571746.5
[Execution]
$50,000,000
TERM CREDIT AGREEMENT
Dated as of October 26, 1999
among
▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC.,
as Borrower,
THE LENDERS NAMED HEREIN,
BANK ONE, NA,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Co-Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Co-Documentation Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS 1
ARTICLE II
THE CREDITS 12
2.1. Term Loan 12
2.2. Types of Advances 12
2.3. Minimum Amount of Each Advance 12
2.4. Mandatory Principal Payment 12
2.5. Optional Principal Payments 13
2.6. Permanent Reduction 13
2.7. Upfront Fee 13
2.8. Conversion and Continuation of Outstanding Advances 13
2.9. Changes in Interest Rate, etc 13
2.10. Rates Applicable After Default 14
2.11. Method of Payment 14
2.12. Telephonic Notices 14
2.13. Interest Payment Dates; Interest and Fee Basis 14
2.14. Notification of Interest Rates and Prepayments 15
2.15. Lending Installations 15
2.16. Non-Receipt of Funds by the Agent 15
2.17. Noteless Agreement; Evidence of Indebtedness 15
2.18. Extension of Maturity Date 16
2.19. Replacement of Lender 17
ARTICLE III
YIELD PROTECTION; TAXES 17
3.1. Yield Protection 17
3.2. Changes in Capital Adequacy Regulations 18
3.3. Availability of Types of Advances 18
3.4. Funding Indemnification 19
3.5. Taxes 19
3.6. Lender Statements; Survival of Indemnity 20
ARTICLE IV
CONDITIONS PRECEDENT 21
4.1. The Loans 21
ARTICLE V
REPRESENTATIONS AND WARRANTIES 22
5.1. Corporate Existence; Conduct of Business 22
5.2. Authorization and Validity 23
5.3. Compliance with Laws and Contracts 23
5.4. Governmental Consents 24
5.5. Financial Statements 24
5.6. Material Adverse Change 24
5.7. Taxes 24
5.8. Litigation and Contingent Obligations 25
5.9. Subsidiaries 25
5.10. ERISA 25
5.11. Defaults 25
5.12. Federal Reserve Regulations 25
5.13. Investment Company; Public Utility Holding Company 25
5.14. Ownership of Properties 25
5.15. Material Agreements 26
5.16. Year 2000 26
5.17. Insurance 26
5.18. Disclosure 26
ARTICLE VI
COVENANTS 26
6.1. Financial Reporting 27
6.2. Use of Proceeds 28
6.3. Notice of Default 28
6.4. Conduct of Business 28
6.5. Taxes 28
6.6. Insurance 28
6.7. Compliance with Laws 29
6.8. Maintenance of Properties 29
6.9. Inspection 29
6.10. Year 2000 29
6.11. Ownership of Subsidiaries 29
6.12. Indebtedness 29
6.13. Merger 30
6.14. Sale of Assets 30
6.15. Investments and Acquisitions 30
6.16. Contingent Obligations 31
6.17. Liens 31
6.18. Affiliates 32
6.19. Change in Corporate Structure; Fiscal Year 32
6.20. Inconsistent Agreements 32
6.21. Financial Covenants. 32
6.21.1 Minimum Tangible Net Worth 32
6.21.2 Double Leverage Ratio 32
6.21.3 RJA Net Capital 32
6.21.4 RJFS Net Capital 33
6.21.5 RJA/RJFS Excess Net Capital 33
ARTICLE VII
DEFAULTS 33
7.1. Representation or Warranty 33
7.2. Non-Payment 33
7.3. Specific Defaults 33
7.4. Other Defaults 33
7.5. Cross-Default 33
7.6. Insolvency; Voluntary Proceedings 33
7.7. Involuntary Proceedings 34
7.8. Condemnation 34
7.9. Judgments 34
7.10. Change in Control 34
7.11. SIPC 34
7.12. Broker-Dealer License 34
7.13. ERISA 35
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 35
8.1. Acceleration 35
8.2. Amendments 35
8.3. Preservation of Rights 36
ARTICLE IX
GENERAL PROVISIONS 36
9.1. Survival of Representations 36
9.2. Governmental Regulation 36
9.3. Headings 36
9.4. Entire Agreement 36
9.5. Several Obligations; Benefits of this Agreement 36
9.6. Expenses; Indemnification 36
9.7. Numbers of Documents 37
9.8. Accounting 37
9.9. Severability of Provisions 37
9.10. Nonliability of Lenders 37
9.11. Confidentiality 38
9.12. Nonreliance 38
9.13. Disclosure 38
9.14. CHOICE OF LAW 38
9.15. CONSENT TO JURISDICTION 38
9.16. WAIVER OF JURY TRIAL 38
ARTICLE X
THE AGENT 39
10.1. Appointment; Nature of Relationship 39
10.2. Powers 39
10.3. General Immunity 39
10.4. No Responsibility for Loans, Recitals, etc 39
10.5. Action on Instructions of Lenders 40
10.6. Employment of Agents and Counsel 40
10.7. Reliance on Documents; Counsel 40
10.8. Agent's Reimbursement and Indemnification 40
10.9. Notice of Default 41
10.10. Rights as a Lender 41
10.11. Lender Credit Decision 41
10.12. Successor Agent 41
10.13. Agent's Fee 42
10.14. Delegation to Affiliates 42
10.15. Syndication Agent, Co-Documentation Agents, etc 42
ARTICLE XI
SETOFF; RATABLE PAYMENTS 43
11.1. Setoff 43
11.2. Ratable Payments 43
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 43
12.1. Successors and Assigns 43
12.2. Participations. 44
12.2.1 Permitted Participants; Effect 44
12.2.2 Voting Rights 44
12.2.3 Benefit of Setoff 44
12.3. Assignments. 44
12.3.1 Permitted Assignments 44
12.3.2 Effect; Effective Date 45
12.4. Dissemination of Information 45
12.5. Tax Treatment 45
ARTICLE XIII
NOTICES 45
13.1. Notices 45
13.2. Change of Address 46
EXHIBITS
Exhibit A Compliance Certificate
Exhibit B Assignment Agreement
SCHEDULES
Schedule I - Material Subsidiaries
Schedule II - Existing Indebtedness
TERM CREDIT AGREEMENT
This TERM CREDIT AGREEMENT, dated as of October 26, 1999, is
among ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC., a Florida corporation, the
Lenders (as hereinafter defined), BANK ONE, NA, a national banking
association having its headquarters in Chicago, Illinois,
individually and as administrative agent (the "Agent"), CITIBANK,
N.A., individually and as syndication agent (the "Syndication
Agent"), BANK OF AMERICA, NATIONAL ASSOCIATION, individually and
as co-documentation agent ("Co-Documentation Agent") and THE CHASE
MANHATTAN BANK, individually and as co-documentation agent ("Co-
Documentation Agent").
R E C I T A L S:
A. The Borrower has requested the Lenders to provide a term
credit facility to it in the aggregate principal amount of
$50,000,000, the proceeds of which the Borrower will use for
general corporate purposes, including without limitation the
refinancing of certain existing indebtedness, friendly
acquisitions, share repurchases and asset purchases; and
B. The Lenders are willing to extend such credit facility
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders and the Agent hereby agree
as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement,
by which the Borrower or any of its Subsidiaries (a) acquires any
going business or all or substantially all of the assets of any
firm, corporation or limited liability company, or division or
line of business thereof, whether through purchase of assets,
merger or otherwise, or (b) directly or indirectly acquires (in
one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority
(by percentage or voting power) of the outstanding ownership
interests of a partnership or limited liability company.
"Advance" means a portion of the outstanding Term Loan the
interest rate for which is of the same Type and, in the case of
Eurodollar Advances, for the same Interest Period.
"Advisers Act" means the Investment Advisers Act of 1940, as
amended.
"Affected Lender" is defined in Section 2.19.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with
such Person. A Person shall be deemed to control another Person
if the controlling Person owns 10% or more of any class of voting
securities (or other ownership interests) of the controlled Person
or possesses, directly or indirectly, the power to direct or cause
the direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or
otherwise.
"Agent" means Bank One in its capacity as administrative
agent for the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor administrative
agent appointed pursuant to Article X.
"Agents" means and includes the Agent, the Syndication Agent
and the Co-Documentation Agents.
"Aggregate Commitment" means the aggregate of the Commitments
of all the Lenders hereunder, which is $50,000,000.
"Aggregate Debit Items" means, at any time, "aggregate debit
items" computed in accordance with Rule 15c3-1.
"Aggregate Indebtedness" means, at any time, "aggregate
indebtedness" computed in accordance with Rule 15c3-1.
"Agreement" means this Term Credit Agreement, as it may be
amended, modified or restated and in effect from time to time.
"Agreement Accounting Principles" means generally accepted
accounting principles as in effect from time to time, applied in a
manner consistent with those used in preparing the Financial
Statements.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (a) the Corporate Base Rate for
such day, or (b) the sum of the Federal Funds Effective Rate for
such day plus 1/2% per annum.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Authorized Officer" means any of the chief executive
officer, president, chief financial officer or controller of the
Borrower, acting singly.
"Bank One" means Bank One, NA, a national banking association
having its principal office in Chicago, Illinois, in its
individual capacity, and its successors.
"Bankruptcy Code" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
sections 1 et seq., as the same may be amended from time to time,
and any successor thereto or replacement therefor which may be
hereafter enacted.
"Borrower" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial, Inc., a Florida
corporation, and its successors and assigns.
"Business Day" means (a) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in
Chicago and New York for the conduct of substantially all of their
commercial lending activities, interbank wire transfers can be
made on the Fedwire system and dealings in United States dollars
are carried on in the London interbank market, and (b) for all
other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago for the conduct of
substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.
"CEA" means the Commodity Exchange Act, as amended from time
to time.
"CFTC" means the Commodities Future Trading Commission and
any successor entity.
"Capitalized Lease" of a Person means any lease of Property
by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Change" is defined in Section 3.2.
"Change in Control" means (a) the acquisition by any Person,
or two or more Persons acting in concert, including without
limitation any acquisition effected by means of a merger or
consolidation, of beneficial ownership (within the meaning of Rule
13d-3 of the Commission under the Exchange Act) of 30% or more of
the outstanding shares of voting stock of the Borrower, or (b)
during any period of 25 consecutive calendar months, commencing on
the date of this Agreement, the ceasing of those individuals (the
"Continuing Directors") who (i) were directors of the Borrower on
the first day of each such period or (ii) subsequently became
directors of the Borrower and whose initial election or initial
nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of
directors of the Borrower, to constitute a majority of the board
of directors of the Borrower. For purposes of making the
calculation in clause (a) above, an "acquisition" shall not
include a transfer of shares by a shareholder or his estate to
members of his immediate family (spouse, children, grandchildren,
spouses of children or grandchildren) or to trusts for the benefit
of the shareholder or members of his immediate family.
"Closing Date" is defined in Section 4.1.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commission" means the Securities and Exchange Commission and
any successor entity.
"Commitment" means, for each Lender, the obligation of such
Lender to make a single Loan not exceeding the amount set forth
opposite its signature below.
"Compliance Certificate" means a certificate executed by an
Authorized Officer substantially in the form of Exhibit A hereto.
"Consolidated" or "consolidated", when used in connection
with any calculation, means a calculation to be determined on a
consolidated basis for the Borrower and its Subsidiaries in
accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently
liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any
creditor of such other Person against loss, including, without
limitation, any comfort letter, operating agreement, take-or-pay
contract or the obligations of any such Person as a general
partner of a partnership with respect to the liabilities of the
partnership.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or
businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.8.
"Corporate Base Rate" means a rate per annum equal to the
corporate base rate or prime rate of interest announced by Bank
One or by its parent, Bank One Corporation, from time to time,
changing when and as said corporate base rate or prime rate
changes.
"Default" means an event described in Article VII.
