Exhibit 10.29
LINE OF CREDIT AGREEMENT
BY AND BETWEEN
BOARD OF TRADE OF THE CITY OF CHICAGO, INC.
AND
LASALLE BANK NATIONAL ASSOCIATION
January 15, 2002
TABLE OF CONTENTS
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Page
1. Definitions....................................................... 4
2. Line of Credit Commitment; Borrowing Procedures and Conditions.... 7
2.1 Line of Credit Commitment................................... 7
2.2 Prime Loans and LIBOR Rate Loans............................ 7
2.3 Borrowing Procedures........................................ 7
2.4 Stated Maturity of LIBOR Rate Loans......................... 8
2.5 Illegality of Making LIBOR Rate Loans....................... 8
3. Note Evidencing Loans............................................. 8
4. Interest and Other Costs of Borrowing............................. 9
4.1 Interest.................................................... 9
4.2 Rate Determination Conclusive............................... 9
4.3 Taxes and Additional Costs.................................. 9
4.4 Compensation for Prepayment of or Failure to
Borrow LIBOR Rate Loan......................................11
4.5 Computation of Interest.....................................11
5. Making and Proration of Payments; Prepayments; Offset.............11
5.1 Making of Payments to the Bank..............................11
5.2 Mandatory Prepayments.......................................11
5.3 Reduction or Termination of Line of Credit;
Optional Prepayments and Maturity of Principal..............12
5.4 Conversion between Types of Loans...........................13
5.5 Interest....................................................13
5.6 Offset......................................................13
5.7 Arrangement Fee.............................................13
5.8 Non-Use Fee.................................................13
6. Representations and Warranties....................................14
6.1 Organization, Good Standing and Power.......................14
6.2 Corporate Authority.........................................14
6.3 Authorizations..............................................14
6.4 No Conflicts................................................14
6.5 Binding Agreement...........................................14
6.6 Financial Statements........................................15
6.7 Litigation..................................................15
6.8 Taxes.......................................................15
6.9 Liens.......................................................15
6.10 Public Utility Holding Company Act..........................15
6.11 Regulation U................................................15
6.12 Accuracy of Information.....................................16
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7. Covenants.........................................................16
7.1 Reports and Other Information...............................16
7.2 Taxes.......................................................17
7.3 Insurance...................................................17
7.4 Use of Proceeds.............................................17
7.5 Minimum Members' Equity.....................................17
7.6 Funded Debt to Total Capitalization.........................17
7.7 Fixed Charge Coverage Ratio.................................17
7.8 Liens.......................................................18
7.9 Indebtedness................................................19
7.10 Other Agreements............................................19
7.11 Change in Organizational Structure..........................19
7.12 CBOT Rule Changes...........................................19
8. Condition of Lending..............................................20
8.1 Initial Loan................................................20
8.2 All Loans...................................................20
9. Events of Default and Their Effect................................21
9.1 Events of Default...........................................21
9.2 Effect of Event of Default..................................22
10. Miscellaneous.....................................................22
10.1 Waiver; Amendments..........................................22
10.2 Notices.....................................................22
10.3 Computations................................................22
10.4 Transfer of the Note........................................23
10.5 Regulation U................................................23
10.6 Costs, Expenses and Taxes...................................23
10.7 Separability................................................23
10.8 Successors and Assigns......................................23
10.9 Governing Law; Entire Agreement.............................24
10.10 Counterparts................................................24
10.11 Forum Selection and Consent to Jurisdiction.................24
10.12 Waiver of Jury Trial........................................24
10.13 Confidentiality.............................................25
LIST OF EXHIBITS
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Exhibit A - Form of Line of Credit Note
Exhibit B - Indebtedness for Borrowed Money and Guarantees of Indebtedness
Exhibit C - Pending Litigation
Exhibit D - Existing Liens
Exhibit E - Form of Certificate of Chief Financial Officer
Exhibit F Form of Opinion of Counsel
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LINE OF CREDIT AGREEMENT
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This Line of Credit Agreement (this "Agreement"), dated as of January 15,
2002, by and between the BOARD OF TRADE OF THE CITY OF CHICAGO, INC., a Delaware
not-for-profit corporation (the "Borrower"), and LASALLE BANK NATIONAL
ASSOCIATION, a national banking association (the "Bank") is subject to the
following terms and conditions:
1. Definitions. For the purposes of this Agreement, the following
capitalized words and phrases shall have the meanings set forth below
"Banking Day" means any Business Day on which dealings in Dollars are
carried on in the London interbank market.
"Borrowing Representative" means each authorized officer of the Borrower
authorized to make borrowings hereunder pursuant to the Borrower's
resolutions, as such resolutions may be amended by the Borrower from time
to time.
"Business Day" means any day on which commercial banks are open for
business in Chicago, Illinois.
"Capital Lease" means a lease of any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible, by such
Person as lessee that is, or is required to be recorded as a "capital
lease" on the balance sheet of the Borrower prepared in accordance with
GAAP.
"Ceres" means Ceres Trading L.P., a Delaware limited partnership.
"Ceres Interest Repurchase" means the repurchase of outstanding limited
partnership interests of various limited partners in Ceres.
"Contingent Liability" means each obligation and liability of the Borrower
and all such obligations and liabilities of the Borrower incurred pursuant
to any agreement, undertaking or arrangement by which the Borrower; (a)
guarantees, endorses or otherwise becomes or is contingently liable upon
the indebtedness, dividend, obligation or other liability of any other
Person in any manner (other than by endorsement of instruments in the
course of collection), including without limitation, any indebtedness,
dividend or other obligation which may be issued or incurred at some future
time; (b) guarantees the payment of dividends or other distributions upon
the shares or ownership interest of any other Person; (c) undertakes or
agrees (whether contingently or otherwise): (i) to purchase, repurchase,
or otherwise acquire any indebtedness, obligation or liability of any other
Person or any property or assets constituting security therefor, (ii) to
advance or provide funds for the payment or discharge of any indebtedness,
obligation or liability of any other Person (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to
maintain solvency, assets, level of income, working capital or other
financial condition of any other Person, or (iii) to make payment to any
other Person other than for value received; (d) agrees to lease property or
to purchase securities, property or services from such other Person with
the purpose or intent of assuring the owner of such indebtedness or
obligation of the ability of such other Person to make payment of the
indebtedness or obligation; (e) agrees to induce the issuance of, or in
connection with the issuance of, any letter of credit for the benefit of
such other Person; or (f) undertakes or agrees otherwise to assure a
creditor of any other Person against loss.
"Dollar(s)" and the sign "$" mean lawful money of the United States of
America
"EBITDA" means, for any period, Net Income for such period, plus, to the
extent deducted in determining Net Income, interest expense, federal and
state income taxes, depreciation and amortization for such period.
"Event of Default" means any of the events described in Section 9.
"Financials" means those financial statements referred to in Sections 6.6
and 7.1(a).
"Fixed Charge Coverage Ratio" means, as of the end of each fiscal quarter
using fiscal year-to-date results on an annualized basis, the ratio of (a)
EBITDA to (b) all required payments of principal and interest on Funded
Debt.
"FRB" means the Board of Governors of the Federal Reserve System.
"Funded Debt" means all Indebtedness for borrowed money of such Person
which by the terms of the agreement governing, or instrument evidencing
such Indebtedness matures more than one year from, or is directly or
indirectly renewable or extendible at the option of the debtor under a
revolving credit or similar agreement obligating the lender thereof to
extend credit over a period of more than one year from the date of creation
thereof, including current maturities of long-term debt, revolving credit
and short-term debt extendible beyond one year at the option of the debtor.
