$300,000,000
REVOLVING CREDIT AGREEMENT
dated as of December 10, 2001
between
FIDELITY INVESTORS LIMITED PARTNERSHIP,
FIDELITY INVESTORS II LIMITED PARTNERSHIP,
FIDELITY INVESTORS III LIMITED PARTNERSHIP,
FIDELITY INVESTORS IV LIMITED PARTNERSHIP,
FIDELITY SEAPORT LIMITED PARTNERSHIP,
GEODE CAPITAL MANAGEMENT, LLC,
GEODE INVESTORS LLC, and
Certain Series of Limited Liability Company Interests in Geode Investors
LLC
Denominated LS1, LS2, LS3, LS4, GARNET, JADE, JASPER, GC2 and
GC3,
as Borrowers
THE LENDERS REFERRED TO HEREIN,
as Lenders
FLEET NATIONAL BANK,
as Agent
DEUTSCHE BANK AG,
as Syndication Agent
THE CHASE MANHATTAN BANK and
TORONTO DOMINION (TEXAS), INC.,
as Co-Documentation Agents
FLEET SECURITIES, INC.,
as Arranger
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
Section 1.01. Certain Defined Terms 1
Section 1.02. Other Definitional and Interpretive Provisions 18
Section 1.03. Accounting Terms; GAAP 19
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 19
Section 2.01. Loans, Etc. 19
Section 2.02. Making the Revolving Credit Loans 20
Section 2.03. Fees 22
Section 2.04. Repayment; Evidence of Debt 22
Section 2.05. Termination or Reduction of the Commitments 23
Section 2.06. Conversion of Loans 23
Section 2.07. Prepayments 23
Section 2.08. Interest 24
Section 2.09. Increased Costs, Illegality, Etc. 25
Section 2.10. Payments and Computations 27
Section 2.11. Taxes 28
Section 2.12. Sharing of Payments, Etc. 30
Section 2.13. Replacement of Lender 31
Section 2.14. Interest Rate Determination 31
Section 2.15. Increase in Commitments 32
Section 2.16. Extension of Commitment Termination Date 33
Section 2.17. Borrowings in Sterling 35
ARTICLE III REPRESENTATIONS AND WARRANTIES 37
Section 3.01. Organization; Powers 37
Section 3.02. Authorization; Enforceability 37
Section 3.03. Governmental Approvals; No Conflicts 37
Section 3.04. Financial Condition; No Material Adverse Change 37
Section 3.05. Litigation 38
Section 3.06. Compliance with Laws and Agreements 38
Section 3.07. Investment Company Act 38
Section 3.08. Taxes 38
Section 3.09. ERISA 38
Section 3.10. Disclosure 39
Section 3.11. Holding Company Status 39
Section 3.12. Subsidiaries 39
ARTICLE IV CONDITIONS OF LENDING 39
Section 4.01. Conditions to Initial Loans 39
Section 4.02. Conditions to Each Borrowing 41
ARTICLE V AFFIRMATIVE COVENANTS 41
Section 5.01. Financial Statements and Other Information 41
Section 5.02. Notices of Material Events 42
Section 5.03. Existence; Conduct of Business 42
Section 5.04. Payment of Obligations 43
Section 5.05. Maintenance of Insurance 43
Section 5.06. Books and Records 43
Section 5.07. Compliance with Laws and Material Contractual
Obligations 43
Section 5.08. Use of Proceeds 43
Section 5.09. Maintenance of Properties, Etc 43
ARTICLE VI NEGATIVE COVENANTS 44
Section 6.01. Fundamental Changes 44
Section 6.02. Other Indebtedness of the Borrowers. 44
Section 6.03. Modifications of Certain Documents. 45
ARTICLE VII EVENTS OF DEFAULT AND ACCELERATION EVENTS 45
Section 7.01. Events of Default 45
Section 7.02. Acceleration Events 47
ARTICLE VIII THE ADMINISTRATIVE AGENT 48
Section 8.01. Authorization and Action 48
Section 8.02. Reliance, Etc 48
Section 8.03. Fleet and Affiliates 49
Section 8.04. Lender Credit Decision 49
Section 8.05. Indemnification 49
Section 8.06. Successor Agent 49
ARTICLE IX MISCELLANEOUS 50
Section 9.01. Notices, Etc 50
Section 9.02. Waivers; Amendments 50
Section 9.03. Expenses; Indemnity; Damage Waiver 51
Section 9.04. Assignments and Participations 52
Section 9.05. Survival 55
Section 9.06. Counterparts; Integration; Effectiveness 55
Section 9.07. Severability 55
Section 9.08. Right of Setoff 56
Section 9.09. Governing Law; Jurisdiction; Etc. 56
Section 9.10. WAIVER OF JURY TRIAL 57
Section 9.11. Confidentiality 57
Section 9.12. Representations by Agent and the Lenders 58
Section 9.13. Judgment 58
Section 9.14. Obligations of Geode Series and Geode Investors 58
SCHEDULE 1 Commitments
SCHEDULE 2 Disclosed Matters
SCHEDULE 3.04 Real Estate Mortgages
SCHEDULE 3.12 Subsidiaries
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT B-1 Form of Prepayment Notice for Revolving Credit
Loans
EXHIBIT C Form of Compliance Certificate
EXHIBIT D-1 Form of Opinion of Counsel for the Borrower
EXHIBIT D-2 Form of Opinion of General Counsel of the
Guarantor
EXHIBIT E Form of Assignment and Acceptance
EXHIBIT F Executive Shares Plans
EXHIBIT G Junior Subordination Terms
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of December 10,
2001 between FIDELITY INVESTORS LIMITED PARTNERSHIP, a
Delaware limited partnership, FIDELITY INVESTORS II LIMITED
PARTNERSHIP, a Delaware limited partnership, FIDELITY INVESTORS
III LIMITED PARTNERSHIP, a Delaware limited partnership, FIDELITY
INVESTORS IV LIMITED PARTNERSHIP, a Delaware limited
partnership, FIDELITY SEAPORT LIMITED PARTNERSHIP, a Delaware
limited partnership, (collectively, the "Partnerships"), and GEODE
CAPITAL MANAGEMENT, LLC, a Delaware limited liability company
("Geode Management"), GEODE INVESTORS LLC, a Delaware series
limited liability company ("Geode Investors"), and certain series of limited
liability company interests in Geode Investors comprised of LS1, LS2, LS3,
LS4, Garnet, Jade, Jasper, GC2 and GC3 (each a "Series" and collectively,
the "Geode Series") (the Partnerships, Geode Management, Geode
Investors and each Series is each a "Borrower" and collectively, the
"Borrowers"), each of the banks and other financial institutions whose
signatures appear at the end of this Agreement under the heading "INITIAL
LENDERS" (each individually, an "Initial Lender" and collectively, the
"Initial Lenders") and FLEET NATIONAL BANK, as administrative agent
for the Lenders (together with its successors in such capacity, the "Agent").
Each of the Borrowers has requested that the Lenders make
advances to the Borrowers in an aggregate principal amount up to but not
exceeding $300,000,000 for the general corporate purposes, including
temporary liquidity needs, of such Borrowers. The Lenders are willing to
make such advances upon the terms and conditions hereof and, accordingly,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. The following terms
shall have the meanings respectively assigned to them below in this Section
1.01 or in the provisions of this Agreement referred to below (such
meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Acceleration Event" means an event described in Section 7.02;
provided that for purposes other than Sections 2.08(b) and 9.08, an
"Acceleration Event" means any event or condition which constitutes an
Acceleration Event as described in Section 7.02 or which upon notice, lapse
of time or both would, unless cured or waived, become an Acceleration
Event (as so defined).
"Additional Commitment Lender" has the meaning specified in
Section 2.19(d).
"Additional Lender" has the meaning specified in Section 2.18.
"Agent" has the meaning specified in the preamble to this
Agreement.
"Agent's Accounts" means an account or accounts designated by
the Agent in a notice to a Borrower and the Lenders.
"Administrative Questionnaire" means an administrative
questionnaire in a form supplied by the Agent.
"Affected Lender" has the meaning specified in Section 2.13(a).
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Agreement" means this Revolving Credit Agreement, together
with all Exhibits and Schedules hereto, as originally executed, or if
amended or supplemented from time to time, as so amended or
supplemented.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office (in the case of a Federal Funds
Rate Loan or a Base Rate Loan), and such Lender's LIBOR Lending Office
(in the case of a LIBOR Rate Loan).
"Applicable Rate" means,
(a) for any day, with respect to any Base Rate
Loans, 0% per annum;
(b) for any day, with respect to any Federal Funds
Rate Loans, 0.21% per annum; and
(c) for any day, with respect to any LIBOR Rate
Loans constituting a Revolving Credit Loan, 0.21% per annum, and with
respect to any LIBOR Rate Loan constituting a Term Loan, 0.275% per
annum.
"Arranger" means Fleet Securities, Inc., in its capacity as
Arranger.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Agent, in accordance with Section 9.04 and in substantially the form of
Exhibit E.
"Base Rate" means for any day, the rate per annum equal to the
higher of (i) the variable per annum rate of interest announced from time to
time by Fleet at its Head Office, as its "Base Rate", or (ii) the Federal Funds
Effective Rate plus 1/2 of 1% for such date (rounded upwards, if necessary,
to the next 1/8 of 1%). The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer.
Any change in the Base Rate due to a change in the Base Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Base Rate or Federal Funds Effective Rate. Changes in the
Base Rate shall take place without notice of any kind.
"Base Rate Loan" means a Loan denominated in Dollars that bears
interest as provided in Section 2.08(a)(i).
"Borrower" has the meaning specified in the preamble to this
Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Term
Borrowing.
"Borrowings" means, collectively, Revolving Credit Borrowings
and Term Borrowings.
"Business Day" means a day on which banks are not required or
authorized to close in Boston, Massachusetts and, if the applicable Business
Day relates to any LIBOR Rate Loans, on which dealings are carried on in
the London interbank market.
"Capital Base" means, as at any date, the sum of (a) Net Asset
Value of the Guarantor and its Restricted Subsidiaries as at such date plus
(b) the aggregate outstanding principal balance of all Junior Subordinated
Debt as at such date so long as such Junior Subordinated Debt is junior in
right of payment to the obligations of the Guarantor under the FMR
Guaranty.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Capital Stock" means, as to any Person, any and all shares,
interests, partnership interests, limited liability company interests,
participations, membership, trust and other interests, rights in or other
equivalents (however designated) of such Person's equity (however
designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other equity.
"Change in Control" means an event which results in less than
51% of the voting Capital Stock of the Guarantor being held by one or more
of (a) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 3d, (b) members of his Immediate Family, (c) any
senior management officer or director of the Guarantor or any of its
Subsidiaries or a Person who would be an "executive officer" of the
Guarantor under Rule 3b-7 under the Securities Exchange Act of 1934 who
has held a management or director position with the Guarantor or any of its
Subsidiaries for at least three years, or (d) trusts, limited liability
companies, partnerships or other entities for the benefit of, or controlled by,
any Person(s) referred to in the foregoing clauses (a), (b) or (c). The term
"Immediate Family" means, with respect to any Person, his or her spouse,
parents, brothers, sisters, children (natural and adopted) and their spouses,
stepchildren, grandchildren and grandparents, parents in law, brothers and
sisters in law, nephews and nieces.
"Closing Date" means the date on which the Agent notifies the
Borrowers and the Lenders that the conditions precedent set forth in Section
4.01 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commission" means the Securities and Exchange Commission
and any other similar or successor agency of the United States government
administering the Investment Company Act.
"Commitment" means, as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to the Borrowers in an aggregate
principal amount in Dollars (or the Equivalent thereof in Sterling) set forth
opposite its name on Schedule 1 (or in the document pursuant to which any
Additional Lender becomes a Lender hereunder), as the same may be
reduced pursuant to Section 2.05, increased pursuant to Section 2.16 or
increased or reduced pursuant to assignments effected in accordance with
Section 9.04. The initial aggregate amount of the Commitments is
$300,000,000 (or the Equivalent thereof in Sterling).
"Commitment Termination Date" means December 10, 2002 or, in
the case of any Lender whose Commitment is extended pursuant to Section
2.16, the date to which such Commitment is extended, unless the
Commitments are terminated in whole pursuant to Section 2.05 or Article
VII on an earlier date, then on such date; provided in each case that if any
such date is not a Business Day, the relevant Commitment Termination
Date of such Lender shall be the immediately preceding Business Day.
When the term "Commitment Termination Date" is used herein without
reference to any particular Lender, such term shall, in such instance, be
deemed to be a reference to the latest Commitment Termination Date of any
of the Lenders then in effect hereunder.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling", "Controlled", and "under common control with"
have meanings correlative thereto.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Loans of one Type into Loans of the other Type pursuant to
Section 2.06.
"Default" means any event or condition that constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Delaware Act" means the Delaware Limited Liability Company
Act, 6 Del. C. sec. 18-101, et seq., as amended from time to time, and any
legislative enactment which may replace or supersede such Act.
"Designated Significant Subsidiary" means, as of any date, each
Restricted Subsidiary which has been designated as a "Designated
Significant Subsidiary" in accordance with the terms of the FMR Guaranty.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule 2.
"Dollars" and "$" means lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" in the
Administrative Questionnaire of such Lender or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrowers
and the Agent.
"Eligible Assignee" means any bank or other entity; provided that
for purposes of this definition, "Eligible Assignee" shall not include any
Person (including any subsidiary of any bank or other entity) whose
business consists substantially of the management of financial assets (other
than commercial loans) or the provision of securities brokerage services.
"Entitled Person" has the meaning specified in Section 9.13.
"Environmental Law" means any federal, state or local
governmental law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award relating to the environment, health, safety or
hazardous materials, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act,
the Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act,
the Federal Insecticide, Fungicide and Rodenticide Act and the
Occupational Safety and Health Act, in each case, as amended from time to
time.
"Equivalent" in Dollars of Sterling on any date means the
Equivalent in Dollars of Sterling determined by using the quoted spot rate at
which Fleet's principal office in London offers to exchange Dollars for
Sterling in London at 11:00 a.m. (London time) two Business Days prior to
such date, and the "Equivalent" in Sterling of Dollars means the equivalent
in Sterling of Dollars determined by using the quoted spot rate at which
Fleet's principal office in London offers to exchange Sterling for Dollars in
London at 11:00 a.m. (London time) two Business Days prior to such date.
Each determination required for the purposes of the Loan Documents shall
be made by the Agent and shall (save for manifest error) be conclusive and
binding on the parties hereto.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Guarantor or any Borrower, is treated
as a single employer under Section 414(b) or (c) of the Code, or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
"ERISA Event" means, with respect to the Guarantor or any
Borrower, (a) any "reportable event", as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an
event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (d) the incurrence by a Borrower, the Guarantor or
any ERISA Affiliate of any liability under Title IV of ERISA with respect
to the termination of any Plan; (e) the receipt by the Guarantor, any
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Guarantor
or Borrower or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or
(g) the receipt by the Guarantor, a Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Guarantor, a
Borrower or any ERISA Affiliate of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or
is expected to be, insolvent or in reorganization, within the meaning of Title
IV of ERISA.
"Events of Default" has the meaning specified in Section 7.01.
"Excluded Period" means, with respect to any additional amount
payable under Section 2.09(a) or 2.09(b), the period ending 90 days prior to
the applicable Lender's delivery of a certificate referenced in Section
2.09(a) or 2.09(b), as applicable, with respect to such additional amount.
