Exhibit 10(xii)
REVOLVING CREDIT AGREEMENT
Dated as of January 19, 2000
among
THE STRIDE RITE CORPORATION,
the BANKS listed on Schedule 1 hereto
and
BANKBOSTON, N.A.,
as Agent for the Banks
with
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
having acted as Arranger
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of January 19, 2000, by and
among The Stride Rite Corporation, (the "Borrower"), a Massachusetts corporation
having its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000, and BankBoston, N.A., a national banking association, and
the other lending institutions listed on Schedule 1, and BankBoston, N.A. as
agent for itself and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth in
this Section 1 or elsewhere in the provisions of this Credit Agreement referred
to below:
Accounts Receivable. All rights of the Borrower or any of its Subsidiaries
to payment for goods sold, leased or otherwise marketed in the ordinary course
of business and all rights of the Borrower or any of its Subsidiaries to payment
for services rendered in the ordinary course of business and all sums of money
or other proceeds due thereon pursuant to transactions with account debtors,
except for that portion of the sum of money or other proceeds due thereon that
relate to sales, use or property taxes in conjunction with such transactions,
recorded on books of account in accordance with generally accepted accounting
principles.
Additional Bank. See Section 2.4.3.
Affiliate. Any Person that would be considered to be an affiliate of the
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Adjustment Date. The first day of the calendar month immediately
following the month in which a Compliance Certificate is delivered by the
Borrower pursuant to Section 7.4(c).
Agent. BankBoston, N.A. acting as agent for the Banks.
Agent's Head Office. The Agent's head office located at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location as the Agent may
designate from time to time.
Agent's Special Counsel. Xxxxxxx Xxxx LLP or such other counsel as may
be approved by the Agent.
Applicable Pricing. With respect to the LIBOR Rate, the Facility Fee, and
Letter of Credit Fees, the rate per annum specified in the table below as the
LIBOR Margin, Facility Fee Rate and Letter of Credit Rate, respectively, in the
Rate Level row opposite the Fixed Charge Coverage Ratio as of the last day of
the most recent fiscal quarter for which the Borrower has delivered financial
statements pursuant to Section.7.4 and the related Compliance Certificate of the
Borrower referred to in Section.7.4(c):
---------------------------------------------------------------
Facility Letter of
Rate Fixed Charge LIBOR Fee Credit
Level Coverage Ratio Margin Rate Rate
---------------------------------------------------------------
1 Less than 2.35:1 0.825% 0.425% 0.875%
---------------------------------------------------------------
2 equal to or greater 0.625% 0.375% 0.750%
than 2.35:1 and less
than 3.50:1
---------------------------------------------------------------
3 equal to or greater 0.425% 0.325% 0.625%
than 3.50:1
---------------------------------------------------------------
provided, however, that the LIBOR Margin, Facility Fee Rate and Letter of Credit
Rate shall not be less than as set forth in Rate Level 2 above for the period
commencing on the date hereof and ending on July 15, 2000. For the purposes of
this Credit Agreement, any change in the Applicable Pricing shall become
effective on the Adjustment Date. If the Borrower shall fail to deliver the
financial statements referred to in Section 7.4 and the related Compliance
Certificate referred to in Section.7.4(c) indicating such Fixed Charge Coverage
Ratio, then the Applicable Pricing shall automatically, and without any further
act of the Agent, equal the highest Applicable Pricing set forth in the table
above.
Arranger. BancBoston Xxxxxxxxx Xxxxxxxx Inc., in its capacity as
arranger of the credit facilities provided under the Loan Documents.
Assignment and Acceptance. Section 18.1.
Balance Sheet Date. December 3, 1999.
Banks. BKB and the other lending institutions listed on Schedule 1 hereto,
as it may be amended from time to time by the addition of other lending
institutions pursuant to Section 2.4, and any other Person who becomes an
assignee of any rights and obligations of a Bank pursuant to Section 18.
Base Rate. The higher of (i) the annual rate of interest announced from
time to time by BKB at its head office in Boston, Massachusetts, as its "base
rate" and (ii) one-half of one percent (0.50%) above the Federal Funds Effective
Rate. For the purposes of this definition, "Federal Funds Effective Rate" shall
mean for any day, the rate per annum equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding 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 of the quotations for such day on such
transactions received by the Agent from three funds brokers of recognized
standing selected by the Agent.
Base Rate Loans. Loans bearing interest calculated by reference to the
Base Rate.
BKB. BankBoston, N.A., a national banking association, in its
individual capacity.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in Boston,
Massachusetts, and New York, New York, are open for the transaction of banking
business and, in the case of LIBOR Rate Loans, also a day which is a Eurodollar
Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with (i) the purchase or lease
by the Borrower or any of its Subsidiaries of Capital Assets that would be
required to be capitalized and shown on the balance sheet of such Person in
accordance with generally accepted accounting principles or (ii) the lease of
any assets by the Borrower or any of its Subsidiaries as lessee under any
synthetic lease referred to in clause (vi) of the definition of the term
Indebtedness to the extent that such assets would have been Capital Assets had
the synthetic lease been treated for accounting purposes as a Capitalized Lease.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with generally accepted accounting
principles.
CERCLA. See Section 6.17(a).
Closing Date. The first date on which the conditions set forth in Section
10 have been satisfied and any Loans are to be made or any Letter of Credit is
to be issued hereunder.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Bank, the amount set forth on Schedule 1
hereto as the amount of such Bank's commitment to make Loans to, and to
participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrower, as the same may be reduced from time to time; or if
such commitment is terminated pursuant to the provisions hereof, zero.
Commitment Increase Request. See Section 2.4.1.
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Competitive Bid Loans. Revolving credit loans made hereunder to the
Borrower by any of the Banks, such loan or loans on any single occasion being
made by one or more of the Banks whose offer to make a revolving credit loan as
a part of the requested Competitive Bid Loan on such occasion has been accepted
by the Borrower under the auction bidding procedure described in Section 2.9.
Competitive Bid Note. See Section 2.9.1(b).
Competitive Bid Quote. An offer by a Bank to make a Competitive Bid
Loan in accordance with Section 2.9.
Competitive Bid Quote Request. See Section 2.9.1(c).
Competitive Bid Rate. See Section 2.9.1(e)(ii)(C).
Compliance Certificate. See Section 7.4(d).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated EBITDA. The consolidated earnings (or loss) from operations
(excluding all extraordinary and nonrecurring items of income (or loss, but only
to the extent not involving cash charges)) of the Borrower and its Subsidiaries
for any period, after all expenses and other proper charges but before payment
or provision for any income taxes or interest expense for such period, plus
depreciation, amortization and all other nonrepetitive noncash charges for such
period (including without limitation noncash charges relating to the granting or
repricing of stock options), all as determined in accordance with generally
accepted accounting principles.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries, after deduction of all expenses,
taxes, and other proper charges, determined in accordance with generally
accepted accounting principles, after eliminating therefrom all extraordinary
nonrecurring items of income.
Consolidated Operating Cash Flow. For any period, an amount equal to (i)
the sum of (A) Consolidated EBITDA for such period, plus (B) Includable Interest
Income for such period, less (ii) to the extent not already deducted in the
determination of Consolidated EBITDA, Capital Expenditures made during such
period.
Consolidated Tangible Net Worth. The excess of Consolidated Total
Assets over Consolidated Total Liabilities, and less the sum of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets under generally accepted
accounting principles, including such items as good will, the purchase price of
acquired assets in excess of the fair market value thereof, trademarks, trade
names, service marks, brand names, copyrights, patents and licenses, and rights
with respect to the foregoing;
(b) all amounts representing any write-up in the book value of any assets
of the Borrower or its Subsidiaries resulting from a revaluation thereof
subsequent to the Balance Sheet Date (excluding adjustments to translate foreign
assets and liabilities for changes in foreign exchange rates made in accordance
with Financial Accounting Standards Board Statement No. 52); and
(c) to the extent otherwise includable in the computation of Consolidated
Tangible Net Worth, any subscriptions receivable.
Consolidated Total Assets. The sum of (i) all assets ("consolidated
balance sheet assets") of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted accounting principles,
plus (ii) without duplication, all assets leased by the Borrower or any
Subsidiary as lessee under any synthetic lease referred to in clause (vi) of the
definition of the term Indebtedness to the extent that such assets would have
been consolidated balance sheet assets had the synthetic lease been treated for
accounting purposes as a Capitalized Lease, plus (iii) without duplication, all
sold receivables referred to in clause (vii) of the definition of the term
Indebtedness to the extent that such receivables would have been consolidated
balance sheet assets had they not been sold.
Consolidated Total Interest Expense. For any period, the aggregate amount
of interest required to be paid or accrued by the Borrower and its Subsidiaries
during such period on all Indebtedness of the Borrower and its Subsidiaries
outstanding during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of any Capitalized Lease, or any
synthetic lease referred to in clause (vi) of the definition of the term
Indebtedness.
Consolidated Total Liabilities. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and classified as such on the consolidated
balance sheet of the Borrower and its Subsidiaries.
Conversion Request. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Loan in accordance with Section
2.8.
Credit Agreement. This Revolving Credit Agreement, including the
Schedules and Exhibits hereto.
Default. See Section 12.1.
Delinquent Bank. See Section 14.5.3.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of the Borrower, directly or indirectly through a Subsidiary of the
Borrower or otherwise; the return of capital by the Borrower to its shareholders
as such; or any other distribution on or in respect of any shares of any class
of capital stock of the Borrower.
Dollars or $. Dollars in lawful currency of the United States of America.
Drawdown Date. The date on which any Syndicated Loan is made or is to be
made, and the date on which any Syndicated Loan is converted or continued in
accordance with Section 2.8.
EBIT. With respect to any Person, the earnings (or loss) from operations
of such Person (excluding all extraordinary and nonrecurring items of income (or
loss, but only to the extent not involving cash charges)) for any period, after
all expenses and other proper charges but before payment or provision for any
income taxes or interest expense for such period, all as determined in
accordance with generally accepted accounting principles.
Eligible Assignee. Any of (i) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (ii)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (iii) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (iv) the
central bank of any country which is a member of the OECD; and (v) if, but only
if, any Event of Default has occurred and is continuing, any other bank,
insurance company, commercial finance company or other financial institution
approved by the Agent, such approval not to be unreasonably withheld.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See Section 6.17(a).
EPA. See Section 6.17(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate Loan,
the maximum rate (expressed as a decimal) at which any lender subject thereto
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
Event of Default. See Section 12.1.
Facility Fee. See Section 2.2.
Facility Fee Rate. See definition of Applicable Pricing.
Fixed Charge Coverage Ratio. See Section 9.1.
generally accepted accounting principles. (i) When used in Section 9,
whether directly or indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2)of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guaranty. The Guaranty referred to in Section 5.13, in the form of
Exhibit B hereto, made by each Significant Subsidiary of the Borrower in favor
of the
Banks and the Agent pursuant to which such Subsidiary guaranties to the
Banks and the Agent the payment and performance of the Obligations.
Hazardous Substances. See Section 6.17(b).
Includable Interest Income. For any period, (i) interest income earned on
cash balances of the Borrower and its Subsidiaries, less (ii) an amount equal to
$10,000,000 multiplied by the average thirty (30) day LIBOR Rate during such
period.
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(i) every obligation of such Person for money borrowed (other than
obligations in respect of borrowings against the cash value of insurance
policies owned by such Person, provided that such obligations do not have
enforcement recourse to other assets of such Person),
(ii) every obligation of such Person evidenced by bonds, debentures, notes
or other similar instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person,
(iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business which are not overdue or which are being
contested in good faith),
(v) every obligation of such Person under any Capitalized Lease,
(vi) every obligation of such Person under any lease (a "synthetic
lease") treated as an operating lease under generally accepted accounting
principles and as a loan or financing for U.S. income tax purposes,
(vii) all sales by such Person of (A) accounts or general intangibles for
money due or to become due, (B) chattel paper, instruments or documents creating
or evidencing a right to payment of money or (C) other receivables (collectively
"receivables"), whether pursuant to a purchase facility or otherwise, other than
in connection with the disposition of the business operations of such Person
relating thereto or a disposition of defaulted receivables for collection and
not as a financing arrangement, and together with any obligation of such Person
to pay any discount, interest, fees, indemnities, penalties, recourse, expenses
or other amounts in connection therewith,
(viii) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value any
shares of capital stock of any class issued by such Person, any
warrants, options or other rights to acquire any such shares, or any
rights measured by the value of such shares, warrants, options or other rights,
(ix) every obligation of such Person under any forward contract, futures
contract, swap, option or other financing agreement or arrangement (including,
without limitation, caps, floors, collars and similar agreements), the value of
which is dependent upon interest rates, currency exchange rates, commodities or
other indices (a "derivative contract"),
(x) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent that 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 that the terms of such Indebtedness provide that such Person is not
liable therefor and such terms are enforceable under applicable law,
(xi) every obligation, contingent or otherwise, of such Person
guarantying, or having the economic effect of guarantying or otherwise acting as
surety for, any obligation of a type described in any of clauses (i) through (x)
(the "primary obligation") of another Person (the "primary obligor"), in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person (A) to purchase or pay (or advance or supply funds for
the purchase of) any security for the payment of such primary obligation, (B) to
purchase property, securities or services for the purpose of assuring the
payment of such primary obligation, or (C) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with generally accepted
accounting principles, (v) any Capitalized Lease shall be the principal
component of the aggregate of the rentals obligation under such Capitalized
Lease payable over the term thereof that is not subject to termination by the
lessee, (w) any sale of receivables shall be the amount of unrecovered capital
or principal investment of the purchaser (other than the Borrower or any of its
wholly-owned Subsidiaries) thereof, excluding amounts representative of yield or
interest earned on such investment, (x) any synthetic lease shall be the
stipulated loss value, termination value or other equivalent amount, (y) any
derivative contract shall be the maximum amount of any termination or loss
payment required to be paid by such Person if such derivative contract were, at
the time of determination, to be terminated by reason of any event of default or
early termination event thereunder, whether or not such event of default or
early termination event has in fact occurred and (z) any equity related purchase
obligation shall be the maximum fixed redemption or purchase price thereof
inclusive of any accrued and unpaid dividends to be comprised in such redemption
or purchase price.
Ineligible Securities. Securities which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
Interest Payment Date. (i) As to any Base Rate Loan, the last day of the
calendar quarter with respect to interest accrued during such calendar quarter,
including without limitation the calendar quarter which includes the Drawdown
Date of such Base Rate Loan; and (ii) as to any LIBOR Rate Loan in respect of
which the Interest Period is (A) 3 months or less, the last day of such Interest
Period and (B) more than 3 months, the date that is 3 months from the first day
of such Interest Period and, in addition, the last day of such Interest Period.
Interest Period. With respect to each Loan (i) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request or
as otherwise required by the terms of this Credit Agreement: (A) for any Base
Rate Loan, the last day of the calendar quarter; (B) for any LIBOR Rate Loan, 1,
2, 3 or 6 months; (C) for any Competitive Bid Loan, from 10 to 90 days, and (D)
for any Swing Line Loan, from 1 to 30 days; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest Period
shall be extended to the next succeeding LIBOR Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding LIBOR Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would end on a
day that is not a Business Day, that Interest Period shall end on the next
succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in Section 2.8,
the Borrower shall be deemed to have requested a conversion of the affected
LIBOR Rate Loan to a Base Rate Loan and the continuance of all Base Rate Loans
as Base Rate Loans on the last day of the then current Interest Period with
respect thereto;
(d) any Interest Period relating to any LIBOR Rate Loan that begins on the
last LIBOR Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last LIBOR Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond the Maturity
Date shall end on the Maturity Date.
International Standby Practices. With respect to any standby Letter of
Credit, International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Agent in the ordinary course of its
business as a standby letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock, other equity or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties (or other commitments as described
under Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(iii) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (iv) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Letter of Credit. See Section 4.1.1.
Letter of Credit Application. See Section 4.1.
Letter of Credit Fee. See Section 4.6.
Letter of Credit Participation. See Section 4.1.4.
Letter of Credit Rate. See definition of Applicable Pricing.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
LIBOR Margin. See definition of Applicable Pricing.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan, the
rate of interest equal to (i) the rate determined by the Agent at which Dollar
deposits for such Interest Period are offered based on information presented on
Telerate Page 3750 as of 11:00 a.m. London time on the second LIBOR Business Day
prior to the first day of such Interest Period, divided by (ii) a number equal
to 1.00 minus the eurocurrency Reserve Rate, if applicable.
LIBOR Rate Loans. Loans bearing interest calculated by reference to
the LIBOR Rate.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit and the Guaranties.
Loan Request. See Section 2.6.
Loans. Revolving credit loans made or to be made by the Banks to the
Borrower pursuant to Section 2, whether Syndicated Loans or Competitive Bid
Loans, and Swing Line Loans made by BKB pursuant to Section 2.10.
Majority Banks. As of any date, the Banks whose aggregate Commitments
constitute at least fifty percent (50%) of the Total Commitment; and after the
Total Commitment has been terminated, the Banks holding at least fifty percent
(50%) of the outstanding principal amount of the Loans on such date.
Maturity Date. The third anniversary of the Closing Date or, if such
date is not a Business Day, the Business Day next preceding such anniversary.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate.
Notes. The Revolving Credit Notes, the Competitive Bid Notes and the
Swing Line Notes, or, when used in the singular, any of such Notes.
Note Record. A Record with respect to a Note.
Obligations. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit 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, arising or incurred under this
Credit Agreement or any of the other Loan Documents or in respect of any of the
Loans made or Reimbursement Obligations incurred or any of the Notes, Letter of
Credit Application, Letter of Credit or other instruments at any time evidencing
any thereof.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created byss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreements.
Permitted Acquisition. See Section 8.5.3.
Permitted Distributions. See Section 8.4.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision thereof.
RCRA. See Section 6.17(a).
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Register. See Section 18.3.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Agent and the Banks on account of any drawing under any Letter of Credit as
provided in Section 4.2.
Rental Expense. For any period, all obligations of the Borrower and its
Subsidiaries under any rental agreements or leases of real property, other than
(i) obligations that can be terminated by the giving of notice without liability
to the Borrower or such Subsidiary in excess of the liability for rent due as of
the date on which such notice is given and under which no penalty or premium is
paid as a result of any such termination, and (ii) obligations in respect of any
Capitalized Leases.
Revolving Credit Note Record. A Record with respect to a Revolving
Credit Note.
Revolving Credit Notes. See Section 2.5.
XXXX. See Section 6.17(a).
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities. The term
includes BancBoston Xxxxxxxxx Xxxxxxxx Inc.
Significant Subsidiary. Any Subsidiary of the Borrower (a) the book value
of the total assets of which, as of the Balance Sheet Date or of the last day of
the most recent fiscal period for which financial statements have been furnished
pursuant to ss.7.4, equals or exceeds $5,000,000, or (b) the EBIT of which for
the fiscal period then ended equals or exceeds 5% of the Consolidated EBIT of
the Borrower and its Subsidiaries; provided that, if all
Subsidiaries of the Borrower which are not Significant Subsidiaries
pursuant to the foregoing test (the "Excluded Subsidiaries") have an aggregate
EBIT for the fiscal period then ended exceeding 15% of the Consolidated EBIT of
the Borrower and its Subsidiaries, then one or more of the largest Excluded
Subsidiaries shall be deemed Significant Subsidiaries until the aggregate EBIT
of the Excluded Subsidiaries does not exceed such limit.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
Substantially the Same Business. With respect to the businesses conducted
by the Borrower and its Subsidiaries, such businesses conducted on the date
hereof and other marketing and retail lines of business.
Swing Line Loan Maturity Date. With respect to any Swing Line Loan, the
date specified by the Borrower in the Swing Line Loan Request relating thereto
as the maturity date of such Swing Line Loan, which in no event shall be later
than the earlier to occur of (i) thirty (30) days after the Drawdown Date of
such Swing Line Loan and (ii) the Maturity Date.
Swing Line Loan Request. See Section 2.10.1.
Swing Line Loans. See Section 2.10.1.
Swing Line Note. See Section 2.10.5.
Swing Line Rate. A fixed rate per annum quoted by BKB in its discretion
pursuant to Section 2.10.2, such rate not to exceed the Base Rate in effect on
the date of quotation.
Syndicated Loans. Revolving credit loans made by the Banks in
accordance with their respective Commitment Percentages pursuant to Section 2.1.
Total Commitment. The sum of the Commitments of the Banks, as in
effect from time to time.
Total Funded Debt. As of any date of determination, on a consolidated
basis in accordance with generally accepted accounting principles, an amount
equal to the sum of (a) all Indebtedness of the Borrower and its Subsidiaries
relating to the borrowing of money or the utilization of credit (including
letters of credit, other than (i) documentary letters of credit and (ii) standby
letters of credit to the extent the same support Indebtedness otherwise included
in Total Funded Debt), and (b) all obligations of the Borrower and its
Subsidiaries in respect of Capitalized Leases.
Type. As to any Syndicated Loan, its nature as a Base Rate Loan or a
LIBOR Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500 or any successor version thereto
adopted by the Agent in the ordinary course of its business as a letter of
credit issuer and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrower does not reimburse the Agent and the Banks on the date specified
in, and in accordance with Section 4.2.
Utilization Fee. See Section 2.2.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such document
or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally accepted
accounting principles, which terms are defined in the Uniform Commercial Code as
in effect in the Commonwealth of Massachusetts, have the meanings assigned to
them therein, with the term "instrument" being that defined under Article 9 of
the Uniform Commercial Code.
(h) Reference to a particular "Section" refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of periods of
time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean
"to but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are, however, cumulative
and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the result of
negotiation among, and have been reviewed by counsel to, among others, the Agent
and the Borrower and are the product of discussions and negotiations among all
parties. Accordingly, this Credit Agreement and the other Loan Documents are not
intended to be construed against the Agent or any of the Banks merely on account
of the Agent's or any Bank's involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time from
the Closing Date up to but not including the Maturity Date upon notice by the
Borrower to the Agent given in accordance with Section 2.7, such Syndicated
Loans as are requested by the Borrower up to a maximum aggregate amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Bank's Commitment minus such Bank's Commitment Percentage of the sum of
the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, provided
that the sum of the outstanding amount of the Loans (after giving effect to all
amounts requested) plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not at any time exceed the Total Commitment. The Syndicated
Loans shall be made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Loan hereunder shall constitute a representation
and warranty by the Borrower that the conditions set forth in Sections 11 and
12, in the case of the initial Loans to be made on the Closing Date, and Section
12, in the case of all other Loans, have been satisfied on the date of such
request.
