MULTICURRENCY REVOLVING CREDIT AGREEMENT
DATED as of December 8, 2000
between
Rogers Corporation,
The lending institutions listed on Schedule 1,
and
Fleet National Bank, as Agent
TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION. 1
1.1. Definitions. 1
1.2. Rules of Interpretation. 22
2. THE REVOLVING CREDIT FACILITY. 24
2.1. Commitment to Lend. 24
2.2. Commitment Fee. 24
2.3. Reduction of Total Commitment. 24
2.4. The Revolving Credit Notes. 25
2.5. Interest on the Loans. 25
2.6. Requests for the Loans. 26
2.7. Conversion Options. 26
2.7.1. Conversion to Different Type of Loan. 26
2.7.2. Continuation of Type of Loan. 27
2.7.3. Eurocurrency Rate Loans. 28
2.8. Funds for Loans. 28
2.8.1. Funding Procedures. 28
2.8.2. Replacement Banks. 28
2.9. Optional Currencies. 29
2.9.1. General. 29
2.9.2. Exchange Rate. 30
2.9.3. Multiple Denominations. 30
2.9.4. Funding. 30
3. REPAYMENT OF THE REVOLVING CREDIT LOANS. 31
3.1. Maturity. 31
3.2. Mandatory Repayments of the Loans. 31
3.3. Optional Repayments of the Loans. 31
4. LETTERS OF CREDIT. 32
4.1. Letter of Credit Commitments. 32
4.1.1. Commitment to Issue Letters of Credit. 32
4.1.2. Letter of Credit Applications. 32
4.1.3. Terms of Letters of Credit. 33
4.1.4. Reimbursement Obligations of Banks. 33
4.1.5. Participations of Banks. 33
4.2. Reimbursement Obligation of the Borrower. 33
4.3. Letter of Credit Payments. 34
4.4. Obligations Absolute. 35
4.5. Reliance by Issuer. 35
4.6. Letter of Credit Fee. 36
5. CERTAIN GENERAL PROVISIONS. 36
5.1. Arrangement Fee. 36
5.2. Agent's Fee. 36
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5.3. Funds for Payments. 36
5.3.1. Payments to Agent. 36
5.3.2. No Offset, etc. 37
5.3.3. Currency Matters. 37
5.4. Computations. 38
5.5. Inability to Determine Eurocurrency Rate. 38
5.6. Illegality. 39
5.7. Additional Costs, etc. 39
5.8. Capital Adequacy. 41
5.9. Certificate. 41
5.10. Indemnity. 42
5.11. Interest After Default. 42
5.12. European Monetary Union. 42
6. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. 44
6.1. Corporate Authority. 44
6.1.1. Incorporation; Good Standing. 44
6.1.2. Authorization. 44
6.1.3. Enforceability. 45
6.2. Governmental Approvals. 45
6.3. Title to Properties; Leases. 45
6.4. Financial Statements and Projections. 45
6.4.1. Fiscal Year. 46
6.4.2. Financial Statements. 46
6.4.3. Projections. 46
6.5. No Material Changes, Solvency etc. (a) 46
6.6. Franchises, Patents, Copyrights, etc. 47
6.7. Litigation. 47
6.8. No Materially Adverse Contracts, etc. 47
6.9. Compliance with Other Instruments, Laws, etc. 47
6.10. Tax Status. 48
6.11. No Event of Default. 48
6.12. Holding Company and Investment Company Acts. 48
6.13. Absence of Financing Statements, etc. 48
6.14. Certain Transactions. 49
6.15. Employee Benefit Plans. 49
6.15.1. In General. 49
6.15.2. Terminability of Welfare Plans. 49
6.15.3. Guaranteed Pension Plans. 49
6.15.4. Multiemployer Plans. 50
6.16. Use of Proceeds. 50
6.16.1. General. 50
6.16.2. Regulations U and X. 50
6.16.3. Ineligible Securities. 51
6.17. Environmental Compliance. 51
6.18. Subsidiaries, etc. 53
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6.19. Disclosure. 53
7. AFFIRMATIVE COVENANTS OF THE BORROWER. 53
7.1. Punctual Payment. 53
7.2. Maintenance of Office. 53
7.3. Records and Accounts. 54
7.4. Financial Statements, Certificates and
Information. 54
7.5. Notices. 55
7.5.1. Defaults. 55
7.5.2. Environmental Events. 56
7.5.3. Notice of Litigation and Judgments. 56
7.5.4. Notice of Underfunding. 56
7.6. Corporate Existence; Maintenance of Properties. 56
7.7. Insurance. 57
7.8. Taxes. 57
7.9. Inspection of Properties and Books, etc. 57
7.9.1. General. 57
7.9.2. Communications with Accountants. 58
7.10. Compliance with Laws, Contracts,
Licenses, and Permits. 58
7.11. Compliance with Environmental Laws. 58
7.12. Employee Benefit Plans. 59
7.13. Use of Proceeds. 59
7.14. Additional Subsidiaries. 59
7.15. Further Assurances. 59