"Double Leverage Ratio" means, at any time, as calculated for
the Borrower on a parent-only basis in accordance with Agreement
Accounting Principles, the ratio of (a) investment in Subsidiaries
to (b) the shareholders' equity of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and
other governmental restrictions relating to (a) the protection of
the environment, (b) the effect of the environment on human
health, (c) emission, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water,
ground water or land, or (d) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"Eurodollar Advance" means an Advance which, except as
otherwise provided in Section 2.10, bears interest at the
Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period,
provided that, (i) if Reuters Screen FRBD is not available to the
Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars as reported by any other generally recognized financial
information service as of 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period and having a
maturity equal to such Interest Period, and (ii) if no such
British Bankers' Association Interest Settlement Rate is available
to the Agent, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the rate determined by the Agent
to be the rate at which Bank One or one of its Affiliate banks
offers to place deposits in U.S. dollars with first-class banks in
the London interbank market at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, in the approximate amount of Bank One's relevant
Eurodollar Loan and having a maturity equal to such Interest
Period.
"Eurodollar Loan" means a Loan or a portion thereof which,
except as otherwise provided in Section 2.10, bears interest at
the Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance
for the relevant Interest Period, the sum of (a) the quotient of
(i) the Eurodollar Base Rate applicable to such Interest Period,
divided by (ii) one minus the Reserve Requirement (expressed as a
decimal) applicable to such Interest Period, plus (b) 0.75% per
annum (or 0.875% if any extension of the Maturity Date shall
become effective pursuant to Section 2.18).
"Excess Net Capital" means, at any time, "excess net capital"
computed in accordance with Rule 15c3-1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it by (a)
the jurisdiction under the laws of which such Lender or the Agent
is incorporated or organized or (b) any jurisdiction in which such
Lender or the Agent maintains a lending office.
"Extension Date" is defined in Section 2.18.
"Extension Period" is defined in Section 2.18.
"Extension Request" is defined in Section 2.18.
"FOCUS Report" means, for any Person, the Financial and
Operational Combined Uniform Single Report required to be filed on
a monthly or quarterly basis, as the case may be, with the
Commission or the NYSE, or any report that is required in lieu of
such report.
"Federal Funds Effective Rate" means, for any day, an
interest rate per annum equal to the weighted average of the rates
on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Statements" is defined in Section 5.5.
"Fiscal Quarter" means one of the four three-month accounting
periods comprising a Fiscal Year.
"Fiscal Year" means the twelve-month accounting period ending
on the last Friday in September of each year.
"Floating Rate Advance" means an Advance which, except as
otherwise provided in Section 2.10, bears interest at the
Alternate Base Rate.
"Floating Rate Loan" means a Loan or a portion thereof which,
except as otherwise provided in Section 2.10, bears interest at
the Alternate Base Rate.
"Governmental Authority" means any government (foreign or
domestic) or any state or other political subdivision thereof or
any governmental body, agency, authority, department or commission
(including without limitation any taxing authority or political
subdivision) or any instrumentality or officer thereof (including
without limitation any court or tribunal) exercising executive,
legislative, judicial, regulatory or administrative functions of
or pertaining to government and any corporation, partnership or
other entity directly or indirectly owned or controlled by or
subject to the control of any of the foregoing.
"Indebtedness" of a Person means such Person's (a)
obligations for borrowed money, (b) obligations representing the
deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such Person's
business payable on terms customary in the trade), (c)
obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter
owned or acquired by such Person, (d) obligations which are
evidenced by notes, acceptances, or other instruments, (e)
Capitalized Lease Obligations, (f) Contingent Obligations, (g)
obligations for which such Person is obligated pursuant to or in
respect of a Letter of Credit, and (h) any other obligation for
borrowed money which in accordance with Agreement Accounting
Principles would be shown as a liability on the consolidated
balance sheet of such Person.
"Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a
Business Day selected by the Borrower pursuant to this Agreement.
Such Interest Period shall end on the day which corresponds
numerically to such date one, two, three or six months thereafter;
provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next
succeeding Business Day; provided, however, that if said next
succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day.
"Investment" of a Person means any (a) loan, advance (other
than commission, travel and similar advances to officers and
employees made in the ordinary course of business), extension of
credit (other than accounts receivable arising in the ordinary
course of business on terms customary in the trade) or
contribution of capital by such Person; (b) stocks, bonds, mutual
funds, partnership interests, notes, debentures or other
securities owned by such Person; (c) any deposit accounts and
certificate of deposit owned by such Person; and (d) structured
notes, derivative financial instruments and other similar
instruments or contracts owned by such Person; provided, however,
that in regard to clauses (b), (c) and (d), "Investment" shall not
include any such securities, accounts or instruments owned or
acquired by the Borrower or its Subsidiaries in the ordinary
course of its business as heretofore conducted, including but not
limited to the market making activities of RJA.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors
and assigns.
"Lending Installation" means, with respect to a Lender or the
Agent, the office, branch, subsidiary or affiliate of such Lender
or the Agent listed on the signature pages hereof or otherwise
selected by such Lender or the Agent pursuant to Section 2.15.
"Letter of Credit" of a Person means a letter of credit or
similar instrument which is issued upon the application of such
Person or upon which such Person is an account party or for which
such Person is in any way liable.
"Lien" means any security interest, lien (statutory or
other), mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance or preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's term
loan made pursuant to Section 2.1.
"Loan Documents" means this Agreement, any Notes issued
pursuant to Section 2.17 and the other documents and agreements
contemplated hereby and executed by the Borrower in favor of the
Agent or any Lender.
"MSRB" means the Municipal Securities Rulemaking Board and
any successor entity.
"Margin Stock" has the meaning assigned to that term under
Regulation U.
"Material Adverse Effect" means a material adverse effect on
(a) the business, Property, condition (financial or otherwise) or
results of operations of the Borrower and its Subsidiaries taken
as a whole, (b) the ability of the Borrower to perform its
obligations under the Loan Documents, or (c) the validity or
enforceability of any of the Loan Documents or the rights or
remedies of the Agent or the Lenders thereunder.
"Material Subsidiary" means (a) any of the Subsidiaries
listed on Schedule I hereto and (b) in the case of any specified
condition or event, any other Subsidiary or group of other
Subsidiaries (i) each of which has suffered such condition or
event to occur and (ii) that in the aggregate represents five
percent (5%) or more of the net revenues or the consolidated
assets of the Borrower and its Subsidiaries, as reflected in the
then most recent financial statements delivered pursuant to
Section 6.1(a) or (b).
"Maturity Date" means October 26, 2002 or such later date as
and if extended pursuant to Section 2.18.
"NASD" means the National Association of Securities Dealers,
Inc.
"NYSE" means the New York Stock Exchange, Inc.
"Net Capital" means, at any time, "net capital" computed in
accordance with Rule 15c3-1.
"Net Income" means, for any computation period, with respect
to the Borrower on a consolidated basis with its Subsidiaries
(other than any Subsidiary which is restricted from declaring or
paying dividends or otherwise advancing funds to its parent
whether by contract or otherwise), cumulative net income earned
during such period as determined in accordance with Agreement
Accounting Principles.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a
Lender pursuant to Section 2.17.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Agent or any
indemnified party arising under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June,
September and December.
"Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association,
enterprise, trust or other entity or organization, or any
Governmental Authority.
"Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code as to which the Borrower
or any member of the Controlled Group may have any liability.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person, or
other assets owned, leased or operated by such Person.
"pro-rata" means, when used with respect to a Lender, and any
described aggregate or total amount, an amount equal to such
Lender's pro-rata share or portion based on its percentage of the
Aggregate Commitment or, if the Aggregate Commitment has been
terminated, its percentage of the aggregate principal amount of
outstanding Advances.
"Purchasers" is defined in Section 12.3.1.
"RJA" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. and any
successor entity.
"RJFS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Services, Inc. and any
successor entity.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve
requirements applicable to depositary institutions.
"Regulation T" means Regulation T of the Board of Governors
of the Federal Reserve System as from time to time in effect and
shall include any successor or other regulation or official
interpretation of such Board of Governors relating to the
extension of credit by securities brokers and dealers for the
purpose of purchasing or carrying margin stocks applicable to such
Persons.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by
banks for the purpose of purchasing or carrying margin stocks
applicable to such Persons.
"Regulation X" means Regulation X of the Board of Governors
of the Federal Reserve System as from time to time in effect and
shall include any successor or other regulation or official
interpretation of said Board of Governors relating to the
extension of credit by the specified lenders for the purpose of
purchasing or carrying margin stocks applicable to such Persons.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such
section, with respect to a Plan, excluding, however, such events
as to which the PBGC has by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event; provided, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section
302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in
accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"Required Lenders" means Lenders in the aggregate having at
least 51% of the aggregate unpaid principal amount of the
outstanding Loans.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is imposed
under Regulation D on Eurocurrency liabilities.
"Revolving Credit Agreement" means the $100,000,000 Revolving
Credit Agreement of even date herewith among the Borrower, the
Agent and the Lenders providing for a revolving credit facility,
as such agreement may be amended, modified or restated and in
effect from time to time.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"Rule 15c3-1" means Rule 15c3-1 of the General Rules and
Regulations as promulgated by the Commission under the Exchange
Act, as such rule may be amended from time to time, or any rule or
regulation of the Commission which replaces Rule 15c3-1.
"Rule 15c3-3" means Rule 15c3-3 of the General Rules and
Regulations as promulgated by the Commission under the Exchange
Act, as such rule may be amended from time to time, or any rule or
regulation of the Commission which replaces Rule 15c3-3.
"SIPA" means the Security Investor Protection Act of 1970, as
amended.
"SIPC" means the Securities Investor Protection Corporation
or any successor entity.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Self-Regulatory Organization" has the meaning assigned to
such term in Section 3(a)(26) of the Exchange Act.
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees of
the Borrower or any member of the Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than
50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries
or by such Person and one or more of its Subsidiaries, (b) any
partnership, limited liability company, association, joint venture
or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time
be so owned or controlled, or (c) any other corporation or entity
which for financial reporting purposes is consolidated with the
Borrower in accordance with Agreement Accounting Principles.
Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which (a) represents
more than 10% of the consolidated assets of the Borrower and its
Subsidiaries as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in
which such determination is made, or (b) is responsible for more
than 15% of the consolidated net sales or Net Income of the
Borrower and its Subsidiaries as reflected in the financial
statements referred to in clause (a) above.
"Tangible Net Worth" means, at any date, the consolidated
stockholders' equity of the Borrower and its consolidated
Subsidiaries determined in accordance with Agreement Accounting
Principles, less their consolidated Intangible Assets, all
determined as of such date. For purposes of this definition,
"Intangible Assets" means the amount (to the extent reflected in
determining such consolidated stockholders' equity) of (i) all
write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business
made within twelve months after the acquisition of such business)
subsequent to June 30, 1999 in the book value of any asset owned
by the Borrower or a consolidated Subsidiary, and (ii) all
unamortized debt discount and expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade
names, copyrights, organization or developmental expenses and
other intangible items.
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and
all liabilities with respect to the foregoing, but excluding
Excluded Taxes.
"Term Loan" means, collectively, all of the Loans.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a
Floating Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the
present value of all vested and unvested accrued benefits under
all Single Employer Plans exceeds the fair market value of all
such Plan assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plans using PBGC
actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"Upfront Fee" is defined in Section 2.7.
"Wholly-Owned Subsidiary" of a Person means (a) any
Subsidiary all of the outstanding voting securities of which shall
at the time be owned or controlled, directly or indirectly, by
such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, limited
liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
"Year 2000 Issues" means anticipated costs, problems and
uncertainties associated with the inability of certain computer
applications to effectively handle data including dates on and
after January 1, 2000, as such inability affects the business,
operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material
customers, suppliers and vendors.