2.2. Facility Fee and Utilization Fee.
2.2.1. Facility Fee. The Borrower agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a facility fee (the "Facility Fee") calculated at the Applicable Facility Fee
Rate (as set forth in the Applicable Pricing) on the average daily amount of
each Bank's Commitment during each calendar quarter or portion thereof from the
date hereof to the Maturity Date (without regard to whether any Loans by such
Bank have been during such period outstanding and whether the availability of
such Commitment has been during the such period reduced by outstanding
Competitive Bid Loans or Swing Line Loans).
2.2.2. Utilization Fee. In addition to the Facility Fee,
the Borrower agrees to pay to the Agent for the accounts of the Banks in
accordance with their respective Commitment Percentages, a utilization fee
(the "Utilization Fee"), for each day of each calendar quarter or portion
thereof from the date hereof to the Maturity Date on which the total
amount outstanding hereunder in respect of Loans, the Maximum Drawing Amount and
Unpaid Reimbursement Obligations (the "Total Outstandings") exceeds fifty
percent (50%) of the Total Commitment, in an amount equal to one-eighth of one
percent (0.125%) per annum of the Total Outstandings.
2.2.3. Payment. The Facility Fee and the Utilization Fee shall be
payable quarterly in arrears on the last day of each calendar quarter for such
quarter, commencing on the first such date following the date hereof, with a
final payment on the Maturity Date or any earlier date on which the Commitments
shall terminate.
2.3. Reduction of Total Commitment. The Borrower shall have the right at
any time and from time to time upon five (5) Business Days prior written notice
to the Agent to reduce by $5,000,000 or an integral multiple thereof or
terminate entirely the Total Commitment, whereupon the Commitments of the Banks
shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. Promptly after receiving any notice of the Borrower delivered
pursuant to this Section 2.3, the Agent will notify the Banks of the substance
thereof. Upon the effective date of any such reduction or termination, the
Borrower shall pay to the Agent for the respective accounts of the Banks the
full amount of any commitment fee then accrued on the amount of the reduction.
No reduction or termination of the Commitments may be reinstated.
2.4. Increase of Total Commitment; Additional Banks.
2.4.1. Commitment Increase Request. The Borrower shall have the
right upon one occasion by written notice to the Agent (a "Commitment Increase
Request") to request an increase in the Total Commitment by an amount equal to
$25,000,000 (the "Increase Amount"), up to a maximum Total Commitment of
$100,000,000; provided that, at the time of the Commitment Increase Request and
at the time such request would become effective, no Default or Event of Default
has occurred and is continuing or would exist after giving effect to such
increase in the Total Commitment. Any such increase in the Total Commitment
shall become effective only upon written notice by the Agent to the Borrower and
the Banks stating the new Total Commitment and, in respect thereof, the
respective Commitment amounts and Commitment Percentages of the Banks
(including, if applicable, any Additional Bank).
2.4.2. Banks' First Refusal Right. The Agent shall promptly upon
receipt of any Commitment Increase Request send a copy thereof to the Banks.
Each of the Banks shall have the right (but not the obligation) to increase its
Commitment in connection with the increased Total Commitment, exercisable by
written notice to the Agent within fifteen (15) Business Days following the date
of the Commitment Increase Request specifying the maximum amount (not exceeding
the Increase Amount) by which such Bank is willing to increase its Commitment.
In the event that the responding Banks shall have offered to increase their
Commitments by an aggregate amount exceeding the Increase Amount, the Agent
shall allocate the Increase Amount to the respective Commitments of the
responding Banks as nearly as possible (in such
multiples, not less than $100,000, as the Agent may deem appropriate, and
in the event that the aggregate Commitment increases offered by the Banks shall
not equal or exceed the Increase Amount, subject to reduction for the Commitment
of one or more Additional Banks pursuant to Section 2.4.3) in the proportion of
the respective Banks' Commitment increase offers.
2.4.3. Additional Banks. In the event that the aggregate Commitment
increases offered by the Banks shall not equal or exceed the Increase Amount,
one or more other commercial banks which would qualify as an Eligible Assignee
(an "Additional Bank") and which are acceptable to each of the Agent and
Borrower may be admitted as a Bank party to this Credit Agreement in accordance
with the provisions of Section 18.10, provided that the Commitment of any such
Additional Bank shall not be less than $5,000,000 nor greater than the Increase
Amount.
2.5. The Revolving Credit Notes. The Syndicated Loans shall be evidenced
by separate promissory notes of the Borrower in substantially the form of
Exhibit A hereto (each a "Revolving Credit Note"), dated as of the Closing Date
(or, in the event of the admission of any Additional Bank pursuant to Section
2.4.3 and Section 18.10, dated as of the effective date specified in the
Instrument of Adherence executed and delivered by such Additional Bank pursuant
to Section 18.10) and completed with appropriate insertions. One Revolving
Credit Note shall be payable to the order of each Bank in a principal amount
equal to such Bank's Commitment or, if less, the outstanding amount of all Loans
made by such Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be made, at or
about the time of the Drawdown Date of any Syndicated Loan or at the time of
receipt of any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Revolving Credit Note Record reflecting the
making of such Syndicated Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Loans set forth on such Bank's Revolving
Credit Note Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount on such Bank's Revolving Credit Note Record shall not
limit or otherwise affect the obligations of the Borrower hereunder or under any
Revolving Credit Note to make payments of principal of or interest on any
Revolving Credit Note when due.
2.6. Interest on Loans. Except as otherwise provided in Section 5.11,
(a) Each Base Rate Loan shall bear interest for the period commencing with
the Drawdown Date thereof and ending on the last day of the Interest Period with
respect thereto at Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the period commencing
with the Drawdown Date thereof and ending on the last day of the Interest Period
with respect thereto at the LIBOR Rate determined for such Interest Period, plus
the LIBOR Margin set forth in the Applicable Pricing.
(c) The Borrower promises to pay interest on each Syndicated Loan in
arrears on each Interest Payment Date with respect thereto.
2.7. Requests for Loans. The Borrower shall give to the Agent written
notice in the form of Exhibit C hereto (or telephonic notice confirmed in a
writing in the form of Exhibit C hereto) of each Syndicated Loan requested
hereunder (a "Loan Request") no later than (i) 1:00 p.m. (Boston time) on the
proposed Drawdown Date of any Base Rate Loan and (ii) two (2) LIBOR Business
Days prior to the proposed Drawdown Date of any LIBOR Rate Loan. Each such
notice shall specify (A) the principal amount of the Syndicated Loan requested,
(B) the proposed Drawdown Date of such Syndicated Loan, (C) the Interest Period
for such Syndicated Loan and (D) the Type of such Syndicated Loan. Promptly upon
receipt of any such notice, the Agent shall notify each of the Banks thereof.
Each Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Syndicated Loan requested from the Banks on
the proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate
amount of $5,000,000 and an integral multiple of $1,000,000.
2.8. Conversion Options.
2.8.1. Conversion to Different Type of Syndicated Loan. The Borrower
may elect from time to time to convert any outstanding Syndicated Loan to a
Syndicated Loan of another Type, provided that (i) with respect to any such
conversion of a Syndicated Loan to a Base Rate Loan, the Borrower shall give the
Agent at least two (2) Business Days prior written notice of such election; (ii)
with respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan,
the Borrower shall give the Agent at least two (2) LIBOR Business Days prior
written notice of such election; (iii) with respect to any such conversion of a
LIBOR Rate Loan into a Base Rate Loan, such conversion shall only be made on the
last day of the Interest Period with respect thereto; and (iv) no Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has
occurred and is continuing. All or any part of outstanding Syndicated Loans of
any Type may be converted into a Syndicated Loan of another Type as provided
herein, provided that any partial conversion shall be in a minimum aggregate
principal amount of $5,000,000 and an integral multiple of $1,000,000. Each
Conversion Request relating to the conversion of a Syndicated Loan to a LIBOR
Rate Loan shall be irrevocable by the Borrower.
2.8.2. Continuation of Type of Syndicated Loan. Any Syndicated Loan
of any Type may be continued as a Syndicated Loan of the same Type upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in Section 2.8.1; provided that no
LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating thereto ending
during the continuance of any Default or Event of Default of which officers of
the Agent active upon the Borrower's account have actual knowledge. In the event
that the Borrower fails to provide any such notice with respect to the
continuation of any LIBOR Rate Loan as such, then such LIBOR Rate Loan shall be
automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto. The Agent shall
notify the Banks promptly when any such automatic conversion contemplated
by this Section 2.8 is scheduled to occur.
2.8.3. LIBOR Rate Loans. Any conversion to or from LIBOR Rate Loans
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of all LIBOR Rate Loans
having the same Interest Period shall not be less than $5,000,000 or a whole
multiple of $1,000,000 in excess thereof.
2.9. Competitive Bid Loans.
2.9.1. Competitive Bid Borrowings.
(a) The Competitive Bid Option. In addition to the Syndicated
Loans permitted to be made hereunder pursuant to Section 2.1 hereof, the
Borrower may, from time to time pursuant to the terms of this Section 2.9, cause
the Agent to request the Banks to make offers to fund Competitive Bid Loans to
the Borrower from time to time prior to the Maturity Date. The Banks may, but
shall have no obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept such offers in the manner set forth in this
Section 2.9. Each Bank may make Competitive Bid Loans in an aggregate amount
(after giving effect to all amounts requested) not to exceed $30,000,000,
provided that (i) the aggregate principal amount of Competitive Bid Loans
outstanding at any time (after giving effect to all amounts requested) shall not
be less than $5,000,000 nor more than $30,000,000, and (ii) the sum of (A) the
aggregate amount of all outstanding Syndicated Loans plus (B) the aggregate
amount of all outstanding Swing Line Loans, plus (C) the Maximum Drawing Amount,
plus (D) all Unpaid Reimbursement Obligations, plus (E) the aggregate amount of
all outstanding Competitive Bid Loans (after giving effect to all amounts
requested) shall at no time exceed the Total Commitment.
(b) Competitive Bid Notes. The Competitive Bid Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit D-1 attached hereto (each a "Competitive Bid Note"), dated as of the
Closing Date and completed with appropriate insertions. A Competitive Bid Note
shall be payable to the order of each Bank in a principal amount equal to the
Total Commitment or, if less, the outstanding amount of all Competitive Bid
Loans made by such Bank to the Borrower hereunder, plus interest accrued
thereon. The Borrower irrevocably authorizes each Bank to make, at or about the
time of the Drawdown Date of any Competitive Bid Loan made by such Bank or at
the time of receipt of the payment of principal of such Competitive Bid Loan, an
appropriate notation on the Record attached to such Bank's Competitive Bid Note
reflecting the making of such Competitive Bid Loan and repayments thereof. All
such notations shall constitute prima facie evidence of the amount of such
Competitive Bid Loans and the repayments thereof, but the failure to record, or
any error in so recording such amount on such Bank's Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any
Competitive Bid Note to make payments of principal or interest on any
Competitive Bid Note when due.
(c) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.9, it shall
transmit to the Agent by telex, facsimile or electronic mail a Competitive Bid
Quote Request substantially in the form of Exhibit D-2 attached hereto (a
"Competitive Bid Quote Request") so as to be received no later than 1:00 p.m.
(Boston time) on the second Business Day prior to the requested Drawdown Date,
specifying (i) the requested Drawdown Date (which must be a Business Day), (ii)
the amount of such Competitive Bid Loan (which must be a minimum of $5,000,000
or any greater integral multiple of $1,000,000 and may not exceed $30,000,000
(after giving effect to all amounts requested), and (iii) the Interest Period of
such Competitive Bid Loan (which may not be fewer than ten (10) nor more than
ninety (90) days and may not extend beyond the Maturity Date). A Competitive Bid
fee of $750 shall be payable by the Borrower to the Agent with respect to each
Competitive Bid Quote Request on the date of the delivery of such request. The
Borrower may request offers to make Competitive Bid Loans for one amount and
three Interest Periods in a single Competitive Bid Quote Request.
(d) Invitation for Competitive Bid Quotes; Alternative Manner
of Auction. Subsequent to timely receipt of a Competitive Bid Quote Request, the
Agent shall send to the Banks by telex, facsimile or electronic mail an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit D-3
attached hereto (an "Invitation for Competitive Bid Quotes"), as promptly as
possible but not later than 3:00 p.m. (Boston time) on the second Business Day
prior to the requested Drawdown Date which shall constitute an invitation by the
Borrower to each Bank to submit Competitive Bid Quotes offering to make
Competitive Bid Loans to which such Competitive Bid Quote Request relates in
accordance with this Section 2.9. If, after receipt by the Agent of a
Competitive Bid Quote Request from the Borrower in accordance with subsection
(c) of this Section 2.9.1, the Agent or any Bank shall be unable to complete any
procedure of the auction process described in subsections (d) through (g)
(inclusive) of this Section 2.9.1 due to the inability of such Person to
transmit or receive communications through the means specified therein, such
Person may rely on telephonic notice for the transmission or receipt of such
communications. In any case where such Person shall rely on telephone
transmission or receipt, any communication made by telephone shall, as soon as
possible thereafter, be followed by written confirmation thereof.
(e) Submission and Contents of Competitive Bid Quotes.
(i) Each Bank may submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid Loans in response to any
Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must comply
with the requirements of this subsection (e) and must be submitted to the Agent
by telex, facsimile or electronic mail not later than 10:00 a.m. (Boston time)
on the requested Drawdown Date, provided, that Competitive Bid Quotes may be
made by the Agent in its capacity as a Bank only if it notifies the Borrower of
the terms of its Competitive Bid Quote no later than 9:30 a.m. (Boston time) on
the requested Drawdown Date. Subject to the provisions of Sections 10, 11, and
12 hereof, any Competitive Bid Quote so made shall be irrevocable except with
the written consent of the Agent given on the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit D-4 attached hereto and shall in any case
specify: (A) the requested Drawdown Date and Interest Periods, (B) the principal
amount of the Competitive Bid Loan for which each such offer is being made,
which principal amount (x) may be greater than the Commitment of the quoting
Bank but may not exceed $30,000,000, (y) must be $2,000,000 or a larger multiple
of $1,000,000 and (z) may not exceed the aggregate principal amount of
Competitive Bid Loans for which offers were requested, (C) the fixed rate of
interest per annum (rounded to the nearest 1/1000th of 1%) (the "Competitive Bid
Rate") offered for each such Competitive Bid Loan, and (D) the identity of the
quoting Bank.
(iii) Any Competitive Bid Quote shall be disregarded
if it: (A) is not substantially in the form of Exhibit D-4 attached hereto or
does not specify all of the information required by subsection (e)(ii) of this
Section 2.9.1; (B) contains qualifying, conditional or similar language (except
that it may, in the case of a quote relating to more than one Interest Period,
contain the condition that the Bank will fund any one, but not more, of the
Competitive Bid Loans offered in such Competitive Bid Quote); (C) proposes terms
other than or in addition to those set forth in the applicable Invitation for
Competitive Bid Quotes; or (D) arrives after the time set forth in subsection
(e)(i) of this Section 2.9.1.
(f) Notice to Borrower. Not later than 10:30 a.m. (Boston
time) on the requested Drawdown Date, the Agent shall notify the Borrower of the
terms of all Competitive Bid Quotes submitted by the Banks in accordance with
subsection (e) of this Section 2.9.1. The Agent's notice to the Borrower shall
specify (i) the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related
Competitive Bid Quote Request, and (ii) the respective principal amounts and
Competitive Bid Rates so offered.
(g) Acceptance and Notice by Borrower. Not later than 11:00
a.m. (Boston time) on the requested Drawdown Date, the Borrower shall notify the
Agent, and the Agent shall promptly notify each Bank with respect to its offer,
of the Borrower's acceptance or non-acceptance of the offers of which it was
notified pursuant to subsection (f) of this Section 2.9.1. In the case of an
acceptance, such notice shall (i) be substantially in the form of Exhibit D-5
attached hereto (a "Notice of Competitive Bid Borrowing"), (ii) be irrevocable
by the Borrower, and (iii) specify the aggregate principal amount of offers for
each Interest Period that are accepted. Each acceptance by the Borrower of
Competitive Bid Loans hereunder shall constitute a representation and warranty
by the Borrower that the conditions set forth in Sections 10 and 11 hereof have
been satisfied on the date of such acceptance. The Borrower may accept any
Competitive Bid Quote in whole or in part; provided that: (A) the aggregate
principal amount of each Competitive Bid Loan may not exceed the applicable
amount set forth in the related Competitive Bid Quote Request, (B) the aggregate
principal amount of each Competitive Bid Loan must be $2,000,000 or a larger
multiple of $1,000,000, and (C) acceptance of offers may only be made on the
basis of ascending Competitive Bid Rates.
(h) Allocation by Agent; Usage of Commitments. If offers are
made by two or more Banks with the same Competitive Bid Rates, for a greater
aggregate principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of Competitive
Bid Loans in respect of which such offers are accepted shall be allocated by the
Agent among such Banks as nearly as possible (in such multiples, not less than
$100,000 as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. If any such Bank has indicated a minimum
acceptable Competitive Bid Loan in its Competitive Bid Request, and under the
procedures of this subsection (h), the Agent would have allocated to it an
amount less than such minimum, such Competitive Bid Quote will instead be deemed
to have been withdrawn. Determination by the Agent of the amounts of Competitive
Bid Loans and the allocation thereof shall be conclusive in the absence of
manifest error. The Agent shall, promptly after the funding of any Competitive
Bid Loan, notify the Banks thereof pursuant to a notice substantially in the
form of Exhibit D-6 attached hereto.
(i) Funding of Competitive Bid Loans. If, on or prior to the
Drawdown Date of any Competitive Bid Loan, the Total Commitment has not
terminated in full and if, on such Drawdown Date, the applicable conditions of
ss.ss.10 and 11 hereof are satisfied, the Bank or Banks whose offers the
Borrower has accepted will fund each Competitive Bid Loan so accepted as
provided in Section 2.11.1 hereof.
2.9.2. Maximum Competitive Bid Loans; Funding Losses.
(a) Notwithstanding any other provision herein to the
contrary, at no time shall the aggregate principal amount of Competitive Bid
Loans outstanding at any time exceed the lesser of (i) $30,000,000 and (ii) the
Total Commitment, minus the sum of (A) the aggregate principal amount of
Syndicated Loans outstanding at such time plus (B) the aggregate principal
amount of Swing Line Loans outstanding at such time plus (C) the Maximum Drawing
Amount plus (D) all Unpaid Reimbursement Obligations.
(b) If after acceptance of any Competitive Bid Quote pursuant
to Section 2.9.1(f) hereof, the Borrower fails to borrow any Competitive Bid
Loan so accepted on the date specified therefor, the Borrower shall indemnify
the Bank funding such Loan against any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund or maintain such unborrowed Competitive Bid Loans, including, without
limitation, compensation as provided in Section 5.10 hereof.
2.9.3. Repayment of Competitive Bid Loans. The principal of each
Competitive Bid Loan shall become absolutely due and payable by the Borrower on
the last day of the Interest Period relating thereto, and the Borrower hereby
absolutely and unconditionally promises to pay to the Agent, for the accounts of
the relevant Banks, on the last day of the Interest Period relating thereto the
principal amount of all such Competitive Bid Loans plus interest thereon at the
applicable Competitive Bid Rate. Subject to the terms of this Credit Agreement,
the Borrower may reborrow any amounts so repaid from time to time prior to the
Maturity Date.
2.10. The Swing Line.
2.10.1. The Swing Line Loans. Subject to the terms and conditions
hereinafter set forth, upon notice by the Borrower to BKB in accordance with
this Section 2.10, BKB agrees to make loans to the Borrower (the "Swing Line
Loans") on any Business Day prior to the Maturity Date in an aggregate principal
amount (together with all other outstanding Swing Line Loans) not to exceed
$10,000,000 at any one time outstanding. Each Swing Line Loan shall be in a
minimum amount equal to $1,000,000 and in an integral multiple thereof.
Notwithstanding any other provisions of this Credit Agreement and in addition to
the limit set forth above, at no time shall the aggregate principal amountof all
outstanding Swing Line Loans exceed the lesser of (i) the Commitment of BKB then
in effect, minus the sum of (without duplication)(A) the aggregate principal
amount of all Syndicated Loans by BKB outstanding, (B) the aggregate amount of
all Competitive Bid Loans by BKB outstanding and (C) BKB's Commitment Percentage
of the Maximum Drawing Amount plus all unpaid Reimbursement Obligations, and
(ii) the Total Commitment then in effect, minus the sum of (without duplication)
(A) the aggregate principal amount of all Syndicated Loans outstanding, (B) the
aggregate amount of Competitive Bid Loans outstanding, (C) the Maximum Drawing
Amount, and (D) all Unpaid Reimbursement Obligations.
2.10.2. Notice of Borrowing. When the Borrower desires BKB to make a
Swing Line Loan, it shall send to BKB written notice in the form of Exhibit E-1
hereto (or telephonic notice confirmed in a writing in the form of Exhibit E-1
hereto) of each Swing Line Loan requested hereunder (a "Swing Line Loan
Request") not later than 1:00 p.m. (Boston time) on the proposed Drawdown Date
of any Swing Line Loan. Each such Swing Line Request Confirmation shall set
forth the principal amount of the proposed Swing Line Loan and the Swing Line
Loan Maturity Date relating to such Swing Line Loan, which shall in no event be
later than the earlier of (i) the thirtieth (30th) day after the Drawdown Date
and (ii) the Maturity Date. Not later than 2:00 p.m. (Boston time) on the
proposed Drawdown Date of any Swing Line Loan, BKB shall notify the Borrower of
the Swing Line Rate at which BKB is willing to make the requested Swing Line
Loan. If the Borrower desires to borrow the requested Swing Line Loan at the
Swing Line Rate, it shall confirm such desire by telex, facsimile or electronic
mail (a "Swing Line Request Confirmation") not later than 2:30 p.m. (Boston
time) on the proposed Drawdown Date. Each Swing Line Loan Request Confirmation
shall be irrevocable and binding on the Borrower and shall obligate the Borrower
to borrow the Swing Line Loan from BKB on the proposed Drawdown Date thereof.
