Exhibit 10.6
FORM OF SUBORDINATED LOAN AGREEMENT - CASH
THIS AGREEMENT is entered into this _____ day of ___________________ 2003,
between USB Holdings, Inc. (the "Lender") and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.,
(the "Organization").
1. GENERAL
Subject to the terms and conditions hereinafter set forth, the
Organization promises to pay to the Lender or its assigns, (a) on October 31,
2008 (the "Scheduled Maturity Date") at the office of the Organization, the
principal amount of $180,000,000 plus accrued and unpaid interest as of the
Scheduled Maturity Date (treating the Scheduled Maturity Date as the Interest
Payment Date for the purpose of calculating the Interest Rate applicable to the
period since the last Interest Payment Date) and (b) on _____________ and the
first business banking day in Minneapolis, Minnesota of each calendar quarter
thereafter (each such date, an "Interest Payment Date"), interest on the
principal amount then outstanding at the Interest Rate. All payments made by the
Organization hereunder, both principal and interest, shall be noted in the books
and records of the Lender and shall be conclusive evidence of the amounts of
such payments absent manifest error. For the purposes of this Agreement,
"Interest Rate" means, for each Interest Payment Date, an interest rate per
annum equal to the London Interbank Offer Rate for three-month Eurodollar
deposits, as reported on Telerate page 3750 two London business days prior to
the immediately preceding Interest Payment Date (or, in the case of the first
Interest Payment Date, two London business days prior to the date hereof)
calculated on an actual/360 day basis, plus 150 basis points, such Interest Rate
to be reset on each subsequent Interest Payment Date.
2. SUSPENDED REPAYMENT
The Organization's obligation to pay the principal amount
hereof on the Scheduled Maturity Date or any accelerated maturity date shall be
suspended and the obligation shall not mature for any period of time during
which after giving effect to such payment (together with (a) the payment of any
other obligation of the Organization payable at or prior to the payment hereof
and (b) the return of any Secured Demand Note and the Collateral therefor held
by the Organization and returnable at or prior to the payment hereof).
(i) in the event that the Organization is not operating
pursuant to the alternative net capital requirement
provided for in paragraph (a)(1)(ii) of Rule 15c3-1
(the "Rule") under the Securities Exchange Act of
1934, as amended (the "Act"), the aggregate
indebtedness of the Organization would exceed 1200
percent of its net capital as those terms are defined
in the Rule or any successor rule as in effect at the
time payment is to be made, or such other percent as
may be made applicable to the Organization at the
time of such payment by the New York Stock Exchange,
Inc. (the "Exchange") or the Securities and Exchange
Commission (the "SEC"), or
(ii) in the event that the Organization is operating
pursuant to such alternative net capital requirement,
the net capital of the Organization would be less
1
than 5 percent (or such other percent as may be made
applicable to the Organization at the time of such
payment by the Exchange or the SEC) of aggregate
debit items computed in accordance with Exhibit A to
Rule 15c3-3 under the Act or any successor rule as in
effect at such time, or
(iii) in the event that the Organization is registered as a
futures commission merchant under the Commodity
Exchange Act (the "CEA"), the net capital of the
Organization (as defined in the CEA or the
regulations thereunder as in effect at the time of
such payment) would be less than 6 percent (or such
other percentum as may be made applicable to the
Organization at the time of such payment by the
Commodity Futures Trading Commission (the "CFTC") of
the funds required to be segregated pursuant to the
CEA and the regulations thereunder, and the foreign
futures or foreign options secured amount less the
market value of commodity options purchased by
customers on or subject to the rules of a contract
market or a foreign board of trade (provided,
however, the deduction for each customer shall be
limited to the amount of customer funds in such
customer's account(s) and foreign futures and foreign
options secured amounts), or the Organization's net
capital would be less than the minimum capital
requirement as defined by the DSRO, or
(iv) the Organization's net capital, as defined in the
Rule or any successor rule as in effect at the time
of such payment, would be less than 120 percent (or
such other percent as may be made applicable to the
Organization at the time of such payment by the
Exchange or the SEC) of the minimum dollar amount
required by the Rule as in effect at such time (or
such other dollar amount as may be made applicable to
