Loan Account Number Branch Account T C FA 22J 16341 15 26E Pledge Account Number Branch Account T C FA 22J 16341 15 26E Branch Account T C FA Branch Account T C FA Branch Account T C FA Branch Account T C FA Branch Account T C FA
Exhibit 99.1
| Loan Account Number | |||||||||||||
| Branch | Account | T | C | FA | |||||||||
22J |
16341 | 15 | 26E | ||||||||||
| Pledge Account Number | |||||||||||||
| Branch | Account | T | C | FA | |||||||||
22J |
16341 | 15 | 26E | ||||||||||
| Branch | Account | T | C | XX | |||||||||
| Xxxxxx | Account | T | C | XX | |||||||||
| Xxxxxx | Account | T | C | XX | |||||||||
| Xxxxxx | Account | T | C | XX | |||||||||
| Xxxxxx | Account | T | C | FA | |||||||||
(If additional pledge accounts are required, please indicate account numbers on page 1.1.)
EXPRESS CREDITLINE
LOAN AGREEMENT
LOAN AGREEMENT
This Express CreditLine Revolving Loan Agreement (“Agreement”) is made between Citigroup
Global Markets Inc. (“SB”) and the undersigned (“Client”) to set forth the terms and conditions
that will govern advances made to Client pursuant to a revolving credit facility (“Loan Facility”)
that SB establishes for Client for a purpose other than purchasing, carrying or trading in
securities, or reducing or retiring indebtedness incurred to purchase, carry or trade in
securities. This Agreement will not become effective and binding upon SB until it has been
executed by Client and accepted by SB in its offices in New York.
1)(a) Subject to the terms and conditions of this Agreement, SB agrees to make one or more
extensions of credit to Client from time to time in an aggregate principal amount which shall not
at any time exceed one of the following amounts which shall be agreed upon by the parties; (i) the
sum of the loanable values (“Loanable Values”) of each class of eligible securities contained in
Client’s SB account[s], computed as of the close of the New York Stock Exchange (“NYSE”) trading
day immediately preceding the NYSE trading day on which an extension of credit is made, or (ii) a
specific dollar amount selected by Client and approved by SB (“Loan Limit”). The initial Loan
Limit selected by Client and agreed upon by SB shall be indicated in Schedule “A” to this
Agreement. The Loan Limit must equal $25,001 or such greater amount as SB determines in its sole
discretion. Client also understands and agrees that SB may reduce the Loan Limit in its sole
discretion and at any time. Each extension of credit shall be referred to in this Agreement as an
“Express CreditLine Advance” and shall in each instance only be made for a purpose other than
purchasing, carrying or trading in securities, or reducing or retiring indebtedness incurred to
purchase, carry or trade in securities. Express CreditLine Advances will be made in a good-faith
account established pursuant to Federal Reserve Board Regulation T (“Express CreditLine Account”)
pursuant to procedures prescribed by SB. Client understands that SB will not in any event be
required to make any Express CreditLine Advance to Client unless the Collateral (as defined in
Section 6(a) of this Agreement) is acceptable to SB. If Client’s obligation to repay one or more
Express CreditLine Advances (and accrued interest thereon) is guaranteed by a person or entity
that is not a party to this Agreement, and the guarantor pledges securities in the guarantor’s SB
account[s] as security for the guaranty, Client acknowledges that such securities must, at all
times, be acceptable to SB..
(b) Client understands and agrees that SB may, in its sole discretion, obtain reports from, and
provide information to, other persons concerning Client’s credit standing and business conduct. SB
may ask credit-reporting agencies for consumer reports of Client’s credit history. Upon Client’s
request, SB will inform Client of the name and address of the consumer reporting agency or agencies
that furnish such consumer reports to SB.
2)(a) Subject to the provisions of this Agreement, Client may obtain an Express CreditLine Advance
at one or more times hereunder (subject to Client’s Loan Limit) by: (i) writing a check drawn on
Client’s FMA Account at SB (“Client FMA Check”), (ii) requesting SB to issue a branch check
(“Branch Check”) payable to Client in the amount of the Express CreditLine Advance, (iii) requesting SB to wire-transfer Federal funds
in the amount of the Express CreditLine Advance to a bank account in Client’s name, (iv)
requesting SB to effect an automatic transfer of funds (“ACH”) to a pre-enrolled bank account in
Client’s name, (v) using Client’s debit card (“Card”) made available by SB, or (vi) any other
method agreed upon by SB and Client. If Client uses any of the foregoing methods to access his/her
FMA Account and there is an insufficient amount of cash or cash equivalents in that account to
honor the request for a debit, an Express CreditLine Advance will be made to Client to place
sufficient funds in his/her SB FMA Account. Client understands and agrees that all Express
CreditLine Advances are subject during the term of this Agreement to his/her loan Limit.