Upon satisfaction of the applicable conditions set forth in this Credit
Agreement, on the proposed Drawdown Date BKB shall make the Swing Line Loan
available to the Borrower no later than 3:00 p.m. (Boston time) on the proposed
Drawdown Date by crediting the amount of the Swing Line Loan to the account
specified by the Borrower; provided that BKB shall not advance any Swing Line
Loans after it has received notice from any Bank that a Default or Event of
Default has occurred and stating that no new Swing Line Loans are to be made
until such Default or Event of Default has been cured or waived in accordance
with the provisions of this Credit Agreement.
2.10.3. Interest on Swing Line Loans. Each Swing Line Loan shall,
except as otherwise provided in ss.5.11 hereof, bear interest from the
Drawdown Date thereof until repaid in full at the rate per annum equal to
the Swing Line Rate quoted for such Swing Line Loan, which shall be paid on each
Interest Payment Date for Base Rate Loans.
2.10.4. Repayment of Swing Line Loans. The Borrower shall repay each
outstanding Swing Line Loan on or prior to the Swing Line Loan Maturity Date
relating thereto. Upon notice by BKB on any Business Day following the Swing
Line Loan Maturity Date relating to each Swing Line Loan, in the event that the
Borrower has not repaid such Swing Line Loan, each of the Banks hereby agrees to
make Syndicated Loans to the Borrower constituting Base Rate Loans, on the next
succeeding Business Day following such notice, in an amount equal to such Bank's
Commitment Percentage of the aggregate amount of all Swing Line Loans
outstanding and overdue. The proceeds thereof shall be applied directly by BKB
to repay outstanding Swing Line Loans. Each Bank hereby absolutely,
unconditionally and irrevocably agrees to make such Syndicated Loans upon one
Business Day's notice as set forth above, notwithstanding (i) that the amount of
such Syndicated Loan may not comply with the applicable minimums set forth
herein, (ii) the failure of the Borrower to meet the applicable conditions set
forth herein, (iii) the occurrence or continuance of a Default or an Event of
Default hereunder, and (iv) the Total Commitment in effect at such time. In the
event that it is impracticable for such Syndicated Loan to be made for any
reason on the date otherwise required above, then each Bank hereby agrees that
it shall forthwith purchase (as of the date such Syndicated Loan would have been
made, but adjusted for any payments received from the Borrower on or after such
date and prior to such purchase) from BKB, and BKB shall sell to each Bank, such
participations in the Swing Line Loans (including all accrued and unpaid
interest thereon) outstanding as shall be necessary to cause the Banks to share
in such Swing Line Loans pro rata based on their respective Commitment
Percentages (without regard to any termination of the Total Commitment
hereunder) by making available to BKB an amount equal to such Bank's
participation in the Swing Line Loans; provided that (x) all interest payable on
the Swing Line Loans (other than interest received by BKB pursuant to clause (y)
below) shall be for the account of BKB as a funding and administrative fee until
the date as of which the respective participation is purchased, and (y) at the
time any purchase of such participation is actually made, the purchasing Bank
shall be required to pay BKB interest on the principal amount of the
participation so purchased for each day from and including the date such Loan
would otherwise have been made until the date of payment for such participation
at the rate of interest then applicable to such Swing Line Loans during such
period. The Borrower shall have the right, at its election, to repay the
outstanding amount of a Swing Line Loan, as a whole or in part, at any time
without penalty or premium, provided that any full or partial repayment of the
outstanding amount of any Swing Line Loan may be made only on the last day of
the Interest Period relating thereto unless the Borrower pays, in accordance
with Section 5.10, BKB the costs and expenses incurred by BKB as a result of the
repayment of such Swing Line Loan on a day other than the last day of such
Interest Period relating thereto.
2.10.5. The Swing Line Note. The obligation of the Borrower to repay
the Swing Line Loans made pursuant to this Agreement and to pay interest thereon
as set forth in this Agreement shall be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit E-2 attached hereto
(the "Swing Line Note"), dated the Closing Date and payable to the order
of BKB in a principal amount stated to be the lesser of (i) $10,000,000 and (ii)
the aggregate principal amount of Swing Line Loans at any time advanced by BKB
and outstanding hereunder. The Borrower irrevocably authorizes BKB to make or
cause to be made, at or about the time of the Drawdown Date of any Swing Line
Loan or at the time of receipt of any payment of principal on the Swing Line
Note, an appropriate notation on the grid attached to such Note or BKB's records
reflecting the making of such Swing Line Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Swing Line Loans set
forth on such grid or such records shall be prima facie evidence of the
principal amount thereof owing and unpaid to BKB, but the failure to record, or
any error in so recording, any such amount on such Note or such records shall
not limit or otherwise affect the actual amount of the obligations of the
Borrower hereunder or under the Swing Line Note to make payments of principal of
or interest on the Swing Line Note when due.
2.11. Funds for Syndicated Loan.
2.11.1. Funding Procedures. Not later than 11:00 a.m. (Boston time)
on the proposed Drawdown Date of any Syndicated Loans, each of the Banks will
make available to the Agent, at the Agent's Head Office, in immediately
available funds, the amount of such Bank's Commitment Percentage of the amount
of the requested Syndicated Loans. Upon receipt from each Bank of such amount,
and upon receipt of the documents required by Sections 10 and 11 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make available to the Borrower the aggregate amount
of such Syndicated Loans made available to the Agent by the Banks. The failure
or refusal of any Bank to make available to the Agent at the aforesaid time and
place on any Drawdown Date the amount of its Commitment Percentage of the
requested Syndicated Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such other
Bank's Commitment Percentage of any requested Syndicated Loans.
2.11.2. Advances by Agent. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has made
available to the Agent on such Drawdown Date the amount of such Bank's
Commitment Percentage of the Syndicated Loans to be made on such Drawdown Date,
and the Agent may (but it shall not be required to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If any Bank
makes available to the Agent such amount on a date after such Drawdown Date,
such Bank shall pay to the Agent on demand an amount equal to the product of (i)
the average computed for the period referred to in clause (iii) below, of the
weighted average interest rate paid by the Agent for federal funds acquired by
the Agent during each day included in such period, times (ii) the amount of such
Bank's Commitment Percentage of such Syndicated Loans, times (iii) a fraction,
the numerator of which is the number of days that elapse from and including such
Drawdown Date to the date on which the amount of such Bank's Commitment
Percentage of such Syndicated Loans shall become immediately available to the
Agent, and the denominator of which is 365. A statement of the Agent submitted
to such Bank with respect to any amounts owing under this paragraph shall be
prima facie evidence of the
amount due and owing to the Agent by such Bank. If the amount of such
Bank's Commitment Percentage of such Syndicated Loans is not made available to
the Agent by such Bank within three (3) Business Days following such Drawdown
Date, the Agent shall be entitled to recover such amount from the Borrower on
demand, with interest thereon at the rate per annum applicable to the Syndicated
Loans made on such Drawdown Date.
3. REPAYMENT OF THE LOANS.
3.1. Maturity. The Borrower promises to pay on the Maturity Date, and
there shall become absolutely due and payable on the Maturity Date, all of the
Loans outstanding on such date, together with any and all accrued and unpaid
interest thereon.
3.2. Mandatory Repayments of Loans. If at any time the sum of the
outstanding amount of the Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total Commitment, then the Borrower shall
immediately pay the amount of such excess to the Agent for the respective
accounts of the Banks for application: first, to any Unpaid Reimbursement
Obligations; second, to the Loans; and third, to provide to the Agent cash
collateral for Reimbursement Obligations as contemplated by Section 4.2(b) and
(c). Each payment of any Unpaid Reimbursement Obligations or prepayment of Loans
shall be allocated among the Banks, in proportion, as nearly as practicable, to
each Reimbursement Obligation or (as the case may be) the respective unpaid
principal amount of each Bank's Revolving Credit Note, with adjustments to the
extent practicable to equalize any prior payments or repayments not exactly in
proportion.
3.3. Optional Repayments of Syndicated Loans. The Borrower shall have the
right, at its election, to repay the outstanding amount of the Syndicated Loans,
as a whole or in part, at any time without penalty or premium, provided that any
full or partial repayment of the outstanding amount of any LIBOR Rate Loans
pursuant to this Section 3.3 other than on the last day of the Interest Period
relating thereto shall be subject to Section 5.10. The Borrower shall give the
Agent prior written notice (including without limitation by telex, facsimile or
electronic mail) of any proposed prepayment pursuant to this Section 3.3, no
later than 1:00 p.m., Boston time, on the proposed prepayment date, with respect
to any proposed prepayment of Base Rate Loans, and three (3) LIBOR Business Days
prior to any proposed prepayment of LIBOR Rate Loans, in each case specifying
the proposed date of prepayment of Loans and the principal amount to be prepaid.
Each such partial prepayment of the Syndicated Loans shall be in a minimum
amount of $5,000,000 and an integral multiple of $1,000,000, shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of prepayment and shall be applied, in the absence of instruction by the
Borrower, first to the principal of Base Rate Loans and then to the principal of
LIBOR Rate Loans. Each partial prepayment shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of each Bank's Revolving Credit Note, with adjustments to the extent practicable
to equalize any prior repayments not exactly in proportion.
4. LETTERS OF CREDIT.
4.1. Letter of Credit Commitments.
4.1.1. Commitment to Issue Letters of Credit. Subject to the terms
and conditions hereof and the execution and delivery by the Borrower of a letter
of credit application on the Agent's customary form (a "Letter of Credit
Application"), the Agent on behalf of the Banks and in reliance upon the
agreement of the Banks set forth in Section 4.1.4 and upon the representations
and warranties of the Borrower contained herein, agrees, in its individual
capacity, to issue, extend and renew for the account of the Borrower one or more
standby or documentary letters of credit (individually, a "Letter of Credit"),
in such form as may be requested from time to time by the Borrower and agreed to
by the Agent; provided, however, that, after giving effect to such request, (a)
the sum of the aggregate Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not exceed $55,000,000 at any one time and (b) the sum of (i)
the Maximum Drawing Amount on all Letters of Credit, (ii) all Unpaid
Reimbursement Obligations, and (iii) the amount of all Loans outstanding shall
not exceed the Total Commitment.
4.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the event
that any provision of any Letter of Credit Application shall be inconsistent
with any provision of this Credit Agreement, then the provisions of this Credit
Agreement shall, to the extent of any such inconsistency, govern.
4.1.3. Terms of Letters of Credit. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (i) provide for the
payment of sight drafts for honor thereunder when presented in accordance with
the terms thereof and when accompanied by the documents described therein, and
(ii) have an expiry date no later than the date which is fourteen (14) days
prior to the Maturity Date. Each Letter of Credit so issued, extended or renewed
shall be subject to the Uniform Customs or, in the case of a standby Letter of
Credit, either the Uniform Customs or the International Standby Practices.
4.1.4. Reimbursement Obligations of Banks. Each Bank severally
agrees that it shall be absolutely liable, without regard to the occurrence of
any Default or Event of Default or any other condition precedent whatsoever, to
the extent of such Bank's Commitment Percentage, to reimburse the Agent on
demand for the amount of each draft paid by the Agent under each Letter of
Credit to the extent that such amount is not reimbursed by the Borrower pursuant
to Section 4.2 (such agreement for a Bank being called herein the "Letter of
Credit Participation" of such Bank).
4.1.5. Participations of Banks. Each such payment made by a Bank
shall be treated as the purchase by such Bank of a participating interest in the
Borrower's Reimbursement Obligation under Section 4.2 in an amount equal to such
payment. Each Bank shall share in accordance with its participating interest in
any interest which accrues pursuant to Section 4.2.
4.2. Reimbursement Obligation of the Borrower. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Agent, for the account of the Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder,
(a) except as otherwise expressly provided in Section 4.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored by the
Agent, or the Agent otherwise makes a payment with respect thereto, (i) the
amount paid by the Agent under or with respect to such Letter of Credit, and
(ii) the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Agent or any Bank in connection with any payment made
by the Agent or any Bank under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment to an
amount less than the Maximum Drawing Amount, an amount equal to such difference,
which amount shall be held by the Agent for the benefit of the Banks and the
Agent as cash collateral for all Reimbursement Obligations, and
(c) upon the termination of the Total Commitment, or the acceleration of
the Reimbursement Obligations with respect to all Letters of Credit in
accordance with Section 12, an amount equal to the then Maximum Drawing Amount
on all Letters of Credit, which amount shall be held by the Agent for the
benefit of the Banks and the Agent as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining unpaid by
the Borrower under this Section 4.2 at any time from the date such amounts
become due and payable (whether as stated in this Section 4.2, by acceleration
or otherwise) until payment in full (whether before or after judgment) shall be
payable to the Agent on demand at the rate specified in Sectoin 5.11 for overdue
principal on the Loans.
4.3. Letter of Credit Payments. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Agent shall
notify the Borrower of the date and amount of the draft presented or demand for
payment and of the date and time when it expects to pay such draft or honor such
demand for payment. If the Borrower fails to reimburse the Agent as provided in
Section 4.2 on or before the date that such draft is paid or other payment is
made by the Agent, the Agent may at any time thereafter notify the Banks of the
amount of any such Unpaid Reimbursement Obligation. No later than 3:00 p.m.
(Boston time) on the Business Day next following the receipt of such notice,
each Bank shall make available to the Agent, at the Agent's Head Office, in
immediately available funds, such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to the product of (i)
the average, computed for the period referred to in clause (iii) below, of the
weighted average interest rate paid by the Agent for federal funds acquired by
the Agent during each day included in such period, times (ii) the amount equal
to such Bank's Commitment Percentage of such Unpaid Reimbursement Obligation,
times (iii) a fraction, the
numerator of which is the number of days that elapse from and including
the date the Agent paid the draft presented for honor or otherwise made payment
to the date on which such Bank's Commitment Percentage of such Unpaid
Reimbursement obligation shall become immediately available to the Agent, and
the denominator of which is 360. The responsibility of the Agent to the Borrower
and the Banks shall be only to determine that the documents (including each
draft) delivered under each Letter of Credit in connection with such presentment
shall be in conformity in all material respects with such Letter of Credit.
4.4. Obligations Absolute. The Borrower's obligations under this ss.4
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrower further agrees with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 4.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee. The Agent and the Banks shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit. The Borrower agrees that any action taken or omitted by
the Agent or any Bank under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the Agent or any
Bank to the Borrower.
4.5. Reliance by Issuer. To the extent not inconsistent with Section 4.4,
the Agent shall be entitled to rely, and shall be fully protected in relying
upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement unless it
shall first have received such advice or concurrence of the Majority Banks as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Credit Agreement in accordance with a request of the Majority
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon the Banks and all future holders of the Revolving Credit
Notes or of a Letter of Credit Participation.
4.6. Letter of Credit Fee. The Borrower shall pay to the Agent quarterly
in arrears, for the accounts of the Banks in accordance with their respective
Commitment Percentages, a fee (in each case, a "Letter of Credit Fee") with
respect to each Letter of Credit issued or renewed, at rate per annum equal to
(i) in respect of each standby Letter of Credit, the Letter of Credit Rate (as
set forth in the Applicable Pricing), and (ii) in respect of each documentary
Letter of Credit, 75% of the Letter of Credit Rate (but not less than 0.50%), in
each case computed on the Maximum Drawing Amount of such Letter of Credit for
the period such Letter of Credit is outstanding. In respect of each Letter of
Credit, the Borrower shall also pay to the Agent, for the Agent's own account,
(x) on the date of issuance of any extension or renewal of a Letter of Credit, a
fronting fee in an amount equal to one-eighth of one percent (0.125%) multiplied
by the face amount of such Letter of Credit and (y) at such other time or times
as such charges are customarily made by the Agent, the Agent's customary
issuance, amendment, negotiation or document examination and other
administrative fees as in effect from time to time.
5. CERTAIN GENERAL PROVISIONS.
5.1. Agent's Fee. The Borrower shall pay to the Agent annually in advance,
for the Agent's own account, on the Closing Date and on each anniversary of the
Closing Date, an Agent's fee initially in the amount of $30,000.
5.2. Arrangement Fee. The Borrower agrees to pay to the Agent, for the
account of BancBoston Xxxxxxxxx Xxxxxxxx Inc., as Arranger, on the Closing Date,
an arrangement fee as set forth the fee letter dated November 3, 1999, among the
Borrower, the Agent and BancBoston Xxxxxxxxx Xxxxxxxx Inc.
5.3. Funds for Payments.
5.3.1. Payments to Agent. All payments of principal, interest,
Reimbursement Obligations, Letter of Credit Fees, Facility Fees, Utilization
Fees and any other amounts due hereunder or under any of the other Loan
Documents shall be made on the due date thereof to the Agent in Dollars, for the
respective accounts of the Banks and the Agent, at the Agent's Head Office or at
such other place that the Agent may from time to time designate, in each case at
or about 11:00 a.m. (Boston, Massachusetts, time or other local time at the
place of payment) and in immediately available funds.
5.3.2. No Offset, etc. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without recoupment, setoff
or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or hereafter imposed or
levied by any jurisdiction or any political subdivision thereof or taxing or
other authority therein unless the Borrower is compelled by law to make such
deduction or withholding. If any such obligation is imposed upon the Borrower
with respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrower will pay to the Agent, for the account of the Banks
or (as the case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document,
such additional amount in Dollars as shall be necessary to enable the
Banks or the Agent to receive the same net amount which the Banks or the Agent
would have received on such due date had no such obligation been imposed upon
the Borrower. The Borrower will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid with
respect to payments made by the Borrower hereunder or under such other Loan
Document.
5.4. Computations. All computations of interest on the Loans (other than
LIBOR Rate Loans) and of Letter of Credit Fees, Facility Fees and Utilization
Fees shall be based on a 365/366-day year and paid for the actual number of days
elapsed. Computations of interest on LIBOR Rate Loans shall be based on a
360-day year and paid for the actual number of days elapsed. Except as otherwise
provided in the definition of the term Interest Period with respect to LIBOR
Rate Loans, whenever a payment hereunder or under any of the other Loan
Documents becomes due on a day that is not a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and interest
shall accrue during such extension. The outstanding amount of the Loans as
reflected on the Records of the related Notes from time to time shall be
considered correct and binding on the Borrower unless within five (5) Business
Days after receipt of any notice by the Agent or any of the Banks of such
outstanding amount, the Agent or such Bank shall notify the Borrower to the
contrary.
5.5. Inability to Determine LIBOR Rate. In the event, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent
shall determine that adequate and reasonable methods do not exist for
ascertaining the LIBOR Rate that would otherwise determine the rate of interest
to be applicable to any LIBOR Rate Loan during any Interest Period, the Agent
shall forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower and the Banks) to the Borrower and the Banks. In such
event (i) any Loan Request or Conversion Request with respect to LIBOR Rate
Loans shall be automatically withdrawn and shall be deemed a request for Base
Rate Loans, (ii) each LIBOR Rate Loan will automatically, on the last day of the
then current Interest Period relating thereto, become a Base Rate Loan, and
(iii) the obligations of the Banks to make LIBOR Rate Loans shall be suspended
until the Agent determines that the circumstances giving rise to such suspension
no longer exist, whereupon the Agent shall so notify the Borrower and the Banks.
5.6. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
LIBOR Rate Loans, such Bank shall forthwith give notice of such circumstances to
the Borrower and the other Banks and thereupon (i) the commitment of such Bank
to make LIBOR Rate Loans or convert Loans of another Type to LIBOR Rate Loans
shall forthwith be suspended and (ii) such Bank's Loans then outstanding as
LIBOR Rate Loans, if any, shall be converted automatically to Base Rate Loans on
the last day of each Interest Period applicable to such LIBOR Rate Loans or
within such earlier period as may be required by law. The Borrower hereby agrees
promptly to pay the Agent for the account of such Bank, upon demand by such
Bank, any additional amounts necessary to compensate such Bank for any costs
incurred by such Bank in
making any conversion in accordance with this Section 5.6, including any
interest or fees payable by such Bank to lenders of funds obtained by it in
order to make or maintain its LIBOR Rate Loans hereunder.
5.7. Additional Costs, etc. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Bank or
the Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this Credit
Agreement, the other Loan Documents, any Letters of Credit, such Bank's
Commitment or the Loans (other than taxes based upon or measured by the income
or profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in taxes
on income or profits) of payments to any Bank of the principal of or the
interest on any Loans or any other amounts payable to any Bank or the Agent
under this Credit Agreement or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or letters of credit issued by,
or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or requirements
with respect to this Credit Agreement, the other Loan Documents, any Letters of
Credit, the Loans, such Bank's Commitment, or any class of loans, letters of
credit or commitments of which any of the Loans or such Bank's Commitment forms
a part, and the result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Bank's Commitment or
any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank or the Agent hereunder on
account of such Bank's Commitment, any Letter of Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any payment or to
forego any interest or Reimbursement Obligation or other sum payable hereunder,
the amount of which payment or foregone interest or Reimbursement Obligation or
other sum is calculated by reference to the gross amount of any sum receivable
or deemed received by such Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such
Bank or (as the case may be) the Agent at any time and from time to time and as
often as the occasion therefor may arise, pay to such Bank or the Agent such
additional amounts as will be sufficient to compensate such Bank or the Agent
for such additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum.
5.8. Capital Adequacy. If after the date hereof any Bank or the Agent
determines that (i) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (ii) compliance by such Bank or the
Agent or any corporation controlling such Bank or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Bank's or the Agent's commitment with
respect to any Loans to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or the Agent's then existing policies with respect to
capital adequacy and assuming full utilization of such entity's capital) by any
amount deemed by such Bank or (as the case may be) the Agent to be material,
then such Bank or the Agent may notify the Borrower of such fact. To the extent
that the amount of such reduction in the return on capital is not reflected in
the Base Rate, the Borrower agrees to pay such Bank or (as the case may be) the
Agent for the amount of such reduction in the return on capital as and when such
reduction is determined upon presentation by such Bank or (as the case may be)
the Agent of a certificate in accordance with ss.5.9 hereof. Each Bank shall
allocate such cost increases among its customers in good faith and on an
equitable basis.
5.9. Certificate. A certificate setting forth any additional amounts
payable pursuant to Sections 5.7 or 5.8 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrower, shall be
prima facie evidence, absent demonstrable error, that such amounts are due and
owing.
5.10. Indemnity. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (i)
default by the Borrower in payment of the principal amount of or any interest on
any LIBOR Rate Loans as and when due and payable, including any such loss or
expense arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans, (ii) default by the
Borrower in making a borrowing or conversion after the Borrower has given (or is
deemed to have given) a Loan Request or a Conversion Request relating thereto in
accordance with Secton 2.7 or Section 2.8 or (iii) the making of any payment of
a LIBOR Rate Loan or the making of any conversion of any such Loan to a Base
Rate Loan on a day that is not the last day of the applicable Interest Period
with respect thereto, including interest or fees payable by such Bank to lenders
of funds obtained by it in order to maintain any such Loans.
