EXHIBIT 10.238
$1,200,000,000
CREDIT AGREEMENT
(364-DAY COMMITMENT)
dated as of June 22, 2001
Among
THE CHARLES SCHWAB CORPORATION
and
BANK OF AMERICA, N.A.,
as Administrative Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
and
CITICORP USA, INC. and BANK ONE, NA,
as Co-Syndication Agents
and
COMMERZBANK AG
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Co-Documentation Agents
and
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
Table of Contents
Page
1. DEFINITIONS 1
2. THE CREDIT FACILITY..................................................13
2.1 The Revolving Credit Facility...............................13
2.2 Term Loan Facility..........................................13
2.3 Evidence of Borrowing/Promissory Notes......................14
2.4 Making of Revolving Loans and Term Loans, Borrowings;
Interest Periods; Notice....................................14
2.5 Conversion and Continuation Elections.......................15
2.6 Interest Periods............................................17
2.7 Interest Rates..............................................17
2.8 Substitute Rates............................................18
2.9 Fees........................................................19
2.10 Reduction of Credit.........................................19
2.11 Termination Date; Extensions................................20
2.12 Payments by the Lenders to the Agent........................20
2.13 Sharing of Payments, Etc....................................21
2.14 Computation of Fees and Interest............................21
3. PAYMENT. 22
3.1 Repayment...................................................22
3.2 Method of Payment...........................................22
3.3 Optional Prepayment.........................................22
3.4 Taxes/Net Payments..........................................22
3.5 Illegality..................................................23
3.6 Increased Costs and Reduction of Return.....................24
3.7 Funding Losses..............................................25
3.8 Certificates of Lenders.....................................25
3.9 Substitution of Lenders.....................................25
3.10 Survival....................................................26
4. CONDITIONS. 26
4.1 Conditions Precedent to the Effectiveness of this
Agreement.................................................26
4.2 Conditions Precedent to Revolving Loans and Term Loans......27
5. REPRESENTATIONS AND WARRANTIES.......................................28
5.1 Organization and Good Standing..............................28
5.2 Corporate Power and Authority...............................28
5.3 Enforceability..............................................28
5.4 No Violation of Laws or Agreements..........................28
5.5 No Consents.................................................28
5.6 Financial Statements........................................29
5.7 Broker Subsidiary Licenses, Etc.............................29
5.8 Broker Subsidiary/Broker Registration.......................29
5.9 Broker Subsidiary/SIPC......................................29
5.10 Taxes.......................................................29
5.11 ERISA.......................................................29
5.12 No Extension of Credit for Default Remedy/Hostile
Acquisition...............................................29
5.13 Use of Proceeds/Margin Regulations..........................30
5.14 Authorized Persons..........................................30
5.15 Material Contracts..........................................30
5.16 Litigation..................................................30
5.17 Investment Company..........................................30
6. AFFIRMATIVE COVENANTS................................................30
6.1 Notice of Events of Default.................................30
6.2 Financial Statements........................................30
6.3 Insurance...................................................31
6.4 Books and Records...........................................31
6.5 Change in Business..........................................31
7. NEGATIVE COVENANTS...................................................31
7.1 Net Capital.................................................31
7.2 Minimum Tangible Net Worth..................................31
7.3 Merger/Disposition of Assets................................31
7.4 Broker Subsidiary Indebtedness..............................32
7.5 Indebtedness Secured by Subsidiary Stock....................32
7.6 Liens and Encumbrances......................................32
8. EVENTS OF DEFAULT....................................................33
8.1 Defaults....................................................33
8.2 Remedies....................................................34
9. THE AGENT. 35
9.1 Appointment and Authorization...............................35
9.2 Delegation of Duties........................................35
9.3 Liability of Agent..........................................35
9.4 Reliance by Agent...........................................36
9.5 Notice of Default...........................................36
9.6 Credit Decision.............................................36
9.7 Indemnification of Agent....................................37
9.8 Agent in Individual Capacity................................37
9.9 Successor Agent.............................................37
9.10 Withholding Tax.............................................38
9.11 Co-Agents...................................................39
10. MISCELLANEOUS........................................................40
10.1 Amendments and Waivers......................................40
10.2 Notices.....................................................40
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
CHICAGO 166030v7 46715-01230
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 Notice of Assignment and Acceptance
CREDIT AGREEMENT (364-DAY COMMITMENT)
THIS CREDIT AGREEMENT (364-DAY COMMITMENT) ("this Agreement") is entered into
as of June 22, 2001, among The Charles Schwab 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 Bank of America, N.A., 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 21, 2002, and to make Term Loans to the Borrower on or
before June 21, 2002, and maturing no later than June 20, 2003, 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: Bank of America in its capacity as administrative agent for the
Lenders hereunder and any successor agent appointed under Section 9.9.
Agent-Related Persons: Bank of America and any successor agent appointed
under Section 9.9, together with Bank of America'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, 0.40%;
(ii) with respect to CD Rate Loans, 0.50%; and (iii) with respect to
Eurodollar Rate Loans, 0.40%.
Arranger: Banc of America Securities LLC.
Assessment Rate: For any Interest Period for any Loan for which the CD
Rate has been selected, the assessment rate per annum (adjusted upward,
if necessary, to the nearest 1/100 of 1%) determined by the Agent on
the first day of such Interest Period for determining the then current
annual assessment payable by Lenders to the Federal Deposit Insurance
Corporation (or any successor thereto) for such Corporation's (or
successor's) insuring U.S. dollar time deposits of a Lender in the
United States. The CD Rate shall be adjusted automatically on and as of
the effective date of any change in the Assessment Rate.
Assignee: Has 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 of America: Bank of America, N.A., a national banking association.
Bankruptcy Code: The Federal Bankruptcy Reform Act of 1978 (11
U.S.C.ss.101, et seq.).