the Organization at the time of such payment by the
Exchange or the SEC), or
(v) in the event that the Organization is registered as a
futures commission merchant under the CEA and if its
net capital, as defined in the CEA or the regulations
thereunder as in effect at the time of such payment,
would be less than 120 percent (or such other percent
as may be made applicable to the Organization at the
time of such payment by the CFTC) of the minimum
dollar amount required by the CEA or the regulations
thereunder as in effect at such time (or such other
dollar amount as may be made applicable to the
Organization at the time of such payment by the
CFTC), or
(vi) in the event that the Organization is subject to the
provisions of Paragraph (a)(6)(v) or (c)(2)(x)(C) of
the Rule, the net capital of the Organization would
be less than the amount required to satisfy the 1000
percent test (or such other percentum test as may be
made applicable to the Organization at the time of
such payment by the Exchange or the SEC) stated in
such applicable paragraph,
2
(the net capital necessary to enable the Organization to avoid such suspension
of its obligation to pay the principal amount hereof being hereinafter referred
to as the "Applicable Minimum Capital") and during any such suspension the
Organization shall, as promptly as consistent with the protection of its
customers, reduce its business to a condition whereby the principal amount
hereof with accrued interest thereon could be paid (together with (a) the
payment of any other obligation of the Organization payable at or prior to the
payment hereof and (b) the return of any Secured Demand Note and the Collateral
therefor held by the Organization and returnable at or prior to the payment
hereof) without the Organization's net capital being below the Applicable
Minimum Capital, at which time the Organization shall repay the principal amount
hereof plus accrued interest thereon on not less than five days' prior written
notice to the Exchange. The aggregate principal amount outstanding pursuant to
this Agreement shall mature on the first day at which under this paragraph the
Organization has an obligation to pay the principal amount hereof. If pursuant
to the terms hereof the Organization's obligation to pay the principal amount
hereof is suspended and does not mature, the Organization agrees (and the Lender
recognizes) that if the Organization's obligation to pay the principal amount
hereof is ever suspended for a period of six months or more, it will promptly
take whatever steps are necessary to effect a rapid and orderly complete
liquidation of its business. If payment is made of all or any part of the
principal hereof on the Scheduled Maturity Date or any accelerated maturity date
and if immediately after any such payment the Organization's net capital is less
than the Applicable Minimum Capital, the Lender agrees irrevocably (whether or
not such Lender had any knowledge or notice of such fact at the time of any such
payment) to repay to the Organization, its successors or assigns, the sum so
paid, to be held by the Organization pursuant to the provisions hereof as if
such payment had never been made; provided, however, that any suit for the
recovery of any such payment must be commenced within two years of the date of
such payment.
3. SUBORDINATION OF THE OBLIGATIONS
The Lender irrevocably agrees that the obligations of the
Organization under this Agreement with respect to the payment of principal and
interest are and shall be fully and irrevocably subordinate in right of payment
and subject to the prior payment or provision for payment in full of all claims
of all other present and future creditors of the Organization whose claims are
not similarly subordinated (claims hereunder shall rank pari passu with claims
similarly subordinated) and to claims which are now or hereafter expressly
stated in the instruments creating such claims to be senior in right of payment
to the claims of the class of this claim arising out of any matter occurring
prior to the date on which the Organization's obligation to make such payment
matures consistent with the provisions hereof. In the event of the appointment
of a receiver or trustee of the Organization or in the event of its insolvency,
liquidation pursuant to the Securities Investor Protection Act of 1970 ("SIPA")
or otherwise, its bankruptcy, assignment for the benefit of creditors,
reorganization whether or not pursuant to bankruptcy laws, or any other
marshalling of the assets and liabilities of the Organization, the holder hereof
shall not be entitled to participate or share, ratably or otherwise, in the
distribution of the assets of the Organization until all claims of all other
present and future creditors of the Organization, whose claims are senior
hereto, have been fully satisfied, or adequate provision has been made therefor.