5.11. Interest After Default.
5.11.1. Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents shall bear interest
compounded monthly and payable on demand at a rate per annum equal to two
percent (2%) above the rate otherwise applicable until such amount shall be paid
in full (after as well as before judgment).
5.11.2. Amounts Not Overdue. During the continuance of an Event of
Default the principal of the Loans not overdue shall, until such Event of
Default has been cured or remedied or such Event of Default has been waived by
the Majority Banks pursuant to ss.25, bear interest at a rate per annum equal to
two percent (2%) above the rate of interest otherwise applicable to such Loans
hereunder.
5.12. HLT Classification. If, after the date hereof, the Agent determines
or is advised by any Bank that such Bank has determined, or the Agent receives
notice from or is advised by any Bank that such Bank has received notice from
any governmental authority, central bank or comparable agency having
jurisdiction over such Bank, that any of the Commitments, Loans, Letters of
Credit or Letter of Credit Participations are classified as a "highly leveraged
transaction" (an "HLT Classification") pursuant to any existing regulations
regarding "highly leveraged transactions" or any modification, amendment or
interpretation thereof, or the adoption of new regulations regarding "highly
leveraged transactions" after the date hereof by any governmental authority,
central bank or comparable agency, the Agent shall promptly give notice of such
HLT Classification to the Borrower and the Banks. The Agent, the Banks and the
Borrower shall thereupon commence negotiations in good faith to agree on the
extent to which fees, interest rates and/or margins hereunder should be
increased so as to reflect such HLT Classification. If the Borrower and the
Majority Banks agree on the amount of such increase or increases, this Credit
Agreement shall be promptly amended to give effect to such increase or
increases. If the Borrower and the Majority Banks fail to so agree and the
Borrower has failed to refinance the Obligations within ninety (90) days after
notice is given by the Agent as provided above, then the Agent shall, if so
requested by the Majority Banks, by notice to the Borrower terminate the
Commitments, and the Commitments shall thereupon terminate, with the provisions
of Sections 3.2 and 4.2(c) then becoming applicable. The Agent and the Banks
acknowledge that an HLT Classification is not a Default or an Event of Default.
5.13. Guaranties of Subsidiaries. The Obligations shall be guaranteed
pursuant to the terms of the Guaranty given by each Significant Subsidiary. The
Borrower agrees to notify the Agent promptly of any Subsidiary qualifying as a
Significant Subsidiary which shall not have theretofore executed and delivered a
Guaranty, and to cause such Subsidiary to execute and deliver a Guaranty to the
Agent.
6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks and the Agent as
follows:
6.1. Corporate Authority.
6.1.1. Incorporation; Good Standing. Each of the Borrower and its
Significant Subsidiaries (i) is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation, (ii) has all
requisite corporate power to own its property and conduct its business as now
conducted and as presently contemplated, and (iii) is in good standing as a
foreign corporation and is duly authorized to do business in each jurisdiction
where such qualification is necessary except where a failure to be so qualified
would not have a materially adverse effect on the business, assets or financial
condition of the Borrower or such Subsidiary. Schedule 6.1 hereto sets forth the
names and jurisdictions of organization of all Subsidiaries of the Borrower,
specifying those which are Significant Subsidiaries on the date hereof.
6.1.2. Authorization. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the Borrower or any
of its Subsidiaries is or is to become a party and the transactions contemplated
hereby and thereby (i) are within the corporate authority of such Person, (ii)
have been duly authorized by all necessary corporate proceedings, (iii) do not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which the Borrower or any of its Subsidiaries is
subject or any judgment, order, writ, injunction, license or permit applicable
to the Borrower or any of its Subsidiaries and (iv) do not conflict with any
provision of the corporate charter or bylaws of, or any agreement or other
instrument binding upon, the Borrower or any of its Subsidiaries.
6.1.3. Enforceability. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally binding
obligations of such Person enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
6.2. Governmental Approvals. The execution, delivery and performance by
the Borrower and any of its Subsidiaries of this Credit Agreement and the other
Loan Documents to which the Borrower or any of its Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained.
6.3. Title to Properties; Leases. Except as indicated on Schedule 6.3
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases,
conditional sales agreements, title retention agreements, liens or other
encumbrances except Permitted Liens.
6.4. Financial Statements.
6.4.1. Fiscal Year. The Borrower and each of its Significant
Subsidiaries has a fiscal year which is the twelve months ending on the Friday
closest to November 30 in each calendar year.
6.4.2. Financial Statements. There has been furnished to each of the
Banks an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and an unaudited consolidated
statement of income of the Borrower and its Subsidiaries for the fiscal year
then ended. The Borrower shall furnish to each of the Banks, as soon as
available, a copy of such consolidated balance sheet as at the Balance Sheet
Date and such consolidated statement for the fiscal year then ended, as
certified by PricewaterhouseCoopers LLP. Such balance sheets and statements of
income have been prepared in accordance with generally accepted accounting
principles and fairly present the financial condition of the Borrower as at the
close of business on the date thereof and the results of operations for the
fiscal year then ended (subject, in the case of the unaudited financial
statements, to adjustments and notes included in the audited financial
statements). There are no contingent liabilities of the Borrower or any of its
Subsidiaries as of such date involving material amounts, known to the officers
of the Borrower, which were not disclosed in such balance sheet and the notes
related thereto.
6.5. No Material Changes, etc. Since the Balance Sheet Date, except as set
forth in Schedule 6.5 hereto, there has occurred no materially adverse change in
the financial condition or business of the Borrower and its Subsidiaries taken
as a whole as shown on or reflected in the consolidated balance sheet of the
Borrower and its Subsidiaries as at the Balance Sheet Date, or the consolidated
statement of income for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of the Borrower or any of its Significant Subsidiaries. Since the Balance Sheet
Date, except as set forth in Schedule 6.5, the Borrower has not made any
Distribution.
6.6. Franchises, Patents, Copyrights, etc. Each of the Borrower and its
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
6.7. Litigation. Except as set forth in Schedule 6.7 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or threatened
against the Borrower or any of its Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely determined, might, either in
any case or in the aggregate, materially adversely affect the properties,
assets, financial condition or business of the Borrower and its Subsidiaries
considered as a whole or materially impair the right of the Borrower and its
Subsidiaries considered as a whole to carry on business
substantially as now conducted by them, or result in any substantial
liability not adequately covered by insurance, or for which adequate reserves
are not maintained on the consolidated balance sheet of the Borrower and its
Subsidiaries, or which question the validity of this Credit Agreement or any of
the other Loan Documents, or any action taken or to be taken pursuant hereto or
thereto.
6.8. No Materially Adverse Contracts, etc. Neither the Borrower nor any of
its Significant Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Borrower or any of its Significant
Subsidiaries. Neither the Borrower nor any of its Significant Subsidiaries is a
party to any contract or agreement that has or is expected, in the judgment of
the Borrower's officers, to have any materially adverse effect on the business
of the Borrower or any of its Significant Subsidiaries.
6.9. Compliance with Other Instruments, Laws, etc. Neither the Borrower
nor any of its Significant Subsidiaries is in violation of any provision of its
charter documents, bylaws, or any agreement or instrument to which it may be
subject or by which it or any of its properties may be bound or any decree,
order, judgment, statute, license, rule or regulation, in any of the foregoing
cases in a manner that could result in the imposition of substantial penalties
or materially and adversely affect the financial condition, properties or
business of the Borrower or any of its Significant Subsidiaries.
6.10. Tax Status. The Borrower and its Subsidiaries (i) have made or filed
all federal and state income and all other tax returns, reports and declarations
required by any jurisdiction to which any of them is subject, (ii) have paid all
taxes and other governmental assessments and charges shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and by appropriate proceedings and (iii) have set aside on their
books provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Borrower know of no basis
for any such claim.
6.11. No Event of Default. No Default or Event of Default has
occurred and is continuing.
6.12. Holding Company and Investment Company Acts. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
6.13. Absence of Financing Statements, etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with
any filing records, registry or other public office, that purports to cover,
affect or give notice of any present or possible future lien on, or security
interest in, any assets or property of the Borrower or any of its Significant
Subsidiaries or any rights relating thereto.
6.14. Certain Transactions. Except as set forth in Schedule 6.14, none of
the officers, directors, or employees of the Borrower or any of its Significant
Subsidiaries is presently a party to any transaction with the Borrower or any of
its Significant Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
6.15. Employee Benefit Plans.
6.15.1. In General. Each Employee Benefit Plan and each Guaranteed
Pension Plan has been maintained and operated in compliance in all material
respects with the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting prohibited
transactions and the bonding of fiduciaries and other persons handling plan
funds as required by Section 412 of ERISA. The Borrower has heretofore delivered
to the Agent the most recently completed annual report, Form 5500, with all
required attachments, and actuarial statement required to be submitted under
Section 103(d) of ERISA, with respect to each Guaranteed Pension Plan.
6.15.2. Terminability of Welfare Plans. No Employee Benefit Plan,
which is an employee welfare benefit plan within the meaning of Section 3(1) or
Section 3(2)(B) of ERISA, provides benefit coverage subsequent to termination of
employment, except as required by Title I, Part 6 of ERISA or the applicable
state insurance laws. The Borrower may terminate each such Plan at any time (or
at any time subsequent to the expiration of any applicable bargaining agreement)
in the discretion of the Borrower without liability to any Person other than for
claims arising prior to termination.
6.15.3. Guaranteed Pension Plans. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid the
incurrence of an accumulated funding deficiency, the notice or lien provisions
of Section 302(f) of ERISA, or otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods has been
received with respect to any Guaranteed Pension Plan, and neither the Borrower
nor any ERISA Affiliate is obligated to or has posted security in connection
with an amendment to a Guaranteed Pension Plan pursuant to Section 307 of ERISA
or Section 401(a)(29) of the Code. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by the
Borrower or any ERISA Affiliate with respect to any Guaranteed Pension Plan and
there has not been any ERISA Reportable Event (other than an ERISA Reportable
Event as to which the requirement of 30 days
notice has been waived), or any other event or condition which presents a
material risk of termination of any Guaranteed Pension Plan by the PBGC. Based
on the latest valuation of each Guaranteed Pension Plan (which in each case
occurred within twelve months of the date of this representation), and on the
actuarial methods and assumptions employed for that valuation, the aggregate
benefit liabilities of all such Guaranteed Pension Plans within the meaning of
Section 4001 of ERISA did not exceed the aggregate value of the assets of all
such Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in excess of
benefit liabilities.
6.15.4. Multiemployer Plans. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary liability) to
any Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under Section 4201 of ERISA or as a result of a sale of
assets described in Section 4204 of ERISA. Neither the Borrower nor any ERISA
Affiliate has been notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of Section 4241 or Section 4245 of ERISA
or is at risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under Section
4041A of ERISA.
6.16. Use of Proceeds.
6.16.1. General. The proceeds of the Loans shall be used for share
repurchases (subject to Section 8.4), acquisitions (subject to Section 8.5.3),
working capital and general corporate purposes.
6.16.2. Regulations U and X. No portion of any Loan is to be used,
and no portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
6.16.3. Ineligible Securities. No portion of the proceeds of any
Loans is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of knowingly purchasing, or providing credit support for the
purchase of, during the underwriting or placement period or within 30 days
thereafter, any Ineligible Securities underwritten or privately placed by a
Section 20 Subsidiary.
6.17. Environmental Compliance. The Borrower has taken all necessary steps
to investigate the past and present condition and usage of the Real Estate and
the operations conducted thereon and, based upon such diligent investigation,
has determined that, except as set forth on Schedule 6.17 attached hereto:
(a) none of the Borrower, its Subsidiaries or any operator of the Real
Estate or any operations thereon is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("XXXX"), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation, ordinance,
order or decree relating to health, safety or the environment (hereinafter
"Environmental Laws"), which violation would have a material adverse effect on
the environment or the business, assets or financial condition of the Borrower
or any of its Subsidiaries;
(b) neither the Borrower nor any of its Subsidiaries has received notice
from any third party including, without limitation, any federal, state or local
governmental authority, (i) that any one of them has been identified by the
United States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X; (ii) that any hazardous waste,
as defined by 42 U.S.C. Section 6903(5), any hazardous substances as defined by
42 U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42 U.S.C.
Section 9601(33) and any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated, transported or disposed of has
been found at any site at which a federal, state or local agency or other third
party has conducted or has ordered that any Borrower or any of its Subsidiaries
conduct a remedial investigation, removal or other response action pursuant to
any Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative proceeding
(in each case, contingent or otherwise) arising out of any third party's
incurrence of costs, expenses, losses or damages of any kind whatsoever in
connection with the release of Hazardous Substances;
(c) (i) no portion of the Real Estate has been used for the handling,
processing, storage or disposal of Hazardous Substances except in accordance
with applicable Environmental Laws; and no underground tank or other underground
storage receptacle for Hazardous Substances is located on any portion of the
Real Estate; (ii) in the course of any activities conducted by the Borrower, its
Subsidiaries or operators of its properties, no Hazardous Substances have been
generated or are being used on the Real Estate except in accordance with
applicable Environmental Laws; (iii) there have been no releases (i.e. any past
or present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping) or threatened releases
of Hazardous Substances on, upon, into or from the properties of the Borrower or
its Subsidiaries, which releases would have a material adverse effect on the
value of any of the Real Estate or adjacent properties or the environment; (iv)
to the best of the Borrower's knowledge, there have been no releases on, upon,
from or into any real property in the vicinity of any of the Real Estate which,
through soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, the Real Estate; and
(v) in addition, any Hazardous Substances that have been generated on any of the
Real Estate have been transported offsite only by carriers having an
identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
applicable Environmental Laws, which transporters and facilities have been
and are, to the best of the Borrower's knowledge, operating in
compliance with such permits and applicable Environmental Laws; and
(d) None of the Borrower and its Subsidiaries, any Mortgaged Property or
any of the other Real Estate is subject to any applicable environmental law
requiring the performance of Hazardous Substances site assessments, or the
removal or remediation of Hazardous Substances, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the transactions set
forth herein and contemplated hereby, or as a condition to the recording of any
Mortgage or to the effectiveness of any other transactions contemplated hereby.
6.18. Subsidiaries, etc. Schedule 6.1 hereto sets forth all Subsidiaries
of the Borrower. Except as set forth on Schedule 6.18 hereto, neither the
Borrower nor any Subsidiary of the Borrower is engaged in any joint venture or
partnership with any other Person.
6.19. Year 2000 Problem. The Borrower and its Significant Subsidiaries,
prior to December 31, 1999, had (i) reviewed the areas within their businesses
and operations which could be adversely affected by failure to become "Year 2000
Compliant" (i.e. to assure that computer applications, imbedded microchips and
other systems used by the Borrower or any of its Significant Subsidiaries, would
be able properly to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999), and (ii)
committed substantial resources to being Year 2000 Compliant. Based upon such
review and upon experience since December 31, 1999, the Borrower reasonably
believes that the Borrower and its Significant Subsidiaries are Year 2000
Compliant except to the extent that failure to be in compliance has and will
have no materially adverse effect on the business or financial condition of the
Borrower or any of its Significant Subsidiaries.
6.20. Disclosure. None of this Credit Agreement or any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact (known to the Borrower or any of its Significant Subsidiaries in
the case of any document or information not furnished by it or any of its
Significant Subsidiaries) necessary in order to make the statements herein or
therein not misleading. There is no fact known to the Borrower or any of its
Significant Subsidiaries which materially adversely affects, or which is
reasonably likely in the future to materially adversely affect, the business,
assets, financial condition or prospects of the Borrower or any of its
Significant Subsidiaries, exclusive of effects resulting from changes in general
economic conditions, legal standards or regulatory conditions.
7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligation to issue,
extend or renew any Letters of Credit:
7.1. Punctual Payment. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Facility Fees, the Utilization Fees,
the Agent's fee and all other amounts provided for in this Credit Agreement and
the other Loan Documents to which the Borrower or any of its Subsidiaries is a
party, all in accordance with the terms of this Credit Agreement and such other
Loan Documents.
7.2. Maintenance of Office. The Borrower will maintain its chief executive
office in Lexington, Massachusetts, or at such other place in the United States
of America as the Borrower shall designate upon written notice to the Agent,
where notices, presentations and demands to or upon the Borrower in respect of
the Loan Documents to which the Borrower is a party may be given or made.
7.3. Records and Accounts. The Borrower will (i) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with generally
accepted accounting principles, (ii) maintain adequate accounts and reserves for
all taxes (including income taxes), depreciation, depletion, obsolescence and
amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves, and (iii) at all times engage
PricewaterhouseCoopers LLP or other independent certified public accountants
reasonably satisfactory to the Agent as the independent certified public
accountants of the Borrower and its Subsidiaries and will not permit more than
thirty (30) days to elapse between the cessation of such firm's (or any
successor firm's) engagement as the independent certified public accountants of
the Borrower and its Subsidiaries and the appointment in such capacity of a
successor firm as shall be reasonably satisfactory to the Agent.
7.4. Financial Statements, Certificates and Information. The Borrower
will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90)
days after the end of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such year, and the
related consolidated statement of income and consolidated statement of cash flow
for such year, each setting forth in comparative form the figures for the
previous fiscal year and all such consolidated statements to be in reasonable
detail, prepared in accordance with generally accepted accounting principles,
and certified without qualification by PricewaterhouseCoopers LLP or by other
independent certified public accountants reasonably satisfactory to the Agent,
together with a written statement from such accountants to the effect that they
have read a copy of this Credit Agreement, and that, in making the examination
necessary to said certification, they have obtained no knowledge of any Default
or Event of Default, or, if such accountants shall have obtained knowledge of
any then existing Default or Event of Default they shall disclose in such
statement any such Default or Event of Default; provided that such accountants
shall not be liable to the Banks for failure to obtain knowledge of any Default
or Event of Default; and simultaneously with the delivery of the financial
statements referred to in this subsection (a), a consolidated financial
forecast for the Borrower and its Subsidiaries for the then current
fiscal year;
(b) as soon as practicable, but in any event not later than forty-five
(45) days after the end of each of the fiscal quarters of the Borrower, copies
of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such quarter, and the related consolidated statement of income
and consolidated statement of cash flow for the portion of the Borrower's fiscal
year then elapsed, all in reasonable detail and prepared in accordance with
generally accepted accounting principles, together with a certification by the
principal financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial position of
the Borrower and its Subsidiaries on the date thereof (subject to year-end
adjustments);
(c) simultaneously with the delivery of the financial statements referred
to in subsections (a) and (b) above, a statement certified by the principal
financial or accounting officer of the Borrower in substantially the form of
Exhibit F hereto (a "Compliance Certificate") and setting forth in reasonable
detail computations evidencing compliance with the covenants contained in ss.9
and (if applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies of all
material of a financial nature filed with the Securities and Exchange Commission
or sent to the stockholders of the Borrower;
(e) from time to time such other financial data and information (including
accountants, management letters) as the Agent or any Bank may reasonably
request.
7.5. Notices.
7.5.1. Defaults. The Borrower will promptly notify the Agent and
each of the Banks in writing of the occurrence of any Default or Event of
Default. If any Person shall give any notice or take any other action in respect
of a claimed default (whether or not constituting an Event of Default) under
this Credit Agreement or any other note, evidence of indebtedness, indenture or
other obligation to which or with respect to which the Borrower or any of its
Subsidiaries is a party or obligor, whether as principal, guarantor, surety or
otherwise, the Borrower shall forthwith give written notice thereof to the Agent
and each of the Banks, describing the notice or action and the nature of the
claimed default.
7.5.2. Environmental Events. The Borrower will promptly give notice
to the Agent and each of the Banks (i) of any violation of any Environmental Law
that the Borrower or any of its Subsidiaries reports in writing or is reportable
by such Person in writing (or for which any written report supplemental to any
oral report is made) to any federal, state or local environmental agency and
(ii) upon becoming aware thereof, of any inquiry, proceeding, investigation, or
other action, including a notice from any agency of potential environmental
liability, of any federal, state or local environmental agency or board, that
has the potential to materially
affect the assets, liabilities, financial conditions or operations of
the Borrower or any of its Subsidiaries.
7.5.3. Notice of Litigation and Judgments. The Borrower will, and will
cause each of its Subsidiaries to, give notice to the Agent and each of the
Banks in writing within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings
affecting the Borrower or any of its Subsidiaries or to which the Borrower or
any of its Subsidiaries is or becomes a party involving an uninsured claim
against the Borrower or any of its Subsidiaries that could reasonably be
expected to have a materially adverse effect on the Borrower or any of its
Subsidiaries and stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its Subsidiaries to, give
notice to the Agent and each of the Banks, in writing, in form and detail
satisfactory to the Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Borrower or any of its Subsidiaries
in an amount in excess of $5,000,000.
7.6. Corporate Existence; Maintenance of Properties. The Borrower will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and those of its
Significant Subsidiaries and will not, and will not cause or permit any of its
Significant Subsidiaries to, convert to a limited liability company. It (i) will
cause all of its properties and those of its Significant Subsidiaries used or
useful in the conduct of its business or the business of its Significant
Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (iii) will, and will cause its Subsidiaries to, continue to
engage in Substantially the Same Business; provided that nothing in this ss.7.6
shall prevent the Borrower from discontinuing the operation and maintenance of
any of its properties or any of those of its Subsidiaries if such discontinuance
is, in the judgment of the Borrower, desirable in the conduct of its or their
business and that do not in the aggregate materially adversely affect the
business of the Borrower and its Subsidiaries on a consolidated basis.
7.7. Insurance. The Borrower will, and will cause each of its Subsidiaries
to, maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and contingencies
as shall be in accordance with the general practices of businesses engaged in
similar activities in similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be reasonable and prudent.
7.8. Taxes. The Borrower will, and will cause each of its Subsidiaries to,
duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies that if unpaid might by
law become a lien or charge upon any of its property; provided that any
such tax, assessment, charge, levy or claim need not be paid if the validity or
amount thereof shall currently be contested in good faith by appropriate
proceedings and if the Borrower or such Subsidiary shall have set aside on its
books adequate reserves with respect thereto; and provided further that the
Borrower and each Subsidiary of the Borrower will pay all such taxes,
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
7.9. Inspection of Properties and Books, etc.
7.9.1. General. The Borrower shall permit the Banks, through the
Agent or any of the Banks' other designated representatives, to visit and
inspect any of the properties of the Borrower or any of its Subsidiaries, to
examine the books of account of the Borrower and its Subsidiaries (and to make
copies thereof and extracts therefrom), and to discuss the affairs, finances and
accounts of the Borrower and its Subsidiaries with, and to be advised as to the
same by, its and their officers, all at such reasonable times and intervals as
the Agent or any Bank may reasonably request.