Base Rate: For any day, the higher of: (a) 0.50% 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 Bank of America as its
"Prime Rate". The "Prime Rate" is a rate set by Bank of America based
upon various factors including Bank of America'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 Bank
of America 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.
Borrowing Date: Any date on which a Borrowing occurs under Section 2.4.
Broker Subsidiary: Charles Schwab & 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, means 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.
CD Rate: For any Interest Period for any Loan for which the CD Rate has
been selected or is applicable, the sum of:
(a) the Assessment Rate for the Interest Period, plus
(b)the rate per annum obtained by dividing (i) the rate of interest
per annum determined by the Agent to be (aa) the average
(adjusted upward, if necessary, to the nearest 1/16 of 1%) rate
per annum at which bids are received by the Agent for its
certificates of deposit as at 11:00 a.m. New York City time (or
as soon as practicable thereafter), on the first day of an
Interest Period from two or more New York City certificate of
deposit dealers of recognized standing selected by the Agent for
the purchase at face value of such certificates of deposit in an
amount comparable to the Loan for which the CD Rate has been
selected and having a maturity comparable to such Interest
Period, or (bb) in the event the Agent cannot, without undue
effort, obtain rates, the certificate of deposit rate as reported
for the date of the Borrowing Advice in "Federal Reserve
Statistical Release--Selected Interest Rates-H.15(519)",
published by the Board of Governors of the Federal Reserve
System, or any successor publication, under the caption "CDs
(Secondary Market)" having a maturity most closely approximating
the conclusion of such Interest Period, by (ii) a percentage
(expressed as a decimal) equal to 1.00 minus the CD Rate Reserve
Percentage.
CD Rate Reserve Percentage: For any Interest Period for any Loan for which
the CD 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 Federal Reserve System (or any successor), for
determining the maximum reserve requirements (including, without
limitation, basic, supplemental, marginal and emergency reserves) for
Agent as a member of the Federal Reserve System, in respect of new
non-personal time deposits in U.S. Dollars in the United States having
a maturity comparable to the applicable Interest Period for said Loan
for which the CD Rate has been selected (Bank of America's reserve
ratio on such time deposits in effect on June 22, 2001 was 0%). The CD
Rate shall be adjusted automatically on and as of the effective date of
any change in the CD Rate Reserve Percentage.
CD Rate Loan: A Revolving Loan or Term Loan that bears interest based on
the CD Rate.
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.
Closing Date: The date (not before June 22, 2001) 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.
Code: The Internal Revenue Code of 1986, as amended, and Regulations
promulgated thereunder.
Commitment: Has the meaning specified in Section 2.1.
Commitment Fee: Has the meaning specified in subsection 2.9(b).
Consolidated Tangible Net Worth: Means, 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, less
all assets of such Person and its Subsidiaries (determined on a
consolidated basis) at such date that would be classified as intangible
assets in accordance with GAAP, including, without limitation, trade or
service marks, franchises, trade names and goodwill.
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 One Billion Two
Hundred Million and no/100 Dollars ($1,200,000,000.00).
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 Corporation or at least "A-2" by Moody's 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
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 Corporation or at least "A-2" by Moody's
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: Means, 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. (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
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: Has 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.
Indebtedness: Indebtedness, as to any corporation, means 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: Has the meaning specified in Section 10.5.
Indemnified Person: Has the meaning specified in Section 10.5.
Insolvency Proceeding: Means, 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 or a CD
Rate Loan exceeds three months or 90 days, respectively, the date that
falls three months or 90 days, respectively, 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: Has 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 Tangible Net Worth: As of the Closing Date, and the last day of
each fiscal quarter thereafter, the greater of:
(a) $1,471,041,000, or
(b) the sum of -
(i) $1,471,041,000, plus
(ii) 40% of the sum of cumulative Net Earnings for each
fiscal quarter commencing with the fiscal quarter ended
June 30, 2001.
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.
Noticeof 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: Means 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.
Reference Lenders: Means Bank of America, N.A., Citicorp USA, Inc., and
Bank One, NA.
Replacement Lender: Has 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: Has the meaning specified in Section 2.1, and may be a
Base Rate Loan, Federal Funds Rate Loan, CD Rate Loan or a
Eurodollar Rate Loan (each a "Type" of Revolving Loan).
Revolving Note: Has the meaning specified in Section 2.3.
Revolving Termination Date: The earlier to occur of:
(a) June 21, 2002; and
(b) the date on which the Commitments terminate in accordance with
the provisions of this Agreement.
SCM: Schwab Capital Markets L.P., a New Jersey limited partnership, and
its successors and assigns.
SEC: The Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
Senior Medium-Term Notes, Series A: Means senior debt securities or
senior subordinated debt securities issued by The Charles Schwab
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 Charles Schwab 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: Means One Billion Two Hundred Million and no/100 Dollars
($1,200,000,000.00).
Term Loan: Has the meaning specified in Section 2.2 and may be a Base
Rate Loan, Federal Funds Rate Loan, CD 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: Has the meaning specified in Section 2.2.
Term Note: Has the meaning specified in Section 2.3.
Type: Has 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 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 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 21, 2002, 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 21, 2002, 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 21,
2002, 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 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 9:00 a.m. San Francisco time
for a CD Rate Loan, 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, (ii) one Business Day prior to the
requested Borrowing Date in the case of CD Rate Loans, or
(iii) 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 CD Rate Loan or 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 or a CD
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.
(d) After giving effect to any Borrowing, there may not be more
than ten (10) different Interest Periods in effect.
With respect to any Borrowing having an Interest Period ending on or before June
21, 2002, 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 Broker Subsidiary nor SCM is in violation of minimum net capital
requirements as described in Section 7.1, (ii) the Borrower's Consolidated
Tangible Net Worth is not below the Minimum Tangible Net Worth as described in
Section 7.2, and (iii) 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.