"Funded Debt to Total Capitalization" means, as at the end of each fiscal
quarter using fiscal year-to-date results on an annualized basis, the ratio
of (a) Funded Debt to (b) Total Capitalization.
"Indebtedness" means, at any time, without duplication, (a) all Liabilities
of the Borrower, (b) all Capital Lease obligations of the Borrower, (c) all
other debt, secured or unsecured, created, issued, incurred or assumed by
the Borrower for money borrowed or for the deferred purchase price of any
fixed or capital asset, (d) indebtedness secured by any Lien existing on
property owned by the Borrower whether or not the indebtedness secured
thereby has been assumed (but only to the extent of such Lien), and (e) all
Contingent Liabilities of the Borrower whether or not reflected on its
balance sheet.
"Interest Period" means the period with respect to any LIBOR Rate Loan
beginning with the Borrowing Date of such Loan and ending with its Stated
Maturity
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"Liabilities" means at all times all liabilities of the Borrower that would
be shown as such on a balance sheet of the Borrower prepared in accordance
with GAAP.
"LIBOR" means a rate of interest equal to the per annum rate of interest at
which United States dollar deposits in an amount comparable to the amount
of the relevant LIBOR Loan and for a period equal to the relevant Interest
Period are offered generally to the Bank (rounded upward if necessary, to
the nearest 1/16 of 1.00%) in the London Interbank Eurodollar market at
11:00 a.m. (London time) two Business Days prior to the commencement of
each Interest Period less the maximum reserve percentages for determining
reserves to be maintained by member banks of the Federal Reserve System for
Eurocurrency liabilities, or as LIBOR is otherwise determined by the Bank
in its sole and absolute discretion, such rate to remain fixed for such
Interest Period. The Bank's determination of LIBOR shall be conclusive,
absent manifest error
"LIBOR Rate" shall mean a per annum rate of interest equal to LIBOR for the
relevant Interest Period plus 2.75%, which LIBOR Rate shall remain fixed
during such Interest Period.
"LIBOR Rate Loan" or "LIBOR Rate Loans" mean that portion, and collectively
those portions, of the aggregate outstanding principal balance of the Loans
that will bear interest at the LIBOR Rate, of which at any time and from
time to time, the Borrower may identify no more than five (5) advances of
the Loans which will bear interest at the LIBOR Rate, of which each
particular LIBOR Loan must be in the amount of ($1,000,000.00) or a higher
integral multiple of ($500,000.00).
"Members' Equity" means the amount shown opposite the caption "Members'
Equity" or a similar caption as reflected on the Borrower's Financials,
prepared in accordance with GAAP.
"Net Income" means, with respect to any period, the amount shown opposite
the caption "Net Income" or a similar caption as reflected on the
Financials of the Borrower, prepared in accordance with GAAP.
"Person" means any corporation, natural person, firm, joint venture,
partnership, trust, unincorporated organization, enterprise, government or
any department or agency of any government.
"Potential Default" means any event that, if it continues uncured, will,
with lapse of time or notice or both, constitute an Event of Default.
"Prime Rate" means the floating per annum rate of interest which, at any
time and from time to time, shall be most recently announced by the Bank as
its Prime Rate, which is not intended to be the Bank's lowest or most
favorable rate of interest at any one time. The effective date of any
change in the Prime Rate shall for purposes hereof be the date such rate is
changed by the Bank. The Bank shall not be obligated to give notice of any
change in the Prime Rate.
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"Regulation U" means Regulation U of the FRB, as in effect from time to
time.
"Total Capitalization" means, on a consolidated basis, the sum of the total
amount of (a) long term debt, including the Borrower's private placement
debt, revolving loans, and equipment loans plus (b) Members' Equity.
2. Line of Credit Commitment; Borrowing Procedures and Conditions.
2.1 Line of Credit Commitment. On and subject to the terms of this
Agreement, the Bank agrees to make loans to the Borrower from time to time,
(the availability of such Loans hereunder called the "Line of Credit") in
such amounts (the "Loans") as the Borrower may from time to time request,
but not exceeding the amount of $20,000,000 in the aggregate at any one
time outstanding (as reduced from time to time in accordance with Section 5
hereof; the "Line of Credit Commitment"). The Borrower may borrow, prepay,
repay, and reborrow from the Bank to, but not including, January 15, 2003
(the "Termination Date"), unless sooner notified of the termination of the
Line of Credit pursuant to Section 9.2 hereof.
2.2 Prime Loans and LIBOR Rate Loans. Each Loan shall be either a
Prime Loan or, if the Borrower shall so request in its notice of borrowing
pursuant to Section 2.3, a LIBOR Rate Loan, it being understood that Prime
Loans and LIBOR Rate Loans may both be outstanding at the same time,
provided that no more than five (5) separate LIBOR Rate Loans shall be
outstanding at any one time. The terms "Prime Loan" and "LIBOR Rate Loan"
shall refer to Loans having the maturities, interest rates and other
provisions assigned hereunder to Loans so designated. The Bank may, if it
so elects, make any LIBOR Rate Loan by causing a foreign branch, foreign
subsidiary, or foreign affiliate of the Bank (its "LIBOR Rate Office") to
make such Loan; provided, that in such event, such Loan shall be deemed to
have been made by the Bank, and the obligation of the Borrower to repay
such Loan shall nevertheless be to the Bank and shall be deemed held by it,
to the extent of such Loan, for the account of its LIBOR Rate Office. Each
Prime Loan shall be in a principal amount that is an integral multiple of
$500,000.
2.3 Borrowing Procedures. The Borrower shall give the Bank telephonic
notice of each requested Loan not later than 11:00 a.m., Chicago time, on
the date on which any Prime Loan is to be made, which date shall be a
Business Day, and no later than 11:00 a.m., Chicago time, at least three
(3) Banking Days before the date on which any LIBOR Rate Loan is to be
made, which date shall be a Business Day (each date of borrowing a
"Borrowing Date"), stating the date and amount thereof, whether a LIBOR
Rate Loan is requested, and the date when each LIBOR Rate Loan shall
mature, as the Borrower may select pursuant to Section 2.4. Each such
notice of a requested Loan shall be given by one of the Borrower's
Borrowing Representatives. The Bank shall disburse the proceeds of each
Loan in accordance with Borrower's written instructions. Notwithstanding
any other provision of this Agreement, no Loan shall be required to be made
hereunder if the conditions precedent to the making of such Loan specified
in Section 8 have not been satisfied.
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2.4 Stated Maturity of LIBOR Rate Loans. In its notice of each
proposed LIBOR Rate Loan the Borrower shall select such date not to exceed
one, two, three or six months after the date of such LIBOR Rate Loan, but
no later than the Termination Date, when such LIBOR Rate Loan shall mature
(its "Stated Maturity"); provided that in the absence of such selection the
Borrower shall be deemed to have selected the date one (1) month after the
date of such LIBOR Rate Loan. Such Stated Maturity shall be the day in the
appropriate subsequent month numerically corresponding to the Borrowing
Date of such LIBOR Rate Loan or, if there is no such day in such month or
if the Borrowing Date is the last day of its corresponding month, the last
day of such subsequent month; provided that if any such Stated Maturity
would otherwise fall on a day which is not a Banking Day, said Stated
Maturity shall be the next succeeding Banking Day (unless such succeeding
Banking Day is the first Banking Day in a calendar month, in which case
such Stated Maturity shall be the next preceding Banking Day).
