EXHIBIT 4(d)
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of
February 16, 2001
Among
HASBRO, INC.
the BANKS party hereto
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.), AS AGENT
with
FLEET SECURITIES, INC.,
having acted as Arranger
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION. 1
1.1. Definitions. 1
1.2. Rules of Interpretation. 19
2. THE SYNDICATED AND COMPETITIVE BID LOAN FACILITY. 20
2.1. Commitment to Lend Syndicated Loans. 20
2.2. Commitment Fee. 21
2.3. Reduction of Total Commitment. 21
2.4. Requests for Syndicated Loans. 22
2.5. Competitive Bid Loans. 22
2.5.1. Competitive Bid Borrowings. 22
2.5.2. Repayment of Competitive Bid Loans. 26
2.6. The Notes. 27
2.7. Interest on Loans. 28
2.8. Prepayments. 28
2.9. Funds for Loans. 29
2.10. Mandatory Repayments. 30
2.11. Application of Payments; Commitment Reduction.31
3. THE SWING LINE. 32
3.1. The Swing Line Loans. 32
3.2. Notice of Borrowing. 32
3.3. Interest on Swing Line Loans. 33
3.4. Repayment of Swing Line Loans. 33
3.5. The Swing Line Note. 33
4. INTEREST; PAYMENTS AND COMPUTATIONS. 34
4.1. Interest; Costs and Expenses. 34
4.2. Concerning Interest Periods. 39
4.3. Interest on Overdue Amounts. 39
4.4. Payments. 39
4.5. Computations. 40
4.6. Interest Limitation. 40
4.7. Indemnification. 40
4.8. Banks' Obligations Several. 41
4.9. Debt Rating Increase. 41
5. LETTERS OF CREDIT. 41
5.1. Letter of Credit Commitments. 41
5.1.1. Commitment to Issue Letters of Credit. 41
5.1.2. Letter of Credit Applications. 42
5.1.3. Terms of Letters of Credit. 42
5.1.4. Reimbursement Obligations of Banks. 42
5.1.5. Participations of Banks. 43
5.2. Reimbursement Obligation of the Company. 43
5.3. Letter of Credit Payments. 43
5.4. Obligations Absolute. 44
5.5. Reliance by Issuer. 45
5.6. Letter of Credit Fee. 45
6. COLLATERAL SECURITY AND GUARANTIES. 46
6.1. Security of Company. 46
6.2. Guaranties and Security of Restricted
Subsidiaries. 46
6.3. Release of Collateral. 47
6.4. Limitation of Security. 47
7. FEES. 47
7.1. Amendment Fee. 47
7.2. Agent's Fee. 47
8. REPRESENTATIONS AND WARRANTIES. 48
8.1. Corporate Existence. 48
8.2. Corporate Authority, etc. 48
8.3. Binding Effect of Documents, etc. 49
8.4. Governmental Approvals. 49
8.5. No Event of Default, etc. 49
8.6. Chief Executive Offices. 49
8.7. Title to Properties; Leases. 49
8.8. Financial Statements and Projections. 49
8.8.1. Fiscal Year. 49
8.8.2. Financial Statements. 49
8.8.3. Projections. 50
8.9. No Material Changes, Etc. 50
8.10. Franchises, Patents, Copyrights, Etc. 50
8.11. Litigation. 50
8.12. No Materially Adverse Contracts, Etc. 50
8.13. Compliance With Other Instruments, Laws, Etc.50
8.14. Taxes. 51
8.15. Absence of Financing Statements, Etc. 51
8.16. Perfection of Security Interest. 51
8.17. Indebtedness. 51
8.18. True Copies of Charter and Other Documents. 52
8.19. Employee Benefit Plans. 52
8.19.1. In General. 52
8.19.2. Terminability of Welfare Plans. 52
8.19.3. Guaranteed Pension Plans. 52
8.19.4. Multiemployer Plans. 53
8.20. Holding Company and Investment Company Acts. 53
8.21. Certain Transactions. 53
8.22. Use of Proceeds. 53
8.22.1. General. 53
8.22.2. Regulations U and X. 54
8.23. Environmental Compliance. 54
8.24. Subsidiaries. 55
8.25. Disclosure. 55
8.26. Indebtedness of Foreign Subsidiaries. 55
8.27. Bank Accounts. 55
9. AFFIRMATIVE COVENANTS OF THE COMPANY. 55
9.1. Punctual Payment. 56
9.2. Use of Loan Proceeds. 56
9.3. Maintenance of Office. 56
9.4. Records and Accounts. 56
9.5. Financial Statements, Certificates and
Information. 56
9.6. Notices. 58
9.6.1. Defaults. 58
9.6.2. Environmental Events. 58
9.6.3. Notification of Claim against Collateral.
59
9.6.4. Notices Concerning Inventory Collateral.59
9.6.5. Notice of Litigation and Judgments. 59
9.7. Corporate Existence; Maintenance of Properties.59
9.8. Insurance. 60
9.9. Taxes. 60
9.10. Access. 60
9.11. Compliance with Laws, Contracts, Licenses, and
Permits. 61
9.12. Employee Benefit Plans. 61
9.13. Fiscal Year. 61
9.14. Additional Significant Subsidiaries and
Restricted Subsidiaries. 62
9.15. Debt Ratings. 62
9.16. Agency Account Agreements. 62
9.17. Further Assurances. 62
10. CERTAIN NEGATIVE COVENANTS OF THE COMPANY. 63
10.1. Restrictions on Indebtedness. 63
10.2. Restrictions on Liens. 64
10.3. Restrictions on Investments. 66
10.4. Restricted Payments. 68
10.5. Merger, Consolidation and Disposition of
Assets. 68
10.5.1. Mergers and Acquisitions. 68
10.5.2. Disposition of Assets. 69
10.6. Sale and Leaseback. 70
10.7. Compliance with Environmental Laws. 70
10.8. Subordinated Debt. 70
10.9. Employee Benefit Plans. 70
10.10. Business Activities. 71
10.11. Transactions with Affiliates. 71
10.12. Restrictions on Negative Pledges. 72
10.13. Cash Management. 72
10.14. Hedging Arrangements. 72
11. FINANCIAL COVENANTS. 72
11.1. Minimum EBITDA. 72
11.2. Total Funded Debt to EBITDA. 73
11.3. Fixed Charge Coverage Ratio. 73
11.4. Capital Expenditures. 74
12. CONDITIONS TO EFFECTIVENESS. 74
12.1. Loan Documents, etc. 74
12.2. Performance, etc. 74
12.3. Certified Copies of Charter Documents. 75
12.4. Proof of Corporate Action. 75
12.5. Incumbency Certificates. 75
12.6. Proceedings and Documents. 75
12.7. Validity of Liens. 75
12.8. Perfection Certificates and UCC Search Results.
75
12.9. Certificates of Insurance. 76
12.10. Agency Account Agreement. 76
12.11. Legal Opinions. 76
12.12. Payment of Fees. 76
12.13. Legality of Transactions. 76
12.14. Representations and Warranties. 76
13. CONDITIONS TO LOANS. 76
13.1. Legality of Transactions. 76
13.2. Representations and Warranties. 77
13.3. Performance, etc. 77
13.4. Proceedings and Documents. 77
13.5. Loan Documents. 77
14. EVENTS OF DEFAULT; ACCELERATION. 77
14.1. Remedies Upon Default. 77
14.2. Termination of Commitments. 81
14.3. Remedies. 81
14.4. Certain Rights of Cure. 81
14.5. Distribution of Collateral Proceeds. 82
15. SETOFF. 83
16. THE AGENT. 83
16.1. Authorization. 83
16.2. Employees and Agents. 84
16.3. No Liability. 84
16.4. No Representations. 85
16.4.1. General. 85
16.4.2. Closing Documentation, etc. 85
16.5. Indemnification. 85
16.6. Reimbursement. 86
16.7. Non-Reliance on Agent and Other Banks. 86
16.8. Payments. 87
16.8.1. Payments to Agent. 87
16.8.2. Distribution by Agent. 87
16.8.3. Delinquent Banks. 87
16.9. Holders of Notes. 88
16.10. Agent as Bank. 88
16.11. Resignation or Removal of Agent. 88
16.12. Notification of Defaults and Events of
Default. 88
16.13. Duties in the Case of Enforcement. 88
17. EXPENSES. 89
18. INDEMNIFICATION. 89
19. SURVIVAL OF COVENANTS, ETC. 90
20. ASSIGNMENT AND PARTICIPATION. 91
20.1. Conditions to Assignment by Banks. 91
20.2. Certain Representations and Warranties;
Limitations; Covenants. 91
20.3. Register. 92
20.4. New Notes. 93
20.5. Participations. 93
20.6. Assignee or Participant Affiliated with the
Company. 93
20.7. Miscellaneous Assignment Provisions. 94
20.8. Increased Costs. 94
20.9. Assignment by Company. 94
21. NOTICES, ETC. 95
22. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION. 95
22.1. Confidentiality. 95
22.2. Prior Notification. 96
22.3. Other. 96
23. CONSENTS, AMENDMENTS, WAIVERS, ETC. 96
24. PROVISIONS OF GENERAL APPLICATIONS. 97
24.1. Governing Law. 97
24.2. Headings. 98
24.3. Counterparts. 98
24.4. Entire Agreement, Etc. 98
24.5. Waiver of Jury Trial. 98
24.6. Severability. 99
25. TRANSITIONAL ARRANGEMENTS. 99
25.1. Existing Credit Agreement Superseded. 99
25.2. Return and Cancellation of Notes. 99
25.3. Interest and Fees Under Superseded Agreement.99
SCHEDULES AND EXHIBITS
Schedule 1 Banks, Commitments and Commitment
Percentages
Schedule 8.7 Title to Properties; Leases
Schedule 8.11 Litigation
Schedule 8.23 Environmental Compliance
Schedule 8.24 Subsidiaries
Schedule 8.26 Foreign Scheduled Facilities
Schedule 8.27 Bank Accounts
Schedule 10.1 Existing Indebtedness
Schedule 10.2 Existing Liens
Schedule 10.12 Restrictions on Negative Pledges
Exhibit A-1 Form of Syndicated Note
Exhibit A-2 Form of Syndicated Loan Request
Exhibit B-1 Form of Competitive Bid Note
Exhibit B-2 Form of Competitive Bid Quote Request
Exhibit B-3 Form of Invitation for Competitive Bid
Quotes
Exhibit B-4 Form of Competitive Bid Quote
Exhibit B-5 Form of Notice of Competitive Bid Borrowing
Exhibit C Form of Swing Line Loan Request
Exhibit D Form of Swing Line Note
Exhibit E Form of Compliance Certificate
Exhibit F Form of Subordination Agreement
Exhibit G [Intentionally omitted.]
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Confidentiality Agreement
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT,
is dated as of February 16, 2001, by and among HASBRO, INC.
(the "Company"), a Rhode Island corporation having its
principal place of business at 1027 Newport Avenue,
Pawtucket, Rhode Island 02862, and FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.) and the other lending institutions
listed on Schedule 1 (collectively, the "Banks") and FLEET
NATIONAL BANK (f/k/a BankBoston, N.A.), as agent for the
Banks (the "Agent").
WITNESSETH:
WHEREAS, pursuant to that certain Revolving Credit
Agreement, dated as of September 10, 1998 (as amended and in
effect from time to time, the "Existing Credit Agreement"),
by and among the Company, the Banks, and the Agent, the
Banks have made available certain financing to the Company
upon the terms and conditions contained therein; and
WHEREAS, the Company has requested, among other things,
to amend and restate the Existing Credit Agreement and the
Banks are willing to amend and restate the Existing Credit
Agreement on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing
premises and the mutual covenants contained herein, the
Company, the Banks and the Agent agree that as of the date
hereof, the Existing Credit Agreement shall be amended and
restated in its entirety as set forth herein:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions.
The following terms shall have the meanings set forth
in this 1.1 or elsewhere in the provisions of this
Agreement referred to below:
Affiliate. Any Person that would be considered to be
an affiliate of the Company under Rule 144(a) of the Rules
and Regulations of the Securities and Exchange Commission,
as in effect on the date hereof, if the Company were issuing
securities.
Affected Bank. See 4.1(c).
Agent. Fleet, acting as agent for the Banks, and each
other Person appointed as the successor Agent in accordance
with 16.11.
Agent's Fee. See 7.2.
Agent's Office. The Agent's office located at 100
Federal Street, Boston, Massachusetts 02110, or at such
other location as the Agent may designate from time to time.
Agreement. This Amended and Restated Revolving Credit
Agreement, including the Exhibits and Schedules hereto, as
originally executed, or if this Amended and Restated
Revolving Credit Agreement is further amended, varied or
supplemented from time to time, as so amended, varied or
supplemented.
Applicable Pension Legislation. At any time, any
pension or retirement benefits legislation (be it national,
federal, provincial, territorial or otherwise) then
applicable to the Company or any of its Subsidiaries.
Arranger. Fleet Securities, Inc.
Asset Sale. Any one or series of related transactions
on which the Company or any of its Subsidiaries conveys,
sells, leases, licenses or otherwise disposes of, directly
or indirectly, any of its properties, businesses or assets
whether owned on the Effective Date or thereafter acquired.
Assignee. A bank or other institution to which a Bank
assigns all, or a proportionate part of all, of such Bank's
rights and obligations under this Agreement and the Notes
payable to such transferor Bank, pursuant to the terms of
20.
Assignment and Acceptance. See 20.1.
Authorized Financial Officers. The Chief Financial
Officer of the Company, the Deputy Chief Financial Officer
of the Company, the Controller of the Company and any other
officer of the Company designated by the Company from time
to time as the chief financial officer or the chief
accounting officer of the Company and qualified to certify
as to financial information delivered on behalf of the
Company and its Subsidiaries pursuant to 9.5 hereof; and
"Authorized Financial Officer" means any one of the
Authorized Financial Officers.
Balance Sheet Date. December 31, 2000.
Bank Affiliate. (a) With respect to any Bank, (i) an
affiliate of such Bank or (ii) any entity (whether a
corporation, partnership, limited liability company, trust
or legal entity) that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business
and is administered or managed by such Bank or an affiliate
of such Bank and (b) with respect to any Bank that is a fund
which invests in bank loans and similar extensions of
credit, any other entity (whether a corporation,
partnership, limited liability company, trust or other legal
entity) that is a fund that invests in bank loans and
similar extensions of credit and is managed by the same
investment advisor as such Bank or by an affiliate of such
investment advisor.
Banks. As defined in the Preamble, and any bank or
institution that becomes an Assignee pursuant to, and
fulfills the conditions of, 20.
Banks' Special Counsel. Bingham Dana LLP, or such
other counsel as the Agent may approve.
Base Rate. A fluctuating interest rate per annum (as
shall be in effect from time to time) (rounded to the
nearest 1/100 of 1%) equal to the greater of: (a) the annual
rate of interest announced from time to time by the Agent at
the Agent's Office as its "Base Rate," and (b) the Federal
Funds Effective Rate plus one-half of one percent (0.5%). If
for any reason the Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including, without limitation, the
inability or failure of the Agent to obtain sufficient bids
or publications in accordance with the terms thereof, the
rate announced by the Agent at its head office as its "Base
Rate" shall be the Base Rate until the circumstances giving
rise to such inability no longer exist.
Base Rate Loan(s). Loan(s) denominated in Dollars
bearing interest calculated by reference to the Base Rate.
Borrowing. A borrowing hereunder by the Company
consisting of a Loan to the Company by the Banks or the
Swing Line Bank.
Business Day. Any day on which banking institutions in
Boston, Massachusetts and New York City, New York are open
for the conduct of normal banking business, and, in
addition, if Eurocurrency Rate Loans are involved, a day on
which dealings in Dollars can be carried on in the relevant
Eurocurrency Interbank Market and Dollar settlements of such
dealings may be effected in New York City.
Capitalized Leases. Leases under which the Company 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 GAAP.
Capital Stock. Any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any
of the foregoing.
Casualty Event. With respect to any property
(including any interest in property) of any Hasbro Company,
any loss of, damage to, or condemnation or other taking of,
such property for which such Person receives insurance
proceeds, proceeds of a condemnation award or other
compensation.
CERCLA. See 8.23.
Change of Control. An event or series of events by
which any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934)
shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act), directly or indirectly, of fifty-
one percent (51%) or more of the outstanding shares of
Capital Stock of the Company; or, during any period of
twelve (12) consecutive calendar months, individuals who
were directors of the Company on the first day of such
period (or whose election as directors was approved by a
majority of the directors who were in office on such date or
whose election previously was so approved) shall cease to
constitute a majority of the board of directors of the
Company.
Code. The Internal Revenue Code of 1986, as amended.
Collateral. All of the property, rights and interests
of the Company and the Restricted Subsidiaries that are or
are intended to be subject to the security interests and
mortgages created by the Security Documents.
Commitment. With respect to each Bank, the amount set
forth on Schedule 1 hereto as the maximum amount of such
Bank's commitment to make Syndicated Loans to, and to
participate in the issuance, extension and renewal of
Letters of Credit for the account of, the Company, as the
same may be reduced from time to time; or if such Bank's
commitment is terminated pursuant to the provisions hereof,
zero. Each Bank's Commitment shall be deemed to be reduced,
while any Competitive Bid Loans are outstanding, by an
amount equal to such Bank's Commitment Percentage of such
outstanding Competitive Bid Loans.
Commitment Fee. See 2.2.
Commitment Percentage. With respect to each Bank, the
percentage set forth opposite such Bank's name on Schedule 1
hereto.
Company. See preamble.
Company Security Agreement. The Amended and Restated
Security Agreement, dated as of the Effective Date, as the
same may be amended from time to time, by and between the
Company and the Agent, in form and substance reasonably
satisfactory to the Agent.
Company Stock Pledge Agreement. The Pledge Over A
Securities Account, dated as of the Effective Date, as the
same may be amended or supplemented from time to time, by
and between the Company and the Agent, in form and substance
reasonably satisfactory to the Agent.
Competitive Bid Loan(s). A Borrowing hereunder
consisting of one or more revolving credit loans made by any
of the Banks whose offer to make a revolving credit loan as
part of such Borrowing has been accepted by the Company
under the auction bidding procedure described in 2.5
hereof.
Competitive Bid Notes. See 2.6.
Competitive Bid Note Record. A Record with respect to
a Competitive Bid Note.
Competitive Bid Quote. An offer by a Bank to make a
Competitive Bid Loan in accordance with 2.5 hereof.
Competitive Bid Quote Request. See 2.5.1(b).
Competitive Bid Rate. See 2.5.1(d)(ii)(C).
Compliance Certificate. See 9.5(c) hereof.
Consolidated or consolidated. With reference to any
term defined herein, shall mean that term as applied to the
accounts of the Company and all of its Subsidiaries,
consolidated in accordance with GAAP.
Consolidated Net Earnings (or Loss). The consolidated
net earnings (or loss) of the Company and its Subsidiaries,
after deduction of all expenses, taxes, and other proper
charges, determined in accordance with GAAP, after
eliminating therefrom all extraordinary items of income.
Consolidated Operating Cash Flow. With respect to the
Company and its Subsidiaries and for any period, an amount
equal to (i) EBITDA for such period, minus (ii) Capital
Expenditures made by the Company and its Subsidiaries during
such period.
Consolidated Total Debt Service. With respect to the
Company and its Subsidiaries and for any period, the sum,
without duplication, of (a) Consolidated Total Interest
Expense for such period plus (b) any and all scheduled
repayments of principal during such period in respect of
Consolidated Total Funded Debt that becomes due and payable
or that is to become due and payable during such period but
excluding any repayments of principal required under this
Agreement and the Credit Line Agreement plus (c) the
aggregate amount of all Distributions paid during such
period.
Consolidated Total Funded Debt. As at any date of
determination, with respect to the Company and its
Subsidiaries, the sum, without duplication, of (a) the
aggregate amount of Indebtedness of the Company and its
Subsidiaries, on a consolidated basis, relating to (i) the
borrowing of money or the obtaining of credit, (ii) the
deferred purchase price of assets (other than trade payables
incurred in the ordinary course of business), (iii) in
respect of any Synthetic Leases or any Capitalized Leases
and (iv) the face amount of all letters of credit
outstanding plus (b) Indebtedness of the type referred to in
clause (a) of another Person guaranteed by the Company or
any of its Subsidiaries.
Consolidated Total Interest Expense. For any period,
the aggregate amount of interest expense of the Company and
its Subsidiaries determined on a consolidated basis in
accordance with GAAP for such period.
Copyright Memorandum. The Memorandum of Grant of
Security Interest in Copyrights, dated as of the Effective
Date, as the same may be amended from time to time, by and
among the Company, the Restricted Subsidiaries and the
Agent, in form and substance reasonably satisfactory to the
Agent.
Credit Line Agreement. The Amended and Restated Line
of Credit Agreement, dated as of the date hereof, by and
among the Company, the Banks party thereto and the Agent, as
amended, varied or supplemented from time to time, and any
agreement providing a 364-day line of credit among the
Company, the Banks and the Agent as the same may be in
effect from time to time.
Debt Rating. The rating issued from time to time
(whether on a preliminary basis or otherwise) by Standard &
Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc. ("Standard & Poor's") or Moody's Investors
Service, Inc. ("Moody's") or such other rating service or
services as the Company may designate from time to time with
the consent of the Majority Banks (each a "Successor Rating
Agency") with respect to Indebtedness evidenced by this
Agreement and the Credit Line Agreement.
Debt Rating Increase. See 4.9.
Default. Any Event of Default and any event which, but
for the giving of notice or the lapse of time, or both,
would constitute an Event of Default.
Delinquent Bank. See 16.8.3.
Distribution. The declaration or payment of any
dividend on or in respect of any shares of any class of
Capital Stock of the Company other than dividends payable
solely in shares of common stock of the Company (or payable
pursuant to the Rights Agreement, dated June 16, 1999,
between the Company and Fleet National Bank (f/k/a
BankBoston, N.A.) as amended); the purchase, redemption,
defeasance, retirement or other acquisition of any shares of
any class of Capital Stock of the Company directly or
indirectly through a Subsidiary of the Company or otherwise
(including the setting apart of assets for a sinking or
other analogous fund to be used for such purpose); the
return of capital by the Company to its shareholders as
such; or any other distribution on or in respect of any
shares of any class of Capital Stock of the Company.
Dollar(s) and $. The lawful currency of the United
States of America.
Domestic Subsidiary. Any Subsidiary of the Company
that is not a Foreign Subsidiary.
Drawdown Date. The date on which any Loan is made or
is to be made, and the date on which any Loan is converted
or continued in accordance with 4.1(a).
EBITDA. With respect to any particular fiscal period,
EBITDA shall mean the sum of (a) Consolidated Net Earnings
(or Loss) for such period, plus (b) in each case without
duplication, and to the extent deducted in calculating
Consolidated Net Earnings (or Loss) for such period, (i)
income tax expense of the Company and its Subsidiaries, (ii)
interest expense of the Company and its Subsidiaries, (iii)
depreciation and amortization of the Company and its
Subsidiaries, (iv) other non-cash charges of the Company and
its Subsidiaries, and (v) extraordinary losses of the
Company and its Subsidiaries, and minus to the extent
included in Consolidated Net Earnings (or Loss) for such
period, (vi) extraordinary gains of the Company and its
Subsidiaries for such period, all determined in accordance
with GAAP, plus (c) solely for the calculation of EBITDA for
the fiscal quarter ended December 31, 2000 or any period
that includes such quarter, a single incremental adjustment
in an amount equal to $210,000,000.
Effective Date. The date on which all of the
conditions set forth in 12 hereof have been satisfied, and
all "Loans" under and as defined in the Existing Credit
Agreement are converted into Loans hereunder.
Employee Benefit Plan. Any employee benefit plan
within the meaning of 3(3) of ERISA maintained or
contributed to by the Company or any ERISA Affiliate, other
than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See 8.23.
EPA. See 8.23.
Equity Issuance. The sale or issuance by the Company
or any of its Subsidiaries of any of its Capital Stock
(other than to the Company or any of its Subsidiaries).
ERISA. The Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
ERISA Affiliate. Any Person which is treated as a
single employer with the Company under 414 of the Code.
ERISA Reportable Event. A reportable event with
respect to a Guaranteed Pension Plan within the meaning of
4043 of ERISA and the regulations promulgated thereunder.
Eurocurrency Interbank Market. Any lawful recognized
market in which deposits of Dollars are offered by
international banking units of United States banking
institutions and by foreign banking institutions to each
other and in which eurocurrency funding operations are
customarily conducted.
Eurocurrency Offered Rate. With respect to the
Interest Period of any Eurocurrency Rate Loan, the annual
rate of interest determined by the Agent at or about 10:00
A.M. (Boston time) (or as soon thereafter as practicable)
two (2) Business Days preceding the first day of such
Interest Period, as being the average of the rates of
interest per annum at which deposits in the currency of such
Eurocurrency Rate Loan are offered to each of the respective
lending offices of each of the Reference Banks by prime
banks in the Eurocurrency Interbank Market selected by such
Reference Bank in its sole discretion acting in good faith
for such Interest Period, at the time of the determination
and in accordance with the usual practice in such market,
for delivery on the first day of such Interest Period in
immediately available funds and having a maturity equal to
such Interest Period and for the number of days comprised
therein, in an amount equal (as nearly as may be) to such
Reference Bank's Commitment Percentage of such Eurocurrency
Rate Loan.
Eurocurrency Rate. With respect to all Eurocurrency
Rate Loans for any Interest Period, the annual rate of
interest, rounded to the nearest 1/100 of 1%, determined by
the Agent for such Interest Period in accordance with the
following formula:
Eurocurrency Rate = Eurocurrency Offered Rate
-----------------------------
1 - Eurocurrency Reserve Rate
Eurocurrency Rate Loan(s). Loan(s) denominated in
Dollars bearing interest calculated by reference to the
Eurocurrency Rate.
Eurocurrency Reserve Rate. The rate in effect from
time to time, expressed as a decimal, at which the Banks
would be required to maintain reserves under Regulation D of
the Board of Governors of the Federal Reserve System (or any
successor or similar regulation relating to such reserve
requirements) against "Eurocurrency Liabilities" (as that
term is used in Regulation D), if such liabilities were
outstanding.
Existing Credit Agreement. See Preamble.
Event of Default. See 14.1.
Federal Funds Effective Rate. For any period, a
fluctuating interest rate per annum equal for each day
during such period 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 for any day on which such rate
is not so published for such day by the Federal Reserve Bank
of New York, the average of the quotations for such day for
such transactions received by the Agent from three (3)
Federal funds brokers of recognized standing selected by the
Agent.
Fee Letter. The fee letter, dated as of February 16,
2001, by and between Company and the Agent.
Fees. Collectively, the Commitment Fee, Competitive Bid
fees, the Letter of Credit Fees, the Agent's Fee and the
Closing Fee.
Final Maturity Date. February 16, 2003.
Fixed Charge Coverage Ratio. As at any date of
determination, the ratio of (i) the Consolidated Operating
Cash Flow of the Company and its Subsidiaries for the
Reference Period ending on such date, to (ii) the
Consolidated Total Debt Service of the Company and its
Subsidiaries for such Reference Period.
Fleet. Fleet National Bank, in its capacity as a Bank
hereunder.
Foreign Scheduled Facilities. See 8.26.
Foreign Sublimit. An amount which is available for
Borrowings in accordance with 8.22.1 equal to the aggregate
amount of Indebtedness of the Company consisting of
guaranties of the Foreign Scheduled Facilities, as such
Foreign Sublimit may be amended from time to time with the
consent of the Company and the Agent.
Foreign Subsidiary. Any Subsidiary that conducts
substantially all its business (other than export sales) in
countries other than the United States of America and that
is organized under the laws of a jurisdiction other than the
United States of America and the states thereof.
GAAP. (i) When used in 11 hereof, whether directly or
indirectly through reference to a capitalized term used
therein, principles which are (A) consistent with the
principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, in effect
for the fiscal period ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the
accounting practice of the Company 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, principles which are (A) consistent with the
principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors (or
successor organizations), as in effect from time to time and
(B) consistently applied with past financial statements of
the Company adopting the same principles.
Governmental Authority. Any foreign, federal, state,
regional, local, municipal or other government, or any
department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or
arbitrator.
Guaranteed Pension Plan. Any employee pension benefit
plan within the meaning of 3(2) of ERISA maintained or
contributed to by the Company 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 Amended and Restated Guaranty, dated as
of the Effective Date, as the same may be amended and in
effect from time to time, made by each Restricted Subsidiary
in favor of the Banks and the Agent pursuant to which each
Restricted Subsidiary guarantees to the Banks and the Agent
the payment and performance of the Secured Obligations and
in form and substance reasonably satisfactory to the Agent.
Hasbro Companies. Collectively, the Company, the
Restricted Subsidiaries and the Significant Subsidiaries.
Hazardous Substances. See 8.23.
Hedging Agreement. Any foreign exchange contract,
currency swap agreement, currency or commodity agreement or
other similar agreement or arrangement designed to protect
against the fluctuation in currency values.
Identified Brands. Collectively, the brand names
Action Man, Monopoly, Mr. Potato Head, Tonka, Lincoln Logs,
Playskool, Yahtzee, Clue and GI Joe.
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:
(a) every obligation of such Person to repay
money borrowed,
(b) every obligation of such Person for principal
evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in
connection with the acquisition of property, assets or
businesses,
(c) every reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances
or similar facilities issued for the account of such
Person,
(d) every obligation of such Person issued or
assumed as the deferred purchase price of property or
services (including securities repurchase agreements
but excluding (i) 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 and (ii) earnout obligations in respect of
assets or businesses acquired prior to the Effective
Date),
(e) every obligation of such Person under any
Capitalized Lease,
(f) every obligation of such Person under any
Synthetic Lease,
(g) all sales with recourse by such Person of (i)
accounts or general intangibles for money due or to
become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of
money or (iii) 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,
(h) 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,
(i) every obligation, contingent or otherwise, of
such Person guaranteeing, or having the economic effect
of guarantying or otherwise acting as surety for, any
obligation of a type described in any of clauses (a)
through (h) (the "primary obligation") of another
Person (the "primary obligor"), in any manner, whether
directly or indirectly, and including, without
limitation, any such obligation of such Person (i) to
purchase or pay (or advance or supply funds for the
purchase of) any security for the payment of such
primary obligation, (ii) to purchase property,
securities or services for the purpose of assuring the
payment of such primary obligation, or (iii) 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 (w) 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 GAAP, (x) any Capitalized Lease shall be the discounted
aggregate rental obligations under such Capitalized Lease
required to be capitalized on the balance sheet of the
lessee in accordance with GAAP, (y) any sale of receivables
shall be the amount of unrecovered capital or principal
investment of the purchaser (other than the Company or any
of its wholly-owned Subsidiaries) thereof, excluding amounts
representative of yield or interest earned on such
investment, and (z) any Synthetic Lease shall be the
stipulated loss value, termination value or other equivalent
amount.
Infogrames. Infogrames Entertainment S.A., a societ,
anonyme organized under the laws of France.
Installment Amount. See 2.8.
Intercompany Indebtedness. The aggregate amount of all
Indebtedness of any of the Company or any Operating
Subsidiary of the Company to any other of the Company and
its Operating Subsidiaries.