"Executive Shares Plan" means, collectively, the 2001
Performance Options-Equity Plan and the 2001 Variable Rate Preferred
Plan, each attached as Exhibit F hereto, and other equivalent plans.
"Existing Commitment Termination Date" has the meaning
specified in Section 2.16(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations
for such day for such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it.
"Federal Funds Rate" means, for any day, a fluctuating rate per
annum equal to the rate appearing on Page 5 of the Telerate Service as the
"Federal Funds Ask Rate" (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such
Service, as determined by the Agent from time to time for purposes of
providing quotations of interest rates applicable to overnight Federal funds)
at or about 9:30 a.m. (Boston time) on such day. The Agent will confirm
the "Federal Funds Rate" to the Lenders by 2:00 p.m. (Boston time) on the
date a Federal Funds Rate Loan is made and on each Business Day on
which such Loan remains outstanding. In the event that such rate is not
available for any Borrowing at such time for any reason, then the "Federal
Funds Rate" with respect to such Borrowing shall be the average of the
respective rates notified to the Agent, upon request by the Agent, by each
Reference Bank as the rates at which such Reference Bank is offered
overnight Federal funds at or about the rate setting time for such Borrowing
(notified to each such Reference Bank by the Agent) by three Federal funds
brokers selected by each such Reference Bank. In either case, from and
after the date any Federal Funds Rate Loan is made, and for so long as such
Loan remains outstanding, the "Federal Funds Rate" shall be reset on a
daily basis in accordance with the above procedures.
"Federal Funds Rate Loan" means a Loan denominated in Dollars
that bears interest as provided in Section 2.08(a)(ii).
"Federal Funds Rate Loan Maturity Date" has the meaning
specified in Section 2.02(a)(8).
"Financial Officer" means, with respect to any Borrower or the
Guarantor, the chief financial officer, principal accounting officer, treasurer
or controller, or other authorized representative whose primary
responsibilities extend to accounting matters of such Borrower or the
Guarantor, as applicable.
"Final Maturity Date" has the meaning set forth in Section 2.04(b).
"Fleet" means Fleet National Bank, a national banking association.
"FMR Co." means Fidelity Management & Research Company, a
Massachusetts corporation.
"FMR Guaranty" means the Guaranty of the Guarantor dated as of
the date hereof, pursuant to which the Guarantor has guaranteed the
payment and performance of the Obligations, as the same may be amended,
supplemented, restated, replaced or otherwise modified from time to time.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time.
"General Partner" means Fidelity Investors Management, LLC, a
Delaware limited liability company, the General Partner of each of the
Partnerships.
"Geode Investors" has the meaning specified in the preamble to
this Agreement.
"Geode Management" has the meaning specified in the preamble
to this Agreement.
"Geode Series" means certain series of interests in Geode
Investors, comprised of LS1, LS2, LS3, LS4, Garnet, Jade, Jasper, GC2,
and GC3.
"Governmental Authority" means the government of the United
States, or of any other nation, or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of
the payment thereof or (c) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
"Guarantor" means FMR Corp., a Delaware corporation.
"Head Office" means the office of the Agent in Boston,
Massachusetts, which on the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency rate or commodity price
hedging arrangement.
"Increased Commitment Date" has the meaning specified in
Section 2.15.
"Increased Commitment Deficit Amount" has the meaning
specified in Section 2.15.
"Increasing Commitment Lender" has the meaning specified in
Section 2.15.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid, (d) all obligations
of such Person under conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business and excluding any obligation to pay for portfolio securities or other
financial instruments within standard settlement periods or on a when
issued or delayed delivery basis), (f) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby
has been assumed, (g) all Guarantees by such Person of Indebtedness of
others, (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (j) all obligations, contingent
or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner)
to the extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnitee" has the meaning specified in Section 9.03(b).
"Information Memorandum" means the Confidential Information
Memorandum dated October, 2001 prepared in connection with the
syndication of the Commitments under this Agreement.
"Interbank Offered Rate" means, for any Interest Period for each
LIBOR Rate Loan comprising part of the same Borrowing, the rate
appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Telerate Service or, if none, the equivalent to such
Service provided by Bloomberg providing rate quotations comparable to
those currently provided on such page of such Telerate Service, as
determined by the Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar or Sterling deposits, as the
case may be, in the London interbank market) at approximately 11:00 a.m.
(London time), two Business Days prior to the commencement of such
Interest Period, as the rate for Dollar or Sterling deposits, as the case may
be, with a maturity comparable to such Interest Period; provided that, in the
event that such rate is not available at such time for any reason, then the
Interbank Offered Rate for such Interest Period shall be the rate per annum
equal to the average (rounded upwards, if necessary, to the nearest 1/16 of
1%) of the respective rates notified to the Agent, upon request by the Agent,
by each Reference Bank as the rate at which Dollar or Sterling deposits, as
the case may be, are offered to such Reference Bank by prime banks in the
London interbank eurodollar market at or about 11:00 a.m. (London time)
two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period in an amount approximately
equal to $5,000,000.
"Interest Period" means, for each LIBOR Rate Loan comprising
part of the same Borrowing, the period commencing on the date of such
LIBOR Rate Loan or the date of the Conversion of any Base Rate Loan or
Federal Funds Rate Loan into such LIBOR Rate Loan and ending on the
last day of the period selected by a Borrower pursuant to the provisions
below and, thereafter, with respect to any such LIBOR Rate Loan, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected
by a Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be seven days, one (1) month, two (2) months, three (3)
months or six (6) months, as a Borrower may, in the case of any LIBOR
Rate Loan, upon notice received by the Agent not later than 11:00 a.m.
(Boston time) on the third Business Day prior to the first day of such
Interest Period, select; provided that:
(a) a Borrower may not select any Interest Period for
any Revolving Credit Borrowing that ends after the Commitment
Termination Date, and may not select any Interest Period for any Term
Borrowing that ends after the Final Maturity Date;
(b) Interest Periods commencing on the same date
for LIBOR Rate Loans comprising part of the same Borrowing shall be of
the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided that, in the case of any Interest Period for a LIBOR
Rate Loan, if such extension would cause the last day of such Interest
Period to occur in the next succeeding calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the number of
months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Investment Advisory Subsidiary" means, as of any date, each
Subsidiary of the Guarantor designated as an "Investment Advisory
Subsidiary" in accordance with the terms of the FMR Guaranty.
"Investment Company" means any "investment company" within
the meaning of, and registered under, the Investment Company Act.
"Investment Company Act" means the Investment Company Act
of 1940, as amended from time to time.
"Junior Subordinated Debt" means the Series B Subordinated
Debentures due December 31, 2008, the Series C Subordinated Debentures
due December 31, 2009, the Series D Subordinated Debentures due
December 31, 2011, the Series E Subordinated Debentures due December
31, 2020, the Series F Subordinated Debentures due December 31, 2020,
the Series G Subordinated Debentures due December 31, 2022, the Series H
Subordinated Debentures due December 31, 2019, the Series I Subordinated
Debentures due December 31, 2020, the Series J Subordinated Debentures
due December 31, 2021, the Series K Subordinated Debentures due
December 31, 2022, the Series L Subordinated Debentures due December
31, 2023, the Series M Subordinated Debentures due December 31, 2024,
the Series N Subordinated Debentures due December 31, 2025, the Junior
Subordinated Debentures due 2001 and the Junior Subordinated Debentures
due 2004-2007, in each case of the Guarantor, and such other liabilities of
the Guarantor and its Restricted Subsidiaries from time to time owing to
any of the following: (a) an individual who is a current, prospective or
former director, officer or employee of the Guarantor and its Subsidiaries,
(b) an individual who is a professional advisor or consultant to the
Guarantor and its Subsidiaries, (c) a family member by blood, marriage or
adoption of any Person described in clause (a) or (b) immediately above, (d)
any trust, partnership, corporation, or other entity in which the Persons
described in clauses (a), (b) and/or (c) immediately above are the holders of
the majority of either the voting or beneficial interests of such entity, (e)
any organization qualifying under Section 501(c)(3) of the Code, (f) any
private foundation qualifying under Section 509 of the Code, (g) any
business entity with which the Guarantor or any of its Subsidiaries has a
beneficial business relationship, and (h) any Person not described in any of
clauses (a) through (g) but only to the extent that the aggregate principal
amount of such Indebtedness held by such Persons described in clause (g)
and this clause (h) does not exceed 30% of the aggregate principal amount
of all Junior Subordinated Debt; provided that such Subordinated
Debentures, and such other liabilities owing to Persons described in the
foregoing clauses (a) through (h), are unsecured and subordinated to the
Obligations and all other Indebtedness which is itself not expressly
subordinated in right of payment to any other Indebtedness on terms
substantially identical to the Junior Subordination Terms.
"Junior Subordination Terms" means the terms of subordination
set forth in Exhibit G.
"Lenders" means, collectively, the Initial Lenders, the Additional
Lenders and each other Eligible Assignee that acquires the rights and
obligations of a Lender hereunder pursuant to Section 9.04.
"Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Lending Office" in the Administrative
Questionnaire of such Lender or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Agent.
"LIBOR Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "LIBOR Lending Office" in the
Administrative Questionnaire of such Lender or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender
as such Lender may from time to time specify to the Borrowers and the
Agent.
"LIBOR Rate" means, for any Interest Period for each LIBOR
Rate Loan comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the Interbank
Offered Rate for such LIBOR Rate Loan by (b) a percentage equal to 100%
minus the Reserve Percentage for such Interest Period.
"LIBOR Rate Loan" means an Loan that bears interest as provided
in Section 2.08(a)(iii).
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Notes,
the FMR Guaranty, and any other instruments or agreements executed and
delivered by the parties in connection with the transactions contemplated by
this Agreement.
"Loans" means, collectively, the Revolving Credit Loans and the
Term Loans.
"Managing Member" means, (a) with respect to Geode
Management, Fidelity Investors III Limited Partnership as managing
member, (b) with respect to Geode Investors, Geode Management as
managing member and (c) with respect to each of the Geode Series, Geode
Management as managing member of Geode Investors.
"Margin Stock" has the meaning specified in Regulations U and X.
"Material Adverse Effect" means, with respect to any Borrower or
the Guarantor, a material adverse effect on (a) the business, condition
(financial or otherwise), operations, performance, properties, or prospects of
the Guarantor or the Borrowers taken as a whole, (b) the enforceability of
the Loan Documents, or the rights and remedies of the Agent or any Lender
under the Loan Documents or (c) the ability of such Borrower or the
Guarantor, as applicable, to pay and perform its obligations under this
Agreement or the FMR Guaranty, as the case may be.
"Material Indebtedness" means, on any date, with respect to the
Guarantor or any Borrower: (a) all Subject Debt (other than Indebtedness
under this Agreement) and (b) the net termination obligations in respect of
one or more Hedging Agreements (calculated as if such Hedging
Agreements were terminated as of such date), if on such date the aggregate
outstanding principal amount of any such Indebtedness exceeds (i) in the
case of the Guarantor, $75,000,000 and (ii) in the case of any Borrower,
15% of its total assets.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"▇▇▇▇▇'▇ Rating" means, at any time, the then current rating by
Moody's (including the failure to rate) of the Guarantor's senior, unsecured,
long-term indebtedness for money borrowed that is not guaranteed by any
other Person or subject to any other credit enhancement.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Asset Value" means, as of any date and with respect to the
Guarantor and any one or more of its Subsidiaries (in each case determined
on a consolidated basis without duplication, in accordance with GAAP), the
sum of (a) the total of all assets which in accordance with GAAP should
appear on the asset side of the consolidated balance sheet of the Guarantor
and such Subsidiaries minus (b) the amount of all assets on such balance
sheet (including, without limitation, goodwill) which should be treated as
intangibles under GAAP minus (c) all liabilities and obligations contingent
or otherwise, which in accordance with GAAP should be reflected on such
balance sheet, all subject to the following adjustments:
(i) securities, other than Capital Stock of
Subsidiaries, in which a quoted market exists shall be
taken at market values on the date as of which Net Asset
Value shall be determined; securities, other than Capital
Stock of Subsidiaries, in which a quoted market does not
exist shall be taken at their cost to the Guarantor less
subsequent adjustments, if any, as shown by its books of
account or at such value determined in accordance with
Section 6.04; and the equity investment by the Guarantor
or any Subsidiary in any other Subsidiary shall not be
taken into account in determining Net Asset Value;
(ii) real estate (including land and
buildings) shall be taken at book value or at such value
determined in accordance with Section 6.04;
(iii) without duplication, there shall be
deducted from or added to Net Asset Value such reserves
for contingencies and undetermined liabilities (other than
any liabilities arising under the Guarantor's Certificate of
Incorporation, as in effect as of the date hereof), including
tax liabilities (benefits) which would arise from possible
realization by the Guarantor and such Subsidiaries of then
existing unrealized gains (losses) on securities valued
above cost as permitted by clause (i) of this definition or
real estate valued above book value as permitted by
clause (ii) of this definition; and
(iv) the obligations of the Guarantor in
connection with the Executive Shares Plan shall not be
treated as liabilities of the Guarantor except to the extent
that the "Net Asset Value" (as such term is defined in the
Executive Shares Plan) per share of any Executive Shares
is less than the respective original issue price.
"Non-Extending Lender" has the meaning set forth in Section
2.16(b).
"Non-recourse Debt" means, with respect to any Borrower or the
Guarantor and its Restricted Subsidiaries, all liabilities thereof incurred to
finance the acquisition of property which is subject to a lease, mortgage or
security agreement which provides for payments sufficient to pay the entire
principal, premium and interest on such liability, and which liability is
payable solely out of the assets specifically encumbered and not out of other
assets of such Borrower or the Guarantor or any of its Restricted
Subsidiaries, as applicable.
"Notice Date" has the meaning set forth in Section 2.16(b).
"Notice of Borrowing" has the meaning set forth in
Section 2.02(a).
"Obligations" All indebtedness, obligations and liabilities of the
Borrowers and the Guarantor to the Agent, the Lenders existing on the date
of this Agreement or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise
under or in connection with this Agreement or in respect of the Loans, the
Notes, the FMR Guaranty or the other Loan Documents.
"Ordinary Course Debt" means with respect to any Person, its
liabilities incurred in the ordinary course, including (a) liabilities in
respect of certificates of deposit, (b) any agreement entered into in the
ordinary course of business to purchase or repurchase securities, (c) trade
payables, (d) margin debt and stock loan debt and (e) liabilities incurred to
fund contingent deferred sales commissions; provided that in any event
"Ordinary Course Debt" shall not include liabilities incurred in connection
with acquisitions
"Original Dollar Amount" means:
(a) with respect to any Loan made in Dollars, the
original amount thereof; and
(b) in respect of any Loan made in Sterling, the
Equivalent in Dollars of Sterling of the original amount of such Loan,
advance or payment as of the date of the making thereof, reduced, however,
in any case by the amount of such Loan which shall have been repaid or
prepaid.
"Other Restricted Subsidiary" means, as of any date, each
Subsidiary of the Guarantor designated as an "Other Restricted Subsidiary"
in accordance with the terms of the FMR Guaranty.
"Other Taxes" has the meaning specified in Section 2.11(b).
"Participant" has the meaning specified in Section 9.04(e).
"Partnerships" has the meaning specified in the recital.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar
functions.