(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 9:00 a.m. San
Francisco time for a CD Rate Loan, 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; (ii) one Business Day in advance of the
Conversion/Continuation Date as to any Loan that is to be
converted into a CD Rate Loan; and (iii) 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 or CD Rate Loans, the Borrower has
failed to select timely a new Interest Period to be applicable
to such Eurodollar Rate Loans or CD 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
or CD 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
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 or a CD 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 CD Rate Loan or
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 following:
(a) either 30, 60, 90 or 180 days thereafter, in the case of any
Interest Period for which the interest is to be based on the
CD 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;
or
(b) 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 20, 2003.
2.7 Interest Rates.
(a) Each Revolving Loan and each Term Loan, while outstanding,
shall bear interest from the applicable Borrowing Date at a
rate per annum equal to the Eurodollar Rate, the CD 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.
(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 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 1% 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 1% 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 New York City certificate of deposit market and/or the
London interbank market, adequate and reasonable means do not
exist for ascertaining the applicable CD Rate and/or
Eurodollar Rate, respectively, 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 New York City
certificate of deposit market and/or the London interbank
market, the CD Rate and/or Eurodollar Rate, shall no longer
represent the effective cost to the Lenders of certificates of
deposit and/or of U.S. dollar deposits, respectively, 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 CD
Rate and/or 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 or CD
Rate Loans, as the case may be, 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 or CD Rate Loans, as the
case may be.
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 Agent for the Agent's
account, as required by the letter agreement ("Fee Letter")
between the Borrower, the Agent and the Arranger dated April
25, 2001.
(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 nine-one
hundredths of one percent (0.09%) 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 September 30, 2001 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, 2001 a utilization fee equal to one tenth of one percent
(0.10%) 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.
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 21, 2002. 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
21, 2002 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. If each Lender 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 21, 2002", and "June 20, 2003"
(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 CD 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 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 Bank of America's "Prime 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 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 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, CD Rate Loan, or Federal Funds
Rate Loan, subject to any applicable notice for a CD Rate
Loan.
(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, CD
Rate Loans, or Federal Funds Rate Loans, subject to any
applicable notice for a CD Rate Loan.
(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;
(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 or CD 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 or CD 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 CD 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), (i) 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, and (ii) each CD 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 rate described in subsection
(b)(i)(bb) of the CD Rate definition in Section 1 of this Agreement by a
matching deposit or other borrowing in the CD market, for a comparable amount
and for a comparable period, whether or not such CD 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.
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 or Vice
Chairman and Executive Vice President of the Borrower that, as
of the date hereof, there has been no material adverse change
in its consolidated financial condition since December 31,
2000 not reflected on its Quarterly Report on Form 10-Q filed
with the SEC for the period ending March 31, 2001.
(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 Bank of
America to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of Attorney Costs as shall
constitute Bank of America'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
Bank of America); 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.
(i) A certificate, signed by the 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 Event of
Default, and no event which with the lapse of time or notice or both would
become an 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 Event of Default
or any event that, upon lapse of time or notice or both, would
become an Event of Default as defined in Section 8, has
occurred; or
(c) the Broker Subsidiary or SCM is in violation of minimum net
capital requirements as described in Section 7.1; or
(d) the Borrower's Consolidated Tangible Net Worth is below the
Minimum Tangible Net Worth as described in Section 7.2; or
(e) 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:
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 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.
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 Event of Default or any event that, upon lapse of
time or notice or both, would become an 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.
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.
7. NEGATIVE COVENANTS.
7.1 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:
7.2 Net Capital. The Borrower will not permit the Broker Subsidiary to
allow (a) the average of two consecutive month-end Net Capital
Ratios to be less than 7%, or (b) any month-end Net Capital Ratio to
be less than 5%. The Borrower similarly will not permit SCM to allow
(i) the average of two consecutive month-end Net Capital Ratios to
be less than 7%, or (ii) any month-end Net Capital Ratio to be less
than 5%.
7.3 Minimum Tangible Net Worth. The Borrower will not allow its
Consolidated Tangible Net Worth to fall below the Minimum Tangible
Net Worth.
7.4 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.
7.5 Broker Subsidiary Indebtedness. The Borrower will not permit the
Broker Subsidiary to create, incur or assume any Indebtedness other
than:
(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.
7.6 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).
7.7 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
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; 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, 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 Rating Group, or (b) Baa3 (or better) by
Moody's Investor Service.
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 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.
(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, 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. Bank of America 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 Bank of America were not the Agent hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America 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, Bank of America
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
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 modify or 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 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.
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 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).
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, 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) Any agreement of the Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. 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 or facsimile 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 or facsimile 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 or facsimile notice.