"Year 2000 Program" is defined in Section 5.16.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Term Loan. Each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make a Loan to the
Borrower on the Closing Date in the amount of its respective
Commitment. Not later than noon (Chicago time) on the Closing
Date, each Lender shall make available funds equal to its
Commitment in immediately available funds in Chicago to the Agent
at its address specified pursuant to Article XIII. The Agent
shall promptly make the funds so received from the Lenders
available to the Borrower by wire transfer to such account as the
Borrower may designate.
2.2. Types of Advances. The Term Loan may be a Floating Rate
Advance or a Eurodollar Advance, or a combination thereof selected
by the Borrower in accordance with Section 2.8. Until converted
or continued pursuant to Section 2.8, the Term Loan shall be a
Eurodollar Advance with a one month Interest Period.
2.3. Minimum Amount of Each Advance. Each Eurodollar Advance
shall be in the minimum amount of $5,000,000 (and multiples of
$1,000,000 if in excess thereof), and each Floating Rate Advance
shall be in the minimum amount of $5,000,000 (and in multiples of
$1,000,000 if in excess thereof); provided, however, that in no
event shall more than three (3) Eurodollar Advances be permitted
to be outstanding at any time.
2.4. Mandatory Principal Payment. The aggregate outstanding
principal balance of the Term Loan shall be due and payable in
full in immediately available funds on the Maturity Date, if not
sooner paid in full.
2.5. Optional Principal Payments. Subject to the payment of any
funding indemnification amounts required by Section 3.4 but
without penalty or premium, the Borrower may from time to time pay
all outstanding Loans, or, in a minimum aggregate amount of
$5,000,000 or any integral multiple of $1,000,000 in excess
thereof, any portion of the outstanding Loans upon three (3)
Business Days' prior notice to the Agent.
2.6. Permanent Reduction. No amount of the Term Loan which is
repaid or prepaid by the Borrower may be reborrowed hereunder.
2.7. Upfront Fee. The Borrower agrees to pay to the Agent for the
account of each Lender an upfront fee (the "Upfront Fee") in an
amount equal to 0.10% of such Lender's Commitment, payable on the
Closing Date.
2.8. Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into
Eurodollar Advances pursuant to this Section 2.8 or are repaid in
accordance with Section 2.5. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time such Eurodollar
Advance shall be automatically converted into a Floating Rate
Advance unless (x) such Eurodollar Advance is or was repaid in
accordance with Section 2.5 or (y) the Borrower shall have given
the Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same
or another Interest Period. Subject to the terms of Section 2.3,
the Borrower may elect from time to time to convert all or any
part of a Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating
Rate Advance into a Eurodollar Advance or of the continuation of a
Eurodollar Advance not later than 10:00 a.m. (Chicago time) at
least three Business Days prior to the date of the requested
conversion or continuation, specifying:
(a)the requested date of such conversion or
continuation, which shall be a Business Day;
(b)the aggregate amount and Type of the Advance which
is to be converted or continued; and
(c)the amount of such Advance which is to be converted
into or continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto, which shall end on or prior to
the Maturity Date.
2.9. Changes in Interest Rate, etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof,
for each day from and including the date such Advance is made or
is automatically converted from a Eurodollar Advance into a
Floating Rate Advance pursuant to Section 2.8, to but excluding
the date it is paid or is converted into a Eurodollar Advance
pursuant to Section 2.8, at a rate per annum equal to the
Alternate Base Rate. Changes in the rate of interest on that
portion of any Advance maintained as a Floating Rate Advance will
take effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first
day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest
rate determined by the Agent as applicable to such Eurodollar
Advance based upon the Borrower's selections under Section 2.8 and
otherwise in accordance with the terms hereof. No Interest Period
may end after the Maturity Date.
2.10. Rates Applicable After Default. Notwithstanding
anything to the contrary contained in Section 2.8, during the
continuance of a Default or Unmatured Default the Required Lenders
may, at their option, by notice to the Borrower, declare that no
Advance may be made as, converted into or continued as a
Eurodollar Advance. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous
consent of the Lenders to changes in interest rates), declare that
each Eurodollar Advance and Floating Rate Advance shall bear
interest (for the remainder of the applicable Interest Period in
the case of Eurodollar Advances) at a rate per annum equal to the
Alternate Base Rate plus two percent (2%) per annum; provided,
however, that such increased rate shall automatically and without
action of any kind by the Lenders become and remain applicable
until revoked by the Required Lenders in the event of a Default
described in Section 7.6 or 7.7.
2.11. Method of Payment. All payments of the Obligations
hereunder shall be made, without setoff, deduction or
counterclaim, in immediately available funds to the Agent at the
Agent's address specified pursuant to Article XIII, or at any
other Lending Installation of the Agent specified in writing by
the Agent to the Borrower, by noon (Chicago time) on the date when
due and shall be applied ratably by the Agent among the Lenders.
Each payment delivered to the Agent for the account of any Lender
shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender. The
Agent is hereby authorized to charge the account of the Borrower
maintained with Bank One for each payment of principal, interest
and fees as it becomes due hereunder.
2.12. Telephonic Notices. The Borrower hereby authorizes the
Lenders and the Agent to extend, convert or continue Advances,
effect selections of Types of Advances and to transfer funds based
on telephonic notices made by any person or persons the Agent or
any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is
specifically intended to allow Conversion/Continuance Notices to
be given telephonically. The Borrower agrees to deliver promptly
to the Agent a written confirmation, if such confirmation is
requested by the Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Agent
and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.
2.13. Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be payable on
each Payment Date, commencing with the first such date to occur
after the date hereof, on any date on which a Floating Rate
Advance is prepaid, whether due to acceleration or otherwise, and
at maturity. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a
Eurodollar Advance on a day other than a Payment Date shall be
payable on the date of conversion. Interest accrued on each
Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an
Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest
Period. Interest shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the
amount paid if payment is received prior to noon (Chicago time) at
the place of payment. If any payment of principal of or interest
on an Advance shall become due on a day which is not a Business
Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of
time shall be included in computing interest in connection with
such payment.
2.14. Notification of Interest Rates and Prepayments.
Promptly after receipt thereof, the Agent will notify each Lender
of the contents of each Conversion/Continuation Notice and
repayment notice received by it hereunder. The Agent will notify
each Lender of the interest rate applicable to each Eurodollar
Advance promptly upon determination of such interest rate and will
give each Lender prompt notice of each change in the Alternate
Base Rate.
2.15. Lending Installations. Each Lender may book its Loan at
any Lending Installation selected by such Lender and may change
its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the
Loan and any Note issued hereunder shall be deemed held by each
Lender for the benefit of such Lending Installation. Each Lender
may, by written notice to the Agent and the Borrower in accordance
with Article XIII, designate replacement or additional Lending
Installations for whose account Loan payments are to be made.
2.16. Non-Receipt of Funds by the Agent. Unless the Borrower
or a Lender, as the case may be, notifies the Agent prior to the
date on which it is scheduled to make payment to the Agent of (a)
in the case of a Lender, the amount of a Loan, or (b) in the case
of the Borrower, a payment of principal, interest or fees to the
Agent for the account of the Lenders, that it does not intend to
make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the Borrower, as
the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay
to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the
date such amount was so made available by the Agent until the date
the Agent recovers such amount at a rate per annum equal to (x) in
the case of payment by a Lender, the Federal Funds Effective Rate
for such day for the first three days and thereafter, the interest
rate applicable to the Loans, or (y) in the case of payment by the
Borrower, the interest rate applicable to the Loans.
2.17. Noteless Agreement; Evidence of Indebtedness. (a) Each
Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from the Loan made by such Lender, including
the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which
it will record (i) the amount of each Loan made hereunder and the
Type thereof, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each
Lender hereunder, and (iii) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained
pursuant to paragraphs (a) and (b) above shall be prima facie
evidence of the existence and amounts of the Obligations therein
recorded (and, in the case of any inconsistency between the
records of the Agent and any Lender, the records of the Agent
shall be the prima facie evidence that controls with respect to
the Borrower); provided, however, that the failure of the Agent or
any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(d) Any Lender may request that its Loan be evidenced
by a promissory note (a "Note"). In such event, the Borrower
shall prepare, execute and deliver to such Lender a Note payable
to the order of such Lender in a form incorporating the terms of
this Agreement supplied by the Agent. Thereafter, the Loan
evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, except to
the extent that any such Lender or assignee subsequently returns
any such Note for cancellation and requests that the Loan once
again be evidenced as described in paragraphs (a) and (b) above.
The execution and delivery of each Note shall take place at the
principal office of the Agent in Chicago or such other place
agreed to by the parties.
2.18. Extension of Maturity Date. The Borrower may request an
extension of the Maturity Date for two additional one-year periods
by submitting a request for an extension to the Agent (an
"Extension Request") no more than 45 days, but no less than 30
days, prior to the then effective Maturity Date. Each extension
effected pursuant to this Section 2.18 shall commence on the then
effective Maturity Date (the "Extension Date") and shall specify
the new Maturity Date requested by the Borrower, which date shall
be one year (the "Extension Period") after the Extension Date.
Promptly upon receipt of an Extension Request, the Agent shall
notify each Lender of the contents thereof and shall request each
Lender to approve the Extension Request. Each Lender approving
the Extension Request shall deliver its written consent to the
Agent no earlier than 30 days prior to the then effective Maturity
Date and no later than 20 days after receipt of the Extension
Request. In the event that a Lender shall fail to notify the
Agent within such period as to whether it agrees to the Extension
Request, such Lender shall be deemed to have refused the Extension
Request. If the consent of the Required Lenders is timely
received by the Agent, the new Maturity Date specified in the
Extension Request shall become effective on the Extension Date as
to such consenting Lenders only (and not as to any Lender which
has not consented to such extension), and the Agent shall promptly
notify the Borrower and each consenting Lender of the new Maturity
Date and new Term Loan amount; provided, however, that in no event
shall the new Maturity Date become effective unless a minimum of
two Lenders shall have consented to the Extension Request.
Notwithstanding anything contained in this Agreement to the
contrary, (a) all Obligations hereunder owing to the non-extending
Lenders shall be due and payable on the Maturity Date without
giving effect to any requested extension, (b) the Term Loan as of
the commencement of the Extension Period shall be reduced to an
amount equal to the sum of the Loans of the Lenders ultimately
consenting to the Extension Request, and (c) each Lender may, in
its sole discretion, grant or deny its consent with respect to any
proposed Extension Request. Any Lender not granting the Extension
Request shall, if the Borrower has selected an assignee for such
Lender reasonably acceptable to the Agent prior to the Extension
Date, promptly assign to such assignee its rights and obligations
hereunder in respect of all or that portion of such Lender's Loan
as such assignee is willing to accept, all in accordance with
Section 12.3.
2.19. Replacement of Lender. If the Borrower is required
pursuant to Section 3.1, 3.2 or 3.5 to make any additional payment
to any Lender or if any Lender's obligation to make or continue,
or to convert Floating Rate Advances into, Eurodollar Advances
shall be suspended pursuant to Section 3.3 (any Lender so affected
an "Affected Lender"), the Borrower may elect, if such amounts
continue to be charged or such suspension is still effective, to
replace such Affected Lender as a Lender party to this Agreement,
provided that no Default or Unmatured Default shall have occurred
and be continuing at the time of such replacement, and provided
further that, concurrently with such replacement, (a) another bank
or other entity which is reasonably satisfactory to the Borrower
and the Agent shall agree, as of such date, to purchase for cash
the Loan and other Obligations due to the Affected Lender pursuant
to an assignment substantially in the form of Exhibit B at par and
to become a Lender for all purposes under this Agreement and to
assume all obligations of the Affected Lender to be terminated as
of such date and to comply with the requirements of Section 12.3
applicable to assignments, and (b) the Borrower shall pay to such
Affected Lender in same day funds on the day of such replacement
all interest, fees and other amounts then accrued but unpaid to
such Affected Lender by the Borrower hereunder to and including
the date of termination, including without limitation payments due
to such Affected Lender under Sections 3.l, 3.2 and 3.5, and an
amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had
the Loan of such Affected Lender been prepaid on such date rather
than sold to the replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this
Agreement, the adoption of any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or applicable
Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of
taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its
Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than the amount
of reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar
Advances), or
(iii) imposes any other condition the result of which is
to increase the cost to any Lender or any applicable
Lending Installation of making, funding or maintaining
its Eurodollar Loans or reduces any amount receivable by
any Lender or any applicable Lending Installation in
connection with its Eurodollar Loans, or requires any
Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of
Eurodollar Loans held or interest received by it, by an
amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to
such Lender or applicable Lending Installation of making or
maintaining its Eurodollar Loans or Commitment or to reduce the
return received by such Lender or applicable Lending Installation
in connection with such Eurodollar Loans or Commitment, then,
within 15 days of demand by such Lender, the Borrower shall pay
such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduction in amount
received.