(b) In the event Client seeks an Express CreditLine Advance hereunder by issuing a Client FMA
Check or using the Card which if honored would increase Client’s outstanding principal balance
under the Loan Facility above Client’s Loan Limit, SB may without notice to Client refuse to honor
Client’s request for such Express CreditLine Advance and inform any person presenting the Client FMA Check or requesting
authorization for use of the Card that it was not paid or honoured due to insufficient funds or for any
other reason.
3) (a) SB shall charge Client interest on the aggregate principal amount of Express CreditLine
Advances outstanding, if any. Such interest will be computed in the same manner as that set forth
for securities margin accounts in the pamphlet prepared by SB entitled “Important New Account
Information” (hereafter referred to as “New Account Document”), which may be amended from time to
time and which amendment shall become binding upon written notice to Client. Client hereby
acknowledges receipt of the New Account Document. Interest will be payable monthly. As provided in
Xxxxxxxxx 0, XX may in its sole discretion require that all interest be paid in cash and/or shares
of a money market fund in Client’s Express CreditLine Account. If SB elects not to impose this
requirement, and if (i) a sufficient amount of cash or money market fund shares is not available in
Client’s Express CreditLine Account to pay the monthly interest amount, or if Client elects not to
make interest payments from the Express CreditLine Account, and (ii) sufficient Collateral (as
hereafter defined) acceptable to SB is in SB’s possession, the interest due shall be added to
Client’s outstanding principal balance and thereafter interest shall accrue on such amount until
Client’s outstanding balance under the Loan Facility has been repaid in full, whether before or
after demand or termination of this Agreement. Client understands that by adding interest to the
outstanding principal balance of Client’s Express CreditLine Advances, the amount of additional
Express CreditLine Advances Client may obtain shall be proportionately reduced.
(b) Client understands that SB may pay a portion of the interest that it receives to Clients’
Financial Advisor. SB may also charge Client, to the extent permitted by applicable law, fees for
establishing and/or servicing the Loan Facility.
(c) In no event shall the total interest and fees charged under this Agreement exceed
| CPI# 1120 | ||||
| 4725B (12/2007) page 1 of 7 | Xxxxx Xxxxxx is a division and service xxxx of Citigroup Global Markets Inc. | |||
the maximum interest rate or total fees permitted by law. In the event any excess interest or
fees are collected, the same shall be refunded or credited to Client.
4) Fixed Rate Advances or Conversions
(a) For each Express CreditLine Advance as described in the Agreement, Client may select an
interest rate that is fixed for a specific period of time. Client may also convert a portion of
the Express CreditLine balance from a variable rate to a fixed rate of interest for a specific
period of time. For purposes of this Agreement, except where specifically noted, a balance
conversion will also be considered an Express CreditLine Advance. The fixed interest rate will be
based on the one-, three-, six- or twelve-month London InterBank Offered Rate (“LIBOR”) as well as
the 2-, 3-, 4-, and 5-year LIBOR SWAP index, as selected by Client, plus a spread. Client may lock
in a fixed interest rate for one, three, six or twelve months or 2, 3, 4, or 5 years when Client
requests an Express CreditLine Advance. The term of the fixed interest rate will correspond to the
LIBOR rate selected by Client, (For example, if Client selects an interest rate based on six-month
LIBOR, the rate will be fixed for six months even though six-month LIBOR may change over that
six-month period.) The fixed rate of interest will be based on the applicable LIBOR as published
in The Wall Street Journal “Money Rates” lable two business days after the date the Express
CreditLine Advance is requested. Client may confirm the LIBOR rates and spreads in effect on any
day by calling Client’s Financial Advisor. Client must request a fixed interest rate Express
CreditLine Advance by contacting Client’s Financial Advisor.
(b) Client may obtain a fixed rate Express CreditLine Advance (other than a balance conversion)
only by (i) requesting SB to issue a Branch Check payable to Client in the amount of the Express
CreditLine Advance or (ii) requesting SB to wire-transfer federal funds in the amount of the
Express CreditLine Advance to a bank account in the Client’s name, Client may not have more than
nine fixed rate Express CreditLine Advances outstanding at any one time.
(c) At the end of the selected one-, three-, six- or twelve-month term, or 2-, 3-, 4-, or 5-year
term. Client may pay the Express CreditLine Advance in full, or renew the fixed interest rate for
the same or a different term based on the LIBOR rates in effect on the first business day of the
renewal term. Client must select a renewal term no more than 30 days prior to the end of the fixed
rate term. If Client does not select a renewal term, the Express CreditLine Advance will be
subject to the variable interest rate as described in Paragraph (3)(a) of the Agreement.
