Exhibit 10.276
$800,000,000
CREDIT AGREEMENT
(364-DAY COMMITMENT)
dated as of June 17, 2005
Among
THE XXXXXXX XXXXXX CORPORATION
and
CITICORP USA, INC.,
as Administrative Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
and
BANK OF AMERICA, N.A.
CALYON NEW YORK BRANCH
JPMORGAN CHASE BANK, N.A.
and
LLOYDS TSB BANK PLC
as Co-Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC.,
as Sole Lead Arranger and Sole Book Manager
Table of Contents
Page
1. DEFINITIONS..............................................................1
2. THE CREDIT FACILITY.....................................................11
2.1 The Revolving Credit Facility.....................................11
2.2 Term Loan Facility................................................12
2.3 Evidence of Borrowing/Promissory Notes............................12
2.4 Making of Revolving Loans and Term Loans, Borrowings; Interest
Periods; Notice...................................................13
2.5 Conversion and Continuation Elections.............................14
2.6 Interest Periods..................................................16
2.7 Interest Rates....................................................16
2.8 Substitute Rates..................................................17
2.9 Fees..............................................................17
2.10 Reduction of Credit...............................................18
2.11 Termination Date; Extensions......................................19
2.12 Payments by the Lenders to the Agent..............................19
2.13 Sharing of Payments, Etc..........................................20
2.14 Computation of Fees and Interest..................................20
3. PAYMENT.................................................................21
3.1 Repayment.........................................................21
3.2 Method of Payment.................................................21
3.3 Optional Prepayment...............................................21
3.4 Taxes/Net Payments................................................21
3.5 Illegality........................................................22
3.6 Increased Costs and Reduction of Return...........................23
3.7 Funding Losses....................................................23
3.8 Certificates of Lenders...........................................24
3.9 Substitution of Lenders...........................................24
3.10 Survival..........................................................24
4. CONDITIONS..............................................................24
4.1 Conditions Precedent to the Effectiveness of this Agreement.......25
4.2 Conditions Precedent to Revolving Loans and Term Loans............26
5. REPRESENTATIONS AND WARRANTIES..........................................26
5.1 Organization and Good Standing....................................27
5.2 Corporate Power and Authority.....................................27
5.3 Enforceability....................................................27
5.4 No Violation of Laws or Agreements................................27
5.5 No Consents.......................................................27
5.6 Financial Statements..............................................27
5.7 Broker Subsidiary Licenses, Etc...................................27
5.8 Broker Subsidiary/Broker Registration.............................28
5.9 Broker Subsidiary/SIPC............................................28
5.10 Taxes.............................................................28
5.11 ERISA.............................................................28
5.12 No Extension of Credit for Default Remedy/Hostile Acquisition.....28
5.13 Use of Proceeds/Margin Regulations................................28
5.14 Authorized Persons................................................29
5.15 Material Contracts................................................29
5.16 Litigation........................................................29
5.17 Investment Company................................................29
6. AFFIRMATIVE COVENANTS...................................................29
6.1 Notice of Events of Default.......................................29
6.2 Financial Statements..............................................29
6.3 Insurance.........................................................29
6.4 Books and Records.................................................30
6.5 Change in Business................................................30
6.6 Capital Requirements..............................................30
7. NEGATIVE COVENANTS......................................................30
7.1 Net Capital.......................................................30
7.2 Minimum Stockholders' Equity......................................30
7.3 Merger/Disposition of Assets......................................30
7.4 Broker Subsidiary Indebtedness....................................30
7.5 Indebtedness Secured by Subsidiary Stock..........................31
7.6 Liens and Encumbrances............................................31
8. EVENTS OF DEFAULT.......................................................32
8.1 Defaults..........................................................32
8.2 Remedies..........................................................33
9. THE AGENT...............................................................34
9.1 Appointment and Authorization.....................................34
9.2 Delegation of Duties..............................................34
9.3 Liability of Agent................................................34
9.4 Reliance by Agent.................................................34
9.5 Notice of Default.................................................35
9.6 Credit Decision...................................................35
9.7 Indemnification of Agent..........................................36
9.8 Agent in Individual Capacity......................................36
9.9 Successor Agent...................................................36
9.10 Withholding Tax...................................................37
9.11 Co-Agents.........................................................38
10. MISCELLANEOUS...........................................................38
10.1 Amendments and Waivers............................................39
10.2 Notices...........................................................39
10.3 No Waiver-Cumulative Remedies.....................................41
10.4 Costs and Expenses................................................41
10.5 Borrower Indemnification..........................................42
10.6 Payments Set Aside................................................43
10.7 Successors and Assigns............................................43
10.8 Assignments, Participations Etc...................................43
10.9 Confidentiality...................................................45
10.10 Notification of Addresses, Lending Offices, Etc...................46
10.11 Counterparts......................................................46
10.12 Severability......................................................46
10.13 No Third Parties Benefited........................................46
10.14 Governing Law and Jurisdiction....................................46
10.15 Waiver of Jury Trial..............................................47
10.16 Entire Agreement..................................................47
10.17 Headings..........................................................47
10.18 USA Patriot Act...................................................47
SCHEDULES:
Schedule 1 - Lenders' Commitments
Schedule 2 - List of Borrowing Agreements
Schedule 6.2 - Compliance Certificate
Schedule 10.2 - Notices
EXHIBITS:
Exhibit A-1 - Revolving Note
Exhibit A-2 - Term Note
Exhibit B - Borrowing Advice
Exhibit C - Notice of Conversion/Continuation
Exhibit D - Commitment and Termination Date Extension Request
Exhibit E - Borrower's Opinion of Counsel
Exhibit F - Form of Assignment and Acceptance
CREDIT AGREEMENT (364-DAY COMMITMENT)
THIS CREDIT AGREEMENT (364-DAY COMMITMENT) ("this Agreement") is entered
into as of June 17, 2005, among The Xxxxxxx Xxxxxx Corporation, a Delaware
corporation (the "Borrower"), the several financial institutions from time to
time party to this Agreement (collectively the "Lenders"; individually each a
"Lender"), and Citicorp USA, Inc., as administrative agent for the Lenders (the
"Agent").
WHEREAS, the Lenders are willing to make from time to time Revolving Loans
to the Borrower through June 16, 2006, and to make Term Loans to the Borrower on
or before June 16, 2006 and maturing no later than June 15, 2007, upon the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. The following terms have the following meanings:
Affiliate: As to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed
to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the
other Person, whether through the ownership of voting
securities, membership interests, by contract, or otherwise.
Agent: Citicorp USA in its capacity as administrative agent for the
Lenders hereunder and any successor agent appointed under
Section 9.9.
Agent-Related
Persons: Citicorp USA and any successor agent appointed under
Section 9.9, together with Citicorp USA's Affiliate, the
Arranger, and the officers, directors, employees, agents and
attorney-in-fact of such Persons and Affiliate.
Agreement: This Credit Agreement.
Agent's
Payment Office:The address for payments set forth on the signature page
hereto in relation to the Agent, or such other address as
the Agent may from time to time specify.
Applicable
Margin: (i) with respect to Federal Funds Rate Loans, 0.375%; and
(ii) with respect to Eurodollar Rate Loans, 0.375%.
- 1 -
Arranger: Citigroup Global Markets Inc.
Assignee: The meaning specified in Section 10.8.
Attorney Costs:Without duplication, (1) all fees and disbursements of any
law firm or other external counsel, and (2) the allocated
cost of internal legal services and all disbursements of
internal counsel.
Bank
Subsidiary: Any national member bank (as defined in 12 U.S.C.
SS1813(d)(1)) or state member bank (as defined in 12 U.S.C.
SS1813(d)(2)) that is a subsidiary (as defined in 12 U.S.C.
SS1841(d)) of the Borrower.
Bankruptcy
Code The Federal Bankruptcy Reform Act of 1978 (11 U.S.C. SS101,
et seq.).
Base Rate: For any day, the higher of: (a) 0.475% per annum above the
Federal Funds Rate; and (b) the rate of interest in effect
for such day as publicly announced from time to time by
Citibank, N.A. as its "Base Rate". The "Base Rate" is a rate
set by Citibank, N.A. based upon various factors including
Citibank, N.A.'s costs and desired return, general economic
conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such rate
announced by Citibank, N.A. shall take effect at the opening
of business on the day specified in the public announcement
of such change.
Base Rate Loan:A Revolving Loan or Term Loan that bears interest based on
the Base Rate.
Borrowing: A borrowing hereunder consisting of Revolving Loans or Term
Loans of the same Type made to the Borrower on the same day
by the Lenders under Section 2 and, other than in the case
of a Base Rate Loan or Federal Funds Rate Loan, having the
same Interest Period.
Borrowing
Advice: A written request made by the Borrower with respect to any
Loan substantially in the form of Exhibit B specifying the
information required in Section 2.4 hereof and executed by
the Borrower from time to time.
Borrowing
Agreements The credit agreement(s) between the Borrower and the lenders
listed in Schedule 2.
- 2 -
Borrowing Date:Any date on which a Borrowing occurs under Section 2.4.
Broker
Subsidiary: Xxxxxxx Xxxxxx & Co., Inc., a California corporation, and
its successors and assigns.
Business Day: A day other than a Saturday, Sunday or any other day on
which commercial banks are authorized or required to close
in California or New York and, if the applicable Business
Day relates to a Eurodollar Rate Loan, such a day on which
dealings are carried on in the applicable offshore dollar
interbank market.
Capital
Adequacy
Regulation: Any guideline, directive or requirement of any central bank
or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
Change in
Control: The consummation of a reorganization, merger or
consolidation by the Borrower or the sale or other
disposition of all or substantially all of the assets of the
Borrower (a "Business Combination"), unless, following such
Business Combination, (i) no person or entity (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Borrower or
such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 35% or more of,
respectively, the then outstanding shares of common stock of
the corporation resulting from such Business Combination or
the combined voting power of the then outstanding voting
securities of such corporation (except to the extent that
such ownership existed prior to the Business Combination);
and (ii) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination were members of the board of directors of the
Borrower as of the time of the action of the board of
directors of the Borrower providing for such Business
Combination.
Citicorp USA: Citicorp USA, Inc., a Delaware corporation.
Closing Date: The date (not before June 17, 2005) on which all conditions
precedent set forth in Section 4 are satisfied or waived by
all Lenders or, in the case of subsection 4.1(g), waived by
the person entitled to receive such payment.
- 3 -
Code: The Internal Revenue Code of 1986, as amended, and
Regulations promulgated thereunder.
Commitment: The meaning specified in Section 2.1.
Commitment Fee:The meaning specified in subsection 2.9(b).
Consolidated
Stockholders'
Equity: With respect to any Person, as of any date of determination,
all amounts that would, in accordance with GAAP, be included
under shareholders' equity on a consolidated balance sheet
of such Person as at such date, plus any preferred stock.
Controlled Subsidiary: Any corporation 80% of whose voting
stock (except for any qualifying shares) is owned directly
or indirectly by the Borrower.
Conversion/
Continuation
Date: Any date on which under Section 2.5, the Borrower (a)
converts Loans of one Type to another Type, or (b) continues
as Loans of the same Type, but with a new Interest Period,
Loans having Interest Periods expiring on such date.
Credit: The aggregate amount of the Commitments of all Lenders to
make Revolving Loans under the Revolving Credit Facility and
Term Loans under the Term Loan Facility in an amount not to
exceed Eight Hundred Million and no/100 Dollars
($800,000,000.00).
Default Any event or circumstance which, with the giving of notice,
the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
Dollars,
dollars, and $:Each mean lawful money of the United States.
Effective
Amount: With respect to any Revolving Loans and Term Loans on any
date, the aggregate outstanding principal amount thereof
after giving effect to any Borrowings and prepayments or
repayments of Revolving Loans and Term Loans occurring on
such date.
Eligible
Assignee: (i) A commercial bank organized under the laws of the United
States, or any state thereof, and having total equity
capital of at least $1,000,000,000 and a senior debt rating
of a least "A" by Standard & Poor's Ratings Service, a
Division of The XxXxxx-Xxxx Companies, Inc. or at least
"A-2" by Xxxxx'x Investors Service, Inc. or, if not rated by
either of the foregoing organizations, an equivalent rating
from a nationally recognized statistical rating
organization; or (ii) a commercial bank organized
- 4 -
under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the
OECD), or a political subdivision of any such country, and
having total equity capital of at least $1,000,000,000 and a
senior debt rating of at least "A" by Standard & Poor's
Ratings Service, a Division of The XxXxxx-Xxxx Companies,
Inc. or at least "A-2" by Xxxxx'x Investors Service, Inc.,
or, if not rated by either of the foregoing organizations,
an equivalent rating from a nationally recognized
statistical rating organization; provided that such bank is
acting through a branch or agency located in the United
States.
Eurodollar
Base Rate: For any Interest Period:
(a) the rate per annum equal to the rate determined by the
Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of
such Interest Period, or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or
such page or service shall cease to be available, the rate
per annum equal to the rate determined by the Agent to be
the offered rate on such other page or other service that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day
of such Interest Period, or
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per
annum equal to the average (rounded upward to the next
1/100th of 1%) of the rates of interest per annum notified
to the Agent by each Reference Lender as the rate at which
deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount
of the Eurodollar Rate Loan being made, continued or
converted by such Reference Lender in its capacity as a
Lender and with a term equivalent to such Interest Period
would be offered by its Offshore Lending Office to major
banks in the offshore Dollar market at their request at
approximately 11:00 a.m.
- 5 -
(London time) two Business Days prior to the first day of
such Interest Period.
Eurodollar
Rate: The rate obtained by dividing (i) Eurodollar Base Rate by
(ii) a percentage (expressed as a decimal) equal to 1.00
minus the Eurodollar Rate Reserve Percentage.
Eurodollar Rate
Loan: A Revolving Loan or Term Loan that bears interest based on
the Eurodollar Rate.
Eurodollar Rate
Reserve
Percentage: For any Interest Period for any Loan for which the
Eurodollar Rate has been selected or is applicable, the
percentage (expressed as a decimal) as calculated by the
Agent that is in effect on the first day of such Interest
Period, as prescribed by the Board of Governors of the U.S.
Federal Reserve System (or any successor), for determining
reserve requirements to be maintained by the Agent under
Regulation D (or any successor regulation thereof) as
amended to the date hereof (including such reserve
requirements as become applicable to the Agent pursuant to
phase-in or other similar requirements of Regulation D at
any time subsequent to the date hereof) in respect of
"Eurocurrency liabilities" (as defined in Regulation D). The
Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in the Eurodollar Rate
Reserve Percentage.
Event of
Default: Any of the events or circumstances specified in Section 8.1.
Exchange Act: The Securities and Exchange Act of 1934, as amended, and
regulations promulgated thereunder.
Federal Funds
Rate: For any day, the interest rate per annum equal to the
weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New
York.
Federal Funds
Effective Rate:For any day, an interest rate per annum equal to the
arithmetic mean as determined by the Agent of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, received by the Agent by each of three Federal
funds brokers of recognized
- 6 -
standing in New York City prior to 11:00 a.m. (San Francisco
time) selected by Agent in its sole discretion.
Federal Funds
Rate Loan: A Revolving Loan or Term Loan that bears interest based on
the Federal Funds Effective Rate.
Fee Letter: The meaning specified in subsection 2.9(a).
FRB: The Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its
principal functions.
GAAP: Generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within
the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
Governmental
Authority: Any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and
any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the
foregoing.
Hedge
Agreements: Interest rate swap, interest rate cap or interest rate
collar agreements.
Indebtedness: As to any corporation, any obligation of, or guaranteed or
assumed by, such corporation for (i) borrowed money
evidenced by bonds, debentures, notes or other similar
instruments, (ii) the deferred purchase price of property or
services (excluding trade and other accounts payable), (iii)
the leasing of tangible personal property under leases
which, under any applicable Financial Accounting Standards
Board Statement, have been or should be recorded as
capitalized leases or (iv) direct or contingent obligations
under letters of credit issued for the account of such
corporation.
Indemnified
Liabilities: The meaning specified in Section 10.5.
- 7 -
Indemnified
Person: The meaning specified in Section 10.5.
Insolvency
Proceeding: As to a debtor, (a) any case, action or proceeding before
any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors,
or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other
similar arrangement in respect of its creditors generally or
any substantial portion of its creditors, undertaken under
U.S. Federal, state or foreign law, including the Bankruptcy
Code.
