of Philadelphia, Pennsylvania and/or
the United States District Court for the Eastern District of Pennsylvania in any
action or proceeding pursuant to this agreement and agrees to service of process
by first class, certified mail, return receipt requested, to the address set
forth herein.
(h) Representation of SunGard. Nothing herein shall disqualify Blank
from representing SunGard in connection with the making or performance of this
Escrow agreement or in any connection with any disputes arising under or as a
result of either this Escrow Agreement or any other matters involving Xxxxxx.
(i) Fees and Expenses of Escrow Holder. In addition to Blank's right
to be indemnified hereunder, SunGard will pay all of Blank's out-of-pocket
administrative fees, costs and expenses in connection with this agreement. Blank
agrees to act hereunder without separate compensation therefor.
(j) Entire Understanding: No Oral Agreements. This Escrow Agreement
sets forth the entire understanding among the parties with respect to the
subject matter hereof, and supersedes all prior and contemporaneous oral and
written, express or implied, communications, agreements and understandings with
respect to the subject matter thereof. No amendment, modification, supplement,
or termination of this Escrow Agreement shall bind or be enforceable against any
party unless set forth in a written document signed by all of the parties
hereto.
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Exhibit 7.2
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement
to be executed by their respective duly authorized representatives on the date
first above written.
SUNGARD DATA SYSTEM INC. XXXXXX WORLDWIDE, INC.
By:___________________________________ By:___________________________________
Address:______________________________ Address:______________________________
______________________________ ______________________________
______________________________ ______________________________
Received and Accepted
BLANK ROME XXXXXXX & XXXXXXXX LLP
By:___________________________________
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