"Permitted Liens" means, collectively:
(a) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 13(d) of the FMR Guaranty;
(b) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation, unemployment
insurance, social security and other similar laws or regulations;
(c) deposits and pledges to secure the performance
of bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and other obligations
of a like nature arising in the ordinary course of business;
(d) judgment liens in respect of judgments that do
not constitute an Event of Default under paragraph (k) of Section 7.01; and
(e) zoning ordinances, easements, rights-of-way,
minor defects, irregularities and other similar encumbrances on real
property imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary conduct of
business of the Guarantor.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
the Guarantor, any Borrower or any ERISA Affiliate is (or, if such plan
were terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pro Rata Basis" means, (i) with respect to the allocation of
commitment fees, a pro rata allocation calculated on the Quarterly Date on
which such fee is payable or the Commitment Termination Date, as
applicable, and, on any date of determination with respect to each Borrower,
based on the percentage that such Borrower's outstanding Loans on such
date represents of the aggregate Loans outstanding to all of the Borrowers
on such date and (ii) with respect to the allocation of fees, expenses,
indemnities or other amounts owed by the Borrowers to the Agent or the
Lenders from time to time, a pro rata allocation on any date of
determination with respect to each Borrower, based on the percentage that
such Borrower's outstanding Loans on such date represents of the aggregate
Loans outstanding to all of the Borrowers on such date; provided that in
either case, if no Loans are outstanding on such date, such fees or amounts
shall be allocated equally among all Borrowers.
"Quarterly Dates" means March 31, June 30, September 30 and
December 31 in each year, the first of which shall be the first such day after
the Closing Date; provided that, if any such day is not a Business Day, the
relevant Quarterly Date shall be the immediately preceding Business Day.
"Reference Banks" means Fleet and Deutsche Bank AG (or their
respective applicable lending offices, as the case may be).
"Register" has the meaning specified in Section 9.04(c).
"Regulation U" and "Regulation X" mean Regulation U and X of
the Board of Governors of the Federal Reserve System, respectively, as in
effect from time to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Replacement Lender" has the meaning specified in Section
2.13(a).
"Reported Net Asset Value" means, with respect to the Guarantor
and any one or more of its Subsidiaries, as of any date of determination
thereof, the Net Asset Value of the Guarantor and such Subsidiaries as of
the fiscal quarter most recently ended prior to such date in respect of which
the certificate referred to in Section 13(a)(iii) of the FMR Guaranty shall
have been delivered.
"Reported Net Income" means, with respect to any Person or
group of Persons, as of any date of determination thereof, the net income
before income taxes and extraordinary items of such Person or group of
Persons, as the case may be, determined on a consolidated basis, without
duplication, in accordance with GAAP, for the four consecutive fiscal
quarter period most recently ended prior to such date in respect of which the
certificate referred to in Section 13(a)(iii) of the FMR Guaranty shall have
been delivered.
"Required Lenders" means, at any time, Lenders to which greater
than 50% of the aggregate principal amount of the Loans is owing or, if no
Loan is outstanding, the Lenders which together have Commitments
aggregating greater than 50% of the total Commitments.
"Reserve Percentage" means, for any Interest Period for each
LIBOR Rate Loan comprising part of the same Borrowing, the reserve
percentage (if any) applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with deposits exceeding
$1,000,000,000 with respect to liabilities or assets consisting of or including
"Eurocurrency Liabilities" as that term is defined in such regulations (or
with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on LIBOR Rate Loans is determined)
having a term equal to such Interest Period.
"Responsible Officer" means any authorized representative and
any other officer of a Borrower, or the Guarantor, as the case may be, with
responsibility for the administration of the relevant portion of this
Agreement, or the FMR Guaranty, as the case may be.
"Restricted Payment" means (a) the declaration or payment of any
dividend on or in respect of any shares of any class of Capital Stock of any
Person other than dividends payable solely in shares of common stock of
such Person, or (b) the purchase, redemption or retirement of any shares of
any class of Capital Stock of any Person or of warrants, rights or other
options to purchase any shares of Capital Stock of such Person or of any
participating interest factor relating to any Capital Stock or liability of
such Person, in any such case directly or indirectly, through a Subsidiary of
such Person or otherwise, other than for consideration consisting solely of
shares of any class of Capital Stock of such Person, (c) the return of capital
by any Person to its shareholders as such, or (d) any other distribution in or
in respect of any shares of any class of Capital Stock of such Person.
"Restricted Subsidiary" means, as of any date, (a) FMR Co., (b)
each Investment Advisory Subsidiary as of such date, and (c) each Other
Restricted Subsidiary as of such date.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Loans of the same Type made by the
Lenders pursuant to Section 2.01, or Converted pursuant to Section 2.06.
"Revolving Credit Loans" has the meaning specified in Section
2.01(a).
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., or any successor thereto.
"S&P Rating" means, at any time, the then current rating by S&P
(including the failure to rate) of the Guarantor's senior, unsecured, long-
term indebtedness for money borrowed that is not guaranteed by any other
Person or subject to any other credit enhancement.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Second Currency" has the meaning specified in Section 9.13.
"Security" means a "security" as defined in Section 2(1) of the
Securities Act of 1933, as amended.
"Series" means a designated series of interests in a limited liability
company organized under Delaware law having, under sec.18-215 of the
Delaware Act, separate rights, powers or duties with respect to specified
property or obligations of such limited liability company.
"Short Term Indebtedness" means, with respect to the Guarantor
and its Restricted Subsidiaries, or any Borrower, as of any date, all
Indebtedness (including any current portion thereof) of the Guarantor and
its Restricted Subsidiaries, or such Borrower, as applicable, which by its
terms matures in one year or less from such date.
"Significant Subsidiary" means (a) FMR Co., (b) each Investment
Advisory Subsidiary, (c) as of any date, each Designated Significant
Subsidiary as of such date, and (d) as of any date, any other Subsidiary of
the Guarantor which meets any of the following conditions as of the fiscal
quarter ending on or most recently ended prior to such date:
(i) the investments, recorded on the equity
method of accounting, of the Guarantor and its
Subsidiaries in such Subsidiary exceeds in the aggregate
10% of the Net Asset Value of the Guarantor and all of its
Subsidiaries; or
(ii) the equity of the Guarantor and its
Subsidiaries in the income before income taxes and
extraordinary items of such Subsidiary exceeds 10% of
such income of the Guarantor and all of its Subsidiaries
(determined on a consolidated basis without duplication
in accordance with GAAP) for the four fiscal quarters
ending on or most recently ended prior to such date.
The conditions in the foregoing clauses (i) and (ii) shall be applied
based upon the certificate most recently delivered pursuant to Section 11 of
the FMR Guaranty.
"Specified Currency" has the meaning specified in Section 9.13.
"Sterling" means lawful money of the United Kingdom of Great
Britain and Northern Ireland.
"Subject Debt" means, at any date of determination (and without
duplication), with respect to the Guarantor or any Borrower, (a) all
Indebtedness (including any current portion thereof) of the Guarantor and
its Restricted Subsidiaries outstanding on such date which by its terms
matures more than one year from such date or is renewable or extendible at
the option of the debtor beyond one year from such date (including any
Indebtedness for money borrowed under a revolving credit or similar
agreement having a maturity more than one year from such date), (b) any
Indebtedness of the Guarantor and its Restricted Subsidiaries or such
Borrower, as the case may be, outstanding on such date secured by a
mortgage, security interest or similar Lien on assets of the Guarantor or its
Restricted Subsidiaries, or such Borrower, as the case may be, (c) all
Indebtedness represented by this Agreement outstanding on such date, (d)
any Short Term Indebtedness outstanding on such date and (e) all
Guarantees, endorsements, letters of credit, equity maintenance agreements
and other similar obligations of the Guarantor and its Restricted
Subsidiaries or such Borrower, as the case may be, whether contingent or
matured, in each case in an amount equal to the lesser of the stated or face
amount of such Guarantee, endorsement or other obligation or the amount,
if quantifiable, of the obligation which is covered by such Guarantee,
endorsement or other obligation; provided that "Subject Debt" shall not
include, with respect to the Guarantor or such Borrower, (i) any
Indebtedness to the extent the debtor has deposited in trust with a trustee or
similar fiduciary an amount of money (or notes, debentures or other
evidences of Indebtedness, if permitted pursuant to the terms of the
agreement or instrument creating or evidencing such liability) sufficient to
pay, prepay, redeem, retire or otherwise satisfy such liability, and the Agent
and the Lenders shall have received an opinion in form, scope and
substance and from counsel reasonably satisfactory to them that such trust is
a legal and contractual defeasance, (ii) any Ordinary Course Debt, (iii) any
Non-recourse Debt or (iv) any Junior Subordinated Debt.
"Subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, Series, partnership,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of
such date, as well as any other corporation, limited liability company,
Series, partnership, association or other entity (a) of which securities or
other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise Controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one
or more subsidiaries of the parent; provided that in no event shall a Tax
Benefit Entity be a Subsidiary.
"Tax Benefit Entity" means, with respect to any Borrower or the
Guarantor, any Person that would otherwise constitute a Subsidiary of such
Borrower or the Guarantor, as applicable, so long as the activities of such
Person consist solely of engaging in transactions in which more than fifty
percent of the prospective investment return to such Person is derived from
the generation of tax benefits.
"Tax Indemnitee" has the meaning specified in Section 2.11(a).
"Taxes" has the meaning specified in Section 2.11(a).
"Term Borrowing" means a borrowing consisting of Term Loans
of the same Type converted from Revolving Credit Loans pursuant to
Section 2.01, or Term Loans Converted to another Type pursuant to Section
2.06.
"Term Loans" has the meaning specified in Section 2.01.
"Transactions" means, (i) with respect to any Borrower, the
execution, delivery and performance by such Borrower of this Agreement
and the borrowing of Loans and the use of the proceeds thereof, and (ii)
with respect to the Guarantor, the execution, delivery and performance by
the Guarantor of the FMR Guaranty.
"Type" refers to the distinction between Loans bearing interest at
rates based upon the Base Rate, the Federal Funds Rate and the LIBOR
Rate.
"United States" means, except as provided in Section 2.11(d), the
United States of America.
"Withdrawal Liability" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Other Definitional and Interpretive Provisions.
(a) All terms in this Agreement, the Exhibits and
Schedules hereto shall have the same defined meanings when used in the
FMR Guaranty or any other Loan Documents, unless the context shall
require otherwise.
(b) All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular.
(c) The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provisions of this
Agreement.
(d) The preamble hereto is part of this Agreement.
Titles and headings of Articles and Sections in this Agreement are for
convenience only, do not constitute part of this Agreement and neither limit
nor amplify the provisions of this Agreement, and all references in this
Agreement to Articles, Sections, Subsections, paragraphs, clauses,
subclasses, Schedules or Exhibits shall refer to the corresponding Article,
Section, Subsection, paragraph clause, subclause, Schedule or Exhibit
attached to this Agreement, unless specific reference is made to the articles,
sections or other subdivisions or divisions of such Schedule or Exhibit to or
in another document or instrument.
(e) Each definition of a document in this Agreement
shall include such document as amended, modified, supplemented, restated,
renewed or extended from time to time.
(f) Except where specifically restricted, reference to
a party in a Loan Document includes that party and its successors and
assigns permitted hereunder or under such Loan Document.
(g) Unless otherwise specifically stated, whenever a
time is referred to in this Agreement or in any other Loan Document, such
time shall be the local time in the city in which the principal office of the
Agent is located at all times when Fleet is the Agent hereunder.
(h) Any list in this Agreement of one or more items
preceded by the words "include or "including" shall not be deemed limited
to the stated items but shall be deemed without limitation.
Section 1.03. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Guarantor or a Borrower notifies the Agent that the
Guarantor or a Borrower requests an amendment to any provision hereof or
of the FMR Guaranty to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Agent notifies the Guarantor or a Borrower that the
Required Lenders request an amendment to any provision hereof or of the
FMR Guaranty for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. Loans, Etc.
(a) Revolving Credit Loans. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make advances
("Revolving Credit Loans") to each Borrower (as designated in the
applicable Notice of Borrowing) from time to time on any Business Day
during the period from the Closing Date until the Commitment Termination
Date in an aggregate amount (based in respect of any Borrowing
denominated in Sterling on the Equivalent thereof in Sterling) at any one
time outstanding not to exceed at any time the amount of such Lender's
Commitment; provided that in no event shall any Revolving Credit Loan be
made by any Lender to the extent that, after giving effect thereto, (i) the
sum of the Revolving Credit Loans owed to such Lender would exceed the
amount of its Commitment or (ii) the aggregate outstanding principal
amount of the Revolving Credit Loans would exceed the aggregate amount
of the Commitments. Revolving Credit Loans may be made as Federal
Funds Rate Loans, Base Rate Loans, or LIBOR Rate Loans, all as more
particularly described herein.
(b) Term Loans. If the then-effective Commitment
Termination Date shall not have been extended pursuant to the terms of
Section 2.16, each Borrower may, by notice to the Agent not later than 10
days prior to such Commitment Termination Date, continue all then
outstanding Revolving Credit Loans owed by such Borrower outstanding on
the Commitment Termination Date as term advances ("Term Loans");
provided that any such continuation shall be subject to the condition that no
Default or Acceleration Event shall have occurred and be continuing on the
date of such continuation and after giving effect thereto. Term Loans may
be Federal Funds Rate Loans, Base Rate Loans, or LIBOR Rate Loans, all
as more particularly described herein.
(c) Minimum Amounts. Each Borrowing shall be in
an aggregate amount not less than $5,000,000 (or the Equivalent thereof in
Sterling) or an integral multiple of $1,000,000 (or the Equivalent thereof in
Sterling) in excess thereof and shall consist of Loans of the same Type
made or Converted on the same day by the Lenders.
(d) Loans Made Ratably. The Revolving Credit
Loans shall be made by the Lenders ratably according to their respective
Commitments.
(e) Borrowings and Repayments. Within the limits
of each Lender's Commitment in effect from time to time, each Borrower
may borrow under this Section 2.01, prepay pursuant to Section 2.07, repay
and reborrow the Revolving Credit Loans. The borrowing of Loans may be
denominated in Dollars or Sterling or both such types of Loans, all as more
particularly described herein. The currency and amount of each Loan shall
be specified by the Borrower in the notice relating thereto.
(f) Sterling. A Loan denominated in Sterling must
be a LIBOR Rate Loan. Notwithstanding the provisions of the foregoing
Section 2.01(e), the Agent may deny the request by a Borrower with respect
to the making of a Loan in Sterling or the conversion of the outstanding
principal amount of a Loan into Sterling, or may require that all Loans
denominated in Sterling be converted into and denominated in Dollars
under the circumstances set forth in Section 2.17(a) or 2.17(b) and in
accordance with the terms thereof.
Section 2.02. Making the Revolving Credit Loans.