3
4. PERMISSIVE PREPAYMENT
With the prior written approval of the Exchange, the
Organization may, at its option, make Prepayment of all or any portion of the
principal amount hereof to the Lender prior to the Scheduled Maturity Date at
any time subsequent to one year from the effective date of this Agreement. No
Prepayment shall be made, however, if after giving effect thereto (and to all
other payments of principal of outstanding subordination agreements of the
Organization, including the return of any Secured Demand Note and the Collateral
therefor held by the Organization, the maturity or accelerated maturity of which
are scheduled to occur within six months after the date such Prepayment is to
occur pursuant to the provisions of this paragraph, or on or prior to the
Scheduled Maturity Date for payment of the principal amount hereof disregarding
this paragraph, whichever date is earlier) without reference to any projected
profit or loss of the Organization.
(i) in the event that the Organization is not operating
pursuant to the alternative net capital requirement
provided for in paragraph (a)(1)(ii) of the Rule, the
aggregate indebtedness of the Organization would
exceed 1000 percent of its net capital as those terms
are defined in the Rule or any successor rule as in
effect at the time such Prepayment is to be made (or
such other percent as may be made applicable at such
time to the Organization by the Exchange or the SEC),
or
(ii) in the event that the Organization is operating
pursuant to such alternative net capital requirement,
the net capital of the Organization would be less
than 5 percent (or such other percent as may be made
applicable to the Organization at the time of such
Prepayment by the Exchange or the SEC) of aggregate
debit items computed in accordance with Exhibit A to
Rule 15c3-3 under the Act or any successor rule as in
effect at such time, or
(iii) in the event that the Organization is registered as a
futures commission merchant under the CEA, the net
capital of the Organization (as defined in the CEA or
the regulations thereunder as in effect at the time
of such Prepayment) would be less than 7 percent (or
such other percent as may be made applicable to the
Organization at the time of such Prepayment by the
CFTC) of the funds required to be segregated pursuant
to the CEA and the regulations thereunder, and the
foreign futures or foreign options secured amount
less the market value of commodity options purchased
by customers of the Organization on or subject to the
rules of a contract market or a foreign board of
trade (provided, however, the deduction for each
customer shall be limited to the amount of customer
funds in such customer's account(s) and foreign
futures and foreign options secured amounts) or the
Organization's net capital would be less than the
minimum capital requirement as defined by the DSRO,
or
(iv) the Organization's net capital, as defined in the
Rule or any successor rule as in effect at the time
of such Prepayment, would be less than 120 percent
(or such other percent as may be made applicable to
the Organization at
4
the time of such Prepayment by the Exchange or the
SEC) of the minimum dollar amount required by the
Rule as in effect at such time (or such other dollar
amount as may be made applicable to the Organization
at the time of such Prepayment by the Exchange or the
SEC), or
(v) in the event that the Organization is registered as a
futures commission merchant under the CEA, its net
capital, as defined in the CEA or the regulations
thereunder as in effect at the time of such
Prepayment would be less than 120 percent (or such
other percent as may be made applicable to the
Organization at the time of such Prepayment by the
CFTC) of the minimum dollar amount required by the
CEA or the regulations thereunder as in effect at
such time or such other dollar amount as may be made
applicable to the Organization at the time of such
Prepayment by the CFTC, or
(vi) in the event that the Organization is subject to the
provisions of paragraph (a)(6)(v) or (c)(2)(x)(C) of
the Rule, the net capital of the Organization would
be less than the amount required to satisfy the 1000
percent test (or such other percent test as may be
made applicable to the Organization at the time of
such Prepayment by the Exchange or the SEC) stated in
such applicable paragraph, or
(vii) in the event that the Prepayment occurs more than 12
months prior to the Scheduled Maturity Date, as
herein defined, the Organization would not be in
compliance with the provisions of paragraph (e) of
the Rule and, if applicable, Section 1.17(e) of the
Regulations under the CEA.