Interest
Payment Date: As to any Loan other than a Base Rate Loan or Federal Funds
Rate Loan, the last day of each Interest Period applicable
to such Loan and, as to any Base Rate Loan or Federal Funds
Rate Loan, the last Business Day of each calendar quarter,
provided, however, that if any Interest Period for a
Eurodollar Rate Loan exceeds three months, the date that
falls three months after the beginning of such Interest
Period and after each Interest Payment Date thereafter is
also an Interest Payment Date.
Interest
Period: Any period specified in accordance with Section 2.6 hereof.
Intermediate
Parent: Schwab Holdings, Inc., a Delaware corporation and its
successors and assigns.
Lender: The meaning specified in the introductory clause hereto.
Lending Office:As to any Lender, the office or offices of such Lender
specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on
Schedule 10.2, or such other office or offices as such
Lender may from time to time notify the Borrower and the
Agent.
Loan: An extension of credit by a Lender to the Borrower under
Section 2 in the form of a Revolving Loan or Term Loan.
Loan Document: This Agreement, any Notes, the Fee Letter, and all other
documents delivered to the Agent or any Lender in connection
herewith.
Minimum
Stockholders'
Equity: As of the Closing Date, and the last day of each fiscal
quarter thereafter, the greater of:
- 8 -
(a) $2,500,000,000, or
(b) the sum of -
(i) $2,500,000,000, plus
(ii) 50% of the sum of cumulative Net Earnings
for each fiscal quarter commencing with the
fiscal quarter ended June 30, 2005.
Net Capital
Ratio: As of the date of determination, that percentage of net
capital to aggregate debit items of any entity subject to
the Net Capital Rule 15c3-1 promulgated by the Securities
Exchange Commission pursuant to the Securities Exchange Act
of 1934 and any successor or replacement rule or regulation
therefor.
Net Earnings: With respect to any fiscal period, the consolidated net
income of the Borrower and its Subsidiaries, after taking
into account all extraordinary items, taxes and other proper
charges and reserves for the applicable period, determined
in accordance with U.S. generally accepted accounting
principles, consistently applied.
Note: A promissory note executed by the Borrower in favor of a
Lender pursuant to Section 2.3 in substantially the form of
Exhibits A-1 and A-2.
Notice of
Conversion/
Continuation: A notice in substantially the form of Exhibit C.
Obligations: All borrowings, debts, liabilities, obligations, covenants
and duties arising under any Loan Document owing by the
Borrower to any Lender, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired
by assignment), absolute or contingent, due or to become
due, now existing or hereafter arising.
Person: An individual, partnership, corporation, limited liability
company, business trust, unincorporated association, trust,
joint venture or Governmental Authority.
Pro Rata Share:As to any Lender at any time, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place)
at such time of such Lender's Commitment divided by the
combined Commitments of all Lenders.
- 9 -
Reference
Lenders: Citicorp USA, Bank of America, N.A. and JPMorgan Chase Bank,
N.A.
Replacement
Lender: The meaning specified in Section 3.9.
Required
Lenders: At any time at least two Lenders then holding in excess of
50% of the then aggregate unpaid principal amount of the
Loans, or, if no such principal amount is then outstanding,
at least two Lenders then having in excess of 50% of the
Commitments.
Requirement of
Law: As to any Person, any law (statutory or common), treaty,
rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or
binding upon the Person or any of its property or to which
the Person or any of its property is subject.
Responsible
Officer: Any senior vice president or more senior officer of the
Borrower, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance
with financial covenants, the chief financial officer,
executive vice president-finance, controller or the
treasurer of the Borrower, or any other officer having
substantially the same authority and responsibility.
Revolving
Credit
Facility: The revolving credit facility available to the Borrower
pursuant to Section 2.1 hereof.
Revolving Loan:The meaning specified in Section 2.1, and may be a Base Rate
Loan, Federal Funds Rate Loan or a Eurodollar Rate Loan
(each a "Type" of Revolving Loan).
Revolving Note:The meaning specified in Section 2.3.
Revolving
Termination
Date: The earlier to occur of:
(a) June 16, 2006; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
SEC: The Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
- 10 -
Senior Medium-
Term Notes,
Series A: Senior debt securities or senior subordinated debt
securities issued by The Xxxxxxx Xxxxxx Corporation with a
maturity between 9 months and 30 years in accordance with
the Senior Indenture, as amended, and the Senior
Subordinated Indenture, as amended, both dated as of July
15, 1993 by and between The Xxxxxxx Xxxxxx Corporation and
The Chase Manhattan Bank, as trustee.
Subsidiary: Any corporation or other entity of which a sufficient number
of voting securities or other interests having power to
elect a majority of the board of directors or other persons
performing similar functions are at the time directly or
indirectly owned by the Borrower.
Term
Commitment: Eight Hundred Million and no/100 Dollars ($800,000,000.00).
Term Loan: The meaning specified in Section 2.2 and may be a Base Rate
Loan, Federal Funds Rate Loan or Eurodollar Rate Loan (each
a "Type" of Term Loan).
Term Loan
Facility: The term loan facility available to the Borrower pursuant to
Section 2.2 hereof.
Term Loan
Maturity Date: The meaning specified in Section 2.2.
Term Note: The meaning specified in Section 2.3.
Type: The meaning specified in the definition of "Revolving Loan".
2. THE CREDIT FACILITY.
2.1 The Revolving Credit Facility Each Lender severally agrees, on the
terms and conditions set forth herein, to make loans to the Borrower (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding, together with the principal amount
of Term Loans outstanding in favor of such Lender at such time, the amount set
forth next to such Lender's name on Schedule 1 (such amount together with the
Lender's Pro Rata Share of the Term Commitment, as the same may be reduced under
Section 2.10 or as a result of one or more assignments under Section 10.8, the
Lender's "Commitment"); provided, however, that, after giving effect to any
Borrowing of Revolving Loans, the Effective Amount of all outstanding Revolving
Loans shall not at any time exceed the combined Commitments; and provided
further that the Effective Amount of the Revolving Loans, together with all Term
Loans outstanding at such time, of any Lender shall not at any time exceed such
Lender's Commitment. Within the limits of each Lender's Commitment, and subject
to the other terms and conditions
- 11 -
hereof, the Borrower may borrow under this Section 2.1, prepay under Section 3.3
and reborrow under this Section 2.1.
2.2 Term Loan Facility. Each Lender severally agrees, on the terms and
conditions set forth herein, to make Loans to the Borrower during the period
from the Closing Date to June 16, 2006, in an aggregate amount not to exceed
such Lender's Pro Rata Share of the Term Commitment. The Borrower from time to
time may borrow under the Term Loan Facility (and may reborrow any amount
theretofore prepaid) until close of business on June 16, 2006, for a term not to
exceed 364 days from the date of the Borrowing. Each such loan under the Term
Loan Facility (a "Term Loan") shall be in the minimum amount of $10,000,000 and
shall become due and payable on the last day of the term selected by the
Borrower for such Term Loan (the "Term Loan Maturity Date"), which shall in no
event be later than 364 days from the date of such Term Loan. The maximum
availability under the Term Loan Facility shall be the amount of the Credit
minus the aggregate outstanding principal amount of Revolving Loans and Term
Loans made by the Lenders; provided, however, that to the extent the proceeds of
a Term Loan are used to repay an outstanding Revolving Loan (or a portion
thereof), such Revolving Loan (or portion thereof) shall not be considered part
of the aggregate principal amount of outstanding Revolving Loans made by the
Lenders for purposes of this sentence (such maximum availability hereafter being
referred to as the "Term Loan Availability"). Under no circumstances shall the
aggregate outstanding principal amount of Term Loans and Revolving Loans made by
the Lenders exceed the Credit, and under no circumstances shall any Lender be
obligated (i) to make any Term Loan (nor may the Borrower reborrow any amount
heretofore prepaid) after June 16, 2006, or (ii) to make any Term Loan in excess
of the Term Loan Availability. Each Term Loan made hereunder shall fully and
finally mature and be due and payable in full on the Term Loan Maturity Date
specified in the Borrowing Advice for such Term Loan; provided, however, that to
the extent the Borrowing Advice for any Term Loan selects an Interest Period
that expires before the Term Loan Maturity Date specified in such Borrowing
Advice, the Borrower may from time to time select additional interest rate
options and Interest Periods (none of which shall extend beyond the Term Loan
Maturity Date for such Term Loan) by delivering a Borrowing Advice or Notice of
Conversion/Continuation, as applicable.
2.3 Evidence of Borrowing/Promissory Notes. The obligation of the
Borrower to repay the aggregate unpaid principal amount of the Revolving Loans
and Term Loans shall be evidenced by promissory notes of the Borrower
(respectively the "Revolving Note and the Term Note") in substantially the form
attached hereto as Exhibits A-1 and A-2, with the blanks appropriately
completed, payable to the order of each Lender in the principal amount of its
Commitment, bearing interest as hereinafter specified. Each Revolving Note and
Term Note shall be dated, and shall be delivered to each Lender, on the date of
the execution and delivery of this Agreement by the Borrower. Each Lender shall,
and is hereby authorized by the Borrower to, endorse on the schedule contained
on the Revolving Note and Term Note, or on a continuation of such schedule
attached thereto and made a part thereof, appropriate notations regarding the
Revolving Loans and Term Loans evidenced by such Note as specifically provided
therein and such Lender's record shall be conclusive absent manifest error;
provided, however, that the failure to make, or error in making, any such
notation shall not limit or otherwise affect the obligations of the Borrower
hereunder or under the Revolving Note and Term Note. The
- 12 -
Agent, by notice to the Borrower (to be given not later than two Business Days
prior to the initial Borrowing or Term Loan hereunder) may request that
Revolving Loans or Term Loans made hereunder for which the interest calculation
is to be based on the Eurodollar Rate be evidenced by separate Revolving Notes
(in the case of Revolving Loans) and Term Notes (in the case of Term Loans),
substantially in the form of Exhibit A-1 hereto (in the case of Revolving Loans)
and Exhibit A-2 hereto (in the case of Term Loans), payable to the order of each
Lender for the account of its office, branch or affiliate it may designate as
its Lending Office.
2.4 Making of Revolving Loans and Term Loans, Borrowings; Interest
Periods; Notice. (a) Each Borrowing of Revolving Loans or Term Loans shall be
made upon Borrower's irrevocable written notice delivered to the Agent in the
form of a Borrowing Advice (which notice must be received by the Agent prior to
10:00 a.m. San Francisco time for a Eurodollar Rate Loan, and prior to 11:00
a.m. San Francisco time for a Base Rate Loan or a Federal Funds Rate Loan) (i)
the same Business Day as the requested Borrowing Date in the case of Base Rate
Loans and Federal Funds Rate Loans to be made on such Business Day, or (ii)
three Business Days prior to the requested Borrowing Date in the case of
Eurodollar Rate Loans, with each Borrowing Advice setting forth the following
information:
(A) the requested Borrowing Date, which shall be a Business
Day, on which such Revolving Loan or Term Loan is to be made;
(B) for a Eurodollar Rate Loan, the duration of the Interest
Period selected in accordance with Section 2.6 hereof (if the Borrowing Advice
fails to specify the duration of the Interest Period for any Borrowing comprised
of a Eurodollar Rate Loan, such Interest Period shall be three months);
(C) the Type of Loans comprising the Borrowing and the
interest rate option selected in accordance with Section 2.7 hereof; and
(D) the aggregate principal amount of the Revolving Loan
or Term Loan (which shall be in an aggregate minimum amount of $10,000,000) to
which such Interest Period and interest rate shall apply.
(b) The Agent will promptly notify each Lender of its receipt of any
Borrowing Advice and of the amount of such Lender's Pro Rata Share of that
Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the Borrower at the Agent's
Payment Office by 1:00 p.m. San Francisco time on the Borrowing Date requested
by the Borrower in funds immediately available to the Agent. Each Loan to the
Borrower under this Agreement shall be made by 1:30 p.m. (San Francisco time) on
the date of the Requested Borrowing Date, and shall be in immediately available
funds (in the aggregate amount made available to the Agent by the Lenders) wired
to the Borrower's account at Citibank, N.A. (Account 4055-4016) or such other
account as may be designated by the Borrower in writing.
- 13 -
(d) After giving effect to any Borrowing, there may not be more than ten
(10) different Interest Periods in effect.
(e) Unless the Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Agent such
Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (c) of this Section and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
With respect to any Borrowing having an Interest Period ending on or before June
16, 2006, if prior to the last day of the Interest Period for such Borrowing the
Borrower fails timely to provide a Notice of Conversion/Continuation in
accordance with Section 2.5, such Borrowing shall, on the last day of the
then-existing Interest Period for such Borrowing, automatically convert into a
Base Rate Loan. In the event of any such automatic conversion, the Borrower on
the date of such conversion shall be deemed to make a representation and
warranty to the Lenders that, to the best of the Borrower's knowledge,
(i) neither the Borrower nor any Bank Subsidiary is in violation of the capital
requirements as described in Section 6.6, (ii) the Broker Subsidiary is not in
violation of minimum net capital requirements as described in Section 7.1,
(ii) the Borrower's Consolidated Stockholders' Equity is not below the Minimum
Stockholders' Equity as described in Section 7.2, and (iv) no amount owing with
respect to any Commitment Fee, any outstanding Borrowing, or any interest
thereon, or any other amount hereunder, is due and unpaid. If prior to the last
day of the Interest Period applicable to any Term Loan the Borrower fails timely
to provide a Notice of Conversion/Continuation in accordance with Section 2.5,
such Term Loan shall, on the last day of the then-existing Interest Period for
such Term Loan, automatically, have applicable to it a new Interest Period of
thirty (30) days (or, in the event there are fewer than thirty (30) days
remaining to the Term Loan Maturity Date for such Term Loan, an Interest Period
of the number of days remaining to such Term Loan Maturity Date) and shall bear
interest at the Base Rate.
2.5 Conversion and Continuation Elections.
- 14 -
(a) The Borrower may, upon irrevocable written notice to the Agent in
accordance with this Section 2.5:
(i) elect, as of any Business Day, in the case of Base Rate
Loans or Federal Funds Rate Loans, or as of the last day of the applicable
Interest Period, in the case of any other Type of Loan, to convert any such Loan
(or any part thereof in an amount not less than $10,000,000), into Loans of any
other Type; or
(ii) elect as of the last day of the applicable Interest Period,
to continue any Loans having Interest Periods expiring on such day (or any part
thereof in an amount not less than $10,000,000);
provided, that if at any time the aggregate amount of Eurodollar Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $10,000,000, such Eurodollar Rate Loans shall
automatically convert into Base Rate Loans.
(b) The Borrower shall deliver a Notice of Conversion/Continuation to
be received by the Agent not later than 10:00 a.m. San Francisco time for a
Eurodollar Rate Loan, and not later than 11:00 a.m. San Francisco time for a
Base Rate Loan or a Federal Funds Rate Loan, at least (i) three Business Days in
advance of the Conversion/Continuation Date, as to any Loan that is to be
converted into or continued as a Eurodollar Rate Loan; and (ii) the same
Business Day as the Conversion/Continuation Date, as to any Loan that is to be
converted into a Base Rate Loan or Federal Funds Rate Loan, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of the Loan or Loans to be converted or
renewed;
(C) the Type of Loan or Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate Loans or
Federal Funds Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Rate Loans, the Borrower has failed to select timely a new Interest
Period to be applicable to such Eurodollar Rate Loans, or if any Default or
Event of Default then exists, the Borrower shall be deemed to have elected to
convert such Eurodollar Rate Loans into Base Rate Loans effective as of the
expiration date of such Interest Period.
(d) The Agent will promptly notify each Lender of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Borrower, the Agent will promptly notify each Lender of the details of any
automatic conversion. All
- 15 -
conversions and continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the notice was
given as held by each Lender.
(e) Unless the Required Lenders otherwise agree, during the existence
of a Default or Event of Default, the Borrower may not elect to have a Loan
converted into or continued as a Eurodollar Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
there may not be more than ten (10) different Interest Periods in effect.