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. 59
8.1. Restrictions on Indebtedness. 59
8.2. Restrictions on Liens. 61
8.3. Restrictions on Investments. 63
8.4. Distributions. 65
8.5. Merger, Consolidation and Disposition of Assets. 65
8.5.1. Mergers and Acquisitions. 65
8.5.2. Disposition of Assets. 66
8.6. Sale and Leaseback. 67
8.7. Employee Benefit Plans. 68
8.8. Business Activities. 68
8.9. Fiscal Year. 68
8.10. Transactions with Affiliates. 69
8.11. Activities of World Properties. 69
8.12. Modification of Charter Documents. 70
8.13. Upstream Limitations. 70
8.14. Inconsistent Agreements. 70
9. FINANCIAL COVENANTS OF THE BORROWER. 70
9.1. Leverage Ratio. 70
9.2. Interest Coverage Ratio. 70
9.3. Capital Expenditures. 70
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9.4. Consolidated Net Worth. 71
10. CLOSING CONDITIONS. 71
10.1. Loan Documents. 71
10.2. Certified Copies of Charter Documents. 71
10.3. Corporate Action. 71
10.4. Incumbency Certificate. 71
10.5. Opinion of Counsel. 72
10.6. UCC Search Results, etc. 72
10.7. Payment of Fees and Expenses. 72
10.8. Termination of Existing Fleet Agreement. 72
10.9. Payoff Letter. 72
10.10. Initial Loan Request. 72
11. CONDITIONS TO ALL BORROWINGS. 72
11.1. Representations True; No Event of Default. 72
11.2. No Legal Impediment. 73
11.3. Governmental Regulation. 73
11.4. Proceedings and Documents. 73
12. EVENTS OF DEFAULT; ACCELERATION; ETC. 73
12.1. Events of Default and Acceleration. 73
12.2. Termination of Commitments. 77
12.3. Remedies. 77
13. SETOFF. 78
14. THE AGENT. 79
14.1. Authorization. 79
14.2. Employees and Agents. 79
14.3. No Liability. 79
14.4. No Representations. 80
14.4.1. General. 80
14.4.2. Closing Documentation, etc. 80
14.5. Payments. 81
14.5.1. Payments to Agent. 81
14.5.2. Distribution by Agent. 81
14.5.3. Delinquent Banks. 81
14.6. Holders of Notes. 82
14.7. Indemnity. 82
14.8. Agent as Bank. 82
14.9. Resignation. 82
14.10. Notification of Defaults and Events of Default. 83
15. EXPENSES AND INDEMNIFICATION. 83
15.1. Expenses. 83
15.2. Indemnification. 84
15.3. Survival. 84
16. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION. 85
16.1. Confidentiality. 85
16.2. Prior Notification. 85
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16.3. Other. 85
17. SURVIVAL OF COVENANTS, ETC. 86
18. ASSIGNMENT AND PARTICIPATION. 86
18.1. Conditions to Assignment by Banks. 86
18.2. Certain Representations and Warranties;
Limitations; Covenants. 87
18.3. Register. 88
18.4. New Notes. 89
18.5. Participations. 89
18.6. Disclosure. 90
18.7. Assignee or Participant Affiliated with
the Borrower. 90
18.8. Miscellaneous Assignment Provisions. 90
18.9. Assignment by Borrower. 91
19. NOTICES, ETC. 91
20. GOVERNING LAW. 92
21. HEADINGS. 92
22. COUNTERPARTS. 92
23. ENTIRE AGREEMENT, ETC. 93
24. WAIVER OF JURY TRIAL. 93
25. CONSENTS, AMENDMENTS, WAIVERS, ETC. 93
26. SEVERABILITY. 94
27. REPRESENTATIONS AND WARRANTIES OF THE BANKS AND THE AGENT. 94
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SCHEDULES AND EXHIBITS
Schedule 1 Banks, Lending Offices,
Commitments, Commitment
Percentages
Schedule 2 Existing Letters of Credit
Schedule 6.3 Certain Assets
Schedule 6.4.1 Fiscal Years
Schedule 6.5(b) Solvency
Schedule 6.7 Litigation
Schedule 6.10 Taxes
Schedule 6.15 Certain Welfare Plans
Schedule 6.17 Environmental Matters
Schedule 6.18 Subsidiaries, Joint Ventures and
Partnerships
Schedule 8.1(d) Existing Indebtedness (Domestic)
Schedule 8.1(e) Existing Indebtedness (Foreign)
Schedule 8.2 Existing Liens
Schedule 8.3 Existing Investments
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
MULTICURRENCY REVOLVING CREDIT AGREEMENT
This MULTICURRENCY REVOLVING CREDIT AGREEMENT is made
as of December 8, 2000, by and among (i) Rogers Corporation
(the "Borrower"), a Massachusetts corporation having its
principal place of business at One Technology Drive, Rogers
Connecticut 06263, (ii) Fleet National Bank, a national
