AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT Dated as of October 13, 2005 among RAYMOND JAMES FINANCIAL, INC., as Borrower, THE LENDERS NAMED HEREIN, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Syndication Agent, BANK OF...
EXHIBIT
10.9
$200,000,000
AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
Dated
as
of October 13, 2005
among
XXXXXXX
XXXXX FINANCIAL, INC.,
as
Borrower,
THE
LENDERS NAMED HEREIN,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent,
CITIBANK,
N.A.,
as
Syndication Agent,
BANK
OF
NEW YORK,
as
Co-Documentation Agent,
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Co-Documentation Agent
and
CALYON
NEW YORK BRANCH,
as
Co-Documentation Agent
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
ARTICLE
II
THE
CREDITS
2.1.Advances
2.2.Ratable
Loans
2.4.Facility
Fee; Reductions in Aggregate Commitment
2.5.Minimum
Amount of Each Advance
2.6.Optional
Principal Payments
2.7.Method
of
Selecting Types and Interest Periods for New Advances
2.8.Conversion
and Continuation of Outstanding Advances
2.9.Changes
in Interest Rate, etc
2.10.Rates
Applicable After Default
2.11.Method
of
Payment
2.12.Telephonic
Notices
2.13.Interest
Payment Dates; Interest and Fee Basis
2.14.Notification
of Advances, Interest Rates, Prepayments and Commitment Reductions
2.15.Lending
Installations
2.16.Non-Receipt
of Funds by the Agent
2.17.Noteless
Agreement; Evidence of Indebtedness
2.18.Extension
of Facility Termination Date
2.19.Replacement
of Lender
ARTICLE
III
YIELD
PROTECTION; TAXES
3.1.Yield
Protection
3.2.Changes
in Capital Adequacy Regulations
3.3.Availability
of Types of Advances
3.4.Funding
Indemnification
3.5.Taxes
3.6.Lender
Statements; Survival of Indemnity
ARTICLE
IV
4.1.Initial
Loans
4.2.Each
Future Advance
ARTICLE
V
5.1.Corporate
Existence; Conduct of Business
5.2.Authorization
and Validity
5.3.Compliance
with Laws and Contracts
5.4.Governmental
Consents
0.0.Xxxxxxxxx
Statements
5.6.Material
Adverse Change
5.7.Taxes
5.8.Litigation
and Contingent Obligations
5.9.Subsidiaries
5.10.ERISA
5.11.Defaults
5.12.Federal
Reserve Regulations
5.13.Investment
Company
5.14.Ownership
of Properties
5.15.Material
Agreements
0.00.Xxxxxxxxx
5.17.Disclosure
ARTICLE
VI
0.0.Xxxxxxxxx
Reporting
6.2.Use
of
Proceeds
6.3.Notice
of
Default
6.4.Conduct
of Business
6.5.Taxes
0.0.Xxxxxxxxx
6.7.Compliance
with Laws
6.8.Maintenance
of Properties
6.9.Inspection
6.10.Ownership
of Subsidiaries
6.11.Indebtedness
6.12.Merger
0.00.Xxxx
of
Assets
0.00.Xxxxxxxxxxx
and Acquisitions
6.15.Contingent
Obligations
6.16.Liens
6.17.Affiliates
6.18.Change
in
Corporate Structure; Fiscal Year
6.19.Inconsistent
Agreements
0.00.Xxxxxxxxx
Covenants.
6.20.1Minimum
Tangible Net Worth
6.20.2Double
Leverage Ratio
6.20.3RJA
Net
Capital
6.20.4RJFS
Net
Capital
6.20.5RJA/RJFS
Excess Net Capital
ARTICLE
VII
7.1.Representation
or Warranty
7.2.Non-Payment
7.3.Specific
Defaults
7.4.Other
Defaults
7.5.Cross-Default
7.6.Insolvency;
Voluntary Proceedings
7.7.Involuntary
Proceedings
7.8.Condemnation
7.9.Judgments
7.10.Change
in
Control
7.11.SIPC
7.12.Broker-Dealer
License
7.13.ERISA
ARTICLE
VIII
ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES
8.1.Acceleration
8.2.Amendments
8.3.Preservation
of Rights
ARTICLE
IX
9.1.Survival
of Representations
9.2.Governmental
Regulation
9.3.Headings
9.4.Entire
Agreement
9.5.Several
Obligations; Benefits of this Agreement
9.6.Expenses;
Indemnification
9.7.Numbers
of Documents
9.8.Accounting
9.9.Severability
of Provisions
9.10.Nonliability
of Lenders
9.11.Confidentiality
9.12.Nonreliance
9.13.Disclosure
9.14.CHOICE
OF
LAW
9.15.CONSENT
TO JURISDICTION
9.16.WAIVER
OF
JURY TRIAL
9.17.USA
Patriot Act
ARTICLE
X
THE
AGENT
10.1.Appointment;
Nature of Relationship
10.2.Powers
10.3.General
Immunity
00.0.Xx
Responsibility for Loans, Recitals, etc
10.5.Action
on
Instructions of Lenders
10.6.Employment
of Agents and Counsel
00.0.Xxxxxxxx
on Documents; Counsel
10.8.Agent's
Reimbursement and Indemnification
10.9.Notice
of
Default
10.10.Rights
as
a Lender
10.11.Lender
Credit Decision
10.12.Successor
Agent
10.13.Agent's
Fee
10.14.Delegation
to Affiliates
10.15.Syndication
Agent, Co-Documentation Agents, etc
ARTICLE
XI
SETOFF;
RATABLE PAYMENTS
11.1.Setoff
11.2.Ratable
Payments
ARTICLE
XII
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1.Successors
and Assigns
12.2.Participations.