If Prepayment is made of all or any part of the principal hereof prior to the
Scheduled Maturity Date and if the Organization's net capital is less than the
amount required to permit such Prepayment pursuant to the foregoing provisions
of this Paragraph, the Lender agrees irrevocably (whether or not such Lender had
any knowledge or notice of such fact at the time of such Prepayment) to repay
the Organization, its successor or assigns, the sum so paid to be held by the
Organization pursuant to the provisions hereof as if such Prepayment had never
been made; provided, however, that any suit for the recovery of any such
Prepayment must be commenced within two years of the date of such Prepayment.
5. AFFIRMATIVE COVENANTS.
Until all amounts hereunder, both principal and interest, have
been paid in full to the Lender, the Organization covenants and agrees with the
Lender that:
(i) MINIMUM NET WORTH. The Organization will not permit
at any time the amount which, in conformity with
GAAP, is included under the caption "Shareholders'
Equity" (or any like caption) on the balance sheet of
the Organization (such amount, the Organization's
"Net Worth") to be less than $200,000,000.
5
(ii) MINIMUM NET CAPITAL. The Organization will not permit
at any time its net capital (as defined by the
Exchange) to be less than $50,000,000 for a period of
30 consecutive days.
6. REPRESENTATIONS AND WARRANTIES
The Organization hereby represents and warrants to the Lender
that, as of the date of this Agreement:
(i) CORPORATE EXISTENCE. The Organization has been duly
organized, and is validly existing and in good
standing, under the laws of its jurisdiction of
incorporation or formation and has the requisite
power and authority and all necessary governmental
approvals to own, lease and operate its properties
and to carry on its business as it is now being
conducted, except where the failure to be so
organized, existing or in good standing or to have
such power, authority and governmental approvals
would not, individually or in the aggregate,
reasonably be expected to have a material adverse
effect on the financial condition, operations,
assets, business, prospects or properties of the
Organization. The Organization is duly qualified or
licensed to do business, and is in good standing, in
each jurisdiction where the character of the
properties owned, leased or operated by it or the
nature of its business makes such qualification or
licensing or good standing necessary, except for such
failures to be so qualified or licensed and in good
standing that would not, individually or in the
aggregate, reasonably be expected to have a material
adverse effect on the financial condition,
operations, assets, business, prospects or properties
of the Organization.
(ii) AUTHORITY. The Organization has full corporate power
and authority to execute and deliver this Agreement
and to perform its obligations hereunder in
accordance with its terms. The Agreement has received
all necessary approvals of the Board of Directors of
the Organization, and no other corporate proceedings
on the part of the Organization are necessary to
authorize the execution and delivery of this
Agreement or the consummation by the Organization of
the transactions contemplated hereby. The Agreement
has been duly executed and delivered by the
Organization, and, assuming the due authorization,
execution and delivery hereof by the Organization,
constitutes a valid and legally binding agreement of
the Organization, enforceable against the
Organization in accordance with its terms.
(iii) CONSENTS; NO CONFLICTS. Entrance by the Organization
into this Agreement (a) does not require any consent
or approval of, registration or filing with, or any
other action by, any governmental authority, except
such as have been obtained or made and are in full
force and effect as of the date hereof, (b) will not
violate any applicable law or regulation or the
charter, by-laws or other organizational documents of
the Organization or
6
any order of any governmental authority, (c) will not
violate or result in a default under, or give rise to
a right to require any material payment under, any
indenture, agreement or other instrument binding upon
the Organization or any of its assets and (d) will
not result in the creation or imposition of any lien
on any material asset of the Organization.
