EXHIBIT 10.24
STANDBY CREDIT FACILITY NOTE
$40,000,000.00 As of June 30, 2003
This non-interest bearing standby revolving credit facility
note (this "Note") is executed pursuant to an interest-free loan made as of the
date hereof by Fairfax Financial Holdings Limited, a financial services holding
corporation having an office at 00 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0 (the "Lender"), to Xxxx & Xxxxxxx Holdings Corp., a
Delaware corporation having an office at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 (the "Borrower"), in the amount of FORTY MILLION AND No/100 DOLLARS
($40,000,000.00).
1. LENDER'S COMMITMENT. Subject to the terms and conditions
hereof, the Lender hereby establishes in favor of the Borrower a revolving
credit having a value in the maximum principal amount of FORTY MILLION AND
No/100 DOLLARS ($40,000,000.00) from time to time to be used by the Borrower
only, and so long as necessary, to meet corporate obligations.
2. REPAYMENT. FOR VALUE RECEIVED, Xxxxxxxx promises to pay to
Lender the principal amount of FORTY MILLION AND No/100 DOLLARS
($40,000,000.00), without interest, in lawful money of the United States of
America, or so much of such amount as may be advanced by the Lender from time to
time.
(a) Subject to Section 3, the full repayment of any
then outstanding principal amount shall be repaid on June 30, 2018 (the
"Maturity Date").
(b) Borrower may, from time to time upon prior written
notice (the "Prepayment Notice") to the Lender, prepay this Note in whole or in
part. The Borrower shall indemnify and hold the Lender harmless against any
loss, cost or expense incurred by the Lender as a result of the Borrower's
failure to make a prepayment on the date set forth in the Borrower's Prepayment
Notice. All payments on this Note shall be made in lawful money of the United
States. All advances and payments of principal of this Note may be endorsed by
the Lender on the attached schedule.
3. SUBORDINATION. The Borrower's obligations under this Note,
including at the Maturity Date, shall be subordinated to the prior payment in
full of all principal, interest and other obligations in respect of any existing
or future senior indebtedness of the Borrower (the "Senior Debt"), including but
not limited to the $300,000,000 aggregate principal amount senior notes due 2013
initially issued by Xxxx & Xxxxxxx Funding Corp. (the "Funding Notes"). No
repayment pursuant to Section 2 is due under any circumstances unless such
payment is
permitted by, and will not cause a default or Event of Default (as defined in
the applicable document) under, the indentures or other documents governing the
Senior Debt. Notwithstanding Section 5, this Note may not be modified, amended,
extended, changed, discharged or terminated without the consent of the holders
of a majority in principal amount of the Senior Debt, including but not limited
to the Funding Notes.
4. GOVERNING LAW. This Note shall be governed by, and
construed and enforced in accordance with, the laws of New York.
5. MODIFICATION AND IRREVOCABILITY. (a) Subject to Section 3,
this Note may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of the Borrower or
the Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
(b) This Note may not be revoked by the Lender for a
period of 10 years from the date hereof.
6. JOINT AND SEVERAL OBLIGATIONS. If the Borrower consists of
more than one person or party, the obligations and liabilities of each such
person or party shall be joint and several.
7. NO RELEASE. The Borrower and all others who are or who may
become liable for the payment of all or any part of the sums due under this note
(the "Debt") do hereby severally waive presentment and demand for payment,
notice of dishonor, protest, notice of protest, and non-payment, and notice of
intent to accelerate the maturity hereof (and of such acceleration). No release
of any security for the Debt or extension of time for payment of this Note or
any installment hereof, and no alteration, amendment or waiver of any provision
of this Note made by agreement between the Lender and any other person or party
shall release, modify, amend, waive, extend, change, discharge, terminate or
affect the liability of the Borrower, and any other person or party that may
become liable for the payment of all or any part of the Debt under this Note.
8. BINDING OBLIGATION. The Borrower (and the undersigned
representative of the Borrower, if any) represents that the Borrower has full
power, authority and legal right to execute, deliver and perform its obligations
pursuant to this Note and any other related security documents, if any, and that
this Note constitutes a legal, valid and binding obligation of the Borrower.
9. CUMULATIVE RIGHTS AND REMEDIES. (a) The rights and remedies
of the Lender as provided in this Note shall be cumulative and concurrent; may
be pursued separately, successively, or together at the sole discretion of the
Lender, may be exercised as often as occasion for their exercise shall arise;
and in no event shall the failure to exercise any such right or remedy be
construed as a waiver or release of it.
(b) If any provision of this Note is held to be invalid
or unenforceable by a Court of competent jurisdiction, the other provisions of
this Note shall remain in full force and effect.
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(c) Any failure by the Lender to insist upon strict
performance by the Borrower of any of the provisions of this Note shall not be
deemed to be a waiver of any of the terms or provisions of this Note and the
Lender shall have the right thereafter to insist upon strict performance by the
Borrower of any and all of them.
(d) All times, wherever stated herein, shall be of the
essence of this Note.
* * *
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IN WITNESS WHEREOF, the Lender and the Borrower have duly
executed this Note as of the date first above written.
"LENDER":
Fairfax Financial Holdings Limited
By: /s/ V. XXXX XXXXX
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Name: X. XXXX XXXXX
Title: Chief Executive Officer
"BORROWER":
Xxxx & Xxxxxxx Holdings Corp.
By: /s/ V. XXXX XXXXX
-----------------
Name: X. XXXX XXXXX
Title: Chief Executive Officer
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ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Principal Unpaid Principal Notation
Date Amount of Advance Paid or Prepaid Balance Made By
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