7.9.2. Communications with Accountants. The Borrower authorizes the
Agent and, if accompanied by the Agent, the Banks to communicate directly with
the Borrower's independent certified public accountants and authorizes such
accountants to disclose to the Agent and the Banks any and all financial
statements and other supporting financial documents and schedules including
copies of any management letter with respect to the business, financial
condition and other affairs of the Borrower or any of its Subsidiaries. At the
request of the Agent, the Borrower shall deliver a letter addressed to such
accountants instructing them to comply with the provisions of this Section
7.9.2.
7.10. Compliance with Laws, Contracts, Licenses, and Permits. The Borrower
will, and will cause each of its Subsidiaries to, comply with (i) the applicable
laws and regulations wherever its business is conducted, including all
Environmental Laws, (ii) the provisions of its charter documents and by-laws,
(iii) all agreements and instruments by which it or any of its properties may be
bound and (iv) all applicable decrees, orders, and judgments. If any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower or any of its Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to which the Borrower or such
Subsidiary is a party, the Borrower will, or (as the case may be) will cause
such Subsidiary to, immediately take or cause to be taken all reasonable steps
within the power of the Borrower or such Subsidiary to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Banks with evidence thereof.
7.11. Employee Benefit Plans. The Borrower will (i) promptly upon filing
the same with the Department of Labor or Internal Revenue Service, upon request
of the Agent, furnish to the Agent a copy of the most recent actuarial statement
required to be submitted under Section 103(d)of ERISA and Annual Report, Form
5500, with all required attachments, in respect of each
Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch,
furnish to the Agent any notice, report or demand sent or received in respect of
a Guaranteed Pension Plan under Sections 302, 4041, 4042, 4043, 4063, 4065, 4066
and 4068 of ERISA, or in respect of a Multiemployer Plan, under Sections 4041A,
4202, 4219, 4242, or 4245 of ERISA.
7.12. Use of Proceeds. The Borrower will use the proceeds of the Loans
solely for share repurchase (subject to Section 8.4), acquisitions (subject to
Section 6.16.2, Section 6.16.3 and Section 8.5.3) working capital and general
corporate purposes.
7.13. Further Assurances. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Banks and the Agent and execute such further
instruments and documents as the Banks or the Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligations to issue,
extend or renew any Letters of Credit:
8.1. Restrictions on Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Banks and the Agent arising under any of the
Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(c) Indebtedness incurred in connection with the acquisition after the
date hereof of any real or personal property by the Borrower or such Subsidiary
or under any Capitalized Lease, provided that, after giving effect to the
incurrence of such Indebtedness, the Borrower shall be in compliance with its
covenants in Section 9;
(d) Indebtedness existing on the date hereof and listed and described
on Schedule 8.1 hereto;
(e) Indebtedness of a Subsidiary of the Borrower to the Borrower or
to another Subsidiary of the Borrower;
(f) Indebtedness in respect of guaranties of dealer store leases, provided
that the maximum aggregate guaranty obligation in respect thereof shall not
exceed $2,000,000 at any time;
(g) Indebtedness in respect of foreign currency exchange, future or option
contracts entered into in the ordinary course of business for the purpose of
foreign currency risk hedging;
(h) Indebtedness in respect of reimbursement obligations under letters of
credit (other than Letters of Credit issued pursuant to Section 4 hereof) and
bankers' acceptances incurred in the ordinary course of business, provided that
the aggregate maximum amount available for drawing by the beneficiaries of such
letters of credit and banker's acceptances outstanding at any time shall not
exceed $130,000,000;
(i) Indebtedness in respect of guaranties by the Borrower or any
Subsidiary of Indebtedness of any Subsidiary permitted by this Section 8.1;
(j) Indebtedness in respect of swap, future or option contracts the value
of which are based on interest rates or other interest rate hedging arrangements
entered into in the ordinary course of business; and
(k) other Indebtedness not exceeding in the aggregate $5,000,000 at
any time.
8.2. Restrictions on Liens. The Borrower will not, and will not permit any
of its Subsidiaries to, (i) create or incur or suffer to be created or incurred
or to exist any lien, encumbrance, mortgage, pledge, charge, restriction or
other security interest of any kind upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon the income or profits
therefrom; (ii) transfer any of such property or assets or the income or profits
therefrom for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to payment of its general
creditors; (iii) acquire, or agree or have an option to acquire, any property or
assets upon conditional sale or other title retention or purchase money security
agreement, device or arrangement; (iv) suffer to exist for a period of more than
thirty (30) days after the same shall have been incurred any Indebtedness or
claim or demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or (v) sell, assign, pledge or otherwise transfer any "receivables"
as defined in clause (vii) of the definition of the term "Indebtedness," with or
without recourse; provided that the Borrower or any of its Subsidiaries may
create or incur or suffer to be created or incurred or to exist:
(a) liens in favor of the Borrower on all or part of the assets of
Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries of
the Borrower to the Borrower;
(b) liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims for
labor, material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure payment of,
workmen's compensation, unemployment insurance, old age pensions or other social
security obligations;
(d) liens on properties in respect of judgments or awards that have been
in force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower or such
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review;
(e) liens of carriers, warehousemen, mechanics and materialmen, and other
like liens on properties, in existence less than 120 days from the date of
creation thereof in respect of obligations not overdue;
(f) encumbrances on Real Estate consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which the Borrower or a Subsidiary of the Borrower is a party, and other
minor liens or encumbrances none of which in the opinion of the Borrower
interferes materially with the use of the property affected in the ordinary
conduct of the business of the Borrower and its Subsidiaries, which defects do
not individually or in the aggregate have a materially adverse effect on the
business of the Borrower individually or of the Borrower and its Subsidiaries on
a consolidated basis;
(g) liens existing on the date hereof and listed on Schedule 8.2
hereto;
(h) purchase money security interests in or purchase money mortgages on
real or personal property acquired after the date hereof to secure purchase
money Indebtedness of the type and amount permitted by Section 8.1(c), incurred
in connection with the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired;
(i) liens (if any) in favor of the Agent for the benefit of the Banks
and the Agent under the Loan Documents; and
(j) lessor's liens and Capitalized Leases permitted by Section 8.1(c).
8.3. Restrictions on Investments. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States of
America that mature within one (1) year from the date of purchase by the
Borrower;
(b) demand deposits, certificates of deposit, bankers acceptances and time
deposits of United States banks having total assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America, any state thereof or any country which is a member of the Organization
for Economic Cooperation and Development that at the time of purchase have been
rated and the ratings for which are not less than "P 1" if rated by Xxxxx'x
Investors Service, Inc., or not less than "A 1" if rated by Standard and Poor's
Rating Group;
(d) shares of any so-called money market fund which is registered under
the Investment Company Act of 1940, as amended, is in compliance with Rule 2a-7
thereunder and has net assets of at least $250,000,000;
(e) marketable direct or guaranteed obligations of a state of the United
States of America or political subdivision thereof that at the time of purchase,
if short-term, have been rated and the ratings for which are not less than "SP
1" or "A 1" if rated by Standard and Poor's Rating Group or not less than "MIG
1" or "VMIG 1" if rated by Xxxxx'x Investors Service, Inc. or, if long-term,
have been rated and the ratings for which are not less than "AA" as rated by
Standard and Poor's Rating Group;
(f) shares of so-called "auction rate preferred stock" which have been
rated "AAA" by Standard and Poor's Rating Group;
(g) debt securities in a portfolio having an aggregate maximum market
value of $20,000,000 at the time of investment (after giving effect to any
investment), such portfolio to be managed by an independent investment manager
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended, to consist of debt securities with a maximum duration of three (3)
years and at least an investment grade rating by a nationally recognized
statistical rating organization, not more than 5% of the total market value of
the portfolio at any time to be represented by securities of any single issue;
(h) Investments consisting of foreign currency exchange, future or option
contracts entered into in the ordinary course of business for the purpose of
foreign currency risk hedging;
(i) Investments consisting of swap, future or option contracts the value
of which is based upon interest rates or other interest rate hedging
arrangements entered into in the ordinary course of business;
(j) Investments existing on the date hereof and listed on
Schedule 8.3 hereto;
(k) Investments with respect to Indebtedness permitted byss.8.1(f) so
long as such entities remain Subsidiaries of the Borrower;
(l) Investments consisting of the Guaranty or Investments by the
Borrower in Subsidiaries of the Borrower;
(m) Investments consisting of promissory notes received as proceeds
of asset dispositions permitted by Section 8.5.2;
(n) Investments in Permitted Acquisitions pursuant to Section 8.5.3; and
(o) Investments consisting of loans and advances to employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business not to exceed $5,000,000 in the aggregate at any time outstanding.
8.4. Distributions. The Borrower will not make any Distributions; provided
that the Borrower may make distributions ("Permitted Distributions") which
satisfy the following tests: (i) the aggregate amount of such Distribution and
all other Distributions during the same fiscal year of the Borrower does not
exceed $30,000,000, and (ii) at the time of such Distribution, no Default or
Event of Default has occurred and is continuing or would exist after giving
effect to such Distribution.
8.5. Merger, Consolidation, Acquisitions and Disposition of Assets.
8.5.1. Mergers and Acquisitions. The Borrower will not, and will not
permit any of its Subsidiaries to, (a) become a party to any merger or
consolidation except (i) the merger or consolidation of one or more of the
Subsidiaries of the Borrower with and into the Borrower, or of two or more
Subsidiaries of the Borrower, or (ii) a merger or consolidation in connection
with a Permitted Acquisition in which the Borrower or a Subsidiary is the
surviving entity, or (b) agree to or effect any asset acquisition or equity
acquisition other than (i) the acquisition of assets in the ordinary course of
business consistent with past practices and (ii) any Permitted Acquisition
pursuant to Section 8.5.3.
8.5.2. Disposition of Assets. The Borrower will not, and will not
permit any Significant Subsidiary to, become a party to or agree to or effect
disposition of all or any substantial portion of its assets (other than the sale
of inventory, the licensing of intellectual property and the disposition of
obsolete assets, in each case in the ordinary course of business consistent with
past practices).
8.5.3 Acquisition of Businesses. The Borrower will not, and will not
permit any of its Subsidiaries to, acquire the assets or equity of any going
business, except any such acquisition of a business (i) which is engaged in
Substantially the Same Business, and (ii) the cash purchase price for which, in
the aggregate together with the cash purchase price paid for all other such
acquisitions from and after the Closing Date, does not exceed $50,000,000 (a
"Permitted Acquisition").
8.6. Sale and Leaseback. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby
the Borrower or any Subsidiary of the Borrower shall sell or transfer any
property owned by it in order then or thereafter to lease such property or lease
other property that the Borrower or any Subsidiary of the Borrower intends to
use for substantially the same purpose as the property being sold or
transferred.
8.7. Compliance with Environmental Laws. The Borrower will not, and
will not permit any of its Subsidiaries to, (i) use any of the Real Estate or
any portion thereof for the handling, processing, storage or disposal of
Hazardous Substances, (ii) cause or permit to be located on any of the Real
Estate any underground tank or other underground storage receptacle for
Hazardous Substances, (iii) generate any Hazardous Substances on any of the Real
Estate, (iv) conduct any activity at any Real Estate or use any Real Estate in
any manner so as to cause a release (i.e. releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping) or threatened release of Hazardous Substances on, upon or
into the Real Estate or (v) otherwise conduct any activity at any Real Estate or
use any Real Estate in any manner that would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law.
8.8. Employee Benefit Plans. Neither the Borrower nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning of Section
406 of ERISA or Section 4975 of the Code which could result in a material
liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated funding
deficiency", as such term is defined in Seciton 302 of ERISA, whether or not
such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent which,
or terminate any Guaranteed Pension Plan in a manner which, could result in the
imposition of a lien or encumbrance on the assets of the Borrower or any of its
Subsidiaries pursuant to Seciton 302(f) or Section 4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to Section 307 of ERISA or Seciton 401(a)(29) of
the Code; or
(e) permit or take any action which would result in the aggregate benefit
liabilities (with the meaning of Section 4001 of ERISA) of all Guaranteed
Pension Plans exceeding the value of the aggregate assets of such Plans,
disregarding for this purpose the benefit liabilities and assets of any such
Plan with assets in excess of benefit liabilities[, by more than the amount set
forth in Section 6.15.3.]
8.9. Business Activities. The Borrower will not, and will not permit its
Subsidiaries to, engage directly or indirectly (whether through Subsidiaries or
otherwise) in any business activities which would represent a departure from
Substantially the Same Business.
8.10. Fiscal Year. The Borrower will not, and will not permit any of it
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in Section 6.4.1.
8.11. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any transaction with any Affiliate
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such
Affiliate or, to the knowledge of the Borrower, any corporation, partnership,
trust or other entity in which any such Affiliate has a substantial interest or
is an officer, director, trustee or partner, on terms more favorable to such
Person than would have been obtainable on an arm's-length basis in the ordinary
course of business.
9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligation to issue,
extend or renew any Letters of Credit:
9.1. Fixed Charge Coverage Ratio. The Borrower will not permit the ratio
(the "Fixed Charge Coverage Ratio"), as of the end of any fiscal quarter of the
Borrower and for the period of four consecutive fiscal quarters then ended, of
(a) Consolidated Operating Cash Flow plus Rental Expense, to (b) Consolidated
Total Interest Expense plus Rental Expense, to be less than 1.75:1.
9.2. Funded Debt to EBITDA. The Borrower will not permit the ratio, as of
the end of any fiscal quarter and for the period of four consecutive fiscal
quarters then ended, of Total Funded Debt to Consolidated EBITDA to exceed
2.25:1.
9.3. Consolidated Tangible Net Worth. The Borrower will not permit
Consolidated Tangible Net Worth to be less than the sum of $200,000,000 plus, on
a cumulative basis 50% of positive Consolidated Net Income for each fiscal
quarter subsequent to the Closing Date, minus Permitted Distributions made
subsequent to the Closing Date.
10. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Loans and of the Agent to
issue any initial Letters of Credit shall be subject to the satisfaction of the
following conditions precedent on or prior to January 31, 2000:
10.1. Loan Documents. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
10.2. Certified Copies of Charter Documents. Each of the Banks shall have
received from the Borrower and each of its Subsidiaries a copy, certified by a
duly authorized officer of such Person to be true and complete on the Closing
Date, of each of (i) its charter or other incorporation documents as in effect
on such date of certification, and (ii) its by-laws as in effect on such date.
10.3. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each of its
Subsidiaries of this Credit Agreement and the other Loan Documents to
which it is or is to become a party shall have been duly and effectively taken,
and evidence thereof satisfactory to the Banks shall have been provided to the
Agent.
10.4. Incumbency Certificate. Each of the Banks shall have received from
the Borrower and each of its Subsidiaries an incumbency certificate, dated as of
the Closing Date, signed by a duly authorized officer of the Borrower or such
Subsidiary, and giving the name and bearing a specimen signature of each
individual who shall be authorized: (i) to sign, in the name and on behalf of
each of the Borrower of such Subsidiary, each of the Loan Documents to which the
Borrower or such Subsidiary is or is to become a party; (ii) in the case of the
Borrower, to make Loan Requests and Conversion Requests and to apply for Letters
of Credit; and (iii) to give notices and to take other action on its behalf
under the Loan Documents.
10.5. Certificates of Insurance. The Agent shall have received (i) a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance obtained in accordance with
the provisions of the Security Agreements and (ii) certified copies of all
policies evidencing such insurance (or certificates therefore signed by the
insurer or an agent authorized to bind the insurer).
10.6. Opinion of Counsel. Each of the Banks and the Agent shall have
received a favorable legal opinion addressed to the Banks and the Agent, dated
as of the Closing Date, in form and substance satisfactory to the Banks and the
Agent, from Xxxxxxx, Procter & Xxxx LLP, counsel to the Borrower and its
Subsidiaries.
10.7. Payment of Fees. The Borrower shall have paid to the Banks or the
Agent, as appropriate, the Agent's fee and the Arranger's fee pursuant to
Section s5.1 and 5.2.
10.8. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agent and the Agent's Special Counsel, and the
Banks, the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan and of the Agent to issue,
extend or renew any Letter of Credit, in each case whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
11.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this
Credit Agreement shall be true as of the date as of which they were made
and shall also be true at and as of the time of the making of such Loan or the
issuance, extension or renewal of such Letter of Credit, with the same effect as
if made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
11.2. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Agent would make it illegal for the Agent to
issue, extend or renew such Letter of Credit.
11.3. Governmental Regulation. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
12. EVENTS OF DEFAULT; ACCELERATION; ETC.
12.1. Events of Default and Acceleration. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable, whether at
the stated date of maturity or any accelerated date of maturity or at any other
date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay any interest
on the Loans, any Letter of Credit Fee, any Facility Fee, any Utilization Fee,
the Agent's fee, or other sums due hereunder or under any of the other Loan
Documents, within five (5) days after the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity or at
any other date fixed for payment;
(c) the Borrower shall fail to comply with any of its covenants
contained in Sections 8 or 9;
(d) the Borrower or any of its Subsidiaries shall fail to perform any
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this ss.12.1) for twenty (20)
days after written notice of such failure has been given to the Borrower by the
Agent;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents or in
any other document or instrument delivered pursuant to or in connection with
this Credit Agreement shall prove to have been false in any material respect
upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at maturity,
or within any applicable period of grace, any obligation for borrowed money or
credit received or in respect of any Capitalized Leases, or fail to observe or
perform any material term, covenant or agreement contained in any agreement by
which it is bound, evidencing or securing borrowed money or credit received or
in respect of any Capitalized Leases, which in the aggregate represents
Indebtedness of $2,000,000 or more, for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity
thereof, or if any such holder or holders shall rescind or shall have a right to
rescind the purchase of any such obligations;
(g) the Borrower or any Significant Subsidiary shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall petition
or apply for the appointment of a trustee or other custodian, liquidator or
receiver of the Borrower or any Significant Subsidiary or of any substantial
part of the assets of the Borrower or any Significant Subsidiary or shall
commence any case or other proceeding relating to the Borrower or any
Significant Subsidiary under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or shall take any action to
authorize or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against the Borrower or any Significant Subsidiary and the Borrower or
any Significant Subsidiary shall indicate its approval thereof, consent thereto
or acquiescence therein or such petition or application shall not have been
dismissed within sixty (60) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating the Borrower or any Significant
Subsidiary bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect of the
Borrower or any Significant Subsidiary of the Borrower in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed,
for more than forty-five (45) days, whether or not consecutive, any final
judgment against the Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged, against the Borrower or any of its
Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Guaranties shall be cancelled, terminated, revoked
or rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Banks, or any
action at law, suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of the
Borrower or any of its Subsidiaries party thereto or any of their respective
stockholders, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC
or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate
amount exceeding $5,000,000, or the Borrower or any ERISA Affiliate is assessed
withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan
requiring aggregate annual payments exceeding $5,000,000, or any of the
following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA
Reportable Event, or a failure to make a required installment or other payment
(within the meaning of Section 302(f)(1) of ERISA), provided that the Agent
determines in its reasonable discretion that such event (A) could be expected to
result in liability of the Borrower or any of its Subsidiaries to the PBGC or
such Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 and (B)
could constitute grounds for the termination of such Guaranteed Pension Plan by
the PBGC, for the appointment by the appropriate United States District Court of
a trustee to administer such Guaranteed Pension Plan or for the imposition of a
lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or (iii) the institution by the PBGC of proceedings to terminate such
Guaranteed Pension Plan;
(l) the Borrower or any Significant Subsidiary shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of its
business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur the loss, suspension or revocation of, or failure to
renew, any license or permit now held or hereafter acquired by the Borrower or
any of its Subsidiaries if such loss, suspension, revocation or failure to renew
would have a material adverse effect on the business or financial condition of
the Borrower or such Subsidiary;
(n) the Borrower or any of its Subsidiaries shall be indicted for a state
or federal crime, or any civil or criminal action shall otherwise have been
brought against the Borrower or any of its Subsidiaries, a punishment for which
in any such case could include the forfeiture of any assets of the Borrower or
such Subsidiary having a fair market value in excess of $5,000,000; or
(o) any person or group of persons (within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 30% or more of the
outstanding shares of common stock of the Borrower; or, during any period of
twelve consecutive calendar months, individuals who were directors of the
Borrower on the first day of such period shall cease to constitute a majority of
the board of directors of the Borrower;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Notes and the other Loan Documents and all Reimbursement Obligations to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of any Event
of Default specified in Sections 12.1(g) or 12.1(h), all such amounts shall
become immediately due and payable automatically and without any requirement of
notice from the Agent or any Bank.
12.2. Termination of Commitments. If any one or more of the Events of
Default specified in Section 12.1(g) or Section 12.1(h) shall occur, any unused
portion of the credit hereunder shall forthwith terminate and each of the Banks
shall be relieved of all further obligations to make Loans to the Borrower and
the Agent shall be relieved of all further obligations to issue, extend or renew
Letters of Credit. If any other Event of Default shall have occurred and be
continuing, the Agent may and, upon the request of the Majority Banks, shall, by
notice to the Borrower, terminate the unused portion of the credit hereunder,
and upon such notice being given such unused portion of the credit hereunder
shall terminate immediately and each of the Banks shall be relieved of all
further obligations to make Loans and the Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. No termination of the
credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of
the Obligations.
12.3. Remedies. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, each Bank, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may,
with the consent of the Majority Banks but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law.