Interest Period. (a) With respect to each Base Rate
Loan comprising the same Borrowing, the period (i)
commencing on the Drawdown Date of such Borrowing, and (ii)
ending thirty (30) days thereafter as determined in
accordance with the provisions of this Agreement;
(b) With respect to each Eurocurrency Rate Loan
comprising the same Borrowing, the period (i) commencing on
the Drawdown Date of such Borrowing, and (ii) ending one
(1), two (2), three (3) or six (6) months thereafter as
determined in accordance with the provisions of this
Agreement; and
(c) With respect to each Competitive Bid Loan
comprising the same Borrowing, the period (i) commencing on
the date of such Borrowing and (ii) ending from seven (7)
through one hundred eighty (180) days thereafter as
determined in accordance with the provisions of this
Agreement.
Interest Rate Agreement. Any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement, interest rate futures contract, interest rate
option agreement or other similar agreement or arrangement
to which the Company and any Bank is a party, designed to
protect the Company against fluctuations in interest rates.
Inventory. With respect to the Company or any of the
Restricted Subsidiaries, finished goods, work in progress
and raw materials and component parts inventory and all
"Inventory" as such term is defined in the Uniform
Commercial Code as in effect in the Commonwealth of
Massachusetts owned by such Person.
Investments. As to any Person, all expenditures made
for the acquisition of stock or Indebtedness of, or for
loans, advances or capital contributions to, any other
Person, in each case to the extent the same would be
recorded as an investment on the balance sheet of the first
Person under GAAP. In determining the aggregate amount of
Investments outstanding at any particular time: (a) 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); (b) there shall not
be deducted in respect of any Investment any amounts
received as earnings on such Investment, whether as
dividends, interest or otherwise; and (c) there shall not be
deducted from the aggregate amount of Investments any
decrease in the value thereof.
Invitation for Competitive Bid Quotes. See 2.5.1(c).
Letter of Credit. See 5.1.1.
Letter of Credit Application. See 5.1.1.
Letter of Credit Fee. See 5.6.
Letter of Credit Participation. See 5.1.4.
Lien. Any mortgage, deed of trust, security interest,
pledge, hypothecation, security assignment, attachment,
deposit arrangement, lien (statutory, judgment or
otherwise), or other security agreement or similar
encumbrance or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other
title retention agreement, any Capitalized Lease, any
Synthetic Lease, any financing lease involving substantially
the same economic effect as any of the foregoing and the
filing of any financing statement evidencing any of the
foregoing under the Uniform Commercial Code or comparable
law of any jurisdiction).
Loan Documents. Collectively, this Agreement, the
Notes, the Letter of Credit Applications, the Letters of
Credit, the Security Documents, the Subordination Agreements
and the Fee Letter.
Loans. Collectively, the Syndicated Loans, the
Competitive Bid Loans and the Swing Line Loan.
Majority Banks. As of any date, the Banks whose
aggregate Commitments constitute more than fifty percent
(50%) of the Total Commitment, provided, that if at the time
Majority Banks is being determined, the Total Commitment has
been terminated, the Majority Banks shall be the Banks
holding more than fifty percent (50%) of the aggregate
outstanding principal amount of the Loans on such date.
Margin. (a) At any time of determination prior to a
Debt Rating Increase, an annual percentage rate equal to (a)
with respect to Base Rate Loans, three-quarters of one
percent (0.75%), and (b) with respect to Eurocurrency Rate
Loans, two and one-quarter percent (2.25%); or
(b) At any time of determination following a Debt
Rating Increase, an annual percentage rate equal to (a) with
respect to Base Rate Loans, one-half of one percent (0.50%),
and (b) with respect to Eurocurrency Rate Loans, two percent
(2.00%).
Material Adverse Effect. With respect to any event or
occurrence of whatever nature (including any adverse
determination in any litigation, arbitration or governmental
investigation or proceeding):
(a) a material adverse effect on the business,
properties, condition, assets, operations or results of
operations of the Hasbro Companies, taken as a whole;
(b) a material adverse effect on the ability of
the Company individually or the Hasbro Companies taken
as a whole, to perform its or their respective
Obligations (as the case may be) under the Loan
Documents; or
(c) any material impairment of (i) the validity,
binding effect or enforceability of this Agreement or
any of the other Loan Documents, (ii) the rights,
remedies or benefits available to the Agent or any Bank
under the Loan Documents or (iii) the attachment,
perfection or priority of any Lien of the Agent on a
material portion of the Collateral under the Security
Documents.
Maximum Availability. The aggregate amount available
for Borrowings and issuances, extensions or renewals of
Letters of Credit under and as defined in this Agreement and
the Credit Line Agreement, which shall be equal to (a) for
the first fiscal quarter of 2001, $300,000,000; (b) for the
second fiscal quarter of 2001, $500,000,000; (c) for the
period from the first day of the third fiscal quarter of
2001 until December 29, 2001, $650,000,000; and (d) from and
after December 30, 2001, $325,000,000.
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.
Moody's. As defined in the definition of "Debt
Rating".
Multiemployer Plan. Any multiemployer plan within the
meaning of 3(37) of ERISA maintained or contributed to by
the Company or any ERISA Affiliate.
Net Cash Sale Proceeds. The net cash proceeds received
by a Person in respect of any Asset Sale, less the sum of
(a) all reasonable out-of-pocket fees, commissions and other
expenses actually incurred in connection with such Asset
Sale, (b) the amount of any transfer, documentary, income or
other taxes required to be paid by the Company or any of its
Subsidiaries in connection with such Asset Sale, (c) the
aggregate amount of any Indebtedness (other than under the
Loan Documents) of the Company or any of its Subsidiaries
permitted by this Agreement that was secured by a Permitted
Lien with respect to the assets transferred and is required
to be repaid in whole or in part (which repayment, in the
case of any other revolving credit arrangement or multiple
advance arrangement, reduces the commitment thereunder) in
connection with such Asset Sale, (d) the amount of such
proceeds attributable to (and payable to) minority
interests, (e) the amount of any reserve reasonably
maintained by the Company or any of its Subsidiaries with
respect to indemnification obligations owing pursuant to the
definitive documentation pursuant to which such Asset Sale
is consummated (with any unused portion of such reserve to
constitute Net Cash Sale Proceeds on the date upon which the
indemnification obligations terminate or such reserve is
reduced other than in connection with a payment), and (f)
appropriate amounts to be provided by the Company or any of
its Subsidiaries to be applied to satisfy any reasonable
expenses and liabilities associated with any such property
or assets and retained by the Company or any such Subsidiary
after such Asset Sale.
Net Cash Equity Issuance Proceeds. With respect to any
Equity Issuance, the excess of the gross cash proceeds
received by such Person for such Equity Issuance after
deduction of all reasonable transaction expenses (including,
without limitation, underwriting discounts and commissions)
actually incurred in connection with such Equity Issuance.
New Loans. See 4.1(e).
Note(s). Singly, any of, and collectively, all of the
Syndicated Notes, the Competitive Bid Notes and the Swing
Line Note.
Notice of Competitive Bid Borrowing. See 2.4.1(f).
Obligations. All indebtedness, obligations and
liabilities to the Banks and the Agent, individually or
collectively, arising or incurred under this Agreement or
any of the other Loan Documents, or in respect of Loans made
and any Notes or other instruments at any time evidencing
any thereof, whether such indebtedness, obligations, and
liabilities exist on the date of this Agreement or arise
thereafter, or are 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 of the Company.
Operating Subsidiary. As at any particular date, any
Subsidiary (other than a Subsidiary engaged solely in the
business of incurring Indebtedness) of the Company actively
engaged in the conduct of business.
Outstanding. With respect to the Loans, the unpaid
principal thereof as of any date of determination.
Participant. See 20.5.
Patent Agreements. Collectively, (a) the Patent
Security Agreement (Registrations), dated as of the
Effective Date, as the same may be amended from time to
time, by and among the Company, the Restricted Subsidiaries
and the Agent, in form and substance reasonably satisfactory
to the Agent, pertaining to U.S. patent registrations, and
(b) the Patent Security Agreement (Applications), dated as
of the Effective Date, as the same may be amended from time
to time, by and among the Company, the Restricted
Subsidiaries and the Agent, in form and substance reasonably
satisfactory to the Agent, pertaining to U.S. patent
applications.
PBGC. The Pension Benefit Guaranty Corporation created
by 4002 of ERISA and any successor entity or entities
having similar responsibilities.
Permitted Acquisition. Any acquisition permitted by
10.5.1(b).
Permitted Liens. Liens permitted by 10.2.
Person. Any individual, corporation, partnership,
trust, unincorporated association, business, or other legal
entity, and any government or any governmental agency or
political subdivision thereof.
RCRA. See 8.23.
Record. The grid attached to a Note, or the
continuation of such grid, or any other similar record,
including computer records, maintained by any Lender with
respect to any Loan referred to in such Note.
Real Estate. All real property owned or leased (as
lessee or sublessee) by any of the Hasbro Companies.
Reemployment Period. See 2.8.
Reemployment Rate. See 2.8.
Reference Banks. Fleet, Bank of America, N.A.,
Citibank, N.A., Mellon Bank, N.A. and Commerzbank A.G., New
York.
Reference Period. As of the end of any fiscal quarter,
the period of four (4) consecutive fiscal quarters of the
Company and its Subsidiaries ending on such date, or if any
date of determination is not a fiscal quarter end date, the
period of four (4) consecutive fiscal quarters most recently
ended (in each case treated as a single accounting period).
Reimbursement Obligation. The Company's obligation to
reimburse the Agent and the Banks on account of any drawing
under any Letter of Credit as provided in 5.2.
Replacement Bank. See 4.1(f).
Replacement Date. See 4.1(f).
Restricted Payment. In relation to the Company and its
Subsidiaries, any (a) Distribution, (b) payment or
prepayment by the Company or its Subsidiaries to the
Company's or any Subsidiary's shareholders (or other equity
holders) in their capacity as such, in each case other than
(i) to the Company or any Subsidiary (or any payment or
prepayment excluded from the definition of the term
"Distribution") and (ii) the acquisition of the Capital
Stock of any Subsidiary of the Company existing on the
Effective Date from any then existing minority holder
thereof, (c) optional repayment, redemption or repurchase of
long term unsecured Indebtedness of the Company existing on
the Effective Date and having a maturity after the Final
Maturity Date, or (d) derivatives or other transactions with
any financial institution, commodities or stock exchange or
clearinghouse (a "Derivatives Counterparty") obligating the
Company or any Subsidiary to make payments to such
Derivatives Counterparty as a result of any change in market
value of any Capital Stock of the Company or such
Subsidiary.
Restricted Subsidiaries. Collectively, (a) Wizards of
the Coast, Inc., a Washington corporation, (b) OddzOn, Inc.,
a Delaware corporation, and (c) material Domestic
Subsidiaries (i) created or acquired by the Company
following the Effective Date and (ii) designated as
Restricted Subsidiaries by the Company or the Agent in a
written notice (it being understood that any Restricted
Subsidiary which merges with and into the Company such that
the Company is the survivor shall no longer constitute a
Restricted Subsidiary following such merger).
SARA. See 8.23.
Secured Obligations. Collectively, (a) the
Obligations, (b) the "Obligations" under and as defined in
the Credit Line Agreement, (c) other Indebtedness of the
Company consisting of guaranties of Indebtedness of Foreign
Subsidiaries owing to any Bank or Bank Affiliate under the
Foreign Scheduled Facilities, (d) Indebtedness of the
Company under and pursuant to Letter of Credit No. 003146-
793, dated September 27, 2000, in the original stated amount
of $2,199,866, as the same may be amended from time to time,
issued by SanPaolo IMI S.P.A. for the account of the
Company, and (e) obligations of the Company or its
Subsidiaries to the Banks and the Agent (individually or
collectively) arising under Interest Rate Agreements and
Hedging Agreements, in each case as defined in this
Agreement and the Credit Line Agreement.
Security Agreements. Collectively, the Company
Security Agreement and the Subsidiary Security Agreement.
Security Documents. The Guaranty, the Security
Agreements, the Company Stock Pledge Agreement, the
Trademark Agreement, the Patent Agreements, the Copyright
Memorandum and all other instruments and documents,
including without limitation Uniform Commercial Code
financing statements, required to be executed or delivered
pursuant to any Security Document.
Significant Subsidiary. (a) Any Subsidiary of the
Company, organized under the laws of the United States or
any State of the United States or the District of Columbia,
which, either alone or together with the Subsidiaries of
such Subsidiary, meets either of the following conditions:
(i) the investments of the Company and its
Subsidiaries in, or their proportionate share (based on
their equity interests) of the book value of the total
assets (after intercompany eliminations) of, the
Subsidiary in question exceed 10% of the book value of
the total assets of the Company and its Subsidiaries on
a consolidated basis, or
(ii) the equity of the Company and its
Subsidiaries in the revenues of the Subsidiary in
question exceeds 10% of the revenues from continuing
operations of the Company and its Subsidiaries on a
consolidated basis for the Company's most recent fiscal
year; or
(b) Any other Subsidiary of the Company designated as
a "Significant Subsidiary" by the Company in a written
notice to the Agent.
Specified Sale. The sale of the Company's interactive
and on-line businesses to Infogrames, and any disposition of
the Capital Stock of Infogrames by the Company acquired in
connection with such sale.
Standard & Poor's. As defined in the definition of
"Debt Rating".
Subordinated Debt. Unsecured Indebtedness of the
Company or any of its Subsidiaries that is expressly
subordinated and made junior to the payment and performance
in full of the Obligations (other than pursuant to the
Subordination Agreements), and evidenced as such by a
written instrument containing subordination provisions in
form and substance reasonably satisfactory to the Majority
Banks..
Subordination Agreement. The amended and restated
subordination agreement among the Company, the Significant
Subsidiaries and the Agent, substantially in the form of
Exhibit F hereto; and "Subordination Agreements" means the
Subordination Agreement and any additional subordination
agreements executed and delivered to the Agent for the
benefit of the Banks pursuant to 9.14 hereof.
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.
Subsidiary Security Agreement. The Amended and
Restated Security Agreement, dated as of the Effective Date,
as the same may be amended from time to time, among the
Restricted Subsidiaries and the Agent, in form and substance
reasonably satisfactory to the Agent.
Swing Line Bank. Fleet.
Swing Line Loan. Any loan made by the Swing Line Bank
pursuant to 3.1 hereof.
Swing Line Loan Maturity Date. See 3.2.
Swing Line Loan Request. See 3.2.
Swing Line Note. See 3.5.
Swing Line Note Record. A Record with respect to a
Swing Line Note.
Syndicated Loan(s). Singly, any of, and collectively,
all of, the revolving credit loans made by the Banks in
accordance with their respective Commitment Percentages to
the Company as contemplated by 2.1 hereof.
Syndicated Note(s). See 2.6.
Syndicated Note Record. A Record with respect to a
Syndicated Note.
Synthetic Lease. Any lease of goods or other property,
whether real or personal, which is treated as an operating
lease under GAAP and as a loan or financing for U.S. income
tax purposes.
Total Commitment. The sum of the Commitments of the
Banks, as in effect from time to time, which as of the
Effective Date shall be equal to the aggregate principal
amount of $325,000,000.
Trademark Agreement. The Trademark Security Agreement,
dated as of the Effective Date, as the same may be amended
from time to time, by and among the Company, the Restricted
Subsidiaries and the Agent, in form and substance reasonably
satisfactory to the Agent.
Type. As to any Syndicated Loan, its nature as a Base
Rate Loan or a Eurocurrency Rate Loan.
Unpaid Reimbursement Obligation. Any Reimbursement
Obligation for which the Company does not reimburse the
Agent and the Banks on the date specified in, and in
accordance with, 5.2.
Utilization. An amount equal to the sum of (i) the
outstanding amount of all Loans (after giving effect to all
amounts requested), (ii) the Maximum Drawing Amount, (iii)
all Unpaid Reimbursement Obligations and (iv) the amount by
which the Foreign Sublimit exceeds the outstanding amount of
Loans borrowed to satisfy the Company's obligations under
guaranties of the Foreign Scheduled Facilities.
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
(unless the happening of any such contingency is not within
the control of the Company).
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
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 GAAP 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 GAAP, 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 "" refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and
words of like import shall refer to this Agreement as a
whole and not to any particular section or subdivision
of this 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 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 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
Company and are the product of discussions and
negotiations among all parties. Accordingly, this
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 SYNDICATED AND COMPETITIVE BID LOAN FACILITY.
2.1. Commitment to Lend Syndicated Loans.
(a) Subject to the terms and conditions set forth in
this Agreement, each of the Banks severally agrees to lend
to the Company and the Company may borrow, repay, and
reborrow from time to time between the Effective Date and
the Final Maturity Date upon notice by the Company to the
Agent given in accordance with 2.4 hereof, such sums, in
Dollars, as requested by the Company ("Syndicated Loans") up
to a maximum aggregate amount outstanding (after giving
effect to all amounts requested) at any one time equal to
such Bank's Commitment (as such Commitment has been deemed
to be reduced by such Bank's Commitment Percentage of
outstanding Competitive Bid Loans) minus such Bank's
Commitment Percentage of the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations, provided
that the Utilization shall not at any time exceed the lesser
of (i) the Total Commitment and (ii) an amount equal to (A)
the Maximum Availability minus (B) the Utilization under and
as defined in the Credit Line Agreement at such time. The
Syndicated Loans shall be made pro rata in accordance with
each Bank's Commitment Percentage. Each request for
Syndicated Loans hereunder shall constitute a representation
by the Company that the conditions set forth in 12 and 13,
in the case of the initial Syndicated Loans to be converted
into Syndicated Loans hereunder on the Effective Date, and
13, in the case of all other Syndicated Loans, have been
satisfied on the date of such request. Each Base Rate Loan
and Eurocurrency Rate Loan shall mature and become due and
payable on the last day of the Interest Period relating
thereto and shall be payable in the currency in which such
Loan was made. Each Base Rate Loan shall be denominated in
Dollars. Each Eurocurrency Rate Loan shall be denominated
in Dollars.
(b) After any prepayment and at maturity of the
Syndicated Loans pursuant to 2.1(a) above, the Company
shall be entitled to reborrow any or all of the principal
amount of such Syndicated Loan, subject to all of the
conditions precedent set forth in 13. Each Bank's
Commitment shall terminate, all Syndicated Loans shall
become finally due and payable and the Company promises to
pay on the Final Maturity Date all Syndicated Loans
outstanding on the Final Maturity Date.
(c) The respective amount of each Bank's Commitment
and its Commitment Percentage shall be as set forth on
Schedule 1 hereto, subject to reduction in accordance with
2.3 and 2.11.
(d) Each Bank represents and warrants that it will use
its best efforts to ensure that the funding of its Loans is
not made directly out of the assets of any "employee benefit
plan" or of any "separate account" in which any "employee
benefit plan" has any interest other than a "government
plan" (each such term being used herein as defined in
Section 3 of ERISA).
2.2. Commitment Fee.
The Company agrees to pay to the Agent for the pro rata
accounts of the Banks in accordance with their respective
Commitment Percentages a commitment fee (the "Commitment
Fee") calculated at the rate of three-eighths percent (3/8%)
per annum on the average daily amount during each calendar
quarter or portion thereof from the Effective Date to the
Final Maturity Date by which (a) (i) the lesser of (A) the
Total Commitment and (B) an amount equal to (x) the Maximum
Availability minus (y) the Utilization under and as defined
in the Credit Line Agreement minus (ii) the sum of (A) the
Maximum Drawing Amount and (B) all Unpaid Reimbursement
Obligations exceeds (b) the outstanding amount of Syndicated
Loans during such calendar quarter. The Commitment Fee
shall be payable quarterly in arrears on the first day of
each calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the
Effective Date, with a final payment on the Final Maturity
Date or any earlier date on which the Commitments shall
terminate.
2.3. Reduction of Total Commitment.
The Company shall have the right at any time and from
time to time upon five (5) Business Days written notice to
the Agent to reduce by $10,000,000 or an integral multiple
thereof or terminate entirely the unborrowed portion of 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 Company delivered pursuant
to this 2.3, the Agent will notify the Banks of the
substance thereof. Upon the effective date of any such
reduction or termination, the Company shall pay to the Agent
for the respective accounts of the Banks the full amount of
the Commitment Fee then accrued on the amount of the
reduction. No reduction of the Commitments of the Banks may
be reinstated unless otherwise agreed to by the Company and
each of the Banks. Nothing contained in this 2.3 shall
obligate any Bank in any way whatsoever to reinstate all or
any part of its Commitment after a reduction of such
Commitment hereunder. If at any time the outstanding amount
of the Loans exceeds the Total Commitment as a result of any
reduction of the Total Commitment pursuant to this 2.3,
then the Company shall immediately pay the amount of such
excess to the Agent for the respective account of the Banks
for application to the Loans. Each payment of Loans shall
be allocated among the Banks, in proportion, as nearly as
practicable to the respective unpaid principal amount of
each Bank's Syndicated Note or Competitive Bid Note, as
applicable, with adjustments to the extent practicable to
equalize any prior payments or repayments not exactly in
proportion. In addition, the Total Commitment shall be
reduced in accordance with 2.11.
2.4. Requests for Syndicated Loans.
(a) The Company shall give to the Agent written notice
in the form of Exhibit A-2 hereto (or telephonic notice
confirmed in a writing in the form of Exhibit A-2 hereto) of
each Syndicated Loan requested hereunder (a "Loan Request")
not later than (a) with respect to Base Rate Loans, 12 noon
(Boston time) on the proposed Drawdown Date of such Base
Rate Loan and (b) with respect to Eurocurrency Rate Loans,
1:00 P.M. (Boston time) on the third Business Day prior to
the proposed Drawdown Date of such Eurocurrency Rate Loan.
The Agent shall promptly notify the Banks of the contents of
each such notice at the address or addresses for each Bank
set forth on Schedule 1 hereof.
(b) Each such notice delivered by the Company shall
specify (i) the aggregate principal amount of Syndicated
Loans requested, stated in Dollars, (ii) the Type of
Syndicated Loan requested, (iii) the proposed Drawdown Date
and duration of the proposed Interest Period(s) applicable
to any Base Rate Loans, or Eurocurrency Rate Loans and (iv)
the Company's account to which payment of the proceeds of
such Syndicated Loan is to be made. Each such notice (which
shall be irrevocable) shall obligate the Company to accept
the Syndicated Loans requested from the Banks on the
proposed Drawdown Date therefor.
(c) Each request for Types of Syndicated Loans made
hereunder shall be in a minimum aggregate amount of
$5,000,000 or a greater integral multiple of $1,000,000.
(d) Any Syndicated Loans requested by the Company
pursuant to this 2.4 shall be made available to the Company
in accordance with the provisions of 2.9 hereof.
2.5. Competitive Bid Loans.
2.5.1. Competitive Bid Borrowings.
(a) The Competitive Bid Option. In addition to
the Syndicated Loans permitted to be made hereunder
pursuant to 2.1 hereof, the Company may, pursuant to
the terms of this 2.5, cause the Agent to request the
Banks to make offers to fund Competitive Bid Loans to
the Company from time to time prior to the Final
Maturity Date. The Banks may, but shall have no
obligation to, make such offers and the Company may,
but shall have no obligation to, accept such offers in
the manner set forth in this 2.5. Notwithstanding any
other provision herein to the contrary, at no time
shall the Utilization exceed the lesser of (i) the
Total Commitment and (ii) an amount equal to (A) the
Maximum Availability minus (B) the Utilization under
and as defined in the Credit Line Agreement at such
time;
(b) Competitive Bid Quote Request. When the
Company wishes to request offers to make Competitive
Bid Loans under this 2.5, it shall transmit to the
Agent by telephone, telex, cable or facsimile (in each
case confirmed in writing by the Company) a Competitive
Bid Quote Request substantially in the form of Exhibit
B-2 hereto (a "Competitive Bid Quote Request") so as to
be received no later than 11:00 a.m. (Boston time) on
the first Business Day prior to the requested Drawdown
Date, specifying (i) the requested Drawdown Date (which
must be a Business Day) and 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 the lesser of (A) the
Total Commitment and (B) the Maximum Availability in
effect from time to time during the Interest Period of
such Competitive Bid Loan), and (ii) the Interest
Period of such Competitive Bid Loan, subject to the
provisions of the definition of Interest Period, and be
accompanied by a Competitive Bid fee of $750 payable to
the Agent with respect to each Competitive Bid Quote
Request. The Company may request offers to make
Competitive Bid Loans for no more than one (1) amount
and three (3) Interest Periods in a single Competitive
Bid Quote Request. No new Competitive Bid Quote
Request shall be given until the Company has notified
the Agent of its acceptance or non-acceptance of the
Competitive Bid Quotes relating to any outstanding
Competitive Bid Quote Request.
(c) Invitation for Competitive Bid Quotes.
Subsequent to timely receipt of a Competitive Bid Quote
Request, the Agent shall send to the Banks by facsimile
an Invitation for Competitive Bid Quotes as promptly as
possible but not later than 3:00 p.m. (Boston time) on
the first Business Day prior to the requested Drawdown
Date, substantially in the form of Exhibit B-3 hereto
(an "Invitation for Competitive Bid Quotes"), which
shall constitute an invitation by the Company 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 2.5.
If, after receipt by the Agent of a Competitive Bid
Quote Request from the Company in accordance with
subsection (b) of this 2.5.1, the Agent or any Bank
shall be unable to complete any procedure of the
auction process described in subsections (d) through
(f) (inclusive) of this 2.5.1 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.
(d) Submission and Contents of Competitive Bid
Quotes.
(i) Each Bank may, but shall be under no
obligation to, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid
Loans to the Company in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote
must comply with the requirements of this subsection
(d) and must be submitted to the Agent by facsimile 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 Company of the terms of its
Competitive Bid Quote no later than 9:45 a.m. (Boston
time) on the requested Drawdown Date. Subject to the
provisions of 12 and 13 hereof, any Competitive Bid
Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions
of the Company.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit B-4 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 (w) may be greater than the
Commitment of the quoting Bank but may not exceed
the lesser of (A) the Total Commitment and (B) the
Maximum Availability in effect from time to time
during the Interest Period of such Competitive Bid
Loan, (x) must be $5,000,000 or a larger multiple
of $1,000,000, (y) may not exceed the aggregate
principal amount of Competitive Bid Loans for
which offers were requested, and (z) may be
subject to an aggregate limitation as to the
principal amount of Competitive Bid Loans for
which offers being made by such quoting Bank may
be accepted;
(C) the 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.
A Competitive Bid Quote may include up to five (5)
separate offers by the quoting Bank with respect to
each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(iii) Any Competitive Bid Quote shall be
disregarded if it:
(A) is not substantially in the form of
Exhibit B-4 hereto or does not specify all of the
information required by subsection (d)(ii);
(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 described in
subsection (d)(ii)(B));
(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 (d)(i).
(e) Notice to Company. Not later than 10:15 a.m.
(Boston time) on the requested Drawdown Date, the Agent
shall notify the Company of the terms of (i) all
Competitive Bid Quotes submitted by the Banks in
accordance with the preceding subsection (d) and (ii)
of any Competitive Bid Quote that amends, modifies or
is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Bank with respect to the
same Competitive Bid Quote Request. Any such
subsequent Competitive Bid Quote shall be disregarded
by the Agent unless such subsequent Competitive Bid
Quote is submitted solely to correct a manifest error
in such former Competitive Bid Quote. The Agent's
notice to the Company shall specify (A) 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,
(B) the respective principal amounts and Competitive
Bid Rates so offered, and the identity of the
respective Banks submitting such offers, and (C) if
applicable, limitations on the aggregate principal
amount of Competitive Bid Loans for which offers in any
single Competitive Bid Quote may be accepted.
(f) Acceptance and Notice by Company and Agent.
Not later than 10:45 a.m. (Boston time) on the
requested Drawdown Date, the Company shall notify the
Agent of the Company's acceptance or non-acceptance of
the offers of which it was notified pursuant to the
preceding subsection (e) in a notice, transmitted to
the Agent by telephone, telex, cable or facsimile (in
each case confirmed in writing by the Company), in
substantially the form of Exhibit B-5 hereto (a "Notice
of Competitive Bid Borrowing"). Such notice shall
specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Company
may accept any Competitive Bid Quote in whole or in
part; provided that:
(i) the aggregate principal amount of each
Competitive Bid Loan may not exceed the applicable
amount set forth in the related Competitive Bid
Quote Request,
(ii) the aggregate principal amount of each
Competitive Bid Loan must be $5,000,000 or a
larger multiple of $1,000,000,
(iii) acceptance of offers may only be
made on the basis of ascending Competitive Bid
Rates, and
(iv) no offer may be accepted that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
The Agent shall promptly notify each Bank which
submitted a Competitive Bid Quote of the acceptance or
non-acceptance thereof. The Agent will promptly notify
each Bank which submitted a Competitive Bid Quote and
each other Bank which so requests the following
information from the Agent of (a) the aggregate
principal amount of, and (b) the range of Competitive
Bid Rates of the accepted Competitive Bid Loans for
each requested Interest Period.
(g) Allocation by Agent; Usage of Commitments.
If offers are made by two (2) 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 (g), 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.
(h) 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
12 and 13 hereof are satisfied, the Bank or Banks
whose offers the Company has accepted will fund each
Competitive Bid Loan so accepted. Such Bank or Banks
will make such Competitive Bid Loans, by crediting the
Agent for further credit to the Company's specified
account, in immediately available funds not later than
1:00 p.m. (Boston time) on such Drawdown Date.
2.5.2. Repayment of Competitive Bid Loans.
The principal of each Competitive Bid Loan shall
become absolutely due and payable by the Company on the
last day of the Interest Period relating thereto, and
the Company hereby absolutely and unconditionally
promises to pay to the Agent for the account 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. The Competitive Bid
Loans shall bear interest at the rate per annum
specified in the applicable Competitive Bid Quotes.
Interest on each Competitive Bid Loan shall be payable
(a) on the last day of the applicable Interest Period,
and if any such Interest Period is longer than ninety
(90) days, also on the last day of each ninety (90) day
period following the commencement of such Interest
Period, and (b) on the Final Maturity Date for each
Competitive Bid Loan. Subject to the terms of this
Agreement, the Company may make Competitive Bid Quote
Requests with respect to new Borrowings of any amounts
so repaid prior to the Final Maturity Date. Except
after an acceleration pursuant to 14.1 hereof, no
principal amount with respect to any Competitive Bid
Loan may be repaid other than on the last day of the
Interest Period relating thereto unless otherwise
agreed to in writing by the Company and the funding
Bank.
2.6. The Notes.
(a) The Syndicated Loans shall be evidenced by
separate promissory notes of the Company in substantially
the form of Exhibit A-1 hereto (the "Syndicated Notes"),
dated as of the date hereof (or such other date as a Bank
may become a party hereto pursuant to 20) with appropriate
insertions; one Syndicated Note being payable to the order
of each Bank in a principal amount equal to such Bank's
Commitment and representing the obligation of the Company to
pay to such Bank the amount of the Commitment or, if less,
the aggregate unpaid principal amount of all Syndicated
Loans made by such Bank hereunder, plus interest accrued
thereon as set forth below. The Company hereby irrevocably
authorizes each Bank to make or cause to be made, at or
about the time of each Syndicated Loan to the Company made
by such Bank, an appropriate notation on such Bank's
Syndicated Note Record reflecting the unpaid principal
amount of all Syndicated Loans made by such Bank, and such
Bank shall make or cause to be made, at or about the time of
receipt of any payment of principal on the Syndicated Note
of such Bank, an appropriate notation on such Syndicated
Note Record reflecting such payment. The aggregate unpaid
amount of Syndicated Loans made by such Bank set forth on
such Bank's Syndicated Note Record shall be rebuttably
presumptive 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
Syndicated Note Record shall not limit or otherwise affect
the obligations of the Company hereunder or under the
Syndicated Note to make payments of principal of or interest
on the Syndicated Note when due.