(d) In the event Client pays a fixed rate Express CreditLine Advance, in whole or in part, prior
to the expiration of the selected maturity term, or requests that the Advance be converted to a
variable rate of interest, a “breakage fee” will be charged to Client. SB may, in its sole
discretion, debit Client’s Express CreditLine Account for the amount of the breakage fee. Interest
will accrue on the debited amount at a variable interest rate as described in Paragraph (3)(a) of
this Agreement until the amount is paid in full. The breakage fee will be determined as follows:
SB will compare the original LIBOR rate selected by Client (rate “A”) to the current LIBOR rate as
of the Prepayment Effective Date (rate “B”). If A is greater than B, SB will calculate the
breakage see by multiplying the difference between rates A and B by the total amount of the
Advance, times the remainder of the maturity term. The remainder of the maturity term will be
computed on a 360-day year basis from the Prepayment Effective Date to the end of the maturity
term. The Prepayment Effective Date will be the date Client makes the prepayment or requests that
the Advance be converted to a variable rate of interest. If the prepayment or request occurs after
3:00 p.m. eastern time or on a non-business day, the Prepayment Effective Date will be the next
business day. The minimum breakage fee is $500. If A is less than or equal to B, a breakage fee of
$500 will be charged.
(e) SB reserves the right in its sole discretion to stop offering fixed rate advances. If fixed
rate advances are discontinued, Client may no longer select a fixed interest rate for any new
Express CreditLine Advance. However, the fixed interest rate on any existing Express CreditLine
Advance will not be affected, except that on the interest maturity date, unless paid in full, the
Express CreditLine Advance will be subject to the variable interest rate as described in Paragraph
(3)(a) of the Agreement. The fixing of interest for any period of time shall be without prejudice
to SB’s rights to demand payment of the Loan Facility at any time pursuant to Paragraph 5 hereof.
5) Client agrees to pay on demand any balance owing with respect to Client’s Loan Facility,
including interest, fees and any costs of collection (Including reasonable attorneys’ fees, if
any). Client understands that SB may demand full or partial payment of any balance outstanding
under the Loan Facility at its sole option and without cause at any time, and that Express
CreditLine Advances under the loan Facility are not for any specific term or duration. Client agrees that at the sole
option of SB, all payments received in respect of any Collateral in Client’s Express CreditLine
Account, including interest, dividends, premiums and principal; all proceeds from any Collateral
in Client’s Express CreditLine Account that is liquidated for any reason; and all deposits or
other transfers into Client’s Express CreditLine Account may be applied in SB’s sole discretion,
first to repay any interest accrued with respect to Client’s Loan Facility (whether or not such
interest has been added to the principal amount of the Loan Facility outstanding), and then to
any other amounts outstanding or otherwise payable to SB under the Loan Facility. In its sole
discretion, SB may require Client to maintain sufficient shares in a money market fund in
Client’s Express CreditLine Account to pay all interest that accrues and which is not paid
through the application of all payments received in respect of any Collateral in Client’s Express
CreditLine Account, all proceeds from any Collateral and all deposits or other transfers into
Client’s Express CreditLine Account. As necessary, SB may, without prior notice to Client, debit
the money market fund in Client’s Express CreditLine Account in such amount as is necessary to
pay such excess interest as it accrues. Any amount outstanding under the Loan Facility may be
paid at any time in whole or in part by Client without penalty. Payments applied to principal
will increase the amount available for subsequent Express CreditLine Advances, subject to
Client’s Loan Limit. Client shall make all payments regarding the Loan Facility to SB at its
offices in New York.
6) Client agrees not (a) to use any portion of an Express CreditLine Advance to purchase, carry or
trade in securities, or to reduce or retire other debts Client incurs for the purpose of
purchasing, carrying or trading in securities, (b) to make any Client FMA Check payable to SB or
another brokerage firm, or (c) to make funds available to a third party for any purpose described
in clauses (a) or (b). Client shall be deemed to repeat such agreements each time Client obtains
an Express CreditLine Advance hereunder. Client also acknowledges that willful non-compliance with
these restrictions may constitute a violation by Client of Regulation “X” of the Federal Reserve
Board.
7) (a) As security for Client’s obligations to SB under this Agreement, Client hereby assigns,
grants and conveys to SB a first priority lien and security interest in all cash, stocks, bonds,
other securities, certificates of deposit and instruments now or hereafter in Client’s Express
CreditLine Account and all other accounts maintained by Client with SB (including any managed
accounts maintained by Client) and all dividends, interest and proceeds of such property, and any
property substituted by the Client (collectively, the “Collateral”). Client authorizes SB, at
Client’s expense, to sign and file, without Client’s signature, such financing statements and
other documents that in SB’s sole judgment are necessary to perfect, preserve and protect SB’s
security interest in the Collateral, and to perform any and all such other acts necessary and
incident to the execution of the powers granted to SB herein. Client also agrees to take all
action which SB reasonably requests to assure that SB has a continuing first priority perfected
security interest in the Collateral while this Agreement remains in effect.