13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any
of the Banks to the Borrower and any securities or other property of the
Borrower in the possession of such Bank may be applied to or set off by such
Bank against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrower to such Bank. Each of the Banks agrees
with each other Bank that (i) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank or constituting Reimbursement Obligations owed to
such Bank, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by all such Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (ii) if such Bank
shall receive from the Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Notes held by, or constituting Reimbursement Obligations owed to, such
Bank by proceedings against the Borrower at law or in equity or by proof thereof
in bankruptcy, reorganization, liquidation, receivership or similar proceedings,
or otherwise, and shall retain and apply to the payment of the Note or Notes
held by, or Reimbursement Obligations owed to, such Bank any amount in excess of
its ratable portion of the payments received by all of the Banks with respect to
the Notes held by, and Reimbursement Obligations owed to, all of the Banks, such
Bank will make such disposition and arrangements with the other Banks with
respect to such excess, either by way of distribution, pro tanto assignment of
claims, subrogation or otherwise as shall result in each Bank receiving in
respect of the Notes held by it or Reimbursement obligations owed it, its
proportionate payment as contemplated by this Credit Agreement; provided that if
all or any part of such excess payment is thereafter recovered from such Bank,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
14. THE AGENT.
14.1. Authorization.
(a) The Agent is authorized to take such action on behalf of each of the
Banks and to exercise all such powers as are hereunder and under any of the
other Loan Documents and any related documents delegated to the Agent, together
with such powers as are reasonably incident thereto, provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied to
have been assumed by the Agent.
(b) The relationship between the Agent and each of the Banks is that of an
independent contractor. The use of the term "Agent" is for convenience only and
is used to describe, as a form of convention, the independent contractual
relationship between the Agent and each of the Banks. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the Agent and any of the
Banks.
(c) As an independent contractor empowered by the Banks to exercise
certain rights and perform certain duties and responsibilities hereunder and
under the other Loan Documents, the Agent is nevertheless a "representative"
of the Banks, as that term is defined in Article 1 of the Uniform
Commercial Code, for purposes of actions for the benefit of the Banks and the
Agent with respect to all collateral security and guaranties contemplated by the
Loan Documents. Such actions include the designation of the Agent as "secured
party", "mortgagee" or the like on all (if any) financing statements and other
documents and instruments, whether recorded or otherwise, relating to the
attachment, perfection, priority or enforcement of any security interests,
mortgages or deeds of trust in collateral security intended to secure the
payment or performance of any of the Obligations, all for the benefit of the
Banks and the Agent.
14.2. Employees and Agents. The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Credit Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine.
14.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
14.4. No Representations.
14.4.1. General. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the Notes, the
Letters of Credit, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the Notes, or
for the value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing with respect to the
Notes, or for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of the Borrower or any of its
Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes or to inspect any of the properties, books or records of
the Borrower or any of its Subsidiaries. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it by the
Borrower or any holder of any of the Notes shall have been duly authorized or is
true, accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
conditions of the Borrower or any of its Subsidiaries. Each Bank acknowledges
that it has, independently and without reliance upon the Agent or any other
Bank, and based upon such information
and documents as it has deemed appropriate, made its own credit analysis
and decision to enter into this Credit Agreement.
14.4.2. Closing Documentation, etc. For purposes of determining
compliance with the conditions set forth in Section 10, each Bank that has
executed this Credit Agreement shall be deemed to have consented to, approved or
accepted, or to be satisfied with, each document and matter either sent, or made
available, by the Agent or BancBoston Xxxxxxxxx Xxxxxxxx Inc., as arranger to
such Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
such Bank, unless an officer of the Agent or BancBoston Xxxxxxxxx Xxxxxxxx Inc.
active upon the Borrower's account shall have received notice from such Bank not
less than two (2) days prior to the Closing Date specifying such Bank's
objection thereto and such objection shall not have been withdrawn by notice to
the Agent or BancBoston Xxxxxxxxx Xxxxxxxx Inc. to such effect on or prior to
the Closing Date.
14.5. Payments.
14.5.1. Payments to Agent. A payment by the Borrower to the Agent
hereunder or any of the other Loan Documents for the account of any Bank shall
constitute a payment to such Bank. The Agent agrees promptly to distribute to
each Bank such Bank's pro rata share of payments received by the Agent for the
account of the Banks except as otherwise expressly provided herein or in any of
the other Loan Documents.
14.5.2. Distribution by Agent. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder, under the
Notes or under any of the other Loan Documents might involve it in liability, it
may refrain from making distribution until its right to make distribution shall
have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and distributed by
the Agent is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
14.5.3. Delinquent Bank. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any Bank
that fails (i) to make available to the Agent its pro rata share of any Loan or
to purchase any Letter of Credit Participation or (ii) to comply with the
provisions of Section 13 with respect to making dispositions and arrangements
with the other Banks, where such Bank's share of any payment received, whether
by setoff or otherwise, is in excess of its pro rata share of such payments due
and payable to all of the Banks, in each case as, when and to the full extent
required by the provisions of this Credit Agreement, shall be deemed delinquent
(a "Delinquent Bank") and shall be deemed a Delinquent Bank until such time as
such delinquency is satisfied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on account of
outstanding Loans, Unpaid Reimbursement Obligations, interest, fees or
otherwise, to the remaining nondelinquent Banks for application to, and
reduction of, their respective
pro rata shares of all outstanding Loans and Unpaid Reimbursement
Obligations. The Delinquent Bank hereby authorizes the Agent to distribute such
payments to the nondelinquent Banks in proportion to their respective pro rata
shares of all outstanding Loans and Unpaid Reimbursement Obligations. A
Delinquent Bank shall be deemed to have satisfied in full a delinquency when and
if, as a result of application of the assigned payments to all outstanding Loans
and Unpaid Reimbursement Obligations of the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans and Unpaid Reimbursement
Obligations have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
14.6. Holders of Notes. The Agent may deem and treat the payee of any Note
or the purchaser of any Letter of Credit Participation as the absolute owner or
purchaser thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder, assignee
or transferee.
14.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent or such affiliate has not
been reimbursed by the Borrower as required by Section 15), and liabilities of
every nature and character arising out of or related to this Credit Agreement,
the Notes, or any of the other Loan Documents or the transactions contemplated
or evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
14.8. Agent as Bank. In its individual capacity, BKB shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes and
as the purchaser of any Letter of Credit Participations, as it would have were
it not also the Agent.
14.9. Resignation. The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Borrower.
If no successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by Standard & Poor's
Corporation. 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
hereunder. After any retiring Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
14.10. Notification of Defaults and Events of Default. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this Section 14.10 it shall promptly notify the
other Banks of the existence of such Default or Event of Default.
15. EXPENSES AND INDEMNIFICATION.
15.1. Expenses. The Borrower agrees to pay (i) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) the reasonable fees,
expenses and disbursements of the Agent's Special Counsel or any local counsel
to the Agent incurred in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the Obligations or pursuant
to any terms of such Loan Document for providing for such cancellation, (iii)
the fees, expenses and disbursements of the Agent or any of its affiliates
incurred by the Agent or such affiliate in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, including without limitation the reasonable fees
and expenses of Persons retained pursuant to Section 14.2, all title insurance
premiums and surveyor, engineering and appraisal charges, and (iv) all
reasonable out-of-pocket expenses (including without limitation reasonable
attorneys' fees and costs, which attorneys may be employees of any Bank or the
Agent, and reasonable consulting, accounting, appraisal, investment banking and
similar professional fees and charges) incurred by any Bank or the Agent in
connection with (A) the enforcement of or preservation of rights under any of
the Loan Documents against the Borrower or any of its Subsidiaries or the
administration thereof after the occurrence of a Default or Event of Default and
(B) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the Agent's relationship with the
Borrower or any of its Subsidiaries.
15.2. Indemnification. The Borrower agrees to indemnify and hold harmless
the Agent, its affiliates and the Banks from and against any and all claims,
actions and suits whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character
arising out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby (except to the extent any such claim, action or
suit results from the gross negligence or willful misconduct of the Agent, its
affiliate or the Bank seeking indemnification hereunder) including, without
limitation, (i) any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the Loans or Letters of Credit, (ii) the
Borrower or any of its Subsidiaries entering into or performing this Credit
Agreement or any of the other Loan Documents or (iii) with respect to the
Borrower and its Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any
Hazardous Substances (including, but not limited to, claims with respect
to wrongful death, personal injury or damage to property), in each case
including, without limitation, the reasonable fees and disbursements of counsel
and allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or the preparation
therefor, the Banks and the Agent and its affiliates shall be entitled to select
their own counsel (which shall be one counsel unless there is an unwaivable
conflict of interest) and, in addition to the foregoing indemnity, the Borrower
agrees to pay promptly the reasonable fees and expenses of such counsel. If, and
to the extent that the obligations of the Borrower under this ss.15.2 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
15.3. Survival. The covenants contained in this ss.15 shall survive
payment or satisfaction in full of all other Obligations.
16. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
16.1. Sharing of Information with Section 20 Subsidiary. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries, in connection with this Credit Agreement or otherwise, by a
Section 20 Subsidiary. The Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with the Agent and
each Bank any information delivered to such Section 20 Subsidiary by the
Borrower or any of its Subsidiaries, and (b) the Agent and each Bank to share
with such Section 20 Subsidiary any information delivered to the Agent or such
Bank by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Bank to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of Obligations.
16.2. Confidentiality. Each of the Banks and the Agent agrees, on behalf
of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower or any of its Subsidiaries
pursuant to this Credit Agreement that is identified by such Person as being
confidential at the time the same is delivered to the Banks or the Agent,
provided that nothing herein shall limit the disclosure of any such information
(a) after such information shall have become public other than through a
violation of this ss.16, (b) to the extent required by statute, rule, regulation
or judicial process, (c) to counsel for any of the Banks or the Agent, (d) to
bank examiners or any other regulatory authority having jurisdiction over any
Bank or the Agent, or to auditors or accountants, (e) to the Agent, any Bank or
any Section 20 Subsidiary, (f) in connection with any litigation to which any
one or more of the Banks, the Agent or any Section 20 Subsidiary is a party, or
in connection with the enforcement of rights or remedies hereunder or under any
other Loan Document,
(g) to a Subsidiary or affiliate of such Bank as provided in Section 16.1, or
(h) to any assignee or participant (or prospective assignee or participant) so
long as such assignee or participant agrees to be bound by the provisions of
Section 18.6. Moreover, each of the Agent, the Banks and any Section 20
Subsidiary is hereby expressly permitted by the Borrower to refer to any of the
Borrower and its Subsidiaries in connection with any advertising, promotion or
marketing undertaken by the Agent, such Bank or such Section 20 Subsidiary and,
for such purpose, the Agent, such Bank or such Section 20 Subsidiary may utilize
any trade name, trademark, logo or other distinctive symbol associated with the
Borrower or any of its Subsidiaries or any of their businesses (provided that
neither the Agent nor any Bank shall refer to the Borrower and its Subsidiaries
or use such trade name, trademark, logo or distinctive symbol in any such
advertising, promotion or marketing in the public media without the prior
written consent of the Borrower).
16.3. Prior Notification. Unless specifically prohibited by applicable law
or court order, each of the Banks and the Agent shall, prior to disclosure
thereof, notify the Borrower of any request for disclosure of any such
non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) or pursuant to legal
process.
16.4. Other. In no event shall any Bank or the Agent be obligated or
required to return any materials furnished to it or any Section 20 Subsidiary by
the Borrower or any of its Subsidiaries. The obligations of each Bank under this
Section 16 shall supersede and replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed and delivered by such
Bank to the Borrower prior to the date hereof and shall be binding upon any
assignee of, or purchaser of any participation in, any interest in any of the
Loans or Reimbursement Obligations from any Bank.
17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of any of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any amount due under this Credit Agreement or the Notes or any of the other Loan
Documents remains outstanding or any Bank has any obligation to make any Loans
or the Agent has any obligation to issue, extend or renew any Letter of Credit,
and for such further time as may be otherwise expressly specified in this Credit
Agreement. All statements contained in any certificate or other paper delivered
to any Bank or the Agent at any time by or on behalf of the Borrower or any of
its Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the
Borrower or such Subsidiary hereunder.
18. ASSIGNMENT, PARTICIPATION AND ADDITIONAL BANKS.
18.1. Conditions to Assignment by Banks. Except as provided herein, each
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of
the Loans at the time owing to it, the Notes held by it and its participating
interest in the risk relating to any Letters of Credit); provided that (i) each
of the Agent and, unless a Default or Event of Default shall have occurred and
be continuing, the Borrower shall have given its prior written consent to such
assignment, which consent, in the case of the Borrower, will not be unreasonably
withheld (provided that consent of the Borrower shall not be required for any
such assignment by any Bank to an Affiliate of such Bank or to another Bank
whose Commitment Percentage will not thereby equal or exceed 50% of the
aggregate Commitments of all of the Banks), (ii) each such assignment shall be
of a constant, and not a varying, percentage of all the assigning Bank's rights
and obligations under this Credit Agreement, (iii) each assignment shall be in
an amount that is a whole multiple of $5,000,000 and (iv) each Bank which is a
Bank on the date hereof shall retain, free of any such assignment, an amount of
its Commitment of not less than $5,000,000 and (v) the parties to such
assignment shall execute and deliver to the Agent, for recording in the Register
(as hereinafter defined), an Assignment and Acceptance, substantially in the
form of Exhibit G hereto (an "Assignment and Acceptance"), together with any
Notes subject to such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days after
the execution thereof, (i) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder, and (ii) the assigning Bank shall, to the
extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in Section 18.10, be released from its obligations
under this Credit Agreement.
18.2. Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim, the assigning Bank makes no representation or warranty, express
or implied, and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or the attachment,
perfection or priority of any security interest or mortgage,
(b) the assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower and its
Subsidiaries or any other Person primarily or secondarily liable in respect of
any of the Obligations, or the performance or observance
by the Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations of any of their
obligations under this Credit Agreement or any of the other Loan Documents or
any other instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements referred
to in Section 6.4 and Section 7.4 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank 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 Credit Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Credit Agreement and
the other Loan Documents as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Credit Agreement are
required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements with the
assigning Bank satisfactory to such assignee with respect to its pro rata share
of Letter of Credit Fees in respect of outstanding Letters of Credit.
18.3. Register. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Loans owing to and Letter of Credit
Participations purchased by, the Banks from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Credit Agreement.
The Register shall be available for inspection by the Borrower and the Banks at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, the assigning Bank or, as the case may be, Additional
Bank agrees to pay to the Agent a registration fee in the sum of $2,500.
18.4. New Notes. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject
to such assignment, the Agent shall (i) record the information contained
therein in the Register, and (ii) give prompt notice thereof to the Borrower and
the Banks (other than the assigning Bank). Within five (5) Business Days after
receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent, in exchange for each surrendered Note, a new Note to the
order of such Eligible Assignee in an amount equal to the amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained some portion of its obligations hereunder, a new
Note to the order of the assigning Bank in an amount equal to the amount
retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes. Within five (5)
days of issuance of any new Notes pursuant to this Section 18.4, the Borrower
shall deliver an opinion of counsel, addressed to the Banks and the Agent,
relating to the due authorization, execution and delivery of such new Notes and
the legality, validity and binding effect thereof, in form and substance
satisfactory to the Banks. The surrendered Notes shall be cancelled and returned
to the Borrower.
18.5. Participations. Each Bank may sell participations to one or more
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
that (i) each such participation shall be in an amount of not less than
$5,000,000, (ii) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrower and (iii) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Bank as it relates to such participant, reduce
the amount of any commitment fees or Letter of Credit Fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest.
18.6. Disclosure. The Borrower agrees that in addition to disclosures made
in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation. For purposes of this Section
18.6 an assignee or participant or potential assignee or participant may include
a counterparty with whom such Bank has entered into or potentially might enter
into a derivative contract referenced to credit or other risks or events arising
under this Credit Agreement or any other Loan Document.
18.7. Assignee or Participant Affiliated with the Borrower. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to Section 12.1 or Section
12.2, and the determination of the Majority Banks shall for all purposes of this
Credit Agreement and the other Loan Documents be made without regard to such
assignee Bank's interest in any of the Loans or Reimbursement Obligations. If
any Bank sells a participating interest in any of the Loans or Reimbursement
Obligations to a participant, and such participant is the Borrower or an
Affiliate of the Borrower, then such transferor Bank shall promptly notify the
Agent of the sale of such participation. A transferor Bank shall have no right
to vote as a Bank hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes of agreeing to
amendments or modifications to any of the Loan Documents or for purposes of
making requests to the Agent pursuant to Section 12.1 or Section 12.2 to the
extent that such participation is beneficially owned by the Borrower or any
Affiliate of the Borrower, and the determination of the Majority Banks shall for
all purposes of this Credit Agreement and the other Loan Documents be made
without regard to the interest of such transferor Bank in the Loans or
Reimbursement Obligations to the extent of such participation.
18.8. Miscellaneous Assignment Provisions. Any assigning Bank shall retain
its rights to be indemnified pursuant to Section 15 with respect to any claims
or actions arising prior to the date of such assignment. If any assignee Bank is
not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrower and the Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. Anything contained in
this Section 18 to the contrary notwithstanding, any Bank may at any time pledge
all or any portion of its interest and rights under this Credit Agreement
(including all or any portion of its Notes) to any of the twelve Federal Reserve
Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section
341. No such pledge or the enforcement thereof shall release the pledgor Bank
from its obligations hereunder or under any of the other Loan Documents.
18.9. Assignment by Borrower. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
18.10. Additional Banks. On one or more occasions, one or more Additional
Banks may be admitted as Banks party to this Credit Agreement in connection with
an increase of the Total Commitment pursuant to Section 2.4, subject to (i)
execution and delivery by any such Additional Bank to the Agent, for recording
in the Register pursuant to Section 18.4, of an Instrument of Adherence
substantially in the form of Exhibit H hereto (an "Instrument of Adherence"),
(ii) acceptance of such Instrument of Adherence by each of the Agent and the
Borrower by their respective executions thereof, (iii) execution and delivery by
the Borrower of a Revolving Credit Note to the
order of such Additional Bank in the form of Exhibit A hereto, and (iv)
the payment by the Additional Bank to the Agent of the registration fee
specified in Section 18.4. Upon the satisfaction of the foregoing conditions,
from and after the effective date specified in each such Instrument of
Adherence, which effective date shall be at least five (5) Business Days after
the execution thereof, the Additional Bank shall be a Bank party hereto and have
the rights and obligations of a Bank hereunder. By its execution and delivery of
an Instrument of Adherence, each Additional Bank shall represent and warrant to
and agree with the other parties to this Credit Agreement as follows:
(a) that such Additional Bank has received a copy of this Credit
Agreement, together with copies of the most recent financial statements referred
to in Section 6.4 and Section 7.4 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Instrument of Adherence;
(b) that such Additional Bank will, independently and without reliance
upon the Agent or any other Bank 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 Credit Agreement;
(c) that such Additional Bank is qualified as an Eligible Assignee;
(d) that such Additional Bank appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto;
(e) that such Additional Bank agrees that it will perform all of the
obligations that by the terms of this Credit Agreement are required to be
performed by it as a Bank; and
(f) that such Additional Bank is legally authorized to enter into such
Instrument of Adherence.
19. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the Borrower, at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000,
Attention: Treasurer, or at such other address for notice as the Borrower shall
last have furnished in writing to the Person giving the notice;
(b) if to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, XXX, Attention: Xxxxx X. Xxxxxxxx, Managing Director, or such other
address for notice as the Agent shall last have furnished in writing to
the Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on Schedule 1 hereto,
or such other address for notice as such Bank shall have last furnished in
writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
20. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN ss.19. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
21. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
22. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
23. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
ss.25.
24. WAIVER OF JURY TRIAL.
. The Borrower hereby waives its right to a jury trial with respect to any
action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations. Except as prohibited by law, the Borrower hereby waives any right
it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Borrower (i)
certifies that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that the Agent and the Banks have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
25. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement to
be given by the Banks may be given, and any term of this Credit Agreement, the
other Loan Documents or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the Borrower or any of its
Subsidiaries of any terms of this Credit Agreement, the other Loan Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Borrower and
the written consent of the Majority Banks. Notwithstanding the foregoing, the
rate of interest on the Notes (other than interest accruing pursuant to Section
5.10.2 following the effective date of any waiver by the Majority Banks of the
Default or Event of Default relating thereto) or the amount of the commitment
fee or Letter of Credit Fees may not be decreased without the written consent of
each Bank affected thereby; the amount of the Commitment of any Bank may not be
increased without the written consent of the Borrower and of such Bank; the
Syndicated Loan Maturity Date may not be postponed without the written consent
of each Bank affected thereby; this Section 25 and the definition of Majority
Banks may not be amended, and no Guaranty may be released, without the written
consent of all of the Banks; and the amount of the Agent's Fee or any Letter of
Credit Fees payable for the Agent's account and Section 15 may not be amended
without the written consent of the Agent. No waiver shall extend to or affect
any obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
26. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in any
other jurisdiction, or any other clause or provision of this Credit Agreement in
any jurisdiction.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
THE STRIDE RITE CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Treasurer
BANKBOSTON, N.A., individually and as Agent
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Managing Director
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
BANK ONE, NA
(Main office Chicago)
By: /s/ Xxxxxxx X. Hercheb
Name: Xxxxxxx X. Hercheb
Title: Vice President
SUNTRUST BANK
By: /s/ W. Xxxxx Xxxxxx
Name: W. Xxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title: Vice President
SCHEDULE 1
BANKS
Bank Commitment Amount Commitment Percentage
BankBoston, N.A. $23,000,000 30.667%
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx,
Managing Director
Bank of America, N.A. $13,000,000 17.333%
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn:
Bank One, NA $13,000,000 17.333%
1 Bank Xxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000 Attn:
SunTrust Bank $13,000,000 17.333%
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn:
The Bank of New York $13,000,000 17.333%
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
EXHIBIT A
REVOLVING CREDIT NOTE
$____________________ January __, 2000
FOR VALUE RECEIVED, the undersigned The Stride Rite Corporation, a
Massachusetts corporation (the "Borrower"), hereby promises to pay to the
order of ____________________, a ________________________________ (the
"Bank") at the Bank's head office at
----------------------------------------------------------------------:
(a) prior to or on [January __, 2003] the principal amount of __________
($________) or, if less, the aggregate unpaid principal amount of Syndicated
Loans advanced by the Bank to the Borrower pursuant to the Revolving Credit
Agreement dated as of January __, 2000 (as amended and in effect from time to
time, the "Credit Agreement"), among the Borrower, the Bank and other banks
party thereto, and BankBoston, N.A., as Agent for the banks.