(b) Competitive Bid Notes. The Competitive Bid Loans
shall be evidenced by separate promissory notes of the
Company in substantially the form of Exhibit B-1 hereto (the
"Competitive Bid Notes"), dated as of the date hereof (or
such other date as a Bank may become a party hereto pursuant
to 20 hereof) with appropriate insertions; one Competitive
Bid Note being payable to the order of each Bank in a
principal amount equal to the Total Commitment and
representing the obligation of the Company to pay to such
Bank the aggregate unpaid principal amount of all
Competitive Bid Loans made by such Bank hereunder, as set
forth in 2.5 hereof, plus interest accrued thereon as set
forth below. The Company hereby irrevocably authorizes each
Bank to make or cause to be made, at or about the time of
each Competitive Bid Loan to the Company made by such Bank,
an appropriate notation on the Competitive Bid Note Record
of such Bank reflecting the unpaid principal amount of all
Competitive Bid Loans made by such Bank, and such Bank shall
make or cause to be made, at or about the time of receipt of
any payment of principal on the Competitive Bid Note of such
Bank, an appropriate notation on the Competitive Bid Note
Record reflecting such payment. The aggregate unpaid amount
of Competitive Bid Loans made by such Bank set forth on the
Competitive Bid Note Record shall be rebuttably presumptive
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 Competitive Bid Note
Record shall not limit or otherwise affect the obligations
of the Company hereunder or under the Competitive Bid Note
to make payments of principal of or interest on the
Competitive Bid Note when due.
2.7. Interest on Loans.
(a) Except as provided in 4.3 hereof, Base Rate Loans
outstanding from time to time shall bear interest during the
Interest Period relating thereto at the annual percentage
rate equal to the sum of (i) the Base Rate in effect from
time to time and (ii) the applicable Margin in effect during
such Interest Period. Interest on Base Rate Loans shall be
payable in Dollars and in accordance with 4.1(a) hereof.
(b) Except as provided in 4.3 hereof, Eurocurrency
Rate Loans shall bear interest during the Interest Period
relating thereto at the annual percentage rate equal to the
sum of (i) the Eurocurrency Rate and (ii) the applicable
Margin in effect during such Interest Period. Interest on
the Eurocurrency Rate Loans shall be payable in Dollars and
in accordance with 4.1(a) hereof.
(c) Except as provided in 4.3 hereof, each
Competitive Bid Loan shall bear interest at the rate per
annum specified in the applicable Competitive Bid Quote with
respect to such Competitive Bid Loan. Interest on
Competitive Bid Loans shall be payable in Dollars and in
accordance with 4.1(a) hereof.
2.8. Prepayments.
The Company shall repay Base Rate Loans or Eurocurrency
Rate Loans made to the Company hereunder on the last day of
the Interest Period relating thereto. As provided in
2.5.2, the Company shall repay Competitive Bid Loans made
to the Company hereunder on the last day of the Interest
Period relating thereto. The Company shall also have the
right at any time to prepay Syndicated Loans consisting of
Base Rate Loans, as a whole or in part, without premium or
penalty; provided that the Company shall provide written,
telegraphic or telephonic notice to the Agent not later than
11:00 a.m. (Boston time) on the proposed date of prepayment
stating the aggregate principal amount of such prepayment.
Each partial prepayment of any Syndicated Loan pursuant to
this 2.8 shall be in a minimum aggregate principal amount
of $5,000,000 or some greater integral multiple of
$1,000,000, or, if less, the aggregate outstanding principal
amount of the Syndicated Loans. Subject to the conditions
of 2.1 hereof, amounts so prepaid may be reborrowed. In
addition, the Company may, upon three (3) Business Days'
written, telegraphic or telephonic notice to the Agent
stating the proposed date and the aggregate principal amount
of such prepayments, prepay all, but not less than all, of
the Syndicated Loans constituting Eurocurrency Rate Loans
subject to a particular Interest Period on a date other than
the last day of the Interest Period relating thereto;
provided, that upon any such prepayment, and except as set
forth in 4.1(f) hereof, the Company shall pay to the Agent,
for the respective accounts of the Banks on a pro rata
basis, a sum which shall be determined by the Agent (to the
extent that the Agent is able to make such determination),
which determination shall be conclusive in the absence of
manifest error, in the following manner after each such
payment:
(a) First, the Agent shall determine the amount
(if any) (the "Installment Amount") by which (i) the
total amount of interest which would have otherwise
accrued hereunder on each installment of principal so
prepaid during the period beginning on the date of such
payment and ending on the last day of the Interest
Period relating thereto (the "Reemployment Period")
exceeds (ii) the total amount of interest which would
accrue, during the Reemployment Period, at the annual
rate of interest determined by the Agent (the
"Reemployment Rate") as being the prevailing rate per
annum bid at or about the time of such payment for the
purchase of deposits of Dollars from prime banks in the
Eurocurrency Interbank Market selected by the Agent in
its sole discretion (such Reemployment Rate to be the
rate payable on an amount equal (as nearly as may be)
to the Eurocurrency Rate Loans so prepaid and to have a
maturity (as nearly as may be) equal to the
Reemployment Period);
(b) Second, each Installment Amount shall be
treated as payable on the last day of the Interest
Period relating to the Eurocurrency Rate Loans prepaid.
(c) Third, the amount to be paid shall be the
present value of the Installment Amount determined by
discounting the amount thereof from the date on which
the Installment Amount is to be treated as payable, at
the same annual interest rate as the Reemployment Rate
designated as aforesaid by the Agent.
Each prepayment made pursuant to this 2.8 shall be
accompanied by the payment of accrued interest on the
principal prepaid to the date of prepayment.
2.9. Funds for Loans.
(a) Each Bank will, upon receiving notice from the
Agent of any request by the Company for Syndicated Loans
pursuant to 2.4, become and be obligated to make available
to the Agent, on the proposed Drawdown Date of each
Syndicated Loan, not later than (a) 2:30 P.M. (Boston time)
for Base Rate Loans with respect to which the Agent sent
notice to the Banks pursuant to 2.4 hereof no earlier than
the proposed Drawdown Date of such Loan, and (b) 11:00 A.M.
(Boston time) with respect to Eurocurrency Rate Loans and
all other Base Rate Loans, in funds immediately available
for credit to the Company's account, an aggregate amount,
equal to such Bank's Commitment Percentage of the Syndicated
Loan requested at the place specified in the notice
delivered by the Company pursuant to 2.4. Upon
satisfaction of the conditions set forth in 12 and 13, as
applicable, the Agent will cause the aggregate amount of
such funds actually received by the Agent from the Banks to
be credited to the Company's account as soon as practicable
on the date of such receipt. The failure or refusal of any
Bank to make available to the Agent at the aforesaid time on
any Drawdown Date the amount of the Syndicated Loan to be
made by such Bank thereon shall not relieve the other Banks
from their several obligations hereunder to make their
respective Commitment Percentages of any requested
Syndicated Loans.
(b) 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
(or in the case of Competitive Bid Loans, the amount of such
Bank's accepted offers of Competitive Bid Loans, if any) 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 Company 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 Loans (or accepted offers of
Competitive Bid Loans, as applicable), 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 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 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 Company on
demand, with interest thereon at the rate per annum
applicable to the Loans made on such Drawdown Date.
2.10. Mandatory Repayments.
(a) Promptly, but in no event later than the earlier
of (a) the end of the next Interest Period and (b) seven (7)
days after such receipt, following receipt by any of the
Hasbro Companies of:
(i) Net Cash Sale Proceeds from Asset Sales (other
than the sale, lease, license or other disposition of
assets in the ordinary course of business consistent
with past practices);
(ii) Net Cash Equity Issuance Proceeds from Equity
Issuances by any of the Hasbro Companies;
(iii) net cash proceeds received by (A) the
Company in connection with its issuance of any
Indebtedness (other than purchase money Indebtedness,
issuances of commercial paper or Indebtedness under any
Loan Document or any "Loan Document" as defined in the
Credit Line Agreement) or (B) any Operating Subsidiary
of the Company in connection with its issuance of any
Indebtedness permitted by 10.1(c);
(iv) net cash proceeds of income tax refunds
received by any of the Hasbro Companies relating to any
year beginning on or after January 1, 2001; and
(v) net cash proceeds received from Casualty
Events by any of the Hasbro Companies which have not
been committed (as evidenced by a binding written
contract) by such Person prior to or within one hundred
eighty (180) days of receipt of such proceeds to the
repair or replacement of the property so damaged,
destroyed or taken, or, if so committed, such repair or
replacement of the property so damaged, destroyed or
taken shall have not commenced prior to or within one
hundred eighty (180) days of receipt of such proceeds
pursuant to such binding written contract;
the Company shall pay to the Agent for the respective
accounts of the Banks an amount equal to (A) one hundred
percent (100%) of such net cash proceeds or (B) if less, (x)
the then outstanding principal amount of the Loans and the
Unpaid Reimbursement Obligations and the then outstanding
principal amount of the "Loans" under and as defined in the
Credit Line Agreement and (y) if an Event of Default has
occurred and is continuing, the Maximum Drawing Amount of
Letters of Credit then outstanding to be held by the Agent
as cash collateral to secure all Reimbursement Obligations,
to be applied in the manner set forth in 2.11.
Notwithstanding the foregoing, no such payment shall be
required unless and only to the extent that such Asset
Sales, Equity Issuances, issuances of Indebtedness or
Casualty Events result in net cash proceeds that otherwise
would be required to be so applied equal to (x) $5,000,000
or more in any period of thirty (30) consecutive days or (y)
$15,000,000 in any fiscal year of the Company.
(b) If at any time the Utilization exceeds the lesser
of (i) the Total Commitment and (ii) an amount equal to (A)
the Maximum Availability minus (B) the Utilization under and
as defined in the Credit Line Agreement at such time, then
the Company shall immediately pay the amount of such excess
to the Agent for the respective account of the Banks to be
applied in the manner set forth in 2.11.
(c) If at any time the outstanding amount of the Loans
borrowed to satisfy the Company's obligations under
guaranties of the Foreign Scheduled Facilities exceeds the
Foreign Sublimit, then the Company shall immediately pay the
amount of such excess to the Agent for the respective
account of the Banks to be applied in the manner set forth
in 2.11.
2.11. Application of Payments; Commitment
Reduction.
All payments made pursuant to 2.10 shall be applied to
reduce the outstanding principal amount of the Loans and
Unpaid Reimbursement Obligations and the outstanding
principal amount of the "Loans" under and as defined in the
Credit Line Agreement by such amount pro rata based on the
then outstanding principal amount of the Loans and Unpaid
Reimbursement Obligations and the then outstanding principal
amount of "Loans" under and as defined in the Credit Line
Agreement. Such mandatory repayments shall be allocated
among the Banks in proportion, as nearly as practicable, to
the respective outstanding amounts of each Bank's Note, with
adjustments to the extent practicable to equalize any prior
prepayments not exactly in proportion. Amounts repaid
pursuant to 2.10 may be reborrowed. After all "Loans" and
"Notes" outstanding under and as defined in the Credit Line
Agreement are repaid in full, and no "Bank" has any
obligation to make any such "Loan" and the "Total
Commitment" under and in each case as defined in the Credit
Line Agreement has been permanently reduced to zero, the
Total Commitment shall be reduced by an amount equal to (a)
one hundred percent (100%) of Net Cash Sale Proceeds from
Asset Sales (other than a Specified Sale and other than the
sale, lease, license or other disposition of assets in the
ordinary course of business consistent with past practices)
in excess of $30,000,000 in any fiscal year, (b) one hundred
percent (100%) of net cash proceeds received by the Company
in connection with the issuance of Subordinated Debt or
other long term unsecured Indebtedness having a maturity
after the Final Maturity Date (other than purchase money
Indebtedness) and (c) one hundred percent (100%) of net cash
proceeds received by any Operating Subsidiary of the Company
in connection with the issuance of Indebtedness pursuant to
10.1(c). No reduction of the Total Commitment made
pursuant to this 2.11 may be reinstated.
3. THE SWING LINE.
3.1. The Swing Line Loans.
Subject to the terms and conditions hereinafter set
forth, upon notice by the Company made to the Swing Line
Bank in accordance with 3.2 hereof, the Swing Line Bank
agrees to lend to the Company Swing Line Loans on any
Business Day prior to the Final Maturity Date in an
aggregate principal amount not to exceed $25,000,000 (the
"Maximum Swing Line Loan Amount"). Each Swing Line Loan
shall be in a minimum amount equal to $1,000,000 or an
integral multiple thereof. Notwithstanding any other
provisions of this Agreement and in addition to the limit
set forth above, at no time shall the Utilization exceed the
lesser of (i) the Total Commitment and (ii) an amount equal
to (A) the Maximum Availability minus (B) the Utilization
under and as defined in the Credit Line Agreement at such
time; provided, however, subject to the limitations set
forth in this 3.1 from time to time the sum of the
aggregate outstanding Swing Line Loans plus all outstanding
Syndicated Loans made by the Swing Line Bank may exceed the
Swing Line Bank's Commitment Percentage of the Total
Commitment then in effect.
3.2. Notice of Borrowing.
When the Company desires the Swing Line Bank to make a
Swing Line Loan, the Company shall send to the Agent and the
Swing Line Bank 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 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 Loan Request shall
set forth the principal amount of the proposed Swing Line
Loan and the date on which the proposed Swing Line Loan
would mature (the "Swing Line Loan Maturity Date") which
shall in no event be later than the Final Maturity Date.
Each Swing Line Loan Request shall be irrevocable and
binding on the Company and shall obligate the Company to
borrow the Swing Line Loan from the Swing Line Bank on the
proposed Drawdown Date thereof. Upon satisfaction of the
applicable conditions set forth in this Agreement, on the
proposed Drawdown Date the Swing Line Bank shall make the
Swing Line Loan available to the Company 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(s) of the Company specified in the Swing Line Loan
Request; provided that the Swing Line Bank 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 Agreement. The Swing
Line Bank shall not be obligated to make any Swing Line
Loans at any time when any Bank is a Delinquent Bank unless
the Swing Line Bank has entered into arrangements reasonably
satisfactory to it to eliminate the Swing Line Bank's risk
with respect to such Delinquent Bank, which may include cash
collateralizing such Delinquent Bank's Commitment Percentage
of the outstanding Swing Line Loans and any such additional
Swing Line Loans to be made.
3.3. Interest on Swing Line Loans.
Each Swing Line Loan shall be a Base Rate Loan and,
except as otherwise provided in 4.3 hereof, shall bear
interest from the Drawdown Date thereof until repaid in full
at the rate per annum equal to the Base Rate plus the Margin
with respect to Base Rate Loans, which shall be paid on each
Interest Payment Date for Base Rate Loans.
3.4. Repayment of Swing Line Loans.
The Company shall repay each outstanding Swing Line
Loan on or prior to the Swing Line Loan Maturity Date. Upon
notice by the Swing Line Bank on any Business Day, each of
the Banks hereby agrees to make Syndicated Loans
constituting Base Rate Loans to the Company having
outstanding Swing Line 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 to the Company. The
proceeds thereof shall be applied directly to the Swing Line
Bank to repay the Swing Line Bank for such outstanding Swing
Line Loans. Each Bank hereby absolutely, unconditionally
and irrevocably agrees to make such Syndicated Loans upon
one (1) Business Day's notice as set forth above,
notwithstanding (a) that the amount of such Syndicated Loan
may not comply with the applicable minimums set forth
herein, (b) the failure of the Company to meet the
conditions set forth in 12 or 13 hereof, (c) the
occurrence or continuance of a Default or an Event of
Default hereunder, (d) the date of such Syndicated Loan, and
(e) the Total Commitment and Maximum Availability 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 Company on or after such date and prior to
such purchase) from the Swing Line Bank, and the Swing Line
Bank 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 Bank
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 the Swing Line Bank an amount equal to such
Bank's participation in the Swing Line Loans; provided that
(x) all interest payable on the Swing Line Loans shall be
for the account of the Swing Line Bank 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 the Swing Line Bank interest on the
principal amount of the participation so purchased for each
day from and including the date such Syndicated Loan would
otherwise have been made until the date of payment for such
participation at the rate of interest in effect applicable
to Base Rate Loans during such period.
3.5. The Swing Line Note.
The obligation of the Company 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 Company with appropriate insertions
substantially in the form of Exhibit D attached hereto (the
"Swing Line Note"), dated the Effective Date and payable to
the order of the Swing Line Bank in a principal amount
stated to be the lesser of (a) the Maximum Swing Line Loan
Amount, or (b) the aggregate principal amount of Swing Line
Loans at any time advanced by the Swing Line Bank and
outstanding thereunder. The Company irrevocably authorizes
the Swing Line 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 on the Swing
Line Note, an appropriate notation on the Swing Line Note
Record 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
Swing Line Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Swing Line
Bank, but the failure to record, or any error in so
recording, any such amount on such Swing Line Note Record
shall not limit or otherwise affect the actual amount of the
obligations of the Company hereunder or under the Swing Line
Note to make payments of principal of or interest on the
Swing Line Note when due.
4. INTEREST; PAYMENTS AND COMPUTATIONS.
4.1. Interest; Costs and Expenses.
(a) Elections. At the option of the Company, so long
as no Default or Event of Default has occurred and is then
continuing, the Company may elect from time to time to have
a portion of the principal amount of the Syndicated Loans to
the Company outstanding from time to time bear interest
during any particular Interest Period calculated by
reference to the Base Rate or the Eurocurrency Rate,
provided that any portion of the Syndicated Loans selected
to bear interest by reference to the Base Rate or the
Eurocurrency Rate shall be in an amount not less than
$5,000,000 or some greater integral multiple of $1,000,000
with respect to any single Interest Period. Any election by
the Company to have interest calculated by reference to the
Base Rate or the Eurocurrency Rate shall be made by notice
(which shall be irrevocable) to the Agent as provided in
2.4. If in any such notice, the Company does not specify
whether any Eurocurrency Rate Loans are requested, the
Company shall be deemed to have elected that the requested
Syndicated Loans bear interest at the Base Rate and be
denominated in Dollars. Any election of a Eurocurrency Rate
shall lapse at the end of the expiring Interest Period
unless extended by a further election notice as provided in
2.4 hereof. If, on or prior to the last day of any
Interest Period for Base Rate Loans or Eurocurrency Rate
Loans, the Company (x) fails to deliver a further election
notice with respect to such Loans pursuant to 2.4 hereof
and this 4.1(a), and (y) fails to repay all or any part of
such Loans as provided in 4.4 hereof, then such Syndicated
Loans shall be deemed to be Base Rate Loans in accordance
with the terms set forth in 4.4(b) hereof. Each Base Rate
Loan or Eurocurrency Rate Loan shall bear interest during
each Interest Period relating thereto at the rate set forth
in 2.7 or 4.3 hereof, as the case may be. Interest on
each Base Rate Loan or Eurocurrency Rate Loan shall be
payable (i) on the last day of the Interest Period relating
thereto or (ii) if the Interest Period is longer than ninety
(90) days, on the last day of each 90-day period following
the commencement of such Interest Period and on the last day
of such Interest Period.
(b) Notices, etc. as to Eurocurrency Rate. Promptly
after the commencement of any Interest Period for any
Syndicated Loan, the Agent shall notify the Company and each
of the Banks of (A) the applicable interest rate determined
by the Agent hereunder with respect to any Eurocurrency Rate
Loan, (B) each date on which interest is payable hereunder,
and (C) the date on which the Interest Period with respect
to such Syndicated Loan shall end; provided, however, that
the obligations of the Company to pay to each Bank principal
and interest as herein provided shall not be subject to or
in any way conditional upon the giving of any such notice by
the Agent. Each such notice shall, absent manifest error,
be binding upon each Bank and the Company.
(c) Substitution of Base Rate. Notwithstanding any
other provision of this Agreement, if (i) the introduction
of, any change in, or any change in the interpretation of,
any law or regulation applicable to any Bank (the "Affected
Bank") shall make it unlawful, or any central bank or other
Governmental Authority having jurisdiction thereof shall
assert that it is unlawful, or in the reasonable judgment of
such Bank, impracticable, for such Bank to perform its
obligations in respect of any Loans bearing interest based
on the Eurocurrency Rate or (ii) if any Affected Bank shall
reasonably determine with respect to Loans bearing interest
based on the Eurocurrency Rate that (A) by reason of
circumstances affecting any Eurocurrency Interbank Market,
adequate and reasonable methods do not exist for
ascertaining the Eurocurrency Rate which would otherwise be
applicable during any Interest Period, or (B) deposits of
Dollars in the relevant amount for the relevant Interest
Period are not available to such Bank in any Eurocurrency
Interbank Market, or (C) the Eurocurrency Rate does not or
will not accurately reflect the cost to such Bank of
obtaining or maintaining the applicable Loans bearing
interest based on the Eurocurrency Rate during any Interest
Period, then any such Affected Bank shall promptly give
telephonic, telex or cable notice of such determination to
the Company (which notice shall be conclusive and binding
upon the Company absent manifest error), the Agent and the
other Banks. Upon such notification by any Affected Bank,
(x) the obligation of such Affected Bank to make Loans
bearing interest based on the Eurocurrency Rate shall be
suspended until such circumstances no longer exist, (y) any
new Loans made by such Affected Bank on or after the date of
such notification, which Loans would otherwise bear interest
at the suspended rate shall be deemed to be Loans bearing
interest by reference to the Base Rate and shall be
denominated in Dollars, as necessary, until such suspension
is no longer in effect, and (z) so long as it is not
unlawful for the Affected Bank to continue carrying
Outstanding Loans bearing interest at the suspended rate,
Outstanding Loans of such Affected Bank bearing interest
based on the Eurocurrency Rate shall continue to bear
interest at the applicable rate based on the Eurocurrency
Rate until the end of the applicable Interest Period. If it
is unlawful for any Affected Bank to continue carrying any
Outstanding Loans bearing interest at the suspended rate,
such Affected Bank shall so notify the Company and the Agent
and any such Outstanding Loans shall be automatically
converted to Base Rate Loans at the end of the Interest
Period which is current when such notice is given.
Notwithstanding any provision of this 4.1(c) to the
contrary, during any period in which a suspension is in
effect pursuant to this 4.1(c), the Company may notify the
Agent and any Affected Bank to which such suspension applies
that (I) the Company shall repay, in accordance with the
provisions of 4.1(f) hereof, any and all Loans made by such
Affected Bank to the Company, and (II) with respect to any
new Loans to be made by the Banks hereunder, the Company
shall not borrow from such Affected Bank and the Commitment
of such Affected Bank shall be terminated.
(d) Additional Costs and Expenses; Reserve
Requirements. Anything herein to the contrary
notwithstanding, 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 by any
central bank or other fiscal, monetary or other Governmental
Authority, whether or not having the force of law) shall
(A) subject such Bank to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any
nature not now in effect, with respect to the Bank's
commitment to make Loans bearing interest based on the
Eurocurrency Rate or the Bank's Loans bearing interest
based on the Eurocurrency Rate; or
(B) materially change the basis of taxation of
payments to such Bank on the principal of, interest on
or any other amounts payable in respect of the Loans
bearing interest based on the Eurocurrency Rate as such
(excluding changes in taxes measured by or imposed on
the net income, or on the capital or net worth of such
Bank; provided, however, nothing in this parenthetical
shall be deemed to limit the rights of the Banks or the
obligations of the Company pursuant to 4.1(e)); or
(C) impose or increase or render applicable any
liquidity, capital, special deposit or reserve or
similar requirements (whether or not having the force
of law) not now in effect, against assets held by, or
deposits in or for the account of, or loans by an
office of such Bank with respect to such Bank's
commitment to make Loans bearing interest based on the
Eurocurrency Rate or such Bank's Loans bearing interest
based on the Eurocurrency Rate; or
(D) impose on such Bank any other condition or
requirement not now in effect, with respect to such
Bank's commitment to make Loans bearing interest based
on the Eurocurrency Rate or such Bank's Loans bearing
interest based on the Eurocurrency Rate or any class of
loans of which the Loans bearing interest based on the
Eurocurrency Rate forms a part, and the result of any
of the foregoing is (x) to increase the cost to such
Bank attributable to the making, funding or maintaining
of Loans bearing interest based on the Eurocurrency
Rate or its commitment therefor, (y) to reduce the
amount of principal, interest, commitment fees or other
amounts payable in respect of Loans bearing interest
based on the Eurocurrency Rate to such Bank hereunder
or its commitment therefor, or (z) to require such Bank
to make any payment or to forego any interest or other
sum payable in respect of Loans bearing interest based
on the Eurocurrency Rate hereunder or its commitment
therefor, the amount of which payment or foregone
interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received
by such Bank from the Company hereunder;
then, and in each such case, the Company will, upon demand
by such Bank made by written notice to the Company from time
to time as often as the occasion therefor may arise, pay to
such Bank, within ten (10) days after receipt of notice of
such demand, such additional amounts as will be sufficient,
in the good faith opinion of such Bank, to compensate the
Bank for such additional costs, reduction, payment or
foregone interest or other sum in respect of Loans bearing
interest based on the Eurocurrency Rate; provided, however,
that the Company shall be required to pay only such
additional costs or other amounts which are incurred by such
Bank (i) from and after the date of such notice, with
respect to Loans outstanding during Interest Periods
commencing after the date on which the Company receives such
notice, (ii) with respect to Loans outstanding on the date
of such notice provided that (A) not less than 90 days
remain in the applicable Interest Period for such Loans and
(B) such costs are assessed only for the period commencing
on the date of such notice to the Company, and (iii) from
and after the date of such notice to the extent that the
incurrence of such additional costs or amounts is unrelated
to Outstanding Loans and is not otherwise covered by clauses
(i) or (ii) of this paragraph. Subject to the provisions of
the preceding sentence, a claim by any Bank for all or any
part of any additional amount required to be paid by the
Company pursuant to this 4.1(d) may be made before and/or
after the end of the Interest Period to which such claim
relates or during the Interest Period in which such claim
has arisen and before and/or after any repayment or
prepayment, to which such claim relates, of any or
Eurocurrency Rate Loans owed hereunder. A certificate
signed by an officer of such Bank, setting forth the amount
of such loss, expense or liability required to be paid by
the Company to such Bank, and the computations made by such
Bank to determine such additional amount, shall be submitted
by the Bank to the Company in connection with each demand
made at any time by such Bank upon the Company hereunder,
and shall, save for manifest or other obvious error,
constitute conclusive evidence of the additional amount
required to be paid by the Company to such Bank upon each
such demand.
(e) Increased Capital Requirements. If any present or
future, or any change in any present or future, law or any
governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) or the
interpretation or administration thereof by a Governmental
Authority with appropriate jurisdiction affects the amount
of capital required or expected to be maintained by any of
the Banks or any corporation controlling any of the Banks
and such Bank determines that any of the foregoing imposes
or increases a requirement by such Bank to allocate capital
resources to such Bank's credit facility established
hereunder or any loans made pursuant hereto, which would
have the effect of reducing the return on such Bank's
capital to a level below that which such Bank could have
achieved (assuming full utilization of the Bank's capital)
but for such increased capital requirements, then such Bank
may notify the Company (with a copy to the Agent) of such
fact. To the extent that the costs of such increased
capital requirements are not reflected in the Base Rate, the
Eurocurrency Rate or the Competitive Bid Rate, the Company
and such Bank shall thereafter attempt to negotiate in good
faith an adjustment to the compensation payable hereunder
with respect to such Bank's Commitment and, in the case of
any Loans made by such Bank after the date of the Company's
receipt of such notice ("New Loans"), all such New Loans,
which adjustment will adequately compensate the Bank in
light of these circumstances. If the Company and such Bank
are unable to agree to such adjustment within thirty (30)
days of the day on which the Company receives such notice,
then effective from the date on which the Company has
received such notice (but not earlier than the effective day
of such requirement or retroactive to any date prior to the
date on which the Company has received such notice), the
fees payable hereunder with respect to any New Loans made
by, or the Commitment of, such Bank shall increase by an
amount which will, in such Bank's reasonable determination,
provide adequate compensation. Such Bank shall allocate
such cost increases among its customers in good faith and on
an equitable basis.
(f) Replacement of Banks. Notwithstanding any other
provision of this Agreement, in the event that (i) the
obligation of any Bank to make Eurocurrency Rate Loans is
suspended pursuant to 4.1(c) hereof, or (ii) any Bank makes
demand upon the Company pursuant to 4.1(d) hereof for the
payment of additional costs or other amounts, or (iii) any
Bank makes demand upon the Company pursuant to 4.1(e)
hereof for an adjustment to the compensation payable to such
Bank by the Company hereunder, then, in each such case, the
Company in its discretion may (A) send written notice to
such Bank and the Agent advising such Bank that, subject to
the provisions of this 4.1(f), its Commitment hereunder
shall be terminated on a date determined by the Company (the
"Replacement Date"), which Replacement Date shall be no
earlier than the date on which such Bank and the Agent have
received such notice from the Company, and commencing on the
Replacement Date, the Commitment of such Bank hereunder
shall be terminated and no Commitment Fee shall be payable
by the Company to such Bank with respect to such Commitment,
and (B) replace such Bank with another Bank or other
commercial banking institution (the "Replacement Bank")
which has been selected by the Company and approved by the
Majority Banks, which approval shall not be unreasonably
withheld, provided that the Company, the Banks and the Agent
agree that (w) on or prior to the Replacement Date, the
Company shall have paid all principal, interest, fees and
other amounts owing by the Company hereunder, accruing up to
and including the Replacement Date, to the Bank being
replaced on such Replacement Date, (x) as of the Replacement
Date, the Replacement Bank will take over the entire
Commitment of the Bank being replaced, (y) on or prior to
the Drawdown Date first following the Replacement Date, the
Company, the Agent, the Banks (other than the Bank being
replaced) and the Replacement Bank shall make such
arrangements by way of new Syndicated Loans, purchases or
refundings of existing Syndicated Loans or otherwise as will
result thereafter in the outstanding and unpaid Syndicated
Loans of each Bank being equal, as near as may practically
be, to such Bank's Commitment Percentage of all of the
outstanding and unpaid Syndicated Loans made to the Company,
and (z) the Agent shall be entitled to receive prior to the
Replacement Date from the Company and the Replacement Bank
such supplemental agreements, documents, certificates and
legal opinions in connection with the replacement of such
Bank as the Agent and the other Banks may reasonably request
to give effect to the foregoing provisions of this 4.1(f).
(g) Change of Lending Office. If a Bank changes its
applicable lending office (other than pursuant to paragraph
(h) below) and the effect of the change, as of the date of
the change, would be to cause the Company to become
obligated to pay any additional amount under this 4.1 or
under 4.7, the Company shall not be obligated to pay such
additional amount.
(h) Mitigation. If a condition or an event occurs
which would, or would upon the passage of time or giving of
notice, result in the payment of any additional amount to
any Bank by the Company pursuant to this 4.1 or under 4.7,
such Bank shall take such steps as may reasonably be
available to it and acceptable to the Company to mitigate
the effects of such condition or event (which may include
efforts to rebook the Loans held by such Bank at another
lending office, or through another branch or an affiliate,
of such Bank); provided that such Bank shall not be required
to take any step that, in its reasonable judgment, would be
disadvantageous to its business or operations or would
require it to incur any additional cost or expense unless
the Company agrees to reimburse such Bank for such cost or
expense.
4.2. Concerning Interest Periods.
No Interest Period for Loans may be selected by the
Company if such Interest Period ends after the Final
Maturity Date. If any Interest Period would otherwise end
on a day which is not a Business Day for Base Rate,
Eurocurrency Rate or Competitive Bid Rate purposes, as
applicable, that Interest Period, shall end on the Business
Day next preceding or next succeeding such day determined by
the Agent in accordance with its usual practices. Any
Interest Period relating to any Eurocurrency Rate Loan that
begins on the last 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 Business Day of a calendar month.