2.6 Interest Periods. The Borrower may select for any Eurodollar Rate
Loan the Interest Period (as defined in the next sentence) for each Borrowing,
it being understood that the Borrower may request multiple Borrowings on the
same day and may select a different Interest Period for each such Borrowing. An
Interest Period shall be each period, as selected by the Borrower in accordance
with the terms of this Agreement, in the case of each Borrowing, beginning on
the Borrowing Date of such Loan or on the Conversion/Continuation Date on which
the Loan is converted into or continued as a Eurodollar Rate Loan, and ending on
the date specified by the Borrower, subject to the numerically corresponding day
in the first, second, third or sixth month thereafter, in the case of any
Interest Period that is to be based on the Eurodollar Rate, provided that if the
last day of an Interest Period would be a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day, unless
such next succeeding Business Day is in a different calendar month, in which
case such interest period shall end on the next preceding Business Day;
provided, however, that (i) no Interest Period applicable to any Revolving Loan
shall extend beyond the Revolving Termination Date; and (ii) no Interest Period
applicable to any Term Loan shall extend beyond the Term Loan Maturity Date
specified in the Borrowing Advice for such Term Loan, which in no event shall be
later than June 15, 2007.
2.7 Interest Rates.
(a) (i) Each Revolving Loan, while outstanding, shall bear interest
from the applicable Borrowing Date at a rate per annum equal to the Eurodollar
Rate, the Federal Funds Effective Rate, or the Base Rate, as the case may be,
(and subject to the Borrower's right to convert to other Types of Loans under
Section 2.5) plus the Applicable Margin.
(ii) Each Term Loan, while outstanding, shall bear interest from
the applicable Borrowing Date at a rate per annum equal to the Eurodollar Rate,
the Federal Funds Effective Rate, or the Base Rate, as the case may be, (and
subject to the Borrower's right to convert to other Types of Loans under Section
2.5) plus the sum of the Applicable Margin and 0.15% per annum.
(b) Interest on each Revolving Loan and Term Loan shall be paid in
arrears on each Interest Payment Date. Interest shall also be paid on the date
of any prepayment of Loans under Section 3.3 for the portion of the Loan so
prepaid and upon payment (including
- 16 -
prepayment) in full thereof, and, during the existence of any Event of Default
interest shall be paid on demand of the Agent at the request or with the consent
of the Required Lenders.
(c) After the principal amount of any Revolving Loan or Term Loan,
accrued interest upon such Loan, the commitment fee, or any other amount
hereunder shall have become due and payable by acceleration, or otherwise, it
shall thereafter (until paid) bear interest, payable on demand, (i) until the
end of the Interest Period with respect to such Loan at a rate per annum equal
to 2% per annum in excess of the rate or rates in effect with respect to such
Loan, and (ii) thereafter, at a rate per annum equal to 2% per annum in excess
of the Base Rate.
2.8 Substitute Rates. If upon receipt by the Agent of a Borrowing Advice
relating to any Borrowing or of a Notice of Conversion/Continuation:
(a) the Agent shall determine that by reason of changes affecting the
London interbank market, adequate and reasonable means do not exist for
ascertaining the applicable Eurodollar Rate with respect to any Interest Period;
or
(b) the Agent shall determine that by reason of any change since the
date hereof in any applicable law or governmental regulation (other than any
such change in the regulations described in the definition of Eurodollar Rate
Reserve Percentage in Section 1 hereof), guideline or order (or any
interpretation thereof), the adoption or enactment of any new law or
governmental regulation or order or any other circumstance affecting the Lenders
or the London interbank market, the Eurodollar Rate shall no longer represent
the effective cost to the Lenders of U.S. dollar deposits in the relevant amount
and for the relevant period; or
(c) Agent shall determine that, as a result of any change since the
date hereof in any applicable law or governmental regulation or as a result of
the adoption of any new applicable law or governmental regulation, the
applicable Eurodollar Rate would be unlawful;
then, the Agent will promptly so notify the Borrower and each Lender, whereupon,
the obligation of the Lenders to make or maintain Eurodollar Rate Loans
hereunder shall be suspended until the Agent upon the instruction of the
Required Lenders revokes such notice in writing. Upon receipt of such notice,
the Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it and, at its election, submit a
Borrowing Advice or Notice of Conversion/Continuation selecting another Type of
Loan. If the Borrower does not revoke such Notice or give a Notice as provided
herein, the Lenders shall make, convert or continue the Loans, as proposed by
the Borrower in the amount specified in the applicable notice submitted by the
Borrower, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Eurodollar Rate Loans.
2.9 Fees.
(a) Arrangement, Agency Fees. The Borrower shall pay an arrangement
fee to the Arranger for the Arranger's account, and shall pay an agency fee to
the
- 17 -
Agent for the Agent's account, as required by the letter agreement ("Fee
Letter") between the Borrower, the Agent and the Arranger dated April 29, 2005.
(b) Commitment Fee. The Borrower shall pay to the Agent for the
account of each Lender a commitment fee (the "Commitment Fee") on the actual
daily unused portion of such Lender's Commitment computed on a quarterly basis
in arrears on the last Business Day of each quarter based upon the daily
utilization for that quarter as calculated by the Agent, equal to eight-one
hundredths of one percent (0.08%) per annum. For purposes of calculating
utilization under this subsection, the Commitments shall be deemed used to the
extent of the Effective Amount of Revolving Loans and Term Loans then
outstanding. Such Commitment Fee shall accrue from the Closing Date to the
Revolving Termination Date and shall be due and payable quarterly in arrears on
the last Business Day of each quarter commencing on the quarter ending June 30,
2005 through the Revolving Termination Date, with the final payment to be made
on the Revolving Termination Date; provided that, in connection with any
reduction or termination of Commitments under Section 2.10, the accrued
commitment fee calculated for the period ending on such date shall also be paid
on the date of such reduction or termination, with the following quarterly
payment being calculated on the basis of the period from such reduction or
termination date to such quarterly payment date.
(c) Utilization Fee. The Borrower shall pay to the Agent for the
account of each Lender quarterly in arrears commencing on June 30, 2005 a
utilization fee equal to seven and one half hundredths of one percent (0.075%)
per annum on the aggregate amount of outstanding Revolving Loans and Term Loans,
provided that the outstanding amount of such Loans exceeds fifty percent (50%)
of the aggregate amount of all the Commitments of the Lenders to the Borrower.
2.10 Reduction of Credit. The Borrower, from time to time, upon at least
three (3) Business Days' written notice to the Agent, may terminate the
commitments, or permanently reduce the Commitments by an aggregate minimum
amount of $10,000,000, without penalty or premium; unless after giving effect
thereto and to any prepayments of Loans made on the effective date thereof, the
Effective Amount of all Revolving Loans and Term Loans together would exceed the
amount of the combined Commitments then in effect. Once reduced in accordance
with this Section, the Commitments may not be increased. Any reduction of the
Commitments shall be applied to each Lender's Commitment according to its Pro
Rata Share. All accrued Commitment Fees to, but not including, the effective
date of any reduction or termination of Commitments, shall be paid on the
effective date of such reduction or termination. During the continuation of the
Credit, the computation of the Commitment Fee and the Lenders' obligations to
make Revolving Loans or Term Loans shall be based upon such reduced Commitments.
In the event the Credit shall be reduced to zero pursuant to this Section, the
Credit shall be deemed terminated, and any Commitment Fee or any other amount
payable hereunder then accrued shall become immediately payable. Such
termination of the Credit shall terminate the Borrower's obligations with
respect to the Commitment Fee to the extent not theretofore accrued and shall
terminate the Lenders' obligations to make any further Revolving Loans or Term
Loans under this Agreement.
- 18 -
2.11 Termination Date; Extensions. The termination date of each Lender's
Commitment with respect to the Credit (the "Termination Date"), including both
the Revolving Credit Facility under Section 2.1 hereof and the Term Loan
Facility under Section 2.2 hereof, is initially June 16, 2006. At any time no
earlier than forty-five (45) days and no later than thirty (30) days prior to
the Termination Date then in effect (whether the initial Termination Date of
June 16, 2006 or any later Termination Date as extended under this Section
2.11), the Borrower may, by written notice to the Agent in the form attached as
Exhibit D hereto, request that the Termination Date be extended for a period of
364 calendar days. Such request shall be irrevocable and binding upon the
Borrower. In no event will any Lender agree to approve any extension more than
thirty (30) days before the Termination Date then in effect. Failure of any
Lender to respond shall mean that such Lender has not approved such extension.
If each Lender (in its sole discretion) agrees to so extend its Commitment and
the Termination Date (which agreement may be given or withheld in such Lender's
sole and absolute discretion), the Agent shall evidence such agreement by
executing and returning to the Borrower a copy of the Borrower's written request
no later than fifteen (15) days after the Agent's receipt of the Borrower's
written request. If the Agent fails to so respond to and accept the Borrower's
request for extension of the Termination Date then in effect, the Lenders'
Commitments shall be terminated on the Termination Date then in effect. If, on
the other hand, the Agent so responds to and accepts the Borrower's request for
extension of the Termination Date, then upon receipt by the Borrower of a copy
of the Borrower's written request countersigned by the Agent, (i) the Lenders'
Commitments then in effect and the Termination Date then in effect shall
automatically be extended for the 364-day period specified in such written
request, and (ii) each reference in this Agreement to "June 16, 2006", and "June
15, 2007" (and any prior extension thereof pursuant to this Section 2.11) also
shall automatically be correspondingly extended for 364 days.
2.12 Payments by the Lenders to the Agent.
(a) Unless the Agent receives notice from a Lender on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at least
one Business Day in the case of a Eurodollar Rate Loan, or, in the case of a
Base Rate Loan or Federal Funds Rate Loan, prior to noon (12:00) San Francisco
time on the date of such Borrowing, that such Lender will not make available as
and when required hereunder to the Agent for the account of the Company the
amount of that Lender's Pro Rata Share of the Borrowing, the Agent may assume
that each Lender has made such amount available to the Agent in immediately
available funds on the Borrowing Date and the Agent may (but shall not be so
required), in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent any Lender shall not have
made its full amount available to the Agent in immediately available funds and
the Agent in such circumstances has made its full amount available to the
Borrower such Lender shall on the Business Day following such Borrowing Date
make such amount available to the Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the Agent submitted to
any Lender with respect to amounts owing under this subsection (a) shall be
conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such Lender's Loan on the date of
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the Borrowing Date, the
Agent will notify the Borrower of such
- 19 -
failure to fund and, upon demand by the Agent, the Borrower shall pay such
amount to the Agent for the Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a Loan on
such Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on any Borrowing
Date.
2.13 Sharing of Payments, Etc.. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Pro Rata Share, such Lender shall
immediately (a) notify the Agent of such fact, and (b) purchase from the other
Lenders such participation in the Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment pro rata with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender
the purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.5) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participation purchased under this Section and will in each case notify the
Lenders following any such purchase or repayment.
2.14 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by Citibank N.A.'s "Base Rate" shall be made on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of interest, and all computation of fees under
subsection 2.9(b) and (c) shall be made on the basis of a 360-day year and
actual days elapsed. Interest and such fees shall accrue during each period
during which interest or such fees are computed from and including the first day
thereof to and excluding the last day thereof.
(b) If any Reference Lender's Commitment shall terminate (otherwise
than on termination of all the Commitments), or for any reason whatsoever such
Reference Lender shall cease to be a Lender hereunder, such Reference Lender
shall thereupon cease to be a Reference Lender, and the determination of the
Eurodollar Base Rate under subsection (c) of the
- 20 -
definition of such term shall be determined on the basis of the rates as
notified by the remaining Reference Lenders.
3. PAYMENT.
3.1 Repayment.
(a) The Term Credit. The Borrower shall repay to the Agent for the
account of the Lenders the aggregate principal amount of the Term Loans
outstanding on each Term Loan Maturity Date, as applicable.
(b) The Revolving Credit. The Borrower shall repay to the Agent, for
the account of the Lenders, on the Revolving Termination Date the aggregate
principal amount of Revolving Loans outstanding on such date.
3.2 Method of Payment. All payments hereunder and under the Revolving
Note and the Term Note shall be payable in lawful money of the United States of
America and in immediately available funds not later than 12:00 noon (San
Francisco time) on the date when due at the principal office of the Agent or at
such other place as the Agent may, from time to time, designate in writing to
the Borrower.
3.3 Optional Prepayment. Subject to Section 3.7, the Borrower shall be
entitled at any time or from time to time, upon not less than one (1) Business
Day irrevocable notice to the Agent, to ratably prepay Loans in whole or in part
in minimum amounts of $10,000,000 without premium or penalty. Each notice of
payment shall specify the date and aggregate principal amount of any such
prepayment and the Type(s) of Loans to be repaid. The Agent will promptly notify
each Lender of its receipt of any such Notice and of such Lender's Pro Rata
Share of such prepayment. If such Notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount, specified in such Notice
shall be due and payable on the date specified therein, together with all
accrued interest to each such date on the amount prepaid, and any amounts
required in accordance with Section 3.7 hereof as a result of such prepayment.
3.4 Taxes/Net Payments. All payments by Borrower hereunder and under the
Revolving Note and the Term Note to the Agent or any Lender shall be made
without set-off or counterclaim and in such amounts as may be necessary in order
that all such payments, after deduction or withholding for or on account of any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any Governmental Authority or taxing authority thereof
(collectively, "Taxes"), shall not be less than the amounts otherwise specified
to be paid under this Agreement. The Borrower shall pay all Taxes when due and
shall promptly send to the Lender original tax receipts or copies thereof
certified by the relevant taxing authority together with such other documentary
evidence with respect to such payments as may be required from time to time by
the Agent. If the Borrower fails to pay any Taxes to the appropriate taxing
authorities when due or fails to remit to the Agent or Lender any such original
tax receipts or certified copies thereof as aforesaid or other required
documentary evidence, the Borrower shall indemnify the Agent or Lender within
thirty (30) days of demand by the Lender or Agent for any
- 21 -
taxes, interest or penalties that may become payable by the Agent or Lender as a
result of such failure.
Notwithstanding the foregoing, (i) the Borrower shall not be liable for the
payment of any tax on or measured by the net income of any Lender pursuant to
the laws of the jurisdiction where an office of such Lender making any loan
hereunder is located or does business, and (ii) the foregoing obligation to
gross up the payments to any Lender so as not to deduct or offset any
withholding taxes or Taxes paid or payable by the Borrower with respect to any
payments to such Lender shall not apply (x) to any payment to any Lender which
is a "foreign corporation, partnership or trust" within the meaning of the Code
if such Lender is not, on the date hereof (or on the date it becomes a Lender
under this Agreement pursuant to the assignment terms of this Agreement), or on
any date hereafter that it is a Lender under this Agreement, entitled to submit
either a Form W-8BEN or any successor form thereto (relating to such Lender and
entitling it to a complete exemption from withholding on all interest to be
received by it hereunder in respect of the Loans) or Form W-8ECI or any
successor form thereto (relating to all interest to be received by such Lender
hereunder in respect of the Loans) of the U.S. Department of Treasury, or (y) to
any item referred to in the preceding sentence that would not have been imposed
but for the failure by such Lender to comply with any applicable certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connections of such Lender with the United
States if such compliance is required by statute or regulation of the United
States as a precondition to relief or exemption from such item.
3.5 Illegality.
(a) If any Lender determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make Eurodollar Rate Loans,
then, on notice thereof by the Lender to the Borrower through the Agent, any
obligation of that Lender to make Eurodollar Rate Loans shall be suspended until
the Lender notifies the Agent and the Borrower that the circumstances giving
rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any
Eurodollar Rate Loan, the Borrower shall, upon its receipt of notice of such
fact and demand from such Lender (with a copy to the Agent), prepay in full such
Eurodollar Rate Loans of that Lender then outstanding, together with interest
accrued thereon and amounts required under Section 3.7, either on the last day
of the Interest Period thereof, if the Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if the Lender may not
lawfully continue to maintain such Eurodollar Rate Loan. If the Borrower is
required to so prepay any Eurodollar Rate Loan, then concurrently with such
prepayment, the Borrower shall borrow from the affected Lender, in the amount of
such repayment, a Base Rate Loan or Federal Funds Rate Loan.
- 22 -
(c) If the obligation of any Lender to make or maintain Eurodollar
Rate Loans has been so terminated or suspended, the Borrower may elect, by
giving notice to the Lender through the Agent that all Loans which would
otherwise be made by the Lender as Eurodollar Rate Loans shall be instead Base
Rate Loans, or Federal Funds Rate Loans.
(d) Before giving any notice to the Agent under this Section, the
affected Lender shall designate a different Lending Office with respect to its
Eurodollar Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of the Lender, be
illegal or otherwise disadvantageous to the Lender.