(b) SB reserves the right to require Client at any time to deposit into Client’s Express
CreditLine Account additional Collateral in such amount as SB requires or to substitute new
Collateral for any Collateral that has previously been deposited in Client’s Express CreditLine
Account. Client may, with SB’s approval and upon such terms and conditions as SB shall prescribe,
substitute securities or other property for Collateral in Client’s Express CreditLine Account.
The
Following Paragraph 8 (a) is Applicable Only to Clients Who Are Natural Persons
8) (a) Client represents and warrants to SB that (a) except for SB’s rights under this Agreement,
Client owns the Collateral free of any security interest or lien in favor of any third party or
any impediment to transfer (other than, in the case of restricted and control stock, any
restrictive legend restricting the sale of the security under the Securities Act of 1933), (b)
Client will not pledge the Collateral or grant a security interest in the Collateral to any third
party, or permit the Collateral to become subject to any liens or encumbrances (other than SB’s
security interest), or enter into a “lock-up” agreement or other agreement that affects the
Collateral, in each case during the term of this Agreement, (c) Client is of the age of a majority
in the state in which he/she is domiciled and is authorized to execute and deliver this Agreement
and to perform his/her obligations hereunder, (d) Client is not an employee benefit plan, as that
term is defined by the Employee Retirement Income
4725B (12/2007) page 2 of 7
|
Xxxxx Xxxxxx is a division and service xxxx of Citigroup Global Markets Inc. |
Security Act of 1974 (“ERISA”), or an Individual
Retirement Account, (e) in respect of restricted
and control stock, in the event that SB liquidates and sells the Collateral, all Collateral
consisting of securities will be readily transferable into
“street name” in good deliverable form,
and together with the securities of any other person whose sales must be aggregated with the
Client’s under applicable law and rules, will be saleable under the Securities Act of 1933 and
other applicable law and rules, and (f) unless Client advises SB to the contrary in writing and
provides SB with a letter of approval, where required, from Client’s employer, Client is not an
employee or member of any stock exchange or trading market or of any corporation or firm engaged
in the business of dealing, either as a broker or as principal, in securities, bills of exchange,
acceptances or other forms of commercial paper. Client shall be deemed to repeat each of these
representations and warranties each time Client obtains an Express CreditLine Advance hereunder.
The
Following Paragraph 8 (a) is Applicable Only to Clients Who Are Corporations, Partnerships,
Trusts or Other Entities
8) (a) Client represents and warrants to SB that a) it is a corporation, partnership, trust or
other entity duly organized, validly existing and in good standing under the laws of the State in
which it is organized; b) it has all requisite power and authority to own its property and assets
and to carry on its business as now conducted and as proposed to be conducted; c) it is qualified
to do business in every jurisdiction where such qualification is required, except where the
failure to qualify would not have a material adverse effect on Client; d) it has the power and
authority to execute, deliver and perform its obligations under this Agreement; e) the execution,
delivery and performance of this Agreement and the creation of a first priority lien and security
interest in the Collateral provided for herein (i) are within Client’s corporate power, (ii) have
been duly authorized by all necessary and proper corporate action. including the consent of
shareholders where required, (iii) are not in contravention of any provision of Client’s
certificate of incorporation or by-laws, (iv) do not violate any law or regulation, or any order
or decree of any court or governmental instrumentality applicable to Client, and (v) do not
conflict with or result in the breach of, or constitute a default under, any indenture, mortgage,
deed of trust, lease agreement or other instrument to which Client is a party or by which Client
or any of its property is bound; f) this Agreement has been duly executed and delivered by Client
and constitutes its legal, valid and binding obligation enforceable against Client in accordance
with its terms; g) except for SB’s rights under this Agreement, Client owns the Collateral free of
any security interest or lien in favor of any third party or any impediment to transfer (other
than, in the case of restricted and control stock, any restrictive legend restricting the sale of
the security under the Securities Act of 1933); h) Client is not an employee benefit plan, as that
term is defined by ERISA; and i) Client will not pledge the Collateral or grant a security
Interest in the Collateral to any third party, or permit the Collateral to become subject to any
liens or encumbrances (other than SB’s security interest), or enter into a “lock-up” agreement or
other agreement that affects the Collateral, in each case during the term of this Agreement and j)
in respect of restricted and control stock, in the event that SB liquidates and sells the
Collateral, all Collateral consisting of securities will be readily transferable into “street
name” in good deliverable form, and together with the securities of any other person whose sales
must be aggregated with the Client’s under applicable law and rules, will be saleable under the
Securities Act of 1933 and other applicable law and rules. Client shall be deemed to repeat each
of these representations and warranties each time Client obtains an
Express CreditLine Advance
hereunder.
(b) In the event Client maintains a Consulting Group account with SB, Client acknowledges that it has received and had the opportunity to review SB’s “wrap fee
brochure” and the disclosures therein relating to Client’s Express CreditLine Loan
Facility.