4.3. Interest on Overdue Amounts.
Overdue principal and (to the extent permitted by
applicable law) interest on the Loans and all other overdue
amounts payable hereunder shall bear interest payable on
demand at a rate per annum equal to two percent (2%) above
the rate otherwise in effect with respect to Base Rate
Loans, whether or not any Eurocurrency Rate or Competitive
Bid Rate would otherwise have been applicable thereto, until
such amount shall be paid in full (whether before or after
judgment).
4.4. Payments.
(a) All payments of principal of and interest on Loans
made to the Company, any Fees and any other amounts due
hereunder shall be made by the Company to the Agent, at or
prior to 11:00 A.M., Boston time, on any payment date, in
Dollars and in immediately available funds at the Agent's
Office without setoff, counterclaim or deduction of any
kind. The Agent shall be entitled to debit any account of
the Company with the Agent in the amount of each such
payment when due in order to effect timely payment thereof.
Upon receipt by the Agent of any such payment, the Agent
shall promptly send by wire transfer, in immediately
available like funds, to each Bank, to an individual or an
account designated by such Bank, such Bank's pro rata share
of such payment.
(b) If any Bank makes a Syndicated Loan on a day on
which the Company is to repay all or any part of any
Outstanding Syndicated Loan, such Bank shall, to the extent
necessary, apply the proceeds of the requested Syndicated
Loan to make such repayment, and only an amount equal to (i)
the excess, if any, of the amount being repaid over the
amount being borrowed shall be remitted by the Company to
the Agent for the account of such Bank as provided in 2.8
and (ii) the excess, if any, of the amount being borrowed
over the amount being repaid shall be remitted by the Bank
to the Agent for the account of the Company. If the Company
fails to repay all or any part of any Outstanding Syndicated
Loan denominated in Dollars on the last day of the
applicable Interest Period therefor, and if the Company
fails to deliver an election notice with respect to such
unpaid portion of the Outstanding Syndicated Loan in
accordance with the provisions of 2.4 and 4.1(a) hereof,
then, subject to satisfaction of the conditions precedent
set forth in 13 hereof, the Company shall be deemed to have
requested that the unpaid portion of the Outstanding
Syndicated Loan constitute a new Borrowing as a Base Rate
Loan. Nothing contained in this 4.4(b) shall obligate the
Banks in any way to make any Loans to the Company at any
time from and after the Final Maturity Date.
(c) Whenever a payment hereunder or under the Notes
becomes due on a day which 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 (and shall not be considered overdue during
such extension), provided, however, that if such extension
would cause payment of interest on or principal of
Eurocurrency Rate Loans to be made in the next following
calendar month, such payment shall be made on the next
preceding Business Day.
4.5. Computations.
All computations of interest on the Loans shall be
based on (a) with respect to Eurocurrency Rate Loans and
Competitive Bid Loans, a 360-day year, and (b) with respect
to Base Rate Loans, a 365-day year, and paid for the actual
number of days elapsed.
4.6. Interest Limitation.
Notwithstanding any other term of this Agreement or any
Note or any other document referred to herein or therein,
the maximum amount of interest, together with any other
amounts or charges which may constitute interest under
applicable law, which may be charged to or collected from
any Person liable hereunder or under any Note by the Banks
shall be absolutely limited to, and shall in no event
exceed, the maximum amount of interest which could lawfully
be charged or collected under applicable law (including, to
the extent applicable, the provisions of Section 5197 of the
Revised Statutes of the United States of America, as
amended, 12 U.S.C. Section 85, as amended), so that the
maximum of all amounts constituting interest under
applicable law, howsoever computed, shall never exceed as to
any Person liable therefor such lawful maximum, and any term
of this Agreement or any Note or any other document referred
to herein or therein which could be construed as providing
for interest in excess of such lawful maximum shall be and
hereby is made expressly subject to and modified by the
provisions of this paragraph.
4.7. Indemnification.
In the event that the Company shall at any time (a)
repay or prepay (other than in accordance with the
provisions of 2.8 hereof) any principal of any Eurocurrency
Rate Loans or Competitive Bid Loans on a date other than the
last day of the Interest Period with respect thereto,
whether by reason of acceleration following an Event of
Default or otherwise, or (b) for any reason fail to borrow
any Loan with respect to which the Company gave a notice of
borrowing pursuant to 2.4 or 4.1(a) hereof at an interest
rate based on the Eurocurrency Rate or a Notice of
Competitive Bid Borrowing pursuant to 2.5.1(f) or prepay a
Loan as to which notice of prepayment has been given, the
Company shall indemnify the Banks against all losses, costs
or expenses incurred by the Banks in respect of the
Company's payment, prepayment or failure to borrow, on the
date of such payment or failure to borrow. Such losses,
costs or expenses shall include, but not be limited to (i)
any costs incurred by the Banks in carrying funds which were
to have been borrowed by the Company or in carrying funds to
cover the amount of any overdue principal of or overdue
interest on any Loan, (ii) any interest payable by the Banks
to Banks of the funds borrowed by the Banks in order to
carry the funds referred to in the immediately preceding sub-
clause (i), and (iii) any losses (including losses of
anticipated interest which would otherwise have been
required to be paid hereunder through the end of such then
existing or, as the case may be, commencing Interest Period)
incurred by the Banks in liquidating or re-employing funds
acquired from third parties to effect or maintain all or any
part of the Loans, provided that to the extent that the
reemployment formula set forth in 2.8 hereof is capable of
being employed to compute such losses, the Agent shall
employ such reemployment formula to compute such losses.
Any losses, costs or expenses payable by the Company to the
Banks pursuant to this 4.7 shall be without duplication of
any amounts paid by the Company pursuant to 2.8, 4.1 or
4.3 hereof.
4.8. Banks' Obligations Several.
The Banks' obligations hereunder shall be several and
not joint, and no Bank's obligations to lend shall be
affected by any other Bank's failure to make any Loan
hereunder.
4.9. Debt Rating Increase.
If the Agent determines that the Debt Rating equals or
exceeds "BBB-" by Standard & Poor's or "Baa3" by Moody's (a
"Debt Rating Increase"), the Agent shall promptly give
notice thereof to the Company and the Banks. In the event
of a split Debt Rating by the two rating agencies, the Agent
shall use the higher rating in its determination of a Debt
Rating Increase.
5. LETTERS OF CREDIT.
5.1. Letter of Credit Commitments.
5.1.1. Commitment to Issue Letters of Credit.
Subject to the terms and conditions hereof and the
execution and delivery by the Company 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 5.1.4 and upon the representations
and warranties of the Company contained herein, agrees,
in its individual capacity, to issue, extend and renew
for the account of the Company 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 Company 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 $15,000,000 at any one time (or such other
amount as may be agreed from time to time by the
Company and the Agent and notified to the Banks) and
(b) the Utilization shall not exceed the lesser of the
(i) the Total Commitment and (ii) an amount equal to
(A) the Maximum Availability minus (B) the Utilization
under and as defined in the Credit Line Agreement at
such time. Notwithstanding the foregoing, the Agent
shall have no obligation to issue any Letter of Credit
to support or secure any Indebtedness of the Company or
any of its Subsidiaries to the extent that such
Indebtedness was incurred prior to the proposed
issuance date of such Letter of Credit, unless in any
such case the Company demonstrates to the reasonable
satisfaction of the Agent that (x) such prior incurred
Indebtedness was then fully secured by a prior
perfected and unavoidable security interest in
collateral provided by the Company or such Subsidiary
to the proposed beneficiary of such Letter of Credit or
(y) such prior incurred Indebtedness was then secured
or supported by a letter of credit issued for the
account of the Company or such Subsidiary.
5.1.2. Letter of Credit Applications.
Each Letter of Credit Application shall be
completed to the reasonable satisfaction of the Agent.
In the event that any provision of any Letter of Credit
Application shall be inconsistent with any provision of
this Agreement, then the provisions of this Agreement
shall, to the extent of any such inconsistency, govern.
5.1.3. Terms of Letters of Credit.
Each Letter of Credit issued, extended or renewed
hereunder shall, among other things, (a) 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 (b)
have an expiry date no later than the date which is
fourteen (14) days (or, if the Letter of Credit is
confirmed by a confirmer or otherwise provides for one
or more nominated persons, forty-five (45) days) prior
to the Final Maturity Date. Each Letter of Credit so
issued, extended or renewed shall be subject (to the
extent consistent with this Agreement) to 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 (the
"Uniform Customs") or, if agreed to by the Company, the
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.
5.1.4. 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 Company pursuant to 5.2 (such
agreement for a Bank being called herein the "Letter of
Credit Participation" of such Bank).
5.1.5. 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 Company's Reimbursement Obligation
under 5.2 in an amount equal to such payment. Each
Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to
5.2.
5.2. Reimbursement Obligation of the Company.
In order to induce the Agent to issue, extend and renew
each Letter of Credit and the Banks to participate therein,
the Company 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
5.2(b) and (c), on each date that any draft presented
under such Letter of Credit is honored by the Agent
after the Agent determines that the documents
(including any draft) delivered in connection with such
presentment are in conformity with such Letter of
Credit, 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 reasonably 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, other than as a result of the Agent's
or any such Bank's gross negligence or willful
misconduct,
(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 14, an amount equal to the then Maximum Drawing
Amount on all outstanding 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 Office in immediately available funds. Interest on
any and all amounts remaining unpaid by the Company under
this 5.2 at any time from the date such amounts become due
and payable (whether as stated in this 5.2, 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 4.3 for overdue principal on the
Syndicated Loans.
5.3. 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 Company 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 Company fails to reimburse the Agent as
provided in 5.2 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 Office, in immediately available
funds, such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to
the product of (a) the average, computed for the period
referred to in clause (c) 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
(b) the amount equal to such Bank's Commitment Percentage of
such Unpaid Reimbursement Obligation, times (c) 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 in respect of a presentment of
any Letter of Credit to the Company 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 with such Letter of
Credit, provided that this 5.3 shall not relieve the Agent
of any liability resulting from the gross negligence or
willful misconduct of the Agent, or otherwise affect any
defense or other right the Company may have as a result of
any such gross negligence or willful misconduct.
5.4. Obligations Absolute.
The Company's obligations under this 5 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 Company
may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Company further
agrees with the Agent and the Banks that the Agent and the
Banks shall not be responsible for, and the Company's
Reimbursement Obligations under 5.2 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 Company, 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 Company 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 Company 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 Company and shall not result in any liability on the
part of the Agent or any Bank to the Company.
Notwithstanding the foregoing, nothing in this 5.4 shall
relieve the Agent or any Bank of any liability resulting
from the gross negligence or willful misconduct of the Agent
or such Bank, or otherwise affect any defense or other right
that the Company may have as a result of any such gross
negligence or willful misconduct.
5.5. Reliance by Issuer.
To the extent not inconsistent with 5.4, 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,
telegram, telecopy, telex or facsimile 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 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 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 Syndicated Notes or of Letter of
Credit Participations. Notwithstanding the foregoing,
nothing in this 5.5 shall relieve the Agent of any
liability resulting from the gross negligence or willful
misconduct of the Agent, or otherwise affect any defense or
other right that the Company may have as a result of any
such gross negligence or willful misconduct.
5.6. Letter of Credit Fee.
The Company shall pay to the Agent, for the accounts of
the Banks in accordance with their respective Commitment
Percentages, a letter of credit fee (a "Letter of Credit
Fee") with respect to each Letter of Credit, computed for
the period from and including the date of issuance,
extension or renewal of such Letter of Credit to the expiry
date of such Letter of Credit, at a rate per annum equal to
(a) in respect of any standby Letter of Credit, the
applicable Margin per annum with respect to Eurocurrency
Rate Loans on the aggregate face amount of standby Letters
of Credit outstanding and (b) in respect of any documentary
Letter of Credit, fifty percent (50%) of the applicable
Margin per annum with respect to Eurocurrency Rate Loans on
the aggregate face amount of documentary Letters of Credit
outstanding. Such Letter of Credit Fee shall be payable (i)
in respect of standby Letters of Credit, periodically in
arrears on the last Business Day of each March, June,
September and December occurring after the date of issuance,
extension or renewal of each such standby Letter of Credit
and on the Final Maturity Date, and (ii) in respect of
documentary Letters of Credit, periodically in arrears on
the last Business Day of each March, June, September and
December occurring after the date of issuance, extension or
renewal of each such documentary Letter of Credit and on the
Final Maturity Date. In addition, the Company shall, on the
date of issuance, extension or renewal of any Letter of
Credit, pay to the Agent a fronting fee for the account of
the Agent equal to one-eighth of one percent (1/8%) per
annum of the face amount of each such standby or documentary
Letter of Credit. In respect of each Letter of Credit, the
Company shall also pay to the Agent for the Agent's own
account, 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.
6. COLLATERAL SECURITY AND GUARANTIES.
6.1. Security of Company.
The Secured Obligations shall be secured by a perfected
first priority security interest (subject only to Permitted
Liens entitled to priority under applicable law) in all of
the following, whether now owned or hereafter acquired,
including all books and records and other recorded data in
each case relating to the following: (a) "Accounts",
"Chattel paper" and "Instruments" of the Company, in each
case as such terms are defined in the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts, (b)
Inventory of the Company, (c) the Company's U.S. trademarks
(and U.S. applications and U.S. registrations thereof
(except for "intent to use" applications for trademark
registrations filed pursuant to Section 1(b) of the Lanham
Act, unless and until an Amendment to Allege Use or a
Statement of Use under Sections 1(c) and 1(d) of the Lanham
Act has been filed)), U.S. copyrights (and U.S. applications
and U.S. registrations thereof) and U.S. patents and U.S.
patent applications, in each case relating exclusively to
the Identified Brands (but with respect to the Playskool
brand, only U.S. trademarks (and U.S. applications and U.S.
registrations thereof) and U.S. copyrights (and U.S.
applications and U.S. registrations thereof), in each case
that did not arise from particular products, shall be
included in the Collateral), and (d) shares of Capital Stock
of Infogrames owned by the Company, in each case pursuant to
the terms of and as and to the extent provided in the
Security Documents to which the Company is a party.
6.2. Guaranties and Security of Restricted
Subsidiaries.
The Secured Obligations shall also be guaranteed
pursuant to the terms of the Guaranty. The obligations of
each of the Restricted Subsidiaries under the Guaranty shall
be in turn secured by a perfected first priority security
interest (subject only to Permitted Liens entitled to
priority under applicable law) in all of the following,
whether now owned or hereafter acquired, including all books
and records and other recorded data in each case relating to
the following: (a) "Accounts", "Chattel paper" and
"Instruments" of each such Restricted Subsidiary, in each
case as such terms are defined in the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts, (b)
Inventory of each such Restricted Subsidiary, and (c) such
Restricted Subsidiary's U.S. trademarks (and U.S.
applications and U.S. registrations thereof (except for
"intent to use" applications for trademark registrations
filed pursuant to Section 1(b) of the Lanham Act, unless and
until an Amendment to Allege Use or a Statement of Use under
Sections 1(c) and 1(d) of the Lanham Act has been filed)),
U.S. copyrights (and U.S. applications and U.S.
registrations thereof) and U.S. patents and U.S. patent
applications, in each case relating exclusively to the
Identified Brands (but with respect to the Playskool brand,
only U.S. trademarks (and U.S. applications and U.S.
registrations thereof) and U.S. copyrights (and U.S.
applications and U.S. registrations thereof), in each case
that did not arise from particular products, shall be
included in the Collateral), in each case pursuant to the
terms of and as and to the extent provided in the Security
Documents to which such Restricted Subsidiary is a party.
6.3. Release of Collateral.
(a) The parties hereto acknowledge and agree that the
Agent, on behalf of the Banks and the Agent, shall release
its Liens on the Collateral at such time as each of the
following conditions are satisfied:
(i) for each of the four (4) consecutive fiscal
quarters of the Company most recently ended, the ratio
of Consolidated Total Funded Debt at the end of such
fiscal quarter to EBITDA for the Reference Period then
ended shall be less than or equal to 3.00:1.00;
(ii) the ratio of EBITDA for the Reference Period
most recently ended to Consolidated Total Interest
Expense for such Reference Period shall be greater than
or equal to 6.00:1.00;
(iii) the sum of (i) the Total Commitment plus
(ii) the "Total Commitment" under and as defined in the
Credit Line Agreement shall have been permanently
reduced to an amount less than or equal to
$400,000,000; and
(iv) no Default or Event of Default shall have
occurred and be continuing.
(b) Without limiting the foregoing, in the event that
any part of the Collateral is sold or otherwise disposed of
in connection with a sale, disposition or other transaction
permitted hereunder, the Liens on such Collateral granted
pursuant to any Security Document shall be automatically
released and the Agent shall execute and deliver to the
Company or the relevant Restricted Subsidiary, as the case
may be, all releases or other documents (including without
limitation, Uniform Commercial Code termination statements),
and take all other actions necessary or reasonably desirable
for the release of such Liens.
6.4. Limitation of Security.
Notwithstanding anything to the contrary contained in
this 6 or in any of the Security Documents, no Lien shall
be granted on any shares of stock of any Subsidiary of the
Company or any evidences of indebtedness of any Subsidiary
of the Company.
7. FEES.
7.1. Amendment Fee.
The Company agrees to pay to the Agent for the pro rata
account of each Bank on the Effective Date an amendment fee
(the "Closing Fee") in an amount equal to one-half of one
percent (0.50%) of such Bank's Commitment.
7.2. Agent's Fee.
The Company shall pay to the Agent for the Agent's own
account an Agent's fee (the "Agent's Fee") on the terms and
conditions set forth in the Fee Letter.
8. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Banks that:
8.1. Corporate Existence.
(a) Each of the Hasbro Companies (i) is a corporation
duly organized, validly existing and in good standing under
the laws of its jurisdiction 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 Material Adverse Effect.
(b) Each of the Hasbro Companies has adequate
corporate power and authority and has full legal right to
enter into each of the Loan Documents to which it is or is
to become a party, to perform, observe and comply with all
of its agreements and obligations under each of such
documents, and, with respect to the Company, to make all of
the borrowings contemplated by this Agreement.
8.2. Corporate Authority, etc.
The execution, delivery and performance by each of the
Hasbro Companies of each of the Loan Documents to which it
is a party, the performance by each of the Hasbro Companies
of all of its agreements and obligations under each of such
documents, and the making by the Company of all of the
borrowings contemplated by this Agreement, have been duly
authorized by all necessary corporate action on the part of
each of the Hasbro Companies and their respective
shareholders and do not and will not (i) contravene any
provision of any of their charter or by-laws (each as from
time to time in effect), (ii) conflict with, or result in a
breach of any material term, condition or provision of, or
constitute a default under or result in the creation of any
Lien upon any of the property of any of the Hasbro Companies
under any agreement, trust deed, indenture, mortgage or
other instrument to which any of the Hasbro Companies is or
may become a party or by which any of the Hasbro Companies
or any of the property of any of the Hasbro Companies is or
may become bound or affected, the consequences of which
would have a Material Adverse Effect, (iii) violate or
contravene any provision of any law, regulation, order,
ruling or interpretation thereunder or any decree, order or
judgment of any court or governmental or regulatory
authority, bureau, agency or official (all as from time to
time in effect and applicable to any of the Hasbro
Companies), except where such violation or contravention
would not have a Material Adverse Effect, (iv) require any
waivers, consents or approvals by any of the creditors of
any of the Hasbro Companies which have not been obtained,
(v) require any consents or approvals by any shareholders of
any of the Hasbro Companies (except such as will be duly
obtained on or prior to the Effective Date and will be in
full force and effect on and as of the Effective Date), or
(vi) require any approval, consent, order, authorization or
license by, or giving notice to, or taking any other action
with respect to, any governmental or regulatory authority or
agency under any provision of any applicable law (other than
any filings of this Agreement and the other Loan Documents
with the Securities and Exchange Commission required to be
made after the date hereof), except where the failure to do
so would not result in a Material Adverse Effect.
8.3. Binding Effect of Documents, etc.
Each of the Hasbro Companies has duly executed and
delivered each of the Loan Documents to which it is a party
and each of such documents is in full force and effect. The
agreements and obligations of each of the Hasbro Companies
contained in each of the Loan Documents to which it is a
party constitute its legal, valid and binding obligations
enforceable against it in accordance with their respective
terms except as enforceability is limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other laws relating to or affecting generally
the enforcement of creditors' rights and except to the
extent that the 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.
8.4. Governmental Approvals.
The execution, delivery and performance by the Company
and any of its Subsidiaries of this Agreement and the other
Loan Documents to which the Company 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 or made, and
except for filings in connection with the Security
Documents.
8.5. No Event of Default, etc.
No Default or Event of Default has occurred and is
continuing.
8.6. Chief Executive Offices.
Until the Agent receives notice of a change, the chief
executive offices of the Company and the offices where
substantially all of the material financial records and
books of account of the Company are kept, are located in
Pawtucket and/or East Providence, Rhode Island.
8.7. Title to Properties; Leases.
Except as indicated on Schedule 8.7 hereto, the Company
and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Company 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 Liens except Permitted Liens.
8.8. Financial Statements and Projections.
8.8.1. Fiscal Year.
Each of the Hasbro Companies has a fiscal year
ending on the last Sunday in December of each calendar
year, subject to adjustment pursuant to 9.13.
8.8.2. Financial Statements.
There has been furnished to the Banks (a) a
consolidated balance sheet of the Company and its
Subsidiaries as at December 26, 1999, a consolidated
statement of earnings, and a consolidated statement of
cash flows for the fiscal year then ended, audited by
KPMG LLP, the Company's independent certified public
accountants, and (b) an unaudited condensed
consolidated balance sheet of the Company and its
Subsidiaries as at the Balance Sheet Date and an
unaudited condensed consolidated statement of earnings
for the fiscal year then ended. Each such balance
sheet and statement of earnings has been prepared in
accordance with GAAP and fairly presents the financial
condition of the Company as at the close of business on
the date thereof and the results of operations for the
fiscal period then ended.
8.8.3. Projections.
The Company's projections of the annual operating
budgets of the Company and its Subsidiaries on a
consolidated basis, balance sheets and cash flow
statements for the 2001 to 2002 fiscal years have been
delivered to each Bank. To the knowledge of the
Company or any of its Subsidiaries as of the Effective
Date, no facts exist that (individually or in the
aggregate) would result in any material change in any
of such projections. The projections are based upon
estimates and assumptions believed to be reasonable by
the management of the Company at the time of
preparation thereof and reflect estimates of the
Company and its Subsidiaries of the results of
operations and other information projected therein
believed to be reasonable by the management of the
Company at the time of preparation thereof.
8.9. No Material Changes, Etc.
Since the Balance Sheet Date, there has been no event
or occurrence which has had a Material Adverse Effect.
Since the Balance Sheet Date, the Company has not made any
Restricted Payment except as permitted by 10.4 hereof.
8.10. Franchises, Patents, Copyrights, Etc.
Each of the Hasbro Companies possesses all material
franchises, patents, copyrights, trademarks, permits,
service marks, trade names, domain names, licenses and
permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now
conducted, without any known conflict or conflicts with any
rights of others which would, individually or in the
aggregate, have a Material Adverse Effect.
8.11. Litigation.
Except as set forth on Schedule 8.11 hereto and except
as required to be disclosed pursuant to 9.6, there are no
actions, suits, proceedings or investigations of any kind
pending or threatened against any of the Hasbro Companies
before any court, tribunal or administrative agency or board
which, if adversely determined, either in any case or in the
aggregate, in the opinion of management of the Company after
taking into account any available insurance, could
reasonably be expected to have a Material Adverse Effect.
8.12. No Materially Adverse Contracts, Etc.
None of the Hasbro Companies is subject to any charter,
corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which has or is expected
in the future to have a Material Adverse Effect. None of
the Hasbro Companies is a party to any contract or agreement
which has or is expected, in the judgment of the Company's
officers, to have any Material Adverse Effect.
8.13. Compliance With Other Instruments, Laws, Etc.
None of the Hasbro Companies is in violation of any
provision of its charter documents, by-laws, or, to the best
of the Company's knowledge, 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, or
any statute, license, rule or regulation, in any of the
foregoing cases in a manner which would result in the
imposition of substantial penalties or a Material Adverse
Effect.
8.14. Taxes.
Each of the Hasbro Companies has filed all federal,
state and other income and all other tax returns, reports
and declarations due and required by any jurisdiction to
which any of them is subject. Each of the Hasbro Companies
has paid, or has made reasonable provision for payment of,
all material taxes (if any) which have or may become due and
payable pursuant to any of the said returns or pursuant to
any matters raised by audits or for other reasons known to
the Company, except for taxes the amount, applicability, or
validity of which are currently being contested by it in
good faith by appropriate proceedings and with respect to
which the Company has set aside on its books, in accordance
with GAAP, reserves reasonably deemed by it to be adequate
with respect thereto. 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 Company know no
basis for any such claim, except for taxes the amount,
applicability, or validity of which are currently being
contested by it in good faith by appropriate proceedings and
with respect to which the Company has set aside on its
books, in accordance with GAAP, reserves reasonably deemed
by it to be adequate with respect thereto.
8.15. Absence of Financing Statements, Etc.
Except for 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, which purports to
cover, affect or give notice of any present or possible
future Lien on any assets or property of the Company or any
of its Subsidiaries (other than Foreign Subsidiaries) or
rights thereunder.
8.16. Perfection of Security Interest.
All filings, assignments, pledges and deposits of
documents or instruments have been made (or provision
therefor shall have been made to the reasonable satisfaction
of the Agent) and all other actions have been taken that are
legally permitted and are necessary or advisable, under
applicable law, to establish and perfect the Agent's
security interest in the Collateral, in each case pursuant
to the terms of the Security Documents. Except as permitted
by the Security Documents or as set forth on Schedule 10.2,
the Collateral and the Agent's rights with respect to the
Collateral are not subject to any material setoff, claims,
withholdings or other defenses other than reconciliations
with customers and vendors in the ordinary course of
business consistent with past practices. The Company or a
Restricted Subsidiary, as the case may be, is the owner of
the Collateral free from any Lien except for Permitted
Liens.
8.17. Indebtedness.
None of the Operating Subsidiaries of the Company has
any Indebtedness other than Indebtedness of the kind
expressly permitted by the provisions contained in 10.1 of
this Agreement. As of the Balance Sheet Date, all
Indebtedness of the Company and its Subsidiaries that is
required by GAAP to be shown on the consolidated balance
sheet of the Company and its Subsidiaries described in
8.8.2(b) hereof is shown on such consolidated balance
sheet.
8.18. True Copies of Charter and Other Documents.
The Hasbro Companies has furnished or caused to be
furnished to each of the Banks true and complete copies of
(a) all of the charter and other incorporation documents of
each of the Hasbro Companies (together with any and all
amendments thereto), and (b) the by-laws of each of the
Hasbro Companies (together with any and all amendments
thereto).
8.19. Employee Benefit Plans.
8.19.1. In General.
Except as would not reasonably be expected to have
a Material Adverse Effect, 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 all Applicable Pension
Legislation 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 412 of ERISA. The Company 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 103(d) of ERISA, with respect to each
Guaranteed Pension Plan.
8.19.2. Terminability of Welfare Plans.
Except for severance payment arrangements and
except as disclosed in (i) the financial statements of
the Company and its Subsidiaries described in 8.8.2 or
delivered pursuant to 9.5 or (ii) the periodic and
other reports of the Company filed from time to time
with the Securities and Exchange Commission, no
Employee Benefit Plan, which is an employee welfare
benefit plan within the meaning of 3(1) or 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.
8.19.3. 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 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 Company
nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a
Guaranteed Pension Plan pursuant to 307 of ERISA or
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 Company 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 thirty (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. As of the Effective Date,
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
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.
8.19.4. Multiemployer Plans.
Neither the Company nor any ERISA Affiliate has
incurred any material liability that remains
outstanding (including secondary liability) to any
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under 4201 of
ERISA or as a result of a sale of assets described in
4204 of ERISA. Neither the Company nor any ERISA
Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the
meaning of 4241 or 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 4041A of ERISA.
8.20. Holding Company and Investment Company Acts.
Neither the Company 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, as amended.
8.21. Certain Transactions.
To the best of the Company's knowledge, and except as
disclosed in the Company's Forms 10-K or proxy statements
(or would be so disclosed but for the fact that the filing
thereof is not yet due), each as filed with the Securities
and Exchange Commission, none of the officers, directors, or
employees of any of the Hasbro Companies is presently a
party to any transaction (other than arms-length
transactions pursuant to which any of the Hasbro Companies
makes payments in the ordinary course of business upon terms
no less favorable than the such Person could obtain from
third parties,) with the Company or any of its Subsidiaries
(other than (i) for services as employees, officers and
directors, or (ii) for all related transactions with any one
Person, transactions involving an aggregate amount not in
excess of $60,000 at any one time), including, without
limitation, 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 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.
8.22. Use of Proceeds.
8.22.1. General.
The proceeds of the Loans shall be used for
working capital and general corporate purposes;
provided, however, that Borrowings made under the
Foreign Sublimit may be used solely to satisfy the
Company's obligations pursuant to guaranties of Foreign
Scheduled Facilities. The Company will obtain Letters
of Credit solely for working capital and general
corporate purposes.
8.22.2. 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.
8.23. Environmental Compliance.
The Company 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 8.23 hereto or except as
would not reasonably be expected to have a Material Adverse
Effect:
(a) none of the Company, 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
("SARA"), the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or any
state, local or foreign law, statute, regulation,
ordinance, order or decree relating to health, safety
or the environment (hereinafter "Environmental Laws");
(b) neither the Company nor any of its
Subsidiaries has received notice within the last five
(5) years from any third party including, without
limitation, any 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 300 Appendix B; (ii) that any hazardous
waste, as defined by 42 U.S.C. 6903(5), any hazardous
substances as defined by 42 U.S.C. 9601(14), any
pollutant or contaminant as defined by 42 U.S.C.
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 Governmental
Authority has conducted or has ordered that any Company
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;
and
(c) none of the Company and its Subsidiaries is
required under any applicable Environmental Law to
perform Hazardous Substances site assessments, or to
remove or remediate Hazardous Substances, or to give
notice to any Governmental Authority or record or
deliver to other Persons an environmental disclosure
document or statement by virtue of the transactions set
forth herein and contemplated hereby.
8.24. Subsidiaries.
As of December 26, 1999, the Company had no active
Subsidiaries that are not listed in Exhibit 21 to the Form
10-K of the Company for the fiscal year ended December 26,
1999, as filed with the Securities and Exchange Commission,
a copy of such Exhibit 21 is attached hereto as Schedule
8.24, except for certain inactive or immaterial Subsidiaries
that would not, if taken as a whole, constitute a
Significant Subsidiary. During the period between
December 26, 1999 and the Effective Date, the Company has
had no Significant Subsidiaries other than (a) Hasbro
International, Inc. and Tiger Electronics, Ltd., each a
Delaware corporation, and (b) Wizards of the Coast, Inc., a
Washington corporation.
8.25. Disclosure.
No representation or warranty made by any of the Hasbro
Companies in this Agreement or in any agreement, instrument,
document, certificate, statement or letter furnished to the
Agent or the Banks by or on behalf of the any of the Hasbro
Companies in connection with any of the transactions
contemplated by any of the Loan Documents contains any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
contained therein not misleading in light of the
circumstances in which they are made. Except as disclosed
herein or otherwise disclosed in writing to the Agent and
the Banks, there is no fact known to the Company which has a
Material Adverse Effect, or which is reasonably likely in
the future to have a Material Adverse Effect, exclusive of
effects resulting from changes in general economic
conditions, legal standards or regulatory conditions.