(a) Notice of Borrowing. Each Borrowing shall be
made on notice, given not later than (x) 11:00 a.m. (Boston time) on the
third Business Day prior to the date of the proposed Borrowing (in the case
of a Revolving Credit Borrowing to consist of LIBOR Rate Loans
denominated in Dollars), (y) 11:00 a.m. (Boston time) on the fourth
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of LIBOR Rate Loans denominated in Sterling), or
(z) no later than 11:00 a.m. (Boston time) on the Business Day of the
proposed Borrowing (in the case of a Revolving Credit Borrowing to
consist of Base Rate Loans or Federal Funds Rate Loans), by the Borrower
making a request for such Borrowing to the Agent, which shall give to each
Lender prompt notice thereof by facsimile transmission. Each such notice
of a Revolving Credit Borrowing (a "Notice of Borrowing") shall be made
in writing, in substantially the form of Exhibit B, specifying therein (1) the
name of the Borrower (2) the requested date of such Borrowing (which
shall be a Business Day), (3) the requested Type of Loans comprising such
Borrowing, (4) the requested aggregate amount of such Borrowing and the
aggregate principal amount of all outstanding Loans (not including the
requested Borrowing) held by such Borrower as of such date, (5) the
requested currency of such Borrowing (which shall be denominated in
either Dollars or Sterling), (6) the account to which the proceeds of such
Borrowing are to be made available, (7) in the case of a Revolving Credit
Borrowing to consist of a LIBOR Rate Loan, the initial Interest Period
therefor and (8) in the case of a Revolving Credit Borrowing to consist of a
Federal Funds Rate Loan, the requested maturity date for repayment of each
such Federal Funds Rate Loan to be made (which maturity date may not be
later than five Business Days after the date of such Borrowing) (a "Federal
Funds Rate Loan Maturity Date"). Each Notice of Borrowing shall be
irrevocable and binding on the Borrower giving such Notice of Borrowing.
(b) Funding by Lenders. Each Lender shall, before
1:00 p.m. (Boston time) on the date of each Revolving Credit Borrowing,
make available for the account of its Applicable Lending Office to the
Agent at the Agent's Accounts, in same day funds, such Lender's ratable
portion of such Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article IV, the
Agent will wire or deposit the proceeds of such Borrowing, in same day
funds, to the account of the Borrower specified in the Notice of Borrowing.
(c) Presumption by Agent. Unless the Agent shall
have received notice from a Lender prior to 12:00 noon (Boston time) on
the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Borrowing, the
Agent may assume that such Lender has made such portion available to the
Agent on the date of such Borrowing in accordance with Section 2.02(b)
and the Agent may, in reliance upon such assumption, make available, to
the Borrower requesting such Borrowing on such date, a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent and the Agent shall have made
available such corresponding amount to the Borrower requesting such
Borrowing on such date, such Lender and such Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is
made available to such Borrower until the date such amount is repaid to the
Agent, at (i) in the case of such Borrower, the interest rate applicable at
such time under Section 2.08 to Loans comprising such Borrowing and (ii)
in the case of such Lender, (A) the Federal Funds Effective Rate in the case
of Loans denominated in Dollars (or) (B) the cost of funds incurred by the
Agent in respect of such an amount in the case of Loans denominated in
Sterling. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Loan as part
of such Borrowing for purposes of this Agreement.
(d) Lender's Obligations Several. The failure of any
Lender to make the Revolving Credit Loan to be made by it as part of any
Revolving Credit Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Loan on the date
of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Loan to be made by such other
Lender on the date of any Borrowing.
Section 2.03. Fees.
(a) Commitment Fees. Each Borrower, severally,
and not jointly, agrees to pay to the Agent for the account of each Lender its
allocated share, determined on a Pro Rata Basis, of a commitment fee,
which shall accrue at 0.065% per annum on the daily amount of the
Commitment of such Lender (whether used or unused) during the period
from the date of this Agreement to the Commitment Termination Date,
payable in arrears on each Quarterly Date and on the Commitment
Termination Date, commencing on the first such date to occur after the date
hereof.
(b) Upfront Fees. The Borrowers hereby agree to
pay to the Agent, for the respective account of each Lender, on the Closing
Date, an upfront fee in an amount equal to .025% of the Commitment of
each Lender.
(c) Other Fees. Each Borrower hereby severally,
and not jointly, agrees to pay to the Agent, for the Agent's own account,
determined on a Pro Rata Basis, fees payable in the amounts and at the
times separately agreed upon between such Borrower and the Agent with
respect to the performance of its agency duties hereunder.
Section 2.04. Repayment; Evidence of Debt.
(a) Revolving Credit Loans. Subject to Section
2.01(b), each Borrower hereby severally, and not jointly, promises to pay to
the Agent for the account of the Lenders, on the Commitment Termination
Date, the full outstanding principal amount of any Revolving Credit Loans
made to such Borrower.
(b) Term Loans. Each Borrower hereby severally,
and not jointly, promises to repay the outstanding principal amount of each
Term Loan made to such Borrower in full on the date (the "Final Maturity
Date") that is the first anniversary of the date upon which the Revolving
Credit Loans were converted into Term Loans pursuant to Section 2.01;
provided that if such first anniversary date is not a Business Day, the Final
Maturity Date shall be the next preceding Business Day.
(c) Promissory Notes. Any Lender may request that
Loans made by it be evidenced by a promissory note. In such event, the
Borrowers shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) in substantially the form of Exhibit
A. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
9.04) be represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
Section 2.05. Termination or Reduction of the Commitments.
(a) Optional. All of the Borrowers may at any time,
upon not less than seven Business Days' notice to the Agent, which shall be
irrevocable, terminate in whole or reduce in part the Commitments;
provided that (i) each partial reduction of the Commitments shall be in an
aggregate amount of $10,000,000 or an integral multiple of $5,000,000 in
excess thereof, (ii) the aggregate amount of the Commitments shall not be
reduced below the sum of the aggregate Loans outstanding at such time and
(iii) any such reductions shall be applied to the Commitments of the
Lenders ratably in accordance with the aggregate amount thereof.
(b) Mandatory. The Commitments shall be
automatically and permanently reduced to zero on the Commitment
Termination Date.
(c) No Reinstatement. Commitments once
terminated or reduced may not be reinstated.
Section 2.06. Conversion of Loans.
(a) Optional. Any Borrower may on any Business
Day, upon notice given to the Agent not later than 11:00 a.m. (Boston time)
on the third Business Day prior to the date of the proposed Conversion,
Convert all Loans of one Type comprising the same Borrowing by such
Borrower into Loans of another Type; provided that any Conversion of
LIBOR Rate Loans into Base Rate Loans or Federal Funds Rate Loans shall
be made only on the last day of an Interest Period for such LIBOR Rate
Loans. Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the name of the Borrower, (ii) the date of such
Conversion, (iii) the Loans to be Converted, (iv) the Type of Loans to be
Converted into, and (v) if such Conversion is into LIBOR Rate Loans, the
duration of the initial Interest Period for each such Loan and the currency
(which shall either be Dollars or Sterling) such LIBOR Rate Loan shall be
made in. Each notice of Conversion shall be irrevocable and binding on
such Borrower.
(b) Mandatory. Upon the occurrence and during the
continuation of any Event of Default or Acceleration Event, (i) each LIBOR
Rate Loan will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Loan, and the obligations of the
Lenders to make or Convert Loans into, or to continue, LIBOR Rate Loans
shall be suspended and (ii) each Federal Funds Rate Loan will
automatically, on the next Business Day, Convert into a Base Rate Loan,
and the obligations of the Lenders to make or Convert Loans into, or to
continue, Federal Funds Rate Loans shall be suspended.
Section 2.07. Prepayments.
(a) Notice of Prepayment. Any Borrower may,
upon notice substantially in the form of Exhibit B-1 given to the Agent
(which notice shall state the proposed date and aggregate principal amount
of the prepayment), and if such notice is given such Borrower shall, prepay,
in whole or in part, the outstanding principal amount of the Loans made to it
in the aggregate amount and on the date specified in such notice; provided
that each such notice shall be made not later than (A) 11:00 a.m. (Boston
time) on the relevant day (in the case of a prepayment of a Base Rate Loan
or a Federal Funds Rate Loan) or (B) 11:00 a.m. (Boston time) on the
second Business Day prior to the date of the proposed prepayment (in the
case of a prepayment of a LIBOR Rate Loan). Each prepayment of Loans
under this Section 2.07(a) shall be made for account of the Lenders
according to the respective principal amounts of their Loans then
outstanding.
(b) Mandatory Prepayments.
(i) If the Agent notifies the Borrowers that,
on any interest payment date, the sum of (A) the
aggregate principal amount of all Borrowings
denominated in Dollars then outstanding plus (B) the
Equivalent in Dollars of the aggregate principal amount of
all Borrowings denominated in Sterling then outstanding
exceeds 105% of the aggregate amounts of the
Commitments on such date, the Borrowers shall, within
two Business Days after receipt of such notice, prepay the
outstanding principal amount of any Borrowings in an
aggregate amount sufficient to reduce such sum to an
amount not to exceed 100% of the Commitments on such
date.
(ii) To reduce breakfunding costs, if the
Agent notifies the Borrowers that, on any date, the sum of
the amounts described in clauses (A) and (B) of
subsection (i) above exceeds 103% of the aggregate
amount of the Commitments on such date, the Borrowers
shall, within two Business Days after receipt of such
notice, prepay the outstanding principal amount of any
Borrowings in an aggregate amount sufficient to reduce
such sum to an amount not to exceed 100% of the
aggregate amount of the Commitments on such date;
provided that if the aggregate principal amount of Base
Rate Loans and Federal Funds Rate Loans then
outstanding is less than the amount of such required
prepayment, the portion of such required prepayment in
excess of the aggregate principal amount of Base Rate
Loans and Federal Funds Rate Loans then outstanding
shall be paid on the last day of each Interest Period ended
on or after the date of such notice in an amount equal to
the aggregate principal amount of the LIBOR Rate Loans
then maturing until such excess has been fully paid.
(c) Terms Applicable to All Prepayments. All
prepayments (whether made under this Section 2.07 or otherwise) shall be
made together with accrued interest to the date of such prepayment on the
principal amount prepaid, and all amounts owing under Section 2.09(f) in
respect of such prepayment.
(d) Upon delivery of a notice in accordance with
Section 2.07(a) above, prepayment of the outstanding amount of the Loans,
if any, made to such Borrower and the repayment of all fees and other
amounts due at such time, if any, by such Borrower to the Agent or the
Lenders under this Agreement, any Borrower shall be permitted to
withdraw from this Agreement and cease to be deemed a "Borrower"
hereunder, and upon any such withdrawal by a Borrower, such Borrower
shall no longer be deemed to have any Obligations to the Lenders or the
Agent other than the obligations that expressly survive termination of this
Agreement under Section 9.05 hereof.
Section 2.08. Interest.
(a) Scheduled Interest. Each Borrower shall pay
interest on the unpaid principal amount of each Loan owing by such
Borrower from the date of such Loan until such principal amount shall be
paid in full at the following rates per annum:
(i) Base Rate Loans. In the case of a Base
Rate Loan, a rate per annum equal at all times to the sum
of (x) the Base Rate in effect from time to time plus (y)
the Applicable Rate, payable in arrears on each Quarterly
Date, and at maturity.
(ii) Federal Funds Rate Loans. In the case
of a Federal Funds Rate Loan, a rate per annum equal at
all times to the sum of (x) the Federal Funds Rate in effect
from time to time plus (y) the Applicable Rate, payable in
arrears on the applicable Federal Funds Rate Loan
Maturity Date.
(iii) LIBOR Rate Loans. During such
periods as such Loan is a LIBOR Rate Loan, a rate per
annum equal at all times during each Interest Period for
such Loan to the sum of (x) the LIBOR Rate for such
Interest Period for such Loan plus (y) the Applicable Rate
in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has
a duration of more than three (3) months, on each day
that occurs during such Interest Period every three (3)
months from the first day of such Interest Period and on
the date such LIBOR Rate Loan shall be Converted or
paid in full.
(b) Default Interest. Notwithstanding Section
2.08(a), upon the occurrence and during the continuance of an Event of
Default or Acceleration Event with respect to any Borrower, such Borrower
shall pay interest on the outstanding principal amount of any Loan made to
such Borrower, and upon the unpaid amount of all interest, fees and other
amounts payable by such Borrower hereunder, such interest to be paid in
arrears on the date such amount shall be paid in full and on demand, at a
rate per annum equal at all times to (i) in the case of any amount of
principal, 2% per annum above the rate per annum required to be paid
pursuant to paragraph (a) above, and (ii) in the case of all other amounts,
2% per annum above the Base Rate from time to time.
Section 2.09. Increased Costs, Illegality, Etc.
(a) Change in Law. If, due to either (i) the
introduction of or any change in or in the interpretation or application of (to
the extent any such introduction or change occurs after the date hereof) any
law or regulation or (ii) the compliance with any direction, guideline or
request from any central bank or other Governmental Authority adopted or
made after the date hereof (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining LIBOR Rate Loans, then the Borrower to
which such LIBOR Rate Loans were made shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to
the Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost; provided that, before
making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different LIBOR Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender,
be otherwise disadvantageous to such Lender. A certificate as to the
amount of such increased cost shall be submitted to such Borrower by such
Lender and such certificate shall be conclusive and binding for all purposes,
absent manifest error.
(b) Capital Requirements. If any Lender determines
in good faith that compliance with any law or regulation enacted or
introduced after the date hereof or any guideline or request from any central
bank or other Governmental Authority adopted or made after the date
hereof (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender or
any corporation controlling such Lender and that the amount of such capital
is increased by or based upon the existence of such Lender's Commitment,
then, upon demand by such Lender (with a copy of such demand to the
Agent), the Borrower to which such LIBOR Rate Loans were made shall
pay to the Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the
existence of such Lender's Commitment. A certificate as to such amounts
shall be submitted to such Borrower by such Lender and such certificate
shall be conclusive and binding for all purposes, absent manifest error.
(c) Rates Not Covering Costs. If, with respect to
any LIBOR Rate Loans, the Required Lenders notify the Agent that the
LIBOR Rate for any Interest Period for such Loans will not adequately
reflect the cost to such Required Lenders of making, funding or maintaining
their respective LIBOR Rate Loans for such Interest Period, the Agent may
notify the Borrowers and the Lenders that the making or maintaining of
LIBOR Rate Loans shall be suspended, whereupon (i) such LIBOR Rate
Loan will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Loan, and (ii) the obligation of the
Lenders to make, or to Convert Loans into LIBOR Rate Loans shall be
suspended until the Agent shall notify the Borrowers and the Lenders that
the circumstances causing such suspension no longer exist.
(d) Illegality. Notwithstanding any other provision
of this Agreement, if the introduction of or any change in or in the
interpretation of (to the extent any such introduction or change occurs after
the date hereof) any law or regulation shall make it unlawful, or any central
bank or other Governmental Authority having appropriate jurisdiction shall
assert in writing after the date hereof that it is unlawful, for any Lender or
its LIBOR Lending Office to perform its obligations hereunder to make
LIBOR Rate Loans or to continue to fund or maintain LIBOR Rate Loans
hereunder, then, on notice thereof and demand therefor by such Lender
through the Agent to the Borrower to which such LIBOR Rate Loans were
made, (i) each LIBOR Rate Loan of such Lender will automatically, upon
such demand, Convert to a Base Rate Loan and (ii) the obligation of such
Lender to make, or to Convert Base Rate Loans into, LIBOR Rate Loans
shall be suspended until the Agent shall notify the Borrowers that such
Lender has determined that the circumstances causing such suspension no
longer exist; provided that, before making any such demand, such Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different LIBOR Lending Office
if the making of such a designation would allow such Lender or its LIBOR
Lending Office to continue to perform its obligations to make LIBOR Rate
Loans or to continue to fund or maintain LIBOR Rate Loans and would not,
in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender.
(e) Excluded Period. Notwithstanding anything to
the contrary set forth therein, the Borrowers shall not be obligated to pay
any additional amounts arising pursuant to clauses (a) and (b) above that are
attributable to the Excluded Period with respect to such additional amount;
provided that if an applicable law, rule, regulation, guideline or request
shall be adopted or made on any date and shall be applicable to the period (a
"Section 2.09(e) Retroactive Period") prior to the date on which such law,
rule, regulation, guideline or request is adopted or made, the limitation on
the Borrower's obligation to pay such additional amounts hereunder shall
not apply to the additional amounts payable in respect of such Section
2.09(e) Retroactive Period so long as the Borrowers receive notice of such
law, rule, regulation, guideline or request from the Agent or any Lender
within 90 days after its adoption.