2.5 Illegality of Making LIBOR Rate Loans. Anything herein to the
contrary notwithstanding, in the event that any change in (including the
introduction of any new) applicable law, rule or regulation or in the
interpretation or application thereof shall make it unlawful for the Bank
to honor a request by the Borrower for a LIBOR Rate Loan, the Bank shall
promptly notify the Borrower. If circumstances thereafter change so that it
is no longer unlawful for the Bank to make LIBOR Rate Loans, the Bank shall
promptly notify the Borrower.
3. Note Evidencing Loans. The Loans shall be evidenced by a promissory note
(the "Note"), substantially in the form set forth in Exhibit A attached hereto,
with appropriate insertions, dated the Initial Borrowing Date, payable to the
order of the Bank on the Termination Date in the original Line of Credit
Commitment or in the unpaid principal amount of all of its Loans, whichever is
less. Notwithstanding the principal amount of the Note as stated on the face
thereof, the actual principal amount owing from the Borrower to the Bank or
other holder of the Note thereunder, as of any date of computation, shall be the
sum of all Loans then and theretofore made less all payments of principal
actually received by the Bank in collected funds during the same period. The
Bank shall maintain a master record of all Loans to and payments by the Borrower
hereunder and under the Note, and the aggregate unpaid principal amount shown in
such master record shall be rebuttable presumptive evidence of the principal
amount owing and unpaid on the Note. The failure to record any such amount in
such master record shall not, however, limit or otherwise affect the obligations
of the Borrower hereunder or under the Note to repay the principal amount of the
Loans, together with all interest accruing thereon. In the event of any
conflict, absent demonstrable error, the Bank's master record shall be deemed
controlling. The Note shall provide for the payment of interest and principal as
provided in Sections 4 and 5.
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4. Interest and Other Costs of Borrowing.
4.1 Interest. The Borrower promises to pay interest on the unpaid
amount of each Loan for the period commencing on the date of such Loan
until such Loan is paid in full as follows:
(a) at all times while such Loan is a Prime Loan, at a rate per
annum equal to the Prime Rate from time to time in effect; and
(b) at all times while such Loan is a LIBOR Rate Loan, at a rate
per annum equal to the LIBOR Rate from time to time in effect;
provided, that, at the Bank's election, at any time that an Event of
Default exists, the interest rate applicable to each Loan shall be
increased by 2%.
4.2 Rate Determination Conclusive. The applicable LIBOR Rate for each
Interest Period shall be determined by the Bank, and notice thereof shall
be given by the Bank promptly to the Borrower. Each determination of the
LIBOR Rate by the Bank shall be conclusive and binding upon the parties
hereto, in the absence of manifest error. The Bank shall, upon written
request of the Borrower, deliver to the Borrower a statement showing the
computation used by the Bank in determining the applicable LIBOR Rate
hereunder.
4.3 Taxes and Additional Costs.
(a) Taxes. The Bank shall receive all payments under this
Agreement and under the Note (including, without limitation, payments
of interest and principal) free and clear of any and all present and
future taxes, levies, imposts, duties, deductions, withholdings, fees,
liabilities and similar charges imposed on or with respect to such
payments, this Agreement or the Note ("Taxes") other than Bank Income
Taxes. If any Taxes are required to be withheld or deducted from any
amount payable under this Agreement or the Note (other than Bank
Income Taxes), then the amount payable under this Agreement or the
Note will be increased to the amount which, after deduction from such
increased amount of all Taxes required to be withheld or deducted
therefrom will yield to the Bank the amount stated to be payable under
this Agreement or the Note. The Borrower will execute and deliver to
the Bank, at its request, such further instruments as may be necessary
or desirable to give full force and effect to any such increase,
including, but not limited to, a new Note of the Borrower to be issued
in exchange for the Note theretofore issued. If any Taxes other than
those with respect to the overall net income of the Bank or its LIBOR
Rate Office ("Bank Income Taxes") are lawfully paid by the Bank or its
LIBOR Rate Office, the Borrower will, upon demand of the Bank,
reimburse the Bank for such payments, together with any interest and
penalties which may be imposed by a governmental agency, but without
any interest imposed by the Bank or its LIBOR Rate Office, and except
for any interest and penalties resulting from gross negligence or
9
willful misconduct on the part of the Bank or its LIBOR Rate Office.
The Bank shall subsequently return to the Borrower such additional
amounts paid by the Borrower to the Bank on account of such Taxes
deducted, withheld or reimbursed if and to the extent the Bank or its
LIBOR Rate Office reasonably determines that it is able to absorb such
additional amounts as a credit against any Taxes of any kind or nature
due from and payable by the Bank or its LIBOR Rate Office or it is
able to obtain a refund or reimbursement of such amounts from an
appropriate governmental authority, provided that the Borrower shall
deliver to the Bank the original tax receipt issued in connection with
the payment of such withheld or deducted Taxes to an appropriate
governmental authority and such other documents relating thereto as
the Bank may reasonably request.
(b) Additional Costs. If, after the date hereof, any change in
applicable law or regulation or in the interpretation or application
thereof by any governmental authority charged with the administration
thereof:
(i) subjects the Bank or its LIBOR Rate Office to any Taxes
of any kind whatsoever or changes the basis of taxation of
payments to the Bank or its LIBOR Rate Office of principal or
interest payable on its Note (except for (x) changes that affect
Bank Income Taxes, whether in the determination of net income or
the rate applicable thereto, and (y) Taxes for which the Bank is
to be made whole pursuant to Section 4.3(a)); or
(ii) imposes, modifies or deems applicable any reserve or
similar requirement against any Loan of the Bank or its LIBOR
Rate Office or assets held by or deposits in or for the account
of the Bank or its LIBOR Rate Office for the purpose of making or
maintaining such Loan which is not otherwise taken into account
in determining the Prime Rate or the LIBOR Rate; or
(iii) imposes on the Bank or its LIBOR Rate Office, directly
or indirectly, any other material conditions, which conditions
are outside of the Bank's control, affecting this Agreement or
the Note held by the Bank, and the result of any of the foregoing
is to increase the cost to the Bank or its LIBOR Rate Office of
making or maintaining any of its Loans by an amount which the
Bank deems to be material (any such amounts herein called
"Additional Costs"), then the Borrower will promptly pay to the
Bank upon its demand the additional amount or amounts necessary
to compensate the Bank or its LIBOR Rate Office for such
Additional Costs as and when incurred and without interest
(except upon the Borrower's default in payment thereof).
(c) Avoidance of Taxes or Additional Costs. If any Taxes are
required to be deducted, withheld or reimbursed by the Borrower or any
Additional Costs are imposed on the Borrower with respect to the Note,
upon request of the Borrower, the Bank will use its best efforts to
transfer the affected Loans and/or the Note to another LIBOR Rate
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Office or lending office with respect to Prime Loans ("Domestic
Lending Office"), which Domestic Lending Office shall be an office,
branch or subsidiary of the Bank, in a jurisdiction where all such
Taxes and Additional Costs may be avoided altogether or, if avoidance
is not feasible, reduced to the extent reasonably possible, provided
that such transfer will not result in any increased Taxes payable by
the Bank or its LIBOR Rate Office (including, without limitation, Bank
Income Taxes) and not reimbursed by the Borrower. The Borrower will
use its best efforts fully to cooperate with such transfer by the Bank
to the extent permissible under applicable law. The Bank shall not be
liable for its failure for any reason whatsoever to transfer the
affected Loans or its Note or to take other appropriate action to
avoid such Taxes and Additional Costs other than with respect to the
Bank's gross negligence or willful misconduct.