banking association and the other lending institutions
listed on Schedule 1 and (iii) Fleet National Bank as agent
for itself and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the
meanings set forth in this Section 1 or elsewhere in the
provisions of this Credit Agreement referred to below:
Adjustment Date. The first day of the month
immediately following the month in which a Compliance
Certificate is to be delivered by the Borrower pursuant to
Section 7.4(c) hereof.
Affiliate. Any Person that would be considered to be
an affiliate of the Borrower under Rule 144(a) of the
Rules and Regulations of the Securities and Exchange
Commission, as in effect on the date hereof, if the
Borrower were issuing securities.
Agent's Head Office. The Agent's head office located
at 100 Federal Street, Boston, Massachusetts 02110, or at
such other location as the Agent may designate from time to
time.
Agent. Fleet National Bank, acting as agent for the
Banks.
Agent's Special Counsel. Bingham Dana LLP or such
other counsel as may be approved by the Agent.
Applicable Margin. For each period commencing on an
Adjustment Date through the date immediately preceding the
next Adjustment Date (each a "Rate Adjustment Period"), the
Applicable Margin shall be the applicable margin set forth
below with respect to the Leverage Ratio, as determined for
the period ending on the fiscal quarter ended immediately
preceding the applicable Rate Adjustment Period.
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PRIME RATE EUROCURRENCY COMMITMENT FEE
LEVEL LEVERAGE RATIO LOANS RATE LOANS RATE
IV Greater than
1.50:1.00 0% 1.125% 0.375%
III Less than or equal to
1.50:1.00 but greater
than 1.00:1.00 0% 0.875% 0.350%
II Less than or equal to
1.00:1.00 but greater
than 0.50:1.00 0% 0.625% 0.325%
I Less than or equal to
0.50:1.00 0% 0.500% 0.300%
Notwithstanding the foregoing, (a) for Loans
outstanding, the Letter of Credit Fees and the commitment
fees payable during the period commencing on the Closing
Date through the date immediately preceding the first
Adjustment Date to occur after the Closing Date, the
Applicable Margin shall be Level I set forth above, and (b)
if the Borrower fails to deliver any Compliance Certificate
pursuant to Section 7.4(c) hereof then, for the period commencing
on the next Adjustment Date to occur subsequent to such
failure through the date immediately following the date on
which such Compliance Certificate is delivered, the
Applicable Margin shall be the highest Applicable Margin
set forth above.
Assignment and Acceptance. See Section 18.1.
Balance Sheet Date. January 2, 2000.
Banks. Fleet and the other lending institutions
listed on Schedule 1 hereto and any other Person who
becomes an assignee of any rights and obligations of a Bank
pursuant to Section 18.
Belgian Francs. The lawful currency of the country of
Belgium.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions
in Boston, Massachusetts, are open for the transaction of
banking business and, in addition, (a) if Eurocurrency Rate
Loans denominated in Dollars are involved, a day which is
also a day in which commercial banks are open for
international business (including dealings in Dollar
deposits) in London or such other eurodollar interbank
market as may be selected by the Agent in its sole
discretion acting in good faith; and (b) if Eurocurrency
Rate Loans denominated in an Optional Currency are
involved, a day on which dealings and exchange in Dollars
and the
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relevant Optional Currency can be carried on in the
relevant Eurocurrency Interbank Market and Dollar
settlements of such dealings may be effected in New York,
New York and London, and also a day on which dealings and
exchange in Dollars and in the relevant Optional Currency
can be carried on in the principal financial center of the
country in which such currency is legal tender.