3.6 Increased Costs and Reduction of Return.
(a) If any Lender determines that, due to either (i) the introduction
of or any change (other than any change by way of imposition of or increase in
reserve requirements included in the calculation of the Eurodollar Rate) in or
in the interpretation of any law or regulation, or (ii) the compliance by that
Lender with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost to such Lender of agreeing to make or making, funding or maintaining
any Eurodollar Rate Loan, then the Borrower shall be liable for, and shall from
time to time, upon demand (with a copy of such demand to be sent to the Agent),
pay to the Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
the Lender (or its Lending Office) or any corporation controlling the Lender
with any Capital Adequacy Regulation, affects or would affect the amount of
capital required or expected to be maintained by the Lender or any corporation
controlling the Lender and determines that the amount of such capital is
increased as a consequence of its Commitment, Loans, credits or obligations
under this Agreement then, upon demand of such Lender to the Borrower through
the Agent, the Borrower shall pay to the Lender, from time to time as specified
by the Lender, additional amounts sufficient to compensate the Lender for the
cost of such increase.
3.7 Funding Losses. The Borrower shall reimburse each Lender and hold
each Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of:
(a) the failure of the Borrower to make on a timely basis any payment
of principal of any Eurodollar Rate Loan;
- 23 -
(b) the failure of the Borrower to borrow, continue or convert a Loan
after the Borrower has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/Continuation;
(c) the failure of the Borrower to make any prepayment in accordance
with any notice delivered under Section 3.3;
(d) the prepayment or other payment (including after acceleration
thereof) of any Eurodollar Rate Loan on a day that is not the last day of the
relevant Interest Period; or
(e) the automatic conversion under Section 2.5 of any Eurodollar Rate
Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period,
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Loans or from fees
payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section and under subsection 3.6(a), each Eurodollar Rate Loan made by a
Lender and each related reserve, special deposit or similar requirement shall be
conclusively deemed to have been funded at the LIBO-based rate used in
determining the Eurodollar Rate for such Eurodollar Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan is
in fact so funded,.
3.8 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Section 3 shall deliver to the Borrower (with a copy to
the Agent) a certificate setting forth in reasonable detail the amount payable
to the Lender hereunder and such certificate shall be conclusive and binding on
the Borrower in the absence of manifest error.
3.9 Substitution of Lenders. Upon the receipt by the Borrower from any
Lender (an "Affected Lender") of a claim for compensation under Section 3.6, the
Borrower may: (i) request the Affected Lender to use its best efforts to obtain
a replacement bank or financial institution satisfactory to the Borrower to
acquire and assume all or a ratable part of all of such Affected Lender's Loans
and Commitment (a "Replacement Lender"); (ii) request one or more of the other
Lenders to acquire and assume all or part of such Affected Lender's Loans and
Commitment (but no other Lender shall be required to do so); or (iii) designate
a Replacement Lender. Any such designation of a Replacement Lender under clause
(ii) or (iii) shall be subject to the prior written consent of the Agent (which
consent shall not be unreasonably withheld).
3.10 Survival. The agreements and obligations of the Borrower in this
Section 3 shall survive the payment of all other Obligations.
4. CONDITIONS.
- 24 -
4.1 Conditions Precedent to the Effectiveness of this Agreement. The
obligation of each Lender to make its initial extension of credit hereunder is
subject to the condition that the Agent has received on or before the Closing
Date all of the following in form and substance satisfactory to the Agent and
each Lender, in sufficient copies for each Lender;
(a) This Agreement and the Notes executed by each party thereto.
(b) A copy of a resolution or resolutions adopted by the Board of
Directors or Executive Committee of the Borrower, certified by the Secretary or
an Assistant Secretary of the Borrower as being in full force and effect on the
date hereof, authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, and a
copy of the Certificate of Incorporation and the By-Laws of the Borrower,
similarly certified.
(c) A certificate, signed by the Secretary or an Assistant Secretary
of the Borrower and dated the date hereof, as to the incumbency of the person or
persons authorized to execute and deliver this Agreement.
(d) A certificate signed by the Chief Financial Officer, Treasurer or
Corporate Controller of the Borrower that, as of the date hereof, there has been
no material adverse change in its consolidated financial condition since
December 31, 2004 not reflected on its Quarterly Report on Form 10-Q filed with
the SEC for the period ending March 31, 2005.
(e) A certificate, signed by the Secretary or an Assistant Secretary
of the Borrower and dated the date hereof, as to the persons authorized to
execute and deliver a Borrowing Advice, a Notice of Conversion/Continuation, and
the Revolving Notes and the Term Notes. The Agent and each Lender may rely on
such certificate with respect to the Revolving Loans and Term Loans hereunder
unless and until it shall have received an updated certificate and, after
receipt of such updated certificate, similarly may rely thereon.
(f) A written opinion, dated the date hereof, of counsel for the
Borrower, in the form of Exhibit E.
(g) Evidence of payment by the Borrower of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the Closing Date,
together with Attorney Costs of Citicorp USA to the extent invoiced prior to or
on the Closing Date, plus such additional amounts of Attorney Costs as shall
constitute Citicorp USA's reasonable estimate of Attorney Costs incurred or to
be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the Borrower
and Citicorp USA); including any such costs, fees and expenses arising under or
referenced in Sections 2.9 and 10.4.
(h) Written evidence that all of the Borrowing Agreements have been
or concurrently herewith are being terminated.
- 25 -
(i) A certificate, signed by the Chief Financial Officer, Treasurer
or an Assistant Treasurer of the Borrower and dated as of the date hereof, which
confirms that after giving effect to this Agreement, the aggregate principal
amount of credit available under all of the Borrower's committed unsecured
revolving credit facilities combined will not exceed the amount authorized under
the resolutions of the Borrower referenced in subsection 4.1(b).
4.2 Conditions Precedent to Revolving Loans and Term Loans. The
obligation of each Lender to make any Revolving Loan or Term Loan to be made by
it (including its initial Revolving Loan), or to continue or convert any Loan
under Section 2.5 is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date or Conversion/Continuation Date:
The Agent shall have received a Borrowing Advice or a Notice of
Conversion/Continuation, as applicable. Each Borrowing Advice or Notice of
Conversion/Continuation given by the Borrower shall be deemed to be a
representation and warranty by the Borrower to each Lender, effective on and as
of the date of such Notice and as of such Borrowing Date for a Revolving Loan or
Term Loan covered thereby, that (i) the representations and warranties set forth
in Section 5 hereof are true and correct as of such date, and (ii) no Default or
Event of Default has occurred and is continuing. No Lender shall be required to
make any Loan hereunder if:
(a) the Credit, the Revolving Credit Facility (in the case of a
Revolving Loan) or the Term Loan Facility (in the case of a Term Loan) has been
terminated; or
(b) any of the representations or warranties of the Borrower set
forth in Section 5 hereof shall prove to have been untrue in any material
respect when made, or when any Default or Event of Default as defined in Section
8, has occurred; or
(c) the Borrower or any Bank Subsidiary is in violation of the
capital requirements as described in Section 6.6; or
(d) the Broker Subsidiary is in violation of minimum net capital
requirements as described in Section 7.1; or
(e) the Borrower's Consolidated Stockholders' Equity is below the
Minimum Stockholders' Equity as described in Section 7.2; or
(f) any amount owing with respect to any Commitment Fee or any
outstanding Revolving Loan or Term Loan or any interest thereon or any other
amount payable hereunder is due and unpaid.
5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and each Lender, as of
the date of delivery of this Agreement and as of the date of any Revolving Loan
or Term Loan, as follows:
- 26 -
5.1 Organization and Good Standing. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware and has full power, authority and legal right and has all governmental
licenses, authorizations, qualifications and approvals required to own its
property and assets and to transact the business in which it is engaged; and all
of the outstanding shares of capital stock of Borrower have been duly authorized
and validly issued, are fully paid and non-assessable.
5.2 Corporate Power and Authority. The Borrower has full power, authority
and legal right to execute and deliver, and to perform its obligations under,
this Agreement, and to borrow hereunder, and has taken all necessary corporate
and legal action to authorize the borrowings hereunder on the terms and
conditions of this Agreement and to authorize the execution and delivery of this
Agreement, and the performance of the terms thereof.
5.3 Enforceability. This Agreement has been duly authorized and executed
by the Borrower, and when delivered to the Lenders will be a legal, valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, except, in each case, as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
5.4 No Violation of Laws or Agreements. The execution and delivery of
this Agreement by the Borrower and the performance of the terms hereof will not
violate any provision of any law or regulation or any judgment, order or
determination of any court or governmental authority or of the charter or
by-laws of, or any securities issued by, the Borrower or any provision of any
mortgage, indenture, loan or security agreement, or other instrument, to which
the Borrower is a party or which purports to be binding upon it or any of its
assets in any respect that reasonably could be expected to have a material
adverse effect on the Borrower and its Subsidiaries taken as a whole on a
consolidated basis; nor will the execution and the delivery of this Agreement by
the Borrower and the performance of the terms hereof result in the creation of
any lien or security interest on any assets of the Borrower pursuant to the
provisions of any of the foregoing.
5.5 No Consents. Except as disclosed in writing by Borrower, no consents
of others (including, without limitation, stockholders and creditors of the
Borrower) nor any consents or authorizations of, exemptions by, or
registrations, filings or declarations with, any Governmental Authority are
required to be obtained by the Borrower in connection with the execution and
delivery of this Agreement and the performance of the terms thereof.
5.6 Financial Statements. The consolidated financial statements of the
Borrower contained in the documents previously delivered to each Lender have
been prepared in accordance with U.S. generally accepted accounting principles
and present fairly the consolidated financial position of the Borrower.
5.7 Broker Subsidiary Licenses, Etc. The Broker Subsidiary possesses all
material licenses, permits and approvals necessary for the conduct of its
business as now conducted and as
- 27 -
presently proposed to be conducted as are required by law or the applicable
rules of the SEC and the National Association of Securities Dealers, Inc.
5.8 Broker Subsidiary/Broker Registration. The Broker Subsidiary is
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended.
5.9 Broker Subsidiary/SIPC. The Broker Subsidiary is not in arrears with
respect to any assessment made upon it by the Securities Investor Protection
Corporation, except for any assessment being contested by the Broker Subsidiary
in good faith by appropriate proceedings and with respect to which adequate
reserves or other provisions are being maintained to the extent required by U.S.
generally accepted accounting principles.
5.10 Taxes. The Borrower has paid and discharged or caused to be paid and
discharged all taxes, assessments, and governmental charges prior to the date on
which the same would have become delinquent, except to the extent that such
taxes, assessments or charges are being contested in good faith and by
appropriate proceedings by or on behalf of the Borrower and with respect to
which adequate reserves or other provisions are being maintained to the extent
required by U.S. generally accepted accounting principles.
5.11 ERISA. The Borrower is in compliance with the provisions of and
regulations under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the Internal Revenue Code of 1986, as amended, applicable
to any pension or other employee benefit plan established or maintained by the
Borrower or to which contributions are made by the Borrower (the "Plans"). The
Borrower has met all of the funding standards applicable to each of its Plans,
and there exists no event or condition that would permit the institution of
proceedings to terminate any of the Plans under Section 4042 of ERISA. The
estimated current value of the benefits vested under each of the Plans does not,
and upon termination of any of the Plans will not, exceed the estimated current
value of any such Plan's assets. The Borrower has not, with respect to any of
the Plans, engaged in a prohibited transaction set forth in Section 406 of ERISA
or Section 4975(c) of the Internal Revenue Code of 1986.
5.12 No Extension of Credit for Default Remedy/Hostile Acquisition. The
Borrower will not use any amounts borrowed by it under this Agreement to remedy
a default under any mortgage, indenture, agreement or instrument under which
there may be issued any Indebtedness of the Borrower to any bank or bank holding
company, or their respective assignees, for borrowed money. Further, the
Borrower will not use any amounts advanced to it under this Agreement for the
immediate purpose of acquiring a company where the Board of Directors or other
governing body of the entity being acquired has made (and not rescinded) a
public statement opposing such acquisition.
5.13 Use of Proceeds/Margin Regulations. The Borrower will use the
proceeds for general corporate purposes, including, without limitation, for the
back-up of the issuance of commercial paper notes. The Borrower will not use the
proceeds of any loan provided hereby in such a manner as to result in a
violation of Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
- 28 -
5.14 Authorized Persons. The persons named for such purpose in the
certificates delivered pursuant to subsection 4.1(e) hereof are authorized to
execute Borrowing Advices.
5.15 Material Contracts. Borrower is not in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, note or
lease to which the Borrower is a party or by which it may be bound.
5.16 Litigation. There is no action, suit or proceeding pending against,
or to the knowledge of the Borrower, threatened against or affecting, the
Borrower or any of its Subsidiaries before any court, arbitrator, governmental
body, agency or official in which there is a significant probability of an
adverse decision which could have a material adverse affect on the business or
the financial condition of the Borrower.
5.17 Investment Company. The Borrower is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
6. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that so long as any Lender shall have a
Commitment hereunder or any Loan or other obligation hereunder shall remain
outstanding, unpaid or unsatisfied and until full payment of all amounts due to
the Lenders hereunder, it will, unless and to the extent the Required Lenders
waive compliance in writing:
6.1 Notice of Events of Default. Give prompt notice to the Agent and each
Lender, no later than three Business Days after becoming aware thereof, of any
Default or Event of Default.
6.2 Financial Statements. Deliver to the Agent, in form and detail
satisfactory to the Agent and the Required Lenders with sufficient copies for
each Lender, within ten Business Days of the filing thereof with the SEC, a copy
of each registration statement filed under the Securities Act of 1933, a copy of
each filing (including exhibits) made by the Borrower with the SEC under the
Securities Exchange Act of 1934, as amended, accompanied by a compliance
certificate with an attached schedule of calculations (in the form attached
hereto as Schedule 6.2) demonstrating compliance with the Section 7.1 and 7.2
financial covenants; and, in the event the Borrower requests an extension of any
such filing from the SEC, promptly (but not later than the second Business Day
following the filing of such request) deliver a copy of such request to the
Agent.
6.3 Insurance. Maintain and keep in force in adequate amounts such
insurance as is usual in the business carried on by the Borrower and cause the
Broker Subsidiary to maintain and keep in force in adequate amounts such
insurance as is usual in the business carried on by the Broker Subsidiary.
- 29 -
6.4 Books and Records. Maintain adequate books, accounts and records and
prepare all financial statements required hereunder in accordance with U.S.
generally accepted accounting principles and practices and in compliance with
the regulations of any governmental regulatory body having jurisdiction thereof.
6.5 Change in Business. Advise the Agent and such Lender, in a timely
manner, of material changes to the nature of business of the Borrower or the
Broker Subsidiary as at present conducted. The Broker Subsidiary is at present
engaged in the business of providing financial services, primarily to individual
investors and/or their advisors.
6.6 Capital Requirements. The Borrower will maintain, and cause each Bank
Subsidiary to maintain, at all times such amount of capital as may be prescribed
by the Board of Governors of the Federal Reserve System (in the case of the
Borrower and any state member Bank Subsidiary) or the Comptroller of the
Currency (in the case of any national member Bank Subsidiary), as the case may
be, from time to time, whether by regulation, agreement or order. The Borrower
shall at all times ensure that all Bank Subsidiaries shall be "well capitalized"
within the meaning of 12 U.S.C. SS1831(o), as amended, reenacted or redesignated
from time to time.
7. NEGATIVE COVENANTS.
The Borrower covenants and agrees that so long as any Lender shall have any
Commitment hereunder, or any Loan or other obligation, shall remain outstanding,
unpaid or unsatisfied and until full payment of all amounts due to the Lenders
hereunder, unless and to the extent the Required Lenders waive compliance in
writing:
7.1 Net Capital. The Borrower will not permit the Broker Subsidiary to
allow any month-end Net Capital Ratio to be less than 5%.
7.2 Minimum Stockholders' Equity. The Borrower will not allow its
Consolidated Stockholders' Equity to fall below the Minimum Stockholders'
Equity.
7.3 Merger/Disposition of Assets. The Borrower will not (i) permit either
Broker Subsidiary or Intermediate Parent to (a) merge or consolidate, unless the
surviving company is a Controlled Subsidiary, or (b) convey or transfer its
properties and assets substantially as an entirety except to one or more
Controlled Subsidiaries; or (ii) except as permitted by subsection 7.3(i) sell,
transfer or otherwise dispose of any voting stock of Broker Subsidiary or
Intermediate Parent, or permit either Broker Subsidiary or Intermediate Parent
to issue, sell or otherwise dispose of any of its voting stock, unless, after
giving effect to any such transaction, Broker Subsidiary or Intermediate Parent,
as the case may be, remains a Controlled Subsidiary.