3.2. Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender
or any corporation controlling such Lender is increased as a
result of a Change, then, within 15 days of demand by such Lender,
the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is
attributable to this Agreement, its Loans or its Commitment to
make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change
after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the
force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling
any Lender. "Risk-Based Capital Guidelines" means (i) the
risk-based capital guidelines in effect in the United States on
the date of this Agreement, including transition rules, and (ii)
the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to the
date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation,
or directive, whether or not having the force of law, or if the
Required Lenders determine that (i) deposits of a type and
maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar
Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, then the Agent shall suspend the
availability of Eurodollar Advances and require any affected
Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification
amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made on
the date specified by the Borrower for any reason other than
default by the Lenders, the Borrower will indemnify each Lender
for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5. Taxes. (i) All payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any Note
shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 3.5) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to
the relevant authority in accordance with applicable law and (d)
the Borrower shall furnish to the Agent the original copy of a
receipt evidencing payment thereof within 30 days after such
payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise
or property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or from the execution or
delivery of, or otherwise with respect to, this Agreement or any
Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and
each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
on amounts payable under this Section 3.5) paid by the Agent or
such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due
under this indemnification shall be made within 30 days of the
date the Agent or such Lender makes demand therefor pursuant to
Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not less than ten Business Days
after the date of this Agreement, (i) deliver to each of the
Borrower and the Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, and (ii) deliver to each of the Borrower and
the Agent a United States Internal Revenue Form W-8 or W-9, as the
case may be, and certify that it is entitled to an exemption from
United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the
Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or
becomes obsolete, and (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it,
such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender
is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent
that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant
to clause (iv), above (unless such failure is due to a change in
treaty, law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to
be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes
imposed by the United States; provided that, should a Non-U.S.
Lender which is otherwise exempt from or subject to a reduced rate
of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower
shall take such steps as such Non-U.S. Lender shall reasonably
request to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country
or any political subdivision thereof asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to
notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax, withholding therefor,
or otherwise, including penalties and interest, and including
taxes imposed by any jurisdiction on amounts payable to the Agent
under this subsection, together with all costs and expenses
related thereto (including attorneys fees and time charges of
attorneys for the Agent, which attorneys may be employees of the
Agent). The obligations of the Lenders under this Section
3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Loans to
reduce any liability of the Borrower to such Lender under Sections
3.1, 3.2 and 3.5 or to avoid the unavailability of Eurodollar
Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the
Borrower (with a copy to the Agent) as to the amount due, if any,
under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall
set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection
with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a
reference in determining the Eurodollar Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise
provided herein, the amount specified in the written statement of
any Lender shall be payable on demand after receipt by the
Borrower of such written statement. The obligations of the
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. The Loans. The Lenders shall not be required to make the
Loans unless the Borrower has furnished the following to the Agent
with sufficient copies for the Lenders and the other conditions
set forth below have been satisfied, in each case on a date (the
"Closing Date") on or before October 30, 1999:
(a)Charter Documents; Good Standing Certificates.
Copies of the certificate of incorporation of the Borrower,
together with all amendments thereto, certified by the Secretary
of State of Florida, together with good standing certificates (i)
as to the Borrower, from the State of Florida and (ii) as to RJA,
from the States of Florida, New York and Michigan.
(b)By-Laws and Resolutions. Copies, certified by the
Secretary or Assistant Secretary of the Borrower, of its by-laws
and of its Board of Directors' resolutions authorizing the
execution, delivery and performance of the Loan Documents to which
the Borrower is a party.
(c)Secretary's Certificate. An incumbency
certificate, executed by the Secretary or Assistant Secretary of
the Borrower, which shall identify by name and title and bear the
signature of the officers of the Borrower authorized to sign the
Loan Documents and to make borrowings hereunder, upon which
certificate the Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower.
(d)Officer's Certificate. A certificate, dated the
date of this Agreement, signed by the chief financial officer of
the Borrower, in form and substance satisfactory to the Agent, to
the effect that: (i) on such date (both before and after giving
effect to the making of any Loans hereunder) no Default or
Unmatured Default has occurred and is continuing and (ii) each of
the representations and warranties set forth in Article V of this
Agreement is true and correct on and as of such date.
(e)Legal Opinion. A favorable written opinion of ▇▇▇▇
▇▇▇▇▇▇▇, Esq., Senior Vice President and Corporate Counsel to the
Borrower, addressed to the Agent and the Lenders in form and
substance acceptable to the Agent and its counsel.
(f)Loan Documents. Executed originals of this
Agreement, each of the other Loan Documents (including any Notes
requested by a Lender pursuant to Section 2.17 payable to the
order of such requesting Lender), and the Revolving Credit
Agreement, which shall be in full force and effect, together with
all schedules, exhibits, certificates, instruments, opinions,
documents and financial statements required to be delivered
pursuant hereto and thereto.
(g)Financial Statements. Copies of the Financial
Statements and the RJA/RJFS FOCUS Reports referred to in Section
5.5.
(h)Letter of Direction. Written money transfer
instructions with respect to the initial Advance and, until
otherwise instructed, as to future Advances in form and substance
acceptable to the Agent signed by an Authorized Officer, together
with such other related money transfer authorizations as the Agent
may have reasonably requested.
(i)Year 2000 Program. Information satisfactory to the
Agent regarding the Borrower's Year 2000 Program.
(j)Payment of Fees. The Borrower shall have paid all
accrued and unpaid fees, costs and expenses to the extent due and
payable on or prior to the execution of this Agreement, including,
but not limited to, the fees referred to in Section 2.7 and 10.13
and, to the extent invoiced, the attorneys' fees, time charges and
disbursements referred to in Section 9.6.
(k)Payoff Letter. A bank payoff letter in form and
substance acceptable to the Agent from Bank of America to the
effect that the total amount due under the Borrower's $50 million
loan facility with such lender shall be satisfied (and the related
agreement terminated) upon payment of an amount certain, together
with such lien releases and other documents as the Agent shall
require.
(l)Other. Such other documents as the Agent, any
Lender or their counsel may have reasonably requested.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence; Conduct of Business. Each of the
Borrower and each Material Subsidiary (a) is a corporation duly
incorporated, validly existing and in good standing under the laws
of its jurisdiction of incorporation, (b) is duly qualified and in
good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to be
so qualified will not have a Material Adverse Effect, and (c) has
all requisite corporate power, and possesses all licenses,
registrations and authorizations from and with any Governmental
Authority, Self-Regulatory Organization or securities exchange,
necessary or material to the conduct of its business as now or
presently proposed to be conducted. RJA and RJFS each is (i) duly
registered with the Commission as a broker-dealer under the
Exchange Act, (ii) a member in good standing of the NASD and, as
to RJA, a member organization in good standing of the NYSE, (iii)
not in arrears in regard to any assessment made upon it by the
SIPC, and (iv) has received no notice from the Commission, NASD,
MSRB, CFTC or any other Governmental Authority, Self-Regulatory
Organization or securities exchange of any alleged rule violation
or other circumstance which could reasonably be expected to have a
Material Adverse Effect, except as disclosed in the Financial
Statements.
5.2. Authorization and Validity. The Borrower has all requisite
power and authority (corporate and otherwise) and legal right to
execute and deliver each of the Loan Documents and to perform its
obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper
corporate proceedings and the Loan Documents constitute legal,
valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or
by general principles of equity limiting the availability of
equitable remedies.
5.3. Compliance with Laws and Contracts. The Borrower and its
Subsidiaries (including RJA and RJFS) have complied in all
material respects with all applicable laws, statutes, and rules,
regulations, orders and decrees or restrictions of any
Governmental Authority, Self-Regulatory Organization or securities
exchange having jurisdiction over the conduct of their respective
businesses or the ownership of their respective properties
(including, without limitation, the Exchange Act, the Advisers
Act, the Investment Company Act, the CEA, and the applicable rules
and regulations of the Commission, NASD, NYSE, MSRB and CFTC),
except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect. Without limiting the
foregoing, the Borrower and its Material Subsidiaries are in
compliance with all applicable capital requirements of all
Governmental Authorities (including, without limitation, Rule 15c3-
1). Neither the execution and delivery by the Borrower of the
Loan Documents, the application of the proceeds of the Loans, the
consummation of any transaction contemplated by the Loan
Documents, nor compliance with the provisions of the Loan
Documents will, or at the relevant time did, (a) violate any law,
rule, regulation (including Regulations T, U and X), order, writ,
judgment, injunction, decree or award binding on the Borrower or
any Subsidiary, (b) violate or conflict with the Borrower's or any
Subsidiary's charter, articles or certificate of incorporation or
by-laws, (c) violate the provisions of or require the approval or
consent of any party to any indenture, instrument or agreement to
which the Borrower or any Subsidiary is a party or is subject, or
by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or
imposition of any Lien (other than Liens permitted by Section
6.17) in, of or on the Property of the Borrower or any Subsidiary
pursuant to the terms of any such indenture, instrument or
agreement, or (d) require the consent or approval of any Person,
except for any violation of, or failure to obtain an approval or
consent required under, any such indenture, instrument or
agreement that could not have a Material Adverse Effect.
5.4. Governmental Consents. No order, consent, approval,
qualification, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other
action in respect of, any Governmental Authority, Self-Regulatory
Organization or securities exchange is necessary or required in
connection with the execution, delivery, consummation or
performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents, the application of
the proceeds of the Loans, or the consummation of any other
transaction contemplated by the Loan Documents. Neither the
Borrower nor any Subsidiary is in default under or in violation of
any foreign, Federal, state or local law, rule, regulation, order,
writ, judgment, injunction, decree or award binding upon or
applicable to the Borrower or such Subsidiary, in each case the
consequence of which default or violation could reasonably be
expected to have a Material Adverse Effect.
5.5. Financial Statements. The Borrower has heretofore furnished
to each of the Lenders (a) the September 25, 1998 audited
consolidated financial statements of the Borrower and its
Subsidiaries and (b) the June 25, 1999 unaudited consolidated
financial statements of the Borrower and its Subsidiaries
(collectively, the "Financial Statements"). The Borrower has also
heretofore furnished to each of the Lenders the December 25, 1998,
March 25, 1999, June 25, 1999 and September 24, 1999 quarterly
FOCUS Reports of RJA and RJFS (the "RJA/RJFS FOCUS Reports").
Each of the Financial Statements was prepared in accordance with
Agreement Accounting Principles and fairly presents the
consolidated financial condition, results of operations, changes
in shareholders' equity and cash flows of the Borrower and its
Subsidiaries at such dates and for the respective periods then
ended (except, in the case of the unaudited statements, for normal
year-end audit adjustments). The RJA/RJFS FOCUS Reports are
correct and complete in all material respects and conform in all
material respects to Exchange Act requirements and applicable
Commission rules and regulations.