4.4 Compensation for Prepayment of or Failure to Borrow LIBOR Rate
Loan. If the Borrower (a) makes a prepayment of any LIBOR Rate Loan under
Section 5 on a day other than the Stated Maturity thereof or (b) fails to
borrow any LIBOR Rate Loan on the Borrowing Date requested therefor
pursuant to Section 2.3 prior to the last Business Day of any Interest
Period, the Borrower agrees to indemnify the Bank against any loss
(including any loss on redeployment of the funds repaid), cost or expense
incurred by the Bank as a result of such prepayment. A certificate from the
Bank of such loss or expense (including calculations in reasonable detail)
shall, in absence of manifest error, be conclusive and binding on the
Borrower.
4.5 Computation of Interest. Interest on Prime Loans shall be computed
for the actual number of days elapsed on the basis of a year consisting of
360 days. Interest on LIBOR Rate Loans shall be computed on the basis of a
360-day year and for actual days elapsed. Whenever any payment to be made
hereunder shall fall due on a day which is not a Business Day, such payment
may be made on the next succeeding Business Day and such extension of time
shall be included when computing interest in connection with such payment.
5. Making and Proration of Payments; Prepayments; Offset.
5.1 Making of Payments to the Bank. The Borrower shall make all
payments on the Note and otherwise under this Agreement in Dollars in
immediately available funds to the Bank at its office in Chicago, Illinois,
not later than 2:00 p.m., Chicago time, on the date due; and funds received
after that hour shall be deemed to have been received by the Bank on its
next following Business Day.
5.2 Mandatory Prepayments.
(a) Illegality. If any change in applicable law or regulation or
in the interpretation thereof by any governmental authority charged
with the administration thereof shall make it unlawful for the Bank to
continue to maintain any of its Loans, and the Bank is unable to
11
remedy such circumstance by transferring such Loan or Loans to another
LIBOR Rate Office pursuant to Section 4.3(c), then the Borrower will,
upon ten (10) Business Days' (where practicable) notice from the Bank,
prepay such Loan or Loans in full, together with accrued interest
thereon to the date of prepayment. If possible, the Bank shall not
require such prepayment of any LIBOR Rate Loan before its Stated
Maturity.
(b) Termination of Credit. If the Bank shall, in its sole
discretion at any time that an Event of Default shall have occurred
and remain continuing, elect to terminate the Line of Credit before
the Termination Date, then the Borrower shall repay the aggregate
principal amount of (i) all Prime Loans then outstanding (together
with accrued but unpaid interest thereon), not later than ten (10)
Business Day after the effectiveness of such termination and (ii) each
LIBOR Rate Loan then outstanding (together with accrued but unpaid
interest thereon) at its Stated Maturity (without acceleration).
5.3 Reduction or Termination of Line of Credit; Optional Prepayments
and Maturity of Principal.
(a) Voluntary Reduction or Termination of the Line of Credit. The
Borrower may from time to time on at least five (5) Business Days'
prior written notice received by the Bank permanently reduce the Line
of Credit Commitment to an amount not less than the aggregate amount
of all Loans then outstanding. Any such reduction shall be in an
amount not less than $500,000 or an integral multiple thereof.
Concurrently with any reduction to the Line of Credit Commitment to
zero, the Borrower shall pay all interest on the Loans and all Non-Use
Fees (as hereinafter defined) owing hereunder.
(b) Prime Loans. The Borrower shall pay on the Termination Date
or at earlier maturity by acceleration (or otherwise), the aggregate
unpaid principal amount of all Prime Loans then outstanding. The
Borrower shall have the right at any time and from time to time before
the Termination Date, upon written notice from a Borrowing
Representative to the Bank not later than noon, Chicago time, of the
day that payment is made, to prepay in whole or in part and without
premium or penalty the aggregate principal amount of all Prime Loans
then outstanding; provided that any such partial prepayment shall be
in an aggregate principal amount that is an integral multiple of
$500,000. Any prepayment of principal of the Prime Loans shall include
accrued interest to the date of prepayment on the principal amount
being prepaid.
(c) LIBOR Rate Loans. The Borrower shall pay the entire principal
amount of any LIBOR Rate Loan at its maturity (whether at Stated
Maturity, by acceleration or otherwise). The Borrower shall have the
right at any time to prepay in whole, but not in part, the aggregate
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principal amount of any LIBOR Rate Loan, before the Stated Maturity of
such Loan, subject to payment of any amount owing pursuant to
Section 4.4.
5.4 Conversion between Types of Loans. The Borrower may effect payment
or prepayment of any LIBOR Rate Loan or Prime Loan by requesting a Loan of
the other type to be made on the date of such payment or prepayment in an
amount equal to the principal amount of the Loan being paid or prepaid,
upon proper notice pursuant to Section 2.3, and in such request directing
the Bank to apply the proceeds of the requested Loan to payment on the
applicable Borrowing Date of the principal of such Loan being paid or
prepaid. If the Borrower shall fail to pay any LIBOR Rate Loan at its
Stated Maturity, the Bank shall automatically effect payment of the
principal thereof by making a Prime Loan in the principal amount of such
LIBOR Rate Loan.
5.5 Interest. The Borrower shall pay accrued interest on Prime Loans
monthly in arrears on the last day of each month, beginning with the first
of such dates to occur after the Initial Borrowing Date and at maturity
(whether by acceleration or otherwise), and on each LIBOR Rate Loan at its
maturity (whether at Stated Maturity, by acceleration or otherwise).
Notwithstanding anything to the contrary contained herein, accrued interest
on each LIBOR Rate Loan with a six-month Interest Period shall be payable
on the three-month anniversary of the first day of such Interest Period and
at maturity. After the maturity (whether by acceleration or otherwise) of
any Loan hereunder, the Borrower shall pay accrued interest on such Loan on
demand.
5.6 Offset. In addition to and not in limitation of all rights of
offset that the Bank or any other holder of the Note may have under
applicable law, the Bank or such other holder shall, upon the occurrence
and during the continuance of any Event of Default described in Section
9.1(a) or (c) or any other Potential Default described in the remaining
subsections of Section 9.1 after the expiration of any applicable grace or
cure periods, have the right to appropriate and apply to the payment of the
Note any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter with the Bank or such other holder.
5.7 Arrangement Fee. The Borrower agrees to pay to the Bank an
arrangement fee as set forth in a separate letter agreement between the
Borrower and the Bank (the "Fee Letter").
5.8 Non-Use Fee. The Borrower agrees to pay to the Bank a non-
utilization fee ("Non-Use Fee") equal to 0.25% per annum of the total of
(a) the Line of Credit Commitment, less (b) the sum of (i) the daily
average of the aggregate principal amount of all Loans outstanding, which
Non-Use Fee shall be (A) calculated on the basis of a year consisting of
360 days, (B) paid for the actual number of days elapsed, and (C) payable
in arrears on the first day of each quarter commencing on January 2, 2002,
and on the Termination Date.