7. ACCELERATION IN EVENT OF INSOLVENCY
The Organization's obligation to pay the unpaid
principal amount hereof shall forthwith mature,
together with interest accrued thereon, in the event
of any receivership, insolvency, liquidation pursuant
to SIPA or otherwise, bankruptcy, assignment for the
benefit of creditors, reorganization whether or not
pursuant to bankruptcy laws, or any other marshalling
of the assets and liabilities of the Organization;
but payment of the same shall remain subordinate as
hereinabove set forth.
8. EVENTS OF ACCELERATION
If any of the following events (each an "Event of
Acceleration") occur:
(i) the Organization fails to pay any amount due under
this Agreement when the same becomes due and payable,
and such failure continues for thirty days after
notice thereof by the Lender to the Organization;
(ii) any material representation or warranty made by the
Organization in this Agreement proves to have been
inaccurate in any material respect at the time made;
or
(iii) the Organization fails to perform any covenant
contained in this Agreement relating to the conduct
of the business of the Organization or relating to
the maintenance and reporting of the Organization's
financial position, including those covenants set
forth in Section 5 hereof, and such failure shall
continue unremedied for a period of 30 days after
notice thereof from the Lender to the Organization;
then, and in every such event, and at any time thereafter during the continuance
of such event, the Lender may elect, by written notice to the Organization and
the Examining Authority, to declare the entire amount outstanding hereunder to
be due and payable in full as of the last business day of the calendar month
which is six months after the date such notice is received by the Organization
and the Examining Authority, whereupon the entire such amount shall be and
become due and payable on such date; and PROVIDED that, in accordance with the
Rules under the Act, the Lender shall not be permitted to exercise its rights
and remedies pursuant to this Section 7 by delivery of such notice prior to the
date that is six months after the Effective Date (as defined in Section 18
hereof). No course of dealing and no delay on the part of the Lender in
exercising any right, power or remedy will operate as a waiver thereof or
otherwise prejudice the Lender's rights, powers or remedies. No right, power or
remedy conferred hereby is exclusive of
7
any other right, power or remedy referred to herein or now or hereafter
available at law, in equity, by statute or otherwise.
9. EVENTS OF DEFAULT
If any of the following events (each an "Event of Default")
occur:
(i) the Organization is the subject of any receivership,
insolvency, liquidation pursuant to SIPA or
otherwise, bankruptcy, assignment for the benefit of
creditors, reorganization whether or not pursuant to
bankruptcy laws, or there is any other marshalling of
the assets and liabilities of the Organization;
(ii) the SEC revokes the registration of the Organization;
or
(iii) the Examining Authority suspends (and does not
reinstate within ten (10) days) or revokes the
Organization's status as a member of the Exchange.
then, and in every such event (other than an event with respect to the
Organization described in clause (i) of this Section as a result of which the
Lender shall not be permitted, without special relief, to exercise its rights or
remedies), and at any time thereafter during the continuance of such event, the
Lender may elect, by written notice to the Organization and the Examining
Authority, to declare the entire amount outstanding hereunder to be due and
payable in full, whereupon the entire such amount shall be and become due and
payable on date of such notice; PROVIDED, HOWEVER, that that no such notice
shall be required in the event of occurrence of the event specified in clause
(i) of this Section, and if any such event shall occur all amounts outstanding
hereunder shall immediately and automatically be and become due and payable in
full without notice or declaration of any kind; and PROVIDED FURTHER that, in
accordance with the Rules under the Act, if a liquidation of the business of the
Organization has not been commenced, the date on which such Event of Default
occurs shall be the date on which the payment obligations of the Organization
with respect to all other subordination agreements then outstanding shall
mature. Upon the happening of an Event of Default, if liquidation of the
business of the Organization has not already occurred, the Organization shall
undertake to rapidly and orderly liquidate its business. No course of dealing
and no delay on the part of the Lender in exercising any right, power or remedy
will operate as a waiver thereof or otherwise prejudice the Lender's rights,
powers or remedies. No right, power or remedy conferred hereby is exclusive of
any other right, power or remedy referred to herein or now or hereafter
available at law, in equity, by statute or otherwise.