8.26. Indebtedness of Foreign Subsidiaries.
All Indebtedness of Foreign Subsidiaries owing to any
Bank or Bank Affiliate has been incurred under the
facilities described on Schedule 8.26 hereto (the "Foreign
Scheduled Facilities"), as such Schedule 8.26 may be updated
from time to time by the Company by delivering a copy of
such updated Schedule 8.26 to the Agent and each Bank,
provided that (a) no revision to Schedule 8.26 that purports
to increase the aggregate amount of the Foreign Scheduled
Facilities shall be effective without the prior written
consent of the Agent (not to be unreasonably withheld) and
(b) no revision to Schedule 8.26 that purports to decrease
or eliminate a Foreign Scheduled Facility shall be effective
without the consent (not to be unreasonably withheld) of the
creditor under such Foreign Scheduled Facility.
8.27. Bank Accounts.
Schedule 8.27 sets forth the account numbers and
location of all bank accounts of the Company or any of its
Subsidiaries included in the Collateral or otherwise into
which proceeds of the Collateral are paid as of the
Effective Date.
9. AFFIRMATIVE COVENANTS OF THE COMPANY.
The Company 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. Punctual Payment.
The Company will duly and punctually pay or cause to be
paid the principal and interest on the Loans, all
Reimbursement Obligations, all Fees and all other amounts
provided for in this Agreement and the other Loan Documents
to which the Company or any of its Subsidiaries is a party,
all in accordance with the terms of this Agreement and such
other Loan Documents.
9.2. Use of Loan Proceeds.
The Company shall use the proceeds of the Loans and
obtain Letters of Credit solely for the purposes set forth
in 8.22.
9.3. Maintenance of Office.
The Company will maintain its chief executive offices
in Pawtucket and/or East Providence, Rhode Island, or at
such other place or places in the United States of America
as the Company shall designate upon written notice to the
Agent, where notices, presentations and demands to or upon
the Company in respect of the Loan Documents may be given or
made.
9.4. Records and Accounts.
The Company will (a) 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 GAAP or, in the case of Foreign
Subsidiaries, statutory reporting principles, (b) 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 (c) at
all times engage KPMG LLP or other independent certified
public accountants reasonably satisfactory to the Agent as
the independent certified public accountants of the Company
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 Company and the appointment in such
capacity of a successor firm as shall be reasonably
satisfactory to the Agent.
9.5. Financial Statements, Certificates and
Information.
The Company will deliver to each of the Banks:
(a) as soon as practicable, but, in any event not
later than one hundred (100) days after the end of each
fiscal year of the Company, the consolidated and
consolidating balance sheet of the Company and its
Subsidiaries as at the end of such year, and the related
consolidated and consolidating statement of earnings and the
consolidated statement of cash flows, with 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 GAAP, and
certified without qualification (except as to changes in
GAAP with which such accountants concur) and without an
expression of uncertainty as to the ability of the Company
or any of its Subsidiaries to continue as going concerns by
KPMG 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 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;
(b) as soon as practicable, but in any event not later
than sixty (60) days after the end of each of the first
three (3) fiscal quarters of each fiscal year of the
Company, copies of the unaudited consolidated and
consolidating balance sheet of the Company and its
Subsidiaries, each as at the end of such quarter, and the
related consolidated and consolidating statement of earnings
and the consolidated statement of cash flows for the portion
of the Company's fiscal year then elapsed, all in reasonable
detail and prepared in accordance with GAAP, together with a
certificate of any Authorized Financial Officer of the
Company that, subject to changes resulting from audit and
year-end adjustments, the information contained in such
financial statements fairly presents the financial condition
and results of operations of the Company and its
Subsidiaries for the periods covered;
(c) simultaneously with the delivery of the financial
statements referred to in (a) and (b) above, a statement, in
the form attached hereto as Exhibit E (a "Compliance
Certificate"), certified by any Authorized Financial Officer
of the Company that the Company is in compliance with the
covenants contained in 9, 10 and 11 as of the end of the
applicable period and setting forth in reasonable detail
computations evidencing such compliance with the financial
covenants set forth in 11 and (if applicable)
reconciliations to reflect changes in GAAP since the Balance
Sheet Date;
(d) contemporaneously with the filing or mailing
thereof, copies of all other financial statements and
reports as the Company shall send to any holders of
Indebtedness of the Company or the stockholders of the
Company, and copies of all regular and periodic reports
which the Company may be required to file with the
Securities and Exchange Commission or any similar or
corresponding federal or state governmental commission,
department or agency substituted therefor;
(e) (i) within fifteen (15) Business Days after the
end of each fiscal month (except December and January), a
net accounts receivable aging report with respect to the
"Accounts" (as such term is defined in the Uniform
Commercial Code as in effect in The Commonwealth of
Massachusetts) of the Company and the Restricted
Subsidiaries, (ii) (A) within fifteen (15) Business Days
after the end of December, a gross accounts receivable aging
report with respect to the "Accounts" (as such term is
defined in the Uniform Commercial Code as in effect in The
Commonwealth of Massachusetts) of the Company and the
Restricted Subsidiaries, and (B) within thirty (30) Business
Days after the end of December, a net accounts receivable
aging report with respect to the "Accounts" (as such term is
defined in the Uniform Commercial Code as in effect in The
Commonwealth of Massachusetts) of the Company and the
Restricted Subsidiaries, and (iii) within fifteen (15)
Business Days after the end of January, a gross accounts
receivable aging report with respect to the "Accounts" (as
such term is defined in the Uniform Commercial Code as in
effect in The Commonwealth of Massachusetts) of the Company
and the Restricted Subsidiaries;
(f) (i) within fifteen (15) Business Days after the
end of each fiscal month (except December and January), an
inventory designation report in form and substance
reasonably satisfactory to the Agent, and (ii) within thirty
(30) Business Days after the end of December and January, an
inventory designation report in form and substance
reasonably satisfactory to the Agent;
(g) within fifteen (15) Business Days after the end of
each fiscal month, a report as to the Foreign Scheduled
Facilities and outstandings thereunder by facility and in
form and substance reasonably satisfactory to the Agent;
(h) as soon as practicable, but in any event not later
than sixty (60) days after the end of each fiscal year, the
budget of the Company for the next fiscal year, and from
time to time upon the reasonable request of the Agent,
projections of the Company and its Subsidiaries updating
those projections delivered to the Banks and referred to in
8.8.3 or, if applicable, updating any later such
projections delivered in response to this 9.5(h); and
(i) from time to time such other financial data and
information as the Agent or any Bank may reasonably request.
9.6. Notices.
9.6.1. Defaults.
The Company will promptly notify the Agent and
each of the Banks in writing of the occurrence of any
Default or Event of Default, together with a reasonably
detailed description thereof, and the actions the
Company proposes to take with respect thereto. If (i)
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 Agreement
or any other note, evidence of indebtedness, indenture
or other obligation to which or with respect to which
the Company or any of its Subsidiaries is a party or
obligor, whether as principal, guarantor, surety or
otherwise, and (ii) the aggregate amount of all of the
indebtedness of the Company and its Subsidiaries in
respect of such claimed defaults shall exceed
$15,000,000 at any one time, the Company 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.
9.6.2. Environmental Events.
The Company will promptly give notice to the Agent
and each of the Banks (a) of any violation of any
Environmental Law that the Company 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
Governmental Authority that would reasonably be
expected to have a Material Adverse Effect and (b) upon
becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from
any agency of potential environmental liability, of any
Governmental Authority that would reasonably be
expected to have a Material Adverse Effect.
9.6.3. Notification of Claim against
Collateral.
The Company will, immediately upon becoming aware
thereof, notify the Agent and each of the Banks in
writing of any material setoff, claims, withholdings or
other defenses to which any of the Collateral, or the
Agent's rights with respect to the Collateral, are
subject, other than reconciliations with customers and
vendors in the ordinary course of business consistent
with past practices.
9.6.4. Notices Concerning Inventory
Collateral.
The Company shall provide to the Agent prompt
notice of any physical count of the Company's or any of
the Restricted Subsidiaries' Inventory, together with a
copy of the results thereof certified by the Company or
such Restricted Subsidiary.
9.6.5. Notice of Litigation and Judgments.
The Company 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 Company or any of its
Subsidiaries or to which the Company or any of its
Subsidiaries is or becomes a party involving an
uninsured claim against the Company or any of its
Subsidiaries that could reasonably be expected to have
a Material Adverse Effect and stating the nature and
status of such litigation or proceedings. The Company
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 reasonably satisfactory to the
Agent, within ten (10) days of any judgment not covered
by insurance, final or otherwise, against the Company
or any of its Subsidiaries in an amount in excess of
$15,000,000.
9.7. Corporate Existence; Maintenance of
Properties.
The Company will, and will cause each of the other
Hasbro Companies to, maintain its legal existence and good
standing under the laws of its jurisdiction of
incorporation, maintain its qualification to do business in
each state in which the failure to do so would have a
Material Adverse Effect, and maintain all of its rights and
franchises reasonably necessary to the conduct of its
business. The Company will cause all of its properties and
those of the other Hasbro Companies used or useful in the
conduct of its business or the business of the Hasbro
Companies to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted)
and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment
of the Company may be necessary so that the business carried
on in connection therewith may be properly and
advantageously conducted at all times, and will cause each
of the Hasbro Companies to continue to engage primarily in
the businesses now conducted by them and in related
businesses; provided, however, that, subject to the
provisions of 10.5.2 hereof, nothing in this 9.7 shall
prevent the Company from discontinuing the operation and
maintenance of any of its properties, or those of its
Subsidiaries, or from dissolving or liquidating any
Subsidiary or from consolidating or merging any Subsidiary
with or into another Subsidiary or with and into the
Company, if such discontinuance, dissolution or liquidation,
consolidation or merger is, in the judgment of the Company,
desirable in the conduct of the business of the Company and
its Subsidiaries on a consolidated basis and which do not in
the aggregate have a Material Adverse Effect.
9.8. Insurance.
The Company will maintain, and will cause each of its
Subsidiaries to maintain, with financially sound and
reputable insurance companies, funds or underwriters, or by
reasonable self-insurance, insurance of the kinds, covering
the risks and in the relative proportionate amounts usually
carried by reasonable and prudent companies conducting
businesses similar to that of the Company and otherwise in
accordance with the terms of the Security Documents to which
such Person is a party.
9.9. Taxes.
The Company will, and will cause each of the other
Hasbro Companies 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 (other
than taxes, assessments and other governmental charges
imposed by foreign jurisdictions which in the aggregate are
not material to the business or assets of the Company and
its Subsidiaries on a consolidated basis) 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, which if
unpaid might by law become a lien or charge upon any of its
property; provided, however, 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 Company or such
Subsidiary shall have set aside on its books, in accordance
with GAAP, adequate reserves with respect thereto; and
provided, further, that the Company and such Subsidiary will
pay or arrange for the bonding of all such taxes,
assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien which may
have attached as security therefor.
9.10. Access.
The Company will, and will cause each of the other
Hasbro Companies to, (a) permit the Agent, by its
representatives and agents, to inspect any of the
properties, including, without limitation, corporate books,
computer files and tapes and financial records of each of
the Hasbro Companies, to examine and make copies of the
books of accounts and other financial records of each of the
Hasbro Companies at such reasonable times and intervals as
the Agent may determine, and (b) permit each of the Banks to
discuss the affairs, finances and accounts of each of the
Hasbro Companies with, and to be advised as to the same by,
their respective officers at such reasonable times and
intervals as the Banks may designate. The Banks and the
Agent agree that they will treat in confidence all financial
information with respect to the Company and its Subsidiaries
and all information obtained during such inspection or
discussion or pursuant to 9.5 which has not become public
without violation hereof, and will not, without the consent
of the Company, disclose such information to any third party
or any trust or investment employee or trust or investment
officer of any Bank, and, if any representative or agent of
the Banks or the Agent shall not be an employee of one of
the Banks or the Agent or any affiliate of the Banks or the
Agent, such designee shall be reputable and of recognized
standing and shall agree in writing to treat in confidence
the information obtained during any such inspection and,
without the prior written consent of the Company, not to
disclose such information to any third party or make use of
such information for personal gain. Notwithstanding the
foregoing, the Company hereby authorizes the Agent and each
of the Banks to disclose information obtained pursuant to
this Agreement to banks or other financial institutions who
are participants or potential participants in or assignees
of the Loans made or to be made hereunder (provided, that
prior to any such disclosure to any such participant,
potential participant or assignee, such Person shall have
agreed to be bound by the provisions of this 9.10 and 22
pursuant to a confidentiality agreement substantially in the
form of Exhibit I hereto and provided to the Company), and
where required by applicable law or required or requested by
governmental or regulatory authorities.
9.11. Compliance with Laws, Contracts, Licenses, and
Permits.
The Company will, and will cause each of the other
Hasbro Companies to, comply with (i) all applicable laws and
regulations wherever its business is conducted, including,
without limitation, Environmental Laws, except where the
failure to comply is not reasonably likely to have a
Material Adverse Effect, (ii) the provisions of its charter
documents and by-laws, and (iii) all agreements and
instruments by which it or any of its properties may be
bound except where the failure to comply is not reasonably
likely to have a Material Adverse Effect, and (iv) all
applicable decrees, orders, and judgments, except where the
failure to comply is not reasonably likely to have a
Material Adverse Effect. If at any time while any Loan,
Note, Unpaid Reimbursement Obligation or Letter of Credit is
outstanding or any Bank has any obligation to make Loans
hereunder or the Agent has any obligations to issue, extend
or renew any Letters of Credit, 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 Company may fulfill any of its
obligations hereunder, the Company will promptly take or
cause to be taken all reasonable steps within the power of
the Company to obtain such authorization, consent, approval,
permit or license and furnish the Banks with evidence
thereof.
9.12. Employee Benefit Plans.
The Company will (a) 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 103(d) of ERISA and Annual Report, Form 5500, with
all required attachments, in respect of each Guaranteed
Pension Plan and (b) 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
302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA,
or in respect of a Multiemployer Plan, under 4041A, 4202,
4219, 4242, or 4245 of ERISA.
9.13. Fiscal Year.
The Company will have a fiscal year which ends on the
last Sunday in December of each calendar year. The Company
may change its fiscal year upon (a) sixty (60) days prior
written notice to the Agent and the Banks and (b) in the
case of a change in fiscal year where the new fiscal year
end is not within forty-five (45) days of the fiscal year
end specified in the first sentence of this 9.13, receipt
by the Company of the prior written consent of the Majority
Banks, which consent shall not be unreasonably withheld,
provided that the granting of such consent by the Majority
Banks shall be conditioned upon the Company's entering into
such appropriate amendments to this Agreement, and
delivering therewith such supplemental documents,
agreements, certificates, accounting reports, and legal
opinions, as may be reasonably requested by the Majority
Banks in order to reflect the impact of such change in
fiscal year on the terms hereof.
9.14. Additional Significant Subsidiaries and
Restricted Subsidiaries.
Within thirty (30) days after the formation or
acquisition by the Company or its Subsidiaries of any Person
which is not designated in this Agreement as a Hasbro
Company and otherwise meets the conditions set forth in the
definition of "Significant Subsidiary" herein for
constituting a Significant Subsidiary or meets the
conditions set forth in the definition of "Restricted
Subsidiary" herein for constituting a Restricted Subsidiary,
such Person will be deemed to be a Hasbro Company under this
Agreement and the Company will cause such Person to observe
all the obligations and be bound by all the limitations set
forth in this Agreement with respect to Hasbro Companies,
including, without limitation, if such Subsidiary is a
Significant Subsidiary, requiring the execution and delivery
of a Subordination Agreement in the form of, mutatis
mutandis, Exhibit F hereto; and if such Subsidiary is a
Restricted Subsidiary, requiring the execution and delivery
of a joinder agreement, in form and substance reasonably
satisfactory to the Agent, to the Guaranty and the
Subsidiary Security Agreement, together with other
documents, certificates and instruments (including
Perfection Certificates and UCC financing statements)
required to be delivered pursuant to such Security Documents
and otherwise as may be reasonably requested by the Agent.
Once any Person has been so designated as a Hasbro Company
hereunder, such Person shall continue to be a Hasbro Company
hereunder until the earlier of (i) the date on which such
Person ceases to be a Subsidiary of the Company in
accordance with the terms of 10.5.2 hereof or the last
sentence of 9.6 hereof, and (ii) the date on which such
Person shall have performed in full its obligations under
the Loan Documents and the Loan Documents to which such
Person is a party have ceased to be in force and effect.
9.15. Debt Ratings.
Promptly upon the issuance of any Debt Rating or the
change in any existing Debt Rating, the Company shall give
written notice of such Debt Rating and of the resultant Debt
Rating to the Agent. The Agent promptly shall furnish
copies of each of such notices to the Banks.
9.16. Agency Account Agreements.
The Company shall maintain the lock box account
maintained by the Company with Bank of America, N.A. as of
the date hereof, provided, however, if the Company
terminates such lock box account pursuant to 10.13 or
otherwise instructs account debtors or other obligors to
remit payments to an account other than such lock box
account, the Company shall have established new cash
management arrangements on terms reasonably satisfactory to
the Agent with financial institutions which have executed
agency account agreements in form and substance reasonably
satisfactory to the Agent.
9.17. Further Assurances.
The Company will cooperate with the Banks and execute
such further instruments and documents as the Banks shall
reasonably request to carry out to their reasonable
satisfaction the transactions contemplated by this Agreement
and the other Loan Documents.
10. CERTAIN NEGATIVE COVENANTS OF THE COMPANY.
The Company 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:
10.1. Restrictions on Indebtedness.
The Company will not permit any Operating Subsidiary of
the Company to create, incur, assume, guarantee or be or
remain liable with respect to, contingently or otherwise,
any Indebtedness other than:
(a) Intercompany Indebtedness of Operating
Subsidiaries of the Company;
(b) Indebtedness of Foreign Subsidiaries,
provided that the aggregate amount of such Indebtedness
of Foreign Subsidiaries guaranteed by the Company or
any Hasbro Company shall not exceed the aggregate
amount of the Foreign Scheduled Facilities;
(c) Subordinated Debt or other long term
unsecured Indebtedness having a maturity at least one
(1) year after the Final Maturity Date and providing
for no payments of principal prior to the Final
Maturity Date; provided that, in the case of the
incurrence of additional Subordinated Debt or other
long term unsecured Indebtedness by such Subsidiary
after the Effective Date, (i) the Company applies the
net cash proceeds of such additional Subordinated Debt
or other long term unsecured Indebtedness in accordance
with 2.10(a)(iii) and (ii) no Default or Event of
Default has occurred and is continuing at the time of
the incurrence of such additional Indebtedness or would
result after giving effect thereto;
(d) Indebtedness incurred in connection with the
acquisition after the date hereof of any real or
personal property by such Subsidiary or under any
Capitalized Lease, provided that the aggregate
principal amount of such Indebtedness of such
Subsidiaries shall not exceed the aggregate amount of
$10,000,000 at any one time;
(e) Indebtedness to the Banks and the Agent
arising under any of the Loan Documents and the "Loan
Documents" as such term is defined in the Credit Line
Agreement;
(f) sales of receivables in connection with asset
dispositions permitted under 10.5.2;
(g) other Indebtedness existing on the date
hereof and described on Schedule 10.1 hereto; and
(h) other Indebtedness in an aggregate principal
amount not to exceed $25,000,000 outstanding at any
time.
10.2. Restrictions on Liens.
The Company will not, and will not permit any
Subsidiary (other than any Foreign Subsidiary) to, (a)
create or incur or suffer to be created or incurred or to
exist any Lien upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon
the income or profits therefrom; (b) 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; (c) 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; or
(d) sell, assign, pledge or otherwise transfer any
"receivables" as defined in clause (g) of the definition of
the term "Indebtedness," with or without recourse (except
the conversion or exchange of accounts receivable into or
for notes receivable in connection with the compromise or
collection thereof, or as otherwise permitted by 10.5.2);
provided that the Company or any of its Subsidiaries may
create or incur or suffer to be created or incurred or to
exist:
(i) Liens to secure taxes, assessments and other
government charges or claims for labor, material or
supplies, but only to the extent that and so long as
the payment thereof shall not at the time be required
to be made in accordance with 9.9 hereof;
(ii) deposits or pledges made in connection with,
or to secure payment of, worker's compensation,
unemployment insurance, old age pensions or other
social security or insurance-related obligations, or to
secure the performance of bids, tenders, contracts
(other than those relating to borrowed money) or leases
(other than Capitalized Leases), or to secure statutory
obligations or surety or appeal bonds, or to secure
indemnity, performance or other similar bonds or
obligations required in the ordinary course of
business;
(iii) Liens in respect of judgments or awards
that have been in force for less than the applicable
appeal period so long as execution is not levied
thereunder or in respect of which the Company or the
appropriate Subsidiary of the Company shall at the time
in good faith be prosecuting an appeal or a proceeding
for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review;
(iv) Liens of carriers, warehousemen, mechanics
and materialmen, and other like Liens arising in the
ordinary course of business, in existence less than one
hundred twenty (120) days from the date of creation
thereof in respect of obligations not overdue or being
contested in good faith by appropriate proceedings,
with respect to which obligations the Company has set
aside on its books reserves in accordance with GAAP;
(v) encumbrances 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 Company or a Subsidiary of the
Company is a party, and other minor Liens, none of
which in the opinion of the Company interferes
materially with the use of the property affected in the
ordinary conduct of the business of the Company and its
Subsidiaries, which defects do not individually or in
the aggregate have a material adverse effect on the
business of the Hasbro Companies, considered as a
whole;
(vi) Liens consisting of purchase money security
interests in or purchase money mortgages on real or
personal property acquired after the date hereof to
secure purchase money Indebtedness incurred in
connection with the acquisition of such property or
Capitalized Leases, which Liens cover only the real or
personal property so acquired or leased provided that
the aggregate amount of Indebtedness secured by such
Liens and Capitalized Leases does not exceed
$50,000,000 outstanding at any time;
(vii) Liens existing on the date hereof and
listed on Schedule 10.2 hereto;
(viii) Liens securing the Secured Obligations
in favor of the Agent for the benefit of the Banks and
the Agent;
(ix) Liens on the property or assets of a Person
which becomes a Subsidiary of the Company after the
date hereof securing Indebtedness of such Subsidiary
permitted under 10.1 provided that (i) such Liens
existed at the time such Person became such a
Subsidiary and were not created in anticipation thereof
and (ii) any such Lien is not spread to cover any
property or assets of such Person after the time such
person becomes a Subsidiary;
(x) Liens (not otherwise permitted hereunder)
which secure obligations not exceeding $15,000,000 in
aggregate amount at any time outstanding;
(xi) Liens existing on assets or properties at the
time of the acquisition thereof by the Company or any
Subsidiary of the Company which were not created in
anticipation of the acquisition thereof by the Company
or such Subsidiary, and which do not materially
interfere with the use, occupancy, operation and
maintenance of the property or assets subject thereto
or extend to or cover any assets or property of the
Company or such Subsidiary other than the assets or
property being acquired or secure any Indebtedness not
permitted under 10.1;
(xii) any encumbrance or restriction
(including, without limitation, put and call agreements
and transfer restrictions, but not pledges) with
respect to the Capital Stock of any joint venture or
similar arrangement created pursuant to the joint
venture or similar agreements with respect to such
joint venture or similar arrangement; and
(xiii) a Lien on the shares of Capital Stock of
Infogrames and other Collateral covered by the Company
Stock Pledge Agreement to secure the Company's
obligations under a collar or other hedging agreement
between the Company and a third party reasonably
satisfactory to the Agent to hedge against fluctuations
in the price of such shares provided that (A) such
agreement is on terms and conditions reasonably
satisfactory to the Agent, (B) such Lien is limited to
the Collateral covered by the Company Stock Pledge
Agreement, and (C) the Agent, for the benefit of the
holders of Secured Obligations, has (x) a perfected
second priority security interest in and Lien upon such
shares (subject to Permitted Liens entitled to priority
under applicable law) and (y) a perfected security
interest in the Company's rights under such agreement.
10.3. Restrictions on Investments.
The Company 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) securities with maturities of one (1) year or
less from the date of acquisition issued or fully
guaranteed or insured by the United States Government
or any agency thereof;
(b) certificates of deposit and time deposits,
bankers acceptances and overnight bank deposits of any
Bank or of any commercial bank having capital and
surplus in excess of $500,000,000;
(c) repurchase obligations of any Bank or of any
commercial bank having capital and surplus in excess of
$500,000,000, having a term of not more than 30 days
with respect to securities issued or fully guaranteed
or insured by the United States Government or any
agency or instrumentality thereof;
(d) commercial paper of a domestic issuer rated
at least "A2" or the equivalent thereof by Standard &
Poor's or any successor rating agency or "P-2" or the
equivalent thereof by Moody's or any successor rating
agency (or if at such time neither is issuing ratings,
then a comparable rating of such other nationally
recognized rating agency as shall be approved by the
Agent in its reasonable judgment)
(e) securities with maturities of one (1) year or
less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of
the United States, by any political subdivision or
taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities
of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as
the case may be) are rated at least "A" by Standard &
Poor's or any successor rating agency or "A" by Moody's
or any successor rating agency (or if at such time
neither is issuing ratings, then a comparable rating of
such other nationally recognized rating agency as shall
be approved by the Agent in its reasonable judgment);
(f) securities with maturities of one (1) year or
less from the date of acquisition backed by standby
letters of credit issued by any Bank or any commercial
bank having capital and surplus in excess of
$500,000,000;
(g) shares of money market funds that are subject
to the risk limiting conditions of Rule 2a-7 or any
successor rule of the Securities and Exchange
Commission under the Investment Company Act of 1940, as
amended;
(h) investments similar to any of the foregoing
denominated in foreign currencies approved by the board
of directors or Treasurer of the Company, in each case
provided in clauses (a), (b) and (d) above, maturing
within twelve (12) months after the date of
acquisition;
(i) Investments existing on the date hereof;
(j) Investments arising from payments under the
Guaranty or guaranties of the Foreign Scheduled
Facilities;
(k) Investments received as proceeds of asset
dispositions permitted by 10.5.2;
(l) Investments consisting of loans and advances
to officers, directors and employees for moving,
entertainment, travel and other similar expenses and
other Investments in connection with the relocation of
employees in the ordinary course of business;
(m) Investments by the Company or a Subsidiary of
the Company in Subsidiaries formed for the purpose of
consummating Permitted Acquisitions or acquired in
connection with Permitted Acquisitions;
(n) Investments in the Company or any Subsidiary
of the Company, provided that neither the Company nor
any Restricted Subsidiary shall make any Investment in
any Foreign Subsidiary unless (i) such Investment is in
the ordinary course of business or is necessary in the
reasonable judgment of management of the Company for
the operation of the business of any Foreign Subsidiary
or Foreign Subsidiaries or (ii) after giving effect to
such Investment, all such Investments in Foreign
Subsidiaries made pursuant to this subclause (ii) do
not exceed $100,000,000 outstanding at such time.
(o) Investments permitted by 10.5.
(p) Investments in the nature of pledges or
deposits with respect to leases or utilities provided
to third parties in the ordinary course of business or
otherwise described under 10.2;
(q) Investments representing evidences of
Indebtedness, securities or other property received
from another Person in connection with any bankruptcy
or proceeding or other reorganization of such other
Person or as a result of foreclosure, perfection or
enforcement of any Lien or exchange for evidences of
Indebtedness, securities or other property of such
other Person;
(r) Investments constituting Capital
Expenditures, to the extent permitted by 11.4;
(s) Investments 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, to the extent permitted by 10.14;
(t) Investments consisting of loans and advances
to officers, directors or employees relating to
indemnification or reimbursement of any officers,
directors or employees in respect of liabilities
relating to their serving in any such capacity; and
(u) other Investments in an aggregate amount not
to exceed $15,000,000 at any one time outstanding.
10.4. Restricted Payments.
The Company will not make any Restricted Payment;
provided, however, so long as no Default or Event of Default
then exists or would result from such payment, the Company
may:
(a) declare or pay dividends on or in respect of
any shares of any class of Capital Stock of the Company
in any fiscal year in an aggregate amount not to exceed
the greater of the annual amount paid at the current
quarterly rate of three cents ($0.03) per share by the
Company and 25% of Consolidated Net Income for the
prior fiscal year; and
(b) make other Restricted Payments in any fiscal
year in an aggregate amount not to exceed $5,000,000.
10.5. Merger, Consolidation and Disposition of
Assets.
10.5.1. Mergers and Acquisitions.
The Company will not, and will not permit any of
its Subsidiaries to, become a party to any merger,
amalgamation or consolidation, or agree to or effect
any acquisition of at least a majority of the assets or
Capital Stock of any Person, or any business unit or
product line thereof (other than the acquisition of
assets in the ordinary course of business consistent
with past practices) except:
(a) the merger or consolidation of one (1) or
more of the Subsidiaries of the Company with and into
the Company, or the merger or consolidation of two (2)
or more Subsidiaries of the Company; provided that if
any of the parties to such merger or consolidation is a
Restricted Subsidiary, the survivor of such merger or
consolidation shall be a Restricted Subsidiary or the
Company; or
(b) the acquisition of stock or other securities
of, or any assets of, any Person, provided that:
(i) no Default or Event of Default has
occurred and is continuing or would result from
such acquisition;
(ii) not less than five (5) Business Days
prior to the consummation of such proposed
acquisition, the Company shall have delivered to
the Agent a Compliance Certificate demonstrating
pro forma compliance with the financial covenants
set forth in 11 hereof; and
(iii) the aggregate purchase price for
all such acquisitions shall not exceed (A)
$15,000,000 for the period from the Effective Date
up to and including the first anniversary of the
Effective Date and (B) $25,000,000 during the
period from the first anniversary of the Effective
Date up to the Final Maturity Date (it being
understood that any earnout payments in respect of
assets or business acquired prior to the Effective
Date shall not be included in the calculation of
such amount); or
(c) the acquisition of Capital Stock of any
Subsidiary of the Company existing on the Effective
Date from any then existing minority holder thereof.
10.5.2. Disposition of Assets.
The Company will not, and will not permit any of
its Subsidiaries to, become a party to or agree to or
effect any disposition or swap of assets, other than
(a) the sale of inventory, (b) the licensing of
intellectual property, (c) the disposition of obsolete
or other assets not necessary for the operation of the
Company's or such Subsidiary's business, in each case
in the ordinary course of business, (d) Asset Sales
provided that in the case of such Asset Sale, (i) no
Default or Event of Default has occurred and is
continuing or would result from such Asset Sale and
(ii) the Net Cash Sale Proceeds are applied to the
Loans as set forth in 2.10(a)(i); (e) the sale or
discount by any Foreign Subsidiary with or without
recourse of accounts receivable or notes receivable
arising in the ordinary course of business, or the
conversion or exchange of accounts receivable into or
for notes receivable in connection with the compromise
or collection thereof, (f) disposition of assets by the
Company to any of its Restricted Subsidiaries or by any
Subsidiary to the Company or any of its Restricted
Subsidiaries, or by any Foreign Subsidiary to the
Company or any Subsidiary, (g) the abandonment, sale or
other disposition of intellectual property that, in the
reasonable judgment of the Company, is no longer
economically practicable to maintain or useful in the
conduct of the business of the Hasbro Companies taken
as a whole, (h) any sale or disposition of any claim as
a creditor in a bankruptcy or similar proceeding in the
ordinary course of business, and (i) any Specified
Sale. Nothing in this 10.5.2 shall prevent the
Company from discontinuing the operation and
maintenance of any of its properties, or those of its
Subsidiaries, or from dissolving or liquidating any
Subsidiary or from consolidating or merging any
Subsidiary with or into another Subsidiary or with and
into the Company, if such discontinuance, dissolution
or liquidation, consolidation or merger is, in the
judgment of the Company, desirable in the conduct of
the business of the Company and its Subsidiaries on a
consolidated basis and which does not in the aggregate
have a Material Adverse Effect.