12.2.1Permitted
Participants; Effect
12.2.2Voting
Rights
12.2.3Benefit
of Setoff
12.3.Assignments.
12.3.1Permitted
Assignments
12.3.2Additional
Conditions
12.3.3Effect
12.3.4Register.
12.4.Dissemination
of Information
00.0.Xxx
Treatment
ARTICLE
XIII
13.1.Notices
13.2.Change
of
Address
EXHIBITS
Exhibit
A Form
of
Borrowing/Election Notice
Exhibit
B Compliance
Certificate
Exhibit
C Assignment
and Assumption
SCHEDULES
Schedule
I - Material
Subsidiaries
Schedule
II - Existing
Indebtedness
AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of October 13,
2005,
is among XXXXXXX XXXXX FINANCIAL, INC., a Florida corporation, the Lenders
(as
hereinafter defined), JPMORGAN CHASE BANK, N.A., individually and as
administrative agent (the “Agent”),
CITIBANK, N.A., individually and as syndication agent (the “Syndication
Agent”),
BANK
OF NEW YORK, individually and as co-documentation agent (“Co-Documentation
Agent”),
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, individually and as co-documentation agent
(“Co-Documentation
Agent”),
and
CALYON NEW YORK BRANCH, individually and as co-documentation agent
(“Co-Documentation
Agent”).
A. The
Borrower has requested the Lenders to provide a revolving credit facility
to it
in the aggregate principal amount of $200,000,000, the proceeds of which
the
Borrower will use for general corporate purposes, including without limitation
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.
I.
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.
“Administrative
Questionnaire” means an administrative questionnaire in a form supplied by the
Agent.
“Advance”
means a borrowing pursuant to Section
2.1
consisting of the aggregate amount of the several Loans made on the same
Borrowing Date by the Lenders to the Borrower 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 JPMorgan Chase Bank, N.A. 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.
The current Aggregate Commitment is $200,000,000.
“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 Revolving 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 Prime 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.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and
an assignee (with the consent of any party whose consent is required by
Section
12.3),
and
accepted by the Agent, in the form of Exhibit
C
or any
other form approved by the Agent.
“Authorized
Officer” means any of the chief executive officer, president, chief financial
officer or controller of the Borrower, acting singly.
“Bankruptcy
Code” means Xxxxx 00, Xxxxxx Xxxxxx 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 Xxxxxxx Xxxxx Financial, Inc., a Florida corporation, and its successors
and assigns.
“Borrowing
Date” means a date on which an Advance is made hereunder.
“Borrowing/Election
Notice” is defined in Section
2.7.
“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 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 New York 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 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. For purposes of making
such
calculation, 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 Loans not
exceeding the amount set forth opposite its signature below and as set forth
in
any assignment which has become effective pursuant to Section
12.3,
as such
amount may be modified from time to time pursuant to the terms
hereof.
“Compliance
Certificate” means a certificate executed by an Authorized Officer substantially
in the form of Exhibit
B
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.
“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 LIBOR rate for deposits
in
U.S. dollars as reported by any 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,
provided
that, if
no such British Bankers' Association LIBOR 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 JPMorgan Chase
Bank,
N.A. 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 JPMorgan Chase Bank, N.A.’s relevant Eurodollar
Loan and having a maturity equal to such Interest Period.
“Eurodollar
Loan” means a Loan 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) (i)
1.00%
per annum during any period when the outstanding principal amount of the
Advances is less than 50% of the Aggregate Commitment and (ii) 1.125% per
annum
during any period when the outstanding principal amount of the Advances is
greater than or equal to 50% of the Aggregate Commitment.
“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.
“Facility
Fee” is defined in Section
2.4.
“Facility
Termination Date” means October 11, 2006 or any later date as may be specified
as the Facility Termination Date in accordance with Section
2.18
or any
earlier date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.