(f) Breakfunding. If any payment of principal of, or
Conversion of, any LIBOR Rate Loan is made by a Borrower to or for the
account of a relevant Lender other than on the last day of the Interest Period
for such Loan, as a result of a payment or Conversion pursuant to Section
2.06(b), 2.07 or 2.09(d) or as the result of acceleration of the maturity of
the Loans pursuant to Article VII or for any other reason, or in the event such
Borrower shall fail (for any reason, including by reason of the failure of any
conditions precedent in Article IV to be satisfied, or the failure of any of
the conditions to the continuation of the Revolving Credit Loans as Term Loans
hereunder pursuant to Section 2.01 to be satisfied) to borrow a LIBOR Rate
Loan from any Lender on the date specified therefor in the applicable
Notice of Borrowing, or to effect a continuation involving LIBOR Rate
Loans pursuant to Section 2.01, such Borrower shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that it may reasonably incur as a
result of such payment, including any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such LIBOR Rate Loan made to such Borrower.
Section 2.10. Payments and Computations.
(a) Payments. Each Borrower shall make each
payment hereunder not later than 1:00 p.m. (Boston time) on the day when
due in Dollars, in the case of Borrowings denominated in Dollars, or in
Sterling, in the case of Borrowings denominated in Sterling to the Agent at
the Agent's Accounts in same day funds and, except as expressly set forth
herein, without deduction, set-off or counterclaim. The Agent will
promptly thereafter cause to be distributed like funds relating to the
payment of principal, interest and facility fees ratably (other than amounts
payable pursuant to Sections 2.09, 2.11 or 9.03) to the Lenders for the
account of their Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 9.04(c), from and after the
effective date of such Assignment and Acceptance, the Agent shall make all
payments hereunder in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) Computations. All computations of interest in
respect of Base Rate Loans or Federal Funds Rate Loans shall be made on
the basis of a year of 365 or 366 days, as the case may be, for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest is payable and all computations of
interest in respect of LIBOR Rate Loans and of facility fees shall be made
on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest or fees are payable. Each determination by the Agent of an
interest rate or fee hereunder made in accordance with the provisions of this
Agreement shall be conclusive and binding for all purposes, absent manifest
error.
(c) Payments Due on Non-Business Days. Unless
otherwise specified herein, whenever any payment hereunder shall be stated
to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest and fees, as
the case may be.
(d) Presumption by Agent. Unless the Agent shall
have received notice from a Borrower prior to the date on which any
payment is due to any Lender hereunder that such Borrower will not make
such payment in full, the Agent may assume that such Borrower has made
such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender
on such due date an amount equal to the amount then due such Lender. If
and to the extent such Borrower shall not have so made such payment in
full to the Agent, each such Lender shall repay to the Agent forthwith on
demand such amount distributed to such Lender together with interest
thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Effective Rate.
Section 2.11. Taxes.
(a) Payments Free of Taxes. Except as expressly
otherwise provided herein, any and all payments by any Borrower
hereunder shall be made, in accordance with Section 2.10, free and clear of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent (each, a "Tax
Indemnitee"), net income taxes that are imposed by the United States and
franchise taxes and net income taxes that are imposed on such Tax
Indemnitee by any state or foreign jurisdiction in which such Tax
Indemnitee is organized or in which its Applicable Lending Office is
located (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Tax Indemnitee, (i) subject to Section
2.11(f), the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 2.11) such Tax Indemnitee
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) Other Taxes. In addition, each Borrower agrees
to pay any present or future stamp or documentary taxes or similar levies
that arise from any payment made by it hereunder or from its execution,
delivery or registration of this Agreement (hereinafter referred to as "Other
Taxes").
(c) Indemnification by Borrowers. Each Borrower,
severally and not jointly, will indemnify each Tax Indemnitee for the full
amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.11)
attributable to such Borrower hereunder and paid by such Tax Indemnitee
and any liability (including penalties, additions to tax, interest and
reasonable expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from such date the Tax
Indemnitee makes written demand therefor.
(d) Evidence of Payments. Within 30 days after the
date of any payment of Taxes, each Borrower will furnish to the Agent, at
its address referred to in Section 9.01, original receipts or certified copies
thereof evidencing payment thereof. If such Borrower shall make a
payment hereunder through an account or branch outside the United States,
or a payment is made on behalf of such Borrower by a payor that is not a
United States Person, such Borrower will, if no taxes are payable in respect
of such payment, furnish, or will cause such payor to furnish, to the Agent,
at such address, a certificate from the appropriate taxing authority or
authorities, or an opinion of counsel acceptable to the Agent, in either case
stating that such payment is exempt from or not subject to Taxes. For
purposes of this paragraph (d) and paragraph (e) below, the terms "United
States" and "United States Person" shall have the meanings specified in
Section 7701 of the Code.
(e) Non-U.S. Lenders. Each Tax Indemnitee
organized under the laws of a jurisdiction outside the United States shall, on
or prior to the date of its execution and delivery of this Agreement or on the
date of the Assignment and Acceptance pursuant to which it became a
Lender (as the case may be), and from time to time thereafter if required by
applicable law or if reasonably requested in writing by any Borrowers or the
Agent (but only so long as such Tax Indemnitee remains lawfully able to do
so after the date such Person becomes a party hereto), provide the Agent
and such Borrowers with either Internal Revenue Service form W-8BEN or
W-8ECI, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying in the case of Form W-8BEN that such Tax
Indemnitee is either (i) entitled to benefits under an income tax treaty to
which the United States is a party that reduces the rate of withholding tax
on payments under this Agreement or (ii) is a Portfolio Interest Eligible
Non-Bank or certifying in the case of Form W-8ECI that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States. If the form provided by
a Tax Indemnitee at the time it first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero (or
if such Tax Indemnitee cannot provide at such time such form because it is
not entitled to reduced withholding under a treaty and the payments are not
effectively connected income), withholding tax at the rate indicated in such
form (or at the then existing U.S. statutory rate if the Tax Indemnitee cannot
provide such a form) shall be excluded from Taxes unless and until such
Lender provides the appropriate form certifying that a zero rate applies. For
purposes of this paragraph (e) the term "Portfolio Interest Eligible Non-
Bank" means a Tax Indemnitee that certifies in form and substance
reasonably satisfactory to the Borrowers that (i) it is not a bank within the
meaning of Code section 881(c)(3)(A), (ii) it is not a 10% shareholder of
the Borrower(s) within the meaning of Code section 881(c)(3)(B) and (iii) it
is not a controlled foreign corporation related to a Borrower within the
meaning of Code section 881(c)(3)(C).
(f) Effect of Failure to Provide Forms. For any
period with respect to which a Tax Indemnitee has failed to provide the
Borrowers and the Agent with the appropriate form described in paragraph
(e) above (other than if such failure is due to a change in law occurring after
the date on which a form originally was required to be provided or if such
form otherwise is not required under paragraph (e) above), such Lender
shall not be entitled to indemnification under paragraph (a) or (c) above
with respect to Taxes imposed by the United States or any State or other
political subdivision thereof that exceed the Taxes that would have been
imposed if the Lender had complied with its obligations under paragraph (e)
above.
(g) Mitigation by Lenders. Any Lender claiming
any additional amounts payable pursuant to this Section 2.11 shall use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office(s) if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the sole judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h) Applications for Refunds. Following a
reasonable written request of a Borrower, the Agent or Lender, as the case
may be, shall execute and deliver to such Borrower such certificates, forms
or other documents as can be furnished, and take such other action as can be
taken consistent with the facts, as are reasonably necessary to assist such
Borrower in applying for refunds of any Taxes and Other Taxes remitted
hereunder to the Agent or such Lender, as the case may be; provided that all
costs associated with any of the foregoing shall be paid by such Borrower;
provided further that furnishing of such documents or taking of such actions
would not, in the sole judgment of the Agent or such Lender, be otherwise
disadvantageous to the Agent or such Lender. Such refunds, together with
any interest received thereon, shall be for account of such Borrower.
Section 2.12. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Loans owing to it (other
than amounts payable pursuant to Sections 2.09, 2.11 or 9.03) in excess of
its ratable share of payments on account of the Loans obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Loans owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of
them; provided that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal
to such Lender's ratable share (according to the proportion of (i) the amount
of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable
by the purchasing Lender in respect of the total amount so recovered. The
Borrowers agree that, to the fullest extent permitted by applicable law, any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.12 may exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrowers in the amount of such participation.
Section 2.13. Replacement of Lender.
(a) Election to Replace by Borrower. Subject to
Section 2.13(b) below, in the event that any Lender requests compensation
pursuant to Section 2.09 or 2.11 (such Lender being herein called an
"Affected Lender"), then, so long as such condition exists, the Borrowers
may (i) obtain an assignee (any such assignee being herein called a
"Replacement Lender") acceptable to the Borrowers and the Agent, which
acceptance shall not be unreasonably withheld, to acquire or assume all or
part of such Affected Lender's Loans and Commitment, or (ii) request one
or more other Lenders to acquire or assume all or part of such Affected
Lender's Loans and Commitment, any assumption and purchase hereunder
to be without recourse to or representation or warranty by, or expense to,
the Affected Lender, and the purchase price to be equal to the aggregate
principal amount of the outstanding Loans held by the Affected Lender plus
all accrued but unpaid interest on such Loans and accrued but unpaid fees
and all other amounts owing to the Affected Lender (and upon such
assumption, purchase and substitution, and subject to the execution and
delivery to the Agent by the Replacement Lender of documentation
satisfactory to the Agent and the Affected Lender and compliance with the
requirements of Section 9.04(c), the Replacement Lender shall succeed to
the rights and obligations of the Affected Lender hereunder); provided that
the Borrowers shall also arrange for payment to the Agent of the processing
and recordation fee specified in Section 9.04(b)(iv) with respect to such
assignment. In the event that the Borrowers exercise their rights under this
Section 2.13(a), the Affected Lender shall no longer be a party hereto or
have any rights or obligations hereunder; provided that the obligations of
any Borrower to the Affected Lender under Sections 2.09, 2.11 and 9.03
with respect to events occurring or obligations arising before or as a result
of such replacement shall survive such exercise.
(b) No Replacement During Default, Etc. The
Borrowers may not exercise their rights under this Section 2.13 with respect
to any Affected Lender if a Default, Acceleration Event or Event of Default
has occurred and is then continuing or any of the Borrowers has not
otherwise paid all amounts owing to such Affected Lender under this
Agreement.
Section 2.14. Interest Rate Determination.
(a) Reference Bank Determinations. Each
Reference Bank agrees, upon request of the Agent, to furnish to the Agent
timely information for the purpose of determining the LIBOR Rate and the
Federal Funds Rate for Loans. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest
rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrowers and
the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.08(a)(ii), (iii) or (iv), and the rate, if any, furnished
by each Reference Bank for the purpose of determining the interest rate for
LIBOR Rate Loans or Federal Funds Rate Loans under Section 2.08(a)(ii),
(iii) or (iv).
(b) Failure to Elect. If any Borrower shall fail to
select the duration of any Interest Period for any LIBOR Rate Loans made
to such Borrower in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Agent will forthwith so
notify such Borrower and the Lenders and such Borrower shall be deemed
to have selected an Interest Period of one (1) month.
(c) Failure to Repay or Convert Federal Funds Rate
Loans. If any Borrower shall fail to repay, or Convert to a Loan of another
Type, any Federal Funds Rate Loan made to such Borrower by 11:00 a.m.
(Boston time) on the Federal Funds Rate Loan Maturity Date, the Agent
will forthwith so notify such Borrower and the Lenders and such Loans
shall automatically Convert into Base Rate Loans, effective as of such
Federal Funds Rate Loan Maturity Date.
(d) Failure of Reference Banks to Provide Rates. If
no Reference Bank furnishes timely information to the Agent for
determining the LIBOR Rate for any LIBOR Rate Loans, or the Federal
Funds Rate for Federal Funds Rate Loans,
(i) the Agent shall forthwith notify the
Borrowers and the Lenders that the interest rate cannot be
determined for such Loans made to such Borrowers,
(ii) each Loan will automatically, on the
last day of the then existing Interest Period therefor,
Convert into a Base Rate Loan (or if such Loan is then a
Base Rate Loan, will continue as a Base Rate Loan), and
(iii) the obligation of the Lenders to make,
or to Convert Loans into, LIBOR Rate Loans shall be
suspended until the Agent shall notify the Borrowers and
the Lenders that the circumstances causing such
suspension no longer exist.
(e) Changes in Ratings Systems. If the rating
system of either ▇▇▇▇▇'▇ or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Guarantor, the Borrowers and the Agent (on behalf of the Lenders) shall
negotiate in good faith to amend the references to specific ratings in this
Agreement to reflect such changed rating system or the non-availability of
ratings from such rating agency (provided that any such amendment to such
specific ratings shall in no event be effective without the approval of the
Required Lenders).
Section 2.15. Increase in Commitments. The Borrowers shall
have the right at any time prior to the Commitment Termination Date (but
not more frequently than once per calendar year) to increase the aggregate
Commitments hereunder by an aggregate amount as to all such increases
not exceeding $100,000,000.
Each Lender that is a party to this Agreement at the time the
Borrowers provide the Agent with a notice that it wishes to increase the
Commitments pursuant to this Section 2.15 (each such Lender, an
"Increasing Commitment Lender") shall have the right, but not the
obligation, to increase its Commitment pursuant to this Section 2.15, the
allocation of such Commitment increase among all Increasing Commitment
Lenders to be pro rata in accordance with the aggregate amount of the
proposed Commitment increases of such Lenders.
If the Borrowers desire to increase the aggregate amount of the
Commitments by an amount that exceeds the amount that the Increasing
Commitment Lenders, if any, agree to increase their Commitments by (the
"Increased Commitment Deficit Amount"), the Borrowers shall have the
right to additionally increase the Commitments by an amount up to the
Increased Commitment Deficit Amount by adding to this Agreement one or
more other lenders, (each such lender an "Additional Lender") with the
approval of the Agent (which approval shall not be unreasonably withheld),
each of which Additional Lenders shall have entered into an agreement in
form and substance satisfactory to the Borrowers and the Agent pursuant to
which such Additional Lender shall undertake a Commitment, which
Commitment shall be in an amount at least equal to twenty-five million
dollars ($25,000,000), or the Increased Commitment Deficit Amount, if
less, or a larger multiple of one million dollars ($1,000,000), and upon the
effectiveness of such agreement (the date of the effectiveness of any such
agreement being hereinafter referred to as the "Increased Commitment
Date") such Additional Lender shall thereupon become a "Lender" for all
purposes of this Agreement.
Notwithstanding the foregoing, no increase in the aggregate
Commitments hereunder pursuant to this Section 2.15 shall be effective
unless:
(a) the Borrowers shall have given the Agent notice
of any such increase at least three Business Days prior to any such
Increased Commitment Date;
(b) no Default or Acceleration Event shall have
occurred and be continuing as of the date of the notice referred to in the
foregoing Section 2.15(a) or on the Increased Commitment Date;
(c) both as of the Increased Commitment Date and
after giving effect to the increase in the Commitments to occur on such
Date, the Guarantor's ▇▇▇▇▇'▇ Rating and the S&P Rating shall be at least
equal to "A3" and "A-", respectively; and
(d) there shall have been no reduction of the
Commitments pursuant to Section 2.05(a) on or prior to any such Increased
Commitment Date.