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 Bank of America 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 Bank of America 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 Bank
of America (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 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 Person 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 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 D ("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 (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 ss.203.14, 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 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; 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 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.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
Borrower:
THE CHARLES SCHWAB CORPORATION
By: /s/ Joseph R. Martinetto
---------------------------------------
Name: Joseph R. Martinetto
Title: Senior Vice President and Treasurer
Lenders:
BANK OF AMERICA, N.A., as Agent and
individually as Lender
By: /s/ Steven W. Kastenholz
----------------------------------------
Name: Steven W. Kastenholz
--------------------------------------
Title: Managing Director
-------------------------------------
CITICORP USA, INC., as Co-Syndication Agent
and individually as Lender
By: /s/ Michael Mauerstein
----------------------------------------
Name: Michael Mauerstein
--------------------------------------
Title: Managing Director
-------------------------------------
BANK ONE, NA (Main Office Chicago), as
Co-Syndication Agent and individually as
Lender
By: /s/ Mona R. Giullano
----------------------------------------
Name: Mona R. Giullano
--------------------------------------
Title: Assistant Vice President
-------------------------------------
COMMERZBANK AG, New York and
Grand Cayman Branches, as
Co-Documentation Agent and
individually as Lender
By: /s/ Christian Jagenberg
----------------------------------------
Name: Christian Jagenberg
--------------------------------------
Title: Senior Vice President and Manger
-------------------------------------
By: /s/ Steven F. Larsen
----------------------------------------
Name: Steven F. Larsen
--------------------------------------
Title: Senior Vice President
-------------------------------------
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
New York Branch, as Co-Documentation Agent
and individually as Lender
By: /s/ Terence R. Law
----------------------------------------
Name: Terence R. Law
--------------------------------------
Title: Executive Director
-------------------------------------
By: /s/ Robert D. Wieser
----------------------------------------
Name: Robert D. Wieser
--------------------------------------
Title: Associate Director
-------------------------------------
BARCLAYS BANK PLC
By: /s/ Alison A. McGuigan
----------------------------------------
Name: Alison A. McGuigan
--------------------------------------
Title: Associate Director
-------------------------------------
PNC BANK, NATIONAL ASSOCIATON
By: /s/ John T. Wilden
----------------------------------------
Name: John T. Wilden
--------------------------------------
Title: Vice President
-------------------------------------
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ Sebastian Rocco
----------------------------------------
Name: Sebastian Rocco
--------------------------------------
Title: Senior Vice President
-------------------------------------
THE BANK OF NEW YORK
By: /s/ Orla Nallen
----------------------------------------
Name: Orla Nallen
--------------------------------------
Title: Assistant Vice President
-------------------------------------
LLOYDS TSB BANK PLC
By: /s/ Michael J. Gilligan
----------------------------------------
Name: Michael J. Gilligan
--------------------------------------
Title: Director, Financial Institutions,
USA
-------------------------------------
By: /s/ Paul D. Briamonte
----------------------------------------
Name: Paul D. Briamonte
--------------------------------------
Title: Director, Project Finance (USA)
-------------------------------------
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By: /s/ Ruth Leung
----------------------------------------
Name: Ruth Leung
--------------------------------------
Title: Director
-------------------------------------
By: /s/ John G. Moran
----------------------------------------
Name: John. G. Moran
--------------------------------------
Title: Director
-------------------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Edward J. Meyer, Jr.
----------------------------------------
Name: Edward J. Meyer, Jr.
--------------------------------------
Title: Vice President
-------------------------------------
By: /s/ James J. Doherty
----------------------------------------
Name: James J. Doherty
--------------------------------------
Title: Vice President
-------------------------------------
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH AND/OR
CAYMAN ISLAND BRANCH
By: /s/ Georg Peters
----------------------------------------
Name: Georg Peters
--------------------------------------
Title: Vice President
-------------------------------------
By: /s/ Hinrich Holm
----------------------------------------
Name: Hinrich Holm
--------------------------------------
Title: Vice President
-------------------------------------
BNP PARIBAS
By: /s/ Frank Sodano
----------------------------------------
Name: Frank Sodano
--------------------------------------
Title: Director
-------------------------------------
By: /s/ Richard Ungaro
----------------------------------------
Name: Richard Ungaro
--------------------------------------
Title: Vice President
-------------------------------------
MELLON BANK, N.A.
By: /s/ Marla A. DeYulis
----------------------------------------
Name: Marla A. DeYulis
--------------------------------------
Title: Lending Officer
-------------------------------------
BANCA DI ROMA - SAN FRANCISCO
By: /s/ Luca Balestra
----------------------------------------
Name: Luca Balestra (#25050)
--------------------------------------
Title: Senior Vice President and Manager
-------------------------------------
By: /s/ Thomas C. Woodruff
----------------------------------------
Name: Thomas C. Woodruff (#97969)
--------------------------------------
Title: Vice President
-------------------------------------
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/ Jesse Reid
----------------------------------------
Name: Jesse Reid
--------------------------------------
Title: Vice President
-------------------------------------
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ James H. Moore, Jr.
----------------------------------------
Name: James H. Moore, Jr.
--------------------------------------
Title: SVP
-------------------------------------
BANCA NAZIONALE DEL LAVORO S.p.A.,
NEW YORK BRANCH
By: /s/ Roberto Mancone
----------------------------------------
Name: Roberto Mancone
--------------------------------------
Title: Vice President
-------------------------------------
By: /s/ Leonardo Valentini
----------------------------------------
Name: Leonardo Valentini
--------------------------------------
Title: First Vice President
-------------------------------------
HSBC BANK USA
By: /s/ L. Sue Lomax
----------------------------------------
Name: L. Sue Lomax
--------------------------------------
Title: Senior Vice President
-------------------------------------
THE CHASE MANHATTAN BANK
By: /s/ Therese Bechet
----------------------------------------
Name: Therese Bechet
--------------------------------------
Title: Vice President
-------------------------------------
BANK OF HAWAII
By: /s/ Dana Takushi
----------------------------------------
Name: Dana Takushi
--------------------------------------
Title: Vice President
-------------------------------------
FIRST HAWAIIAN BANK
By: /s/ Seth A. Bond
----------------------------------------
Name: Seth A. Bond
--------------------------------------
Title: Assistant Vice President
-------------------------------------
Schedule 1
LENDERS' COMMITMENTS
The Charles Schwab Corporation $1,200,000,000 Credit Agreement (364-Day
Commitment) dated as of June 22, 2001.