(b) the principal outstanding hereunder from time to time at the
times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time outstanding
from the Closing Date under the Credit Agreement through and including the
maturity date hereof at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the Borrower
in accordance with the terms of the Credit Agreement. The Bank and any holder
hereof is entitled to the benefits of the Credit Agreement and the other Loan
Documents, and may enforce the agreements of the Borrower contained therein, and
any holder hereof may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the respective
terms thereof. All capitalized terms used in this Note and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be made,
at or about the time of the Drawdown Date of any Syndicated Loan or at the time
of receipt of any payment of principal of this Note, an appropriate notation on
the grid attached to this Note, or the continuation of such grid, or any other
similar record, including computer records, reflecting the making of such
Syndicated Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Syndicated Loans set forth on the grid attached to
this Note, or the continuation of such grid, or any other similar record,
including computer records, maintained by the Bank with respect to any
Syndicated Loans shall be prima facie evidence of the principal amount thereof
owing and unpaid to the Bank, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation or other record shall
not limit or otherwise affect the
obligation of the Borrower hereunder or under the Credit Agreement to
make payments of principal of and interest on this Note when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN ss.19 OF THE CREDIT AGREEMENT. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit Note
to be signed in its corporate name and its corporate seal to be impressed
thereon by its duly authorized officer as of the day and year first above
written.
[Corporate Seal]
THE STRIDE RITE CORPORATION
By: _______________________________
Title:
-------------------------------------------------------------------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
EXHIBIT B
GUARANTY
GUARANTY, dated as of January __, 2000, by ________________, a
_________________ corporation (the "Guarantor") in favor of (i) BankBoston,
N.A., a national banking association, as agent (hereinafter, in such capacity,
the "Agent") for itself and the other banking institutions (hereinafter,
collectively, the "Banks") which are or may become parties to a Revolving Credit
Agreement dated as of January __, 2000 (as amended and in effect from time to
time, the "Credit Agreement"), among The Stride Rite Corporation, a
Massachusetts corporation (the "Company"), the Banks and the Agent, and (ii)
each of the Banks.
WHEREAS, the Company and the Guarantor are members of a group of related
corporations, the success of any one of which is dependent in part on the
success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Company by the Banks pursuant to
the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Company under the Credit Agreement that the
Guarantor execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a guaranty substantially in the form hereof; and
WHEREAS, the Guarantor wishes to guaranty the Company's obligations to the
Banks and the Agent under or in respect of the Credit Agreement as provided
herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the Agent
as follows:
1. Definitions. The term "Obligations" and all other capitalized terms
used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement.
2. Guaranty of Payment and Performance. The Guarantor hereby guarantees to
the Banks and the Agent the full and punctual payment when due (whether at
stated maturity, by required pre-payment, by acceleration or otherwise), as well
as the performance, of all of the Obligations including all such which would
become due but for the operation of the automatic stay pursuant to Section
362(a) of the Federal Bankruptcy Code and the operation of Sections 502(b) and
506(b) of the Federal Bankruptcy Code. This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of all of the Obligations and not of their collectability only and
is in no way conditioned upon any requirement that the Agent or any Bank first
attempt to collect any of the Obligations from the Company or resort to any
collateral security or other means of obtaining payment. Should the Company
default in the payment or performance of any of the Obligations, the obligations
of the Guarantor hereunder with respect to such Obligations in default shall,
upon demand by the Agent, become
immediately due and payable to the Agent, for the benefit of the Banks and the
Agent, without demand or notice of any nature, all of which are expressly waived
by the Guarantor. Payments by the Guarantor hereunder may be required by the
Agent on any number of occasions. All payments by the Guarantor hereunder shall
be made to the Agent, in the manner and at the place of payment specified
therefor in the Credit Agreement, for the account of the Banks and the Agent.
3. Guarantor's Agreement to Pay Enforcement Costs, etc. The Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any Bank in connection with the
Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this Section 3 from the time when such amounts
become due until payment, whether before or after judgment, at the rate of
interest for overdue principal set forth in the Credit Agreement, provided that
if such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum permitted
amount.
4. Waivers by Guarantor; Bank's Freedom to Act. The Guarantor agrees that
the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Bank with respect thereto. The Guarantor waives promptness,
diligences, presentment, demand, protest, notice of acceptance, notice of any
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of assets
of the Company or any other entity or other person primarily or secondarily
liable with respect to any of the Obligations, and all suretyship defenses
generally. Without limiting the generality of the foregoing, the Guarantor
agrees to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agrees that the obligations of
the Guarantor hereunder shall not be released or discharged, in whole or in
part, or otherwise affected by (i) the failure of the Agent or any Bank to
assert any claim or demand or to enforce any right or remedy against the Company
or any other entity or other person primarily or secondarily liable with respect
to any of the Obligations; (ii) any extensions, compromise, refinancing,
consolidation or renewals of any Obligation; (iii) any change in the time, place
or manner of payment of any of the Obligations or any rescissions, waivers,
compromise, refinancing, consolidation or other amendments or modifications of
any of the terms or provisions of the Credit Agreement, the Notes, the other
Loan Documents or any other agreement evidencing, securing or otherwise executed
in connection with any of the Obligations, (iv) the addition, substitution or
release of any entity or other person primarily or secondarily liable for any
Obligation; (v) the adequacy of any rights which the Agent or any Bank may have
against any collateral security or other means of obtaining repayment of any of
the Obligations; (vi) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Agent or any Bank might have in such collateral security or the
substitution, exchange, surrender, release, loss or
destruction of any such collateral security; or (vii) any other act or omission
which might in any manner or to any extent vary the risk of the Guarantor or
otherwise operate as a release or discharge of the Guarantor, all of which may
be done without notice to the Guarantor. To the fullest extent permitted by law,
the Guarantor hereby expressly waives any and all rights or defenses arising by
reason of (A) any "one action" or "anti-deficiency" law which would otherwise
prevent the Agent or any Bank from bringing any action, including any claim for
a deficiency, or exercising any other right or remedy (including any right of
set-off), against the Guarantor before or after the Agent's or such Bank's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by the Agent or any Bank.
5. Unenforceability of Obligations Against Company. If for any reason the
Company has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Company by reason of the Company's insolvency, bankruptcy or reorganization
or by other operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantor to the same extent as if the Guarantor
at all times had been the principal obligor on all such Obligations. In the
event that acceleration of the time for payment of any of the Obligations is
stayed upon the insolvency, bankruptcy or reorganization of the Company, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of the Credit Agreement, the Notes, the other Loan Documents or any other
agreement evidencing, securing or otherwise executed in connection with any
Obligation shall be immediately due and payable by the Guarantor.
6. Subrogation; Subordination.
6.1. Waiver of Rights Against Company. Until the final payment and
performance in full of all of the Obligations, the Guarantor shall not exercise
and hereby waives any rights against the Company arising as a result of payment
by the Guarantor hereunder, by way of subrogation, reimbursement, restitution,
contribution or otherwise, and will not prove any claim in competition with the
Agent or any Bank in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; the Guarantor
will not claim any setoff, recoupment or counterclaim against the Company in
respect of any liability of the Guarantor to the Company.
6.2. Subordination. The payment of any amounts due with respect to any
indebtedness of the Company for money borrowed or credit received now or
hereafter owed to the Guarantor is hereby subordinated to the prior payment in
full of all of the Obligations. The Guarantor agrees that, after the occurrence
of any default in the payment or performance of any of the Obligations, the
Guarantor will not demand, xxx for or otherwise attempt to collect any such
indebtedness of the Company to the Guarantor until all of the Obligations shall
have been paid in full. If, notwithstanding the foregoing sentence, the
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness while any Obligations are still outstanding, such amounts shall be
collected, enforced and received by the
Guarantor as trustee for the Banks and the Agent and be paid over to the Agent,
for the benefit of the Banks and the Agent, on account of the Obligations
without affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty.
6.3. Provisions Supplemental. The provisions of this ss.6 shall be
supplemental to and not in derogation of any rights and remedies of the Banks
and the Agent under any separate subordination agreement which the Agent may at
any time and from time to time enter into with the Guarantor for the benefit of
the Banks and the Agent.
7. Security; Setoff. The Guarantor grants to each of the Agent and the
Banks, as security for the full and punctual payment and performance of all of
the Guarantor's obligations hereunder, a continuing lien on and security
interest in all securities or other property belonging to the Guarantor now or
hereafter held by the Agent or such Bank and in all deposits (general or
special, time or demand, provisional or final) and other sums credited by or due
from the Agent or such Bank to the Guarantor or subject to withdrawal by the
Guarantor. Regardless of the adequacy of any collateral security or other means
of obtaining payment of any of the Obligations, each of the Agent and the Banks
is hereby authorized at any time and from time to time, without notice to the
Guarantor (any such notice being expressly waived by the Guarantor) and to the
fullest extent permitted by law, to set off and apply such deposits and other
sums against the obligations of the Guarantor under this Guaranty, whether or
not the Agent or such Bank shall have made any demand under this Guaranty.
8. Further Assurances. The Guarantor agrees that it will from time to
time, at the request of the Agent, do all such things and execute all such
documents as the Agent may consider necessary or desirable to give full effect
to this Guaranty and to perfect and preserve the rights and powers of the Banks
and the Agent hereunder. The Guarantor acknowledges and confirms that the
Guarantor itself has established its own adequate means of obtaining from the
Company on a continuing basis all information desired by the Guarantor
concerning the financial condition of the Company and that the Guarantor will
look to the Company and not to the Agent or any Bank in order for the Guarantor
to keep adequately informed of changes in the Company's financial condition.
9. Termination; Reinstatement. This Guaranty shall remain in full force
and effect until the Agent is given written notice of the Guarantor's intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations. No such
notice shall be effective unless received and acknowledged by an officer of the
Agent at the address of the Agent for notices set forth in Section 19 of the
Credit Agreement. No such notice shall affect any rights of the Agent or any
Bank hereunder, including without limitation the rights set forth in Sections 4
and 6, with respect to any Obligations incurred or accrued prior to the receipt
of such notice or any Obligations incurred or accrued pursuant to any contract
or commitment in existence prior to such receipt. This Guaranty shall continue
to be effective or be reinstated, notwithstanding any such notice, if at any
time any payment made or value received with respect to any Obligation is
rescinded or must otherwise be returned by the Agent or any
Bank upon the insolvency, bankruptcy or reorganization of the Company, or
otherwise, all as though such payment had not been made or value received.
10. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor, its successors and assigns, and shall inure to the benefit of the
Agent, the Banks, Additional Banks (if any) becoming party to the Credit
Agreement, and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing sentence, each Bank may assign or
otherwise transfer the Credit Agreement, the Notes, the other Loan Documents or
any other agreement or note held by it evidencing, securing or otherwise
executed in connection with the Obligations, or sell participations in any
interest therein, to any other entity or other person, and such other entity or
other person shall thereupon become vested, to the extent set forth in the
agreement evidencing such assignment, transfer or participation, with all the
rights in respect thereof granted to such Bank herein, all in accordance with
Section 18 of the Credit Agreement. The Guarantor may not assign any of its
obligations hereunder.
11. Amendments and Waivers. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent with the
consent of the Majority Banks. No failure on the part of the Agent or any Bank
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
12. Notices. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to the
Guarantor, at the address set forth beneath its signature hereto, and if to the
Agent, at the address for notices to the Agent set forth in Section 19 of the
Credit Agreement, or at such address as either party may designate in writing to
the other.
13. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the nonexclusive jurisdiction of such court and to service of
process in any such suit being made upon the Guarantor by mail at the address
specified by reference in Section 12. The Guarantor hereby waives any objection
that it may now or hereafter have to the venue of any such suit or any such
court or that such suit was brought in an inconvenient court.
14. Waiver of Jury Trial. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by
law, the Guarantor hereby waives any right which it may have to claim or recover
in any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (i) certifies that neither the Agent or any Bank
nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and the Banks are
relying upon, among other things, the waivers and certifications contained in
this Section 14.
15. Miscellaneous. This Guaranty constitutes the entire agreement of the
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
[NAME OF GUARANTOR]
By: _______________________________
Title:
Address:
Telex: ___________________________
Telecopy: ________________________
EXHIBIT C
SYNDICATED Loan Request
THE STRIDE RITE CORPORATION
[date]
BankBoston, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: ___________________
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement, dated
as of January __, 2000 (as the same may be amended and in effect from time to
time, the "Credit Agreement"), among The Stride Rite Corporation (the
"Borrower"), BankBoston, N.A., and the other lending institutions which are or
may become parties thereto from time to time (collectively, the "Banks"), and
BankBoston, N.A., as agent for the Banks (the "Agent"). Capitalized terms which
are used herein without definition and which are defined in the Credit Agreement
shall have the same meanings herein as in the Credit Agreement.
Pursuant to Section 2.7 of the Credit Agreement, we hereby request that a
Syndicated Loan consisting of [a Base Rate Loan in the principal amount of
$__________, or a LIBOR Rate Loan in the principal amount of $__________ with an
Interest Period of _________] be made on __________ __, 200__. We understand
that this request is irrevocable and binding on us and obligates us to accept
the requested Syndicated Loan on such date.
We hereby certify that:
(a) The aggregate outstanding principal amount of the Syndicated Loans on
today's date, excluding this Borrowing, is $_________, the aggregate outstanding
principal amount of the Swing Line Loans on today's date, including any Swing
Line Loans to be made today, is $_________, the aggregate amount of Competitive
Bid Loans outstanding on today's date is $_________, and the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations on today's date is
$_________. The remainder of the Total Commitment minus the sum of the foregoing
amounts specified in this clause (a) is $____________.
(b) We will use the proceeds of the requested Syndicated Loan in
accordance with the provisions of the Credit Agreement,
(c) Each of the representations and warranties contained in the Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement was true as of the date as of which it was
made and is true at and as of the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit
Agreement and changes occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse, and to the extent that such
representations and warranties related expressly to an earlier date).
(d) No Default or Event of Default has occurred and is continuing.
Very truly yours,
THE STRIDE RITE CORPORATION
By:
Title:
EXHIBIT D-1
COMPETITIVE BID NOTE
$____________________ January __, 2000
FOR VALUE RECEIVED, the undersigned The Stride Rite Corporation, a
Massachusetts corporation (the "Borrower"), hereby promises to pay to the
order of ____________________, a ________________________________ (the
"Bank") at the Bank's head office at
----------------------------------------------------------------------:
(a) prior to or on [January __, 2003] the principal amount of __________
($________) or, if less, the aggregate unpaid principal amount of Competitive
Bid Loans advanced by the Bank to the Borrower pursuant to the Revolving Credit
Agreement dated as of January __, 2000 (as amended and in effect from time to
time, the "Credit Agreement"), among the Borrower, the Bank and other banks
party thereto, and BankBoston, N.A., as Agent for the banks;
(b) the principal outstanding hereunder from time to time at the
times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time outstanding
from the Closing Date under the Credit Agreement through and including the
Maturity Date at the times and at the rate provided in the Credit Agreement.
This Competitive Bid Note evidences borrowings under and has been issued
by the Borrower in accordance with the terms of the Credit Agreement. The Bank
and any holder hereof is entitled to the benefits of the Credit Agreement and
the other Loan Documents, and may enforce the agreements of the Borrower
contained therein, and any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect thereof, all in
accordance with the respective terms thereof. All capitalized terms used in this
Note and not otherwise defined herein shall have the same meanings herein as in
the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be made,
at or about the time of the Drawdown Date of any Competitive Bid Loan or at the
time of receipt of any payment of principal of this Competitive Bid Note, an
appropriate notation on the grid attached hereto, or the continuation of such
grid, or any other similar record, including computer records, reflecting the
making of such Competitive Bid Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Competitive Bid Loans set forth on the
grid attached to this Competitive Bid Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by the Bank
with respect to any Competitive Bid Loans shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Bank, but the failure to
record, or any error in so recording, any such amount on any such grid,
continuation or other record shall not limit or otherwise affect the obligation
of the Borrower
hereunder or under the Credit Agreement to make payments of principal of
and interest on this Competitive Bid Note when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Competitive Bid Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Competitive Bid Note and all of the unpaid interest
accrued thereon may become or be declared due and payable in the manner and with
the effect provided in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
The Borrower and every endorser and guarantor of this Competitive Bid Note
or the obligation represented hereby waives presentment, demand, notice, protest
and all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Competitive Bid Note, and assents to
any extension or postponement of the time of payment or any other indulgence, to
any substitution, exchange or release of collateral and to the addition or
release of any other party or person primarily or secondarily liable.
THIS COMPETITIVE BID NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER
SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
COMPETITIVE BID NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN ss.19 OF
THE CREDIT AGREEMENT. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Competitive Bid Note shall be deemed to take effect as a sealed
instrument under the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has caused this Competitive Bid Note
to be signed in its corporate name and its corporate seal to be impressed
thereon by its duly authorized officer as of the day and year first above
written.
[Corporate Seal]
THE STRIDE RITE CORPORATION
By: _______________________________
Title:
-------------------------------------------------------------------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
EXHIBIT D-2
Competitive Bid Quote Request
[Date]
To: BankBoston, N.A., as Agent (the "Agent")
From: The Stride Rite Corporation (the "Borrower")
Re: Revolving Credit Agreement (as the same may be amended and in effect
from time to time, the "Credit Agreement"), dated as of January __,
2000, among the Borrower, the lending institutions which are or may
become parties thereto (the "Banks") and the Agent.
We hereby give notice pursuant to Section 9.1(c) of the Credit Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Loan(s):
Requested Drawdown Date:
Principal Amount* Interest Period** Maturity Date***
$
Such Competitive Bid Quotes should offer a Competitive Bid Rate.
Capitalized terms which are used herein without definition shall have the
same meanings herein as in the Credit Agreement.
The Stride Rite Corporation
By:_____________________________
Title:
---------------------
* Amount must be $5,000,000 minimum, or a greater integral multiple of
$1,000,000, and may not exceed the $30,000,000.
** From 10 through 90 days, but not to extend beyond the Maturity Date; a
maximum of three Interest Periods may be selected in one Competitive Bid
Quote Request
*** Last day of Interest Period
EXHIBIT D-3
Invitation for Competitive Bid Quotes
To: [Name of Bank]
Pursuant to Section 2.9.1(d) of the Revolving Credit Agreement, dated as
of January __, 2000 (as the same is amended and in effect from time to time, the
"Credit Agreement"), among The Stride Rite Corporation (the "Borrower"), the
lending institutions which are or may become parties thereto (the "Banks"), and
BankBoston, N.A., as Agent, we are pleased on behalf of the Borrower to invite
you to submit Competitive Bid Quotes to the Borrower for the following proposed
Competitive Bid Loan(s):
Requested Drawdown Date:
Principal Amount Interest Period(s)* Maturity Date**
$
Such Competitive Bid Quotes should offer a Competitive Bid Rate.
Capitalized terms which are used herein without definition and which are
defined in the Credit Agreement shall have the same meanings herein as in the
Credit Agreement.
Please respond to this invitation by no later than 10:00 a.m. (Boston
time) on the requested Drawdown Date to the attention of [ ] at facsimile number
[ ].
BANKBOSTON, N.A., as Agent
By:___________________________________
Title:
--------------------
* Up to three Interest Periods may be specified.
** Last day of Interest Period
EXHIBIT D-4
Competitive Bid Quote
BankBoston, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Re: Competitive Bid Quote to The Stride Rite Corporation (the
"Borrower")
In response to your invitation on behalf of the Borrower dated , 19
, we hereby make the following Competitive Bid Quote on
the following terms:
1. Quoting Bank:________________________________________________________
2. Person to contact at quoting Bank:___________________________________
3. Drawdown Date:_______________________________________________________*
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Revolving Credit
Agreement, dated as of January __, 2000 (as the same may be amended and in
effect from time to time, the "Credit Agreement"), among the Borrower, the
lending institutions which are or may become parties thereto, and BankBoston,
N.A., as Agent, irrevocably obligates us to make the Competitive Bid Loan(s) for
which any offer(s) are accepted in whole or in part by the Borrower.
Principal Interest Competitive Bid
Amount** Period(s)*** Rate(s)****
$
$
5. Aggregate Principal Amount: $
Capitalized terms which are used herein without definition and which are
defined in the Credit Agreement shall have the same meanings herein as in the
Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_________________________ By:________________________
Title:
--------------------
* As specified in the related Invitation for Competitive Bid Quotes.
** Principal amount bid for each Interest Period may not exceed the
aggregate principal amount of Competitive Bid Loans for which offers were
requested and may not exceed the $30,000,000. Bids must be made for
$5,000,000 or any larger multiple of $1,000,000.
*** From 10 through 90 days, as specified in the related Invitation for
Competitive Bid Quotes.
**** Specify rate of interest per annum (each rounded to the nearest 1/1,000th
of 1%) for each applicable Interest Period.
EXHIBIT D-5
Notice of Competitive Bid Borrowing
BankBoston, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: _________________________
Re: Revolving Credit Agreement (as the same may be amended and in effect
from time to time the "Credit Agreement"), dated as of January __, 2000, among
The Stride Rite Corporation (the "Borrower"), the lending institutions which are
or may become parties thereto (the "Banks"), and BankBoston, N.A., as Agent.
We hereby give notice pursuant to Section 2.9.1(g) of the Credit Agreement
of our acceptance of the following Competitive Bid Quote(s):
1. Bank:
2. Drawdown Date: *
3. In the following principal amounts, for the following Interest Periods
and at the following rates:
Principal Interest Competitive Bid
Amount** Period(s) Rate(s)***
$
$
[Repeat for each Bank as necessary]
4. The aggregate principal amount for each Interest Period is:
Interest Aggregate
Period Principal Amount
$
$
--------------------
* As specified in the related Invitation for Competitive Bid Quotes.
** Aggregate principal amount of each Competitive Bid Loan may not exceed
applicable amount set forth in related Competitive Bid Quote Request, and
must be $5,000,000 or a larger multiple of $1,000,000.
*** Specify rate of interest per annum (each rounded to the nearest 1/1,000th
of 1%) for each applicable Interest Period.
We hereby certify that:
(a) We will use the proceeds of the requested Competitive Bid Loan in
accordance with the provisions of the Credit Agreement.
(b) Each of the representations and warranties contained in the Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement was true as of the date as of which it was
made and is true at and as of the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties related expressly to an earlier date.
(c) No Default or Event of Default has occurred and is continuing.
Capitalized terms which are used herein without definition and which are
defined in the Credit Agreement shall have the same meanings herein as in the
Credit Agreement.
Very truly yours,
THE STRIDE RITE CORPORATION
Dated:____________________________ By:_____________________________
Name:
Title:
EXHIBIT D-6
NOTICE OF COMPETITIVE BID LOANS
[date]
To: Each of the Banks referred to below
From: BankBoston, N.A., as Agent
Reference is hereby made to that certain Revolving Credit Agreement, dated
as of January __, 2000, among The Stride Rite Corporation (the "Borrower"), the
lending institutions which are or may become parties thereto (the "Banks"), and
BankBoston, N.A., as agent for the Banks (the "Agent") (as amended and in effect
from time to time, the "Credit Agreement"). Capitalized terms which are used
herein without definition and which are defined in the Credit Agreement shall
have the same meanings herein as in the Credit Agreement.