Section 2.16. Extension of Commitment Termination Date.
(a) Requests for Extension. The Borrowers may, by
notice to the Agent (which shall promptly notify the Lenders) not earlier
than 45 days and not later than 30 days prior to the Commitment
Termination Date then in effect hereunder (the "Existing Commitment
Termination Date"), request that each Lender extend such Lender's
Commitment Termination Date for an additional 364 days from the Existing
Commitment Termination Date.
(b) Lender Elections to Extend. Each Lender, acting
in its sole and individual discretion, shall, by notice to the Agent given not
earlier than 30 days prior to the Existing Commitment Termination Date
and not later than the date (the "Notice Date") that is 20 days prior to the
Existing Commitment Termination Date, advise the Agent whether or not
such Lender agrees to such extension (and each Lender that determines not
to so extend its Commitment Termination Date (a "Non-Extending
Lender") shall notify the Agent (which shall notify the other Lenders) of
such fact promptly after such determination (but in any event no later than
the Notice Date) and any Lender that does not so advise the Agent on or
before the Notice Date shall be deemed to be a Non-Extending Lender).
The election of any Lender to agree to such extension shall not obligate any
other Lender to so agree.
(c) Notification by Agent. The Agent shall notify
the Borrowers of each Lender's determination under this Section 2.16 no
later than the date 15 days prior to the Existing Commitment Termination
Date (or, if such date is not a Business Day, on the next preceding Business
Day).
(d) Additional Commitment Lenders. The
Borrowers shall have the right on or before the Existing Commitment
Termination Date to replace each Non-Extending Lender with, and add as
"Lenders" under this Agreement in place thereof, one or more Eligible
Assignees (each, an "Additional Commitment Lender") with the approval
of the Agent (which approval shall not be unreasonably withheld), each of
which Additional Commitment Lenders shall have entered into an
agreement in form and substance satisfactory to the Borrowers and the
Agent pursuant to which such Additional Commitment Lender shall,
effective as of the Existing Commitment Termination Date, undertake a
Commitment (and, if any such Additional Commitment Lender is already a
Lender, its Commitment shall be in addition to such Lender's Commitment
hereunder on such date); provided that, notwithstanding the foregoing, the
Borrowers may not replace any Non-Extending Lender with an Additional
Commitment Lender not already a Lender hereunder unless the Borrowers
shall first have offered to the existing Lenders the right to increase their
Commitments hereunder to replace the Commitment of the Non-Extending
Lender.
(e) Minimum Extension Requirement. If (and only
if) the total of the Commitments (after taking into account any increased
Commitments pursuant to clause (d) of this Section 2.16) of the Lenders
that have agreed so to extend their Commitment Termination Date and the
additional Commitments of the Additional Commitment Lenders shall be
more than 50% of the aggregate amount of the Commitments in effect
immediately prior to the Existing Commitment Termination Date, then,
effective as of the Existing Commitment Termination Date, the
Commitment Termination Date of each Extending Lender and of each
Additional Commitment Lender shall be extended to the date falling 364
days after the Existing Commitment Termination Date (except that, if such
date is not a Business Day, such Commitment Date as so extended shall be
the next preceding Business Day) and each Additional Commitment Lender
shall thereupon become a "Lender" for all purposes of this Agreement.
(f) Conditions to Effectiveness of Extensions.
Notwithstanding the foregoing, the extension of the Commitment
Termination Date pursuant to this Section 2.16 shall not be effective with
respect to any Lender unless:
(x) no Default or Acceleration Event shall have occurred and
be continuing on the date of such extension and after giving effect thereto;
(y) the representations and warranties contained in this
Agreement are true and correct on and as of the date of such extension and
after giving effect thereto, as though made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); provided that the Borrowers shall
be permitted to update any Schedules hereto, subject to the review and
approval of the Agent thereof, which approval shall not be unreasonably
withheld, on and as of the date of such extension; and
(z) on or before the Commitment Termination Date of each
Non-Extending Lender, (1) the relevant Borrowers shall have paid in full
the principal of and interest on all of the Loans made by such Non-
Extending Lender to such Borrower hereunder; and (2) the relevant
Borrowers shall have paid in full all other amounts owing to such Lender
hereunder.
Section 2.17. Borrowings in Sterling.
(a) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
(to the extent any such introduction or change occurs after the date hereof)
any law or regulation shall make it unlawful, or any central bank or other
Governmental Authority having appropriate jurisdiction shall assert in
writing after the date hereof that it is unlawful, for any Lender or its LIBOR
Lending Office to perform its obligations hereunder to make Loans
denominated in Sterling or to continue to fund or maintain Loans
denominated in Sterling hereunder, then, on notice thereof and demand
therefor by such Lender through the Agent to the Borrower to which such
Loans were made or were to be made, as the case may be, (i) each
outstanding Loan of such Lender that is denominated in Sterling will
automatically, upon demand, be redenominated in Dollars in an amount
equal to the Equivalent thereof in Dollars on the date of such
redenomination and shall automatically be Converted to a Base Rate Loan
on the date of such redenomination and (ii) the obligation of such Lender to
make, or to Convert Base Rate Loans into, LIBOR Rate Loans denominated
in Sterling shall be suspended until the Agent shall notify the Borrowers
that such Lender has determined that the circumstances causing such
suspension no longer exist; provided that, before making any such demand,
such Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different LIBOR
Lending Office if the making of such a designation would allow such
Lender or its LIBOR Lending Office to continue to perform its obligations
to make Loans denominated in Sterling or to continue to fund or maintain
Loans denominated in Sterling and would not, in the reasonable judgment
of such Lender, be otherwise disadvantageous to such Lender.
(b) If, with respect to any Loans denominated in
Sterling, the Required Lenders notify the Agent that the LIBOR Rate for
any Interest Period for such Loans denominated in Sterling will not
adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective LIBOR Rate Loans denominated in Sterling for
such Interest Period, the Agent may notify the Borrowers and the Lenders
that the making or maintaining of Loans denominated in Sterling shall be
suspended, whereupon (i) such Loans denominated in Sterling will
automatically, on the last day of the then existing Interest Period therefor,
be redenominated in Dollars in an amount equal to the Equivalent thereof in
Dollars on such date and shall automatically be Converted to a Base Rate
Loan on such date, and (ii) the obligation of the Lenders to make, or to
Convert Loans into, LIBOR Rate Loans denominated in Sterling shall be
suspended until the Agent shall notify the Borrowers and the Lenders that
the circumstances causing such suspension no longer exist.
(c) If any principal of the Loans made to a Borrower
is being carried in Sterling and such Borrower shall have failed to specify in
a notice to the Agent, pursuant to Section 2.02, the currency in which such
principal is to be denominated after the end of the current Interest Period
applicable thereto, such principal shall be continued in Sterling.
(d) If any principal of the Loans of any Borrower
has been denominated in Dollars and is to be renewed in Sterling, the
amount in which it shall be renewed shall be the Equivalent in Sterling of
the Original Dollar Amount of such principal.
(e) If any principal of the Loans of any Borrower
has been denominated in Sterling and is to be renewed in Dollars, then:
(i) if the Equivalent in Dollars of Sterling
of such principal at the last day of the relevant Interest
Period exceeds the Original Dollar Amount thereof, such
Borrower will pay to the Agent for the account of the
Lenders in Sterling the amount of the excess or, subject to
the conditions set forth in Section 4.02 hereof, such
Borrower shall borrow the amount of the excess in
Dollars from the Lenders in accordance with Section 2.02
hereof; or
(ii) if the Equivalent in Dollars of Sterling
of such principal at the last day of such Interest Period is
less than the Original Dollar Amount thereof, the Lenders
will, at such Borrower's request, on that date advance to
the Borrower in Dollars the amount of the shortfall.
(f) If, as provided in this Section 2.17, the Lenders
are required to advance any shortfall to a Borrower on the renewal of any
principal of the Loans then, on the date on which such shortfall is to be
advanced, each Lender will make available to the Agent in accordance with
Section 2.02(b) its ratable portion of the amount of the shortfall in the
relevant currency and the Agent will immediately make the amount
received by it available to such Borrower.
(g) Subject to the provisions of Sections 2.9, 2.14
and this Section 2.17, and provided that no Default or Event of Default shall
exist, a Borrower shall have the right to convert into a LIBOR Rate Loan
denominated in Sterling, any principal of the Loans made to such Borrower
which for the time being is denominated in Dollars and a Borrower shall
have the right to convert into a Loan denominated in Dollars, any principal
of the Loans made to such Borrower which for the time being is
denominated in Sterling; provided that the aggregate principal amount of
Loans that may be converted on one occasion must be at least Five Million
Dollars ($5,000,000) or an integral multiple of One Million Dollars
($1,000,000) in excess thereof (or the Equivalent thereof in Sterling) unless
such aggregate principal amount of all Loans outstanding at such time is
less than Five Million Dollars ($5,000,000) or the Equivalent thereof in
Sterling, in which case all of such amount must be converted at the same
time. The Borrower shall give the Agent at least four (4) Business Days'
prior notice of each such conversion of a Loan, specifying the date for
conversion which shall be a Business Day, the aggregate amount to be
converted, the Loan or Loans to be converted and the applicable Interest
Period to begin on the date of conversion. The Agent shall promptly notify
the Lenders of the contents of any such notice relating to the Loans.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower, severally and not jointly, represents and warrants
to the Lenders that:
Section 3.01. Organization; Powers. Such Borrower (i) is a
corporation, partnership, trust, limited liability company, Series or entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power (corporate,
partnership, limited liability company, Series trust or other) and authority
and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and to carry on its business as now
conducted, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, and (iii) is qualified to do business in, and is in good standing in,
every jurisdiction where such qualification is required, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 3.02. Authorization; Enforceability. The Transactions
are within the corporate partnership, trust, limited liability company, Series
or other powers of such Borrower and have been duly authorized by all
necessary corporate, partnership, trust, limited liability company, Series or
other action on the part of such Borrower and, if required, by all necessary
shareholder action. This Agreement has been duly executed and delivered
by such Borrower and constitutes a legal, valid and binding obligation of
such Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the
enforcement of creditors' rights and (b) the application of general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except
such as have been obtained or made and are in full force and effect, (b) will
not violate any applicable law or regulation (including the Investment
Company Act) or certificate of incorporation, partnership agreement,
limited liability company operating agreement, declaration of trust, the
charter or by-laws or other organizational or constitutional documents, as
the case may be, of such Borrower, or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon such Borrower, or any of its
assets, or give rise to a right thereunder to require any payment to be made
by any such Person, and (d) will not result in the creation or imposition of
any Lien on any asset of such Borrower.
Section 3.04. Financial Condition; No Material Adverse
Change.
(a) Each Partnership has heretofore furnished to the
Lenders copies of the statement of assets and liabilities of such Partnership,
and a description of the portfolio of investments of such Partnership and
related statements of operations and changes in net assets (i) as of and for
the fiscal year most recently ended and with respect to which financial
statements are available with respect to such Partnership, and (ii) as of and
for the semi-annual fiscal period ended subsequent to the date of the latest
financial statements referred to in subsection (i) above and with respect to
which such financial statements are available with respect to such
Partnership, in each case certified by a Financial Officer of such
Partnership. Such financial statements present fairly, in all material
respects, the financial condition of such Partnership, as of such dates and
for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements
referred to in subsection (ii) above. There has been no material adverse
change in the business, condition (financial or otherwise), operations,
performance or properties of such Partnership since the date of the most
recent financial statements of such Partnership referred to in this Section
3.04(a).
(b) As of the date hereof, no Borrower has any
Indebtedness owing to any bank or other financial institution, other than to
its Affiliates, except for Indebtedness secured by a mortgage on real estate
owned or leased by such Borrower. All such Indebtedness of the Borrowers
as of September 30, 2001 is set forth on Schedule 3.04 hereto.
Section 3.05. Litigation.
(a) Actions, Suits and Proceedings. There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of such Borrower
threatened against or affecting such Borrower (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect (other than the Disclosed Matters) or
(ii) that involve this Agreement or the Transactions.
(b) Disclosed Matters. Since the date of this
Agreement, there has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
Section 3.06. Compliance with Laws and Agreements. Such
Borrower is in compliance with all laws, regulations and orders of any
Governmental Authority (including all Environmental Laws) applicable to
it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect. No Default has occurred and is continuing.
Section 3.07. Investment Company Act. No such Borrower is
required to register as an "investment company" as defined in, or subject to
regulation under, the Investment Company Act.
Section 3.08. Taxes. Such Borrower has timely filed or caused
to be filed all tax returns and reports required to have been filed and has
paid or caused to be paid all taxes required to have been paid by it, except
(a) taxes that are being contested in good faith by appropriate proceedings
and for which such Borrower has set aside on its books adequate reserves or
(b) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
Section 3.09. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $50,000,000 the
fair market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $50,000,000 the
fair market value of the assets of all such underfunded Plans.
Section 3.10. Disclosure. Such Borrower has disclosed to the
Lenders all material agreements, instruments and corporate or other
restrictions to which it is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the certificates, reports or other
information furnished by or on behalf of any Borrower to the Lenders
pursuant to Sections 5.01(b), 5.01(c), 5.01(e), 5.01(f) and 5.02 contain any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
Section 3.11. Holding Company Status. No such Borrower is
a "holding company" as defined in the Public Utility Holding Company Act
of 1935.
Section 3.12. Subsidiaries. As of September 30, 2001, no
Borrower has any Subsidiaries in which such Borrower owns more than
50% of the equity or ordinary voting power, except as set forth on Schedule
3.12.
ARTICLE IV
CONDITIONS OF LENDING
Section 4.01. Conditions to Initial Loans. The obligation of
each Lender to make its initial Loans to any Borrower is subject to the
following conditions precedent being satisfied on or before the Closing
Date:
(a) Documents. The Agent shall have received the
following documents (with sufficient copies for each Lender), each of
which shall be satisfactory to the Agent in form and substance:
(i) Authority and Approvals. Certified
copies of the resolutions of the Board of Directors of the
Guarantor authorizing and approving the FMR Guaranty
and any other Loan Documents to which it is a party and
certified copies of the Consents of Managing Member or
General Partner, as applicable, of each Borrower (or
equivalent documents) authorizing and approving this
Agreement and the other Loan Documents, together with,
in each case, certified copies of all documents evidencing
other necessary action (corporate partnership, or
otherwise) and governmental approvals, if any, with
respect to this Agreement and the FMR Guaranty.
(ii) Secretary's or Assistant Secretary's
Certificate. A certificate of the Secretary or an Assistant
Secretary (or General Partner, Managing Member, or
other Responsible Officer, as applicable) of each
Borrower and the Guarantor certifying the names and true
signatures of the officers of such Borrower and of the
Guarantor authorized to sign this Agreement and the other
documents to be delivered hereunder.
(iii) Opinion of Borrower's Counsel. A
favorable opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel
for the Borrowers and the Guarantor, in substantially the
form of Exhibit D-1 (and each Borrower hereby instructs
such counsel to deliver such opinion to the Lenders and
the Agent).
(iv) Opinion of Deputy General Counsel of
the Guarantor. A favorable opinion of the Deputy
General Counsel of the Guarantor, in substantially the
form of Exhibit D-2.