“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 11:00 a.m. (New York 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 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 or
three 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 or three months thereafter; provided,
however,
that if
there is no such numerically corresponding day in such next, second or third
succeeding month, such Interest Period shall end on the last Business Day
of
such next, second or third 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 the Borrower or a Subsidiary means any (a) loan, advance (other than (i)
commission, bonus, travel and similar advances to officers and employees
made in
the ordinary course of business and (ii) non-recourse loans to directors,
officers and employees of the Borrower or its Subsidiaries for investments
in
Borrower-sponsored investment programs), extension of credit (other than
accounts receivable and customer loans secured by customer securities in
each
case 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 loan made pursuant to
Article
II
(or any
conversion or continuation thereof).
“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).
“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.
“Prime
Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal
office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being
effective.
“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.
“RJA”
means Xxxxxxx Xxxxx & Associates, Inc. and any successor
entity.
“RJFS”
means Xxxxxxx Xxxxx Financial Services, Inc. and any successor
entity.
“Register”
is defined in Section
12.3.4.
“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
Commitment or, if the Aggregate Commitment has been terminated, Lenders in
the
aggregate holding at least 51% of the aggregate unpaid principal amount of
the
outstanding Advances.
“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.
“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.
“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.
“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.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
II.
2.1. Advances.
(a)
From and
including the date of this Agreement and prior to the Facility Termination
Date,
each Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make Loans to the Borrower from time to time in amounts not
to
exceed in the aggregate at any one time outstanding the amount of its
Commitment. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow Advances at any time prior to the Facility Termination
Date.
The Commitments to lend hereunder shall expire on the Facility Termination
Date.
(b) The
Borrower hereby agrees that if at any time, as a result of reductions in
the
Aggregate Commitment pursuant to Section
2.4
or
otherwise, the aggregate balance of the Loans exceeds the Aggregate Commitment,
the Borrower shall repay immediately its then outstanding Loans in such amount
as may be necessary to eliminate such excess.
(c) Any
outstanding Advances and all other unpaid Obligations shall be paid in full
by
the Borrower on the Facility Termination Date.
2.2. Ratable
Loans. Each Advance hereunder shall consist of Loans made from the several
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment.
2.3. Types
of Advances. The Advances may be Floating Rate Advances or Eurodollar Advances,
or a combination thereof, selected by the Borrower in accordance with Sections
2.7 and 2.8.
2.4. Facility
Fee; Reductions in Aggregate Commitment. (a)
The
Borrower agrees to pay to the Agent for the account of each Lender a facility
fee (the “Facility Fee”) in an amount equal to 0.125% per annum times the daily
average Commitment of such Lender (regardless of usage) from the date hereof
to
and including the Facility Termination Date, payable quarterly in arrears
on the
last Business Day of each calendar quarter hereafter and on the Facility
Termination Date. All accrued Facility Fees shall be payable on the effective
date of any termination of the obligations of the Lenders to make Loans
hereunder.
(b) The
Borrower may permanently reduce the Aggregate Commitment in whole, or in
part
ratably among the Lenders in a minimum aggregate amount of $5,000,000 or
any
integral multiple of $1,000,000 in excess thereof, upon at least five Business
Days’ written notice to the Agent, which notice shall specify the amount of any
such reduction; provided,
however,
that
the amount of the Aggregate Commitment may not be reduced below the aggregate
principal amount of the outstanding Advances.
2.5. Minimum
Amount of Each Advance. Each Eurodollar Advance shall be in the minimum amount
of $5,000,000 (and in 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 (a)
any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment
and (b) in no event shall more than five (5) Eurodollar Advances be permitted
to
be outstanding at any time.
2.6. Optional
Principal Payments. The Borrower may from time to time pay, without penalty
or
premium, all outstanding Floating Rate Advances, 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 Floating Rate Advances upon two Business Days’
prior notice to the Agent. The Borrower may from time to time pay, subject
to
the payment of any funding indemnification amounts required by Section 3.4
but
without penalty or premium, all outstanding Eurodollar Advances, 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 Eurodollar Advances upon three
Business Days' prior notice to the Agent.
2.7. Method
of Selecting Types and Interest Periods for New Advances. The Borrower shall
select the Type of Advance and, in the case of each Eurodollar Advance, the
Interest Period applicable to each Advance from time to time. The Borrower
shall
give the Agent irrevocable telephonic notice not later than 11:00 a.m. (New
York
time) at least one Business Day before the Borrowing Date of each Floating
Rate
Advance and three Business Days before the Borrowing Date for each Eurodollar
Advance, such
notice to be promptly confirmed in writing substantially in the form of Exhibit
A (a “Borrowing/Election Notice”), specifying:
(a) the
Borrowing Date of such Advance, which shall be a Business Day;
(b) the
aggregate amount of such Advance;
(c) the
Type
of Advance selected;
(d) in
the
case of each Eurodollar Advance, the Interest Period applicable thereto,
which
shall end on or prior to the Facility Termination Date; and
(e) the
Borrower’s account to which the funds constituting the Advance should be
transferred.