10.6. Sale and Leaseback.
The Company will not, and will not permit any of its
Subsidiaries (other than a Foreign Subsidiary) to, enter
into any arrangement, directly or indirectly, whereby the
Company or any Subsidiary of the Company shall sell or
transfer any property owned by it in order then or
thereafter to lease such property or lease other property
that the Company or any Subsidiary of the Company intends to
use for substantially the same purpose as the property being
sold or transferred, except in connection with any Asset
Sale permitted under 10.5.2.
10.7. Compliance with Environmental Laws.
Except as would not reasonably be expected to result in
a Material Adverse Effect, the Company will not, and will
not permit any of its Subsidiaries to, (a) use any of the
Real Estate or any portion thereof for the handling,
processing, storage or disposal of Hazardous Substances
except to the extent required by its day-to-day operations
and in all instances in compliance with applicable
Environmental Laws, (b) cause or permit to be located on any
of the Real Estate any underground tank or other underground
storage receptacle for Hazardous Substances, (c) generate
any Hazardous Substances on any of the Real Estate except to
the extent required by its day-to-day operations and in all
instances in compliance with applicable Environmental Laws,
(d) 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 (e) 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.
10.8. Subordinated Debt.
The Company will not, and will not permit any of its
Subsidiaries to, amend, supplement or otherwise modify (a)
the subordination terms of any of the Subordinated Debt or
(b) any other terms of any of the Subordinated Debt, the
effect of which would be to shorten maturity or average
weighted life, increase pricing or amount, make covenants or
default provisions more restrictive, add covenants or
default provisions, or otherwise make such Subordinated Debt
materially more burdensome to the Company or such Subsidiary
or in any manner be materially adverse to the interests of
the Banks and the Agent, or prepay, redeem or repurchase any
of the Subordinated Debt or send any irrevocable notice of
prepayment, redemption or repurchase to holders of any
Subordinated Debt.
10.9. Employee Benefit Plans.
Neither the Company nor any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within
the meaning of 406 of ERISA or 4975 of the Code which
could result in a material liability for the Company or
any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur
an "accumulated funding deficiency", as such term is
defined in 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 Company or any of its Subsidiaries pursuant to
302(f) or 4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in
circumstances requiring the posting of security
pursuant to 307 of ERISA or 401(a)(29) of the Code;
(e) permit or take any action which would result
in the aggregate benefit liabilities (with the meaning
of 4001 of ERISA) of all Guaranteed Pension Plans
exceeding the value of the aggregate assets of such
Plans by more than $15,000,000 at any time,
disregarding for this purpose the benefit liabilities
and assets of any such Plan with assets in excess of
benefit liabilities; or
(f) permit or take any action which would
contravene any Applicable Pension Legislation in the
United States, except as such action would not be
reasonably likely to result in a Material Adverse
Effect.
10.10. Business Activities.
The Company will not, and will not permit any of its
Subsidiaries to, engage directly or indirectly (whether
through Subsidiaries or otherwise) in any type of business
other than the businesses conducted by them on the Effective
Date and in related businesses.
10.11. Transactions with Affiliates.
The Company will not, and will not permit any of its
Subsidiaries to, engage in any material transaction with any
Affiliate that is not the Company or a Restricted
Subsidiary (other than in connection with services as
employees, officers and directors), including any material
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 Company, 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 materially more favorable to such Person than would
have been obtainable on an arm's-length basis in the
ordinary course of business excluding (a) any transaction
with an Affiliate controlled by the Company entered into in
the ordinary course of business, (b) Restricted Payments
that otherwise comply with this Agreement and (c) any
transaction relating to the issuance of any class of Capital
Stock of the Company.
10.12. Restrictions on Negative Pledges.
The Company will not, nor will it permit any of its
Subsidiaries to, except for those existing agreements set
forth and described on Schedule 10.12, enter into or permit
to exist any arrangement or agreement (excluding this
Agreement, the Credit Line Agreement, the Loan Documents and
the "Loan Documents" under and as defined in the Credit Line
Agreement and except any industrial revenue or development
bonds, agreements governing any purchase money liens,
acquisition agreements or Capitalized Leases or operating
leases entered into in the ordinary course of business
otherwise permitted hereby (in which case any prohibition or
limitation shall only be effective against the assets
financed, acquired or leased thereby) which directly or
indirectly prohibits the Company or any of its Subsidiaries
from creating, assuming or incurring any Lien in favor of
the Banks or the Agent upon its properties, revenues or
assets or those of any of its Subsidiaries whether now owned
or hereafter acquired.
10.13. Cash Management.
The Company shall not (a) terminate its existing lock
box account arrangements with Bank of America, N.A., or (b)
instruct account debtors or other obligors to remit payments
to an account other than the lock box account referenced in
clause (a) above, in each case without providing at least
thirty (30) days prior written notice to the Agent.
10.14. Hedging Arrangements.
The Company will not, and will not permit any of its
Subsidiaries to, enter into 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, other than in the ordinary
course of business and not for purposes of speculation.
11. FINANCIAL COVENANTS.
The Company 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:
11.1. Minimum EBITDA.
The Company will not permit EBITDA for any Reference
Period ending with the fiscal quarter referenced in the
table below to be less than the amount set forth in the
table below opposite such fiscal quarter in such table:
Fiscal Quarter Ending: EBITDA
First Quarter 2001 $310,000,000
Second Quarter 2001 $270,000,000
Third Quarter 2001 $300,000,000
Fourth Quarter 2001 $400,000,000
First Quarter 2002 $400,000,000
Second Quarter 2002 $400,000,000
Third Quarter 2002 $425,000,000
Fourth Quarter 2002 $475,000,000
11.2. Total Funded Debt to EBITDA.
The Company will not permit the ratio of Consolidated
Total Funded Debt at the end of any fiscal quarter set forth
in the table set forth below to EBITDA for the Reference
Period then ended to exceed the ratio set forth opposite
such fiscal quarter set forth in table below:
Fiscal Quarter Ending: Ratio
Fourth Quarter 2000 3.25:1.00
First Quarter 2001 4.25:1.00
Second Quarter 2001 5.75:1.00
Third Quarter 2001 5.50:1.00
Fourth Quarter 2001 3.25:1.00
First Quarter 2002 3.00:1.00
Second Quarter 2002 3.15:1.00
Third Quarter 2002 3.40:1.00
Fourth Quarter 2002 2.55:1.00
11.3. Fixed Charge Coverage Ratio.
For any Reference Period ending with any fiscal quarter
referenced in the table below, the Company will not permit
the Fixed Charge Coverage Ratio for such Reference Period to
be less than the ratio set forth opposite such fiscal
quarter in such table:
Fiscal Quarter Ending: Ratio
First Quarter 2001 1.20:1.00
Second Quarter 2001 1.10:1.00
Third Quarter 2001 1.70:1.00
Fourth Quarter 2001 2.50:1.00
First Quarter 2002 2.60:1.00
Second Quarter 2002 2.55:1.00
Third Quarter 2002 2.90:1.00
Fourth Quarter 2002 3.45:1.00
11.4. Capital Expenditures.
During any period referenced in the table set forth
below, the Company will not, and will not allow any of its
Subsidiaries to, make Capital Expenditures that exceed the
aggregate amount set forth in the table below opposite such
period in such table:
Period Amount
First Quarter 2001 $30,000,000
First and Second $60,000,000
Quarter 2001
First, Second and Third
Quarter 2001 $80,000,000
First, Second, Third
and Fourth Quarter $90,000,000
2001
First Quarter 2002 $35,000,000
First and Second $70,000,000
Quarter 2002
First, Second and Third
Quarter 2002 $95,000,000
First, Second, Third
and Fourth Quarter $110,000,000
2002
12. CONDITIONS TO EFFECTIVENESS.
The obligations of the Banks to convert the outstanding
Syndicated Loans to Syndicated Loans hereunder and to make
the initial Syndicated Loans, the Swing Line Bank to make
the initial Swing Line 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 February 16, 2001:
12.1. Loan Documents, etc.
(a) Each of the Loan Documents shall have been duly
and properly authorized, executed and delivered by the
respective party or parties thereto and shall be in full
force and effect on and as of the Effective Date. The Agent
(i) shall have accepted delivery in Boston, Massachusetts of
each of the duly executed Loan Documents from each of the
other parties thereto, and (ii) shall have duly and properly
executed each of the Loan Documents, to which it is a party,
in Boston, Massachusetts.
(b) Executed original counterparts of each of the Loan
Documents (other than the Notes) shall have been furnished
to each Bank or the Agent in sufficient copies for each Bank
and an executed copy of the Notes for each Bank shall have
been delivered to such Bank.
12.2. Performance, etc.
Each of the Hasbro Companies shall have duly and
properly performed, complied with and observed each of the
covenants, agreements and obligations to be performed,
complied with or observed by it on or prior to such date
contained in the Loan Documents. No event shall have
occurred on or prior to the Effective Date and be continuing
on such Effective Date, and no condition shall exist on such
Effective Date, which constitutes a Default or an Event of
Default.
12.3. Certified Copies of Charter Documents.
Each Bank or the Agent (in sufficient copies for each
Bank) shall have received from each of the Hasbro Companies
a copy, each of which shall have been certified by a duly
authorized officer of such respective Hasbro Company to be
true and complete on and as of the Effective Date, of each
of (a) the charter or other incorporation documents of each
of the Hasbro Companies in effect on such date of
certification, and (b) the by-laws of each of the Hasbro
Companies as in effect on such date.
12.4. Proof of Corporate Action.
The Agent shall have received from each of the Hasbro
Companies copies for each Bank, certified by a duly
authorized officer of such respective Hasbro Company to be
true and complete on and as of the Effective Date, of the
records of all corporate action taken by each of the Hasbro
Companies to authorize (a) its execution and delivery of
each of the Loan Documents to which it is or is to become a
party, (b) its performance of all of its agreements and
obligations under each of the Loan Documents, and (c) the
borrowings contemplated by this Agreement.
12.5. Incumbency Certificates.
The Agent shall have received from each of the Hasbro
Companies copies for each Bank of an original incumbency
certificate, dated as of the Effective Date signed by a duly
authorized officer of each of the Hasbro Companies and
giving the name and bearing a specimen signature of certain
individuals who shall be authorized: (i) to sign, in the
name and on behalf of such Hasbro Company, each of the Loan
Documents to which it is or is to become a party; and (ii)
to give notices to make application for the Loans and
Letters of Credit and to take other action on behalf of such
Hasbro Company under the Loan Documents.
12.6. Proceedings and Documents.
All corporate, governmental and other proceedings in
connection with the transactions contemplated by the Loan
Documents, and all instruments and documents incidental
thereto, shall be in form and substance reasonably
satisfactory to the Agent and the Agent shall have received
all such counterpart originals or certified or other copies
of all such instruments and documents as the Agent shall
have reasonably requested.
12.7. Validity of Liens.
The Security Documents shall be effective to create in
favor of the Agent a legal, valid and enforceable first
priority (except for Permitted Liens entitled to priority
under applicable law) security interest in and Lien upon the
Collateral, as and to the extent provided therein. All
filings, recordings, deliveries of instruments and other
actions necessary or desirable in the reasonable opinion of
the Agent to protect and preserve such security interests
shall have been duly effected or arrangements to effect the
same shall have been made reasonably satisfactory to the
Agent. The Agent shall have received evidence thereof in
form and substance satisfactory to the Agent.
12.8. Perfection Certificates and UCC Search
Results.
The Agent shall have received from each of the Company
and the Restricted Subsidiaries a completed and fully
executed Perfection Certificate and the results of Uniform
Commercial Code searches with respect to the Collateral,
indicating no Liens other than Permitted Liens and otherwise
in form and substance reasonably satisfactory to the Agent.
12.9. Certificates of Insurance.
The Agent shall have received certificates of insurance
from an independent insurance broker dated as of the
Effective 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.
12.10. Agency Account Agreement.
The Agent shall have received an executed agency
account agreement, in form and substance reasonably
satisfactory to the Agent, from Bank of America, N.A.,
concerning the Agent's security interest in the lock box
account maintained by the Company therewith.
12.11. Legal Opinions.
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 Effective Date, in form and substance
reasonably satisfactory to the Banks and the Agent, from (a)
Barry Nagler, Esq., Senior Vice President and General
Counsel of the Company, and (b) Debevoise & Plimpton,
special counsel to the Company.
12.12. Payment of Fees.
The Company shall have paid to the Banks or the Agent,
as appropriate, the Closing Fee and the Agent's Fee pursuant
to 7.1 and 7.2, respectively.
12.13. Legality of Transactions.
No change in applicable law shall have occurred as a
consequence of which it shall have become and continue to be
unlawful (a) for any Bank to perform any of its agreements
or obligations under any of the Loan Documents to which it
is a party on the Effective Date or (b) for the Company to
perform any of its material agreements or obligations under
any of the Loan Documents to which it is a party on the
Effective Date.
12.14. Representations and Warranties.
Each of the representations and warranties made by or
on behalf of each of the Hasbro Companies to the Banks in
this Agreement or any of the other Loan Documents shall be
true and correct in all material respects when made, shall
for all purposes of this Agreement be deemed to be repeated
on and as of the Effective Date, and shall be true and
correct in all material respects on and as of such date.
13. CONDITIONS TO LOANS.
The obligations of the Banks to make any Syndicated
Loan, the Swing Line Bank to make any Swing Line Loan, and
of the Agent to issue, extend or renew any Letter of Credit,
in each case whether on or after the Effective Date, shall
also be subject to the satisfaction of the following
conditions precedent:
13.1. Legality of Transactions.
It shall not be unlawful (a) for any Bank to perform
any of its agreements or obligations under any of the Loan
Documents to which the Bank is a party on the Drawdown Date
of such Loans, or (b) for any of the Hasbro Companies to
perform any of its material agreements or obligations under
any of the Loan Documents to which it is a party on such
date.
13.2. Representations and Warranties.
Each of the representations and warranties made by or
on behalf of the Company and its Subsidiaries to the Banks
in this Agreement or any other Loan Document shall be true
and correct in all material respects when made and shall for
all purposes of this Agreement, be deemed to be repeated on
and as of the date of the Company's notice of borrowing for
such Loan on and as of the Drawdown Date of such Loan, or
the issuance, extension or renewal of such Letter of Credit,
and shall be true and correct in all material respects on
and as of each of such dates, except, in each case, as
affected by the consummation of the transactions
contemplated by the Loan Documents or to the extent
representations and warranties expressly referring to an
earlier date shall relate solely to such earlier date.
13.3. Performance, etc.
Each of the Hasbro Companies shall have duly and
properly performed, complied with and observed in all
material respects each of its covenants, agreements and
obligations contained in 9 and 10 hereof, and shall have
duly and properly performed, complied with and observed in
all material respects its covenants, agreements, and
obligations in all other articles of this Agreement and any
of the other Loan Documents to which it is a party or by
which it is bound on the Drawdown Date for such Loan or the
date of the issuance, extension or renewal of such Letter of
Credit. No event shall have occurred on or prior to such
date and be continuing on such date, and no condition shall
exist on such date, which constitutes a Default or an Event
of Default.
13.4. Proceedings and Documents.
All corporate, governmental and other proceedings in
connection with the transactions contemplated by the Loan
Documents and all instruments and documents incidental
thereto shall be in form and substance reasonably
satisfactory to the Agent and the Agent shall have received
all such counterpart originals or certified or other copies
of all such instruments and documents as the Agent shall
have reasonably requested.
13.5. Loan Documents.
Each of the Loan Documents required by 9.14 hereof
shall have been duly and properly authorized, executed and
delivered by the respective party or parties thereto and
shall be in full force and effect on and as of such date.
14. EVENTS OF DEFAULT; ACCELERATION.
14.1. Remedies Upon Default.
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 and/or lapse of time,
"Defaults") shall occur:
(a) if the Company shall fail to pay any
principal of the Loans 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) if the Company shall fail to pay any interest
on the Loans or the Unpaid Reimbursement Obligations,
any Fees hereunder, or other sums due hereunder, within
three (3) Business Days after the date on which 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) if the Company shall fail to comply with any
of its covenants contained in 9.2, 9.5, 9.6, the
first sentence of 9.7, 9.13, 9.14, 10 or 11;
(d) if the Company shall fail to comply with any
of its covenants contained in 9.10 or 9.17, and such
failure shall continue for a period of ten (10) days;
(e) if any of the Hasbro Companies shall fail to
perform any term, covenant or agreement contained in
any of the Loan Documents (other than those specified
in subsections (a), (b), (c) and (d) above) for twenty
(20) days after written notice of such failure has been
given to the Company by the Agent;
(f) if any representation or warranty of any of
the Hasbro Companies in any of the Loan Documents or in
any document or instrument delivered pursuant to or in
connection with this Agreement shall prove to have been
false in any material respect upon the date when made
or deemed to have been made or repeated;
(g) if any of the Hasbro Companies shall fail to
pay at maturity, or within any applicable period of
grace, any Indebtedness for borrowed money or credit
received or in respect of any Capitalized Leases or in
respect of any guaranties by such Hasbro Company of any
such Indebtedness of another Person, or fail to observe
or perform any material term, covenant or agreement
contained in any agreement by which it is bound,
evidencing or securing Indebtedness for borrowed money
or credit received or in respect of any Capitalized
Leases 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 to rescind the purchase of any such obligations, and
the aggregate amount of all of such Indebtedness for
borrowed money or credit received or in respect of any
Capitalized Leases of the Hasbro Companies or in
respect of any guaranties by any Hasbro Company of any
such Indebtedness of another Person in respect of which
any one or more of such defaults or failures shall at
any time be continuing under any one or more of such
agreements shall exceed $25,000,000 at any one time;
(h) if any of the Hasbro Companies makes an
assignment for the benefit of creditors, or admits in
writing its inability to pay or generally fails to pay
its debts as they mature or become due, or petitions or
applies for the appointment of a trustee or other
custodian, liquidator or receiver of any of the Hasbro
Companies or of any substantial part of the assets of
any of the Hasbro Companies, or commences any case or
other proceeding relating to any of the Hasbro
Companies under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any
jurisdiction now or hereafter in effect, or takes any
action to authorize or in furtherance of any of the
foregoing, or if any such petition or application is
filed or any such case or other proceeding is commenced
against any of the Hasbro Companies and the such Person
indicates its approval thereof, consent thereto or
acquiescence therein or such petition or application
shall not have been dismissed within forty-five (45)
days following the filing thereof;
(i) if a decree or order is entered appointing
any such trustee, custodian, liquidator or receiver or
adjudicating any of the Hasbro Companies 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 any of the Hasbro Companies in an
involuntary case under federal bankruptcy laws as now
or hereafter constituted;
(j) if there shall remain in force, undischarged,
unsatisfied and unstayed, for more than thirty (30)
days, whether or not consecutive, any final judgment
against any of the Hasbro Companies which, with other
outstanding final judgments, undischarged, unsatisfied
and unstayed, against the Hasbro Companies exceeds in
the aggregate $25,000,000;
(k) the holders of all or any part of the
Subordinated Debt shall accelerate the maturity of all
or any part of the Subordinated Debt, the Subordinated
Debt shall be repaid, redeemed or repurchased in whole
or in part or an offer to repay, redeem or repurchase
the Subordinated Debt in whole or in part shall have
been made;
(l) (i) if any of the Loan Documents shall be
cancelled, terminated, revoked or rescinded or the
Agent's Liens in a material portion of the Collateral
shall cease to be perfected (other than by the Agent's
failure to file Uniform Commercial Code financing
statements executed and delivered by the Company or any
Restricted Subsidiary, as applicable, or to make any
required filings executed and delivered by the Company
or any Restricted Subsidiary with the United States
Patent and Trademark Office or the United States
Copyright Office or to continue such Uniform Commercial
Code financing statements or filings with the United
States Patent and Trademark Office or United States
Copyright Office in accordance with applicable law), or
shall cease to have the priority contemplated by the
Security Documents, in each case otherwise than in
accordance with the terms thereof or with the express
prior written agreement, consent or approval of the
Banks, or (ii) 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 any of the
Hasbro Companies party thereto, or (iii) 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 and such judgment,
order, decree or ruling shall continue in full force
and effect for a period of thirty (30) days;
(m) there shall occur any loss, theft,
destruction of, or material damage to the Inventory
included in the Collateral resulting in an uninsured
loss in excess of $20,000,000 during any one policy
period, or any strike, lockout, labor dispute, embargo,
condemnation, act of God or public enemy, or other
casualty, which in any such case causes, for more than
fifteen (15) consecutive days, the cessation or
substantial curtailment of revenue producing activities
at any facility of the Company or any of its
Subsidiaries if such event or circumstance is not
covered by business interruption insurance and would
have a Material Adverse Effect;
(n) the Company 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 $15,000,000, or the Company 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 302(f)(1) of ERISA), provided
that such event (A) would be expected to result in
liability of the Company or any of its Subsidiaries to
the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $15,000,000 and (B) would
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;
(o) a Change of Control shall occur; or
(p) any "Event of Default" under and as defined
in the Credit Line Agreement shall occur;
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 Company
declare all amounts owing with respect to this Agreement and
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 Company; provided that in
the event of any Event of Default specified in 14.1(h) or
14.1(i) hereof, all such amounts shall become immediately
due and payable automatically and without any requirement of
notice from the Agent or any Bank.
14.2. Termination of Commitments.
If any one or more of the Events of Default specified
in 14.1(h) or 14.1(i) 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 Company 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 Company,
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
Company or any of its Subsidiaries of any of the
Obligations.
14.3. 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 14.1, 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 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.
14.4. Certain Rights of Cure.
(a) Any Default or Event of Default may be waived as
provided by 20 hereof. With the prior written consent of
all of the Banks, any Default or Event of Default so waived
shall be deemed to have been cured and not to be continuing,
and upon such waiver the Company and each of the Banks shall
be restored to their respective positions prior to the
existence of the Default or Event or Default, whether or not
acceleration of the maturity of the Loans shall have
occurred pursuant to this 14. The Commitments, if
terminated pursuant to this 14 by reason of any Event of
Default so waived, shall be reinstated. In the event that
the Commitments, once terminated, are so reinstated, the
Commitment Fee shall be payable as though no termination had
occurred. No such waiver shall extend to or affect any
subsequent or other Default or Event of Default or impair
any rights consequent thereon.
(b) Notwithstanding any other provision of this
Agreement to the contrary, if a Default or Event of Default
shall occur at any time when no Loans shall be outstanding
and all other Obligations shall have been paid in full, the
Company may give notice to the Agent and the Banks (i) of
the occurrence or continuance of such Default or Event of
Default, (ii) of the Company's request to terminate the
Commitments in their entirety pursuant to 2.2 hereof, and
(iii) subject to compliance by the Company with the
provisions of 2.2 hereof and this 14.4(b), of the
Company's request that the Default or Event of Default be
deemed not to have occurred, and upon termination of the
Commitments and payment by the Company of all Fees and other
sums payable by the Company hereunder, the Company, the
Agent, and the Banks shall be deemed to have agreed, by
mutual consent, that no Default or Event of Default shall
have occurred hereunder.
14.5. Distribution of Collateral Proceeds.
In the event that, following the occurrence or during
the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies
in connection with the enforcement of any the Security
Documents, or otherwise with respect to the realization upon
any of the Collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may
be) the reimbursement of the Agent for or in respect of
all reasonable costs, expenses, disbursements and
losses which shall have been incurred or sustained by
the Agent in connection with the collection of such
monies by the Agent, for the exercise, protection or
enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent under this
Agreement or any of the other Loan Documents or in
respect of the Collateral or in support of any
provision of adequate indemnity to the Agent against
any taxes or Liens which by law shall have, or may
have, priority over the rights of the Agent to such
monies;
(b) Second, to all other Secured Obligations
(other than obligations of the Company and its
Subsidiaries to any of the Banks and/or the Agent with
respect to any Interest Rate Agreements and Hedging
Agreements) in such order or preference among types of
Secured Obligations as the Majority Banks may
determine; provided, however, that (i) distributions
shall be made (A) pari passu among Secured Obligations
with respect to the Agent's Fee and all other Secured
Obligations and (B) with respect to each type of
Secured Obligation owing to the Banks, such as
interest, principal, fees and expenses, among the Banks
pro rata, based on the then outstanding amount of
Secured Obligations (and on the assumption that Secured
Obligations consisting of guaranties are equal to the
amount of the outstanding obligations guaranteed), and
(ii) the Agent may in its discretion make proper
allowance to take into account any Secured Obligations
not then due and payable;
(c) Third, to obligations of the Company and its
Subsidiaries to any of the Banks and/or the Agent with
respect to any Interest Rate Agreements and Hedging
Agreements;
(d) Fourth, upon payment and satisfaction in full
or other provisions for payment in full satisfactory to
the Banks and the Agent of all of the Secured
Obligations, to the payment of any obligations required
to be paid pursuant to 9-504(1)(c) of the Uniform
Commercial Code of The Commonwealth of Massachusetts;
and
(e) Fifth, the excess, if any, shall be returned
to the Company or to such other Persons as are entitled
thereto.
15. SETOFF.
Regardless of the adequacy of any collateral, during
the continuance of an Event of Default, any deposits or
other sums credited by or due from any of the Banks to the
Company and any securities or other property of the Company
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 Company to such Bank. ANY AND ALL RIGHTS TO
REQUIRE ANY BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
COMPANY ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED. Each of the Banks agree with each other Bank that
(a) if an amount to be set off is to be applied to
Indebtedness of the Company 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 (b) if such Bank shall
receive from the Company, 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 Company 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
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.
16. THE AGENT.
16.1. 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,
including the authority, without the necessity of any notice
to or further consent of the Banks, from time to time to
take any action with respect to any Collateral or the
Security Documents which may be necessary to perfect,
maintain perfected or insure the priority of the security
interest in and liens upon the Collateral granted pursuant
to the Security Documents, 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 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
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.
16.2. 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 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, and all
reasonable fees and expenses of any such Persons shall be
paid by the Company.
16.3. 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.
16.4. No Representations.
16.4.1. General.
The Agent shall not be responsible for the
execution or validity or enforceability of this
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 Company 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
Company 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 Company 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
Company 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 Agreement.
16.4.2. Closing Documentation, etc.
For purposes of determining compliance with the
conditions set forth in 12, each Bank that has
executed this 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 the 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 the Arranger active upon the
Company's account shall have received notice from such
Bank not less than five (5) days prior to the Effective
Date specifying such Bank's objection thereto and such
objection shall not have been withdrawn by notice to
the Agent or the Arranger to such effect on or prior to
the Effective Date.
16.5. Indemnification.
Without limiting the obligations of the Company
hereunder or under any other Loan Document, the Banks agree
to indemnify and hold harmless the Agent and its affiliates,
ratably in accordance with their respective Commitment
Percentages, for any and all liabilities, obligations,
losses, damages, penalties, claims, actions and suits
(whether groundless or otherwise) judgments, costs, expenses
(including any expenses for which the Agent or such
affiliate has not been reimbursed by the Company as required
by 18) or disbursements of any kind or nature whatsoever
which may at any time (including without limitation at any
time following the payment of the Notes) be imposed on,
incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement or the Notes or
any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or the
enforcement of any of the terms hereof or thereof or of any
such other documents, provided that no Bank shall be liable
for any of the foregoing to the extent they arise from the
Agent's gross negligence or willful misconduct. The
agreements in this 16.5 shall survive the payment of the
Notes and all other amounts payable hereunder.
16.6. Reimbursement.
Without limiting the provisions of 16.5, the Banks and
the Agent hereby agree that the Agent shall not be obliged
to make available to any Person any sum which the Agent is
expecting to receive for the account of that Person until
the Agent has determined that it has received that sum. The
Agent may, however, disburse funds prior to determining that
the sums which the Agent expects to receive have been
finally and unconditionally paid to the Agent, if the Agent
wishes to do so. If and to the extent that the Agent does
disburse funds and it later becomes apparent that the Agent
did not then receive a payment in an amount equal to the sum
paid out, then any Person to whom the Agent made the funds
available shall, on demand from the Agent:
(a) refund to the Agent the sum paid to that
Person; and
(b) reimburse the Agent for the additional amount
certified by the Agent as being necessary to indemnify
the Agent against any funding or other cost, loss,
expense or liability sustained or incurred by the Agent
as a result of paying out the sum before receiving it.
16.7. Non-Reliance on Agent and Other Banks.
Each Bank represents that it has, independently and
without reliance on the Agent or any other Bank, and based
on such documents and information as it has deemed
appropriate, made its own appraisal of the financial
condition and affairs of the Company and decision to enter
into this Agreement and the other Loan Documents and agrees
that it 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 appraisals and decisions in taking
or not taking action under this Agreement or any other Loan
Document. The Agent shall not be required to keep informed
as to the performance or observance by the Company of this
Agreement or any other Loan Document or any other document
referred to or provided for herein or therein or by any
other Person of any agreement or to make inquiry of, or to
inspect the properties or books of, any Person. Except for
notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other
information concerning any Person which may come into the
possession of the Agent or any of its affiliates. Each Bank
shall have access to all documents relating to the Agent's
performance of its duties hereunder, at such Bank's request.
Unless any Bank shall object promptly after receiving notice
of any action taken by the Agent hereunder, such Bank shall
conclusively be presumed to have approved the same.
16.8. Payments.
16.8.1. Payments to Agent.
A payment by the Company 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.
16.8.2. 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.
16.8.3. Delinquent Banks.
Notwithstanding anything to the contrary contained
in this Agreement or any of the other Loan Documents,
any Bank that fails (a) to make available to the Agent
its pro rata share of any Loan or to purchase any
Letter of Credit Participation or (b) to comply with
the provisions of 15 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 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 Company, 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.
16.9. 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 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.
16.10. Agent as Bank.
In its individual capacity, Fleet shall have the same
obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it
hereunder, and as the holder of any of the Notes and as the
purchaser of any Letter of Credit Participation, as it would
have were it not also the Agent.
16.11. Resignation or Removal of Agent.
The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Banks and the
Company. Upon any such resignation, the Majority Banks,
with the prior written consent of the Company (which consent
shall not be unreasonably withheld), shall have the right
to appoint a successor Agent; provided that no such consent
of the Company shall be required if a Default or Event of
Default has occurred and is then continuing. 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 and Poor's. 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 both as Agent and Swing Line Bank
(including without limitation the rights, powers, privileges
and duties of the retiring Agent with respect to such
Agent's commitment to issue Letters of Credit pursuant to
5), and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring
Agent's resignation, the provisions of this Agreement 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. In the event of a material breach of its duties
hereunder, the Agent may be removed by the Banks for cause
and the provisions of this 16.11 shall apply to the
appointment of a successor.
16.12. 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 16.12 it shall
promptly notify the other Banks of the existence of such
Default or Event of Default.