5.6. Material Adverse Change. No material adverse change in the
business, Property, condition (financial or otherwise) or results
of operations of the Borrower and its Subsidiaries taken as a
whole has occurred since June 25, 1999.
5.7. Taxes. The Borrower and its Subsidiaries have filed or
caused to be filed on a timely basis and in correct form all
United States Federal and applicable state tax returns and all
other material tax returns which are required to be filed and have
paid all material taxes due pursuant to said returns or pursuant
to any assessment received by the Borrower or any Subsidiary,
except such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided in accordance
with Agreement Accounting Principles and as to which no Lien
exists. As of the date hereof, the United States income tax
returns of the Borrower on a consolidated basis have been audited
by the Internal Revenue Service through its Fiscal Year ending
September 29, 1995. There are no pending audits or investigations
regarding the Borrower's or its Subsidiaries' Federal, state or
local tax returns which could reasonably be expected to have a
Material Adverse Effect. No tax liens have been filed and no
claims are being asserted with respect to any such taxes which
could reasonably be expected to have a Material Adverse Effect.
The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of any taxes or other governmental
charges are in accordance with Agreement Accounting Principles.
5.8. Litigation and Contingent Obligations. There is no
litigation, arbitration, proceeding, inquiry or investigation by
any Governmental Authority, Self-Regulatory Organization or
securities exchange pending or, to the knowledge of any of the
Borrower's officers, threatened against or affecting the Borrower
or any Subsidiary or any of their respective Properties which
could reasonably be expected to have a Material Adverse Effect or
to prevent, enjoin or unduly delay the making of the Loans or the
consummation of the transactions contemplated by this Agreement.
The Borrower and its Subsidiaries have no material contingent
obligations not provided for or disclosed in the Financial
Statements.
5.9. Subsidiaries. Schedule I hereto contains an accurate list of
all of the Borrower's Material Subsidiaries as of the date of this
Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock
or other ownership interests owned by the Borrower or other
Subsidiaries. All of the outstanding shares of capital stock and
other equity interests of each Subsidiary are validly issued and
outstanding and fully paid and nonassessable, and all such shares
and other equity interests owned by the Borrower or a Subsidiary
are owned, beneficially and of record, by the Borrower or such
Subsidiary free and clear of all Liens.
5.10. ERISA. There are no Unfunded Liabilities relating to
any Single Employer Plan. Each Plan complies in all material
respects with all applicable requirements of law and regulations,
no Reportable Event has occurred with respect to any Plan, neither
the Borrower nor any other member of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps
have been taken to reorganize or terminate any Plan. The Borrower
is not an entity deemed to hold "plan assets" within the meaning
of 29 C.F.R. 2510.3-101 of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or
any plan (within the meaning of Section 4975 of the Code), and
neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
5.11. Defaults. No Default or Unmatured Default has occurred
and is continuing.
5.12. Federal Reserve Regulations. Neither the making of any
Advance hereunder or the use of the proceeds thereof will violate
or be inconsistent with the provisions of Regulation T, Regulation
U or Regulation X. Following the application of the proceeds of
the Loans, less than 25% of the value of the assets of the
Borrower and its Subsidiaries which are subject to any limitation
on sale, pledge or other restriction hereunder taken as a whole
have been, and will continue to be, represented by Margin Stock.
5.13. Investment Company; Public Utility Holding Company.
Neither the Borrower nor any Subsidiary is, or after giving effect
to any Advance will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither the Borrower
nor any Subsidiary is a "holding company" within the meaning of,
or subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended.
5.14. Ownership of Properties. The Borrower and its
Subsidiaries have a subsisting leasehold interest in, or good and
marketable title to, free of all Liens, other than those permitted
by Section 6.17, all of the properties and assets reflected in the
Financial Statements as being owned by it, except for assets sold,
transferred or otherwise disposed of in the ordinary course of
business since the date thereof.
5.15. Material Agreements. Neither the Borrower nor any
Subsidiary is a party to any agreement or instrument or subject to
any charter or other corporate restriction which could reasonably
be expected to have a Material Adverse Effect or which restricts
or imposes conditions upon the ability of any Material Subsidiary
to (a) pay dividends or make other distributions on its capital
stock, (b) make loans or advances to the Borrower, (c) repay loans
or advances from the Borrower or (d) grant Liens to the Agent to
secure the Obligations. Neither the Borrower nor any Material
Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse
Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness.
5.16. Year 2000. The Borrower has made a full and complete
assessment of the Year 2000 Issues and has a realistic and
achievable program for remediating the Year 2000 Issues on a
timely basis (the "Year 2000 Program"). Based on such assessment
and on the Year 2000 Program, the Borrower does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse
Effect, except as the securities industry or securities markets
may be affected generally.
5.17. Insurance. The Borrower and its Subsidiaries maintain
with financially sound and reputable insurance companies insurance
on their Property in such amounts and covering such risks as is
consistent with sound business practice.
5.18. Disclosure. None of the (a) information, exhibits or
reports furnished by the Borrower or any Subsidiary to the Agent
or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents, or (b) representations or
warranties of the Borrower or any Subsidiary contained in this
Agreement, the other Loan Documents or any other document,
certificate or written statement furnished to the Agent or the
Lenders by or on behalf of the Borrower or any Subsidiary pursuant
to this Agreement, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements contained herein or therein not misleading in
light of the circumstances in which they were made. There is no
fact known to any Authorized Officer (other than matters generally
affecting the economy or the financial services industry) that has
had or could reasonably be expected to have a Material Adverse
Effect and that has not been disclosed herein or in such other
documents, certificates and statements furnished to the Lenders
for use in connection with the transactions contemplated by this
Agreement.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and
administered in accordance with Agreement Accounting Principles,
consistently applied, and will furnish to the Lenders:
(a)As soon as practicable and in any event within 90
days after the close of each of its Fiscal Years, an unqualified
audit report from PricewaterhouseCoopers LLP or other independent
certified public accountants acceptable to the Lenders, prepared
in accordance with Agreement Accounting Principles on a
consolidated and consolidating basis (consolidating statements
need not be certified by such accountants) for itself and its
Subsidiaries, including balance sheets as of the end of such
period and related statements of income, changes in shareholders'
equity and cash flows, and accompanied by (i) any management
letter prepared by said accountants (when available) and (ii) a
certificate of said accountants that, in the course of the
examination necessary for the preparation of their audit report,
they have obtained no knowledge of any Default or Unmatured
Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status
thereof.
(b)As soon as practicable and in any event within 45
days after the close of the first three Fiscal Quarters of each of
its Fiscal Years, for itself and its Subsidiaries, consolidated
and consolidating unaudited balance sheets as at the close of each
such period and consolidated and consolidating statements of
income, changes in shareholders' equity and cash flows for the
period from the beginning of such Fiscal Year to the end of such
quarter, all certified by its chief financial officer.
(c)As soon as practicable and in any event within 25
days after the close of each Fiscal Quarter, the FOCUS Report for
such Fiscal Quarter filed by RJA and RJFS with the Commission.
(d)Together with the financial statements required by
clauses (a) and (b) above, a Compliance Certificate signed by its
chief financial officer showing the calculations necessary to
determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof.
(e)Within 270 days after the close of each Fiscal
Year, a statement of the Unfunded Liabilities of each Single
Employer Plan, if any, certified as correct by an actuary enrolled
under ERISA.
(f)As soon as possible and in any event within 10 days
after any Authorized Officer of the Borrower learns thereof,
notice of the assertion or commencement of any claim, action,
litigation, suit or proceeding against or affecting the Borrower
or any Subsidiary, including any investigation or proceeding
commenced by the Commission, NASD, MSRB, NYSE or any other
Governmental Authority, Self-Regulatory Organization or securities
exchange, which could reasonably be expected to have a Material
Adverse Effect.
(g)Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial statements,
reports and proxy statements so furnished.
(h)Within 15 days after the filing thereof, copies of
all registration statements and annual, quarterly, monthly or
other regular reports which the Borrower files with the Commission
and, upon request, any such reports filed by any Subsidiary.
(i)Such other information (including non-financial
information) as the Agent or any Lender may from time to time
reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances for general
corporate purposes, including without limitation the refinancing
of certain existing indebtedness, friendly acquisitions, share
repurchases and asset purchases. The Borrower will not, nor will
it permit any Subsidiary to, use any of the proceeds of the
Advances to (i) purchase or carry any Margin Stock in violation of
Regulation T, Regulation U or Regulation X, (ii) finance the
Acquisition of any Person which has not been approved and
recommended by the board of directors (or functional equivalent
thereof) of such Person, or (iii) fund subordinated loans from the
Borrower to any of its Subsidiaries.
6.3. Notice of Default. Within 10 days after any Authorized
Officer of the Borrower has knowledge thereof, the Borrower will
give notice in writing to the Lenders of the occurrence of (a) any
Default or Unmatured Default or (b) any other event or
development, financial or otherwise (including, without
limitation, developments with respect to Year 2000 Issues), which
could reasonably be expected to have a Material Adverse Effect
other than matters generally affecting the economy or the
financial services industry.
6.4. Conduct of Business. The Borrower will, and will cause each
Material Subsidiary to, (a) subject to Section 6.13(c), preserve
and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation, (b) maintain
all registrations, licenses, consents, approvals and
authorizations from and with any Governmental Authority, Self-
Regulatory Organization or securities exchange necessary or
material to the conduct of its business, and (c) qualify and
remain qualified as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to
qualify could not have a Material Adverse Effect. The Borrower
will not, and will not permit any of its Material Subsidiaries to,
engage in any material line of business substantially different
from those lines of business carried on by it on the date hereof.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States Federal and
applicable foreign, state and local tax returns required by
applicable law and pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or
Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Agreement
Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance
companies insurance in such amounts and covering such risks as is
consistent with sound business practice, and the Borrower will
furnish to the Agent and any Lender upon request full information
as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, statutes (including, without
limitation, the Exchange Act, the Advisers Act, the Investment
Company Act and applicable Environmental Laws), rules,
regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject.
6.8. Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve,
protect and keep its Property in good repair, working order and
condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection
therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause each
Subsidiary to, permit the Agent and the Lenders, by their
respective representatives and agents, to inspect any of the
Property, corporate books and financial records of the Borrower
and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of
the Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers at such reasonable times and
intervals as the Agent or any Lender may designate. The Borrower
will keep or cause to be kept, and cause each Subsidiary to keep
or cause to be kept, appropriate records and books of account in
which complete entries are to be made reflecting its and their
business and financial transactions, such entries to be made in
accordance with Agreement Accounting Principles consistently
applied.
6.10. Year 2000. The Borrower will take, and will cause each
of its Subsidiaries to take, all such actions as are reasonably
necessary to successfully implement the Year 2000 Program as to
assure that Year 2000 Issues will not have a Material Adverse
Effect. At the request of the Agent, the Borrower will provide a
description of the Year 2000 Program, together with any updates or
progress reports with respect thereto.
6.11. Ownership of Subsidiaries. The Borrower will continue
to own, directly or indirectly, beneficially and of record, free
and clear of all Liens and restrictions, 75% of the outstanding
shares of capital stock each of RJA and RJFS.
6.12. Indebtedness. The Borrower will not, nor will it permit
any Subsidiary to, create, incur or suffer to exist any
Indebtedness, except:
(a)The Term Loan hereunder and Indebtedness under the
Revolving Credit Agreement;
(b)Existing Indebtedness described on Schedule II
hereto;
(c)Securities sold under agreements to repurchase (to
the extent such obligations constitute Indebtedness);
(d)Contingent Obligations permitted by Section 6.16;
(e)Capital Lease Obligations and purchase money
Indebtedness not exceeding $10,000,000 in the aggregate at any
time outstanding;
(f)(i) Moneys due to counterparties under stock loan
transactions, (ii) liabilities to customers for cash on deposit,
and (iii) liabilities to brokers, dealers and clearing
organizations relating to the settlement of securities
transactions;
(g)Indebtedness of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation in
an aggregate principal amount not exceeding $100,000,000 used to
finance loans collateralized by public company restricted or
control shares;
(h)Indebtedness of any Subsidiary for borrowed money
from the Borrower which represents unsubordinated Indebtedness of
such Subsidiary; and
(i) Unsecured Indebtedness not otherwise permitted
by this Section 6.12 in an aggregate principal amount not
exceeding $5,000,000.