Paragraph 8 (c) is Applicable Only to Idaho and Rhode Island Residents
8 (c) Client represents and warrants that (i) all Express CreditLine Advances are being received
solely to acquire or carry on a business or commercial enterprise and/or Client is a business or
commercial organization, and (ii) Express CreditLine Advances shall be used for commercial
purposes. It is agreed and stipulated that all Express CreditLine Advances shall be construed for
all purposes as commercial loans and are made for other than personal, family or household
purposes.
9) Whenever XX xxxxx it necessary or appropriate for its protection, SB is authorized, in its sole
discretion, to take one or more of the following actions: (a) require Client to repay promptly all or a specified amount of the outstanding balance of the Loan facility, (b)
deposit promptly into Client’s Express CreditLine Account a specific amount of additional
Collateral, (c) reduce the Loan Limit to a level determined by SB, (d) liquidate, withdraw or sell
the Collateral and apply it to any amounts owed to SB, or (e) terminate Client’s Express
CreditLine borrowing privileges, All of the foregoing actions may be done without prior notice to
Client, and in the case of clauses (C)-(B), without demand upon Client. In addition, any sale may
be made in SB’s sole discretion on the exchange or market where
such business is then usually
transacted, at public auction or private sale and without providing Client prior notice of such
sale. In addition to SB’s rights under this Agreement. SB shall have the right to exercise any one
or more of the rights and remedies of a secured creditor under the New York Uniform Commercial
Code then in effect. All rights and remedies under this Agreement are cumulative and are in
addition to all other rights and remedies that SB may have at law or equity. Notwithstanding the
foregoing, to the extent permitted by law, Client expressly waives compliance with the provisions
of Section 202 of the New York Lien Law.
10) This Agreement and its enforcement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to the conflict of laws rules of such State.
11) This Agreement may not be assigned by Client without SB’s prior written consent, and shall be
binding upon Client’s heirs, executors, administrators, successors and permitted assigns
(whichever is applicable). SB may assign this Agreement to any person or entity without Client’s
consent or prior notice to Client, and this Agreement shall inure to the benefit of SB’s
successors and assigns (whether by merger, consolidation or otherwise).
12) This Agreement may be amended (a) by SB at any time by sending Client a written notice of such
amendment, or (b) with the written consent of both parties. Any such amendment shall be effective
as of the date established by SB or by both parties, as applicable. This Agreement may not be
amended orally. Either Client or SB may waive compliance with any provision of this Agreement.
Such waiver must be in writing and signed by the party to be charged with such waiver. Any such
waiver will not be deemed to be a waiver of any other provision of this Agreement.
13) SB shall not be liable to Client for (a) any loss caused directly or indirectly by government
restrictions, exchange or market rulings, suspension of trading, war, strikes or other conditions,
commonly known as “Acts of God,” beyond SB’s control, or (b) any consequential, incidental,
indirect or special damages, even if such damages are reasonably foreseeable.
14) This Agreement, all schedules to this Agreement, and the New Account Document reflect the
entire agreement between SB and Client concerning Client’s Loan Facility, and supersede any other
agreement, promise, representation or undertaking. whether written or oral, concerning the loan
Facility. This Agreement is in addition to, and does not nullify. Client’s FMA Account agreement
and any other agreements between Client and SB (collectively, “Other Agreements”). In the event of
a conflict between the provisions of this Agreement, on the one hand, and the New Account Document
or the Other Agreements, on the other hand, the provisions of this Agreement shall govern.
15) If any provision of this Agreement is held to be invalid, illegal or unenforceable by reason
of any law, rule, administrative order or judicial decision, such determination shall not affect
the validity of the remaining provisions of this Agreement.
16) Either party may terminate this Agreement upon thirty (30) calendar days prior written notice
to the other party, except that Client shall not be entitled to terminate this Agreement in the
event there is an outstanding principal balance in the Loan Facility, or accrued interest or other
fees and charges (if any) relating to the Loan Facility have not been paid. Termination of this
Agreement shell not affect any obligations incurred by Client prior to the effective date of
termination, or SB’s rights to the Collateral, or securities deposited with SB by a guarantor of
Client’s Loan Facility. All indemnification provisions herein, as well as Paragraphs 17-22, shall
survive the termination of this Agreement.
17) Without the necessity of a judicial determination, and whether or not litigation occurs, Client
hereby agrees to indemnify and hold harmless SB and its directors, officers, employees, agents and
affiliates from any and all claims (whether or not meritorious), liabilities, judgments, damages, losses, costs and expenses of any nature whatsoever
(including reasonable attorneys’ fees and expenses) in any way
| 4725b (12/2007) page 3 of 7 | Xxxxx Xxxxxx is a division and service xxxx of Citigroup Global Markets Inc. |
related
to, or arising out of or in connection with, this Agreement, including without limitation
Client’s grant of a first priority lien and security interest in the Collateral and any action
taken or omitted by SB at Client’s request or pursuant to Client’s instructions.