(v) Closing Certificate. A certificate of a
Financial Officer of each Borrower and of the Guarantor
to the effect that:
(x) the representations and warranties of such Borrower
contained in this Agreement, and the representations and warranties of the
Guarantor contained in the FMR Guaranty, are true and correct on and as of
the Closing Date, before and after giving effect to the transactions
contemplated to occur on or prior to the Closing Date, as though made on
and as of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date); and
(y) no event has occurred and is continuing that constitutes a
Default or Acceleration Event.
(b) Approvals. The Agent shall have received
evidence satisfactory to it of receipt of all third party consents and
approvals necessary in connection with this Agreement (without the
imposition of any conditions except those that are acceptable to the
Lenders) and that the same remain in effect.
(c) Fees. Each Borrower shall have paid all accrued
fees and expenses of the Agent (including the reasonable fees and expenses
of counsel to Fleet) owed by such Borrower in connection with this
Agreement.
(d) Other Items. The Agent shall have received such
other approvals, opinions and documents relating to this Agreement and the
transactions contemplated hereby as any Lender may, through the Agent,
reasonably request.
(e) Delivery of Loan Documents. The Borrowers
shall have delivered to the Agent, on behalf of the Lenders, this Agreement
and, to the extent requested pursuant to Section 2.04(c), the Notes, and the
Guarantor shall have delivered to the Agent, on behalf of the Lenders, the
FMR Guaranty.
Section 4.02. Conditions to Each Borrowing. The obligation
of each Lender to make an Loan to any Borrower on the occasion of each
Borrowing (including the initial Borrowing) shall be subject to the further
conditions precedent that on the date of such Borrowing the following
statements shall be true (and the giving of the applicable Notice of
Borrowing by such Borrower and the acceptance by such Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty
by such Borrower that on the date of such Borrowing and after giving effect
thereto such statements are true):
(a) the representations and warranties contained in
this Agreement are true and correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date);
(b) no event has occurred and is continuing, or
would result from such Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, Acceleration Event or an Event of
Default; and
(c) Such Borrowing is permitted under the
Investment Company Act and such Borrower's partnership agreement,
limited liability company operating agreement or other similar
organizational document.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full, each Borrower, severally and not jointly, covenants
and agrees with the Lenders that:
Section 5.01. Financial Statements and Other Information.
Such Borrower (as applicable) will furnish to the Agent and each Lender:
(a) within 90 days after the end of each of the first
three fiscal quarters of each fiscal year of each Partnership, copies of the
balance sheet of such Partnership and a description of the portfolio of
investments of such Partnership as at the end of such fiscal quarter and of
the related statements of operations and changes in net assets for the fiscal
quarter then ended, all certified by a Financial Officer of such Partnership
as presenting fairly in all material respects the information contained therein
in accordance with GAAP, subject to normal year-end adjustments and the
absence of footnotes;
(b) within 120 days after the end of each fiscal year
of each Partnership, copies of the balance sheet of each Partnership and a
description of the portfolio of investments of such Partnership as at the end
of such fiscal year and of the related statements of operations and changes
in net assets for such fiscal year, all certified by a Financial Officer of
such Partnership as presenting fairly in all material respects the information
contained therein in accordance with GAAP;
(c) within 120 days after the end of each fiscal year
of each Borrower that it is not a Partnership, a description of the portfolio
of investments of such Borrower as at the end of such fiscal year, all
certified by a Financial Officer of such Borrower;
(d) concurrently with any delivery of financial
statements or other statements under paragraph (a), (b) or (c) above, a
certificate of a Financial Officer of such Borrower, substantially in the form
of Exhibit C, certifying as to whether a Default has occurred and, if so,
specifying the details thereof and any action taken or proposed to be taken
with respect thereto, and, with respect to the Partnerships only, stating
whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate;
(e) in the event that a Borrower becomes subject to
the periodic reporting requirements of Section 13 or 15 of the Securities
Exchange Act of 1934, as amended, promptly upon their becoming
available, copies of (i) all financial statements, reports, notices and proxy
statements sent or made available generally by such Borrower, to its public
security holders, (ii) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by such Borrower with any
securities exchange or with the Commission, and (iii) all press releases and
other statements made available generally by such Borrower to the public
concerning material developments in the business of such Borrower; and
(f) promptly following any request therefor, such
other information regarding such Borrower, or compliance with the terms of
this Agreement, as the Agent may reasonably request in writing.
Section 5.02. Notices of Material Events. Such Borrower will
furnish to the Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Acceleration
Event;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against
or affecting such Borrower that, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect; and
(c) any other development (other than matters of a
general economic nature) that results in a Material Adverse Effect.
Each notice delivered under this Section 5.02 shall be accompanied
by a statement of a Financial Officer reasonably describing the event or
development requiring such notice and any action taken or proposed to be
taken with respect thereto.
Section 5.03. Existence; Conduct of Business. Such Borrower
will do or cause to be done all things necessary to preserve, renew and keep
in full force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its business; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation
or dissolution permitted under Section 6.01.
Section 5.04. Payment of Obligations. Such Borrower will
pay its obligations, including tax liabilities, that, if not paid, could result
in a Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) such Borrower has set aside on
its books adequate reserves with respect thereto in accordance with GAAP
and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
Section 5.05. Maintenance of Insurance. Such Borrower will
maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses
operating in the same or similar locations; provided that the Borrower may
self insure with respect to certain risks up to specified limits, in each case
where it is appropriate and consistent with the self-insurance programs of
companies engaged in the same or similar businesses operating in the same
or similar locations.
Section 5.06. Books and Records Such Borrower will keep
proper books of record and account in which full, true and correct entries in
accordance with GAAP are made of all dealings and transactions in relation
to its business and activities.
Section 5.07. Compliance with Laws and Material Contractual
Obligations. Each Borrower shall comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property
(including ERISA, applicable Environmental Laws and Regulations U and
X), and all of its material contractual obligations, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. Without limiting the foregoing, each
Borrower that is a Geode Series shall comply at all times with the
requirements of the Delaware Act concerning maintaining separate
accounts, records and the like.
Section 5.08. Use of Proceeds. The proceeds of each
extension of credit made to any Borrower hereunder will be used solely by
such Borrower for general purposes of such Borrower including temporary
liquidity needs of such Borrower, in each case in compliance with all
applicable legal and regulatory requirements, including, Regulations U and
X, the Securities Act of 1933, the Securities Exchange Act of 1934, the
Investment Company Act and all regulations thereunder; provided that
neither the Agent nor any Lender shall have any responsibility as to the
application or use of any of the proceeds of any extension of credit.
Section 5.09. Maintenance of Properties, Etc. Each Borrower
shall maintain and preserve all of its properties that are used or useful in
the conduct of its business, including, without limitation, licenses, permits,
trademarks, tradenames and other intellectual property, except where failure
to do so could not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have
been paid in full, each Borrower, severally and not jointly, covenants and
agrees with the Lenders that:
Section 6.01. Fundamental Changes. No Borrower will merge
into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
of its assets, whether now owned or hereafter acquired (any of the foregoing
transactions described in this Section 6.02 herein referred to as a
"Fundamental Transaction"), except that if at the time of such Fundamental
Transaction and after giving effect thereto no Default or Acceleration Event
shall have occurred and be continuing, such Borrower may enter into a
Fundamental Transaction where (i) a Borrower or the Guarantor is the
surviving entity (or the acquiring Person) or (ii) if a Borrower or the
Guarantor, respectively, is not the surviving entity (or the acquiring Person),
then the surviving entity (or the acquiring Person) is an
(x) Affiliate of the Guarantor or a Borrower,
(y) provides a written assumption of the obligations of such
Borrower hereunder, together with such proof of corporate, partnership,
limited liability company or other required action, opinions of counsel and
other documents as are consistent with those delivered by such Borrower
pursuant to Section 4.01 on the Closing Date or as the Agent may
reasonably request and
(z) if the surviving entity (or acquiring Person) is not an
entity organized under the laws of the United States or any state thereof,
such entity shall enter into such amendments of this Agreement satisfactory
to the Agent and the Lenders and as is necessary or advisable to incorporate
such provisions (including, without limitation, those provisions relating to
taxes, enforcement of judgments and jurisdictional immunity) as are
customarily included in loan documents with borrowers organized outside
of the United States,
and upon the consummation of any such Fundamental Transaction,
the surviving or acquiring Person (if not a Borrower or the Guarantor) shall
succeed to, and be substituted for, and may exercise every right and power
of, such Borrower under or in respect of this Agreement as if such successor
Person had been named herein and therein as such Borrower.
Section 6.02. Other Indebtedness of the Borrowers. No
Borrower will create, incur, assume or permit to exist any Indebtedness of
any type whatsoever owed to any bank or other financial institution, other
than its Affiliates, except:
(a) Indebtedness to the Lenders incurred pursuant to
this Agreement and the other Loan Documents; and
(b) Indebtedness of a Borrower that is secured by a
mortgage on real estate owned or leased by such Borrower.
Section 6.03. Modifications of Certain Documents. Such
Borrower will not consent to any modification, supplement or waiver of any
of the provisions of its articles of incorporation, by-laws, partnership
agreement, declaration of trust, limited liability company operating
agreement or other constitutive document, if such modification, supplement
or waiver could reasonably be expected to have a Material Adverse Effect.
ARTICLE VII
EVENTS OF DEFAULT AND ACCELERATION EVENTS
Section 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) a Borrower shall fail to pay any principal of any
Loan made to it, when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise; or
(b) a Borrower shall fail to pay any interest on any
Loan made to it or any fee or other amount (other than an amount referred
to in paragraph (a)) payable by it hereunder when and as the same shall
become due and payable, and such failure shall continue unremedied for a
period of five or more days; or
(c) any representation or warranty made or deemed
made by or on behalf of a Borrower or the Guarantor in or in connection
with this Agreement or the FMR Guaranty, as applicable, or any
amendment or modification thereof, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with
this Agreement or any amendment or modification thereof, shall prove to
have been incorrect in any material respect when made or deemed made; or
(d) a Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.03 (with respect to
such Borrower's existence), or in Article VI hereof or the Guarantor shall
fail to observe or perform any covenant, condition or agreement contained
in Section 13(c) of the FMR Guaranty (with respect to the Guarantor's
existence), or in Section 13(j) of the FMR Guaranty, or in Section 14 of the
FMR Guaranty; or
(e) a Borrower or the Guarantor shall fail to observe
or perform any covenant, condition or agreement contained in this
Agreement or the Guaranty, as the case may be, (other than those specified
in paragraph (a), (b), (c) or (d) above) and such failure shall continue
unremedied for a period of 45 or more calendar days after notice thereof
from the Agent (given at the request of any Lender) to such Borrower or the
Guarantor; or
(f) a Borrower, the Guarantor or any of its
Restricted Subsidiaries shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable and as a
consequence of such non-payment, the holder or holders of such Material
Indebtedness or any trustee or agent on its or their behalf are able to cause
such Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity (whether or not such actions are taken); or
(g) any event or condition occurs that results in any
Material Indebtedness of a Borrower, the Guarantor or any of its Restricted
Subsidiaries becoming due prior to its scheduled maturity or that enables or
permits (without the lapse of time or the taking of any action, other than the
giving of notice) the holder or holders of any such Material Indebtedness or
any trustee or agent on its or their behalf to cause any such Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity (whether
or not such actions are taken); provided that this paragraph (g) shall not
apply to secured Indebtedness of a Borrower, the Guarantor or its Restricted
Subsidiaries that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness; or
(h) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of a Borrower, the Guarantor or any
of its Significant Subsidiaries or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for a Borrower, the Guarantor or any of its Significant Subsidiaries,
or for a substantial part of the assets of any of them, and, in any such case,
such proceeding or petition shall continue undismissed for a period of 90 or
more days or an order or decree approving or ordering any of the foregoing
shall be entered; or
(i) such Borrower, the Guarantor or any of its
Significant Subsidiaries shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in paragraph (h) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
a Borrower, the Guarantor or any of its Significant Subsidiaries or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing; or
(j) such Borrower, the Guarantor or any of its
Significant Subsidiaries shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due; or
(k) one or more judgments for the payment of
money (i) in an aggregate amount in excess of 25% of the total assets of any
Borrower shall be rendered against such Borrower, or (ii) in an aggregate
amount in excess of $100,000,000 shall be rendered against the Guarantor
or any of its Significant Subsidiaries or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of a
Borrower, the Guarantor, or any of its Significant Subsidiaries to enforce
any such judgment; or
(l) an ERISA Event shall have occurred that, when
taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Guarantor and its
Subsidiaries in an aggregate amount exceeding $100,000,000 and such
ERISA Event shall continue unremedied for a period of 60 or more
Business Days after notice thereof from the Agent (given at the request of
any Lender) to the Guarantor; or
(m) the FMR Guaranty shall for any reason cease to
be in full force and effect or shall become or be adjudged by a competent
court to be invalid or unenforceable in any respect against the Guarantor;
then, and (i) in case of any event with respect to the Guarantor (other than
an event described in paragraph (h) or (i) of this Section 7.01), and at any
time thereafter during the continuance of such event, the Agent may, and at
the request of the Required Lenders shall, by notice to the Borrowers, take
either or both of the following actions, at the same or different times: (A)
terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (B) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers; (ii) in case of any
event with respect to a Borrower (other than an event described in
paragraph (h) or (i) of this Section 7.01), and at any time thereafter during
the continuance of such event, the Agent may, and at the request of the
Required Lenders shall, by notice to such Borrower, take either or both of
the following actions, at the same or different times: (A) terminate the
Commitments to make Loans to such Borrower, and thereupon the
Commitments to make Loans to such Borrower shall terminate
immediately, and (B) declare the Loans then outstanding to such Borrower
to be due and payable in whole (or in part, in which case any principal not
so declared to be due and payable may thereafter be declared to be due and
payment), and thereupon the principal of such Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of such Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by such Borrower; (iii) in case
of any event with respect to the Guarantor described in paragraph (h) or (i)
of this Section 7.01, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; and (iv) in case of any event with respect
to a Borrower described in paragraph (h) or (i) of this Section 7.01, the
Commitments to make Loans to such Borrower shall automatically
terminate and the principal of the Loans then outstanding to such Borrower,
together with accrued interest thereon and all fees and other obligations of
such Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by such Borrower.
Section 7.02. Acceleration Events. If a Change in Control
shall occur then, and at any time thereafter during the continuance of such
event, the Agent may, and at the request of the Required Lenders shall, by
notice to the Borrowers, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared
to be due and payable, together with accrued interest thereon and all fees
and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement, the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall
be binding upon all Lenders; provided that the Agent shall not be required
to take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by or on behalf of any
Borrower or the Guarantor pursuant to the terms of this Agreement. Fleet
Securities, Inc., as Arranger, in its capacity as such, shall have no duties,
responsibilities or liabilities whatsoever under this Agreement.
Section 8.02. Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the Agent (i)
may consult with legal counsel (including counsel for the Borrower,
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith by it
in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Lender and shall not be
responsible to any of them for any statements, warranties or representations
made in or in connection with this Agreement; (iii) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or the FMR Guaranty on
the part of the Borrowers or the Guarantor or to inspect the property
(including the books and records) of the Borrowers, the Guarantor, or any
of its Subsidiaries; (iv) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any instrument or document furnished pursuant
hereto; (v) shall be deemed not to have knowledge of any Default or
Acceleration Event unless and until written notice thereof is given to it by a
Borrower or the Guarantor or a Lender; and (vi) shall incur no liability
under or in respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy)
believed by it to be genuine and signed or sent by the proper party or
parties.