6.13. Merger. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person,
except that (a) a Wholly-Owned Subsidiary may merge into the
Borrower or any Wholly-Owned Subsidiary of the Borrower, (b) the
Borrower or any Subsidiary may merge or consolidate with any other
Person so long as the Borrower or such Subsidiary is the
continuing or surviving corporation and, prior to and after giving
effect to such merger or consolidation, no Default or Unmatured
Default shall exist, and (c) any Subsidiary may enter into a
merger or consolidation as a means of effecting a disposition
permitted by Section 6.14.
6.14. Sale of Assets. The Borrower will not, nor will it
permit any Subsidiary to, lease, sell, transfer or otherwise
dispose of its Property, to any other Person except for (a) sales
of securities sold in the ordinary course of business, and (b)
leases, sales, transfers or other dispositions of its Property
that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other than
sales of securities sold in the ordinary course of business) as
permitted by this Section 6.14 during the twelve-month period
ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of the
Property of the Borrower and its Subsidiaries.
6.15. Investments and Acquisitions. The Borrower will not,
nor will it permit any Subsidiary to, make or suffer to exist any
Investments (including, without limitation, loans and advances to,
and other Investments in, Subsidiaries), or commitments therefor,
or to create any Subsidiary or to become or remain a partner in
any partnership or joint venture, or to make any Acquisition of
any Person, except:
(a)Existing Investments in Subsidiaries and
Affiliates;
(b)Obligations of, or fully guaranteed by, the United
States of America; commercial paper and other short-term notes
and securities rated investment grade by a national securities
rating agency; demand deposit accounts maintained in the ordinary
course of business; and certificates of deposit issued by and time
deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000;
(c)Publicly-traded securities and private equity
participations;
(d)Acquisitions of or Investments in Subsidiaries or
the capital stock, assets, obligations or other securities of or
interest in other Persons provided that (i) each such Person shall
be (x) in regard to Material Subsidiaries, incorporated, organized
or otherwise formed under the laws of any state of the United
States, and (y) engaged in a line of business not substantially
different from those lines of business carried on by the Borrower
and its Subsidiaries on the date hereof, (ii) the transaction (or
any tender offer commencing a proposed transaction) shall have
been approved and recommended by the board of directors (or
functional equivalent thereof) of such Person, and (iii) no
Default or Unmatured Default shall have occurred and be continuing
either immediately before or after giving effect to such
transaction and no Material Adverse Effect would result therefrom;
and
(e)Repurchases of up to 5,000,000 shares of the
Borrower's common stock to fund the Borrower's incentive stock
option and stock purchase plans and other corporate purposes.
6.16. Contingent Obligations. The Borrower will not, nor will
it permit any Subsidiary to, make or suffer to exist any
Contingent Obligation (including, without limitation, any
Contingent Obligation with respect to the obligations of a
Subsidiary), except (a) by endorsement of instruments for deposit
or collection in the ordinary course of business, (b) guarantees
by the Borrower of the Indebtedness of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Corporation in an aggregate principal amount not exceeding
$100,000,000 referred to in Section 6.12(g) and guarantees by the
Borrower (or any Subsidiary) of the Indebtedness of any other
Subsidiaries in an aggregate principal amount not exceeding
$10,000,000, (c) guarantees by the Borrower with respect to
settlement of securities transactions by its Affiliates extended
to customers of, lenders to, or clearing agencies for, such
Affiliates, and (d) guarantees by the Borrower of up to
$45,000,000 with respect to the activities of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Tax
Credit Funds, Inc. or any of its Subsidiaries.
6.17. Liens. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of
or on the Property of the Borrower or any of its Subsidiaries,
except:
(a)Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at the
time be delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books;
(b)Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure the
payment of obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its books;
(c)Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation;
(d)Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a similar
character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the
business of the Borrower or its Subsidiaries;
(e)Liens securing the Indebtedness permitted by
Sections 6.12(b) and (c); and
(f)Liens incurred in the ordinary course of the
settlement of securities transactions.
6.18. Affiliates. The Borrower will not, and will not permit
any Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with,
or make any payment or transfer to, any Affiliate except (a) in
the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and
upon fair and reasonable terms and (b) transactions among the
Borrower and Wholly-Owned Subsidiaries of the Borrower.
6.19. Change in Corporate Structure; Fiscal Year. The
Borrower shall not, nor shall it permit any Material Subsidiary
to, (a) permit any amendment or modification to be made to its
certificate or articles of incorporation or by-laws which is
materially adverse to the interests of the Lenders (provided that
the Borrower shall notify the Agent of any other amendment or
modification thereto as soon as practicable thereafter) or (b)
change its Fiscal Year to end on any date other than the last
Friday in September of each year.
6.20. Inconsistent Agreements. The Borrower shall not, nor
shall it permit any Subsidiary to, enter into any indenture,
agreement, instrument or other arrangement which (a) directly or
indirectly prohibits or restrains, or has the effect of
prohibiting or restraining, or imposes materially adverse
conditions upon, the incurrence of the Obligations, the amending
of the Loan Documents or the ability of any Subsidiary to (i) pay
dividends or make other distributions on its capital stock, (ii)
make loans or advances to the Borrower, or (iii) repay loans or
advances from the Borrower or (b) contains any provision which
would be violated or breached by the making of Advances or by the
performance by the Borrower or any Subsidiary of any of its
obligations under any Loan Document.
6.21. Financial Covenants.
6.21.1 Minimum Tangible Net Worth. The Borrower on a
consolidated basis with its Subsidiaries at all times after the
date hereof shall maintain Tangible Net Worth of not less than (i)
$400,000,000 plus (ii) 50% of cumulative Net Income earned after
September 24, 1999.
6.21.2 Double Leverage Ratio. The Borrower on a parent-only
basis at all times after the date hereof shall maintain a Double
Leverage Ratio of not more than 1.15 to 1.0.
6.21.3 RJA Net Capital. The Borrower shall cause RJA at all
times after the date hereof to maintain a ratio (computed in
accordance with Exhibit A to Rule ▇▇▇▇-▇, "▇▇▇▇▇▇▇ for
Determination of Reserve Requirements for Brokers and Dealers") of
Net Capital to Aggregate Debt Items of not less than 10%.
6.21.4 RJFS Net Capital. The Borrower shall cause RJFS at all
times after the date hereof to maintain a ratio (computed in
accordance with Exhibit A to Rule ▇▇▇▇-▇, "▇▇▇▇▇▇▇ for
Determination of Reserve Requirements for Brokers and Dealers") of
Aggregate Indebtedness to Net Capital of not more than 9.0 to 1.0.
6.21.5 RJA/RJFS Excess Net Capital. The Borrower shall cause
RJA and RJFS at all times to have combined Excess Net Capital of
not less than $100,000,000.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1. Representation or Warranty. Any representation or warranty
made or deemed made by or on behalf of the Borrower or any of its
Subsidiaries to the Lenders or the Agent under or in connection
with this Agreement, any other Loan Document, any Loan, or any
certificate or information delivered in connection with this
Agreement or any other Loan Document shall be false in any
material respect on the date as of which made or deemed made.
7.2. Non-Payment. (a) Nonpayment of any principal of any Loan
when due, or (b) nonpayment of any interest upon any Loan or of
any fee or other obligation under any of the Loan Documents within
five days after the same becomes due.
7.3. Specific Defaults. The breach by the Borrower of any of the
terms or provisions of Section 6.2, Section 6.3(a), Section 6.4
(second sentence only) or Sections 6.10 through 6.21.
7.4. Other Defaults. The breach by the Borrower (other than a
breach which constitutes a Default under another Section of this
Article VII) of any of the terms or provisions of this Agreement
which is not remedied within 30 days after written notice from the
Agent or any Lender.
7.5. Cross-Default. Failure of the Borrower or any of its
Material Subsidiaries to pay when due any Indebtedness aggregating
in excess of $5,000,000; or the default by the Borrower or any of
its Subsidiaries in the performance of any term, provision or
condition contained in any agreement or agreements under which any
such Indebtedness was created or is governed (or the occurrence of
any other event or existence of any other condition) the effect of
any of which is to cause, or to permit the holder or holders of
such Indebtedness to cause, such Indebtedness to become due prior
to its stated maturity; or any such Indebtedness of the Borrower
or any of its Material Subsidiaries shall be declared to be due
and payable or required to be prepaid or repurchased (other than
by a regularly scheduled payment) prior to the stated maturity
thereof; or the Borrower or any of its Material Subsidiaries shall
not pay, or admit in writing its inability to pay, its debts
generally as then become due.
7.6. Insolvency; Voluntary Proceedings. The Borrower or any of
its Material Subsidiaries shall (a) have an order for relief
entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (b) make an assignment for the benefit
of creditors, (c) apply for, seek, consent to, or acquiesce in,
the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion
of its Property, (d) institute any proceeding seeking an order for
relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed
against it, (e) take any corporate or partnership action to
authorize or effect any of the foregoing actions set forth in this
Section 7.6, or (f) fail to contest in good faith any appointment
or proceeding described in Section 7.7.
7.7. Involuntary Proceedings. Without the application, approval
or consent of the Borrower or any of its Material Subsidiaries, a
receiver, trustee, examiner, liquidator or similar official shall
be appointed for the Borrower or any of its Material Subsidiaries
or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(d) shall be instituted against the
Borrower or any of its Material Subsidiaries and such appointment
continues undischarged or such proceeding continues undismissed or
unstayed for a period of 30 consecutive days.
7.8. Condemnation. Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or
control of, all or any portion of the Property of the Borrower and
its Subsidiaries which, when taken together with all other
Property of the Borrower and its Subsidiaries so condemned,
seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion.
7.9. Judgments. (a) The Borrower or any of its Material
Subsidiaries shall fail within 30 days to pay, bond or otherwise
discharge one or more judgments or orders for the payment of money
in excess of $10,000,000 in the aggregate, or (b) the Borrower or
any of its Subsidiaries shall fail to pay, bond or otherwise
discharge one or more nonmonetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, which judgment(s), in any such
case of clauses (a) and (b), is/are not stayed on appeal or
otherwise being appropriately contested in good faith.
7.10. Change in Control. Any Change in Control shall occur.
7.11. SIPC. The Commission or any Self-Regulatory
Organization has notified the SIPC pursuant to Section 5(a)(1) of
the SIPA of facts which indicate that the Borrower, RJA or RJFS is
in or is approaching financial difficulty, or the SIPC shall file
an application for a protective decree with respect to the
Borrower, RJA or RJFS under Section 5(a)(3) of the SIPA.
7.12. Broker-Dealer License. The Commission or other
Governmental Authority shall revoke or suspend the license or
authorization of RJA and RJFS under Federal or state law to
conduct business as a securities broker-dealer (and such license
or authorization shall not be reinstated within 5 days), or RJA or
RJFS shall be suspended or expelled from membership in the NASD,
NYSE or any other Self-Regulatory Organization or securities
exchange.
7.13. ERISA. The Unfunded Liabilities of all Single Employer
Plans shall exceed in the aggregate $1,000,000 or any Reportable
Event shall occur in connection with any Plan that could have a
Material Adverse Effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the Obligations shall
immediately become due and payable without any election or action
on the part of the Agent or any Lender. If any other Default
occurs, the Required Lenders (or the Agent with the consent of the
Required Lenders) may declare the Obligations to be due and
payable, whereupon the Obligations shall become immediately due
and payable, without presentment, demand, protest or notice of any
kind, all of which the Borrower hereby expressly waives.