13
6. Representations and Warranties. To induce the Bank to make the Loans
hereunder, the Borrower represents and warrants to the Bank that, as of the date
hereof,:
6.1 Organization, Good Standing and Power. Borrower is a Delaware not-
for-profit corporation validly organized, existing and in good standing,
under the laws of the State of Delaware; is duly qualified to do business
as a foreign corporation in each jurisdiction where the nature of the
Borrower's business requires such qualification, except where failure so to
qualify would not have a material adverse effect on the Borrower's
financial condition or ability to enter into and perform its obligations
under this Agreement, the Note and each other document executed in
connection therewith, and has full power and authority and holds all
requisite governmental licenses, permits and other approvals necessary to
permit the Borrower to enter into and perform its obligations under this
Agreement, the Note and each other document executed in connection
therewith and to conduct the Borrower's business substantially as currently
conducted by it, except for such licenses, permits or approvals where such
failure to hold would not have a material adverse effect on the Borrower's
financial condition or ability to enter into and perform its obligations
under this Agreement, the Note and each other document executed in
connection herewith.
6.2 Corporate Authority. Borrower has the power and authority to enter
into and deliver this Agreement, to make borrowings hereunder, to execute
and deliver the Note and to incur the obligations provided for herein and
therein, all of which have been duly authorized by all requisite corporate
action.
6.3 Authorizations. No approval, authorization or other action by, or
filing with, any governmental authority is required in connection with the
borrowings hereunder, the execution and delivery of this Agreement and the
Note, and the performance by the Borrower of its obligations hereunder and
thereunder.
6.4 No Conflicts. The execution and delivery of this Agreement and the
Note by the Borrower and the performance by the Borrower of its obligations
hereunder and thereunder do not conflict with or result in a violation of
any statute, regulation or rule or the certificate of incorporation or by-
laws of the Borrower or of any material agreement, instrument, order, writ,
judgment or decree to which it is a party or is subject, or result in or
require the creation or imposition of any lien on any of the properties of
the Borrower.
6.5 Binding Agreement. This Agreement constitutes, and the Note, when
issued and delivered pursuant hereto for value received, will constitute,
valid and binding obligations of the Borrower enforceable in accordance
with their respective terms, subject, as to the enforcement of remedies,
(i) to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws of general application affecting creditors' rights from
time to time in effect and (ii) to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law).
14
6.6 Financial Statements. The Borrower's annual audited financial
statements as at December 31, 2000 and its unaudited quarterly financial
statement as at September 30, 2001, copies of which have been furnished to
the Bank, have been prepared, in the case of the annual financial
statements, in conformity with generally accepted accounting principles
("GAAP") consistently applied and all of such financial statements
accurately present the financial condition of the Borrower as at such dates
and the results of its operations for the periods then ended, and since
such dates there has been no material adverse change in the Borrower's
financial condition, operations, assets or business except as set forth in
the Borrower's Financials. The Borrower has not incurred, or entered into
any agreement or instrument whereby it may incur, any Indebtedness for
borrowed money that is superior to or ranks pari passu in right of payment
with the Loans or guaranteed the Indebtedness of any other person except as
permitted under Section 7.9.
6.7 Litigation. Except as disclosed in Exhibit C attached hereto,
there are no pending or, to the knowledge of the Borrower, threatened
actions, suits, proceedings or investigations affecting the assets or
revenues of the Borrower before any court or arbitrator or before or by any
governmental authority that, in any one case or in the aggregate, if
determined adversely to the interests of the Borrower, would reasonably be
expected to have a material adverse effect on its financial condition,
operations, assets, business or properties or that purports to affect the
legality, validity or enforceability of this Agreement, the Note or any
other document executed in connection therewith. Other than any liability
incident to such litigation or other proceedings or investigations, the
Borrower does not have any material Contingent Liabilities not provided for
or disclosed in the Financials referred to in Section 6.6.
6.8 Taxes. The Borrower has filed all Federal and material tax returns
and reports required by law to have been filed by it and has paid all taxes
and governmental charges thereby shown to be owing, except any such taxes
or charges which the Borrower is diligently contesting in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP have been set aside on the Borrower's books.
6.9 Liens. None of the assets of the Borrower is subject to any
mortgage, pledge, title retention lien, or other lien, encumbrance or
security interest (a "Lien"), except for Liens permitted by Section 7.8.
6.10 Public Utility Holding Company Act. The Borrower is not a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
6.11 Regulation U. The Borrower is not engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U).
15
6.12 Accuracy of Information. All factual information heretofore or
contemporaneously furnished and prepared by or on behalf of the Borrower in
writing to the Bank for purposes of or in connection with this Agreement
is, and all other such factual information hereafter furnished and prepared
by or on behalf of the Borrower to the Bank will be, true and accurate in
every material respect, to the best of the Borrowers knowledge, on the date
as of which such information is dated or certified and, except for
information furnished hereafter, as of the date of this Agreement and, to
the best of the Borrower's knowledge, such information does not, or will
not, as the case may be, omit to state any material fact necessary to make
such information not misleading.
7. Covenants. Until payment in full of the Note and performance of all
other obligations of the Borrower hereunder, the Borrower will:
7.1 Reports and Other Information. Furnish to the Bank:
(a) Financial Reports. Promptly following the Bank's request
therefor, a copy of the Borrower's and its subsidiaries' (i) annual
audited consolidated financial statements with consolidating schedules
within 120 days of fiscal year-end and (ii) quarterly unaudited
consolidated and consolidating financial statements within 60 days of
the end of each fiscal quarter;
(b) Certificates of the Borrower. Together with each such annual
audit report or quarterly financial statement, a certificate dated the
date thereof, in the form attached hereto as Exhibit E and signed by
an appropriate Borrowing Representative of the Borrower to the effect
that, to the best of such person's knowledge, no Event of Default or
Potential Default has occurred and is continuing, or if there is any
such event, describing it and the steps, if any, being taken to cure
it, containing a computation of, and showing compliance with, each of
the financial ratios and liquidity requirements contained in this
Section 7 and stating the total Indebtedness of the Borrower that
ranks pari passu with the Loans (including the aggregate amount of the
Loans then outstanding);
(c) Notice of Defaults and Certain Other Events. Prompt notice of
(and in any event not later than three (3) Business Days after) (i)
the occurrence of any Event of Default or Potential Default and the
steps, if any, being taken to cure it, (ii) the institution of any
suit, proceeding or investigation which is reasonably expected to have
a material adverse effect on the Borrower, (iii) the incurrence (or
entry into an agreement permitting such incurrence) by the Borrower of
any Indebtedness for borrowed money in excess of $50,000 that ranks
pari passu in right of payment with the Loans or any guarantee of the
Indebtedness of any other person in excess of $50,000 not theretofore
disclosed in Exhibit B attached hereto (as it may be amended from time
to time) and (iv) the occurrence of any event or action that may
reasonably lead to a material adverse change in the Borrower's (1)
financial condition (including, without limitation, any default or
16
event or condition reasonably likely to lead to a default under any
agreement for borrowed money), or (2) current operations; and
(d) Additional. Such additional information, reports or
statements as the Bank may from time to time reasonably request.
7.2 Taxes. Pay and discharge, as the same become due and payable, all
Federal and other material taxes, assessments and governmental charges
assessed upon the Borrower, its income and its properties prior to the date
on which penalties are attached thereto, unless and to the extent only that
such taxes, assessments and governmental charges shall be contested in good
faith and by appropriate proceedings by the Borrower and that the Borrower
or such subsidiary shall have set aside on its books adequate reserves in
accordance with GAAP therefor.
7.3 Insurance. Maintain with financially sound and reputable insurance
companies insurance on all of the Borrower's property in such amounts and
covering such risks as is consistent with sound business practice in the
industry, including coverage for terrorism, to the extent policies without
a terrorism exclusion (or separate terrorism coverage) are reasonably
available and customarily maintained by similarly situated borrowers and
are otherwise available at a commercially reasonable rate, and the Borrower
will furnish to the Bank upon request information as to the insurance
carried.