10. EFFECT OF DEFAULT
Default in any payment hereunder, including the payment of
interest, shall not accelerate the maturity hereof except as herein specifically
provided, and the obligation to make payment shall remain subordinated as herein
above set forth.
8
11. EFFECT OF ACCELERATION AND DEFAULT
The occurrence of any Event of Acceleration or Event of
Default shall not accelerate the maturity hereof except as herein specifically
provided, and the obligation to make payment shall remain subordinated as herein
above set forth.
12. NOTICE OF MATURITY OR ACCELERATED MATURITY
The Organization shall immediately notify the Examining
Authority for such broker or dealer, if, after giving effect of all Payments of
Payment Obligations (as that term is defined in (a)(2)(iv) of Appendix D of the
Rule) under subordination agreements then outstanding that are then due or
mature within the following six months without reference to any projected profit
or loss of the broker or dealer either the aggregate indebtedness of the broker
or dealer would exceed 1200 percent of its net capital or its net capital would
be less than 120 percent of the minimum dollar amount required by the Rule, or,
in the case of a broker or dealer operating pursuant to paragraph (a)(1)(ii) of
the Rule, its net capital would be less than 5 percent of aggregate debit items
computed in accordance with Exhibit A to Rule 15c3-3 under the Act or any
successor rule as in effect at such time, or, if registered as a futures
commission merchant, 6 percent of the funds required to be segregated pursuant
to the Commodity Exchange Act and the regulations thereunder (less the market
value of commodity options purchased by option customers on or subject to the
rules of a contract market, each such deduction not to exceed the amount of
funds in the option customer's account), if greater, or less than 120 percent of
the minimum dollar amount required by paragraphs (a)(1)(ii) of the Rule.
13. NON-LIABILITY OF EXCHANGE
The Lender irrevocably agrees that the loan evidenced hereby
is not being made in reliance upon the standing of the Organization as a member
organization of the Exchange or upon the Exchange's surveillance of the
Organization's financial position or its compliance with the Constitution, Rules
and practices of the Exchange. The Lender has made such investigation of the
Organization and its partners, officers, directors and stockholders as the
Lender deems necessary and appropriate under the circumstances. The Lender is
not relying upon the Exchange to provide any information concerning or relating
to the Organization and agrees that the Exchange has no responsibility to
disclose to the Lender any information concerning or relating to the
Organization which it may now, or at any future time, have. The Lender agrees
that neither the Exchange, its Special Trust Fund, nor any director, officer,
trustee nor employee of the Exchange or said Trust Fund shall be liable to the
Lender with respect to this Agreement or the repayment of the loan evidenced
hereby or of any interest thereon.
14. STATUS OF PROCEEDS
The proceeds hereof shall be dealt with in all respects as
capital of the Organization, shall be subject to the risks of its business, and
may be deposited in an account or accounts in the Organization's name in any
bank or trust company.
9
15. FUTURES COMMISSION MERCHANTS
If the Organization is a futures commission merchant, as that
term is defined in the CEA, the Organization agrees, consistent with the
requirements of Section 1.17(h) of the regulations of the CFTC (17 CFR 1.17(h)),
that:
(a) whenever prior written notice by the Organization to
the Exchange is required pursuant to the provisions
of this Agreement, the same prior written notice
shall be given by the Organization to (i) the CFTC at
its principal office in Washington, DC, Attention
Chief Accountant of Division of Trading and Markets,
and/or (ii) the commodity exchange of which the
Organization is a member and which is then designated
by the CFTC as the Organization's designated
self-regulatory organization (the "DSRO"), and
(b) whenever prior written consent, permission or
approval of the Exchange is required pursuant to the
provisions of this Agreement, the Organization shall
also obtain the prior written consent, permission or
approval of the CFTC and/or of the DSRO, and
(c) whenever the Organization receives written notice of
acceleration of maturity pursuant to the provisions
of this Agreement, the Organization shall promptly
give written notice thereof to the CFTC at the
address stated and/or to the DSRO.