If, within 30 Business Days after acceleration of the
maturity of the Obligations as a result of any Default (other than
any Default as described in Section 7.6 or 7.7 with respect to the
Borrower) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Agent
shall, by notice to the Borrower, rescind and annul such
acceleration.
8.2. Amendments. Subject to the provisions of this Article VIII,
the Required Lenders (or the Agent with the consent in writing of
the Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the
rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders:
(a)Extend the Maturity Date (otherwise than as
provided in Section 2.18).
(b)Forgive all or any portion of the principal amount
of any Loan or reduce the rate or extend the time of payment of
interest or fees thereon.
(c)Reduce the percentage specified in the definition
of Required Lenders.
(d)Permit the Borrower to assign its Obligations or
rights under this Agreement.
(e)Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the Agent.
The Agent may waive payment of the fee required under Section
12.3.2 without obtaining the consent of any other party to this
Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders
or the Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or
an acquiescence therein, and the making of a Loan notwithstanding
the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan shall not constitute
any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or
the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by
the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Agent and the Lenders
until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall
survive the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower in violation of any
limitation or prohibition provided by any applicable statute or
regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent and the
Lenders and supersede all prior agreements and understandings
among the Borrower, the Agent and the Lenders relating to the
subject matter thereof other than the fee letter described in
Section 10.13.
9.5. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and
not joint and no Lender shall be the partner or agent of any other
(except to the extent to which the Agent is authorized to act as
such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any
of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective
successors and assigns.
9.6. Expenses; Indemnification. The Borrower shall reimburse the
Agent for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent, which attorneys may be employees of the
Agent) paid or incurred by the Agent in connection with the
preparation, negotiation, execution, delivery, review,
syndication, amendment, modification, and administration of the
Loan Documents. The Borrower also agrees to reimburse the Agent
and the Lenders for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Agent and the Lenders, which
attorneys may be employees of the Agent or the Lenders) paid or
incurred by the Agent or any Lender in connection with the
collection and enforcement of the Loan Documents. The Borrower
further agrees to indemnify the Agent and each Lender, their
respective affiliates, and each of their directors, officers and
employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor
whether or not the Agent or any Lender or any affiliate is a party
thereto) which any of them may pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan
hereunder, except to the extent that (i) they are determined in a
final non-appealable judgment by a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct
of the party seeking indemnification or (ii) they relate solely to
a claim or claims between or among the Lenders unrelated to any
alleged act or omission of the Borrower. The obligations of the
Borrower under this Section 9.6 shall survive the termination of
this Agreement.
9.7. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent
with sufficient counterparts so that the Agent may furnish one to
each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance
with Agreement Accounting Principles.
9.9. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid
in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the
Borrower on the one hand and the Lenders and the Agent on the
other hand shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities
to the Borrower. Neither the Agent nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of
any matter in connection with any phase of the Borrower's business
or operations. The Borrower agrees that neither the Agent nor any
Lender shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower
in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the
Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-
appealable judgment by a court of competent jurisdiction that such
losses resulted from the gross negligence or willful misconduct of
the party from which recovery is sought. Neither the Agent nor
any Lender shall have any liability with respect to, and the
Borrower hereby waives, releases and agrees not to ▇▇▇ for, any
special, indirect or consequential damages suffered by the
Borrower in connection with, arising out of, or in any way related
to the Loan Documents or the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any
confidential information which it may receive from the Borrower
pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates and to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee (which
Transferee has agreed to be bound by this Section 9.11), (iii) to
regulatory officials, (iv) to any Person as required by law,
regulation, or legal process, (v) to any Person in connection with
any legal proceeding to which such Lender is a party, (vi) to such
Lender's direct or indirect contractual counterparties in swap
agreements (which counterparties have agreed to be bound by this
Section 9.11) or to legal counsel, accountants and other
professional advisors to such counterparties, and (vii) permitted
by Section 12.4. The obligations of the Lenders under this
Section 9.11 shall survive the termination of this Agreement.
9.12. Nonreliance. Each Lender hereby represents that it is
not relying on or looking to any Margin Stock for the repayment of
the Loans provided for herein.
9.13. Disclosure. The Borrower and each Lender hereby (i)
acknowledge and agree that Bank One and/or its Affiliates from
time to time may hold investments in, make other loans to or have
other relationships with the Borrower and its Affiliates, and (ii)
waive any liability of Bank One or such Affiliate of Bank One to
the Borrower or any Lender, respectively, arising out of or
resulting from such investments, loans or relationships other than
liabilities arising out of the gross negligence or willful
misconduct of Bank One or its Affiliates.
9.14. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS, WITHOUT REGARD TO
CONFLICT OF LAWS PROVISIONS, OF THE STATE OF NEW YORK, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.15. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE
OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK
CITY.
9.16. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. Bank One, NA is
hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the "Agent") hereunder and
under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Agent
agrees to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent," it is expressly understood and agreed
that the Agent shall not have any fiduciary responsibilities to
any Lender by reason of this Agreement or any other Loan Document
and that the Agent is merely acting as the contractual
representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual
representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of Section 9-105 of the Uniform
Commercial Code and (iii) is acting as an independent contractor,
the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any
agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to
the Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to
take any action thereunder except any action specifically provided
by the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the
Borrower, the Lenders or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except to the
extent such action or inaction is determined in a final non-
appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such
Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the
Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire
into, or verify (a) any statement, warranty or representation made
in connection with any Loan Document or any borrowing hereunder;
(b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish
information directly to each Lender; (c) the satisfaction of any
condition specified in Article IV, except receipt of items
required to be delivered solely to the Agent; (d) the existence or
possible existence of any Default or Unmatured Default; (e) the
validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; (f) the value,
sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the
Borrower or any guarantor of any of the Obligations or of any of
the Borrower's or any such guarantor's respective Subsidiaries.
The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower
to the Agent at such time, but is voluntarily furnished by the
Borrower to the Agent (either in its capacity as Agent or in its
individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in
all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance
with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders. The Lenders
hereby acknowledge that the Agent shall be under no duty to take
any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement or any other Loan Document unless
it shall be requested in writing to do so by the Required Lenders.
The Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it
shall first be indemnified to its satisfaction by the Lenders pro-
rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute
any of its duties as Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Lenders, except as to money or
securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled
to advice of counsel concerning the contractual arrangement
between the Agent and the Lenders and all matters pertaining to
the Agent's duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by
the proper person or persons, and, in respect to legal matters,
upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Agent ratably in proportion
to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior
to such termination) (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) for any other expenses
incurred by the Agent on behalf of the Lenders, in connection with
the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation,
for any expenses incurred by the Agent in connection with any
dispute between the Agent and any Lender or between two or more of
the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection
with any dispute between the Agent and any Lender or between two
or more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents, provided that
(i) no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Agent and
(ii) any indemnification required pursuant to Section 3.5(vii)
shall, notwithstanding the provisions of this Section 10.8, be
paid by the relevant Lender in accordance with the provisions
thereof. The obligations of the Lenders under this Section 10.8
shall survive payment of the Obligations and termination of this
Agreement.
10.9. Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Unmatured Default hereunder unless the Agent has received written
notice from a Lender or the Borrower referring to this Agreement
describing such Default or Unmatured Default and stating that such
notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof
to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender,
the Agent shall have the same rights and powers hereunder and
under any other Loan Document with respect to its Commitment and
its Loans as any Lender and may exercise the same as though it
were not the Agent, and the term "Lender" or "Lenders" shall, at
any time when the Agent is a Lender, unless the context otherwise
indicates, include the Agent in its individual capacity. The
Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any
other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance
upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower,
such resignation to be effective upon the appointment of a
successor Agent or, if no successor Agent has been appointed,
forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or
without cause by written notice received by the Agent from the
Required Lenders, such removal to be effective on the date
specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent's giving
notice of its intention to resign, then the resigning Agent may
appoint, on behalf of the Borrower and the Lenders, a successor
Agent. Notwithstanding the previous sentence, the Agent may at
any time without the consent of the Borrower or any Lender,
appoint any of its Affiliates which is a commercial bank as a
successor Agent hereunder. If the Agent has resigned or been
removed and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly
with the Lenders. No successor Agent shall be deemed to be
appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and
duties of the resigning or removed Agent. Upon the effectiveness
of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Agent, the provisions of this
Article X shall continue in effect for the benefit of such Agent
in respect of any actions taken or omitted to be taken by it while
it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by
merger, or the Agent assigns its duties and obligations to an
Affiliate pursuant to this Section 10.12, then the term "Corporate
Base Rate" as used in this Agreement shall mean the prime rate,
base rate or other analogous rate of the new Agent.
10.13. Agent's Fee. The Borrower agrees to pay to the Agent,
for its own account, the fees agreed to by the Borrower and the
Agent pursuant to that certain letter agreement dated August 3,
1999, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders
agree that the Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such
Affiliate's directors, officers, agents and employees) which
performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and
other protective provisions to which the Agent is entitled under
Articles IX and X.
10.15. Syndication Agent, Co-Documentation Agents, etc. None
of the Lenders identified in this Agreement as a "Syndication
Agent" or a "Co-Documentation Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without
limiting the foregoing, none of such Lenders shall have or be
deemed to have a fiduciary relationship with any Lender. Each
Lender hereby makes the same acknowledgments with respect to such
Lenders as it makes with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced, or any Default occurs, any
and all deposits (including all account balances, whether
provisional or final and whether or not collected or available)
and any other Indebtedness at any time held or owing by any Lender
or any Affiliate of any Lender to or for the credit or account of
the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations,
or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loan (other than
payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a
greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the
Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender,
whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans.
In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of
the Borrower and the Lenders and their respective successors and
assigns, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents and (ii)
any assignment by any Lender must be made in compliance with
Section 12.3. The parties to this Agreement acknowledge that
clause (ii) of this Section 12.1 relates only to absolute
assignments and does not prohibit assignments creating security
interests, including, without limitation, any pledge or assignment
by any Lender of all or any portion of its rights under this
Agreement and any Note to a Federal Reserve Bank; provided,
however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations
hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof
for all purposes hereof unless and until such Person complies with
Section 12.3; provided, however, that the Agent may in its
discretion (but shall not be required to) follow instructions from
the Person which made any Loan or which holds any Note to direct
payments relating to such Loan or Note to another Person. Any
assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of the rights to any
Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or
assignee of the rights to such Loan.
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender shall remain
the owner of its Loans and the holder of any Note issued to it in
evidence thereof for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating
interests, and the Borrower and the Agent shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents
other than any amendment, modification or waiver with respect to
any Loan or Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest
rate or fees payable with respect to any such Loan or Commitment,
extends the Maturity Date, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees
on, any such Loan or Commitment, releases any guarantor of any
such Loan or releases all or substantially all of the collateral,
if any, securing any such Loan.
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided
in Section 11.1 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent as if
the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender
shall retain the right of setoff provided in Section 11.1 with
respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant,
and each Participant, by exercising the right of setoff provided
in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such
amounts to be shared in accordance with Section 11.2 as if each
Participant were a Lender.
12.3. Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at
any time assign to one or more banks or other entities
("Purchasers") all or any part of its rights and obligations under
the Loan Documents. Such assignment shall be substantially in the
form of Exhibit B hereto or in such other form as may be agreed to
by the parties thereto. The consent of the Borrower and the Agent
shall be required prior to an assignment becoming effective with
respect to a Purchaser which is not a Lender or an Affiliate
thereof; provided, however, that if a Default has occurred and is
continuing, the consent of the Borrower shall not be required.