7.4 Use of Proceeds. Use the proceeds of the Loans for the Ceres
Interest Repurchase and general corporate purposes. The Borrower will not
permit the proceeds of any Loan to be used for the purpose of purchasing or
carrying any "margin stock" (as defined in Regulation U).
7.5 Minimum Members' Equity. At any time, maintain, on a consolidated
basis (measured as of the end of any fiscal quarter on a fiscal year-to-
date basis), minimum Members' Equity of at least $190,000,000 ("Initial
Minimum Members' Equity") as of the fiscal quarter ending December 31,
2001, which amount shall be increased each fiscal quarter thereafter by an
amount equal to 50% of the Borrower's Net Income for the preceding fiscal
quarter; provided, however, that if the Borrower is required to account in
accordance with GAAP for the Ceres Interest Repurchase as a reduction in
capital, the Initial Minimum Members' Equity shall be $160,000,000, and
provided, further, that if the Borrower determines to write-off certain
software related to the Eurex joint venture, the Initial Minimum Members'
Equity shall be reduced by the amount of such write-off up to $30,000,000.
7.6 Funded Debt to Total Capitalization. Not permit the ratio of
Funded Debt to Total Capitalization to exceed 0.45 to 1.
7.7 Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage
Ratio to be less than 1.50 to 1.
17
7.8 Liens. Not create or permit to exist any Lien with respect to any
of its assets now owned or hereafter acquired, except for Liens
(i) for current taxes not delinquent or taxes being contested in good
faith and by appropriate proceedings,
(ii) arising in the ordinary course of business for sums not due or
sums being contested in good faith and by appropriate proceedings, but not
involving any deposits or advances or borrowed money,
(iii) to the extent shown in Exhibit D attached hereto (including
under that certain Security Agreement, dated as of March 30, 2001 from the
Borrower in favor of Hitachi Credit America Corp. ("Hitachi") covering all
obligations of the Borrower to Hitachi under the certain $10,000,000
Promissory Note, dated as of March 30, 2001 (the "Hitachi Loan") and
secured by a lien on various items of equipment more particularly described
therein (the "Equipment") of the Borrower so long as the Borrower shall
pledge such Equipment to the Bank in the event that the Hitachi Loan is
repaid in full prior to the Termination Date).
(iv) arising out of pledges or deposits in the ordinary course of
business in connection with workers' compensation, unemployment insurance,
old age pensions, or other social security or retirement benefits, or
similar legislation or to secure the performance of tenders, leases,
government contracts, performance and return of money bonds and other
similar obligations incurred in the ordinary course of business and not
incurred with respect to obligations for borrowed money or the equivalent;
(v) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
in any material way affect the marketability of the same or interfere with
the use thereof in the business of the Borrower;
(vi) incurred in connection with purchase money security interests,
capital leases and conditional sales with respect to equipment acquired by
the Borrower in the ordinary course of business, provided the Lien attaches
only to the equipment being acquired and the aggregate principal amount of
Indebtedness secured thereby is permitted hereunder;
(vii) created by precautionary filings under the Uniform Commercial
Code by lessors or similar financing parties;
(viii) securing obligations not in excess of $1,000,000 arising as a
result of a judgment or order for the payment of money that does not
constitute an Event of Default hereunder;
18
(ix) arising in connection with other Indebtedness and lease
financings as permitted hereunder; and
(x) Liens in favor of the Bank, if any.
7.9 Indebtedness. Not create, incur or suffer to exist any
Indebtedness, except:
(a) the Loans;
(b) Indebtedness disclosed on Exhibit B;
(c) any Indebtedness arising in the ordinary course of the
Borrower's business not to exceed $500,000 in the aggregate
outstanding at any time.
(d) Indebtedness in respect of any purchase money security
interest or Capital Lease not to exceed $2,000,000 in the aggregate at
any time.
(e) renewals, extensions, refinancings and refundings of
Indebtedness permitted by this Section 7.9; provided, however, that
any such renewal extension, refinancing or refunding is in an
aggregate principal amount not greater than the principal amount of,
and is on terms no less favorable to the Borrower, including as to
weighted average maturity, than the Indebtedness being renewed,
extended, refinanced or refunded.
7.10 Other Agreements. Not enter into any material agreement
containing any provision which would be violated or breached in any
material respect by the performance of the Borrower's obligations
hereunder, under the Note or under any other instrument or document
delivered or to be delivered by the Borrower hereunder or in connection
herewith.
7.11 Change in Organizational Structure. Not change the Borrower's
name, type of organization, jurisdiction of organization or other legal
structure unless the Borrower shall notify the Bank in writing of any such
change and provide the Bank with copies of all amendments and other
organization documents in connection therewith; provided, however, that the
Borrower shall be permitted to demutualize and convert the Borrower's
organization structure into a stock, for-profit corporation in the manner
previously disclosed in writing to the Bank without the Bank's consent.
7.12 CBOT Rule Changes. Not, without the prior written consent of the
Bank, adopt, amend, revoke or rescind any rules of the Borrower (as amended
and in effect on the date hereof, the "CBOT Rules") if such adoption,
amendment, revocation or rescission would have a materially adverse effect
on the Borrower's financial condition, operations, assets, business or
properties or that would affect the legality, validity or enforceability of
this Agreement, the Note or any other document executed in connection
therewith.
19
8. Condition of Lending. The obligation of the Bank to make its Loans is
subject to the following conditions precedent:
8.1 Initial Loan. The making by the Bank of its initial Loan is, in
addition to the conditions precedent specified in Section 8.2, subject to
the condition precedent that the Bank shall have received all of the
following documents, each duly executed and dated the Borrowing Date,
satisfactory in form and substance to the Bank and its counsel:
(a) The Note. The Note of the Borrower payable to the order of
the Bank.
(b) Resolutions. A copy, duly certified by the secretary or an
assistant secretary of the Borrower of the resolutions of its Board of
Directors of its authorization of the borrowings hereunder and the
execution and delivery of this Agreement and the Note, (b) all
documents evidencing other necessary corporate action, reasonably
satisfactory to the Bank, and (c) all approvals or consents, if any,
with respect to this Agreement and the Note.
(c) Ceres Approvals. With respect to any Loans the proceeds of
which are to be used for the Ceres Interest Repurchase, the Borrower
shall provide evidence reasonably satisfactory to the Bank that the
Borrower has obtained (a) the required member approval, (b) a
favorable ruling from the Internal Revenue Service, and (c) approval
of the Commodity Futures Trading Commission.
(d) Consents, etc. Certified copies of all documents evidencing
any other necessary corporate action, consents and governmental
approvals (if any) with respect to this Agreement and the Note.
(e) Opinion of Borrower's Counsel. A written opinion of the
Borrower's counsel substantially in the form of Exhibit F attached
hereto.
(f) Incumbency and Signatures. Certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names of each
officer or other person authorized to sign this Agreement, the Note
and other documents provided for in this Agreement, together with a
sample of the true signature of each such officer or other person (the
Bank may conclusively rely on such certificate until formally advised
by a like certificate of any changes therein).
(g) Organizational Documents. A certified copy of the Articles of
Incorporation and by-laws of the Borrower.
(h) Other. Such other documents as the Bank may reasonably
request.