18) ARBITRATION
This agreement contains a predispute arbitration clause.
By signing an arbitration agreement the parties agree as follows:
| • | All parties to this agreement are giving up the right to sub each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed. | |
| • | Arbitration awards are generally final and binding; a party’s ability to have a court reverse or modify an arbitration award is very limited. | |
| • | The ability of the parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court proceedings. | |
| • | The arbitrators do not have to explain the reason(s) for their award. | |
| • | The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. | |
| • | The rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court. | |
| • | The rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into this agreement. |
I agree that all claims or controversies, whether such claims or
controversies arose prior, on or
subsequent to the date hereof, between me and SB and/or any of its present or former officers,
directors, or employees concerning or arising from (i) any
account maintained by me with SB
individually or jointly with others in any capacity; (ii) any transaction involving SB or any
predecessor firms by merger, acquisition or other business combination and me, whether or not such
transaction occurred in such account or accounts; or (iii) the construction, performance or breach
of this or any other agreement between us, any duty arising from the business of SB or otherwise,
shall be determined by arbitration before, and only before, any self-regulatory organization or
exchange of which SB is a member. I may elect which of these arbitration forums shall hear the
matter by sending a registered letter or telegram addressed to Xxxxx Xxxxxx at 00 Xxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, Attn: Law Department. If I fail to make such election before the expiration
of five (5) days after receipt of a written request from SB to make such election, SB shall have
the right to choose the forum.
No person shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has
initiated in court a putative class action; or who is a member of a putative class who has not
opted out of the class with respect to any claims encompassed by the putative class action until:
(i) the class certification is denied; (ii) the class is decertified; or (iii) the customer is
excluded from the class by the court.
Such forbearance to enforce an agreement to arbitrate shall
not constitute a waiver of any rights under this agreement except to
the extent stated herein.
19) SB
shall not be liable for a refusal by a third party to honor any
Client FMA Check or the
Card.
THE FOLLOWING PARAGRAPHS 20 — 22 APPLY ONLY TO MULTIPLE PARTY ACCOUNTS OF NATURAL PERSONS
20) If Client’s Express CreditLine Account is a multiple party account, in consideration of SB
establishing the Loan Facility for the owners thereof, each account owner agrees that he/she is a
Client for purposes of this Agreement and to be jointly and severally liable for said account and
to pay on demand any balance owing with respect to the Loan Facility. Each account owner has full
power and authority to borrow and withdraw money or to do anything with reference to the Express
CreditLine Account as if he or she were the sole owner thereof, and SB is authorized and directed
to act upon any instructions received from any account owner and to accept payment and securities
from any account owner for the credit of this account regardless of the source or registration of
such payments or securities, Any and all notices, communications or any demands sent to any
account owner shall be binding upon all account owners, and may be given by mail or other means of
communication. All representations and agreements contained in this Agreement shall be deemed to
have been made by each account owner.
21) Without the necessity of a judicial determination, and whether or not litigation occurs, each
account owner agrees to indemnify and hold harmless SB and its directors, officers, employees,
agents and affiliates from and against any and all claims (whether or not meritorious),
liabilities, judgments, damages, losses, costs and expenses of any nature whatsoever (including
reasonable attorneys’ fees and expenses) in any way related to, or arising out of, or in
connection with, or as the result of, SB following the instructions
of any account owner. SB, in
its sole discretion, may at any time suspend all activity in the multiple party account pending
instructions from a court of competent jurisdiction or require that instructions pertaining to
the multiple party account or the property therein be in writing signed by all account owners, SB
shall be entitled to recover from the Express CreditLine Account or from any account owner prior
to distribution of the funds or property therein such costs as it may incur, including reasonable
attorneys’ fees, as the result of any dispute between or among account owners relating to or
arising from the Express CreditLine Account.
22) (a) Each Express CreditLine Account owner agrees that, in the event of the death of any owner
thereof, the survivor or survivors shall immediately give SB written notice thereof, and SB may,
before or after receiving such notice, take such actions, require such papers, inheritance or
estate tax waivers, retain such portion of the account and restrict transactions in such account
as SB may deem advisable to protect SB against any tax, liability, penalty or loss under any
present or future laws or otherwise. The estate of an Express CreditLine Account owner who shall
have died shall be liable and each survivor shall continue to be liable, jointly and severally,
for all obligations to SB under this Agreement whether or not incurred prior to the receipt by SB
of the written notice of the death of the decedent, or incurred in the liquidation of the Express
CreditLine Account or the adjustment of the interests of the respective parties.
(b) If the Express CreditLine Account contains any rights of survivorship, in the event of the
death of any owner thereof, all assets in the Express CreditLine Account shall pass to and be
vested in the survivor[s] on the same terms and conditions as previously held, without in any
manner releasing the decedent[s] estate from the liabilities provided for herein. The estate[s] of
the decedent[s] and the survivor[s] hereby
jointly and severally agree to fully indemnify and hold
harmless SB from all liability for any taxes which may be owed in connection with the transfer and
vesting of the assets in the survivor[s]. or any claims by third parties.