Such consent shall not be unreasonably withheld or delayed. Each
such assignment with respect to a Purchaser which is not a Lender
or an Affiliate thereof shall (unless each of the Borrower and the
Agent otherwise consents) be in an amount not less than the lesser
of (i) $5,000,000 or (ii) the remaining amount of the assigning
Lender's outstanding Loan (calculated as at the date of such
assignment).
12.3.2 Effect; Effective Date. Upon (i) delivery to the Agent
of an assignment, together with any consents required by Section
12.3.1, and (ii) payment of a $4,000 fee to the Agent for
processing such assignment (unless such fee is waived by the
Agent), such assignment shall become effective on the effective
date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and
Loans under the applicable assignment agreement constitutes "plan
assets" as defined under ERISA and that the rights and interests
of the Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender
party to this Agreement and any other Loan Document executed by or
on behalf of the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further
consent or action by the Borrower, the Lenders or the Agent shall
be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Term Loan assigned to
such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender,
the Agent and the Borrower shall, if the transferor Lender or the
Purchaser desires that its Loan be evidenced by a Note, make
appropriate arrangements so that a new Note or, as appropriate, a
replacement Note is issued to such transferor Lender and a new
Note or, as appropriate, a replacement Note, is issued to such
Purchaser, in each case in a principal amount reflecting its
outstanding Loan, as adjusted pursuant to such assignment.
12.4. Dissemination of Information. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective
Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its
Subsidiaries; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of
any jurisdiction other than the United States or any State
thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.12
with respect to borrowing notices, all notices, requests and other
communications to any party hereunder shall be in writing
(including electronic transmission, facsimile transmission or
similar writing) and shall be given to such party: (x) in the case
of the Borrower or the Agent, at its address or facsimile number
set forth on the signature pages hereof, (y) in the case of any
Lender, at its address or facsimile number set forth below its
signature hereto or (z) in the case of any party, at such other
address or facsimile number as such party may hereafter specify
for the purpose by notice to the Agent and the Borrower in
accordance with the provisions of this Section 13.1. Each such
notice, request or other communication shall be effective (i) if
given by facsimile transmission, when transmitted to the facsimile
number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when
delivered (or, in the case of electronic transmission, received)
at the address specified in this Section; provided that notices to
the Agent under Article II shall not be effective until received.
13.2. Change of Address. The Borrower, the Agent and any
Lender may each change the address for service of notice upon it
by a notice in writing to the other parties hereto.
[signature pages to follow]
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agents
have executed this Agreement as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC.
By:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Telephone: (727) 573-
3800
Facsimile: (727) 573-
8365
Commitment: BANK ONE, NA,
$12,500,000 Individually and as
Administrative Agent
By:
Title:
Address for Notices:
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: (312) 732-
3642
Facsimile: (312) 732-
3246
Commitment: CITIBANK, N.A.,
$12,500,000 Individually and as
Syndication Agent
By:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (212) 559-
8621
Facsimile: (212) 371-
6309
Commitment: BANK OF AMERICA, NATIONAL
$12,500,000 ASSOCIATION,
Individually and as Co-
Documentation Agent
By:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (212) 503-
7986
Facsimile: (212) 503-
7013
Commitment: THE CHASE MANHATTAN BANK,
$12,500,000 Individually and as Co-
Documentation Agent
By:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (212) 552-
6259
Facsimile: (212) 552-
5142
Exhibit
A
COMPLIANCE CERTIFICATE
I, certify that I am the
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC. (the "Borrower"),
and that as such I am authorized to execute this Compliance
Certificate on behalf of the Borrower, and DO HEREBY FURTHER
CERTIFY on behalf of the Borrower that:
1. I have reviewed the terms of that certain Term Credit
Agreement dated as of October 26, 1999 among the Borrower, the
financial institutions named therein (the "Lenders") and Bank One,
NA, as administrative agent (the "Agent") (as amended,
supplemented or modified from time to time, the "Credit
Agreement") and I have made, or have caused to be made by
employees or agents under my supervision, a detailed review of the
transactions and conditions of the Borrower during the accounting
period covered by the attached financial statements;
2. The examinations described in paragraph 1 did not
disclose, and I have no knowledge of, the existence of any
condition or event which constitutes a Default or Unmatured
Default during or at the end of the accounting period covered by
the attached financial statements or as of the date of this
Compliance Certificate, except as set forth below; and
3. Schedule I attached hereto sets forth financial data and
computations evidencing compliance with the covenants set forth in
Sections 6.14, 6.21.1, 6.21.2, 6.21.3, 6.21.4 and 6.21.5 of the
Credit Agreement, all of which data and computations are true,
complete and correct. Capitalized terms not defined herein are
defined in the Credit Agreement.
Described below are the exceptions, if any, to
paragraph 2 by listing, in detail, the nature of the condition or
event, the period during which it has existed and the action which
the Borrower has taken, is taking, or proposes to take with
respect to each such condition or event:
_____________________________________________________________
_____
_____________________________________________________________
_____
The foregoing certifications, together with the computations
set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are
made and delivered this ______ day of ______________, _____.
▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC.
By:
Title:
Schedule I
Section 6.14 - Sale of Assets
Asset Dispositions for twelve-month period ending with month
in which disposition occurs:
(a) Permitted asset dispositions:
10% of consolidated assets of the Borrower at beginning
of such twelve-month period* $
(b) Actual asset dispositions for such period $
*Note: must also demonstrate (to the extent calculable)
that total asset dispositions for such period do not involve
Property which is responsible for more than 15% of the
consolidated net sales or Net Income of the Borrower for
such twelve-month period.
Section 6.21.1 - Minimum Tangible Net Worth
1. Required Tangible Net Worth: $400,000,000
* plus 50%
of cumulative Net Income earned after $
$
September 24, 1999
Total
2. Actual Tangible Net Worth: $
Section 6.21.2 - Maximum Double Leverage Ratio
1. Maximum Double Leverage Ratio 1.15 to 1.0
2. Actual Double Leverage Ratio
(a) Investment in Subsidiaries $
(b) Shareholders equity (parent only) $
(c) Ratio of (a) to (b) ____ to 1.0
▇▇▇▇▇▇▇ ▇.▇▇.▇ - ▇▇▇ Net Capital Ratio
10%
1. Minimum RJA Net Capital Ratio
2. Actual RJA Net Capital Ratio
$
(a) Net Capital
$
(b) Aggregate Debit Items
____%
(c) Ratio of (a) to (b)
Section 6.21.4 - RJFS Net Capital Ratio
1. Maximum RJFS Net Capital Ratio 9.0 to 1.0
2. Actual RJFS Net Capital Ratio
(a) Aggregate Indebtedness $
(b) Net Capital $
(c) Ratio of (a) to (b) ____ to
1.0
Section 6.21.5 - RJA/RJFS Excess Net Capital
1. Minimum combined RJA/RJFS Excess Net Capital
$100,000,000
2. Actual combined RJA/RJFS Excess Net Capital
$
Exhibit B
FORM OF
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement")
between ______________________ (the "Assignor") and
_______________________________ (the "Assignee") is dated as of
____________________, ____. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a
Credit Agreement (which, as it may be amended, modified, renewed
or extended from time to time is herein called the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement and
the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this
Assignment Agreement the percentage interest specified in Item 3
of Schedule 1 of all outstanding rights and obligations under the
Credit Agreement and the other Loan Documents relating to the
facilities listed in Item 3 of Schedule 1. The aggregate
Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in
Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date
specified in Item 5 of Schedule 1 or two Business Days (or such
shorter period agreed to by the Agent) after this Assignment
Agreement, together with any consents required under the Credit
Agreement, are delivered to the Agent. In no event will the
Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date are not made on
the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and
assignment of Loans hereunder, the Assignee shall pay the
Assignor, on the Effective Date, the amount agreed to by the
Assignor and Assignee. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all payments
of principal, interest and fees with respect to the interest
assigned hereby. The Assignee will promptly remit to the
Assignor any interest on Loans and fees received from the Agent
which relate to the portion of the Commitment or Loans assigned
to the Assignee hereunder for periods prior to the Effective Date
and not previously paid by the Assignee to the Assignor. In the
event that either party hereto receives any payment to which the
other party hereto is entitled under this Assignment Agreement,
then the party receiving such amount shall promptly remit it to
the other party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree
to pay one-half of the recordation fee required to be paid to the
Agent in connection with this Assignment Agreement unless
otherwise specified in Item 6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE
ASSIGNOR'S LIABILITY. The Assignor represents and warrants that
(i) it is the legal and beneficial owner of the interest being
assigned by it hereunder, (ii) such interest is free and clear of
any adverse claim created by the Assignor, (iii) the execution
and delivery of this Assignment Agreement by the Assignor is duly
authorized. It is understood and agreed that the assignment and
assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty
of any kind to the Assignee. Neither the Assignor nor any of its
officers, directors, employees, agents or attorneys shall be
responsible for (a) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectibility of any
Loan Document, including, without limitation, documents granting
the Assignor and the other Lenders a security interest in assets
of the Borrower or any guarantor, (b) any representation,
warranty or statement made in or in connection with any of the
Loan Documents, (c) the financial condition or creditworthiness
of the Borrower or any guarantor, (d) the performance of or
compliance with any of the terms or provisions of any of the Loan
Documents, (e) inspecting any of the property, books or records
of the Borrower, (f) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral
securing or purporting to secure the Loans, or (g) any mistake,
error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The
Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements
requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement,
(ii) agrees that it will, independently and without reliance upon
the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents, (iii) appoints and
authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are
delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) confirms that
the execution and delivery of this Assignment Agreement by the
Assignee is duly authorized, (v) agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as
a Lender, (vi) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1,
(vii) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents
will not be "plan assets" under ERISA, (viii) agrees to indemnify
and hold the Assignor harmless against all losses and expenses
(including, without limitation, reasonable attorneys' fees) and
liabilities incurred by the Assignor in connection with or
arising in any manner from the Assignee's non-performance of the
obligations assumed under this Assignment Agreement, and (ix) if
applicable, attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Assignee is
entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income
taxes.
8. GOVERNING LAW. THIS ASSIGNMENT AGREEMENT SHALL BE
GOVERNED BY THE INTERNAL LAWS, AND NOT THE LAW OF CONFLICTS, OF
THE STATE OF NEW YORK.
9. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For
the purpose hereof, the addresses of the parties hereto (until
notice of a change is delivered) shall be the address set forth
in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment
Agreement may be executed in counterparts. Transmission by
facsimile of an executed counterpart of this Assignment Agreement
shall be deemed to constitute due and sufficient delivery of such
counterpart and such facsimile shall be deemed to be an original
counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the
parties hereto have executed this Assignment Agreement by
executing Schedule 1 hereto as of the date first above written.
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
That certain Term Credit Agreement dated as
of October 26, 1999 among ▇▇▇▇▇▇▇ ▇▇▇▇▇
Financial, Inc., the Lenders named therein
and Bank One, NA, as administrative agent
(the "Agent").
2. Date of Assignment Agreement: , ______.
3. Amounts (as of Date of Item 2 above):
(a) Assignee's percentage of Term Loan purchased
under the Assignment Agreement*
_________%
(b) Amount of Term Loan purchased
under the Assignment Agreement
$__________
4. Assignee's Loan:
$__________
5. Proposed Effective Date:
___________
6. Non-standard Recordation Fee Arrangement
N/A**
[Assignor/Assignee to
pay 100% of fee]
[Fee waived by
Agent]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:_________________________
By:_________________________
Title:________________________
Title:________________________
Accepted and Consented to *** by: Accepted and
Consented to *** by:
▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC. BANK ONE, NA
By:_________________________
By:_________________________
Title:________________________
Title:________________________
* Percentage taken to 10 decimal places.
** If fee is split 50-50, pick N/A as option.
*** Delete if not required by Credit Agreement.
ATTACHMENT TO SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