Not
later
than 1:00 p.m. (New York time) on each Borrowing Date, each Lender shall
make
available its Loan or Loans, in funds immediately available in New York,
to the
Agent at its address specified pursuant to Article
XIII.
The
Agent will make the funds so received from the Lenders available to the Borrower
at the Agent’s aforesaid address.
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 2.6. 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 2.6 or (y) the Borrower shall have given the Agent
a
Borrowing/Election Notice 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 2.5, 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 an irrevocable
Borrowing/Election Notice of each conversion of a Floating Rate Advance into
a
Eurodollar Advance or of the continuation of a Eurodollar Advance not later
than
11:00 a.m. (New York 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 Facility Termination 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 Sections 2.7 and 2.8 and otherwise
in
accordance with the terms hereof. No Interest Period may end after the Facility
Termination Date.
2.10. Rates
Applicable After Default. Notwithstanding anything to the contrary contained
in
Section 2.7 or 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 1:00 p.m. (New York 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 JPMorgan Chase Bank, N.A.
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 Borrowing/Election Notices to be given telephonically.
The
Borrower agrees to deliver promptly to the Agent a written confirmation 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 and Facility Fees
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 1:00 p.m. (New
York
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 Advances, Interest Rates, Prepayments and Commitment Reductions. Promptly
after receipt thereof, the Agent will notify each Lender of the contents
of each
Aggregate Commitment reduction notice, Borrowing/Election 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 Loans 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 Loans and any Notes 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 through which Loans will
be made
by it and 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
relevant Loan, or (y) in the case of payment by the Borrower, the interest
rate
applicable to the relevant Loan.
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 each Loan made
by
such Lender from time to time, 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 Loans 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 Loans 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 such Loans 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 New York or
such
other place agreed to by the parties.
2.18. Extension
of Facility Termination Date. The Borrower may request an extension of the
Facility Termination Date 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 Facility Termination Date. Each extension effected
pursuant to this Section 2.18 shall commence on the then effective Facility
Termination Date (the “Extension Date”). The Extension Request must specify the
new Facility Termination Date requested by the Borrower, which date shall
be no
more than 364 days (the “Extension Period”) after the Extension Date, including
the Extension Date as one of the days in the calculation of the days elapsed.
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
Facility Termination 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 Facility Termination
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 Facility Termination Date and new
Aggregate Commitment. 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 Facility Termination Date without giving
effect
to any requested extension, (b) the Aggregate Commitment as of the commencement
of the Extension Period shall be reduced to an amount equal to the sum of
the
Commitments 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 Commitment 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 Advances and other Obligations due to the
Affected Lender pursuant to an Assignment and Assumption substantially in
the
form of Exhibit C 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 Loans of such Affected Lender been
prepaid
on such date rather than sold to the replacement Lender.
III.
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:
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(i)
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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
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(ii)
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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
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(iii)
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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,
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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 a “United States person” within the meaning of Section
7701(a)(30) of the Code (a “Non-U.S.
Lender”)
shall
deliver to the Agent and the Borrower on or prior to the Closing Date (or,
in
the case of a Lender that acquired its interest by assignment, upon accepting
an
assignment of an interest herein), two duly signed completed copies of either
IRS Form W-8BEN or any successor thereto (relating to such Non-U.S. Lender
and
entitling it to an exemption from withholding tax on all payments to be made
to
such Non-U.S. Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Non-U.S. Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Agent that such Non-U.S. Lender
is
entitled to an exemption from U.S. withholding tax with respect to all payments
to be made to such Non-U.S. Lender by the Borrower pursuant to this Agreement,
including any exemption pursuant to Section 881(c) of the Code. Thereafter
and
from time to time, each such Non-U.S. Lender shall (a) promptly submit to
the
Agent such additional duly completed and signed copies of one of such forms
(or
such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory
to the Borrower and the Agent of any available exemption from or reduction
of,
United States withholding taxes in respect of all payments to be made to
such
Non-U.S. Lender by the Borrower pursuant to this Agreement, (b) promptly
notify
the Agent of any change in circumstances which would modify or render invalid
any claimed exemption or reduction, and (c) take such steps as shall not
be
materially disadvantageous to it, in the reasonable judgment of such Lender,
and
as may be reasonably necessary (including the re-designation of its Lending
Installation) to avoid any requirement of applicable laws that the Borrower
make
any deduction or withholding for taxes from amounts payable to such Non-U.S.
Lender.
(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.
IV.
4.1. Initial
Loans. The Lenders shall not be required to make the initial Advance hereunder
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 13,
2005:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) Legal
Opinion.