Lender Commitment Amount
1. Bank of America, N.A. 1. $125,000,000
2. Citicorp USA, Inc. 2. $100,000,000
3. Bank One, NA (Main Office Chicago) 3. $100,000,000
4. Commerzbank AG, NewYork and
Grand Cayman Branches 4. $100,000,000
5. Westdeutsche Landesbank Girozentrale,
New York Branch 5. $100,000,000
6. Barclays Bank PLC 6. $ 75,000,000
7. PNC Bank, National Association 7. $ 60,000,000
8. Credit Lyonnais, New York Branch 8. $ 55,000,000
9. The Bank of New York 9. $ 55,000,000
10. Lloyds TSB Bank plc 10. $ 55,000,000
11. Deutsche Bank AG, New York and/or
Cayman Island Branches 11. $ 55,000,000
12. Wells Fargo Bank, National Association 12. $ 55,000,000
13. Norddeutsche Landesbank Girozentrale,
New York Branch and/or Cayman Island Branch 13. $ 35,000,000
14. BNP Paribas 14. $ 35,000,000
15. Mellon Bank, N.A. 15. $ 35,000,000
16. Banca Di Roma - San Francisco 16. $ 20,000,000
17. Bank of Tokyo - Mitsubishi Trust Company 17. $ 20,000,000
18. First Tennessee Bank National Association 18. $ 20,000,000
19. Banca Nazionale Del Lavoro S.p.A.,
New York Branch 19. $ 20,000,000
20. HSBC Bank USA 20. $ 20,000,000
21. The Chase Manhattan Bank 21. $ 20,000,000
22. Bank of Hawaii 22. $ 20,000,000
23. First Hawaiian Bank 23. $ 20,000,000
Total $1,200,000,000
Schedule 2
LIST OF BORROWING AGREEMENTS
1. $1,200,000,000 Credit Agreement (364-Day Commitment) dated as of June 23,
2000 among the Borrower, the lenders party thereto, and Bank of America, N.A.,
as administrative agent for such lenders.
Schedule 6.2
COMPLIANCE CERTIFICATE
I, ____________________, certify that I am the _______________________ of
The Charles Schwab 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 22, 2001 among the Borrower, the financial
institutions named therein (the "lenders") and Bank of America, N.A., 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 Charles Schwab Corporation
Credit Agreement (364-Day Commitment)
Dated as of June 22, 2001
Schedule I
to
Compliance Certificate
(Dollars in Thousands)
1. Net Capital Ratio of the Broker Subsidiary and SCM.
Requirement: Broker Subsidiary and SCM - month-end ratio not less
than 5%, 2-month average not less than 7%.
Net Capital Ratio for Broker Subsidiary
Month Month-end Ratio 2-Month Average
Net Capital Ratio for SCM
Month Month-end Ratio 2-Month Average
2. Minimum Tangible Net Worth of Borrower.
Requirement: As of _____________, 200___, required Minimum Tangible
Net Worth is $1,471,041,000 plus 40% of cumulative Net
Earnings from March 31, 2001.
Schedule 10.2
NOTICES
If to the Borrower:
If by U.S. mail: The Charles Schwab Corporation
Treasury Department
Attn: Kim K. Davis or Successor
211 Main St. (Mail Stop SF120KNY-09-305)
San Francisco, CA 94105
If by hand delivery
(including courier
and overnight
messenger service): The Charles Schwab Corporation
Treasury Department
Attn: Kim K. Davis or Successor
120 Kearny St. 9th Floor
San Francisco, CA 94104
Telephone: (415) 636-3855
Facsimile: (415) 636-9820
If to the Agent:
See information under Bank of America, N.A. 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.
335 Madison Avenue 101 N. Tryon Street 101 N. Tryon Street ABA #: 053000196
New York, NY 10017 Mailcode: NC1-001-15-04 Charlotte, NC 28255 Charlotte, NC
Attention: Robert S. Brown Charlotte, NC 28255-0001 Acct #:
1366212250600
Managing Director Attention: Kristen Gilliam Attention:
Credit
(212) 503-8334 Agency Administrative Officer Services
Fax: (212) 503-7027 (704) 388-1553 Ref: The Charles
Schwab
Fax: (704) 409-0296 Corporation
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc. Citibank NA
399 Park Avenue 2 Penn's Way, Suite 200 399 Park Avenue ABA #: 021-000-089
New York, NY 10043 New Castle, DE 19720 New York, NY 10043 New York, NY
Attention: Michael Mauerstein Attention: Lee Ocasio Acct #: 40610794
Vice President Assistant Acct Name:
(212) 816-3431 Manager Wall Street Fees
Fax: (212) 816-4140 (302) 894-6065 Attention: Lee
Ocasio
Fax: (302) 894-6120 Ref: The Charles
Schwab
Corporation
Bank One, NA Bank One, NA Bank One, NA Bank One, NA
153 W. 51st Street (Main Office Chicago) One Bank One Plaza (Main Office
Chicago)
New York, NY 10019 One Bank One Plaza Chicago, IL 60670 ABA #: 071000013
Attention: Andrea S. Kantor Chicago, IL 60670 Chicago, IL
First Vice Attention: Vickie Kobierski Acct #:
481152860000
President Asst. Vice Acct Name:
(212) 373-1023 President LS2 Incoming
Clearing
Fax: (212) 373-1180 (312) 732-5627 Attention:
Fax: (312) 732-3537 Vickie Kobierski
Commerzbank AG, Commerzbank AG, Commerzbank AG, Commerzbank AG,
Los Angeles Branch Los Angeles Branch New York Branch New York Branch
633 West Fifth Street 633 West Fifth Street 2 World Financial Center ABA #: 026008044
Suite 6600 Suite 6600 New York, NY 10281 New York, NY
Los Angeles, CA 90071 Los Angeles, CA 90071 Acct #:
Attention: Steven F. Larsen Attention: Joanne Si 150/1035104/05USD
First Vice (213) 683-5411 Ref: The Charles
Schwab
President Fax: (213) 623-0039 Corporation
(213) 623-8223
Fax: (213) 623-0039
Westdeutsche Landesbank Westdeutsche Landesbank Westdeutsche Landesbank Westdeutsche
Landesbank
Girozentrale, New York Branch Girozentrale, New York Branch Girozentrale, New York Girozentrale, New
York
1211 Avenue of the Americas 1211 Avenue of the Americas Branch Branch
New York, NY 10036 New York, NY 10036 1211 Avenue of the ABA #: 021-000-021
Attention: Terence R. Law Attention: Philip Green Americas New York, NY
Executive (212) 852-6113 New York, NY 10036 Acct #:
920-1-060663
Director Fax: (212) 302-7946 Acct Name:
(212) 852-6242 Westdeutsche
Landesbank
Fax: (212)852-6516 Girozentrale, New
York
Branch
Attention: Loan
Administration
Ref: The Charles
Schwab
Corporation
Credit Lyonnais, Credit Lyonnais, Credit Lyonnais, Credit Lyonnais,
New York Branch New York Branch New York Branch New York Branch
1301 6th Avenue 1301 6th Avenue 1301 6th Avenue ABA #: 026-008-073
New York, NY 10019 New York, NY 10019 New York, NY 10019 New York, NY
Attention: Dick Reilly Attention: Seth Ruffer Acct #:
Vice President Asst. Vice 01-88179-3701-00
(212) 261-3861 President Acct Name:
Fax: (212) 261-3438 (212) 261-7410 Loan Servicing
Fax: (212) 261-3401 Attention: S.