7.4 Broker Subsidiary Indebtedness. The Borrower will not permit the
Broker Subsidiary to create, incur or assume any Indebtedness other than:
- 30 -
(a) (i) Indebtedness to customers, other brokers or dealers,
securities exchanges or securities markets, self-regulatory organizations,
clearing houses and like institutions (including, without limitation, letters of
credit or similar credit support devices issued for the account of Broker
Subsidiary and for the benefit of any of the foregoing in order to comply with
any margin, collateral or similar requirements imposed by or for the benefit of
any of the foregoing), (ii) "broker call" credit, (iii) indebtedness consisting
of borrowings secured solely by margin loans made by Broker Subsidiary, together
with any underlying collateral of Broker Subsidiary, (iv) stock loans, (v)
obligations to banks for disbursement accounts, (vi) Indebtedness incurred for
the purchase of tangible personal property on a non-recourse basis or for the
leasing of tangible personal property under a capitalized lease, (vii)
Indebtedness incurred for the purchase, installation or servicing of computer
equipment and software, and (viii) Indebtedness incurred in the ordinary course
of the Broker Subsidiary's business, to the extent not already included in the
foregoing clauses (i) through (vii);
(b) intercompany Indebtedness; and
(c) other Indebtedness in the aggregate not exceeding $100,000,000.
7.5 Indebtedness Secured by Subsidiary Stock. The Borrower will not, and
will not permit any Subsidiary at any time directly or indirectly to create,
assume, incur or permit to exist any Indebtedness secured by a pledge, lien or
other encumbrance (hereinafter referred to as a "lien") on the voting stock of
any Subsidiary without making effective provision whereby the Revolving Notes
and the Term Notes shall be secured equally and ratably with such secured
Indebtedness so long as other Indebtedness shall be so secured; provided,
however, that the foregoing covenant shall not be applicable to Permitted Liens
(as defined in Section 7.6 below).
7.6 Liens and Encumbrances. The Borrower will not create, incur, assume
or suffer to exist any lien or encumbrance upon or with respect to any of its
properties, whether now owned or hereafter acquired, except the following (the
"Permitted Liens"):
(a) liens securing taxes, assessments or governmental charges or
levies, or in connection with workers' compensation, unemployment insurance or
social security obligations, or the claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like persons not yet delinquent or
which are being contested in good faith by appropriate proceedings with respect
to which adequate reserves or other provisions are being maintained to the
extent required by U.S. generally accepted accounting principles;
(b) liens not for borrowed money incidental to the conduct of its
business or the ownership of property that do not materially detract from the
value of any item of property;
(c) attachment, judgment or other similar liens arising in the
connection with court proceedings that do not, in the aggregate, materially
detract from the value of its property, materially impair the use thereof in the
operation of its businesses and (i) that are discharged or stayed within sixty
(60) days of attachment or levy, or (ii) payment of which is
- 31 -
covered in full (subject to customary and reasonable deductibles) by insurance
or surety bonds; and
(d) liens existing at Closing Date provided that the obligations
secured thereby are not increased.
8. EVENTS OF DEFAULT.
8.1 Defaults. The occurrence of any of the following events shall
constitute an "Event of Default":
(a) The Borrower shall fail to pay any interest with respect to the
Revolving Notes or the Term Notes or any Commitment Fee in accordance with the
terms hereof within 10 days after such payment is due.
(b) The Borrower shall fail to pay any principal with respect to the
Revolving Notes or the Term Notes in accordance with the terms thereof on the
date when due.
(c) Any representation or warranty made by the Borrower herein or
hereunder or in any certificate or other document furnished by the Borrower
hereunder shall prove to have been incorrect when made (or deemed made) in any
respect that is materially adverse to the interests of the Lenders or their
rights and remedies hereunder.
(d) Except as specified in (a) and (b) above, the Borrower shall
default in the performance of, or breach, any covenant of the Borrower with
respect to this Agreement, and such default or breach shall continue for a
period of thirty days after there has been given, by registered or certified
mail, to the Borrower by the Agent a written notice specifying such default or
breach and requiring it to be remedied.
(e) An event of default as defined in any mortgage, indenture,
agreement or instrument under which there may be issued, or by which there may
be secured or evidenced, any Indebtedness of the Borrower in a principal amount
not less than $75,000,000, shall have occurred and shall result in such
Indebtedness becoming or being declared due and payable prior to the date on
which it otherwise would become due and payable, or an event of default or a
termination event as defined in any Hedge Agreement shall have occurred and
shall result in a net payment obligation of the Borrower thereunder of not less
than $75,000,000; provided, however, that if such event of default shall be
remedied or cured by the Borrower, or waived by the holders of such
Indebtedness, within twenty days after the Borrower has received written notice
of such event of default and acceleration, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have thereupon been remedied,
cured or waived without further action upon the part of either the Borrower or
the Agent and Lenders.
(f) Any involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
against the Borrower or the Broker Subsidiary, or against all or a substantial
part of the property of either of them,
- 32 -
under Title 11 of the United States Code or any other federal, state or foreign
bankruptcy, insolvency, reorganization or similar law, (ii) the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Borrower or the Broker Subsidiary or for all or a substantial
part of the property of either of them, or (iii) the winding-up or liquidation
of the Borrower or the Broker Subsidiary; and, in any such case, such
involuntary proceeding or involuntary petition shall continue undismissed for 60
days, or, before such 60-day period has elapsed, there shall be entered an order
or decree ordering the relief requested in such involuntary proceeding or
involuntary petition.
(g) The Borrower or the Broker Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case under such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Borrower or Broker Subsidiary or for
any substantial part of its respective properties, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
respective debts as they become due or shall take any corporate action in
furtherance of any of the foregoing.
(h) A final judgment or judgments for the payment of money in excess
of $75,000,000 in the aggregate shall be entered against the Borrower by a court
or courts of competent jurisdiction, and the same shall not be discharged (or
provisions shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof and the
Borrower shall not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal therefrom and cause
the execution thereof to be stayed during such appeal.
(i) At any time after a Change in Control, the Borrower fails to
maintain at least one of the following credit ratings for its Senior Medium-Term
Notes, Series A: (a) BBB- (or better) by Standard & Poor's Ratings Service, a
Division of The XxXxxx-Xxxx Companies, Inc., or (b) Baa3 (or better) by Xxxxx'x
Investors Service, Inc.
8.2 Remedies. If an Event of Default occurs and is continuing, then and
in every such case the Agent shall, at the request of, or may, with the consent
of, the Required Lenders (i) declare the Commitment of each Lender to make Loans
to be terminated whereupon such Commitments and obligation shall be terminated,
and declare the unpaid principal of all outstanding Loans, any and all accrued
and unpaid interest, any accrued and unpaid Commitment Fees, or any other
amounts owing or payable under the Notes, to be immediately due and payable, by
a notice in writing to the Borrower, and upon such declaration such principal,
interest, Commitment Fees, or other amounts payable hereunder and accrued
thereon shall become immediately due and payable, together with any funding
losses that may result as a consequence of such declaration, without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower; provided, however, that in the case of any of
the Events of Default specified in subsection (f) or (g) of Section 8.1,
automatically without any notice to the Borrower or any other act by the Agent,
the Credit and the obligations of each Lender to make Loans shall automatically
terminate and the unpaid principal amount of
- 33 -
all outstanding Loans, any accrued and unpaid interest, any accrued and unpaid
Commitment Fees or any other amounts payable hereunder shall become immediately
due and payable, together with any funding losses that may result as a
consequence thereof, without further act of the Agent or any Lender and without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower.
9. THE AGENT.
9.1 Appointment and Authorization. Each Lender hereby irrevocably
(subject to Section 9.9) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities except those expressly set forth, nor shall the Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against the Agent.
9.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by the Borrower or any Subsidiary or
Affiliate of the Borrower, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Borrower or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower or any of the
Borrower's Subsidiaries or Affiliates.
9.4 Reliance by Agent.
- 34 -
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Lender.
9.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Lenders, unless the Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Required Lenders in
accordance with Section 8; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.
9.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Borrower and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time,
- 35 -
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the Agent,
the Agent shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Borrower
which may come into the possession of any of the Agent-Related Persons.
9.7 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to the Agent-Related Persons of
any portion of such Indemnified Liabilities resulting solely from any such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Agent upon demand for its ratable
share, of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein to the extent that the Agent
is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
9.8 Agent in Individual Capacity. Citicorp USA and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Borrower and its
Subsidiaries and Affiliates as though Citicorp USA were not the Agent hereunder
and without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Citicorp USA or its Affiliates may receive
information regarding the Borrower or its Affiliates (including information that
may be subject to confidentiality obligations in favor of the Borrower or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Citicorp USA shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent.
9.9 Successor Agent. The Agent may, and at the request of the Required
Lenders shall, resign as Agent upon 30 days' notice to the Lenders and Borrower.
If the Agent resigns under this Agreement, the Required Lenders, with the
consent of the Borrower, which consent shall not be unreasonably withheld, shall
appoint from among the Lenders a successor agent for the Lenders which successor
agent shall be approved by the Borrower. If no successor agent is appointed
prior to the effective date of the resignation of the Agent, the Agent with the
consent of the Borrower, which consent shall not be unreasonably withheld, may
appoint, after consulting
- 36 -
with the Lenders and the Borrower, a successor agent from among the Lenders.
Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Section 9 and Sections 10.4 and 10.5 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of the Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above. The retiring Agent shall refund to Borrower that portion of any agency
fee paid to such Agent as is not earned due to such Agent's resignation,
prorated to the date of such Agent's resignation.
9.10 Withholding Tax.
(a) If any Lender is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Section 1441 or 1442 of the Code, such
Lender agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed IRS Form
W-8BEN before the payment of any interest in the first calendar year and before
the payment of any interest in any subsequent calendar year during which the
Form W-8BEN (or any successor thereto) then in effect expires;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Lender, two properly
completed copies of IRS Form W-8ECI or any successor form thereto before the
payment of any interest is due in the first taxable year of such Lender and
before the payment of any interest in any subsequent calendar year during which
the Form W-8ECI (or any successor thereto) then in effect expires; and
(iii) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Agent of any change in circumstances
which would render invalid any claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form W-8BEN and such
Lender sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Company to such Lender, such Lender agrees to
notify the Agent of the percentage amount in
- 37 -
which it is no longer the beneficial owner of Obligations of the Company to such
Lender. To the extent of such percentage amount, the Agent will treat such
Lender's IRS Form W-8BEN or any successor form thereto as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form W-8ECI or any successor form thereto with the Agent
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Company to such Lender, such Lender agrees to undertake
sole responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection (a)
of this Section are not delivered to the Agent or if any Lender which is a
"foreign corporation, partnership or trust" within the meaning of the Code is
not entitled to claim exemption from or a reduction of U.S. withholding tax
under Section 1441 or 1442 of the Code, then the Agent shall withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason other than the Agent's gross negligence or willful misconduct) such
Lender shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Lenders under this subsection shall
survive the payment of all Obligations and the resignation or replacement of the
Agent.
9.11 Co-Agents. None of the Lenders identified on the facing page or
signature pages of this Agreement as a "co-agent", "managing agent",
"syndication agent" or "documentation agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders so identified as a "co-agent", "syndication agent" or "documentation
agent" shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
10. MISCELLANEOUS.
- 38 -
10.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or by the Agent at the written request of the Required Lenders) and the
Borrower and acknowledged by the Agent, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Lenders and the Borrower and
acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.2);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders or any of
them to take any action hereunder; or
(e) amend this Section, or Section 2.13, or any provision herein
providing for consent or other action by all Lenders;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Required Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, and (ii) the Fee Letter may be amended or
rights or privileges thereunder waived, in a writing executed by the parties
thereto.
10.2 Notices.
(a) All notices, requests and other communications shall be either
(i) in writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by the Borrower by
facsimile shall be immediately confirmed by a telephone call to the recipient at
the number specified on Schedule 10.2) or (ii) as and to the extent set forth in
clause (d) below, by electronic mail.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, faxed or e-mailed, be effective when
delivered for overnight (next-day) delivery, transmitted in legible form by
facsimile machine (provided that the sender
- 39 -
has retained its facsimile machine-generated confirmation of the receipt of such
fax by the recipient's facsimile machine) or transmitted by e-mail (provided
that the e-mail was sent to the e-mail address provided by the recipient and
that the e-mail was not returned to the sender as undeliverable), respectively,
or if mailed, upon the third Business Day after the date deposited into the U.S.
mail, or if delivered, upon delivery; except that notices pursuant to Section 2
or 9 shall not be effective until actually received by the Agent.
(c) The agreement of the Agent and the Lenders herein to receive
certain notices by telephone, facsimile or e-mail is solely for the convenience
of the Borrower, the Agent and the Lenders. The Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person who is
named in the then-current certificate delivered pursuant to subsection 4.1(e)
hereof as authorized to execute Borrowing Advices (each an "Authorized Person")
and the Lenders shall not have any liability to the Borrower or other Person on
account of any action taken or not taken by the Agent or the Lenders in reliance
upon such telephonic, facsimile or e-mail notice, provided the Agent and the
Lenders reasonably believe such Person to be an Authorized Person. The
obligation of the Borrower to repay the Loans shall not be affected in any way
to any extent by any failure by the Agent and the Lenders to receive written
confirmation of any telephonic, facsimile or e-mail notice or the receipt by the
Agent and the Lenders of a confirmation which is at variance with the terms
understood by the Agent and the Lenders to be contained in the telephonic,
facsimile or e-mail notice.
(d) The compliance certificate described in Section 6.2 shall be
delivered to the Agent by the Borrower by mail or overnight delivery. Except for
the compliance certificate described in Section 6.2, materials required to be
delivered pursuant to Section 6.2 shall be delivered to the Agent in an
electronic medium format reasonably acceptable to the Agent by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrower agrees that the Agent may make such
materials (collectively, the "Communications") available to the Lenders by
posting such materials on IntraLinks, "e-Disclosure" (the Agent's internet
delivery system that is part of SSB Direct, Global Fixed Income's primary web
portal) or a substantially similar electronic transmission system (collectively,
the "Platform"). In addition, to the extent the Borrower in its sole discretion
so elects and confirms in writing or by e-mail to the Agent, any other written
information, documents, instruments or other material relating to the Borrower,
any of its Subsidiaries or any other materials or matters relating to this
Agreement, the Notes or any of the transactions contemplated hereby and supplied
by the Borrower to the Agent (other than any such communication that (i) relates
to a request for a new, or a conversion of an existing, Borrowing (including any
election of an interest rate or Interest Period relating thereto), (ii) relates
to the payment of any principal or other amount due hereunder prior to the
scheduled date therefor, (iii) provides notice of any Default or Event of
Default or (iv) is required to be delivered to satisfy any condition precedent
set forth in Section 4.1 or Section 4.2), shall, to the extent of such election
and confirmation by the Borrower, constitute materials that are "Communications"
for purposes of this subparagraph (d). The Borrower and each of the Lenders
acknowledges that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided "as is" and "as
available" and (iii) neither the Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the Communications
or the Platform (provided, as to
- 40 -
such disclaimer, that the Agent and its Affiliates have not been grossly
negligent or engaged in any willful misconduct in respect of the Platform). No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform.
(e) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement. Each Lender
agrees (i) to notify the Agent in writing of such Lender's e-mail address to
which a Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Lender becomes a party to this
Agreement (and from time to time thereafter to ensure that the Agent has on
record an effective e-mail address for such Lender) and (ii) that any Notice may
be sent to such e-mail address.