Under Section 2.9 of the Credit Agreement, the Borrower borrowed $________
in Competitive Bid Loans on _____________, 200__ with an Interest Period of
_____________________. The Competitive Bid Rate for the period is _______%.
A range of Competitive Bid Quotes were submitted. The bids ranged from
_____% to _____%.
BANKBOSTON, N.A., as Agent
By: ___________________________
Title:
EXHIBIT E-1
Swing Line Loan Request
THE STRIDE RITE CORPORATION
[date]
BankBoston, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: ___________________
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement, dated
as of January __, 2000, (as the same may be amended and in effect from time to
time, the "Credit Agreement"), among The Stride Rite Corporation, BankBoston,
N.A. and certain other lending institutions which are or may become parties
thereto from time to time (collectively, the "Banks"), and BankBoston, N.A., as
agent for the Banks (the "Agent"). Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement shall have the
same meanings herein as in the Credit Agreement.
Pursuant to Section 2.10.2(b) of the Credit Agreement, we hereby request
that a Swing Line Loan in the principal amount of $__________, be made on
________________ [Drawdown Date]. The Swing Line Loan Maturity Date relating to
such Swing Line Loan shall be ________________. We understand that this request
is irrevocable and binding on us and obligates us to accept the requested Swing
Line Loan on such date.
We hereby certify that:
(a) The aggregate outstanding principal amount of the Syndicated Loans on
today's date, including amounts to be borrowed today, is $_________, the
aggregate outstanding principal amount of the Swing Line Loans as of today's
date, including this borrowing, is $_________, the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligation on today's date, is $_________,
the aggregate amount of Competitive Bid Loans outstanding on today's date is
$________; and the sum of the foregoing amounts is
$----------------.
(b) We will use the proceeds of the requested Swing Line Loan in
accordance with the provisions of the Credit Agreement.
(c) Each of the representations and warranties contained in the Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement was true as of the date as of which it was
made and is true at and as of the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties related expressly to an earlier date).
(d) No Default or Event of Default has occurred and is continuing.
Very truly yours,
THE STRIDE RITE CORPORATION
By:
Title:
EXHIBIT E-2
SWING LINE NOTE
$10,000,000 January __, 2000
FOR VALUE RECEIVED, the undersigned The Stride Rite Corporation, a
Massachusetts corporation (the "Borrower"), hereby promises to pay to the order
of BankBoston, N.A., a national banking association (the "Bank") at the Bank's
head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000:
(a) prior to or on [January __, 2003] the principal amount of TEN MILLION
DOLLARS ($10,000,000) or, if less, the aggregate unpaid principal amount of
Swing Line Loans advanced by the Bank to the Borrower pursuant to the Revolving
Credit Agreement dated as of January __, 2000 (as amended and in effect from
time to time, the "Credit Agreement"), among the Borrower, the Bank and other
banks party thereto, and BankBoston, N.A., as Agent for the banks;
(b) the principal outstanding hereunder from time to time at the
times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time outstanding
from the Closing Date under the Credit Agreement through and including the
Maturity Date at the times and at the rate provided in the Credit Agreement.
This Swing Line Note evidences borrowings under and has been issued by the
Borrower in accordance with the terms of the Credit Agreement. The Bank and any
holder hereof is entitled to the benefits of the Credit Agreement and the other
Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be made,
at or about the time of the Drawdown Date of any Swing Line Loan or at the time
of receipt of any payment of principal of this Swing Line Note, an appropriate
notation on the grid attached hereto, or the continuation of such grid, or any
other similar record, including computer records, reflecting the making of such
Swing Line Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Swing Line Loans set forth on the grid attached to
this Swing Line Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Bank with respect to any
Swing Line Loans shall be prima facie evidence of the principal amount thereof
owing and unpaid to the Bank, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation or other record shall
not limit or otherwise affect the obligation of the Borrower hereunder or under
the Credit Agreement to make payments of principal of and interest on this Swing
Line Note when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Swing Line Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Swing Line Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
The Borrower and every endorser and guarantor of this Swing Line Note or
the obligation represented hereby waives presentment, demand, notice, protest
and all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Swing Line Note, and assents to any
extension or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS SWING LINE NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL
FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
COMPETITIVE BID NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN ss.19 OF
THE CREDIT AGREEMENT. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Swing Line Note shall be deemed to take effect as a sealed instrument
under the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has caused this Swing Line Note to be
signed in its corporate name and its corporate seal to be impressed thereon by
its duly authorized officer as of the day and year first above written.
[Corporate Seal]
THE STRIDE RITE CORPORATION
By: _______________________________
Title:
-------------------------------------------------------------------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
EXHIBIT F
COMPLIANCE CERTIFICATE
[Date]
To the Banks Party to the
Credit Agreement Referred to Below
c/o BankBoston, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Managing Director
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of January
__, 2000 (as amended and in effect from time to time, the "Credit Agreement"),
by and among The Stride Rite Corporation (the "Borrower"), BankBoston, N.A., the
other lenders that may become parties thereto from time to time (collectively,
the "Banks"), and BankBoston, N.A., as agent for the Banks (the "Agent").
Capitalized terms used herein without definition and which are defined in the
Credit Agreement shall have the respective meanings assigned to such terms in
the Credit Agreement.
Pursuant to Section 7.4(c) of the Credit Agreement, the principal financial
or accounting officer of the Borrower hereby certifies to each of you as
follows: (a) the information furnished in the calculations attached hereto was
true and correct as of the last day of the fiscal [year] [quarter] next
preceding the date of this certificate; (b) as of the date of this certificate,
there exists no Default or Event of Default or condition which would, with
either or both the giving of notice or the lapse of time, result in a Default or
an Event of Default; and (c) the financial statements delivered herewith were
prepared in accordance with generally accepted accounting principles applied on
a basis consistent with prior periods (except, in the case of quarterly
statements, for provisions for footnotes and, in all cases, except as disclosed
therein).
IN WITNESS WHEREOF, the undersigned officer has executed this Compliance
Certificate as of the date first written above.
THE STRIDE RITE CORPORATION
By:_______________________________
Title:
COMPLIANCE CERTIFICATE SCHEDULE
Financial Covenants
For the quarter ended ________, 200_
For all purposes of this Schedule, terms are used as defined in the Credit
Agreement; and in the event of any ambiguity or conflict, the provisions of the
Credit Agreement shall prevail.
Section 9.1 - Fixed Charge Coverage Ratio
(For the period of four consecutive fiscal quarters then ended)
1. Consolidated Operating Cash Flow
(a) Consolidated EBITDA
(i) Consolidated earnings (or loss) from
operations $_________
after expenses and other proper
charges:
(ii) Add back:
Depreciation: $__________
Amortization: $__________
Nonrepetitive
noncash charges: $__________
Total: $_________
(iii) Minus: extraordinary nonrecurring items $_________
of income:
(iv) Result of (i) plus (ii) minus (iii): $_________
(b) Includable Interest Income
(i) Earned income on cash balances: $__________
(ii) $10,000,000 times 30-day LIBOR Rate: $__________
(iii) Result of (i) minus (ii): $__________
(c) Capitalized Expenditures (to the extent not
deducted in 1(a)): $__________
(d) Result of (a)(iv) plus (b)(iii) minus (c): $__________
2. Rental Expense: $__________
3. Consolidated EBITDA plus Rental Expense: $__________
4. Consolidated Total Interest Expense: $_________
5. Rental Expense: $_________
6. Consolidated Total Interest Expense plus Rental Expense: $_________
7. Ratio of 3 to 6: ___:___
Minimum Ratio: 1.75:1
Section 9.2 - Funded Debt to EBITDA Ratio
(For the period of four consecutive fiscal quarters then ended)
1. Total Funded Indebtedness
(i) Indebtedness relating to the borrowing of
money or utilization of credit (including
letters of credit except (x) documentary
letters of credit and (y) standby letters of $________
credit to the extent supporting included
Indebtedness):
(ii) Obligations under Capitalized Leases: $________
(iii) Sum of (i) and (ii): $________
2. Consolidated EBITDA
(Item 1(a)(iv) above): $________
3. Ratio of 1 to 2: ____:___
Maximum Ratio Permitted: 2.25:1.0
Section 9.3 - Consolidated Tangible Net Worth
1. Consolidated Net Worth
(i) Consolidated Total Assets: $________
(ii) Consolidated Total Liabilities: $________
(iii) Result of (i) minus (ii): $________
2. Total book value of intangible assets: $________
3. Write-up in book value of any assets resulting from
revaluation after Balance Sheet Date: $________
4. Consolidated Tangible Net Worth
(1 minus 2 and 3): $________
5. Initial Amount: $200,000,000
6. 50% of cumulative positive Consolidated Net Income,
beginning with fiscal quarter ending December 3, 1999 $________
(with no deduction for losses):
7. Aggregate Permitted Distributions since Closing Date: $________
8. Required Consolidated Tangible Net Worth
(5 plus 6 minus 7): $________
9. Excess (Deficit) TNW
(4 minus 8): $__________
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Dated as of ____________, 2000
Reference is made to the Revolving Credit Agreement , dated as of January
__, 2000 (as from time to time amended and in effect, the "Credit Agreement"),
by and among The Stride Rite Corporation, a Massachusetts corporation (the
"Borrower"), the banking institutions referred to therein as Banks
(collectively, the "Banks"), and BankBoston, N.A., a national banking
association, as agent (in such capacity, the "Agent") for the Banks. Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Credit Agreement.
______________________________ (the "Assignor") and
______________________________ (the "Assignee") hereby agree as follows:
1. Assignment. Subject to the terms and conditions of this Assignment and
Acceptance, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes without recourse to the Assignor, a
$__________ interest in and to the rights, benefits, indemnities and obligations
of the Assignor under the Credit Agreement equal to _______.00% in respect of
the Total Commitment immediately prior to the Effective Date (as hereinafter
defined).
2. Assignor's Representations. The Assignor (i) represents and warrants
that (A) it is legally authorized to enter into this Assignment and Acceptance,
(B) as of the date hereof, its Commitment is $__________, its Commitment
Percentage is __________.00%, the aggregate outstanding principal balance of its
Syndicated Loans equals $__________, the aggregate amount of its Letter of
Credit Participations equals $__________ (in each case after giving effect to
the assignment contemplated hereby but without giving effect to any contemplated
assignments which have not yet become effective), and (C) immediately after
giving effect to all assignments which have not yet become effective, the
Assignor's Commitment Percentage will be sufficient to give effect to this
Assignment and Acceptance, (ii) makes no representation or warranty, express or
implied, and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
thereto or the attachment, perfection or priority of any security interest or
mortgage, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder free and clear of any claim or encumbrance; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any of its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the Borrower or any of its
Subsidiaries or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of its obligations under the Credit Agreement or
any of the other Loan Documents or any other instrument or document delivered or
executed pursuant
thereto; and (iv) attaches hereto the Revolving Credit Note and the
Competitive Bid Note delivered to it under the Credit Agreement.
The Assignor requests that the Borrower exchange the Assignor's Revolving
Credit Note and the Competitive Bid Note for new Revolving Credit and
Competitive Bid Notes payable to the Assignor and the Assignee as follows:
Notes Payable to Amount of Revolving Amount of
the Order of: Credit Note Competitive Bid Note
Assignor $____________ $____________
Assignee $____________ $____________
3. Assignee's Representations. The Assignee (i) represents and warrants
that (A) it is duly and legally authorized to enter into this Assignment and
Acceptance, (B) the execution, delivery and performance of this Assignment and
Acceptance do not conflict with any provision of law or of the charter or
by-laws of the Assignee, or of any agreement binding on the Assignee, (C) all
acts, conditions and things required to be done and performed and to have
occurred prior to the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding obligation of
the Assignee, enforceable against it in accordance with its terms, have been
done and performed and have occurred in due and strict compliance with all
applicable laws; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.4 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon the Assignor, the Agent or any
other Bank 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 the Credit Agreement; (iv) represents and warrants that
it is an Eligible Assignee; (v) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(vi) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; and (vii) acknowledges that it has made arrangements
with the Assignor satisfactory to the Assignee with respect to its pro rata
share of Letter of Credit Fees in respect of outstanding Letters of Credit.
4. Effective Date. The effective date for this Assignment and Acceptance
shall be _______________, 2000 (the "Effective Date"). Following the execution
of this Assignment and Acceptance [and the consent of the Borrower hereto having
been obtained], each party hereto shall deliver its duly executed counterpart
hereof to the Agent for acceptance by the Agent and recording in the Register by
the Agent. Schedule 1 to the Credit Agreement
shall thereupon be replaced as of the Effective Date by the Schedule 1
annexed hereto.
5. Rights Under Credit Agreement. Upon such acceptance and recording, from
and after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder, and (ii) the Assignor shall,
with respect to that portion of its interest under the Credit Agreement assigned
hereunder, relinquish its rights and be released from its obligations under the
Credit Agreement; provided, however, that the Assignor shall retain its rights
to be indemnified pursuant to Section 15 of the Credit Agreement with respect to
any claims or actions arising prior to the Effective Date.
6. Payments. Upon such acceptance of this Assignment and Acceptance by the
Agent and such recording, from and after the Effective Date, the Agent shall
make all payments in respect of the rights and interests assigned hereby
(including payments of principal, interest, fees and other amounts) to the
Assignee. The Assignor and the Assignee shall make any appropriate adjustments
in payments for periods prior to the Effective Date by the Agent or with respect
to the making of this assignment directly between themselves.
7. Governing Law. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO
CONFLICT OF LAWS).
8. Counterparts. This Assignment and Acceptance may be executed in
any number of counterparts which shall together constitute but one and the
same agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Assignment and Acceptance to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
[NAME OF ASSIGNOR]
By:
Title
[NAME OF ASSIGNEE]
By:
Title
CONSENTED TO:
BANKBOSTON, N.A., as Agent
By:
Title:
THE STRIDE RITE CORPORATION
By:
Title:
EXHIBIT H
INSTRUMENT OF ADHERENCE
Dated as of ____________, 2000
Reference is made to the Revolving Credit Agreement , dated as of January
__, 2000 (as from time to time amended and in effect, the "Credit Agreement"),
by and among The Stride Rite Corporation, a Massachusetts corporation (the
"Borrower"), the banking institutions referred to therein as Banks
(collectively, the "Banks"), and BankBoston, N.A., a national banking
association, as agent (in such capacity, the "Agent") for the Banks. Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Credit Agreement.
_____________________________________, a ________________________ (the
"Additional Bank"), hereby agrees to become a Bank party to the Credit
Agreement, subject to and in accordance with the following provisions:
1. Commitment to Lend.
(a) Subject to the terms and conditions set forth in this Instrument of
Adherence and the Credit Agreement, the Additional Bank hereby agrees to lend to
the Borrower and the Borrower may borrow, repay, and reborrow from time to time
from the Effective Date hereof up to but not including the Maturity Date upon
notice by the Borrower to the Agent given in accordance with Section 2.7 of the
Credit Agreement, such Syndicated Loans as are requested by the Borrower up to a
maximum aggregate amount outstanding (after giving effect to all amounts
requested) at any one time equal to the Additional Bank's Commitment minus the
Additional Bank's Commitment Percentage of the sum of the Maximum Drawing Amount
and all Unpaid Reimbursement Obligations, provided, that the sum of the
outstanding amount of the Loans under the Credit Agreement (after giving effect
to all amounts requested) plus the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time exceed the Total Commitment.
(b) The Additional Bank's Commitment Amount, as of the Effective Date, is
$______________, and Commitment Percentage is ______________% of the aggregate
Commitments of all of the Banks.
2. Additional Bank's Representations. The Additional Bank hereby
represents and warrants to, and agrees with, the other parties to the Credit
Agreement as follows:
(a) The Additional Bank has received a copy of the Credit Agreement,
together with copies of the most recent financial statements referred to in
Section 6.4 and Section 7.4 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Instrument of Adherence.
(b) The Additional Bank will, independently and without reliance upon the
Agent or any other Bank 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 the Credit Agreement.
(c) The Additional Bank is qualified as an Eligible Assignee.
(d) The Additional Bank appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
(e) The Additional Bank agrees that it will perform all of the obligations
that by the terms of the Credit Agreement are required to be performed by it as
a Bank.
(f) The Additional Bank is legally authorized to enter into this
Instrument of Adherence.
3. Effective Date. The effective date for this Instrument of Adherence
shall be _______________, 200_ (the "Effective Date"). Following the execution
of this Instrument of Adherence by the Additional Bank and the consent of the
Agent and Borrower hereto having been obtained, the Agent shall record in the
Register the Additional Bank's Commitment, the Borrower shall execute and
deliver to the Additional Bank a Revolving Credit Note and a Competitive Bid
Note, each dated as of the Effective Date and completed appropriately with
respect to the Additional Bank's Commitment. Schedule 1 to the Credit Agreement
shall thereupon be replaced as of the Effective Date by the Schedule 1 annexed
hereto.
4. Rights Under Credit Agreement. Upon such acceptance and recording, from
and after the Effective Date, the Additional Bank shall be a party to the Credit
Agreement and, to the extent provided in this Instrument of Adherence, have the
rights and obligations of a Bank thereunder.
5. Governing Law. THIS INSTRUMENT OF ADHERENCE IS INTENDED TO TAKE EFFECT
AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF
LAWS).
6. Counterparts. This Instrument of Adherence may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Instrument of Adherence to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
[NAME OF ADDITIONAL BANK]
By:
Title
CONSENTED TO:
BANKBOSTON, N.A., as Agent
By:
Title:
THE STRIDE RITE CORPORATION
By:
Title:
SCHEDULE 6.1
SUBSIDIARIES OF THE BORROWER
The subsidiaries of the Borrower, all of which are wholly owned by the
Borrower, are listed below:
Place of Incorporation
* Stride Rite Children's Group, Inc. Massachusetts
* Sperry Top-Sider, Inc. Massachusetts
* The Keds Corporation Massachusetts
* Xxxxx Xxxxxxxx Footwear, Inc. Massachusetts
* SR Holdings Inc. Delaware
Stride Rite International Corp. Massachusetts
Stride Rite Sourcing International, Inc. Massachusetts
Boston Footwear Group, Inc. Massachusetts
S/R Ecom, Inc. Massachusetts
Stride Rite Investment Corporation Massachusetts
Stride Rite Manufacturing of Missouri, Inc. Missouri
SRR, Inc. Delaware
SRL, Inc. Delaware
SR California Inc. California
Stride Rite Canada Limited Canada
S.R. Footwear Limited Bermuda
Stride Rite de Mexico, S.A. de C.V. Mexico
*Denotes a Significant Subsidiary
SCHEDULE 6.3
TITLE TO PROPERTIES
This Schedule 6.3 is intentionally left blank.
SCHEDULE 6.5
NO MATERIAL CHANGES
Distributions since the Balance Sheet Date, December 3, 1999:
o Dividend payment on common shares $2,247,164.42
o Common stock repurchased $3,869,612.83
SCHEDULE 6.7
LITIGATION
See paragraph on Saco, Maine Landfill in Schedule 6.17.
SCHEDULE 6.14
TRANSACTIONS
o Xxxxxx X. Xxxx, a director of the Borrower, is a Limited Partner of The
Xxxxxxx Xxxxx Group L.P., an investment banking firm that, from time to
time, provides services to the Borrower.
o Xxxxx Xxx Xxxx, a director of the Borrower, is Senior Executive Vice
President and Chief Financial Officer of Bank of New York, one of the
lending institutions in this Revolving Credit Agreement.
SCHEDULE 6.17
ENVIRONMENTAL COMPLIANCE
Saco, Maine Landfill. Xxxxxx X. Xxxxxx Co., Inc., which was merged into Sperry
Top-Sider, Inc., was a party to an environmental action regarding a landfill in
Saco, Maine. Sperry has entered into an Administrative Consent Order with the
EPA pursuant to which we will be required to pay $18,000 to settle our liability
as a potentially "responsible party" for contamination found at this site. The
Consent Order is presently out for public comment via publication in the Federal
Register, and we are awaiting word from the EPA of its effective date.
Xxxxxxxx Ave., Boston, Massachusetts. Stride Rite Children's Group, Inc. owned a
former distribution center located on Xxxxxxxx Ave., Boston, MA. It was
determined in 1990 that an underground storage tank at this facility that was
used for heating oil had leaked some of its contents into the surrounding soil
and groundwater. 134 tons of oil-contaminated soil was excavated from the
vicinity of the LUST (Leaky Underground Storage Tank) and was removed from the
premises for off-site disposal. By the end of 1991all of the UST's had been
removed from the property. For the last 3-5 years of our ownership, we operated
oil/water separators in the basement to clean the oil from groundwater that
appeared in some of the basement sump holes. Prior to selling the facility we
recorded an Activity and Use Limitation on the affected site (e.g., it cannot be
used as a playground or as farmland for crops intended for human consumption).
Huntington, Indiana. Stride Rite Children's Group, Inc. owns a distribution
center in Huntington, Indiana, which has two underground fuel oil tanks. The
tanks were vacuum tested in November 1996 and found to be tight at such time.
SCHEDULE 6.18
JOINT VENTURE OR PARTNERSHIP
o SR Holdings, Inc. is a 49% venture partner in a joint venture to own and
operate a footwear manufacturing plant in Thailand known as PSR Footwear
Co., Ltd.
o SR Holdings, Inc. is a Limited Partner in the investment partnership
called Boston Ventures Limited Partnership II carried on the books of the
Borrower at approximately $63,000 on the Balance Sheet Date.
SCHEDULE 8.1
INDEBTEDNESS
Approximately $32,700,000.00 of indebtedness to BankBoston, N.A., for short-term
borrowings which will be refinanced by this Revolving Credit Facility.
SCHEDULE 8.2
LIENS
This Schedule 8.2 is intentionally left blank.
SCHEDULE 8.3
INVESTMENTS
o SR Holdings, Inc. is a Limited Partner in the investment partnership
called Boston Ventures Limited Partnership II carried on the books of the
Borrower at approximately $63,000 on the Balance Sheet Date.
o The Keds Corporation holds Common stock in Weiners Stores Inc. valued at
approximately $38,000 on the Balance Sheet Date.