Ruffer
Ref: The Charles
Schwab Corporation
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
222 Broadway, 8th Floor 222 Broadway, 11th Floor 222 Broadway ABA #: 02-6002574
New York, NY 10038 New York, NY 10038 New York, NY 10038 New York, NY
Attention: Alison McGuigan Attention: Marsha Hamlette Acct #: 050-01910-4
(212) 412-7672 (212) 412-4081 Acct Name:
Fax: (212) 412-5610 Fax: (212) 412-5306 Clad Control
Account
Ref: The Charles
Schwab Corporation
PNC Bank, PNC Bank, PNC Bank, PNC Bank,
National Association National Association National Association National
Association
1600 Market Street 1600 Market Street 1600 Market Street ABA #: 043000096
Philadelphia, PA 19103 Philadelphia, PA 19103 Philadelphia, PA Pittsburgh, PA
Attention: Daniel K. Fitzpatrick Attention: Christine Allio Acct #:
196030010890
Managing Director (412) 768-7652 Acct Name:
Corporate
(215) 585-5622 Fax:_______________ Banking
Fax: (215) 585-6987 Attention: Wire
Room
The Bank of New York The Bank of New York The Bank of New York The Bank of New
York
One Wall Street, 42nd Floor One Wall Street, 42nd Floor One Wall Street ABA #: 021000018
New York, NY 10286 New York, NY 10286 New York, NY 10286 New York, NY
Attention: Orla Nallen Attention: Cheryl Smith Acct #: GLA 111231
Asst. Vice President (212) 635-6735 Acct Name:
(212) 635-6703 Fax: (212) 635-6615 Broker Services
Fax: (212) 809-9566 Attention:
Douglas Ottley
Ref: The Charles
Schwab Corporation
Lloyds TSB Bank plc Lloyds TSB Bank plc Lloyds TSB Bank Bank of America
575 Fifth Avenue, 17th Floor 575 Fifth Avenue, 17th Floor plc, Miami International, New
York
New York, NY 10017 New York, NY 10017 One Biscayne Tower, ABA #: 026-009-593
Attention: Michael Gilligan Attention: Patricia Kilian Suite 3200 New York, NY
(212) 930-8911 (212) 930-8914 2 Biscayne Boulevard Acct #:
655-010-1938
Fax: (212) 930-5098 Fax: (212) 930-5098 Miami, FL 33131 Acct Name: Lloyds
TSB
Bank plc, Miami
Ref: The Charles
Schwab Corporation
Deutsche Bank AG, Deutsche Bank AG, Deutsche Bank AG, Federal Reserve
Bank of
New York Branch New York Branch New York and/or New York
31 West 52nd Street 31 West 52nd Street Cayman Island Branches Acct: Deutsche Bank
Mail Stop NYC 01-2304 New York, NY 10019 130 Liberty Street New York
New York, NY 10019 Attention: Thomas Balacki Mail Stop NYC 02-1414 ABA #: 026003780
Attention: John Moran (212) 250-5386 New York, NY 10006 Attention:
(212) 469-8671 Fax: (212) 669-1706 Attention: Loan Operations Thomas Balacki
Fax: (212) 469-8366 Thomas Balacki Ref: The Charles
Schwab
Corporation
Banca Di Roma - San Francisco Banca Di Roma -San Francisco Banca Di Roma - Citibank N.A. -
One Market, Steuart Tower 34 East 51st Street San Franciso Branch New York.
Suite 1000 New York, NY 10022 c/o Banca Di Roma - ABA #: 021-000-089
San Francisco, CA 94105 Attention: Salvatore Rappa New York Branch For Acct of:
Attention: Thomas C. Woodruff Asst. Vice 34 East 51st Street Banca Di Roma -
Vice President President New York, NY 10022 New York Branch
(415) 977-7308 (212) 407-1812 Acct #: 36003043
Fax: (415) 357-9869 Fax: (212) 407-1684 For further credit
to:
Banca Di Roma -
San Francisco
Sub-Acct #:
80994706
Norddeutsche Landesbank Norddeutsche Landesbank Norddeutsche Landesbank Chase Manhattan
Bank,
Girozentrale New York Branch Girozentrale New York Branch Girozentrale, Cayman New York
and/or Cayman Islands Branch and/or Cayman Islands Branch Islands Branch ABA #: 021000021
1114 Avenue of the Americas, 1114 Avenue of the Americas, 1114 Avenue of the New York, NY
37th Floor 37th Floor Americas, 37th Floor Acct Name:
New York, NY 10036 New York, NY 10036 New York, NY 10036 Norddeutsche
Landesbank,
Attention: Georg Peters Attention: Norman Liebenstein New York
(212) 812-6699 (212) 812-6809 Acct #:
001-1-352382
Fax: (212) 812-6860 Fax: (212) 812-6860 Ref: The Charles
Schwab
Credit Facility
Wells Fargo Bank, Wells Fargo Bank, Wells Fargo Bank, Wells Fargo Bank,
National Association National Association National Association National
Association
6th Street and Marquette Avenue 201 3rd Street, 8th Floor 6th Street and Marquette ABA #: 121000248
N9305-075 A0187-081 Ave San Francisco, CA
Minneapolis, MN 55479 San Francisco, CA 94103 N9305-075 Acct #: 2712507201
Attention: Edward J. Meyer, Jr. Attention: Cindy Dunn Minneapolis, MN 55479 Account Name:
Vice President Loan Servicing Member Syndication
(612) 667-7375 Spec. Ref: The Charles
Schwab
Fax: (612) 667-7251 (415) 477-5431 Corporation,
Obligor
Fax: (415) 979-0675 #1582242431
Mellon Bank, N.A. Mellon Bank, N.A. Mellon Bank, N.A. Mellon Bank, N.A.