8.2 All Loans. The making by the Bank of its initial Loan and each
subsequent Loan is subject in each case to the further conditions precedent
that (a) no Event of Default or Potential Default has occurred and is
continuing or will result from the making of such Loan, (b) the
20
representations and warranties of the Borrower contained in Section 6
(except that Section 6.6 shall be deemed to refer to the most recent
Financials of the Borrower) are true and correct as of the Borrowing Date
of such Loan, with the same effect as though made on such Borrowing Date.
Each request for a Loan pursuant to Section 1.3 shall be deemed a
representation to the effect of clauses (a) and (b) above.
9. Events of Default and Their Effect.
9.1 Events of Default. Each of the following shall constitute an
"Event of Default" under this Agreement:
(a) Non-Payment. Failure to pay when due of any principal of or
interest on the Note payable by the Borrower hereunder;
(b) Non-Payment of Other Indebtedness for Borrowed Money. Default
in the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any other Indebtedness for
borrowed money of, or guaranteed by, the Borrower in excess of
$1,000,000 in the aggregate, or default in the performance or
observance of any obligation or condition with respect to any such
Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or to permit the holder or holders
thereof, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed
maturity;
(c) Bankruptcy, Insolvency, etc. The Borrower becomes insolvent
or generally fails to pay, or admits in writing its inability to pay,
debts as they become due; or the Borrower applies for, consents to, or
acquiesces in the appointment of, a trustee. receiver or other
custodian for the Borrower or any of its property, or makes a general
assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver or other
custodian is appointed for the Borrower or for a substantial part of
its property and is not discharged within forty-five (45) days; or any
bankruptcy reorganization' debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution
or liquidation proceeding, is commenced in respect of the Borrower,
and, if such case or proceeding is not commenced by the Borrower, it
is consented to or acquiesced in by the Borrower or remains for forty-
five (45) days undismissed; or the Borrower takes any corporate action
to authorize, or in furtherance of, any of the foregoing;
(d) Non-Compliance with this Agreement. Failure by the Borrower
to comply with or to perform any provision of this Agreement (and not
constituting an Event of Default under any of the preceding provisions
of this Section 9) and continuance of such failure for fifteen (15)
days after the earlier of (i) the date on which Borrower had, or
should have had knowledge of such failure, or (ii) notice thereof to
the Borrower from the Bank; or
(e) Warranties. Any representation or warranty made by or on
behalf of the Borrower herein is breached or is false or misleading in
any material respect, or any schedule, certificate, financing
21
statement, report, notice, or other writing furnished by the Borrower
to the Bank is false or misleading in any material respect on the date
as of which the facts therein set forth are stated or certified.
(f) Trading Suspension. There shall have occurred a suspension or
material limitation in trading generally at the Borrower.
9.2 Effect of Event of Default. If any Event of Default described in
Section 9.1(c) shall occur, the Line of Credit (if it has not theretofore
terminated) shall immediately terminate and the Note shall become
immediately due and payable, all without notice of any kind; and, in the
case of any other Event of Default, the Bank may declare the Line of Credit
(if it has not theretofore terminated) to be terminated and the Note to be
due and payable, whereupon the Line of Credit (if it has not theretofore
terminated) shall immediately terminate and the Note shall become
immediately due and payable, all without notice of any kind. The Bank shall
promptly advise the Borrower of any such declaration, but failure to do so
shall not impair the effect of such declaration. Notwithstanding the
foregoing, the effect as an Event of Default of any event described in this
Section 9 may be waived by the written consent of the Bank.
10. Miscellaneous.
10.1 Waiver; Amendments. No delay on the part of the Bank in the
exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise by it of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any
other right, power or remedy. No amendment, modification or waiver of, or
consent with respect to, any provision of this Agreement or the Note shall
in any event be effective unless the same shall be in writing and signed
and delivered by the Bank and the Borrower, and any such amendment,
modification, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
10.2 Notices. Any communication, demand or notice to be given
hereunder or with respect to the Note will be duly given when delivered in
writing or transmitted by telex or facsimile to a party at its address as
indicated below or as indicated by such party in a notice given under this
Section, or if sent by certified or registered mail shall be deemed
delivered on the third Business Day following its deposit in the United
States mails, if not actually received before such date. A communication,
demand or notice given pursuant to this Section shall be addressed to each
party at its address shown below its signature hereto, or at such other
address as it may, by written notice received by the other parties to this
Agreement, have designated as its address for such purpose.
10.3 Computations. Where the character or amount of any asset or
liability or item of income or expense is required to be or has been
determined, or any consolidation or other accounting computation is
22
required to be or has been made, for the purpose of this Agreement, such
determination or calculation shall be or has been, to the extent applicable
and except as otherwise specified in this Agreement, made in accordance
with GAAP in the United States applied on a basis consistent with those at
the time in effect.
10.4 Transfer of the Note. If the Bank shall transfer its Note, it
shall immediately advise the Borrower of such transfer and use its
reasonable efforts to obtain the Borrower's consent to such transfer;
provided, however, that failure on the part of the Bank to obtain such
consent shall in no way prevent the Bank from making such transfer; and the
Borrower shall be entitled conclusively to assume that no transfer of the
Note has been made unless and until the Borrower shall have received
written notice to the contrary. Each transferee of the Note shall take such
Note subject to the provisions of this Agreement and to any waiver or
consent given or other action taken hereunder, before the receipt by the
Borrower of written notice of such transfer, by each previous holder of the
Note; and, except as expressly otherwise provided in such notice, the Bank
and the Borrower shall be entitled conclusively to assume that the
transferee named in such notice shall thereafter be vested with all rights
and powers under this Agreement of the Bank under the Note.
10.5 Regulation U. The Bank represents that it in good faith is not
relying, either directly or indirectly, upon any stock (as such term is
defined in Regulation U promulgated by the Board of Governors of the
Federal Reserve System) as collateral security for the extension or
maintenance by it of any credit provided for in this Agreement.
10.6 Costs, Expenses and Taxes. The Borrower agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Bank (including the
reasonable fees and out-of-pocket expenses of counsel for the Bank) in
connection with the preparation, execution, delivery and administration of
this Agreement, the Note, and all other instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection
herewith, and all reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees and legal expenses) incurred by the Bank in
connection with the enforcement of this Agreement, the Note, any such other
instruments or documents or any collateral security. The obligations
provided for in this Section 10.6 shall survive any termination of this
Agreement.
10.7 Separability. In case any one or more of the provisions contained
in this Agreement shall be invalid, illegal or unenforceable in any respect
under any law, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
10.8 Successors and Assigns. This Agreement shall be binding upon the
Borrower and the Bank and their respective successors and assigns, and
shall inure to the benefit of the Borrower and the Bank and the respective
23
successors and assigns of the Bank. The meaning of each such term --
"Borrower" or "Bank" -- shall include any such successor or assign.
10.9 Governing Law; Entire Agreement. THIS AGREEMENT AND THE NOTE
SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS. This Agreement and the Note
together constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and supersede any prior Agreements,
written or oral, with respect thereto.
10.10 Counterparts. This Agreement may be executed in counterparts and
by the different parties on separate counterparts (provided that each such
counterpart shall be executed by the Borrower and the Bank) and each such
counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Agreement. When counterparts
executed by both the Borrower and the Bank shall have been lodged with the
Bank, this Agreement shall become effective as of the date hereof, and at
such the Bank shall notify the Borrower.
10.11 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE BANK OR
THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF
THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE BANK'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. EACH PARTY
HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH PARTY HERETO HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE
AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
10.12 Waiver of Jury Trial. THE BANK AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO
24
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE BANK OR THE BORROWER. THE BORROWER
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER
LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE BANK ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER
LOAN DOCUMENT.