Section 8.03. Fleet and Affiliates. With respect to its
respective Commitments and the Loans made by it, Fleet shall have the
same rights and powers hereunder as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Fleet in its individual
capacity. Fleet and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures for, accept investment banking engagements
from and generally engage in any kind of business with, the Borrowers, the
Guarantors and its Subsidiaries, any of their respective Affiliates and any
Person who may do business with or own securities of the Borrowers, the
Guarantor or any such Subsidiary or Affiliate, all as if Fleet were not Agent
and without any duty to account therefor to the Lenders.
Section 8.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the
Agent or the Arranger or any other Lender and based on the financial
statements referred to in Section 3.04 hereof and in Section 12(e) of the
FMR Guaranty and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or the Arranger or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement.
Section 8.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not promptly reimbursed by the
Borrowers), ratably according to the principal amounts of the Loans made
by each Lender (or if no Loans are at the time outstanding, ratably
according to the amounts of their Commitments), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
that may be imposed on, incurred by, or asserted against it in any way
relating to or arising out of this Agreement or any action taken or omitted
by it; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of the Agent. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any costs and expenses payable by the Borrowers under Section
9.03 of this Agreement, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrowers.
Section 8.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrowers and
may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor. If no successor Agent shall have been
so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the
United States or of any State thereof and having a combined capital and
surplus of at least $500,000,000; provided that if no such successor is
willing and able to function as Agent hereunder, such resignation or
removal shall nonetheless become effective and (a) the resigning or
removed Agent shall be discharged from its duties and obligations
hereunder and (b) the Required Lenders shall perform the duties of the
Agent (and all payments and communications provided to be made by, to or
through the Agent shall instead be made by or to each Lender directly) until
such time as the Required Lenders appoint a successor agent as provided for
above in this Section 8.06. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions
of this Article VIII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices, Etc.
(a) All notices, consents and other communications
provided for hereunder shall be in writing (including telecopy
communication) and mailed, telecopied or delivered:
(i) if to any or all of the Borrowers and the
Guarantor, to it/them at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Office of the
Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to: Deputy General
Counsel, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Telecopy No. (617) 692-
4560; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to any Lender, at the address for
notices specified in the Administrative Questionnaire of
such Lender or as otherwise specified in writing to the
Agent; and
(iii) if to the Agent, at its address at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Director (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇),
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when mailed or telecopied, be effective when
deposited in the mails or transmitted by facsimile transmission,
respectively, except that notices and communications to the Agent pursuant
to Article II, IV, VII or VIII shall not be effective until received by the
Agent.
(b) Any notice, consent or other communication
hereunder by the Agent or any Lender(s) to any Borrower(s) and the
Guarantor shall, without more, be deemed given to all of the Borrowers and
the Guarantor. Any notice, consent or other communication hereunder by
any Borrower(s) or the Guarantor to the Agent or any Lender(s) shall,
without more, be deemed given by, and shall be binding upon, all of the
Borrowers and the Guarantor.
Section 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No
failure or delay by the Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance
of steps to enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or power. The rights and
remedies of the Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by
the Borrowers therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a
Loan shall not be construed as a waiver of any Default or Acceleration
Event, regardless of whether the Agent or any Lender may have had notice
or knowledge of such Default or Acceleration Event at the time.
(b) Amendments. Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by the Borrowers and
the Required Lenders or by the Borrowers and the Agent with the consent
of the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender
without the consent of such Lender,
(ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any
fees payable hereunder, without the consent of each
Lender affected thereby,
(iii) postpone the scheduled date of payment
of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any
Commitment, without the consent of each Lender affected
thereby,
(iv) change Section 2.12 without the consent
of each Lender affected thereby, or
(v) change any of the provisions of this
Section 9.02 or the percentage in the definition of the term
"Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder,
without the consent of each Lender.
and provided further that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Agent hereunder without the
prior written consent of the Agent.
Section 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. Each Borrower, severally
and not jointly, agrees to pay on demand shall pay (i) its allocated share, as
determined on in accordance with Section 9.03(d), of all reasonable out-of-
pocket expenses incurred by the Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Agent, in
connection with the initial syndication of the credit facilities provided for
herein, the preparation, negotiation and administration of this Agreement
and the other Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) its allocated
share, as determined on in accordance with Section 9.03(d), of all out-of-
pocket expenses incurred by the Agent or any Lender, including the fees,
charges and disbursements of any counsel for the Agent or any Lender, in
connection with the enforcement or protection of its rights in connection
with this Agreement, including its rights under this Section 9.03, or in
connection with the Loans made hereunder, including in connection with
any workout, restructuring or negotiations in respect thereof.
(b) Indemnification by the Borrowers. Each
Borrower agrees, severally and not jointly, to indemnify the Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee"), to the extent of its allocated share, as
determined in accordance with Section 9.03(d), against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other
transactions contemplated hereby or (ii) any Loan or the use of the proceeds
therefrom; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Waiver of Consequential Damages, Etc. To the
extent permitted by applicable law, no party hereto shall assert, and each
party hereto hereby waives, any claim against any other party (or any
Related Party to such party), on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, or any
agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.
(d) Payments. All amounts due under this Section
9.03 shall be payable promptly after written demand therefor. All amounts
due under this Section 9.03 that are attributable severally to a specific
Borrower or Borrowers (as a result of such payment obligation arising out
of Borrowings by such Borrower or Borrowers) shall be paid by such
Borrower or Borrowers. All other amounts payable under this Section shall
be several obligations of the Borrowers, allocated on a Pro Rata Basis or as
otherwise determined among the Borrowers and notified to the Agent by the
Borrowers on or before the payment due date.
Section 9.04. Assignments and Participations.
(a) Assignments Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that the Borrowers may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrowers without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Agent and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may
assign to one or more Eligible Assignees, and subject to the provisions of
Section 9.04(e) may sell participations in, all or a portion of its rights and
obligations under this Agreement to one or more Eligible Assignees
(including all or a portion of its Commitment and the Loans at the time held
by it); provided that
(i) the Borrowers and the Agent must give
their prior written consent to such assignment and
participation (which consent shall not be unreasonably
withheld),
(ii) in the case of an assignment, except in
the case of an assignment to a Lender or an Affiliate of a
Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered
to the Agent) shall be equal to $5,000,000 or a multiple of
$1,000,000 in excess thereof, unless the Borrowers and
the Agent otherwise consent,
(iii) in the case of an assignment, each
partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement,
(iv) in the case of an assignment, the parties
to each assignment shall execute and deliver to the Agent
an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and
(v) in the case of an assignment, the
assignee, if it shall not be a Lender, shall deliver to the
Agent an Administrative Questionnaire;
provided further that any consent of the Borrowers otherwise required
under this paragraph (b) shall not be required if an Event of Default under
paragraph (a), (b), (h), (i), or (m) of Section 7.01 has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d)
below, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have
(in addition to any such rights and obligations theretofore held by it) the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all
of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.11 and 9.03). Any assignment by a Lender of
rights or obligations under this Agreement that does not comply with this
paragraph (b) shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations.
(c) Maintenance of Register by the Agent. The
Agent, acting for this purpose as an agent of the Borrowers, shall maintain
at its address referred to in Section 9.01 a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount
of the Loans held by, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, and
the Borrowers, the Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection and copying by the
Borrowers and any Lender, at any reasonable time and from time to time
upon reasonable prior notice. The Agent agrees to provide the Borrowers
with an official copy of the Register at such times and in such format as the
Borrowers may reasonably request.
(d) Effectiveness of Assignments. Upon its receipt
of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above and any
written consent to such assignment required by paragraph (b) above, the
Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph (d).
(e) Participations. As provided in Section 9.04(b),
any Lender may sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans held by it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in
the first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) below, the Borrowers agree that each Participant shall be
entitled to the benefits of Section 2.11 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph
(b) above.
(f) Limitations on Rights of Participants. In no
event shall the rights of a Participant in respect of a participation acquired
by it under paragraph (e) above result in an increase in the total amount
payable by a Borrower under Section 2.11 in excess of the amount such
Borrower would have been required to pay had such participation not been
sold to such Participant.
(g) Certain Pledges. Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any such
pledge or assignment to a Federal Reserve Bank, and this Section 9.04 shall
not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such assignee
for such Lender as a party hereto.
(h) No Assignments to the Borrowers or Affiliates.
Anything in this Section 9.04 to the contrary notwithstanding, no Lender
may assign or sell any participations in any interest in any Loan held by it
hereunder to a Borrower, the Guarantor or any of their respective Affiliates
without the prior consent of each Lender.
Section 9.05. Survival. All covenants, agreements,
representations and warranties made by a Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Agent or any Lender may have had notice or knowledge of any Default or
Acceleration Event or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan made to such
Borrower, or any fee or any other amount payable by such Borrower under
this Agreement is outstanding and unpaid and so long as the Commitments
have not expired or terminated, unless such Borrower has withdrawn from
this Agreement pursuant to Section 2.07(d) hereof. The provisions of
Sections 2.09, 2.11 (to the extent provided therein), 9.03 and 9.11 and
Article VIII shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment
of the Loans, the expiration or termination of the Commitments, the
withdrawal of any Borrower pursuant to Section 2.07(d) hereof or the
termination of this Agreement or any provision hereof.
Section 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement, the Loan Documents and any separate letter agreements with
respect to fees payable to the Agent constitute the entire contract between
and among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by
the Agent and when the Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page to this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this
Agreement.
Section 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
Section 9.08. Right of Setoff. If an Event of Default or
Acceleration Event shall have occurred and be continuing, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or any banking Affiliate
thereof to or for the credit or the account of any Borrower against any of
and all the obligations of such Borrower now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this
Section 9.08 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
Section 9.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be
construed in accordance with and governed by the law of The
Commonwealth of Massachusetts.
(b) Submission to Jurisdiction. Each party to this
Agreement hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of all federal and state courts
located in The Commonwealth of Massachusetts, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in The Commonwealth of Massachusetts or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any
right that the Agent or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement against a Borrower or its
properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each party to this Agreement
hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement in any court referred to in paragraph (b) above.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Service of Process. Each party to this
Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other
manner permitted by law.
Section 9.10. WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.
Section 9.11. Confidentiality. Each of the Agent and the
Lenders acknowledges, understands and agrees that the Information
(defined below) is confidential and proprietary, and is of great value and
importance to the success of the Borrowers', the Guarantor's and their
respective Related Parties' business. Any Person required to maintain the
confidentiality of Information as provided in this Section 9.11 shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential
information. Each of the Agent and the Lenders shall not disclose and shall
cause each of its Related Parties not to disclose, without the prior written
approval of a Responsible Officer of the Borrower or the Guarantor, as
appropriate, directly or indirectly, the Information to any Person or business
entity, except that the Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisers that have a need to know that Information
either in connection with the performance of their duties with respect to the
Transactions and this Agreement or in connection with the administration of
such Lender's loan portfolio generally (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) to the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, provided that such
Information shall remain subject to the limitations set forth in this Section
9.11, (e) 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, (f) subject to an agreement containing provisions
substantially the same as those of this Section 9.11, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the
Borrowers or the Guarantor or (h) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section
9.11 or (y) becomes available to the Agent or any Lender on a
nonconfidential basis from a source other than the Borrowers or the
Guarantor.
For the purposes of this Section 9.11, "Information" means all
technical, trade secret or business information, including financial
information, business or marketing strategies or plans, product development
or customer information of any Borrower or Guarantor, that is received
from a Borrower or the Guarantor relating to such Borrower or Guarantor or
its business or any Related Party of such Borrower or Guarantor and its
business, other than any such information that is publicly available to the
Agent or any Lender prior to disclosure by such Borrower or Guarantor.
Each of the Agent and the Lenders acknowledges and understands that upon
the disclosure of the Information of any Borrower or Guarantor in any
manner inconsistent with this Agreement, such Borrower or Guarantor, as
the case may be, shall have a right to: (a) equitable and injunctive relief to
prevent such use or disclosure; and (b) subject to Section 9.03(c), recover
the amount of all damage (including attorneys' fees and expenses) to such
Borrower or Guarantor in connection with such use and disclosure.
Section 9.12. Representations by Agent and the Lenders. The
Agent and each of the Lenders hereby represents and warrants that it in
good faith is not relying upon any Margin Stock as direct or indirect
collateral in entering into this Agreement, its Commitment or the making of
the Loans hereunder.
Section 9.13. Judgment.
This is an international loan transaction in which the specification
of Dollars or Sterling, as the case may be (the "Specified Currency"), and
payment in Boston or other city specified by the Agent for the payment of
Sterling, as the case may be (the "Specified Place"), is of the essence, and
the Specified Currency shall be the currency of account in all events relating
to Loans denominated in the Specified Currency. The payment obligations
of the Borrowers under this Agreement shall not be discharged or satisfied
by an amount paid in another currency or in another place, whether pursuant
to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place
under normal banking procedures does not yield the amount of the
Specified Currency at the Specified Place due hereunder. If for the purpose
of obtaining judgment in any court it is necessary to convert a sum due
hereunder in the Specified Currency into another currency (the "Second
Currency"), the rate of exchange that shall be applied shall be the rate at
which in accordance with normal banking procedures the Agent could
purchase the Specified Currency with the Second Currency on the Business
Day next preceding the day on which such judgment is rendered. The
obligation of a Borrower in respect of any such sum due from it to the
Agent or any Lender hereunder (for purposes of this Section 9.13, an
"Entitled Person") shall, notwithstanding the rate of exchange actually
applied in rendering such judgment, be discharged only to the extent that on
the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder in the Second Currency such Entitled Person
may in accordance with normal banking procedures purchase and transfer to
the Specified Place the amount of the Specified Currency due hereunder
with the amount of the Second Currency so adjudged to be due; and such
Borrower hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in the Specified Currency, the amount (if any)
by which the sum originally due to such Entitled Person in the Specified
Currency hereunder exceeds the amount of the Specified Currency so
purchase and transferred.
Section 9.14. Obligations of Geode Series and Geode
Investors. The parties hereto expressly agree that (i) the obligations of any
Series hereunder are obligations of such Series only and shall not be
binding on any other Series or on any assets or property of Geode Investors
other than the separate assets and property constituting such Series, and (ii)
the obligations of Geode Investors hereunder are the obligations only of the
separate assets and property of Geode Investors not constituting a Series
and shall not be binding on any Series.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWERS
FIDELITY INVESTORS LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer,
Vice President and Treasurer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
FIDELITY INVESTORS II LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer, Vice President
and Treasurer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
FIDELITY INVESTORS III LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer, Vice President
and Treasurer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
FIDELITY INVESTORS IV LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer, Vice President
and Treasurer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
FIDELITY SEAPORT LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer, Vice President
and Treasurer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
GEODE CAPITAL MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
GEODE INVESTORS LLC
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
LS1, a series of limited liability company interests of Geode
Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
LS2, a series of limited liability company interests of Geode
Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
LS3, a series of limited liability company interests of Geode
Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
LS4, a series of limited liability company interests of Geode
Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
GARNET, a series of limited liability company interests of
Geode Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
JADE, a series of limited liability company interests of
Geode Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
JASPER, a series of limited liability company interests of
Geode Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
GC2, a series of limited liability company interests of Geode
Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
GC3, a series of limited liability company interests of Geode
Investors LLC, a Delaware series limited liability company
By: Geode Capital Management, LLC, as the managing member
of Geode Investors LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
ADMINISTRATIVE AGENT
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
INITIAL LENDERS
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
BANK ONE, NA (Main Office Chicago)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
DEUTSCHE BANK AG, New York and/or Cayman Islands Branches
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