One Penn Plaza, 29th Floor 3 Mellon Bank Center One Mellon Center ABA #: 043000261
New York, NY 10419 Pittsburgh, PA 15259 Pittsburgh, PA 15258 Pittsburgh, PA
Attention: Thomas P. Caruso Attention: Teresa Hayward Acct #: 9908 73 800
Vice President (412) 234-4744 Acct Name: Mellon
Bank
(212) 330-1317 Fax: (412) 209-6134 Attention: Teresa
Hayward
Fax: (212) 330-1332
BNP Paribas BNP Paribas BNP Paribas BNP New York
787 7th Avenue, 27th Floor 787 7th Avenue, 27th Floor 787 7th Avenue, 27th Floor ABA #: 026007689
New York, NY 10019 New York, NY 10019 New York, NY 10019 New York, NY
Attention: Frank Sodano Attention: Frank Chiofalo Acct #: 10313000103
Director (212) 841-2297 Attn: Loan
Services
(212) 841-2084 Fax: (212) 841-2717 Clearing Account
Fax: (212) 841-2717
Bank of Tokyo- Bank of Tokyo- Bank of Tokyo- Bank of Tokyo-
Mitsubishi Trust Company Mitsubishi Trust Company Mitsubishi Trust Company Mitsubishi Trust
Company
1251 Avenue of the Americas, 1251 Avenue of the Americas, 1251 Avenue of the ABA #: 0260-0968-7
12th Floor 12th Floor Americas, 12th Floor New York, NY
New York, NY 10022 New York, NY 10022 New York, NY 10022 Acct #: 97770477
Attention: Jesse A. Reid, Jr. Attention: Jerry Stokes Acct Name:
Vice President Banking The Charles Schwab
(212) 782-4210 Officer Corporation
Fax: (212) 782-5650 (212) 782-5648 Attention: Rolando
Uy
Fax: (212) 782-5650
First Tennessee Bank First Tennessee Bank First Tennessee Bank First Tennessee
Bank
National Association National Association National Association National
Association
165 Madison Avenue, 9th Floor 165 Madison Avenue, 9th Floor 165 Madison Avenue, ABA #: 084000026
Memphis, TN 38103-2723 Memphis, TN 38103-2723 9th Floor Memphis, TN
Attention: James H. Moore, Jr. Attention: Linda Nguyen Memphis, TN 38103-2723 Acct #: 114174-6830
Senior Vice Sales Acct Name:
President Assistant Bank Secrecy
(901) 523-4108 (901) 523-4118 Attn: Linda Nguyen
Fax: (901) 523-4267 Fax: (901) 523-4267
First Hawaiian Bank First Hawaiian Bank First Hawaiian Bank First Hawaiian Bank
999 Bishop Street, 11th Floor 999 Bishop Street, 11th Floor 999 Bishop Street, 11th ABA #: 1213-0101-5
Honolulu, HI 96813 Honolulu, HI 96813 Floor Honolulu, HI
Attention: Charles L. Jenkins Attention: Brenda Deakins / Honolulu, HI 96813 Acct #:
205150109100
VP / MGR Vicki Tanaka Attn:
(808) 525-6289 Operations CRED WH LN SVCG
Fax: (808) 525-6372 Officer Ref: The Charles
Schwab
(808) 525-8100 / 8106 Corporation
Fax: (808) 525-5085
Banca Nazionale Del Lavoro Banca Nazionale Del Lavoro Banca Nazionale Del Lavoro Chase Manhattan
Bank,
S.p.A, New York Branch S.p.A, New York Branch S.p.A, New York Branch New York
25 West 51st Street 25 West 51st Street 25 West 51st Street ABA #: 021000021
New York, NY 10019 New York, NY 10019 New York, NY 10019 For Account BNL
Attention: Roberto Mancone Attention: Anna Hernandez New York Branch
Vice President Asst.Vice Acct #:
001-1-465457
(212) 314-0734 President Ref: The Charles
Schwab
Fax: (212) 765-2978 (212) 314-0679 Corporation
Fax: (212) 765-2978
HSBC Bank USA HSBC Bank USA HSBC Bank USA HSBC Bank USA
HSBC Tower, 452 5th Avenue 1 HSBC Center 1 HSBC Center ABA #: 021001088
5th Floor Buffalo, NY 14203 Buffalo, NY 14203 New York, NY
New York, NY 10018 Attention: Darlene Cardino Acct #: 001-94050-3
Attention: L. Sue Lomax (716) 841-1670 Acct Name:
Senior Vice President Fax: (716) 841-0269 Syndications &
Asset
(212) 525-2460 Trading
Fax: (212) 525-2573 Ref: The Charles
Schwab
Corporation
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan
One Chase Plaza One Chase Plaza One Chase Plaza Bank
21st Floor 21st Floor New York, NY 10081 Acct #: 066-999979
New York, NY 10081 New York, NY 10081 ABA #: 021000021
Attention: Therese Bechet Attention: Jerry Pucciarelli Acct Name:
(212) 552-7785 (212) 552-7514 Broker Dealer House
Fax: (212) 552-1118 Fax: (212) 552-7654 Account
Attention: Jerry
Pucciarelli
Bank of Hawaii Bank of Hawaii Bank of Hawaii Bank of Hawaii
130 Merchant Street 949 Kamokila Blvd., 2nd Floor 949 Kamokila Blvd. ABA #: 1213-01028
20th Floor Kapolei, HI 96707 2nd Floor Honolulu, HI
Honolulu, HI 96813 Attention: Debbie Sullivan Kapolei, HI 96707 Acct #: 9298-540626
Attention: Dana Takushi (808) 693-1694 Acct Name:
Vice President Fax: (808) 693-1672 Bank of Hawaii
(808) 537-8689 Attn:
Fax: (808) 537-8301 Business Loan
Center
Ref: The Charles
Schwab
Corporation
EXHIBIT A-1
REVOLVING NOTE
$____________________ (Amount of Commitment) Date: June 22, 2001
For Value Received, The Charles Schwab Corporation ("Schwab") hereby
promises to pay to the order of ________________ (the "Lender") to Bank of
America, N.A., as Agent, at Agent's office located at 101 North Tryon Street,
Charlotte, NC 28255, for the account of the applicable Lending Office of the
Lender, the principal amount of ____________________ ($___________) or the
aggregate amount of all Revolving Loans made to Schwab by the Lender, whichever
is less, on June 21, 2002. 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 22, 2001 among Schwab, the Lender,
certain other Lenders party thereto, and Bank America, N.A., 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.