16.13. Duties in the Case of Enforcement.
In case one of more Events of Default have occurred and
shall be continuing, and whether or not acceleration of the
Obligations shall have occurred, the Agent shall, if (a) so
requested by the Majority Banks and (b) the Banks have
provided to the Agent such additional indemnities and
assurances against expenses and liabilities as the Agent may
reasonably request, proceed to enforce the provisions of the
Security Documents authorizing the sale or other disposition
of all or any part of the Collateral and exercise all or any
such other legal and equitable and other rights or remedies
as it may have in respect of such Collateral. The Majority
Banks may direct the Agent in writing as to the method and
the extent of any such sale or other disposition, the Banks
hereby agreeing to indemnify and hold the Agent, harmless
from all liabilities incurred in respect of all actions
taken or omitted in accordance with such directions,
provided that the Agent need not comply with any such
direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
17. EXPENSES.
The Company agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan
Documents and the other agreements and instruments mentioned
herein, (b) any taxes (including any interest and penalties
in respect thereto) payable by the Agent or any of the Banks
(other than taxes based upon the Agent's or any Bank's net
income) on or with respect to the transactions contemplated
by this Agreement (the Company hereby agreeing to indemnify
the Agent and each Bank with respect thereto), (c) the
reasonable fees, expenses and disbursements of the Banks'
Special Counsel or any local counsel to the Agent incurred
in connection with the preparation, 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, (d) the reasonable fees, expenses and
disbursements of the Agent or any of its affiliates incurred
by the Agent or such affiliate in connection with the
preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including
all reasonable collateral appraisal and examination charges,
(e) all reasonable out-of-pocket expenses (including without
limitation reasonable out of pocket attorneys' fees and
costs, and reasonable consulting, accounting, appraisal,
investment banking and similar professional fees and
charges) incurred by any Bank or the Agent in connection
with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Company or any of its
Subsidiaries, or the administration thereof after the
occurrence and during the continuance of a Default or Event
of Default and (ii) 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 Company
or any of its Subsidiaries relating to the Loan Documents or
the transactions contemplated thereby and (f) all reasonable
fees, expenses and disbursements of the Agent incurred in
connection with Uniform Commercial Code searches, Uniform
Commercial Code filings, intellectual property searches or
intellectual property filings. The covenants contained in
this 17 shall survive payment or satisfaction in full of
all other Obligations.
18. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless the
Agent, the Banks and each of their respective affiliates,
directors, officers, employees and representatives 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 Agreement or any of the
other Loan Documents or the transactions contemplated hereby
including, without limitation, (a) any actual or proposed
use by the Company or any of its Subsidiaries of the
proceeds of any of the Loans or Letters of Credit, (b) the
reversal or withdrawal of any provisional credits granted by
the Agent upon the transfer of funds from lock box, bank
agency, concentration accounts or otherwise under any cash
management arrangements with the Company or any Subsidiary
or in connection with the provisional honoring of funds
transfers, checks or other items, (c) any actual or alleged
infringement of any patent, copyright, trademark, service
mark or similar right of the Company or any of its
Subsidiaries comprised in the Collateral, (d) the Company or
any of its Subsidiaries entering into or performing this
Agreement or any of the other Loan Documents or (e) with
respect to the Company 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 incurred in connection with any
such investigation, litigation or other proceeding, but
excluding (i) in the case of the Agent or any affiliate,
director, officer, employee or representative thereof,
claims arising solely as a result of the gross negligence or
willful misconduct of the Agent or any of its affiliates,
directors, officers, employees or representatives, (ii) in
the case of any Bank or any affiliate, director, officer,
employee or representative thereof, claims arising solely as
a result of the gross negligence or willful misconduct of
such Bank or any of its affiliates, directors, officers,
employees or representatives, (iii) litigation commenced by
the Company against any Bank or the Agent which (A) seeks
enforcement of the Company's rights hereunder or under any
of the Loan Documents and (B) is finally determined
adversely to such Bank or the Agent, to the extent of such
adverse determination, and (iv) claims made or legal
proceedings commenced against the Agent or any Bank by any
securityholder or creditor thereof arising out of and based
upon rights afforded any such securityholder or creditor
solely in its capacity as such. In litigation, or the
preparation therefor, the Banks and the Agent and its
affiliates shall be entitled to select their own counsel
and, in addition to the foregoing indemnity, the Company
agrees to pay promptly the reasonable fees and expenses of
such counsel. If, and to the extent that the obligations of
the Company under this 18 are unenforceable for any reason,
the Company hereby agrees to make the maximum contribution
to the payment in satisfaction of such obligations which is
permissible under applicable law. The covenants contained
in this 18 shall survive payment or satisfaction in full of
all other Obligations.
19. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and
warranties made herein, in the Notes or in any documents or
other papers delivered by or on behalf of the Company
pursuant hereto shall be deemed to have been relied upon by
the Banks, notwithstanding any investigation heretofore or
hereafter made by it, and shall survive the making by the
Banks 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 amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding and
unpaid or any Bank has any obligation to make any Loans
hereunder or the Agent has any obligation to issue, extend
or renew any Letter of Credit, and for such further time as
may be otherwise be expressly specified in this Agreement.
All statements contained in any certificate or other paper
delivered to any Bank at any time by or on behalf of the
Company pursuant hereto or in connection with the
transactions contemplated hereby shall constitute
representations and warranties by the Company hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. Conditions to Assignment by Banks.
Except as provided herein, each Bank may assign to one
or more commercial banks, other financial institutions or
other Persons, all or a portion of its interests, rights and
obligations under this 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 (a) each of the Agent
and, unless a Default or Event of Default shall have
occurred and be continuing, the Company shall have given its
prior written consent to such assignment, which consent, in
the case of the Company and the Agent, will not be
unreasonably withheld; except that the consent of the
Company or the Agent shall not be required in connection
with any assignment by a Bank to (i) an existing Bank or
(ii) a Bank Affiliate of such Bank, (b) each such assignment
shall be of a constant, and not a varying, percentage of all
the assigning Bank's rights and obligations under this
Agreement, (c) each assignment (or, in the case of
assignments by a Bank to its Bank Affiliates, the aggregate
holdings of such Bank and its Bank Affiliates after giving
effect to such assignments), shall be in a minimum amount
equal to $10,000,000 or a multiple of $5,000,000 in excess
thereof (or, if less, such Bank's entire Commitment), and
(d) 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 H 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, (y) 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 (z) the assigning
Bank shall, to the extent provided in such assignment and
upon payment to the Agent of the registration fee referred
to in 20.3, be released from its obligations under this
Agreement.
20.2. 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 Agreement or the execution,
legality, validity, enforceability, genuineness,
sufficiency or value of this 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 Company 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
Company 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
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 Agreement, together with copies of the
most recent financial statements referred to in 8.8
and 9.5 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 Agreement;
(e) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to
exercise such powers under this 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;
(f) such assignee agrees that it will perform in
accordance with their terms all of the obligations that
by the terms of this Agreement are required to be
performed by it as a Bank;
(g) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and
Acceptance; and
(h) 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.
20.3. 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 Syndicated 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 Company, 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
Agreement. The Register shall be available for inspection
by the Company and the Banks at any reasonable time and from
time to time upon reasonable prior notice. Upon each such
recordation, the assigning Bank agrees to pay to the Agent a
registration fee in the sum of $3,500.
20.4. 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 Company and the
Banks (other than the assigning Bank). Within five (5)
Business Days after receipt of such notice, the Company, 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 Assignee in an amount equal to the amount assumed by
such 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. The surrendered Notes shall be cancelled and
returned to the Company.
20.5. 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 Agreement and the other Loan
Documents; provided that (a) each such participation shall
be in an amount of not less than $10,000,000, (b) any such
sale or participation shall not affect the rights and duties
of the selling Bank hereunder to the Company and (c) 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 Fee or Letter of Credit
Fees to which such participant is entitled or extend any
regularly scheduled payment date for principal or interest
(it being understood that (i) any vote to rescind any
acceleration made pursuant to 14.1 of amounts owing with
respect to the Loans and other Obligations and (ii) any
modifications of the provisions relating to amounts, timing
or application or prepayments of Loans and other Obligations
shall not require the approval of such participant).
20.6. Assignee or Participant Affiliated with the
Company.
If any assignee Bank is an Affiliate of the Company,
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 14.1 or 14.2, and the determination of
the Majority Banks shall for all purposes of this 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
Company or an Affiliate of the Company, 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 14.1 or 14.2 to the extent that
such participation is beneficially owned by the Company or
any Affiliate of the Company, and the determination of the
Majority Banks shall for all purposes of this 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. The provisions of this 20.6 shall not apply
to an assignee Bank or participant which is also a Bank on
the Effective Date or to an assignee Bank or participant
which has disclosed to the other Banks that it is an
Affiliate of the Company and which, following such
disclosure, has been excepted from the provisions of this
20.6 in a writing signed by the Majority Banks determined
without regard to the interest of such assignee Bank or
transferor Bank, to the extent of such participation, in
Loans or Reimbursement Obligations.
20.7. Miscellaneous Assignment Provisions.
Any assigning Bank shall retain its rights to be
indemnified pursuant to 18 with respect to any claims or
actions arising prior to the date of such assignment. If any
Reference Bank transfers all of its interest, rights and
obligations under this Agreement, the Agent shall, in
consultation with the Company and with the consent of the
Company and the Majority Banks, appoint another Bank to act
as a Reference Bank hereunder. Anything contained in this
20 to the contrary notwithstanding, any Bank may at any
time pledge or assign a security interest in all or any
portion of its interest and rights under this Agreement
(including all or any portion of its Notes) to secure
obligations of such Bank, including any pledge or assignment
to secure obligations to (a) any of the twelve Federal
Reserve Banks organized under 4 of the Federal Reserve Act,
12 U.S.C. 341 and (b) with respect to any Bank that is a
fund that invests in bank loans, to any lender or any
trustee for, or any other representative of, holders of
obligations owed or securities issued by such fund as
security for such obligations or securities or any
institutional custodian for such fund or for such lender.
Any foreclosure or similar action by any Person in respect
of such pledge or assignment shall be subject to the other
provisions of this 20. No such pledge or the enforcement
thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents, provide
any voting rights hereunder to the pledgee thereof, or
affect any rights or obligations of the Company or Agent
hereunder.
20.8. Increased Costs.
No assignee, participant or other transferee of any
Bank's rights shall be entitled to receive any greater
payment under 4.1 or 4.7 than such Bank would have been
entitled to receive with respect to the rights transferred,
unless such transfer is made with the Company's prior
written consent.
20.9. Assignment by Company.
The Company 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.
21. NOTICES, ETC.
Except as otherwise expressly provided in this
Agreement, all notices and other communications made or
required to be given pursuant to this 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 Company, at 1011 Newport Avenue,
Pawtucket, Rhode Island 02862-0200, Attention: David D.
R. Hargreaves, Senior Vice President and Chief
Financial Officer, with a copy to Phillip H. Waldoks,
Senior Vice President-Corporate Legal Affairs and
Secretary, Hasbro, Inc., 32 West 23rd Street, New York,
New York 10010, or at such other address or addresses
for notice as the Company shall last have furnished in
writing to the Person giving the notice;
(b) if to the Agent, at 100 Federal Street,
Boston, Massachusetts 02110, Attention: John P.
O'Loughlin, 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 (a) if delivered
by hand to a responsible officer of the party to which it is
directed, at the time of the receipt thereof by such
officer, (b) if sent by registered or certified first-class
mail, postage prepaid, when received by a responsible
officer or employee of the party to which it is directed,
provided that such receipt may be evidenced by return
receipt signed by a responsible officer or employee of the
party to which it is directed, and (c) if sent by telegraph,
telecopy, facsimile or telex, at the time of dispatch
thereof, if in normal business hours in the state where
received or otherwise at the opening of business on the next
Business Day.
22. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
22.1. 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
Company or any of its Subsidiaries pursuant to this
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 22, or becomes available to any of the
Banks or the Agent on a nonconfidential basis from a source
other than the Company or any of its Subsidiaries without a
duty of confidentiality to the Company or such Subsidiary
being violated, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for any of
the Banks or the Agent so long as the relevant Bank or Agent
informs such counsel of the agreement under this 22.1 and
such Bank assumes responsibility for compliance by such
counsel with such agreement, (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 or any Bank, (f) in connection with any litigation to
which any one or more of the Banks or the Agent is a party,
or in connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (g) to a Bank
Affiliate or a Subsidiary or affiliate of the Agent so long
as the relevant Bank or Agent informs such Bank Affiliate,
subsidiary or affiliate of the agreement under this 22.1
and such Bank or the Agent assumes responsibility for
compliance by such Person with such agreement, (h) to any
actual or prospective assignee or participant or any actual
or prospective counterparty (or its advisors) to any swap or
derivative transactions referenced to credit or other risks
or events arising under this Agreement or any other Loan
Document so long as such actual or prospective assignee,
participant or counterparty, as the case may be, agrees to
be bound by the provisions of this 22 pursuant to an
agreement in substantially the form of Exhibit I provided to
the Company, or (i) with the consent of the Company.
22.2. 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 Company 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 and afford the Company
the opportunity to obtain a protective order or other
appropriate remedy or agreement to maintain confidentiality
of the information.
22.3. Other.
In no event shall any Bank or the Agent be obligated or
required to return any materials furnished to it by the
Company or any of its Subsidiaries. The obligations of each
Bank under this 22 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 Company 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.
23. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this
Agreement to be given by the Banks may be given, and any
term of this Agreement, the other Loan Documents or any
other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Company or
any of its Subsidiaries of any terms of this 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 Company and the written consent of
the Majority Banks. Notwithstanding the foregoing, no
amendment, modification or waiver shall:
(a) without the written consent of the Company and
each Bank directly affected thereby:
(i) reduce or forgive the principal amount of
any Loans or Reimbursement Obligations, or reduce
the rate of interest on the Notes or the amount of
the Commitment Fee or Letter of Credit Fees;
(ii) increase the amount of the Commitments
or extend the expiration date of any Bank's
Commitment;
(iii) postpone or extend the Final Maturity
Date or any other regularly scheduled dates for
payments of principal of, or interest on, the
Loans or Reimbursement Obligations or any Fees or
other amounts payable to such Bank (it being
understood that (A) any vote to rescind any
acceleration made pursuant to 14.1 of amounts
owing with respect to the Loans and other
Obligations and (B) any modifications of the
provisions relating to amounts, timing or
application of prepayments of Loans and other
Obligations shall require only the approval of the
Majority Banks); and
(iv) other than pursuant to a transaction
permitted by the terms of this Agreement, release
all or substantially all of the Collateral or
release any of the Restricted Subsidiaries from
its guaranty obligations under the Guaranty
(excluding, if the Company or any Restricted
Subsidiary becomes a debtor under the federal
Bankruptcy Code, the release of "cash collateral",
as defined in Section 363(a) of the federal
Bankruptcy Code pursuant to a cash collateral
stipulation with the debtor approved by the
Majority Banks);
(b) without the written consent of all of the
Banks, amend or waive this 23 or the definition of
Majority Banks;
(c) without the written consent of the Agent,
amend or waive 3 or 15, the amount or time of payment
of the Agent's Fee or any Letter of Credit Fees payable
for the Agent's account or any other provision
applicable to 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 Company shall entitle the
Company to other or further notice or demand in similar or
other circumstances.
24. PROVISIONS OF GENERAL APPLICATIONS.
24.1. Governing Law.
THIS 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 (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE COMPANY AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS 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
COMPANY BY MAIL AT THE ADDRESS SPECIFIED IN 21. THE
COMPANY 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.
24.2. Headings.
The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions
hereof.
24.3. Counterparts.
This 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 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. Delivery by facsimile by any of the parties hereto
of an executed counterpart hereof or of any amendment or
waiver hereto shall be as effective as an original executed
counterpart hereof or of such amendment or waiver and shall
be considered a representation that an original executed
counterpart hereof or such amendment or waiver, as the case
may be, will be delivered.
24.4. 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 Agreement nor
any term hereof may be changed, waived, discharged or
terminated, except as provided in 17.12.
24.5. Waiver of Jury Trial.
THE COMPANY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS 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 OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY, INCLUDING ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF THE AGENT OR ANY BANK
RELATING TO THE ADMINISTRATION OF THE LOANS OR ENFORCEMENT
OF THE LOAN DOCUMENTS AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. Except as
prohibited by law, the Company hereby waives any right it
may have to claim or recover in any litigation referred to
in the preceding sentence any special, exemplary,
consequential or punitive damages or any damages other than,
or in addition to, actual damages. The Company (a)
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 (b)
acknowledges that the Agent and the Banks have been induced
to enter into this Agreement, the other Loan Documents to
which it is a party by, among other things, the waivers and
certifications contained herein.
24.6. Severability.
The provisions of this 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 Agreement in any jurisdiction.
25. TRANSITIONAL ARRANGEMENTS.
25.1. Existing Credit Agreement Superseded.
This Agreement shall on the Effective Date supersede
the Existing Credit Agreement in its entirety, except as
provided in this 25. On the Effective Date, the rights and
obligations of the parties evidenced by the Existing Credit
Agreement shall be evidenced by the Agreement and other Loan
Documents, the "Syndicated Loans" as defined in the Existing
Credit Agreement shall be converted to Syndicated Loans as
defined herein, and all outstanding letters of credit issued
by Fleet for the account of the Company prior to the
Effective Date shall, for the purposes of this Credit
Agreement, be Letters of Credit.
25.2. Return and Cancellation of Notes.
Upon receipt by any Bank of its Notes hereunder on the
Effective Date, any "Notes" of the Company held by such Bank
pursuant to and as defined in the Existing Credit Agreement
shall be deemed to be no longer outstanding. As soon as
reasonably practicable after its receipt of its Notes
hereunder on the Effective Date, each Bank will promptly
return to the Company, marked "Substituted" or "Cancelled",
as the case may be, any notes of the Company held by such
Bank pursuant to the Existing Credit Agreement.
25.3. Interest and Fees Under Superseded Agreement.
All interest and fees and expenses, if any, owing or
accruing under or in respect of the Existing Credit
Agreement through the Effective Date shall be calculated as
of the Effective Date (prorated in the case of any
fractional periods), and shall be paid as of the Effective
Date. Commencing on the Effective Date, the Commitment Fee
shall be payable by the Company to the Agent for the account
of the Banks in accordance with 2.2.
IN WITNESS WHEREOF, the undersigned have duly executed
this Agreement as an agreement under seal as of the date
first set forth above.
HASBRO, INC.
(Corporate Seal)
By: /s/ Martin R. Trueb
Martin R. Trueb
Senior Vice President and
Treasurer
FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), individually and as
Agent
By: /s/ John O'Loughlin
John O'Loughlin
Director
BANK OF AMERICA, N.A.
By: /s/ John W. Pocalyko
John W. Pocalyko
Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ T.M. Pitcher
T.M Pitcher
Managing Director
CITICORP USA, INC.
By: /s/ John S. Hutchins
John S. Hutchins
Managing Director
COMMERZBANK A.G., New York
Branch
By: /s/ Robert Donohue
Robert Donohue
Senior Vice President
By: /s/ Andrew P. Luck
Andrew P. Lusk
Assistant Vice President
MELLON BANK, N.A.
By: /s/ Janet R. Twomey
Janet R. Twomey
Vice President
SANPAOLO IMI S.P.A.
By: /s/ Luca Sacchi
Luca Sacchi
Vice President
By: /s/ Carlo Persico
Carlo Persico
DGM
BNP PARIBAS
By: /s/ Christopher Criswell
Christopher Criswell
Director
By: /s/ Arnaud Collin du
Bocage
Arnaud Collin du Bocage
EXHIBIT A-1
FORM OF [AMENDED AND RESTATED]* SYNDICATED NOTE
$______________________ as of ____________ ___, 200__
FOR VALUE RECEIVED, the undersigned, HASBRO, INC., a
Rhode Island corporation (hereinafter, together with its
successors in title and assigns, called the "Company"),
hereby absolutely and unconditionally promises to pay to the
order of [INSERT NAME OF BANK] (hereinafter together with
its successors in title and permitted assigns, called the
"Bank") at the times and in accordance with the terms and
conditions specified in the Credit Agreement (as defined
below) but in no event later than the Final Maturity Date
(as defined in the Credit Agreement), the principal sum of
[INSERT COMMITMENT AMOUNT] ($____________), or if less, the
aggregate unpaid principal amount of all Syndicated Loans
made by the Bank to the Company pursuant to the Amended and
Restated Revolving Credit Agreement (as the same may be
amended, restated, modified or supplemented and in effect
from time to time, the "Credit Agreement"), dated as of
February 16, 2001, by and among the Company, the Bank and
certain other lending institutions listed on Schedule 1
thereto and Fleet National Bank (f/k/a BankBoston, N.A.), as
agent (the "Agent") for the Bank and such other lending
institutions. All capitalized terms used herein which are
defined in the Credit Agreement shall have the same meanings
herein as therein.
[This Amended and Restated Syndicated Note (this
"Note") constitutes the amendment and restatement in its
entirety of the Syndicated Note, dated as of
_______________, issued by the Company to the Bank in the
original principal amount of $__________________ (the
"Original Note"), and is in substitution therefor and an
amendment and replacement thereof. Nothing herein shall be
construed to constitute payment of the Original Note or to
release or terminate any guaranty or lien, mortgage, pledge
or other security entered in favor of the Bank.]*
This Note evidences borrowings under and has been
issued by the Company in accordance with the terms of the
Credit Agreement. The Bank and any holder hereof are
entitled to the benefits of the Credit Agreement, and may
enforce the agreement of the Company contained therein,
including without limitation the Company's promise to pay
interest on the Outstanding Syndicated Loans until paid in
full at the rates per annum set forth in or established
pursuant to the Credit Agreement. Such interest shall be
payable on such dates as are determined from time to time
pursuant to the Credit Agreement and shall be calculated as
therein provided.
The Bank shall, and is hereby irrevocably authorized by
the Company to, endorse on the schedule attached to this
Note or a continuation of such schedule attached hereto and
made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided
that failure by the Bank to make any such notation shall not
affect any of the Company's obligations in respect of this
Note.
The Company has the right in certain circumstances to
prepay 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.
The Company and every endorser and guarantor of this
Note or the obligation represented hereby waive presentment,
demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent 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 Company hereunder
shall be governed by, and interpreted and determined in
accordance with, the laws of the Commonwealth of
Massachusetts (excluding the laws applicable to conflicts or
choice of law). This Note is a sealed instrument under the
laws of the Commonwealth of Massachusetts.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this Note to
be signed in its corporate name and its corporate seal to be
impressed hereon by its duly authorized officer as of the
day and in the year first above written.
HASBRO, INC.
By:___________________________
Name:
Title:
Attest:_______________________
Name:
Title:
Da Amount of Interes Amount of Balance Notatio
te Loan t Principal of n Made
Rate Paid or Principa By
Electio Prepaid l Unpaid
n
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
EXHIBIT A-2
FORM OF SYNDICATED LOAN REQUEST
______________, ___, 20__
Fleet National Bank, (f/k/a
BankBoston, N.A.), as Agent
100 Federal Street
Boston, Massachusetts 02110
Re: Syndicated Loan Request
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and
Restated Revolving Credit Agreement, dated as of February
16, 2001 (as the same may be amended and in effect from time
to time, the "Credit Agreement"), by and among Hasbro, Inc.
(the "Company"), Fleet National Bank (f/k/a BankBoston,
N.A.) and the other lending institutions listed on Schedule
1 thereto (collectively, the "Banks") and Fleet National
Bank (f/k/a BankBoston, N.A.), as agent (the "Agent") for
the Banks. 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 2.4 of the Credit Agreement, we hereby
request that a Syndicated Loan consisting of [a Base Rate
Loan in the principal amount of $______________ or a
Eurocurrency Rate Loan in the principal amount of
$_______________ with an Interest Period of _______________]
be made on __________ __, 20___. 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 represent and warrant that all of the
conditions set forth in 13 of the Credit Agreement have
been satisfied on the date of this request.
We hereby certify that the borrowing requested hereby
is in accordance with 2.1(a) of the Credit Agreement.
Very truly yours,
HASBRO, INC.
By:
Name:
Title:
EXHIBIT B-1
FORM OF [AMENDED AND RESTATED]* COMPETITIVE BID NOTE
$ as of ________________ ___, 200__
FOR VALUE RECEIVED, the undersigned HASBRO, INC., a
Rhode Island corporation (hereinafter, together with its
successors in title and assigns, called the "Company"),
hereby absolutely and unconditionally promises to pay to the
order of [INSERT NAME OF BANK] (the "Bank") at the times and
in accordance with the terms and conditions specified in the
Credit Agreement (as defined below) but in no event later
than the Final Maturity Date, the principal amount of
DOLLARS ( $ ) or, if less, the aggregate
unpaid principal amount of Competitive Bid Loans advanced by
the Bank to the Company pursuant to the Amended and Restated
Revolving Credit Agreement, dated as of February 16, 2001
(as the same may be amended, restated, modified or
supplemented and in effect from time to time, the "Credit
Agreement"), by and among the Company, the Bank, the other
lending institutions which are or may become parties to the
Credit Agreement and Fleet National Bank (f/k/a BankBoston,
N.A.), as Agent. The Company also promises to pay to the
order of the Bank interest on the principal balance hereof
through and including the date on which such principal
amount is paid in full, at the times and at the rates
provided in the Credit Agreement. All capitalized terms
used in this Amended and Restated Competitive Bid Note (this
"Note") and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
[This Note constitutes the amendment and restatement in
its entirety of the Competitive Bid Note, dated as of
_______________, issued by the Company to the Bank in the
original principal amount of $__________________ (the
"Original Note"), and is in substitution therefor and an
amendment and replacement thereof. Nothing herein shall be
construed to constitute payment of the Original Note or to
release or terminate any guaranty or lien, mortgage, pledge
or other security entered in favor of the Bank.]*
This Note evidences borrowings under and has been
issued by the Company in accordance with the terms of the
Credit Agreement. The Bank and any holder hereof are
entitled to the benefits of the Credit Agreement, and may
enforce the agreements of the Company contained therein,
including without limitation the Company's promise to repay
each Competitive Bid Loan advanced hereunder on the last day
of the applicable Interest Period with respect thereto.
The Bank shall, and is hereby irrevocably authorized by
the Company to, endorse on the schedule attached to this
Note or a continuation of such schedule attached hereto and
made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided
that failure by the Bank to make any such notations shall
not affect any of the Company's obligations in respect of
this Note.
The Company has the right in certain circumstances and
the obligation in 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.
The Company and every endorser and guarantor of this
Note or the obligation represented hereby waive presentment,
demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent 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 Company hereunder
shall be governed by, and interpreted and determined in
accordance with, the laws of the Commonwealth of
Massachusetts (excluding the laws applicable to conflicts or
choice of law). This Note is a sealed instrument under the
laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Company has caused this Note to
be signed in its corporate name by its duly authorized
officer as of the day and year first above written.
HASBRO, INC.
By:_________________
______
Name:
Title:
Attest:____________________
Name:
Title:
Amount
of
Interest Principa Balance
l of
Amount Rate Paid or Principa Notation
of l
Dat Loan Election Prepaid Unpaid Made By
e
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
____________________________________________________________
__________________
EXHIBIT B-2
FORM OF COMPETITIVE BID QUOTE REQUEST
[INSERT DATE]
To: Fleet National Bank (f/k/a BankBoston, N.A.),
as Agent (the "Agent")
From: Hasbro, Inc. (the "Company")
Re: Amended and Restated Revolving Credit
Agreement (as amended and in effect from time to
time, the "Credit Agreement"), dated as of
February 16, 2001, among the Company, the Banks
party thereto and the Agent
We hereby give notice pursuant to 2.5.1(b) of the
Credit Agreement that we request Competitive Bid Quotes for
the following proposed Competitive Bid Loan(s):
Date of Borrowing:
Principal Amount* Interest Period**
Maturity Date***
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Terms used herein have the meanings assigned to them in
the Credit Agreement.
HASBRO, INC.
By:_____________________________
Title:
_____________________
* Amount must be $5,000,000 minimum, or a greater
integral multiple of $1,000,000.
** Up to one hundred eighty (180) days; a maximum of three
(3) Interest Periods may be selected in one Competitive
Bid Quote Request.
*** Last day of Interest Period.
EXHIBIT B-3
FORM OF INVITATION FOR COMPETITIVE BID QUOTE
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to Hasbro,
Inc. (the "Company")
Pursuant to 2.5.1(c) of the Amended and Restated
Revolving Credit Agreement, dated as of February 16, 2001
(as amended and in effect from time to time, the "Credit
Agreement"), among the Company, the Banks party thereto and
Fleet National Bank (f/k/a BankBoston, N.A.), as Agent, we
are pleased on behalf of the Company to invite you to submit
Competitive Bid Quotes to the Company for the following
proposed Competitive Bid Loan(s):
Date of Borrowing:
Principal Amount Interest Period(s)*
Maturity Date**
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
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 [ ].
Capitalized terms used herein shall have the same
meanings assigned to such terms in the Credit Agreement.
FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), as Agent
By:___________________________________
Authorized Officer
____________________
* Up to three (3) Interest Periods may be specified.
** Last day of Interest Period
EXHIBIT B-4
FORM OF COMPETITIVE BID QUOTE
Fleet National Bank (f/k/a BankBoston, N.A.), as Agent
100 Federal Street
Boston, Massachusetts 02110
Attention: [Insert Name]
Re: Competitive Bid Quote to Hasbro, Inc. (the
"Company")
In response to your invitation on behalf of the
Company, dated __________ ___, 20__ we hereby make the
following Competitive Bid Quote on the following terms:
1. Quoting
Bank:_______________________________________________________
2. Person to contact at Quoting
Bank:______________________________________
3. Date of Borrowing:
_________________________________________________*
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:
Principal Interest
Competitive Bid
Amount** Period(s)***
Rate(s)****
$
$
5. Aggregate Principal Amount $
____________________
* As specified in the related Invitation for Competitive
Bid Quotes.
** Principal amount bid for each Interest Period (a) may
not exceed the lesser of (i) the Total Commitment and
(ii) the Maximum Availability in effect from time to
time during the applicable Interest Period and (b) may
not exceed the aggregate principal amount of
Competitive Bid Loans for which offers were requested.
Bids must be made for $5,000,000 or any larger multiple
of $1,000,000.
*** Up to one hundred eighty (180) days, as specified in
the related Invitation for Competitive Bid Quotes.
**** Specify rate of interest per annum (each rounded to the
nearest 1/1000th of 1%) for each applicable Interest
Period.
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the Amended and Restated Revolving
Credit Agreement, dated as of February 16, 2001, as amended
and in effect from time to time, among the Company, the
Banks party thereto and Fleet National Bank (f/k/a
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 Company.
Very truly yours,
[NAME OF BANK]
Dated:____________________________
By:_____________________________
Authorized Officer
EXHIBIT B-5
FORM OF NOTICE OF COMPETITIVE BID BORROWING
Fleet National Bank
(f/k/a BankBoston, N.A.), as Agent
100 Federal Street
Boston, Massachusetts 02110
Attention: [Insert Name]
Re: Amended and Restated Revolving Credit
Agreement (as amended and in effect from time to
time, the "Credit Agreement"), dated as of
February 16, 2001, among the Company, the Banks
party thereto and the Agent
We hereby give notice pursuant to 2.5.1(f) of the
Credit Agreement of our acceptance of the following
Competitive Bid Quote(s):
1.
Bank:_______________________________________________________
2. Date of Borrowing:
___________________________________________________*
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]
____________________
* As specified in the related Invitation for Competitive
Bid Quotes.
** Specify rate of interest per annum (each rounded to the
nearest 1/1000th of 1%) for each applicable Interest
Period.