10.3 No Waiver-Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Lender, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
10.4 Costs and Expenses. The Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Citicorp USA including in its capacity as Agent
and Lender within five Business Days after demand, subject to subsection 4.1(g)
for all reasonable costs and expenses incurred by Citicorp USA including in its
capacity as Agent and Lender in connection with the development, preparation,
delivery, administration and execution of, and any amendment, supplement, waiver
or modification to (in each case, whether or not consummated), this Agreement,
any Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by Citicorp USA (including
in its capacity as Agent and Lender with respect thereto); and
(b) pay or reimburse the Agent, the Arranger and each Lender within
five Business Days after demand (subject to subsection 4.1(g)) for all
reasonable costs and expenses (including reasonable Attorney Costs) incurred by
them in connection with the enforcement, attempted enforcement, or preservation
of any rights or remedies under this Agreement or any other Loan Document during
the existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate proceeding). In
connection with any claim, demand, action or cause of action relating to the
enforcement, preservation or exercise of any rights or remedies covered by this
Section 10.4 against the Borrower, all Lenders shall be represented by the same
legal counsel selected by such Lenders; provided, that if such legal counsel
determines in good faith that representing all such Lenders would or could
result in
- 41 -
a conflict of interest under laws or ethical principles applicable to such legal
counsel or that a claim is available to a Lender that is not available to all
such Lenders, then to the extent reasonably necessary to avoid such a conflict
of interest or to permit an unqualified assertion of such a claim, each Lender
shall be entitled to separate representation by legal counsel selected by that
Lender, with all such legal counsel using reasonable efforts to avoid
unnecessary duplication of effort by counsel for all Lenders.
10.5 Borrower Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold the
Agent-Related Persons, and each Lender and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement
or any document contemplated by or referred to herein, or the transactions
contemplated hereby, or any action taken or omitted by any such Person under or
in connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding or
appellate proceeding) related to or arising out of this Agreement or the Loans
or the use of the proceeds thereof, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Borrower shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities resulting from the
gross negligence or willful misconduct of such Indemnified Person. If any claim,
demand, action or cause of action is asserted against any Indemnified Person,
such Indemnified Person shall promptly notify Borrower, but the failure to so
promptly notify Borrower shall not affect Borrower's obligations under this
Section unless such failure materially prejudices Borrower's right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. If requested by Borrower in writing, such Indemnified
Person shall in good faith contest the validity, applicability and amount of
such claim, demand, action or cause of action and shall permit Borrower to
participate in such contest. Any Indemnified Person that proposes to settle or
compromise any claim or proceeding for which Borrower may be liable for payment
of indemnity hereunder shall give Borrower written notice of the terms of such
proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain Borrower's prior consent.
In connection with any claim, demand, action or cause of action covered by this
Section 10.5 against more than one Indemnified Person, all such Indemnified
Persons shall be represented by the same legal counsel selected by the
Indemnified Persons and reasonably acceptable to Borrower; provided, that if
such legal counsel determines in good faith that representing all such
Indemnified Persons would or could result in a conflict of interest under laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnified Person that is not available to all
such Indemnified Persons, then to the extent reasonably necessary to avoid such
a conflict of interest or to permit unqualified assertion of such a defense or
counterclaim, each Indemnified Person shall be entitled to separate
representation by legal counsel selected by that Indemnified Person and
reasonably acceptable to Borrower, with all such legal counsel using reasonable
efforts to
- 42 -
avoid unnecessary duplication of effort by counsel for all Indemnified Persons.
The agreements in this Section shall survive payment of all other Obligations.
10.6 Payments Set Aside. To the extent that the Borrower makes a payment
to the Agent or the Lenders, or the Agent or the Lenders exercise any right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Lender in its discretion) to be repaid to a trustee, receiver or
any other party, in connection with any Insolvency Proceeding or otherwise, then
(a) to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Agent upon demand its pro rata share
of any amount so recovered from or repaid by the Agent.
10.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Lender.
10.8 Assignments, Participations Etc.
(a) Any Lender may, with the written consent of the Agent and the
Borrower, which consent shall not be unreasonably withheld (except Borrower's
consent shall not be required if (i) a Default or an Event of Default exists and
is continuing, and (ii) the Eligible Assignee is not engaged in the securities
brokerage business or the investment advisory business), at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent of
the Agent shall be required in connection with any assignment and delegation by
a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an
"Assignee") all, or any ratable part of all, of the Loans, the Commitments, and
the other rights and obligations of such Lender hereunder, in a minimum amount
of $10,000,000; provided, however, that the Borrower and, the Agent may continue
to deal solely and directly with such Lender in connection with the interest so
assigned to an Assignee until (A) written notice of such assignment, together
with payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Agent by such Lender and
the Assignee; (B) such Lender and its Assignee shall have delivered to the
Borrower and the Agent an Assignment and Acceptance in the form of Exhibit F
("Assignment and Acceptance") together with any Note or Notes subject to such
assignment; and (C) the assignor Lender or Assignee has paid to the Agent a
processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor
Lender and the Borrower that it has received (and the Borrower and the Agent
have provided their consent with respect to) an executed Assignment and
Acceptance and payment of the above-referenced processing fee, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Lender under the Loan
Documents, and
- 43 -
(ii) the assignor Lender shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and payment of
the processing fee (and provided that it consents to such assignment in
accordance with subsection 10.8(a)), the Borrower shall execute and deliver to
the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment
and, if the assignor Lender has retained a portion of its Loans and its
Commitment, replacement Notes in the principal amount of the Commitment retained
by the assignor Lender (such Notes to be in exchange for, but not in payment of,
the Notes held by such Lender). Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance, this Agreement shall
be deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitments of the assignor Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Borrower (a "Participant") participating
interests in any Loans, the Commitment of that Lender and the other interests of
that Lender (the "originating Lender") hereunder and under the other Loan
Documents; provided, however, that (i) the originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Borrower, and the Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document. Any Lender that
sells a participation to any Person that is a "foreign corporation, partnership
or trust" within the meaning of the Code shall include in its participation
agreement with such Person a covenant by such Person that such Person will
comply with the provisions of Section 9.10 as if such Person were a Lender and
provide that the Agent and the Borrower shall be third party beneficiaries of
such covenant.
(e) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR SS203.14, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law.
(f) Any Lender (a "Granting Lender") may, with notice to the Agent,
grant to a special purpose funding vehicle (an "SPC") the option to fund all or
any part of any Loan that such Granting Lender would otherwise be obligated to
fund pursuant to this Agreement. The funding of a Loan by an SPC hereunder shall
utilize the Revolving Credit
- 44 -
Commitment of the Granting Lender to the same extent, and as if, such Loan were
funded by such Granting Lender. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or payment under this Agreement for which a
Lender would otherwise be liable for so long as, and to the extent, the Granting
Lender provides such indemnity or makes such payment. Notwithstanding anything
to the contrary contained in the foregoing or anywhere else in this Agreement,
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
(ii) if an SPC elects not to exercise such option or otherwise fails to fund all
or any part of such Loan, the Granting Lender shall be obligated to fund such
Loan pursuant to the terms hereof, and (iii) the Borrower and Agent shall
continue to deal exclusively with the Granting Lender and any funding by an SPC
hereunder shall not constitute an assignment, assumption or participation of any
rights or obligations of the Granting Lender. Any SPC may disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC, provided, as a condition precedent to such disclosure,
(A) such agency, dealer or provider has delivered to such Granting Lender for
the benefit of Borrower a written confidentiality agreement substantially
similar to Section 10.9, and (B) simultaneous with or prior to such disclosure,
such Granting Lender has given written notice to Borrower of the agency, dealer
or provider to which such disclosure is being made and the contents of such
disclosure. This Section may not be amended without the prior written consent of
each Granting Lender, all or any part of whose Loan is being funded by an SPC at
the time of such amendment.
10.9 Confidentiality. Each Lender agrees to hold any confidential
information that it may receive from Borrower or from the Agent on such
Borrower's behalf, pursuant to this Agreement in confidence, except for
disclosure: (a) to legal counsel and accountants for Borrower or any Lender;
(b) to other professional advisors to Borrower or any Lender, provided that the
recipient has delivered to such Lender a written confidentiality agreement
substantially similar to this Section 10.9; (c) to regulatory officials having
jurisdiction over any Lender; (d) as required by applicable law or legal process
or in connection with any legal proceeding in which any Lender and Borrower are
adverse parties; and (e) to another financial institution in connection with a
disposition or proposed disposition to that financial institution of all or part
of any Lender's interests hereunder or a participation interest in the Revolving
Note and/or the Term Note, each in accordance with Section 10.8 hereof, provided
that the recipient has delivered to such Lender a written confidentiality
agreement substantially similar to this Section 10.9. Each Lender further agrees
that it will not use such confidential information in any activity or for any
purpose other than the administration of credit facilities extended to Borrower
and its Subsidiaries and, without limitation, will take such steps as are
reasonably appropriate to preclude access to any such confidential information
to be obtained by any Person employed by any Lender, or by an affiliate of any
Lender, who is not involved in the administration of credit facilities extended
to Borrower and its Subsidiaries. For purposes of the foregoing, "confidential
information" shall mean any information respecting Borrower or its Subsidiaries
reasonably specified by Borrower as confidential, other than (i) information
filed with any governmental agency and available to the public, and
(ii) information disclosed by Borrower to any Person not associated with
Borrower without a written confidentiality agreement substantially similar to
this Section 10.9. Certain of the confidential information pursuant to this
Agreement is or may be valuable proprietary information that constitutes a trade
secret of Borrower or its Subsidiaries;
- 45 -
neither the provision of such confidential information to any Lender or the
limited disclosures thereof permitted by this Section 10.9 shall affect the
status of any such confidential information as a trade secret of Borrower and
its Subsidiaries. Each Lender, and each other Person who agrees to be bound by
this Section 10.9, acknowledges that any breach of the agreements contained in
this Section 10.9 would result in losses that could not be reasonably or
adequately compensated by money damages. Accordingly, if any Lender or any other
person breaches its obligations hereunder, such Lender or such other Person
recognizes and consents to the right of Borrower, Intermediate Parent, and/or
Broker Subsidiary to seek injunctive relief to compel such Lender or other
Person to abide by the terms of this Section 10.9.
10.10 Notification of Addresses, Lending Offices, Etc. Each Lender shall
notify the Agent in writing of any changes in the address to which notices to
the Lender should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
10.11 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.12 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.13 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Borrower, the Lenders, the
Agent and the Arranger, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
10.14 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT
AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA
OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE AGENT AND
THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE BORROWER, THE
- 46 -
AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.
10.15 Waiver of Jury Trial. THE BORROWER, THE LENDERS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE
LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.16 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Borrower,
the Lenders and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
10.17 Headings. Articles and Section headings in this Agreement are
included herein for the convenience of reference only.
10.18 USA Patriot Act. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies each borrower, guarantor or
grantor (the "Loan Parties"), which information includes the name and address of
each Loan Party and other information that will allow such Lender to identify
such Loan Party in accordance with the Act.
(SIGNATURE PAGE FOLLOWS)
- 47 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
Borrower:
THE XXXXXXX XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and
Treasurer
Lenders:
CITICORP USA, INC., as Agent and
individually as Lender
By: /s/ Xxxxxxx Xxx
-----------------------------
Name: Xxxxxxx Xxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
CALYON NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxx-Cryde
-----------------------------
Name: Xxxx Xxxxx-Cryde
Title: Managing Director
JPMORGAN CHASE BANK, N.A.
By: /s/ Pandora Xxxxxx
-----------------------------
Name: Pandora Xxxxxx
Title: Vice President
LLOYDS TSB BANK PLC
By: /s/ Xxxxx Xxxx
-----------------------------
Name: Xxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK AND/OR CAYMAN
ISLANDS BRANCH
By: /s/ Xxxxx Xxxx
-----------------------------
Name: Xxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: VP Broker Dealer Division
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxx X. XxXxxxxx
-----------------------------
Name: Xxxx X. XxXxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
WESTLB AG, NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Manager
By: /s/ Dee Xxx Xxxxx
-----------------------------
Name: Dee Xxx Xxxxx
Title: Managing Director
BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANK OF HAWAII
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
COMMERZBANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Araw
-----------------------------
Name: Xxxxxx X. Araw
Title: Assistant Treasurer
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
XXXXXX X.X.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
HSBC BANK USA, N.A.
By: /s/ Xxxxxx Trauaglione
-----------------------------
Name: Xxxxxx Trauaglione
Title: Senior Vice President
By:
-----------------------------
Name:
Title:
MELLON BANK, N.A.
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx X. Saint
-----------------------------
Name: Xxxxxxx X. Saint
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
Schedule 1
LENDERS' COMMITMENTS
The Xxxxxxx Xxxxxx Corporation $800,000,000 Credit Agreement (364-Day
Commitment) dated as of June 17, 2005.
Lender Commitment Amount
1. Citicorp USA, Inc. 1. $80,000,000
2. Bank of America, N.A. 2. 70,000,000
3. Calyon New York Branch 3. 70,000,000
4. JPMorgan Chase Bank, N.A. 4. 70,000,000
5. Lloyds TSB Bank plc 5. 70,000,000
6. Norddeutsche Landesbank Girozentrale, 6. 45,000,000
New York and/or Cayman Islands Branch
7. PNC Bank, National Association 7. 45,000,000
8. U.S. Bank, National Association 8. 45,000,000
9. Xxxxx Fargo Bank, National Association 9. 45,000,000
10. WestLB AG, New York Branch 10. 45,000,000
11. BNP Xxxxxxx 00. 40,000,000
12. Bank of Hawaii 12. 25,000,000
13. Commerzbank AG New York and 13. 25,000,000
Grand Cayman Branches
14. Deutsche Bank AG New York Branch 14. 25,000,000
15. Xxxxxx X.X. 15. 25,000,000
16. HSBC Bank USA, N.A. 16. 25,000,000
17. Mellon Bank, N.A. 17. 25,000,000
18. UBS Loan Finance LLC 18. 25,000,000
Total $800,000,000
SCHEDULE 2
LIST OF BORROWING AGREEMENTS
1. $800,000,000 Credit Agreement (364-Day Commitment) dated as of June 18,
2004 among the Borrower, the lenders party thereto, and Citicorp USA, Inc., as
administrative agent for such lenders.
Schedule 6.2
COMPLIANCE CERTIFICATE
I, ____________________, certify that I am the _______________________ of
The Xxxxxxx Xxxxxx Corporation (the "Borrower"), and that as such I am
authorized to execute this Compliance Certificate on behalf of the Borrower, and
do hereby further certify on behalf of the Borrower that:
1. I have reviewed the terms of that certain Credit Agreement (364-Day
Commitment) dated as of June 17, 2005 among the Borrower, the financial
institutions named therein (the "lenders") and Citicorp USA, Inc., as Agent for
the lenders (the "Credit Agreement"), and I have made, or have caused to be made
by employees or agents under my supervision, a detailed review of the
transactions and conditions of the Borrower during the accounting period covered
by the attached financial statements dated ______________, 200__.
2. The examination described in paragraph 1 did not disclose, and I have no
knowledge of the existence of any condition or event which constitutes a Default
or Event of Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Compliance Certificate,
except as set forth below.
3. Schedule I attached hereto sets forth financial data and computations
evidencing compliance with the covenants set forth in Sections 7.1 and 7.2 of
the Credit Agreement, all of which data and computations are true, complete and
correct. Capitalized terms not otherwise defined herein are defined in the
Credit Agreement.
4. Described below are the exceptions, if any, to paragraph 2 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event.
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered this ___ day of
_____________ 200__.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
The Xxxxxxx Xxxxxx Corporation
Credit Agreement (364-Day Commitment)
Dated as of June 17, 2005
Schedule I
to
Compliance Certificate
(Dollars in Thousands)
1. Net Capital Ratio of the Broker Subsidiary.
Requirement: Broker Subsidiary - month-end ratio not less than 5%.
Net Capital Ratio for Broker Subsidiary
Month Month-end Ratio
----- ---------------
2. Minimum Stockholders' Equity of Borrower.
Requirement: As of _____________, 200___, required Minimum
Stockholders' Equity is $2,500,000,000 plus 50% of cumulative Net
Earnings from June 30, 2005.
Schedule 10.2
NOTICES
If to the Borrower:
If by U.S. mail: The Xxxxxxx Xxxxxx Corporation
Treasury Department
Attn: Xxxxxxx Xxxxxx or Successor
000 Xxxxxxxxxx Xxxxxx (Mail Stop SF120KNY-13-373)
Xxx Xxxxxxxxx, XX 00000
If by hand delivery
(including courier
and overnight
messenger service): The Xxxxxxx Xxxxxx Corporation
Treasury Department
Attn: Xxxxxxx Xxxxxx or Successor
000 Xxxxxx Xx. 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Agent:
See information under Citicorp USA, Inc. in table below pertaining to Lenders.