DISCLOSURES REQUIRED BY STATE LAW
23) SB is required to give each of the following disclosures to Clients who reside in the state
to which each specific disclosure applies. Please note that some disclosures required by state
law may reflect rights granted to all consumers under similar federal laws.
a) Illinois (if credit card access is requested):
No applicant may be denied a credit card on account of race, color, religion, national origin,
ancestry, age (between 40 and 70), sex, marital status, or physical or mental handicap unrelated
to the ability to pay or unfavorable discharge from military service. The applicant may request
the reason for rejection of his or her application for a credit card. No person need reapply for
a credit card in any name permitted by law that he or she regularly uses and is generally known
by, so long as no fraud in intended thereby. A person may hold a credit card in any name
permitted by law that he or she regularly uses and is generally known
by, so long as no fraud is
intended thereby.
b) Minnesota:
Express CreditLine Advances are made by SB under Section 334,19 of the Minnesota Statutes.
c) Missouri:
Oral agreements or commitments to loan money, extend credit or to forbear from enforcing repayment
of a debt including promises to extend or renew such debt are not enforceable. To protect client
(borrower) and SB (creditor) from misunderstanding or disappointment, any agreements we reach
covering such matters are contained in this writing, which is the complete and exclusive statement
of the agreement
| 4725B (12/2007) page 4 of 7 | Xxxxx Xxxxxx is a division and service xxxx of Citigroup Global Markets Inc. |
between us, except as we may later agree in writing to modify it.
d) New York:
A consumer report may be requested in connection with your application. Upon your
request, we will inform you whether or not a consumer report was requested, and
if so, the name and address of the consumer reporting agency that furnished the
report. Subsequent consumer reports may be requested or utilized in connection with
an update, renewal or extension of the credit for which you are applying.
e) Ohio:
The Ohio laws against discrimination require that all creditors make credit equally available to
all creditworthy customers, and that credit-reporting agencies maintain separate credit histories
on each individual upon request. The Ohio Civil Rights Commission administers compliance with this
law.
f) Rhode Island:
A consumer credit report may be obtained in connection with your application.
| 4725B (12/2007) page 5 of 7 | Xxxxx Xxxxxx is a division and service xxxx of Citigroup Global Markets Inc. |
CLIENT ACKNOWLEDGES RECEIPT OF FORM T-4 PROMULGATED BY THE FEDERAL RESERVE BOARD AS WELL AS A COPY
OF THIS AGREEMENT. BY SIGNING BELOW, CLIENT APPLIES FOR THIS LOAN FACILITY AND AGREES TO BE BOUND
BY THE TERMS AND CONDITIONS HEREIN. THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT
PAGE 3, PARAGRAPH 1B.
CITIGROUP GLOBAL MARKETS INC. (“XXXXX XXXXXX”)
Signature of Branch or Operations Manager:
|
Date: | |||||
Branch Office Address 0000 Xxxxxxxxxxxx Xxx., Xxxxxxxxxx XX 00000
Client Signatures:
Print Name of Client
|
Signature of Client | Date | ||
Xxxx Xxxxxxxxxx, CFO |
||||
Print Name of Client
|
Signature of Client | Date | ||
If a Corporation, Partnership, Trust or Other Entity also provide
Entity Name
|
Authorized Signer and Title (please print) | |
Schedule “A”
Loan Limit Amount Election
Loan Limit Amount Election
Name of
Client: Clinical Data Inc. elects the following as Client’s initial Loan Limit.
Client should elect and sign only one of the alternatives below.