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 Charles Schwab Corporation
By:________________________________________
Name:______________________________________
Title:_____________________________________
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
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
EXHIBIT A-2
TERM NOTE
Date: June 22, 2001
FOR VALUE RECEIVED, the undersigned, The Charles Schwab Corporation
("Schwab") hereby promises to pay to the order of ___________________ (the
"Lender"), to Bank of America, N.A., as Agent, at the Agent's office located at
101 North Tryon Street, Charlotte, NC 28255, 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 22, 2001, as amended, among Schwab, the Lender,
certain other Lenders party thereto, and Bank of America, N.A., 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.
The Charles Schwab Corporation
By:________________________________________
Name:______________________________________
Title:_____________________________________
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 Converted, Term Note Making
or Paid Date or Paid Notation
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
EXHIBIT B
BORROWING ADVICE
1. This Borrowing Advice is executed and delivered by The Charles Schwab
Corporation ("Borrower") to you pursuant to that certain Credit Agreement dated
as of June 22, 2001 (the "Credit Agreement"), entered into by Borrower, Bank of
America, N.A. ("Bank of America") and certain other Lenders parties thereto,
collectively with Bank of America (the "Lenders") and Bank of America 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):
________ CD Rate with ______________- day Interest Period
________ Eurodollar Rate with ________- day Interest Period
________ Federal Funds Rate
________ Base Rate
(d) [If a Term Loan] Type of Term Loan (check one only):
________ CD Rate with initial ______________- day Interest
Period
________ 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.
4. This Borrowing Advice is executed on ______________ by the Borrower.
BORROWER:
THE CHARLES SCHWAB CORPORATION,
a Delaware Corporation
By:________________________________________
Name:______________________________________
Title:_____________________________________
EXHIBIT C
NOTICE OF CONVERSION/CONTINUATION
Dated as of: _________________
Bank of America, N.A., 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 22, 2001 (as amended, restated or otherwise modified, the "Credit
Agreement") by and among The Charles Schwab Corporation, a Delaware corporation
(the "Company") (herein "Borrower"); and Bank of America, N.A., a national
banking association (herein "Bank of America") and the other Lenders signatory
thereto (together with Bank of America, collectively "Lenders"), and Bank of
America 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
________________; CD 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 ________________;
CD Rate Loan ______________________.
(f) The requested effective date of the [conversion/continuation]
of such Loan is ---------------------.
(g) As applicable, the requested Interest Period applicable to the
new Loan is ---------------------.
2. No Event of Default under the Credit Agreement, or event which with
the passage of time or the giving of notice or both would constitute
an 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 CHARLES SCHWAB CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
[must be signed by an Authorized Officer]
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 22, 2001 ("Credit Agreement") entered into by The Charles
Schwab Corporation ("Borrower"), Bank of America, N.A., 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 CHARLES SCHWAB CORPORATION,
a Delaware Corporation
By:________________________________________
Name:______________________________________
Title:_____________________________________
ACCEPTED AND AGREED:
Agent, on Behalf of Lenders
By:_________________________
Name:_______________________
Title:______________________
EXHIBIT E
BORROWER'S OPINION OF COUNSEL
[Howard, Rice Letterhead]
[Date]
Bank of America, N.A., as Agent
_______________________________
_______________________________
Re: Credit Agreement (364-Day Commitment), dated June 22, 2001, among
The Charles Schwab Corporation, Bank of America, N.A., as Agent and
the Lenders party thereto
Ladies and Gentlemen:
This opinion is delivered at the request of The Charles Schwab Corporation
to you in your capacity as Agent, on behalf of the Lenders, under the Credit
Agreement (364-Day Commitment) dated as of June 22, 2001 (the "Credit
Agreement") among The Charles Schwab Corporation, a Delaware corporation
("Borrower"), Bank of America, N.A., 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 22, 2001 (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. 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 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 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, FALK & RABKIN
A Professional Corporation
By:________________________
EXHIBIT F
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
To: BANK OF AMERICA, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day Commitment) dated as
of June 22, 2001 between THE CHARLES SCHWAB CORPORATION, a Delaware corporation
("Borrower"), Lenders from time to time party thereto, and BANK OF AMERICA,
N.A., 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 (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:___________________________________________
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice
of 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 CHARLES SCHWAB CORPORATION,
as Borrower
By:_________________________________
Name:_______________________________
Title:______________________________
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_________________________________
Name:_______________________________
Title:______________________________