Capital Assets. Fixed assets, both tangible (such as
land, buildings, fixtures, machinery and equipment) and
intangible (such as patents, copyrights, trademarks,
franchises and good will); provided that Capital Assets
shall not include any item customarily charged directly to
expense or depreciated over a useful life of twelve (12)
months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. For any period, the aggregate
amount paid or the amount of Indebtedness incurred
(including in respect of obligations under any Capitalized
Leases) by the Borrower or any of its Subsidiaries (i) for
Capital Assets during such period, determined in accordance
with generally accepted accounting principles, as indicated
on the financial statements of the Borrower and its
Subsidiaries prepared in accordance with such principles,
and (ii) in connection with the lease of any assets by the
Borrower or any of its Subsidiaries as lessee under any
Synthetic Lease to the extent that such assets would have
been Capital Assets had the Synthetic Lease been treated
for accounting purposes as a Capitalized Lease.
Capitalized Leases. Leases under which the Borrower
or any of its Subsidiaries is the lessee or obligor, the
discounted future rental payment obligations under which
are required to be capitalized on the balance sheet of the
lessee or obligor in accordance with generally accepted
accounting principles.
CERCLA. See Section 6.17(a).
Citizens. Citizens Bank of Connecticut, a Connecticut
stock savings bank.
Closing Date. The first date on which the conditions
set forth in Sections 10 and 11 have been satisfied.
Code. The Internal Revenue Code of 1986.
Commitment. With respect to each Bank, the amount set
forth on Schedule 1 hereto as the amount of such Bank's
commitment to make Loans to, and to participate in the
issuance, extension and renewal of Letters of Credit for
the account of, the Borrower, as the same may be
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reduced from time to time; or if such commitment is terminated
pursuant to the provisions hereof, zero.
Commitment Fee Rate. The applicable rate per annum set
forth in the chart contained in the definition of
Applicable Margin under the heading "Commitment Fee Rate".
Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's
percentage of the aggregate Commitments of all of the
Banks.
Consolidated or consolidated. With reference to any
term defined herein, shall mean that term as applied to the
accounts of the Borrower and its Subsidiaries, consolidated
in accordance with generally accepted accounting
principles.
Consolidated Foreign Tangible Assets. Consolidated
Foreign Total Assets less the sum of:
(a) the total book value of all assets of the
Borrower's Foreign Subsidiaries properly classified as
intangible assets under generally accepted accounting
principles, including such items as good will, the
purchase price of acquired assets in excess of the
fair market value thereof, trademarks, trade names,
service marks, brand names, copyrights, patents and
licenses, and rights with respect to the foregoing;
plus
(b) all amounts representing any write-up in the
book value of any assets of the Borrower's Foreign
Subsidiaries resulting from a revaluation thereof
subsequent to the Balance Sheet Date, excluding (i)
adjustments for marking short-term investments to
market and (ii) transaction adjustments made in
accordance with Financial Accounting Standards Board
Statement no. 133; provided that the underlying
contract or arrangement is intended solely for hedging
(and not speculative) purposes; plus;
(c) to the extent otherwise included in the
computation of Consolidated Foreign Total Assets, any
subscriptions receivable.
Consolidated Foreign Total Assets. The sum of (i) all
assets ("consolidated balance sheet assets") of the
Borrower's Foreign Subsidiaries determined on a
consolidated basis in accordance with generally accepted
accounting principles, plus (ii) without duplication, all
assets leased by the Borrower's Foreign Subsidiaries as
lessee under any Synthetic Lease to the extent that such
assets would have been consolidated balance sheet assets
had the Synthetic Lease been treated
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for accounting purposes as a Capitalized Lease, plus (iii) without
duplication, all sold receivables referred to in clause
(vii) of the definition of the term "Indebtedness" to the
extent that such receivables would have been consolidated
balance sheet assets had they not been sold.