A
favorable written opinion of Xxxx Xxxxxxx, Esq., General Counsel to the
Borrower, addressed to the Agent and the Lenders in form and substance
acceptable to the Agent and its counsel.
(vi) Loan
Documents.
Executed originals of this Agreement, each of the other Loan Documents, together
with all schedules, exhibits, certificates, instruments, opinions, documents
and
financial statements required to be delivered pursuant hereto and
thereto.
(vii) FOCUS
Reports.
Copies
of the RJA/RJFS FOCUS Reports referred to in Section
5.5.
(viii) 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
10.13
and, to
the extent invoiced, the attorneys’ fees, time charges and disbursements
referred to in Section
9.6.
(ix) Other.
Such
other documents as the Agent, any Lender or their counsel may have reasonably
requested.
4.2. Each
Future Advance. The Lenders shall not be required to make any Advance unless
on
the applicable Borrowing Date:
(i) There
exists no Default or Unmatured Default and none would result from such
Advance;
(ii) The
representations and warranties contained in Article
V
are true
and correct as of such Borrowing Date, including the representations and
warranties set forth in Section
5.6
and the
first sentence of Section
5.8;
and
(iii) A
Borrowing/Election Notice shall have been properly submitted.
Each
Borrowing/Election Notice with respect to each such Advance shall constitute
a
representation and warranty by the Borrower that the conditions contained
in
Section
4.2
have
been satisfied. Any Lender may require a duly completed Compliance Certificate
as a condition to making an Advance.
V.
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 6.16) 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 24, 2004 audited consolidated financial statements of the Borrower
and
its Subsidiaries and (b) the June 24, 2005 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 31, 2004, March 24, 2005 and June 24, 2005
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 24, 2005.
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 Internal Revenue Service is in
the
process of completing its audit of the United States income tax returns of
the
Borrower on a consolidated basis through the Borrower’s Fiscal Year ending
September 26, 2003. 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. 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.
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 6.16, 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. 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 reasonably consistent with sound business
practice.
5.17. 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.
VI.
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 75 days after the close of each of
its
Fiscal Years, an unqualified audit report from KPMG 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 40 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 or its controller.
(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 or its controller
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 effective registration statements
(other than on Form S-8) 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
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 loans from the Borrower
to any
Subsidiary of the Borrower, which loans by their terms are subordinated to
other
Indebtedness of such Subsidiary.
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, 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 6.12(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 reasonably 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.
(i) The
Loans
hereunder;
(ii) Existing
Indebtedness described on Schedule II hereto;
(iii) Securities
sold under agreements to repurchase (to the extent such obligations constitute
Indebtedness);
(iv) Contingent
Obligations permitted by Section
6.15;
(v) Capital
Lease Obligations and purchase money Indebtedness not exceeding $25,000,000
in
the aggregate at any time outstanding;
(vi) (i)
Moneys due to counterparties under stock loan transactions, (ii) liabilities
to
customers for cash on deposit, (iii) liabilities to brokers, dealers and
clearing organizations relating to the settlement of securities transactions,
and (iv) monies due to counterparties under interest rate swap
transactions;
(vii) Indebtedness
of Xxxxxxx Xxxxx Credit Corporation in an aggregate principal amount not
exceeding $50,000,000 used to finance loans collateralized by public company
restricted or control shares;
(viii) Indebtedness
of any Subsidiary for borrowed money from the Borrower which is not subordinated
by its terms to other Indebtedness of such Subsidiary;
(ix) Additional
mortgage Indebtedness in an aggregate principal amount not exceeding
$40,000,000, the proceeds of which are used for the expansion of the Borrower’s
corporate headquarters;
(x) Guarantees
or loans by the Borrower of up to $100,000,000 with respect to the activities
of
Xxxxxxx Xxxxx Tax Credit Funds, Inc. or any of its Subsidiaries;
and
(xi) Unsecured
Indebtedness not otherwise permitted by this Section
6.11
in an
aggregate principal amount not exceeding $5,000,000.
(i) Existing
Investments in Subsidiaries and Affiliates;
(ii) 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;
(iii) Publicly-traded
securities and private equity participations;
(iv) Additional
Investments in existing Subsidiaries of the Borrower provided that
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;
(v) Acquisitions
of or Investments in the capital stock, assets, obligations or other securities
of or interest in other Persons provided that
(i) each
such Person shall (x) in regard to Persons that would as a result of the
proposed transaction become Material Subsidiaries, be incorporated, organized
or
otherwise formed under the laws of any state of the United States, or under
the
laws of Canada or Great Britain, and (y) be 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;
(vi) Repurchases
of up to 7,500,000 shares of the Borrower's common stock to fund the Borrower's
incentive stock option and stock purchase plans and other corporate purposes;
and
(vii) Securities
purchased under agreements to resell (to the extent such transactions constitute
Investments).