16. DEFINITION OF ORGANIZATION
The term "Organization" as used in this Agreement shall
include the Organization, its heirs, executors, administrators, successors and
assigns.
17. EFFECT OF EXCHANGE MEMBERSHIP TERMINATION
Upon termination of the Organization as a member organization
of the Exchange, the references herein to the Exchange shall be deemed to refer
to the Examining Authority. The term "Examining Authority" shall refer to the
regulatory body having responsibility for inspecting or examining the
Organization for compliance with financial responsibility requirements under
Section 9(c) of SIPA and Section 17(d) of the Act.
18. UPON WHOM BINDING
The provision of this Agreement shall be binding upon the
Lender, his or its heirs, executors, administrators, successors and assigns and
upon the Organization.
19. ARBITRATION
Any controversy arising out of or relating to this Agreement
shall be submitted to and settled by arbitration pursuant to the Constitution
and Rules of the Exchange. The Organization and the Lender shall be conclusively
bound by such arbitration.
10
20. EFFECTIVE DATE
This agreement shall be effective from the date on which it is
approved by the Exchange (such date, the "Effective Date") and shall not be
modified or amended without the prior written approval of the Exchange.
21. NOTICES
All notices, consents, waivers and other communications
required or permitted by this Agreement shall be in writing and shall be deemed
given to a party when (a) delivered to the appropriate address by hand or by
nationally recognized overnight courier service (costs prepaid); (b) sent by
facsimile with confirmation of transmission by the transmitting equipment; or
(c) received or rejected by the addressee, if sent by certified mail, return
receipt requested, in each case to the following addresses and facsimile numbers
and marked to the attention of the person (by name or title) designated below
(or to such other address, facsimile number or person as a party may designate
by notice to the other parties):
If to the Lender:
USB Holdings, Inc.
[ADDRESS]
Attention:
Facsimile:
Telephone:
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _____________, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Organization to:
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
22. ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the
Organization and the Lender and no other evidence of such agreement has been or
will be executed without the prior written consent of the Exchange.
11
23. GOVERNING LAW
This Agreement shall be deemed to have been made under, and
shall be governed by, the laws of the State of New York in all respects.
24. CANCELLATION
This Agreement shall not be subject to cancellation by either
party, unless the New York Stock Exchange agrees in writing to such cancellation
30 days in advance.
25. NO RIGHT OF SET-OFF
The Lender agrees that it is not taking and will not take or
assert as security for the payment of the loan any security interest in or lien
upon, whether created by contract, statute or otherwise, any property of the
Organization or any property in which the Organization may have an interest,
which is or at any time may be in the possession or subject to the control of
the Lender. The Lender hereby waives, and further agrees that it will not seek
to obtain payment of the note in whole or in any part by exercising any right of
set-off it may assert or possess whether created by contract, statute or
otherwise. Any agreement between the organization and the Lender (whether in the
nature of a general loan and collateral agreement, a security or pledge
agreement or otherwise) shall be deemed amended hereby to the extent necessary
so as not to be inconsistent with the provision of this paragraph.
12
IN WITNESS HEREOF the parties hereto have set their hands and
seals this _______ day of _________________________, 2003.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC., as USB HOLDINGS, INC., as the Lender
the Organization
By: By:
------------------------------------- ------------------------------
Name: Name:
----------------------------------- ----------------------------
Title: Title:
---------------------------------- ---------------------------
(Organization) (Lender)
13