If to the Lenders:
Credit Contact Operations Contact Lending Office Payment Instructions
-------------- ------------------ -------------- --------------------
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx 000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx ABA #: 000000000
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 28255-0001 Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
Attention: Xxxx Xxxxxxx Attention: Xxxx Xxxxxxxx Acct #: 1366212250600
(000) 000-0000 (000) 000-0000 Attention: Credit Services
Fax: (000) 000-0000 Fax: (000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Corporation
Bank of Hawaii Bank of Hawaii Bank of Hawaii Bank of Hawaii
000 Xxxxxxxx Xxxxxx X.X. Xxx 0000 X.X. Xxx 0000 XXX #: 1213-01028
20th Floor Honolulu, HI 96806 Xxxxxxxx, XX 00000 Xxxxxxxx, XX
Xxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxxx Acct #: 9298-540626
Attention: Xxxxx X. Xxxx (000) 000-0000 Acct Name: Bank of Hawaii
Senior Vice President Fax: (000) 000-0000 Attn: Business Loan Center
(000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Fax: (000) 000-0000 Corporation
- 1 -
Credit Contact Operations Contact Lending Office Payment Instructions
-------------- ------------------ -------------- --------------------
BNP Paribas BNP Paribas BNP Paribas BNP New York
000 0xx Xxxxxx, 00xx Xxxxx 000 0xx Xxxxxx, 00xx Xxxxx 000 0xx Xxxxxx, 00xx Xxxxx XXX #: 000000000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxxxx Acct #: 10313000103
Director (000) 000-0000 Attn: Loan Services
(000) 000-0000 Fax: (000) 000-0000 Clearing Account
Fax: (000) 000-0000
Calyon New York Branch Calyon New York Branch Calyon New York Branch Calyon New York Branch
1301 Avenue of the Americas 1301 Avenue of the Americas 1301 Avenue of the Americas ABA #: 000-000-000
00xx Xxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 New York, NY
Xxx Xxxx, XX 00000 Attention: Xxxx Xxxxxx Acct #:
Attention: Xxx Xxxxxxxxx Asst. Vice President 01-88179-3701-00
(000) 000 0000 (000) 000-0000 Acct Name:
Fax: (000) 000 0000 Fax: (000) 000-0000 Loan Servicing
Attention: X. Xxxxxx
Ref: The Xxxxxxx
Xxxxxx Corporation
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc. Citibank NA
000 Xxxxxxxxx Xxxxxx 0 Xxxx'x Xxx, Xxxxx 000 000 Xxxx Xxxxxx XXX #: 000-000-000
Xxx Xxxx, XX 00000 Xxx Xxxxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX
Attention: Xxxxxxx Xxxxxxxxxx Attention: Xxx Xxxxxx Acct #: 40610794
Vice President Assistant Manager Acct Name:
(000) 000-0000 (000) 000-0000 Wall Street Fees
Fax: (000) 000-0000 Fax: (000) 000-0000 Attention: Xxx Xxxxxx
Ref: The Xxxxxxx Xxxxxx
Corporation
Commerzbank AG New York and Commerzbank AG New York and Commerzbank AG New York and Commerzbank AG New York and
Grand Cayman Branches Grand Cayman Branches Grand Cayman Branches Grand Cayman Branches
Two World Financial Center Two World Financial Center Two World Financial Center ABA #: 000000000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Acct. No. 150-1035104
Attention: Xxxxxxx XxXxxxxx Attention: Xxxxx Xxxxx Attention: Xxxxxxxx for The Xxxxxxx Xxxxxx
Vice President Asst. Vice President Xxxxxxxxxx Corporation
(000) 000-0000 (000) 000-0000 (000) 000-0000 Attn: Commercial Lending Service
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
Deutsche Bank AG New York Branch Deutsche Bank AG New York Deutsche Bank AG New York Deutsche Bank AG New York Branch
60 Wall Street Branch Branch Acct #: 60200119
Mail Stop NYC60-3510 00 Xxxxxx Xxxxxx 00 Xxxx Xxxxxx ABA#: 000000000
Xxx Xxxx, XX 00000 Mail Stop JCY05-0511 Xxx Xxxx, XX 00000 Acct Name:
Attention: Xxxx Xxxx Xxxxxx Xxxx, XX 00000 Xxxxxxx Xxxxxx Corp.
(000) 000-0000 Attention: Xxxxxx Xxxxxxxx Account
Fax: (000) 000-0000 (000) 000-0000 Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
Xxxxxx X.X. Xxxxxx X.X. Xxxxxx X.X. Xxxxxx N.A.
000 Xxxx Xxxxxx, 0 Xxxx 000 Xxxx Xxxxxx, 5 East 000 Xxxx Xxxxxx Xxxxxxx, XX
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Acct Name: Loan Accounting
Attn: Xxxxxxx X. Xxxxx Attn: Marielcy Xxxxxx Ref: The Xxxxxxx Xxxxxx Corp
Vice President Collateral Specialist Attn: X. Xxxxxx
(000) 000-0000 (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
- 2 -
Credit Contact Operations Contact Lending Office Payment Instructions
-------------- ------------------ -------------- --------------------
HSBC Bank USA, N.A. HSBC Bank USA, N.A. HSBC Bank USA, N.A. HSBC Bank USA, N.A.
HSBC Tower, 000 0xx Xxxxxx 0 XXXX Xxxxxx, 00xx Xxxxx 0 XXXX Xxxxxx XXX #: 000000000
0xx Xxxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 New York, NY
Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxxx Acct #: 000-00000-0
Attention: Xxxx Xxxxx (000) 000-0000 Acct Name:
(000) 000-0000 Fax: (000) 000-0000 Syndications & Asset
Fax: (000) 000-0000 Trading
Attn: Xxxxxxx Xxxxxxx
Ref: The Xxxxxxx Xxxxxx
Corporation
JPMorgan Chase Bank, N.A. JPMorgan Chase Bank, N.A. JPMorgan Chase Bank, N.A. JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Xxxx #: 066-999979
00xx Xxxxx 00xx Xxxxx 00xx Xxxxx XXX #: 000000000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Acct Name:
Attention: Pandora Xxxxxx Attention: Xxxxxxx Xxxxxxxxx Broker Dealer House
(000) 000-0000 (000) 000-0000 Account
Fax: (000) 000-0000 Fax: (000) 000-0000 Attention: Xxxxxxx Xxxxxxxxx
Lloyds TSB Bank plc Lloyds TSB Bank plc Lloyds TSB Bank plc Bank of America
1251 Avenue of the Americas 1251 Avenue of the Americas 1251 Avenue of the Americas International, New York
00xx Xxxxx 00xx Xxxxx 00xx Xxxxx XXX #: 000-000-000
Xxx Xxxx , XX 00000 Xxx Xxxx , XX 00000 Xxx Xxxx , XX 00000 Xxx Xxxx, XX
Attention: Xxxxx Xxxx/Xxxxxxx Attention: Xxx Xxxxxxx/Xxxx Xxxx Acct #: 655-010-1938
Xxxxx (212) 930-89014/8971 Acct Name: Lloyds TSB
(000) 000-0000/5026 Fax: (000) 000-0000 Bank plc, Miami
Fax: (000) 000-0000 Ref: The Xxxxxxx
Xxxxxx Corporation
Mellon Bank, X.X. Xxxxxx Bank, X.X. Xxxxxx Bank, X.X. Xxxxxx Bank, N.A.
Xxx Xxxx Xxxxx, 00xx Xxxxx 0 Xxxxxx Xxxx Center One Mellon Center ABA #: 000000000
Xxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX
Attention: Xxxxxx X. Xxxxxx Attention: Xxxxxx Xxxxxxx Acct #: 9908 73 800
Vice President (000) 000-0000 Acct Name: Mellon Bank
(000) 000-0000 Fax: (000) 000-0000 Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
Norddeutsche Landesbank Norddeutsche Landesbank Norddeutsche Landesbank Chase Manhattan Bank,
Girozentrale, New York Girozentrale, New York Girozentrale, Cayman New York
and/or Cayman Islands Branch and/or Cayman Islands Branch Islands Branch ABA #: 000000000
1114 Avenue of the Americas, 1114 Avenue of the Americas, 0000 Xxxxxx xx xxx Xxx Xxxx, XX
00xx Xxxxx 00xx Xxxxx Xxxxxxxx, 00xx Xxxxx Acct Name:
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Norddeutsche Landesbank,
Attention: Xxxxxxx Xxxx Attention: Xxxxxx Xxxxxxxxxxx New York
(000) 000-0000 (000) 000-0000 Acct #: 000-0-000000
Fax: (000) 000-0000 Fax: (000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Credit Facility
PNC Bank, PNC Bank, PNC Bank, PNC Bank,
National Association National Association National Association National Association
000 Xxxxx Xxxxxx 1600 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx XXX #: 000000000
Mailstop: P1-XXXX-2-3 Xxxxxxxxxxxx, XX 00000 Philadelphia, PA Pittsburgh, PA
Xxxxxxxxxx, XX 00000 Attention: Xxxx Xxxxxxxxx Acct #: 196030010890
Attention: Xxxxxx X. Xxxxxxxxx (000) 000-0000 Acct Name: Corporate
Managing Director Fax: (000) 000-0000 Banking
(000) 000-0000 Attention: Wire Room
Fax: (000) 000-0000
- 3 -
Credit Contact Operations Contact Lending Office Payment Instructions
-------------- ------------------ -------------- --------------------
UBS Loan Finance LLC UBS Loan Finance LLC UBS Loan Finance LLC UBS Loan Finance LLC
000 Xxxxxxxxxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx XXX #: 026 007 993
Stamford, CT 06901 Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000 Stamford, CT
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx Acct #: WA-894001-001
(000) 000-0000 (000) 000-0000 Acct. Name: BPS Loan Finance
Fax: (000) 000-0000 Fax: (000) 000-0000 Act
Attn: Xxxxx Xxxxxx
Ref: The Xxxxxxx Xxxxxx
Corporation
U.S. Bank, National Association U.S. Bank, National Association U.S. Bank, National Bank, National Association
One XXXxxx Xxxxx Xxx XXXxxx Xxxxx, 00xx Xxxxx Association ABA #: 061000210
0xx & Xxxxxxxxxx Xxxxxx Xx. Xxxxx, XX 00000 000 Xxxx Xxxxxx Xxxxxxx, XX
Mail Code: SL-MO-T11S Attention: Xxxxx Xxxxx Xxxxxxx, XX 00000 Acct. #: 00018642160600
Xx. Xxxxx, XX 00000 (000) 000-0000 Acct. Name: Complex Credit
Attention: Xxx Xxxxxxx Fax: (000) 000-0000 Account
(000) 000-0000 Attn: Complex Credits
Fax: (000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Corporation
Xxxxx Fargo Bank, Xxxxx Fargo Bank, Xxxxx Fargo Bank, Xxxxx Fargo Bank,
National Association National Association National Association National Association
0xx Xxxxxx xxx Xxxxxxxxx Xxxxxx 201 3rd Street, 0xx Xxxxx 0xx Xxxxxx xxx Xxxxxxxxx Xxx XXX #: 000000000
MAC N9305-075 A0187-081 X0000-000 Xxx Xxxxxxxxx, XX
Xxxxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000 Acct #: 2712507201
Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxx Account Name:
Vice President Loan Servicing Spec. Member Syndication
(000) 000-0000 (000) 000-0000 Ref: The Xxxxxxx Xxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000 Corporation, Obligor
#1582242431
XxxxXX XX, Xxx Xxxx Xxxxxx XxxxXX XX, Xxx Xxxx Branch WestLB AG, New York Branch WestLB AG, New York Branch
1211 Avenue of the Americas 1211 Avenue of the Americas 1211 Avenue of the ABA #: 000-000-000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Americas New York, NY
Attention: Xxxxxxx X. Law Attention: Xxxxxx Xxxxx Xxx Xxxx, XX 00000 Acct #: 000-0-000000
Executive Director (000) 000-0000 Acct Name:
(000) 000-0000 Fax: (000) 000-0000 WestLB, New York
Fax: (000)000-0000 Branch
Attention: Loan
Administration
Ref: The Xxxxxxx Xxxxxx
Corporation
- 4 -
EXHIBIT A-1
REVOLVING NOTE
$____________________ (Amount of Commitment) Date: June 17, 2005
For Value Received, The Xxxxxxx Xxxxxx Corporation ("Schwab") hereby
promises to pay to the order of ________________ (the "Lender") to Citicorp USA,
Inc., as Agent, at Agent's office located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, for the account of the applicable Lending Office of the Lender, the
principal amount of ____________________ ($___________) or the aggregate amount
of all Revolving Loans made to Schwab by the Lender, whichever is less, on June
16, 2006. The undersigned also promises to pay interest on the unpaid principal
amount of each Borrowing from the date of such Borrowing until such principal
amount is paid, at the rates per annum, and payable at such times, as are
specified in the Credit Agreement. This Note shall be subject to the terms of
the Credit Agreement, and all principal and interest payable hereunder shall be
due and payable in accordance with the terms of the Credit Agreement.
Schwab hereby authorizes the Lender to endorse on the Schedule attached to
this Note the amount and Type of Revolving Loans made to Schwab by the Lender
and all renewals, conversions, and payments of principal amounts in respect of
such Revolving Loans, which endorsements shall, in the absence of manifest
error, be conclusive as to the outstanding principal amount of all such
Revolving Loans, provided, however, that the failure to make such notation with
respect to any Revolving Loans or payments shall not limit or otherwise affect
the obligation of Schwab under the Credit Agreement or this Note.
This Note is the Revolving Note referred to in the Credit Agreement
(364-Day Commitment), dated as of June 17, 2005 among Schwab, the Lender,
certain other Lenders party thereto, and Citicorp USA, Inc., as Agent for the
Lenders (the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity of this Note, upon the
happening of certain stated events and also for prepayments on account of the
principal of this Note prior to the maturity of this Note upon the terms and
conditions specified in the Credit Agreement.
Principal and interest payments shall be in money of the United States of
America, lawful at such times for the satisfaction of public and private debts,
and shall be in immediately available funds.
Schwab promises to pay the costs of collection, including reasonable
attorney's fees, if default is made in the payment of this Note.
The terms and provisions of this Note shall be governed by the applicable
laws of the State of California.
- 1 -
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by its
officers thereunto duly authorized and directed by appropriate corporate
authority.
The Xxxxxxx Xxxxxx Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
- 2 -
EXHIBIT A-1
SCHEDULE TO REVOLVING NOTE
Date Amount of Unpaid
Made, Principal Principal Name of
Continued, Continued, Balance of Person
Converted, Type of Amount Converted, Revolving Making
or Paid Loan of Loan or Paid Note Notation
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
-------------------- ------------------ ----------------- ------------------ ----------------- ------------------
- 3 -
EXHIBIT A-2
TERM NOTE
Date: June 17, 2005
FOR VALUE RECEIVED, the undersigned, The Xxxxxxx Xxxxxx Corporation
("Schwab") hereby promises to pay to the order of ___________________ (the
"Lender"), to Citicorp USA, Inc., as Agent, at the Agent's office located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx Xxx Xxxx 00000, for the account of the applicable
Lending Office of the Lender, the principal amount of each Term Loan made by the
Lender to Schwab pursuant to the terms of the Credit Agreement (364-Day
Commitment), dated as of June 17, 2005, as amended, among Schwab, the Lender,
certain other Lenders party thereto, and Citicorp USA, Inc., as Agent for the
Lenders (the "Credit Agreement"), as shown in the schedule attached hereto and
any continuation thereof, in lawful money of the United States and in
immediately available funds on the Term Loan Maturity Date for such Term Loan.
The undersigned also promises to pay interest on the unpaid principal amount of
each Term Loan from the date of such Term Loan until such principal amount is
paid, in like money, at said office for the account of the Lender's applicable
Lending Office, at the rates per annum, and payable at such times as are
specified in the Credit Agreement. This Term Note shall be subject to the terms
of the Credit Agreement and all principal and interest payable hereunder should
be due and payable in accordance with the terms of the Credit Agreement. Terms
defined in the Credit Agreement are used herein with the same meanings.
This Term Note is one of the Term Notes referred to in, and is entitled to
the benefits of, the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity of this Term Note upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity of the Term Note upon the terms and
conditions specified in the Credit Agreement.
Schwab promises to pay costs of collection, including reasonable attorney's
fees, if default is made in the payment of this Note.