(i) by
endorsement of instruments for deposit or collection in the ordinary course
of
business;
(ii) guarantees
by the Borrower of the Indebtedness of Xxxxxxx Xxxxx Credit Corporation in
an
aggregate principal amount not exceeding $50,000,000 referred to in Section
6.11(g);
(iii) 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;
(iv) guarantees
or loans by the Borrower of up to $100,000,000 with respect to the activities
of
Xxxxxxx Xxxxx Tax Credit Funds, Inc. or any of its Subsidiaries;
(v) guarantees
by the Borrower relating to the net performance obligations of RJ Capital
Services, Inc. owed to counterparties under interest rate swap transactions
documented under the ISDA (International Swaps Dealer Association) form Master
Agreement and applicable Addenda; and
(vi) guarantees
by the Borrower (or any Subsidiary) of the Indebtedness of any other
Subsidiaries in an aggregate principal amount not exceeding
$25,000,000.
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) Liens
securing the Indebtedness permitted by Sections
6.11(b),
(c),
(f)
and
(i);
and
(vi) Liens
incurred in the ordinary course of the settlement of securities
transactions.
6.20. Financial
Covenants.
VII.
The
occurrence of any one or more of the following events shall constitute a
Default:
VIII.
If,
within 30 Business Days after acceleration of the maturity of the Obligations
or
termination of the obligations of the Lenders to make Loans hereunder 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 and/or termination.
(i) Extend
the final maturity of any Loan or forgive all or any portion of the principal
amount thereof, or reduce the rate or extend the time of payment of interest
or
fees thereon.
(ii) Change
the percentage specified in the definition of Required Lenders, or change
Section
2.11
or
Section
11.2
in a
manner that would alter the pro rata sharing of payments required
thereby.
(iii) Extend
the Facility Termination Date (other than as provided in Section
2.18),
or
reduce the amount or extend the payment date for, the mandatory payments
required under Section
2.1,
or
increase the amount of the Commitment of any Lender hereunder, or permit
the
Borrower to assign its Obligations or rights under this Agreement.
(iv) 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.
IX.
X.
XI.
XII.
12.2. Participations.
12.3. Assignments.
(i) the
Borrower, provided
that no
consent of the Borrower shall be required for an assignment to a Lender with
a
Commitment immediately prior to giving effect to such assignment, or, if
a
Default has occurred and is continuing, any other assignee; and
(ii) the
Agent, provided
that no
consent of the Agent shall be required for an assignment of any Commitment
to an
assignee that is a Lender with a Commitment immediately prior to giving effect
to such assignment.
(i) except
in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Agent) shall not be less
than $5,000,000, unless each of the Borrower and the Agent otherwise consent,
provided
that no
such consent of the Borrower shall be required if a Default has occurred
and is
continuing;
(ii) each
partial assignment shall be made as an assignment of a proportionate part
of all
the assigning Lender's rights and obligations under this Agreement;
(iii) the
parties to each assignment shall execute and deliver to the Agent an Assignment
and Assumption, together with a processing and recordation fee of $4,000;
and
(iv) the
assignee, if it shall not be a Lender, shall deliver to the Agent an
Administrative Questionnaire.
d. Register.
(i) The
Agent
shall maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitment of, and principal amount of the Loans owing
to,
each Lender pursuant to the terms hereof from time to time (the "Register").
The
entries in the Register shall be conclusive, and the Borrower, the Agent,
and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable
time
and from time to time upon reasonable prior notice.
(ii) Upon
its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing
and
recordation fee referred to in Section
12.3.2,
and any
written consent to such assignment required by Section
12.3.1,
the
Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register; provided
that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section
2.16
or
10.8,
the
Agent shall have no obligation to accept such Assignment and Assumption and
record the information therein in the Register unless and until such payment
shall have been made in full, together with all accrued interest thereon.
No
assignment shall be effective for purposes of this Agreement unless it has
been
recorded in the Register as provided in this paragraph.
XIII.
[signature
pages to follow]
XXXXXXX
XXXXX FINANCIAL, INC.
By:
Title:
Address
for Notices:
000
Xxxxxxxx Xxxxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment: JPMORGAN
CHASE BANK, N.A.,
$40,000,000 Individually
and as Administrative Agent
By:
Title:
Address
for General Notices:
Financial
Institutions-Broker-Dealer Group
000
Xxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Pandora
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Address
for Funding Matters:
Loan
and
Agency Services
0000
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX 00000
Attention: Xxxxx
X.