4. The Aggregate Principal Amount for each Interest Period
is:
Interest Aggregate
Period Principal Amount
$
$
5. We hereby certify (a) that the borrowing accepted
hereby is in accordance with 2.5.1 of the Credit
Agreement and (b) that each of the representations and
warranties contained in the Credit Agreement or in any
other Loan Document made by or on behalf of the Company
and its Subsidiaries to the Banks delivered pursuant to
or in connection with the Credit Agreement was true and
correct in all material respects as of the date as of
which it was made and is true and correct in all
material respects 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)
and (c) that no Default or Event of Default has
occurred and is continuing.
Very truly yours,
HASBRO, INC.
Dated:____________________________
By:_____________________________
Name:
Title:
EXHIBIT C
FORM OF SWING LINE LOAN REQUEST
HASBRO, INC.
1027 Newport Avenue
Pawtucket, RI 02862
_____________ __, 20__
Fleet National Bank (f/k/a
BankBoston, N.A.), as Agent
100 Federal Street
Boston, MA 02110
Attention: John P. O'Loughlin, Director
Re: Swing Line Loan Request Under the Amended and
Restated Revolving Credit Agreement, dated as of
February 16, 2001
Ladies and Gentlemen:
Please refer to that certain Amended and Restated
Revolving Credit Agreement, dated as of February 16, 2001
(the "Credit Agreement"), by and among Hasbro, Inc. (the
"Company"), Fleet National Bank (f/k/a BankBoston, N.A.) and
the lending institutions party thereto (collectively, the
"Banks") and Fleet National Bank (f/k/a BankBoston, N.A.),
as agent for the Banks (the "Agent"). Capitalized terms
defined in the Credit Agreement and used in this letter
without definition shall have for purposes of this letter
the meanings assigned to them in the Credit Agreement.
Pursuant to 3.2 of the Credit Agreement, we hereby
request that a Swing Line Loan be made to the Company
consisting of a Base Rate Loan in the principal amount of
$__________ on __________ __, 20__ with a maturity date of
_______ __, 20__. We understand that this request is
irrevocable and binding on us and obligates us to accept the
requested Swing Line Loan on such date.
Very truly yours,
HASBRO, INC.
By: _____________________________
__
Title:
EXHIBIT D
FORM OF SWING LINE NOTE
$____________ as of _______________ ___, 200__
FOR VALUE RECEIVED, the undersigned HASBRO, INC., a
Rhode Island corporation (hereinafter, together with its
successors in title and assigns, called the "Company"),
hereby absolutely and unconditionally promises to pay to the
order of FLEET NATIONAL BANK (f/k/a BankBoston, N.A.,
hereinafter, together with its successors in title and
permitted assigns, called the "Swing Line Bank") at the
times and in accordance with the terms and conditions
specified in the Credit Agreement (as defined below) but in
no event later than the Swing Line Loan Maturity Date (as
defined in the Credit Agreement), the principal sum of
[INSERT AMOUNT] ($______________), or if less, the aggregate
unpaid principal amount of all Swing Line Loans made by the
Swing Line Bank to the Company pursuant to the Amended and
Restated Revolving Credit Agreement (as the same may be
amended, restated, modified or supplemented and in effect
from time to time, the "Credit Agreement"), dated as of
February 16, 2001, by and among the Company, the Swing Line
Bank and certain other lending institutions listed on
Schedule 1 thereto and Fleet National Bank (f/k/a
BankBoston, N.A.), as agent (the "Agent") for the Bank and
such other lending institutions. All capitalized terms used
herein which are defined in the Credit Agreement shall have
the same meanings herein as therein.
This Swing Line Note (this "Note") evidences borrowings
under and has been issued by the Company in accordance with
the terms of the Credit Agreement. The Swing Line Bank and
any holder hereof are entitled to the benefits of the Credit
Agreement, and may enforce the agreement of the Company
contained therein, including without limitation the
Company's promise to pay interest on the Outstanding Swing
Line Loans until paid in full at the rates per annum set
forth in or established pursuant to the Credit Agreement.
Such interest shall be payable on such dates as are
determined from time to time pursuant to the Credit
Agreement and shall be calculated as therein provided.
The Swing Line Bank shall, and is hereby irrevocably
authorized by the Company to, endorse on the schedule
attached to this Note or a continuation of such schedule
attached hereto and made a part hereof, an appropriate
notation evidencing advances and repayments of principal of
this Note, provided that failure by the Swing Line Bank to
make any such notation shall not affect any of the Company's
obligations in respect of this Note.
The Company has the right in certain circumstances to
prepay 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.
The Company and every endorser and guarantor of this
Note or the obligation represented hereby waive presentment,
demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent 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 Company hereunder
shall be governed by, and interpreted and determined in
accordance with, the laws of the Commonwealth of
Massachusetts (excluding the laws applicable to conflicts or
choice of law). This Note is a sealed instrument under the
laws of the Commonwealth of Massachusetts.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this Note to
be signed in its corporate name and its corporate seal to be
impressed hereon by its duly authorized officer as of the
day and in the year first above written.
HASBRO, INC.
By: __________________________
_____
Name:
Title:
Date Notation
Amount of Amount of Balance of Made By:
Swing Line Principal Principal
Loan Paid Unpaid
or Prepaid
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
HASBRO, INC.
____________ __, 200_
Fleet National Bank (f/k/a
BankBoston, N.A.), as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Reference is made to the Amended and Restated Revolving
Credit Agreement (the "Credit Agreement"), dated as of
February 16, 2001, by and among Hasbro, Inc. (the
"Company"), Fleet National Bank (f/k/a BankBoston, N.A.) and
the lending institutions party thereto (collectively, the
"Banks"), and Fleet National Bank (f/k/a BankBoston, N.A.),
as agent for the Banks (the "Agent"). Capitalized terms
used herein without definition shall have the respective
meanings set forth in the Credit Agreement.
Pursuant to 9.5(c) of the Credit Agreement, the
Company and the undersigned officer of the company (who has
reviewed the Loan Documents) hereby certify that (a) the
information furnished in the attached Compliance Certificate
Worksheet was true and correct as of the last day of the
fiscal quarter next preceding the date of this certificate,
(b) as of the date hereof, no Default or Event of Default
under the Credit Agreement has occurred, (c) the financial
statements delivered herewith were prepared in accordance
with GAAP, and (d) except as specified in the attached
schedule, if any, the representations and warranties set
forth in 8 of the Credit Agreement are true and correct in
all material respects as of the date hereof except to the
extent such representations and warranties expressly relate
to an earlier date, provided, however, that the
representations and warranties set forth in 8 of the Credit
Agreement shall be deemed to be made with respect to the
financial statements of the Company most recently delivered
to the Agent and the Banks pursuant to 9.5 of the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
certificate on this _____ day of ________________, 200_.
HASBRO, INC.
By:_________________________
Title:
COMPLIANCE CERTIFICATE WORKSHEET
As of ___________ __, 20__
Section
Calculation
11.1 Minimum EBITDA
for Reference Period ended on ______ __, 20__
A. EBITDA
(Sum of Item A(1) plus Items A(2), A(3) A(4), A(5) and
A(6),
minus Item A(7), plus solely for the fiscal quarter
ended
December 30, 2000 or any period that includes such
quarter, $210,000,000) $
(1) Consolidated Net Earnings (or Loss)
consolidated net earnings (or loss) after
deduction
of all expenses, taxes and other proper charges,
determined in accordance with GAAP, after
eliminating all extraordinary items of income for
such period: $
(2) income tax expense for such period, to the extent
deducted
in calculating Item A(1):
$
(3) interest expense for such period, to the extent
deducted
in calculating Item A(1):
$
(4) depreciation and amortization for such period, to
the extent
deducted in calculating Item A(1):
$
(5) non-cash charges for such period, to the extent
deducted
in calculating Item A(1):
$
(6) extraordinary losses for such period, to the extent
deducted
in calculating Item A(1):
$
(7) extraordinary gains for such period, to the extent
included
in calculating Item A(1):
$
B. Minimum EBITDA permitted under the Credit Agreement
(For any Reference Period ending with the fiscal
quarter
referenced in the table set forth below, not to be less
than
the amount set forth opposite such fiscal quarter in
such table)
Fiscal Quarter Ending: EBITDA
First Quarter 2001 $310,000,000
Second Quarter 2001 $270,000,000
Third Quarter 2001 $300,000,000
Fourth Quarter 2001 $400,000,000
First Quarter 2002 $400,000,000
Second Quarter 2002 $400,000,000
Third Quarter 2002 $425,000,000
Fourth Quarter 2002 $475,000,000
11.2 Consolidated Total Funded Debt to EBITDA
For the fiscal quarter ended ______ __, 20__
A.Consolidated Total Funded Debt $
(Sum of Item A(1) plus Item A(2) plus Item A(3)
plus Item A(4)
(1) Indebtedness for borrowed money or the obtaining
of
credit (including the face amount of letters of
credit
outstanding): $
(2) Indebtedness in respect of the deferred purchase
price
of assets (other than trade payables incurred in the
ordinary course of business):
$
(3) Indebtedness in respect of Capitalized Leases and
Synthetic Leases: $
(4) Indebtedness of the type referred to in Items
A(1), A(2)
and A(3) above which are guaranteed by the Company or
any of its Subsidiaries
$
B. EBITDA for the Reference Period then ended
(as set forth in Item 11.1(A)):
$
C. Ratio of Item A to Item B:
_____:_____
(For any fiscal quarter referenced in the table set
forth
below, not to exceed the ratio set forth opposite such
fiscal
quarter in such table)
Fiscal Quarter Ending: Ratio
Fourth Quarter 2000 3.25:1.00
First Quarter 2001 4.25:1.00
Second Quarter 2001 5.75:1.00
Third Quarter 2001 5.50:1.00
Fourth Quarter 2001 3.25:1.00
First Quarter 2002 3.00:1.00
Second Quarter 2002 3.15:1.00
Third Quarter 2002 3.40:1.00
Fourth Quarter 2002 2.55:1.00
11.3 Fixed Charge Coverage Ratio
For the Reference Period ended on ______ __, 20__
A. Consolidated Operating Cash Flow:
(Item A(1) minus Item A(2)):
$
(1) EBITDA for such period (as set forth in Item
11.1(A)): $
(2) Capital Expenditures made during such period:
$
B. Consolidated Total Debt Service
(Sum of Item B(1) plus Item B(2) plus Item B(3)):
$
(1) Consolidated Total Interest Expense for such
period: $
(2) scheduled repayments of principal during such
period
in respect of Consolidated Total Funded Debt (set
forth
in Item 11.2(A)) that becomes due and payable during
such period or is to become due and payable during
such period (excluding any repayments of principal
required under the Credit Agreement and the Credit
Line
Agreement): $
(3) Distributions paid during such period:
$
C. Ratio of Item A to Item B:
:
(For any Reference Period ending with any fiscal
quarter
referenced in the table below, not to be less than the
ratio
set forth opposite such fiscal quarter in such table)
Fiscal Quarter Ending: Ratio
First Quarter 2001 1.20:1.00
Second Quarter 2001 1.10:1.00
Third Quarter 2001 1.70:1.00
Fourth Quarter 2001 2.50:1.00
First Quarter 2002 2.60:1.00
Second Quarter 2002 2.55:1.00
Third Quarter 2002 2.90:1.00
Fourth Quarter 2002 3.45:1.00
11.4 Capital Expenditures
For the period from __________ to __________:
A. Capital Expenditures made during such period:
$
B. Maximum amount of Capital Expenditures permitted
under the Credit Agreement
(For any period referenced in the table below, not to
exceed
the aggregate amount set forth in the table below
opposite
such period in such table)
Period Amount
First Quarter 2001 $30,000,000
First and Second Quarter $60,000,000
2001
First, Second and Third
Quarter 2001 $80,000,000
First, Second, Third and
Fourth Quarter 2001 $90,000,000
First Quarter 2002 $35,000,000
First and Second Quarter $70,000,000
2002
First, Second and Third
Quarter 2002 $95,000,000
First, Second, Third and
Fourth Quarter 2002 $110,000,000
EXHIBIT F
FORM OF SUBORDINATION AGREEMENT
This AMENDED AND RESTATED SUBORDINATION AGREEMENT,
dated as of February 16, 2001 (as amended and in effect from
time to time, this "Subordination Agreement"), is by and
among (a) HASBRO, INC., a Rhode Island corporation having
its principal place of business at 1027 Newport Avenue,
Pawtucket, Rhode Island 02862 (the "Company"), (b) HASBRO
INTERNATIONAL, INC., a Delaware corporation having its
principal place of business at 1027 Newport Avenue,
Pawtucket, Rhode Island 02862 ("HII"), (c) WIZARDS OF THE
COAST, INC., a Washington corporation having its principal
place of business at 1801 Lind Ave SW, Renton, Washington
98055 ("Wizards" and together with HII, the "Significant
Subsidiaries") and (d) FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), a national banking association having an
office at 100 Federal Street, Boston, Massachusetts 02110,
as agent for (in such capacity, the "Agent") the Banks (as
such term is hereinafter defined directly or by reference).
WHEREAS, the Company is the direct or indirect legal
and beneficial owner of all the issued and outstanding
shares of each class of the capital stock of each of the
Significant Subsidiaries;
WHEREAS, the Significant Subsidiaries 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 Company, the Agent, and the Banks are
entering into an (a) Amended and Restated Revolving Credit
Agreement, dated as of February 16, 2001 (as amended and in
effect from time to time, the "Revolving Credit Agreement")
and (b) Amended and Restated Line of Credit Agreement, dated
as of February 16, 2001 (as amended and in effect from time
to time, the "Credit Line Agreement", and together with the
Revolving Credit Agreement, the "Credit Agreements") which
amend and restate, respectively, the (i) Revolving Credit
Agreement, dated as of September 10, 1998 (as amended and in
effect from time to time, the "Existing Revolving Credit
Agreement") and (ii) Line of Credit Agreement, dated as of
June 28, 2000 (as amended and in effect from time to time,
the "Existing Credit Line Agreement", and together with the
Existing Revolving Credit Agreement, the "Existing Credit
Agreements").
WHEREAS, in connection with the Existing Credit
Agreements, (a) the Company, HII and the Agent, for the
benefit of the Banks and the Agent, entered into a
Subordination Agreement, dated as of September 10, 1998 and
(b) the Company, the Significant Subsidiaries and the Agent,
for the benefit of the Banks and the Agent, entered into a
Subordination Agreement, dated as of June 28, 2000 (as each
has been amended, supplemented or otherwise modified from
time to time, the Subordination Agreements referred to in
clauses (a) and (b) are hereinafter collectively referred to
as the "Existing Subordination Agreements");
WHEREAS, it is a condition precedent to the amendment
and restatement of the Existing Credit Agreements and to the
Banks' making any loans or otherwise extending credit to the
Company under the Credit Agreements that the Company and
each of the Significant Subsidiaries execute and deliver to
the Agent, for the benefit of the Banks and the Agent, an
amended and restated subordination agreement substantially
in the form hereof;
WHEREAS, the Significant Subsidiaries will receive
substantial direct and indirect benefit from the loans and
extension of credit by the Banks and the Agent to the
Company pursuant to the Credit Agreements (which benefits
are hereby acknowledged); and
WHEREAS, the Company and each of the Significant
Subsidiaries wish to amend and restate the Existing
Subordination Agreements as provided herein;
NOW THEREFORE, in consideration of the premises
contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. All capitalized terms used herein without
definitions shall have both the respective meanings provided
therefor in the Credit Agreements, provided that if the
Credit Agreements provide different meanings for any
capitalized term used herein without definition, such
capitalized term shall have both such meanings.
2. The Company and each of the Significant
Subsidiaries covenant and agree with the Agent that all of
the Subordinated Indebtedness (as hereinafter defined) of
the Company to the Significant Subsidiaries is hereby
expressly subordinated and made junior, to the extent and in
the manner hereinafter set forth in this agreement, in right
of payment to the prior payment in full of all the
Obligations. Until all the Obligations shall have been paid
in full and the Total Commitment shall have been terminated,
(a) the Company shall not, directly or indirectly, make any
payment of principal or interest on account of or transfer
any collateral for any part of any and all indebtedness of
the Company to each of the Significant Subsidiaries, whether
direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising (referred to herein
as the "Subordinated Indebtedness"), whether evidenced by
negotiable or non-negotiable instruments, securities or
other writings, book entries or otherwise, provided that
prior to the occurrence of an Event of Default, the Company
may make payments of principal and interest on account of
the Subordinated Indebtedness, (b) upon the occurrence, and
during the continuance of, an Event of Default, none of the
Significant Subsidiaries shall demand or accept from the
Company or any other Person any payment or collateral in
respect of the Subordinated Indebtedness, nor cancel, set
off or otherwise discharge any part of the Subordinated
Indebtedness, and (c) neither the Significant Subsidiaries
nor the Company shall otherwise take or permit any action
prejudicial to or inconsistent with the terms of this
agreement.
3. If an Event of Default shall have occurred and be
continuing, the Agent may, by notice to the Company and the
Significant Subsidiaries, demand that all payments made
thereafter by the Company in respect of the Subordinated
Indebtedness be made to the Agent for the benefit of the
Banks in payment of the Obligations. Upon receipt of such
notice from the Agent, the Company shall make all such
payments in respect of the Subordinated Indebtedness
directly to the Agent for application to the Obligations.
Each of the Significant Subsidiaries agrees to subordinate
any subrogation claims it may have in respect of any such
payments until the Obligations shall have been paid in full.
4. None of the Significant Subsidiaries will commence
or join with any other creditor or creditors of the Company
in commencing any bankruptcy, reorganization or insolvency
proceedings against the Company. At any meeting of
creditors of the Company or, in the event of any proceeding,
voluntary or involuntary, for the distribution, division or
application of all or part of the assets or business of the
Company or the proceeds thereof, whether such proceeding be
for the liquidation, reorganization, dissolution or winding
up of the Company or its business, a receivership,
insolvency or bankruptcy proceeding, an assignment for the
benefit of creditors or a proceeding by or against the
Company for relief under any bankruptcy, reorganization or
insolvency law or any law relating to the relief of debtors,
readjustment of indebtedness, reorganization, arrangement,
composition or extension or otherwise, if all Obligations
have not been paid in full at the time, the Agent is hereby
irrevocably authorized at any such meeting or in any such
proceeding:
(a) To enforce claims comprising Subordinated
Indebtedness either in its own name or the name of any of
the Significant Subsidiaries, by proof of debt, proof of
claim, suit or otherwise;
(b) To collect any assets of the Company
distributed, divided or applied by way of dividend or
payment, or any such securities issued, on account of the
Subordinated Indebtedness and apply the same, or the
proceeds of any realization upon the same that the Agent in
its discretion elects to effect, to the Obligations until
all the Obligations shall have been paid in full, rendering
any surplus to the applicable Significant Subsidiary;
(c) To vote claims comprising the Subordinated
Indebtedness, to accept or reject any plan of partial or
complete liquidation, reorganization, arrangement,
composition or extension; and
(d) To take generally any action in connection
with any such meeting or proceeding which any of the
Significant Subsidiaries in their roles as creditors might
otherwise take.
5. Except as provided in 2 hereof, should any
payment on account of or any collateral for any part of the
Subordinated Indebtedness be received by any of the
Significant Subsidiaries, such payment or collateral shall
be delivered forthwith to the Agent by such Significant
Subsidiaries for application to the Obligations, in the form
received except for the addition of any endorsement or
assignment which may have been omitted. Until so delivered
any such payment or collateral shall be held by such
Significant Subsidiary in trust for the Agent and shall not
be commingled with other funds or property of such
Significant Subsidiary.
6. No part of the Subordinated Indebtedness is
evidenced by any instrument, security or other writing
(other than open-account indebtedness entries on the books
of the Company or the Significant Subsidiaries) a copy of
which has not previously been or is not concurrently being
delivered to the Agent and the Banks; the Significant
Subsidiaries are the lawful owners of the Subordinated
Indebtedness and no part thereof has been assigned to or
subjected to any security interest in favor of anyone.
Until all the Obligations have been paid in full, the
Company shall not issue any instrument, security or other
writing evidencing any part of the Subordinated Indebtedness
except at the request of and in the manner requested by the
Agent; and none of the Significant Subsidiaries shall assign
or subordinate any of the Subordinated Indebtedness except
to or in favor of the Agent or upon terms satisfactory in
form and substance to the Agent and the Banks.
7. The Agent is hereby authorized to demand specific
performance of this agreement, whether or not the Company
shall have complied with the provisions hereof applicable to
it, at any time when any of the Significant Subsidiaries
shall have failed to comply with any provision hereof
applicable to it. Each of the Significant Subsidiaries
hereby irrevocably waives any defense based on the adequacy
of a remedy at law which might be asserted as a bar to the
remedy of specific performance hereof in any action brought
therefor by the Agent. Each of the Significant Subsidiaries
further waives presentment, notice and protest in connection
with all negotiable instruments evidencing the Obligations
or the Subordinated Indebtedness to which it may be a party,
notice of the acceptance of this agreement by the Agent,
notice of any loan made, extension granted or other action
taken in reliance hereon and all demands and notices of
every kind (except as expressly provided in the Credit
Agreements) in connection with this Subordination Agreement,
the Obligations or the Subordinated Indebtedness; assent to
any renewal, extension or postponement of the time of
payment of the Obligations or any other indulgence with
respect thereto, to any substitution, exchange or release of
collateral therefor and to the addition or release of any
person primarily or secondarily liable thereon; and agree to
the provisions of any instrument, security or other writing
evidencing the Obligations.
8. The Significant Subsidiaries shall do, make,
execute and deliver all such additional and further acts,
things, deeds, assurances and instruments as the Agent may
reasonably require more completely to vest in and assure to
the Agent its rights hereunder or in any of the Subordinated
Indebtedness.
9. The Company and the Significant Subsidiaries shall
pay to the Agent on demand any and all expenses, including
reasonable counsel fees, incurred or paid by the Agent in
protecting, preserving or enforcing its rights hereunder.
After deducting all of said expenses, the residue of any
proceeds of collection or sale of any negotiable or non-
negotiable instruments, securities or other writings
evidencing any of the Subordinated Indebtedness shall be
applied to the payment of the Obligations ratably among the
Banks and the Agent and, while giving effect to such ratable
applications, proper allowance being made for interest on
Obligations not then due, and any excess shall be returned
to the applicable Significant Subsidiary.
10. If any warranty herein contained shall prove to
have been materially false when made or in the event of a
breach by the Company or any Significant Subsidiary in the
performance of any of the terms hereof, the Agent may, at
its option, declare that an Event of Default has occurred
pursuant to and in accordance with the terms of 14 of the
Credit Agreements (taking into account any applicable grace
period provided for therein), whereupon the Agent and the
Banks shall have all of the rights and remedies provided for
herein and in the other Loan Documents.
11. The Company and each of the Significant
Subsidiaries hereby acknowledge the agency provisions set
forth in 16 of the Credit Agreements and the authority of
the Agent thereunder to act for the Banks with respect to
this Subordination Agreement as provided in each such 16.
12. The rights granted to the Agent hereunder are
solely for the protection of the Agent and the Banks and
nothing herein contained shall impose on the Agent any
duties with respect to any property of the Company or any
Significant Subsidiary received hereunder beyond reasonable
care in its custody and preservation while in the Agent's
possession. The Agent shall have no duty to preserve rights
against prior parties in any instrument or chattel paper
received hereunder.
13. All rights and interests of the Agent and the
Banks hereunder, and all agreements and obligations of the
Significant Subsidiaries and the Company under this
Subordination Agreement, shall remain in full force and
effect irrespective of:
(i)any lack of validity or enforceability of the
Credit Agreements, the Notes or any other
agreement or instrument relating thereto:
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of
or any consent to any departure from the Credit
Agreements or the Notes, including, without
limitation, any increase in the Obligations
resulting from the extension of additional credit
to the Company or any of its subsidiaries or
otherwise;
(iii) any taking, exchange, release or
nonperfection of any other collateral, or any
taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or
any of the Obligations;
(iv) any manner of application of collateral, or
proceeds thereof, to all or any of the
Obligations, or any manner of sale or other
disposition of any collateral for all or any of
the Obligations or any other assets of the Company
or any of its subsidiaries; and
(v) any other circumstances (other than payment in
full of the Obligations and the termination of the
Total Commitment) which might otherwise constitute
a defense available to, or a discharge of, the
Company or a subordinated creditor.
This Subordination Agreement shall continue to be
effective or be reinstated, as the case may be, if at any
time any payment of any of the Obligations 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 has not been made.
14. The Significant Subsidiaries and the Company each
hereby represent and warrant as follows:
(a) The Subordinated Indebtedness now outstanding
has been duly authorized, issued and delivered by the
Company and constitutes the legal, valid and binding
obligations of the Company enforceable against the Company
in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, marshalling or other
laws relating to or affecting the enforcement generally of
creditors' rights and remedies (including such as may deny
giving effect to waivers of debtors' rights). There exists
no default in respect of any such Subordinated Indebtedness.
(b) The Significant Subsidiaries are the legal
and beneficial owners of the Subordinated Indebtedness now
outstanding, free and clear of any lien, security interest,
option or other charge or encumbrance (other than Permitted
Liens).
(c) There are no conditions precedent to the
effectiveness of this Subordination Agreement that have not
been satisfied or waived.
15. All notices and other communications provided for
hereunder shall be in writing (including telecopier,
telegrahic, telex or cable communication) and mailed,
telecopied, telegraphed, telexed, cabled or delivered, if to
HII or Wizards, c/o the Company at 1027 Newport Avenue,
Pawtucket, Rhode Island 02862 and if to the Company, the
Agent or any Bank, at its address specified in the Credit
Agreements; or as to each party, at such other address as
shall be designated by such party in a written notice to
each other party. All such notices and other communications
shall, when mailed, telecopied, telegraphed, telexed or
cabled, be effective when, respectively, deposited in the
mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable
company.
16. This Subordination Agreement is intended to take
effect as a sealed instrument, shall be binding upon the
Company and each of the Significant Subsidiaries and their
respective successors and assigns, shall inure to the
benefit of the Agent and the Banks, their successors and
assigns and shall be construed in accordance with the laws
of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this
Subordination Agreement to be duly executed as of this
______________ day of February, 2001.
(Corporate Seal) HASBRO, INC.
By:
Title:
HASBRO INTERNATIONAL, INC.
By:
Title:
WIZARDS OF THE COAST, INC.
By:
______________________________
Title:
____________________________
FLEET NATIONAL BANK, (f/k/a
BankBoston, N.A.), as Agent
By:
Title:
EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Revolving
Credit Agreement, dated as of February 16, 2001 (as from
time to time amended and in effect, the "Credit Agreement"),
by and among (a) Hasbro, Inc., a Rhode Island corporation
(the "Company"), (b) Fleet National Bank (f/k/a BankBoston,
N.A.), a national banking association and the other lending
institutions listed on Schedule 1 thereto (collectively, the
"Banks"), and (c) Fleet National Bank (f/k/a BankBoston,
N.A.), as agent for the Banks (in such capacity, the
"Agent"). 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
____________% 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
____________%, the aggregate outstanding principal balance
of its Syndicated Loans equals $_______________, the
aggregate outstanding principal balance of its Competitive
Bid Loans equals $_______________, and the aggregate amount
of its participations in respect of Swing Line Loans equals
$___________________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 Company 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 Company 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 Syndicated Note and
Competitive Bid Note delivered to it under the Credit
Agreement.
The Assignor requests that the Company exchange the
Assignor's Syndicated Note for new Syndicated Notes and
Competitive Bid Notes payable to the Assignor and the
Assignee as follows:
Notes Payable Amount of Amount of
to the Order Syndicated Note Competitive Bid
of: 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 8.8 and
9.5 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)
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; and (v)
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.
4. Effective Date.
The effective date for this Assignment and Acceptance
shall be ___________ __, _____ (the "Effective Date").
Following the execution of this Assignment and Acceptance,
and, if required by the Credit Agreement, the consent of the
Company 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 4.7 and 18 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.
[Remainder of page intentional left blank]
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.
[ASSIGNOR]
By:
Title:
[ASSIGNEE]
By:
Title:
CONSENTED TO:
FLEET NATIONAL BANK,
(f/k/a BankBoston, N.A.),
as Agent
By:
Name:
Title:
[HASBRO, INC.]
(required only if no
Default or Event of
Default has occurred and
is continuing)
By:
Name:
Title:
EXHIBIT I
FORM OF CONFIDENTIALITY AGREEMENT
[__________, 200__]
[Name and Address of Bank to
Provide Confidential Information
to Third Party]
Re: Hasbro, Inc.
Ladies and Gentlemen:
Reference is hereby made to the [Amended and Restated
Revolving Credit Agreement] [Amended and Restated Line of
Credit Agreement], dated as of February 16, 2001 (as amended
and in effect from time to time, the "Credit Agreement"), by
and among Hasbro, Inc., a Rhode Island corporation (the
"Company"), Fleet National Bank (f/k/a BankBoston, N.A.), a
national banking association and the other lending
institutions listed on Schedule 1 thereto (collectively, the
"Banks"), and Fleet National Bank (f/k/a BankBoston, N.A.),
as agent for the Banks (in such capacity, the "Agent").
Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit
Agreement.
Pursuant to and in accordance with 9.10 and 22 of the
Credit Agreement, the undersigned (the "Transaction Party"),
in connection with [DESCRIBE NATURE OF TRANSACTION], hereby
covenants and 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 its 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 Company or any of
its Subsidiaries or any of the Banks that has been
designated as confidential at the time such information was
provided to such Bank, 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 22 of the Credit Agreement, or
becomes available to the Transaction Party on a
nonconfidential basis from a source other than the Company
or any of its Subsidiaries without a duty of confidentiality
to the Company or such Subsidiary being violated;
(b) to the extent required by statute, rule,
regulation or judicial process;
(c) to counsel for the Transaction Party so long as the
Transaction Party informs its counsel of the agreement under
22 of the Credit Agreement and the Transaction Party
assumes responsibility for compliance by its counsel with
such agreement;
(d) to bank examiners or any other regulatory authority
having jurisdiction over the Transaction Party, or to
auditors or accountants;
(e) to the Agent or any Bank;
(f) in connection with any litigation to which the any one
of the Banks, the Agent or the Transaction Party 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 the Transaction Party
so long as the Transaction Party informs the affiliate or
subsidiary of the agreement under 22 of the Credit
Agreement and the Transaction Party assumes responsibility
for compliance by such Person with such agreement;
(h) to any actual or prospective assignee or participant or
any actual or prospective counterparty (or its advisors) to
any swap or derivative transactions referenced to credit or
other risks or events arising under the Credit Agreement or
any other Loan Document so long as such actual or
prospective assignee, participant or counterparty, as the
case may be, agrees to execute and deliver an agreement in
substantially the same form hereof; or
(i) with the consent of the Company;
and provided further that, unless specifically
prohibited by applicable law or court order, prior to any
such disclosure, the Transaction Party shall notify the
Company of any request for disclosure of such information by
any governmental agency or representative thereof (other
than any such request in connection with an examination of
the financial condition of the Transaction Party by such
governmental agency) or pursuant to legal process and afford
the Company the opportunity to obtain a protective order or
other appropriate remedy or agreement to maintain
confidentiality of such information.
This letter shall constitute a sealed instrument under
and be governed by the law of the Commonwealth of
Massachusetts and is binding upon the successors and assigns
of the Transaction Party. Please indicate your acceptance
of the above by signing and returning an executed copy of
this letter to [INSERT NAME OF BANK TO PROVIDE THE
CONFIDENTIAL INFORMATION].
Sincerely,
[NAME OF TRANSACTION PARTY]
By:
___________________________
_________Name:
Title:
Accepted and Acknowledged:
[NAME OF BANK TO PROVIDE
CONFIDENTIAL INFORMATION]
By: ________________________
Name:
Title: