FIRST AMENDMENT to SUBORDINATED NOTE PURCHASE AGREEMENT between USB Capital Funding Corp. (formerly known as Wisconsin Capital Corporation) and East West Bank First Amendment dated as of September 23, 2005 Original Agreement dated as of April 28, 2005
Exhibit
10
FIRST
AMENDMENT
to
SUBORDINATED
NOTE
PURCHASE AGREEMENT
between
USB
Capital Funding Corp.
(formerly
known as Wisconsin Capital Corporation)
and
East
West Bank
First
Amendment dated as of September 23, 2005
Original
Agreement dated as of April 28, 2005
| AMENDMENT PROVISIONS: |
PAGE
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A.
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Amendment
to Certain Provisions of Section
1.1
of
the Original Agreement
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1
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B.
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Amendment
to Section
2.8.1
of
the Original Agreement
|
1
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C.
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Representations
and Warranties
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2
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D.
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Conditions
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2
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E.
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Interest
Rate on First
Amendment Borrowing Tranche
|
3
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F.
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Additional
Terms
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3
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EXHIBITS:
|
EXHIBIT
A - Form of Amended and Restated Subordinated Note
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EXHIBIT
B - Form of Opinion of Borrower’s Counsel
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FIRST
AMENDMENT TO
This
FIRST AMENDMENT TO SUBORDINATED NOTE PURCHASE AGREEMENT
(“First
Amendment”),
dated
as of September 23, 2005, is entered into by and between EAST WEST BANK, a
California state-chartered Federal Reserve member bank (“Borrower”),
and
USB CAPITAL FUNDING CORP. (formerly known as Wisconsin Capital Corporation),
a
Nevada corporation (“Lender”).
R E C I T A L S
:
A. The
parties hereto have entered into that certain Subordinated Note Purchase
Agreement, dated as of April 28, 2005, as previously amended, restated,
supplemented or modified from time to time (the “Original
Agreement”).
B. The
parties hereto desire to amend and modify the Original Agreement in accordance
with the terms and subject to the conditions set forth in this First Amendment.
As amended and modified by this First Amendment, the Original Agreement may
be
referred to as the “Agreement.”
C. The
parties desire to amend the terms of the Original Agreement (i) to extend the
Maturity Date to September 23, 2015, (ii) to increase the Subordinated Debt
Amount from $50,000,000 to $75,000,000, and (iii) to make such other
modifications consistent with the foregoing as are reflected in this First
Amendment. The parties agree to undertake such modifications in accordance
with
the terms, subject to the conditions, and in reliance upon the recitals,
representations, warranties and covenants set forth herein, in the Agreement
and
in the other Transaction Documents, irrespective of whether entered into or
delivered on or after April 28, 2005.
D. Capitalized
terms used but not otherwise defined in this First Amendment shall have the
meanings respectively ascribed to them in the Original Agreement.
NOW,
THEREFORE,
in
consideration of the mutual representations, warranties, covenants, and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
A
G R E E M E N T :
A. Amendment
to Certain Provisions of Section 1.1 of the Original
Agreement.
(i) The
term
“Maturity Date” is hereby deleted from Section
1.1
of the
Original
Agreement
and replaced in its entirety with the following:
““Maturity
Date”
means
September 23, 2015.”
(ii) The
term
“Subordinated Debt Amount” is hereby deleted from Section
1.1
of the
Initial Agreement and replaced in its entirety with the following:
““Subordinated
Debt Amount”
means
$75,000,000.”
B. Amendment
to Section 2.8.1 of the Original Agreement.
Section
2.8.1
of the
Original
Agreement
is hereby deleted and replaced in its entirety with the following:
“2.8.1 Prepayment.
Subject
to Section
2.7.4
hereof
(a) if the Facility no longer is eligible to qualify as Tier 2 Capital of the
Borrower or (b) at any time after September 23, 2010, Borrower may, upon at
least one Business Day’s notice to Lender, prepay, without penalty, all or a
portion of the principal amount outstanding under the Subordinated Debt in
a
minimum aggregate amount of $5,000,000 or any larger integral multiple of
$5,000,000 by
paying
the principal amount to be prepaid, together with unpaid accrued interest
thereon to the date of prepayment.”
1
C. Representations
and Warranties.
Borrower hereby represents and warrants to the Lender as of the date hereof
as
follows:
(i) No
Event
of Default has occurred and is continuing (and no Event of Default would result
from the amendments contemplated hereby, or from the giving of notice, the
passage of time or both).
(ii) The
execution, delivery and performance by the Borrower of this First Amendment
have
been duly authorized by all necessary corporate and other action and do not
and
will not require any registration with, consent or approval of, or notice to
or
action by any Person (including any Governmental Agency) in order to be
effective and enforceable.
(iii) This
First Amendment and the other Transaction Documents (as amended by this First
Amendment) constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective
terms.
(iv) All
representations and warranties of the Borrower in the Original Agreement are
true and correct, except, for the purposes of this First Amendment only, all
references in Section
4.4.1
of the
Original Agreement to the term “Borrower
Financial Statements”
shall
be deemed to refer to “regulatory financial statements on the appropriate FFIEC
form filed by Borrower for the 12 months ended December 31, 2004 and for the
six
months ended June 30, 2005.”
(v) Borrower’s
obligations under the Agreement and under the other Transaction Documents are
not subject to any defense, counterclaim, set-off, right to recoupment,
abatement or other claim.
D. Conditions.
Notwithstanding anything to the contrary
contained elsewhere in the Agreement, the obligation of Lender to extend the
Maturity Date, increase the Subordinated Debt Amount and otherwise modify the
Original Agreement as contemplated by this First Amendment shall be subject
to
the performance by the Borrower prior to the date on which this First Amendment
is executed (the “Amendment
Closing Date”)
of all
of its agreements theretofore to be performed under the Agreement and to the
satisfaction of the following conditions precedent. The obligation to make
any
further disbursement of proceeds under the Facility is, and shall remain,
subject to the conditions precedent in the Original Agreement and to the receipt
by Lender of all the following in form and substance satisfactory to Lender
and
its counsel, and, where appropriate, duly executed and dated the Amendment
Closing Date:
(i) a
certificate of good standing of Borrower, certified by the appropriate
governmental official in its jurisdiction of incorporation
and dated within the five business days preceding the date hereof;
(ii) copies,
certified by the Secretary or Assistant Secretary of Borrower, of the (a)
resolutions duly adopted by the board of directors of Borrower authorizing
the
execution, delivery and performance of this First Amendment and the other
documents to be delivered by Borrower pursuant to this First Amendment (the
“Amendment-Related
Documents”),
and
(b) the Bylaws of Borrower as currently in effect;
(iii) an
amended and restated Subordinated Note, substantially in the form of
Exhibit
A
attached
hereto;
2
(iv) a
written
opinion of counsel for Borrower, addressed
to Lender, substantially in the form of Exhibit
B
attached
hereto; and
(v) a
permit
issued by the CCFI authorizing Borrower to sell the additional $25,000,000
of
Subordinated Debt contemplated by this First Amendment.
E. Interest
Rate on First Amendment Borrowing
Tranche.
The
currently outstanding $50,000,000 LIBO Rate Tranche bears interest at a LIBO
Rate that corresponds to a LIBOR Period that expires on October 31, 2005. The
additional $25,000,000 Borrowing Tranche to be funded as of the date of this
First Amendment (the “First
Amendment Borrowing Tranche”)
will
bear interest per annum at a fixed rate equal to 4.975%. The First Amendment
Borrowing Tranche will expire on October 31, 2005.
F. Additional
Terms.
(i) Acknowledgment
of Indebtedness under Agreement.
Borrower acknowledges and confirms that, as of the date hereof, Borrower is
indebted to Lender, without defense, setoff, or counterclaim, in the aggregate
principal amount of Fifty Million and 00/100 Dollars ($50,000,000) under the
Subordinated Debt.
(ii) The
Agreement.
All
references in the Original Agreement to the term “Agreement” shall be deemed to
refer to the Agreement referenced in this First Amendment.
(iii) First
Amendment and Original Agreement
to be Read Together.
This
First Amendment supplements and is hereby made a part of the Original Agreement,
and the Initial Agreement and this First Amendment shall from and after the
date
hereof be read together and shall constitute the Agreement. Except as otherwise
set forth herein, the Original Agreement shall remain in full force and
effect.
(iv) Transaction
Documents.
The
term “Transaction Documents,” as used in the Agreement, shall from and after the
date hereof include the Amendment-Related Documents.
(v) Counterparts.
This
First Amendment may be executed by facsimile in one or more counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same document.
(vi) Acknowledgments.
Borrower
acknowledges that (i) it has been advised by counsel of its choice with respect
to this First Amendment, the Transaction Documents and the transactions
contemplated thereby, (ii) any waiver of Borrower set forth herein has been
knowingly and voluntarily made, and (iii) the obligations of Lender hereunder
shall be strictly construed and shall be expressly subject to Borrower’s
compliance in all respects with the terms and conditions of the
Agreement.
(vii) Notices.
Pursuant to Section
9.8
of the
Agreement, notices to Lender shall be sent to “USB Capital Funding Corp.”
instead of “Wisconsin Capital Corporation.” The addresses for Lender set forth
in Section
9.8
of the
Agreement are otherwise unchanged.
[Remainder
of Page Intentionally Left Blank]
3
IN
WITNESS WHEREOF, Borrower and Lender have executed this First Amendment as
of
the date first written above.
| EAST WEST BANK | ||
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| By: | ||
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Name: Xxxxx
X. Xxxx
Title: Executive
Vice President and Chief Financial
Officer
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| USB CAPITAL FUNDING CORP. (formerly known as Wisconsin Capital Corporation) | ||
| |
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| By: | ||
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Name: Xxxxx
X. Xxxxxxx
Title: Vice
President
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||
S
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1
EXHIBIT
A
FORM
OF
AMENDED AND RESTATED SUBORDINATED NOTE
THIS
SUBORDINATED NOTE IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED
BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY FEDERAL
AGENCY.
| $75,000,000.00 |
Milwaukee,
Wisconsin
Original
Note Date: April 28, 2005
Restatement
Date: September 23, 2005
|
FOR
VALUE RECEIVED,
the
undersigned, EAST WEST BANK, a California state-chartered Federal Reserve member
bank (“Borrower”),
hereby promises to pay to the order of USB CAPITAL FUNDING CORP. (formerly
known
as Wisconsin Capital Corporation), a Nevada corporation, or any holder hereof
from time to time (“Lender”),
at
such place as may be designated in writing by Lender, the principal sum of
SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($75,000,000.00) (or so much thereof
that has been advanced and remains outstanding) with interest thereon as
hereinafter provided. This Subordinated Note (this “Subordinated
Note”) is
issued
pursuant to the terms of that certain Subordinated Note Purchase Agreement
of
even date herewith by and between Borrower and Lender (as may be amended,
restated, supplemented or modified from time to time, the “Agreement”).
All
capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Agreement.
This
Subordinated Note represents a continuation of the indebtedness evidenced by
that certain Subordinated Note dated April 28, 2005 made by Borrower to the
order of Lender in the principal amount of $50,000,000, which Subordinated
Note
is amended, restated and replaced by this Subordinated Note. This Subordinated
Note does not constitute a novation, discharge or satisfaction of the
Subordinated Note replaced hereby or of the indebtedness evidenced by said
Subordinated Note.
All
accrued interest and unpaid principal and other amounts due and payable under
this Subordinated Note shall be paid in full on or before the Maturity Date.
The
outstanding unpaid principal balance of this Subordinated Note shall be payable
in one installment on the Maturity Date. The unpaid principal amount outstanding
under this Subordinated Note from time to time shall bear interest before
maturity in accordance with the Agreement. Under certain circumstances as
provided in the Agreement, overdue interest payments under this Subordinated
Note shall bear interest from the due date thereof until paid at a daily rate
equal to the Default Rate.
Whenever
any payment to be made under this Subordinated Note shall be due on a day that
is not a Business Day, such payment shall be made on the next succeeding
Business Day. There shall be no penalties or other charges payable by Borrower
to Lender hereunder other than those payments described in this Subordinated
Note or in the Agreement. Borrower may prepay all or, from time to time, part
of
the outstanding unpaid principal balance under this Subordinated Note in
accordance with Section
2.8.1
of the
Agreement.
This
Subordinated Note is not secured by any assets of Borrower. No payment shall
be
made at any time on account of the principal hereof, unless following such
payment the sum of (a) the shareholders’ equity of Borrower and (b) the
aggregate principal amount thereafter outstanding under this Subordinated Note
and all other capital notes and debentures of Borrower shall equal or exceed
the
sum of (i) $534,029,000 (which represents the shareholders’ equity of Borrower
at the date of the original issue of this Subordinated Note) and (ii)
$75,000,000 (which represents the principal amount of all capital notes and
debentures, including this Subordinated Note, at the date of original issue
of
this Subordinated Note), except as may be otherwise authorized by the
CCFI.
A
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1
So
long
as any portion of the unpaid principal of this Subordinated Note is deemed
by
the FRB to be Tier 2 Capital of Borrower in accordance with the rules and
regulations of the FRB applicable to the capital status of the subordinated
debt, the rights of Lender to the principal sum hereunder or any part hereof
and
to any accrued interest thereon shall remain subject and subordinate to the
claims of general creditors and depositors of Borrower (collectively,
“Senior
Claims”),
but
hereby expressly excluding claims relating to Other Subordinated Indebtedness
(as defined below) with respect to which the rights of Lender are senior in
all
respects. Upon dissolution or liquidation of Borrower, no payment of principal,
interest or premium (including post-default interest) shall be due and payable
under the terms of this Subordinated Note until all Senior Claims (which
expressly exclude claims relating to the Other Subordinated Indebtedness) shall
have been paid in full. If this Subordinated Note ceases to be deemed to be
Tier
2 Capital of Borrower in accordance with the rules and regulations of the FRB
applicable to the capital status of the subordinated debt, other than due to
the
limitations imposed by the second sentence of 12 C.F.R §250.166(e), which limits
the capital treatment of subordinated debt during the five years immediately
preceding the maturity date of the subordinated debt, Borrower shall:
immediately notify Lender; and immediately upon request of Lender execute and
deliver all such agreements (including without limitation pledge agreements
and
replacement notes) as Lender may request in order to restructure the obligation
evidenced hereby as a senior obligation of Borrower with the same interest
rate
and Maturity Date as is provided in the Agreement with respect to this
Subordinated Note. If Borrower fails to execute such agreements as required
by
Lender within 30 days of Lender’s request, such failure shall be deemed to be an
Event of Default under Section
8.1.1
of the
Agreement.
As
used
herein, “Other
Subordinated Indebtedness”
shall
mean indebtedness that is subordinated to the interests of the Borrower’s
depositors or is otherwise intended to qualify as regulatory capital of Borrower
in accordance with the rules and regulations of the FRB.
If
an
Event of Default shall occur, Lender shall have the rights set forth in
Section
8.1.2 of
the
Agreement.
If
any
attorney is engaged by Lender to enforce or defend any provision of this
Subordinated Note or any of the other Transaction Documents, or as a consequence
of any Event of Default, with or without the filing of any legal action or
proceeding, then Borrower shall pay to Lender immediately upon demand all
attorneys’ fees and expenses, together with interest thereon from the date of
such demand until paid at the rate of interest applicable to the principal
balance owing hereunder as if such unpaid attorneys’ fees and expenses had been
added to the principal.
No
previous waiver and no failure or delay by Lender in acting with respect to
the
terms of this Subordinated Note or any of the other Transaction Documents shall
constitute a waiver of any breach, default or failure of condition under this
Subordinated Note, the Agreement or any of the other Transaction Documents
or
the obligations secured thereby. A waiver of any term of this Subordinated
Note
or any of the other Transaction Documents or of any of the obligations secured
thereby must be made in writing and shall be limited to the express written
terms of such waiver. In the event of any inconsistencies between the terms
of
this Subordinated Note and the terms of any other document related to the
Facility evidenced by this Subordinated Note, the terms of this Subordinated
Note shall prevail.
Except
as
otherwise provided in the Agreement, Borrower expressly waives present-ment,
demand, notice of dishonor, notice of default or delinquency, notice of
acceleration, notice of protest and nonpayment, notice of costs, expenses or
losses and interest thereon, notice of late charges, and diligence in taking
any
action to collect any sums owing under this Subordinated Note. In addition,
Borrower expressly agrees that this Subordinated Note and any payment coming
due
hereunder may be extended from time to time without in any way affecting the
liability of any such party hereunder.
A
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2
Time
is
of the essence with respect to every provision hereof. This Subordinated Note
shall be construed and enforced in accordance with the laws of the State of
California, except to the extent that federal laws preempt the laws of the
State
of California, and all persons and entities in any manner obligated under this
Subordinated Note consent to the jurisdiction of any federal or State court
within Los Angeles, California having proper venue and also consent to service
of process by any means authorized by California or Federal law. Any reference
contained herein to attorneys’ fees and expenses shall be deemed to be to
reasonable fees and expenses and to include all reasonable fees and expenses
of
in-house or staff attorneys and the reasonable fees and expenses of any other
experts or consultants.
All
agreements between Borrower and Lender (including, without limitation, this
Subordinated Note and the Agreement, and any other documents securing all or
any
part of the indebtedness evidenced hereby) are expressly limited so that in
no
event whatsoever shall the amount paid or agreed to be paid to Lender exceed
the
highest lawful rate of interest permissible under applicable law. If, from
any
circumstances whatsoever, fulfillment of any provision hereof, the Agreement
or
any other documents securing all or any part of the indebtedness evidenced
hereby at the time performance of such provisions shall be due, shall involve
exceeding the limit of validity prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso
facto,
the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under such applicable laws, and if, for any reason
whatsoever, Lender shall ever receive as interest an amount which would be
deemed unlawful under such applicable law, such interest shall be automatically
applied to the payment of the principal of this Subordinated Note (whether
or
not then due and payable) and not to the payment of interest or refunded to
Borrower if such principal has been paid in full.
Lender
may sell, assign, pledge or otherwise transfer or encumber any or all of its
interest under this Subordinated Note at any time and from time to time;
provided, however, that the prior written consent of Borrower, not to be
unreasonably withheld or delayed, is required for any sale or assignment of
this
Subordinated Note. In the event of a transfer, all terms and conditions of
this
Subordinated Note shall be binding upon and inure to the benefit of the
transferee after such transfer.
Upon
receipt of notice from Lender advising Borrower of the loss, theft, destruction
or mutilation of this Subordinated Note, Borrower shall, execute and deliver
in
lieu thereof a new debenture in principal amount equal to the unpaid principal
amount of such lost, stolen, destroyed or mutilated debenture, dated the date
to
which interest has been paid on such lost, stolen, destroyed or mutilated
Subordinated Note.
Unless
otherwise provided in the Agreement, all payments on account of the indebtedness
evidenced by this Subordinated Note shall be first applied to the payment of
costs and expenses of Lender which are due and payable, then to past-due
interest on the unpaid principal balance and the remainder to
principal.
Any
notice which either party hereto may be required or may desire to give hereunder
shall be governed by the notice provisions of the Agreement.
A
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3
BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION
WITH
THIS SUBORDINATED NOTE OR ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY OTHER
STATEMENTS OR ACTIONS OF BORROWER OR LENDER. BORROWER ACKNOWLEDGES THAT IT
HAS
BEEN REPRESENTED IN THE SIGNING OF THIS SUBORDINATED NOTE AND IN THE MAKING
OF
THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND
THAT
IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER
ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS
OF THIS WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWER’S
COUNSEL AND IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THE TRANSACTION
DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF THE
TRANSACTION DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN
WITNESS WHEREOF,
the
undersigned has executed this Subordinated Note or caused this Subordinated
Note
to be executed by its duly authorized representative as of the date first above
written.
| EAST WEST BANK | ||
| |
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| By: | ||
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||
|
Name:
Xxxxx X. Xxxx
Title:
Executive Vice President and Chief Financial
Officer
|
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A
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4
EXHIBIT
B
FORM
OF
OPINION OF BORROWER’S COUNSEL
September
,
2005
USB
Capital Funding Corp.
c/o
U.S.
Bank National Association
000
Xxxx
Xxxxxxxxx Xxxxxx
0xx
Xxxxx
- Xxxxxxxxx Level
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn: Correspondent
Banking Division
Re: Restated
Subordinated Note Issued by East West Bank
Ladies
and Gentlemen:
We
have
served as counsel to East West Bank (“Borrower”),
a
California state-chartered Federal Reserve member bank, in connection with
the
execution and delivery of that certain First Amendment to Subordinated Note
Purchase Agreement (“First
Amendment”)
dated
as of the date hereof (the “First
Amendment”)
by and
between Borrower and USB Capital Funding Corp. (formerly known as Wisconsin
Capital Corporation), a Nevada corporation (“Lender”).
This
opinion is being delivered to you pursuant to Section
C(iv)
of the
First Amendment. Capitalized terms used herein and otherwise undefined shall
have the meanings given them in that certain Subordinated Note Purchase
Agreement, dated as of April 28, 2005, by and between Borrower and Lender,
as
amended, supplemented, modified and restated from time to time, including by
the
First Amendment (the “Purchase
Agreement”).
In
order
to render the opinions expressed herein, we have examined the following
(collectively, the “Financing
Documents”):
a. the
executed Purchase Agreement, Amendment-Related Documents and the other
Transaction Documents; and
b. such
other documents, instruments, writings and agreements as we deemed
appropriate.
In
our
examination of the Financing Documents, we have assumed the genuineness of
all
signatures, the authenticity of all documents submitted to us as originals,
the
conformity of all copies submitted to us with the originals to be delivered
and
the due authorization, execution and delivery by each party to such documents
(other than Borrower).
Based
on
the foregoing and subject to the qualifications set forth in this letter, it
is
our opinion that:
1. Borrower
is a state-chartered Federal Reserve member bank, duly organized, validly
existing and in good standing under the laws of the State of California. The
deposit accounts of Borrower are insured by the FDIC. Borrower has the requisite
power and authority, corporate or otherwise, to conduct its business as it
has
been and is now being conducted. The authorized capital stock of Borrower is
as
stated in the Purchase Agreement and such stock is validly issued and
outstanding, fully paid and non-assessable, and is owned in its entirety,
beneficially and of record by Bancorp.
2. Provided
that Lender is an accredited investor within the meaning of Regulation D as
promulgated under the Securities Act of 1933, as amended (the “Act”),
it is
not necessary in conjunction with the issuance of the Subordinated Note as
of
the date hereof, to register the Subordinated Note under the Act or the laws
of
the State of California.
B
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1
USB
Capital Funding Corp.
September
___, 2005
Page
2
3. No
order,
permission, consent or approval of any federal or state commission, board
or
regulatory authority is required for the execution and delivery or performance
by Borrower of the Amendment Related Documents.
4. Except
as
disclosed in the Transaction Documents, there are no actions, suits,
investigations, or proceedings pending, or to our knowledge, threatened against
or affecting Borrower or any Subsidiary, or the business or properties of
Borrower or any Subsidiary, or before or by any Governmental Agency or any
court, arbitrator or grand jury, which can reasonably be expected to result
in
any material adverse change in business, operations or properties or assets
or
in the condition, financial or otherwise, of Borrower or any Subsidiary, or
in
the ability of Borrower or any Subsidiary to perform under the Transaction
Documents. None of Borrower or any Subsidiary is, to our knowledge, in default
with respect to any judgment, order, writ, injunction, decree, demand, rule
or
regulation of any court, arbitrator, grand jury, or of any Governmental Agency,
default under which might have consequences which would materially and adversely
affect the business, properties or assets of the condition, financial or
otherwise, of Borrower or any Subsidiary.
5. There
is
no default by Borrower or any Subsidiary under any order, writ, injunction
or
decree of any court, any applicable law, instrumentality, any contract, lease,
agreement, instrument or commitment to which any of them is a party or bound,
which has or would have a material adverse effect upon the condition, financial
or otherwise, of Borrower, or any Subsidiary or their ability to perform under
the Transaction Documents.
6. To
our
knowledge, no proceeds of the Facility will be used to purchase or carry any
margin stock or to extend credit to others for purposes of purchasing or
carrying margin stock.
7. The
execution, delivery and performance by Borrower of the Amendment-Related
Documents (a) are within Borrower’s corporate powers, (b) have been duly
authorized by all necessary corporate action of Borrower, (c) do not contravene
(i) Borrower’s articles of association or by-laws or (ii) any law or contractual
restriction (including, without limitation, any restriction set forth in any
indenture) affecting Borrower or any Subsidiary and (d) do not result in the
creation of any lien or other encumbrance upon or with respect to any of the
assets or property of Borrower or any Subsidiary.
8. The
Amendment-Related Documents are legally valid and binding obligations of
Borrower and are enforceable against it in accordance with their respective
terms, except as such enforceability may be limiting by bankruptcy, insolvency,
reorganization, moratorium, or other laws relating to or limiting creditors’
rights or equitable principles generally.
Very
truly yours,
B
-
2