10.13 Confidentiality. The Bank shall hold all non-public information
obtained pursuant to the requirements of this Agreement in accordance with
the Bank's customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking practices, it
being understood and agreed by the Borrower that in any event the Bank may
make disclosures (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such information and
instructed to keep such information confidential), (b) subject to the
applicable limitations set forth herein, to the extent requested by any
government authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) in connection
with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights
hereunder, (e) subject to an agreement containing provisions substantially
the same as those of this subsection 10.13, to any eligible transferee of,
or any prospective transferee of, any of its rights or obligations under
this Agreement, (f) with the consent of Borrower, (g) to the extent such
information (i) becomes publicly available other than as a result of a
breach of this subsection 10.13 or (ii) becomes available to the Bank on a
nonconfidential basis from a source other than the Borrower or (h) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires
access to information about the Bank's or its Affiliates' investment
portfolio in connection with ratings issued with respect to the Bank or its
Affiliates; provided that, unless specifically prohibited by applicable law
or court order, the Bank shall notify the Borrower of any request by any
government authority or representative thereof (other than any such request
in connection with any examination of the financial condition of the Bank
by such government authority) for disclosure of any such non-public
information prior to disclosure of such information and shall use its best
efforts to afford the Borrower the opportunity to object to such
disclosure.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BOARD OF TRADE OF THE CITY OF
CHICAGO
By:
-----------------------------------
Name:
------------------------------
Its:
------------------------------
Address: 000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.:
------------------------
LASALLE BANK NATIONAL
ASSOCIATION, a national banking
association
By:
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
26
EXHIBIT A
---------
LINE OF CREDIT NOTE
-------------------
Due: January 15, 2003
$20,000,000.00 Chicago, Illinois, January 15, 2002
On or before January 15, 2003 the undersigned, for value received, promises
to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, in Chicago, Illinois,
TWENTY MILLION DOLLARS ($20,000,000.00) or, if less, the aggregate unpaid
principal amount of all Loans made by the payee to the undersigned pursuant to
the Line of Credit Agreement hereinafter referred to, together with interest as
herein set forth.
The unpaid principal amount hereof from time to time outstanding shall bear
interest from the date hereof at the rate per annum and for the periods set
forth in Section 4 of the Line of Credit Agreement hereinafter referred to,
payable as provided in Section 5 thereof.
Payments of interest are to be made in lawful money of the United States of
America in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, a Line of Credit Agreement dated January 15, 2002 (and,
if amended, all amendments thereto) between the undersigned and the payee, to
which Line of Credit Agreement reference is hereby made for a statement of said
terms and provisions, including those under which this Note may be paid prior to
its due date or its due date accelerated.
In addition to and not in limitation of the foregoing and the provisions of
the Line of Credit Agreement hereinabove referred to, the undersigned further
agrees, subject only to any limitation imposed by applicable law, to pay all
expenses, including reasonable attorneys' fees and legal expenses, incurred by
the holder of this Note in endeavoring to collect any amounts payable hereunder
which are not paid when due, whether by acceleration or otherwise.
This Note is made under, governed by and construed in accordance with the
laws of the State of Illinois.
BOARD OF TRADE OF THE CITY OF
CHICAGO
By:
-----------------------------
Name:
-------------------------
Its:
-------------------------
A-27
EXHIBIT B
---------
INDEBTEDNESS FOR BORROWED MONEY
AND GUARANTEES OF INDEBTEDNESS
------------------------------
[There are no loans that are superior in right of payment.]
The following indebtedness is pari passu:
1. [That certain Promissory Note dated March 30, 2001 from the Borrower in
favor of Hitachi Credit America Corp.]
2. [That certain Note Purchase Agreement dated March 1, 1997 with respect to
$75,000,000 6.81% Senior Notes due March 31, 2007 between the Borrower and
the Purchasers listed therein.]
B-28
EXHIBIT C
---------
PENDING LITIGATION
------------------
C-29
EXHIBIT D
---------
EXISTING LIENS
--------------
1. That certain Security Agreement dated March 30, 2001 between the Borrower
and Hitachi Credit America Corp. with respect to certain Equipment described
therein.
D-30
EXHIBIT E
---------
FORM OF CERTIFICATE OF BORROWER
-------------------------------
[Date]
Xxxxx X. Xxxxx
Senior Vice President
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Line of Credit Agreement dated January 15, 2002 (the "Agreement")
between Board of Trade of the City of Chicago and LaSalle Bank
National Association
Dear Xx. Xxxxx:
This letter accompanies our [describe report and date thereof] (the "Report
Date"). I hereby certify to you that, to the best of my knowledge, as of the
Report Date no Potential Default or Event of Default has occurred and is
continuing.
As of the Report Date:
1. Minimum Members' Equity: $
-------------------
Minimum Required $
-------------------
2. Funded Debt to Total Capitalization
Actual
-------------------
Maximum Allowed 0.45 to 1.00
3. Fixed Charge Coverage Ratio
Actual:
-------------------
Minimum Required:
-------------------
BOARD OF TRADE OF THE CITY OF
CHICAGO
By:
-------------------------------
Name:
--------------------------
Its:
--------------------------
E-31
EXHIBIT F
---------
FORM OF OPINION LETTER
----------------------
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Line of Credit Agreement dated January 15, 2002 (the "Agreement")
between Board of Trade of the City of Chicago
Ladies and Gentlemen:
We are counsel for the Board of Trade of the City of Chicago, Inc. (the
"Company") and have represented the Company in connection with its execution and
delivery of a Line of Credit Agreement among the Company and LaSalle Bank
National Association of even date herewith (the "Line of Credit Agreement"),
providing for Loans in an aggregate principal amount not to exceed $20,000,000.
All capitalized terms used in this opinion shall have the meanings attributed to
them in the Line of Credit Agreement.
We have examined the Company's articles of incorporation, by-laws,
resolutions, the Line of Credit Agreement, the Note and such other matters of
fact and law which we deem necessary in order to render this opinion. Based
upon the foregoing, it is our opinion that:
1. The Company is a not-for-profit corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite authority to conduct its business in Illinois and each other
jurisdiction in which its business is conducted.
2. The execution and delivery of the Line of Credit Agreement and the
Note by the Company and the performance by the Company of the obligations
thereunder have been duly authorized by all necessary corporate action and
proceedings on the part of the Company and will not (a) require any consent of
the Company's members; (b) violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Company or the Company's
articles of incorporation or by-laws or any indenture, instrument or agreement
binding upon the Company; or (c) result in, or require, the creation or
imposition of any Lien pursuant to the provisions of any indenture, instrument
or agreement binding on the Company.
3. The Line of Credit Agreement and the Note have been duly executed and
delivered by the Company and constitute legal, valid and binding obligations of
the Company enforceable in accordance with their terms except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
F-32
affecting the enforcement of creditors' rights generally and subject also to the
availability of equitable remedies if equitable remedies are sought.
4. Exhibit C to the Line of Credit Agreement describes all pending and
threatened material litigation and proceedings against the Company of which we
have knowledge.
5. No approval, authorization, consent, adjudication or order of any
governmental authority, which has not been obtained by the Company, is required
to be obtained by the Company (or any subsidiary) in connection with the
execution and delivery of the Line of Credit Agreement or the Note, the
borrowings under the Line of Credit Agreement or the Note or in connection with
the payment by the Company of the obligations thereunder.
Very truly yours,
------------------------------
F-33