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment: CITIBANK,
N.A.,
$40,000,000 Individually
and as Syndication Agent
By:
Title:
Address
for Notices:
000
Xxxxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
Xxxxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment: BANK
OF
NEW YORK,
$40,000,000 Individually
and as Co-Documentation Agent
By:
Title:
Address
for Notices:
Xxx
Xxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxx
Xxxxxxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment: XXXXX
FARGO BANK, NATIONAL
$40,000,000 ASSOCIATION,
Individually
and as Co-Documentation Agent
By:
Title:
By:
Title:
Address
for Notices:
Xxxxx
Fargo Center
Sixth
and
Marquette
Xxxxxxxxxxx,
XX 00000
Attention:
Financial Institutions Division
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment: CALYON
NEW YORK BRANCH,
$40,000,000 Individually
and as Co-Documentation Agent
By:
Title:
By:
Title:
Address
for Notices:
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxx
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Exhibit
A
FORM
OF BORROWING/ELECTION NOTICE
|
TO:
|
JPMorgan
Chase Bank, N.A., as Administrative Agent under that certain Amended
and
Restated Credit Agreement dated as of October 13, 2005 among Xxxxxxx
Xxxxx
Financial Inc., the Agents and the Lenders parties thereto (the
“Credit
Agreement”).
|
The
undersigned Borrower hereby gives to the Administrative Agent a
[Borrowing/Election Notice pursuant to Section 2.7] [Borrowing/Election Notice
pursuant to Section 2.8] of the Credit Agreement, and such Borrower hereby
requests to [borrow] [convert] [continue] on ,
(the
“Borrowing Date”) from the Lenders on a pro rata basis an aggregate principal
amount of:
[US
$_______________] in Loans as a
□ Floating
Rate Advance
□ Eurodollar
Advance
· Applicable
Interest Period of
month(s).
The
Administrative Agent is authorized and directed to transfer the funds
constituting such Advance to the following account of the undersigned: [identify
account name/number], Reference: Loan drawdown.
The
undersigned hereby certifies to the Administrative Agent and the Lenders
that
(i) the representations and warranties of the undersigned contained in
Article
V
of the
Credit Agreement are and shall be true and correct on and as of the date
hereof
and on and as of the Borrowing Date, including the representations and
warranties set forth in Section
5.6
and
Section
5.8
thereof;
and (ii) no Default or Unmatured Default has occurred and is continuing on
the
date hereof or on the Borrowing Date or will result from the making of the
proposed Advance.
Unless
otherwise defined herein, terms defined in the Credit Agreement shall have
the
same meanings in this Borrowing/Election Notice.
Dated
__________________
XXXXXXX
XXXXX FINANCIAL, INC.
By:
Name:
Title:
Exhibit
B
COMPLIANCE
CERTIFICATE
I,
certify
that I am the
of
XXXXXXX XXXXX 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 Amended and Restated Revolving Credit
Agreement dated as of October 13, 2005 among the Borrower, the financial
institutions named therein (the “Lenders”) and JPMorgan Chase Bank, N.A., 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 6.13, 6.20.1, 6.20.2, 6.20.3, 6.20.4 and
6.20.5
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 ______________,
_____.
XXXXXXX
XXXXX FINANCIAL, INC.
By:
Title:
Schedule
I
|
Section
6.13—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
6.20.1—Minimum
Tangible Net Worth
1. Required
Tangible Net Worth:
*
plus 50% of cumulative Net Income earned after
June
24, 2005
Total
|
$905,000,000
$
$
|
|
2. Actual
Tangible Net Worth:
|
$
|
|
Section
6.20.2—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
|
|
Section
6.20.3—RJA
Net Capital Ratio
1. Minimum
RJA Net Capital Ratio
|
10%
|
|
2. Actual
RJA Net Capital Ratio
(a) Net
Capital
(b) Aggregate
Debit Items
(c) Ratio
of (a) to (b)
|
$
$
____%
|
|
Section
6.20.4—RJFS
Minimum Net Capital
1. Minimum
RJFS Net Capital
|
$5,000,000
|
|
2. Actual
RJFS Net Capital
|
$
|
|
Section
6.20.5 —RJA/RJFS
Excess Net Capital
1. Minimum
combined RJA/RJFS Excess Net Capital
2. Actual
combined RJA/RJFS Excess Net Capital
|
$200,000,000
$
|
Exhibit
C
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (the “Assignment
and Assumption”)
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert
name of Assignor]
(the
“Assignor”)
and
[Insert
name of Assignee]
(the
“Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (as amended, the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from
the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Agent
as
contemplated below (i) all of the Assignor’s rights and obligations in its
capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount
and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the facility identified below and (ii)
to the
extent permitted to be assigned under applicable law, all claims, suits,
causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on
or
related to any of the foregoing, including contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause
(i)
above (the rights and obligations sold and assigned pursuant to clauses (i)
and
(ii) above being referred to herein collectively as the “Assigned
Interest”).
Such
sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and
is
an Affiliate of [identify
Lender]]
3. Borrower: Xxxxxxx
Xxxxx Financial, Inc.