| a) | the sum of the Loanable Values in Client’s SB account(s) computed in accordance with Paragraph 1 (a), which must be equal to or greater than $25,001.* |
Print Name of Client
|
Signature of Client | Date | ||
Print Name of Client
|
Signature of Client | Date | ||
or
| b) | $7,200,000 (specify dollar amount, which must be equal to or greater than $25,001).* After Client signs and dates this document, Client may not borrow an amount greater than it has specified unless Client signs and dates an amended Loan Limit Amount Election form specifying such greater amount and SB countersigns the amended form. |
Print Name of Client
|
Signature of Client | Date | ||||
Xxxx Xxxxxxxxxx, CFO
|
/s/ Xxxx Xxxxxxxxxx | 9.17.08 | ||||
Print Name of Client
|
Signature of Client | Date | ||||
Approved by Xxxxx Xxxxxx |
||||||
Print Name of Branch or
Operations Manager
|
Signature of Branch or Operations Manager | Date | ||||
| State | Minimum Loan Limit | |||||||||
Indiana
|
$50,001 for consumer loans; $25,001 for business loans | |||||||||
Maine
|
$35,001 | |||||||||
Oklahoma
|
$45,001 | |||||||||
Oregon
|
$50,001 | |||||||||
Pennsylvania
|
$50,001 | |||||||||
Vermont
|
$1,000,001 for business loans; consumer loans not allowable | |||||||||
West Virginia
|
$45,001 (except business loans) | |||||||||
Wyoming
|
$50,001 | |||||||||
| * | In the states listed below Schedule “A”, the minimum Loan Limit will be higher. |
| 4725B (12/2007) page 6 of 7 | Xxxxx Xxxxxx is a division and service xxxx of Citigroup Global Markets Inc. |
| Amendment to Express CreditLine or Express Credit Loan Agreement |
|
Express CreditLine or Express Credit Loan Account Number;
22J16341
Pledge
Account Number (if different)
22J16341
You are hereby notified and agree that your Express CreditLine or Express Credit, as applicable,
Loan Agreement (your “Loan Agreement”) is hereby amended as follows:
Your Express CreditLine or Express Credit loan with the above-referenced Loan Account Number (your
“Express Credit Loan”) against your Auction Rate Securities that are experiencing failed auctions
held in the above-referenced Pledge Account or Loan Account, as applicable (your “ARS holdings”),
is made on a non-recourse basis. Notwithstanding the terms of your Loan Agreement, Xxxxx Xxxxxx
will not demand repayment of your Express Credit Loan from you other than by liquidating or
purchasing your ARS holdings or by applying any interest or dividends on, or other proceeds of,
your ARS holdings or other assets in your above-referenced Pledge Account or Loan Account, as
applicable (referred to hereafter collectively as your “Pledge Account”). Xxxxx Xxxxxx will not
have a security interest securing your Express Credit Loan in any of your Xxxxx Xxxxxx accounts
other than your Pledge Account.
Any proceeds paid to or received by you in respect of assets in your Pledge Account will be applied
first to repayment of your Express Credit Loan balance outstanding (including any interest or other
charges). Any balance of such proceeds remaining after repayment in full of your Express Credit
Loan balance will be released to you.
Your ARS holdings are eligible for Express Credit Loan advances in the amount of up to 100% of the
principal “face” amount or par value of your ARS holdings. You may not remove your ARS holdings or
any interest or dividends earned on them or other proceeds or assets from your Pledge Account until
your Express Credit Loan is fully repaid and terminated (except as might be permitted by Xxxxx
Xxxxxx from time to time in its sole discretion).
Your Express Credit Loan advances will bear interest at the interest rate equal to the Open Federal
Funds rate plus 0.50% per annum, provided, however, that you will receive a credit to your account
for the amount, if any, by which such interest charges from the date of this amendment through the
Due Date (as defined below) exceed the amount of interest or dividends paid on your ARS holdings
for the same period.
We may require you to continue to submit your ARS holdings for sale at par at applicable auctions
on their applicable auction dates, with proceeds of any such sales applied immediately to repayment
of your Express Credit Loan.
Your Express Credit Loan will become fully due and payable upon the earliest of (i) the date all of
your ARS holdings are sold or redeemed at their par value (ii) the earliest date any available
acceptance period for our offer to purchase your ARS holdings at par ends without your acceptance,
or (iii) November 5, 2008 (such earliest date, the “Due Date”). We may demand repayment of your
Express Credit Loan, in whole or in part, at any time on or after the Due Date. Without limiting
any other rights we may have under your Loan Agreement, this amendment or any law, you agree that
in the event that you do not repay your Express Credit Loan in full on or before the Due Date, we
may liquidate your ARS holdings, in whole or in part, in an amount sufficient to repay the entire
outstanding balance of your Express Credit Loan (including any interest or other charges), for a
price equal to 100% of the principal “face” amount or par value thereof and that such liquidation
at such price is commercially reasonable.
Except as amended by the foregoing, all terms and conditions of your Loan Agreement remain in full
force and effect. Capitalized terms are used as defined in your loan Agreement unless otherwise
defined herein. This amendment applies only to Express Credit Loans made in connection with our
settlement with regulators announced August 7, 2008 (the
“Settlement”) and to clients covered by
the Settlement, and does not apply to any accounts or loans you have with Xxxxx Xxxxxx other than
the accounts expressly referred to herein. Your entry into this amendment does not constitute a
waiver of any rights you have under the Settlement, and in the event of any conflict between this
amendment and the Settlement, the terms of the Settlement shall prevail. This amendment shall not
be binding on us until it has been executed by the client and accepted by Xxxxx Xxxxxx in its
offices in New York.
| Client signature | Date | |
| /s/ Xxxx Xxxxxxxxxx | 9.17.08 |
Xxxxx Xxxxxx is a division and service xxxx of Citigroup Global Markets Inc.
6922 (8/2008)
6922 (8/2008)