The terms and provisions of this Term Note shall be governed by the
applicable laws of the State of California.
IN WITNESS WHEREOF, the undersigned has caused this Term Note to be
executed by its officer thereunto duly authorized and directed by appropriate
corporate authority.
- 1 -
The Xxxxxxx Xxxxxx Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
- 2 -
EXHIBIT A-2
SCHEDULE TO TERM NOTE
Date Amount of Unpaid
Made, Principal Principal Name of
Continued, Type of Amount Term Loan Continued, Balance of Person
Converted, Loan of Loan Maturity Date Converted, Term Note Making
or Paid or Paid Notation
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
--------------------- ---------------- ---------------- ------------------- ------------------- ---------------- ------------------
- 3 -
EXHIBIT B
BORROWING ADVICE
1. This Borrowing Advice is executed and delivered by The Xxxxxxx Xxxxxx
Corporation ("Borrower") to you pursuant to that certain Credit Agreement dated
as of June 17, 2005 (the "Credit Agreement"), entered into by Borrower, Citicorp
USA, Inc. ("Citicorp USA") and certain other Lenders parties thereto,
collectively with Citicorp USA (the "Lenders") and Citicorp USA as Agent for the
Lenders (herein "Agent"). Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as defined in the Credit Agreement.
2. Borrower hereby requests that the Lenders make a Revolving [or Term
Loan] for the account of Borrower (at _______________, Account No.
________________) pursuant to Section 2.4 of the Credit Agreement as follows:
(a) Amount of Revolving [or Term Loan]: .
(b) Borrowing Date of Revolving [or Term Loan]: _________________.
(c) [If a Revolving Loan] Type of Revolving Loan (check one only):
________ Eurodollar Rate with ________- day Interest Period
________ Federal Funds Rate
________ Base Rate
(d) [If a Term Loan] Type of Term Loan (check one only):
________ Eurodollar Rate with initial ________- day Interest Period
________ Federal Funds Rate
________ Base Rate
(e) [If a Term Loan] Maturity Date of Term Loan: .
3. Following this request for a Revolving Loan [or Term Loan], the
aggregate outstanding amount of all Revolving Loans and Term Loans under the
Revolving Note will not exceed the aggregate amount of the Commitments.
- 1 -
4. This Borrowing Advice is executed on ______________ by the Borrower.
BORROWER:
THE XXXXXXX XXXXXX CORPORATION,
a Delaware Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
- 2 -
EXHIBIT C
NOTICE OF CONVERSION/CONTINUATION
Dated as of: _________________
Citicorp USA, Inc., as Agent
___________________________
___________________________
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (this "Notice") is
delivered to you under the Credit Agreement (364-Day Commitment) dated as of
June 17, 2005 (as amended, restated or otherwise modified, the "Credit
Agreement") by and among The Xxxxxxx Xxxxxx Corporation, a Delaware corporation
(the "Company") (herein "Borrower"); and Citicorp USA, Inc., a Delaware
corporation (herein "Citicorp USA") and the other Lenders signatory thereto
(together with Citicorp USA, collectively "Lenders"), and Citicorp USA as agent
for the Lenders (herein "Agent").
1. This Notice is submitted for the purpose of:
(check one and complete applicable information in accordance with the Credit
Agreement)
[__] Converting or [__] continuing all or a portion of the following
type of Loan:
(a) (check, as applicable)
Base Rate Loan ____________________;
Federal Funds Rate Loan _____________;
Eurodollar Rate Loan ________________.
(b) The aggregate outstanding principal balance of the above Loan is
$_________________.
(c) As applicable, the last day of the current Interest Period for
such Loan is __________________.
(d) The principal amount of such Loan to be [converted or continued]
is $_________________.
(e) Such principal amount should be converted/continued into the
following type of Loan:
Base Rate Loan ____________________;
Federal Funds Rate Loan _____________;
Eurodollar Rate Loan ________________.
(f) The requested effective date of the [conversion/continuation] of
such Loan is _____________________.
- 1 -
(g) As applicable, the requested Interest Period applicable to the
new Loan is _____________________.
2. No Default or Event of Default under the Credit Agreement has occurred
and is continuing or will be caused by the advance requested hereby.
3. The representations and warranties set forth in Section 5 of the Credit
Agreement are true and correct as if made on the date hereof (except for such
representations and warranties as expressly relate to a prior date).
Capitalized terms used herein which are not defined herein shall have the
respective meanings set forth in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned officer of the Company has executed
this Notice of Conversion/Continuation this ___ day of __________, _____.
THE XXXXXXX XXXXXX CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[must be signed by an Authorized
Officer]
- 2 -
EXHIBIT D
COMMITMENT AND TERMINATION DATE EXTENSION REQUEST
[Bank name and address] [Date]
Reference is made to that certain Credit Agreement (364-Day Commitment)
dated as of June 17, 2005 ("Credit Agreement") entered into by The Xxxxxxx
Xxxxxx Corporation ("Borrower"), Citicorp USA, Inc., as Agent and Lenders party
thereto. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein as defined in the Credit Agreement.
Pursuant to Section 2.11 of the Credit Agreement, Borrower hereby requests
Agent to obtain each Lender's agreement to the extension of such Lender's
Commitment presently in effect, in the amount of $[specify amount of existing
Commitment], and the Termination Date presently in effect, for an additional 364
days.
Agent's execution of a copy of this letter in the space provided below and
the transmission of such executed copy to Borrower shall constitute all Lenders'
acceptance of Borrower's request and all Lenders' agreement to the 364-day
extension sought herein. More specifically, upon the execution of a copy of this
letter by Agent on behalf of Lenders and the transmission thereof to Borrower
within 15 days after Agent's receipt of this letter, (1) the Termination Date as
defined in Section 2.11 of the Credit Agreement shall be extended 364 days and
deemed changed to ___________________, and (2) all other dates appearing in the
Credit Agreement that are referred to in Section 2.11 of the Credit Agreement
shall correspondingly be extended 364 days.
This Commitment and Termination Date Extension Request is executed by
Borrower on ________________. BORROWER:
THE XXXXXXX XXXXXX CORPORATION,
a Delaware Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ACCEPTED AND AGREED:
Agent, on Behalf of Lenders
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
- 1 -
EXHIBIT E
BORROWER'S OPINION OF COUNSEL
[Xxxxxx, Rice Letterhead]
[Date]
Citicorp USA, Inc., as Agent
___________________________
___________________________
Re: Credit Agreement (364-Day Commitment), dated June 17, 2005, among
The Xxxxxxx Xxxxxx Corporation, Citicorp USA, Inc., as Agent
and the Lenders party thereto
Ladies and Gentlemen:
This opinion is delivered at the request of The Xxxxxxx Xxxxxx Corporation
to you in your capacity as Agent, on behalf of the Lenders, under the Credit
Agreement (364-Day Commitment) dated as of June 17, 2005 (the "Credit
Agreement") among The Xxxxxxx Xxxxxx Corporation, a Delaware corporation
("Borrower"), Citicorp USA, Inc., as the Administrative Agent and the Lenders
signatories thereto (each a "Lender" and collectively, the "Lenders"). This
opinion letter speaks as of close of business on June 17, 2005 (hereafter the
"operative date").
We have acted as special counsel to Borrower in connection with the Credit
Agreement. In such capacity we have examined originals, or copies represented to
us by Borrower to be true copies, of the Credit Agreement; and we have obtained
such certificates of such responsible officials of Borrower and of public
officials as we have deemed necessary for purposes of this opinion. We have
assumed without investigation the genuineness of all signatures on original
documents, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as photostatic
copies of originals, and the accuracy and completeness of all corporate records
certified to us by the Borrower to be accurate and complete. We have further
assumed that the Credit Agreement is binding upon and enforceable against the
Agent and the Lenders. As to factual matters, we have relied upon the
representations and warranties contained in and made pursuant to the Credit
Agreement.
Capitalized terms not otherwise defined herein have the meanings given for
such terms in the Credit Agreement. For the purpose of this opinion, "Loan
Documents" as used herein means the Credit Agreement and the Notes.
Based upon the foregoing and in reliance thereon, and subject to the
exceptions and qualifications set forth herein, we are of the opinion that:
- 1 -
1. Borrower is a corporation duly formed, validly existing, and in good
standing under the laws of Delaware.
2. Borrower has all requisite corporate power and authority to execute,
deliver and perform all of its obligations under the Loan Documents.
3. Each Loan Document has been duly authorized, executed and delivered by
Borrower. Each Loan Document constitutes the legal, valid and binding obligation
of Borrower, enforceable against Borrower in accordance with its terms, except
as such validity, binding nature or enforceability may be limited by:
(a) the effect of applicable federal or state bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other similar
laws and court decisions relating to or affecting creditors' rights generally;
(b) the effect of legal and equitable principles upon the availability
of creditors' remedies, regardless of whether considered in a proceeding in
equity or at law;
(c) the effect of California judicial decisions involving statutes or
principles of equity which have held that certain covenants or other provisions
of agreements, including without limitation those providing for the acceleration
of indebtedness due under debt instruments upon the occurrence of events therein
described, are unenforceable under circumstances where it cannot be demonstrated
that the enforcement of such provisions is reasonably necessary for the
protection of the lender, has been undertaken in good faith under the
circumstances then existing, and is commercially reasonable;
(d) the effect of Section 1670.5 of the California Civil Code, which
provides that a court may refuse to enforce a contract or may limit the
application thereof or any clause thereof which the court finds as a matter of
law to have been unconscionable at the time it was made;
(e) the unenforceability, under certain circumstances, of provisions
purporting to require the award of attorneys' fees, expenses, or costs, where
such provisions do not satisfy the requirements of California Civil Code Section
1717 et seq., or in any action where the lender is not the prevailing party;
(f) the unenforceability, under certain circumstances, of provisions
waiving stated rights or unknown future rights and waiving defenses to
obligations, where such waivers are contrary to applicable law or against public
policy;
(g) the unenforceability, under certain circumstances, of provisions
which provide for penalties, late charges, additional interest in the event of a
default by the borrower or fees or costs related to such charges;
(h) the unenforceability, under certain circumstances, of provisions
to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may
- 2 -
be exercised in addition to or with any other right or remedy, or that the
election of some particular remedy or remedies does not preclude recourse to one
or another remedy;
(i) the unenforceability of provisions prohibiting waivers of
provisions of either of the Loan Documents otherwise than in writing to the
extent that Section 1698 of the California Civil Code permits oral modifications
that have been executed;
(j) limitations on the enforceability of release, contribution,
exculpatory, or nonliability provisions, under federal or state securities laws,
Sections 1542 and 1543 of the California Civil Code, and any other applicable
statute or court decisions; and
(k) limitations on the enforceability of any indemnity obligations
imposed upon or undertaken by the borrower to the extent that such obligations
do not satisfy the requirements of Sections 2772 et seq. of the California Civil
Code and any judicial decisions thereunder; provided that the limitations and
qualifications set forth in the immediately preceding sub-paragraphs (b) through
(k) do not, in our opinion, render the remedies available to the Lenders under
the Loan Documents inadequate for the practical realization of the primary
rights and benefits reasonably expected by an institutional lender in a
comparable unsecured credit facility transaction governed by California law.
The foregoing opinions are subject to the following exceptions and
qualifications:
a. We have not been requested to verify and have not verified the
validity, accuracy, or reasonableness of any of the factual representations
contained in either or both of the Loan Documents, and we express no opinion
with respect to any of such matters.
b. We are members of the bar of the State of California. We are
opining herein only concerning matters governed by the Federal laws of the
United States of America, the substantive laws of the State of California, and
the General Corporation Law of the State of Delaware, and only with respect to
Borrower. We express no opinion concerning the applicability to either or both
of the Loan Documents, or the effect thereon, of the laws of any other
jurisdiction. Furthermore, we express no opinion with respect to choice of law
or conflicts of law, and none of the opinions stated herein shall be deemed to
include or refer to choice of law or conflict of law.
c. We express no opinion on any Federal or state securities laws as
they may relate to either or both of the Loan Documents.
d. We express no opinion as to compliance with the usury laws of any
jurisdiction.
The opinions set forth herein are given as of the operative date. We
disclaim any obligation to notify you or any other person or entity after the
operative date if any change in fact and/or law should change our opinion with
respect to any matters set forth herein. This opinion letter is rendered to you
in your capacity as the Agent on behalf of the Lenders under the Credit
Agreement and may not be relied upon, circulated or quoted, in whole or in part,
by any other person or entity (other than the Lenders and a person or entity who
becomes an assignee or successor in interest of any Lender or acquires a
participation from any Lender consistent with
- 3 -
the terms of the Loan Documents) and shall not be referred to in any report or
document furnished to any other person or entity without our prior written
consent; provided, however, that the foregoing shall not preclude any Lender
from describing or otherwise disclosing the existence or contents of this letter
to (i) any bank regulatory authority having jurisdiction over such Lender, as
required by such authority, (ii) a person or entity who, in good-faith
discussions between such Lender and such person or entity, is proposed to become
an assignee or successor in interest of such Lender or to acquire a
participation from the Bank consistent with the terms of the Loan Documents, and
(iii) counsel to the Agent and the Lenders.
Very truly yours,
HOWARD, RICE, NEMEROVSKI,
CANADY, XXXX & RABKIN
A Professional Corporation
By:
----------------------------------
- 4 -
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE
To: CITICORP USA, INC., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day Commitment) dated as
of June 17, 2005 between THE XXXXXXX XXXXXX CORPORATION, a Delaware corporation
("Borrower"), Lenders from time to time party thereto, and CITICORP USA, INC.,
as Administrative Agent (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement", the terms
defined therein being used herein as therein defined).
1. We hereby give you notice of, and request your consent to, the assignment
by _______________________ (the "Assignor") to __________________ (the
"Assignee") of _________% of the right, title and interest of the Assignor in
and to the Loan Documents, including, without limitation, the right, title and
interest of the Assignor in and to the Commitment of the Assignor, and all
outstanding Loans made by the Assignor. Before giving effect to such assignment:
(a) the aggregate amount of the Assignor's Commitment is $_______________.
(b) the aggregate principal amount of its outstanding Loans is
$_____________.
2. The Assignee hereby represents and warrants that it has complied with the
requirements of Section 10.8 of the Agreement in connection with this assignment
and acknowledges and agrees that: (a) other than the representation and warranty
that it is the legal and beneficial owner of the Pro Rata Share being assigned
hereby free and clear of any adverse claim, the Assignor has made no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Agreement or the execution, legality, validity, enforceability, genuineness or
sufficiency of the Agreement of any other Loan Document; (b) the Assignor had
made no representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance by Borrower of the
Obligations; (c) it has received a copy of the Agreement, together with copies
of the most recent financial statements delivered pursuant to Section 6.2
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (d) it will independently and without reliance upon Administrative
Agent or any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement; (e) it appoints and authorizes
Administrative Agent to take such action and to exercise such powers under the
Agreement and the other Loan Documents as are delegated to Administrative Agent
by the Agreement and such other Loan Documents; and
- 1 -
(f) it will perform in accordance with their terms all of the obligations which
by the terms of the Agreement are required to be performed by it as a Lender.
3. The Assignee agrees that, upon receiving your consent to such assignment
and form and after _______________, the Assignee will be bound by the terms of
the Loan Documents, with respect to the interest in the Loan Documents assigned
to it as specified above, as fully and to the same extent as if the Assignee
were a Lender originally holding such interest in the Loan Documents.
4. The following administrative details apply to the Assignee:
(a) Credit Contact:
Assignee name:_______________________________________
Address:_____________________________________________
_____________________________________________________
Attention:___________________________________________
Telephone:___________________________________________
Telecopier:__________________________________________
(b) Operations Contract:
Assignee name:_______________________________________
Address:_____________________________________________
_____________________________________________________
Attention:___________________________________________
Telephone:___________________________________________
Telecopier:__________________________________________
(c) Lending Office:
Assignee name:_______________________________________
Address:_____________________________________________
_____________________________________________________
(d) Payment Instructions:
Assignee name:_______________________________________
ABA No.:_____________________________________________
Account No.:_________________________________________
Attention:___________________________________________
Reference:___________________________________________
- 2 -
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[ASSIGNOR]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[ASSIGNEE]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
We hereby consent to the
foregoing assignment.
THE XXXXXXX XXXXXX CORPORATION,
as Borrower
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
CITICORP USA, INC.,
as Administrative Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
- 3 -