4. Administrative
Agent: JPMorgan
Chase Bank, N.A., as the administrative agent under the Credit
Agreement
5. Credit
Agreement: The
$200
Million Amended and Restated Revolving Credit Agreement dated as of October
13,
2005 among Xxxxxxx Xxxxx Financial, Inc., the Lenders parties thereto, JPMorgan
Chase Bank, N.A., as administrative agent, and the other agents parties
thereto
6.
Assigned
Interest:
|
Facility
Assigned
|
Aggregate
Amount of Commitment/Loans for all Lenders
|
Amount
of Commitment/Loans Assigned
|
Percentage
Assigned of Commitment/Loans1
|
|
Revolving
Commitment
|
$
|
$
|
%
|
Effective
Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
|
[NAME
OF ASSIGNOR]
|
By:______________________________
Title:
ASSIGNEE
[NAME
OF
ASSIGNEE]
By:______________________________
Title:
[Consented
to and]2
Accepted:
JPMORGAN
CHASE BANK, N.A., as
Administrative
Agent
By_________________________________
Title:
[Consented
to:]3
[XXXXXXX
XXXXX FINANCIAL, INC.]
By________________________________
Title:
ANNEX
1
XXXXXXX
XXXXX FINANCIAL INC. AMENDED AND RESTATED
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1.
Representations
and Warranties.
1.1
Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of
any lien, encumbrance or other adverse claim and (iii) it has full power
and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or
any
collateral thereunder, (iii) the financial condition of the Borrower, any
of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2.
Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption and to consummate the transactions contemplated hereby and to
become
a Lender under the Credit Agreement, (ii) it satisfies the requirements,
if any,
specified in the Credit Agreement that are required to be satisfied by it
in
order to acquire the Assigned Interest and become a Lender, (iii) from and
after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall
have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.1 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Agent or any other
Lender, and (v) if it is a Non-U.S. Lender, attached to the Assignment and
Assumption is any documentation required to be delivered by it pursuant to
the
terms of the Credit Agreement, duly completed and executed by the Assignee;
and
(b) agrees that (i) it will, independently and without reliance on 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, and (ii) 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.
2.
Payments.
From
and after the Effective Date, the Agent shall make all payments in respect
of
the Assigned Interest (including payments of principal, interest, fees and
other
amounts) to the Assignor for amounts which have accrued to but excluding
the
Effective Date and to the Assignee for amounts which have accrued from and
after
the Effective Date.
3.
General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit
of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment
and
Assumption
by
telecopy shall be effective as delivery of a manually executed counterpart
of
this Assignment
and
Assumption.
This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.
1
Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all
Lenders thereunder.
2
To be
added only if the consent of the Agent is required by the terms of the
Credit
Agreement.
3
To be
added only if the consent of the Borrower is required by the terms of
the Credit
Agreement.
Schedule
I
Xxxxxxx
Xxxxx Financial, Inc.
Material
Subsidiaries*
Eagle
Asset Management, Inc.
Heritage
Asset Management, Inc.
Planning
Corporation Of America
Xxxxxxx
Xxxxx & Associates, Inc.
Xxxxxxx
Xxxxx Bank, FSB
Xxxxxxx
Xxxxx Financial Services, Inc.
Xxxxxxx
Xxxxx Ltd. (Canadian)
Xxxxxxx
Xxxxx Tax Credit Funds, Inc.
Xxxxxxx
Xxxxx Trust Company
RJ
Capital Services, Inc.
______________
*
All
Material Subsidiaries are 100% directly owned by the Borrower.
Schedule
II
Xxxxxxx
Xxxxx Financial, Inc.
Schedule
of Existing Indebtedness
Liabilities
Identified on the Borrower’s Balance Sheet as of June 24, 2005,
As
Increased or Decreased in the Ordinary Course of Business Since That
Date
Xxxxxxx
Xxxxx & Associates, Inc. (RJA) $75 million mortgage indebtedness on the
corporate headquarters.
RJA
secured and unsecured lines of credit used to facilitate the broker-dealer
business.
Stadium
Naming Rights, original obligation dated July 26, 1998, totaling $35,747,700
over 13 years.
Guarantees
with respect to settlement of securities transactions by its own offices
or
foreign joint ventures extended to customers of, lenders to or clearing agencies
for, its own offices, or foreign joint ventures.
Xxxxxxx
Xxxxx Bank secured FHLB advances to provide traditional banking products
and
services to the firm's broker-dealer clients.
Xxxxxxx
Xxxxx Financial Inc. has committed to a total of $34.9 million to 36 different
independent venture capital or private equity partnerships.
Xxxxxxx
Xxxxx Financial, Inc. has committed to guarantee swap contracts, as requested,
entered into by its subsidiary Xxxxxxx Xxxxx Capital Services, Inc.
Long-term
lease agreements and short-term equipment leases of $35 million as of June,
2005.