Consolidated Net Income (or Deficit). For any period,
the consolidated net income (or deficit) of the Borrower
and its Subsidiaries for such period (taken as a cumulative
whole), after deducting all operating expenses, provision
for all taxes and reserves (including reserves for deferred
income taxes established in connection with accelerated
depreciation or amortization claimed for income tax
purposes) and all other proper deductions, all determined
in accordance with generally accepted accounting principles
and on a consolidated basis, after eliminating all inter-
company items and portions of income (or deficit) properly
attributable to minority interests, if any, in the stock of
Subsidiaries; provided that there shall also be excluded
(in each case without duplication):
(i) the income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary or
is merged into or with the Borrower or a
Subsidiary, except as otherwise provided in
the definition of Pro Forma Basis;
(ii) any aggregate net gain (or net loss) arising
from sales of capital assets or from the
acquisition or retirement or sale of
securities during such period, if such gain
or loss is treated as an extraordinary item
under generally accepted accounting
principles;
(iii) any net gain arising from the
collection of the proceeds of any life
insurance policy if such gain is treated as
an extraordinary item under generally
accepted accounting principles; and
(iv) the undistributed net income of any Foreign
Subsidiary to the extent the Borrower is
prohibited from repatriating such income.
Consolidated Net Worth. The excess of Consolidated
Total Assets over Consolidated Total Liabilities, less, to
the extent otherwise includable in the computations of
Consolidated Net Worth, any subscriptions receivable.
Consolidated Tangible Assets. Consolidated Total
Assets less the sum of:
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(a) the total book value of all assets of the
Borrower and its Subsidiaries properly classified as
intangible assets under generally accepted accounting
principles, including such items as good will, the
purchase price of acquired assets in excess of the
fair market value thereof, trademarks, trade names,
service marks, brand names, copyrights, patents and
licenses, and rights with respect to the foregoing;
plus
(b) all amounts representing any write-up in the
book value of any assets of the Borrower and its
Subsidiaries resulting from a revaluation thereof
subsequent to the Balance Sheet Date, excluding (i)
adjustments for marking short-term investments to
market and (ii) transaction adjustments made in
accordance with Financial Accounting Standards Board
Statement no. 133; provided that the underlying
contract or arrangement is intended solely for hedging
(and not speculative) purposes; plus;
(c) to the extent otherwise included in the
computation of Consolidated Total Assets, any
subscriptions receivable.
Consolidated Total Assets. The sum of (i) all assets
("consolidated balance sheet assets") of the Borrower and
its Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles,
plus (ii) without duplication, all assets leased by the
Borrower or any Subsidiary as lessee under any Synthetic
Lease to the extent that such assets would have been
consolidated balance sheet assets had the Synthetic Lease
been treated for accounting purposes as a Capitalized
Lease, plus (iii) without duplication, all sold receivables
referred to in clause (vii) of the definition of the term
"Indebtedness" to the extent that such receivables would
have been consolidated balance sheet assets had they not
been sold.
Consolidated Total Interest Expense. For any period,
the aggregate amount of interest required to be paid or
accrued by the Borrower and its Subsidiaries during such
period on all Indebtedness of the Borrower and its
Subsidiaries outstanding during all or any part of such
period, whether such interest was or is required to be
reflected as an item of expense or capitalized, including
payments consisting of interest in respect of any
Capitalized Lease, or any Synthetic Lease, and including
commitment fees, agency fees, facility fees, balance
deficiency fees and similar fees or expenses in connection
with the borrowing of money, other than fees and expenses
incurred under Sections 5.7 or 5.8.
Consolidated Total Liabilities. All liabilities of
the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with
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generally accepted accounting principles and classified as such
on the consolidated balance sheet of the Borrower and its
Subsidiaries.
Conversion Request. A notice given by the Borrower to
the Agent of the Borrower's election to convert or continue
a Loan in accordance with Section 2.7.
Credit Agreement. This Multicurrency Revolving Credit
Agreement, including the Schedules and Exhibits hereto.
Default. See Section 12.1.
Delinquent Bank. See Section 14.5.3.
Distribution. The declaration or payment of any
dividend on or in respect of any shares of any class of
capital stock of the Borrower, other than dividends to the
extent payable in shares of common stock of the Borrower;
the purchase, redemption, or other retirement of any shares
of any class of capital stock of the Borrower, directly or
indirectly through a Subsidiary of the Borrower or
otherwise, other than in connection with the exercise of
stock options by employees or directors of the Borrower or
its Subsidiaries (or former employees or former directors);
the return of capital by the Borrower to its shareholders
as such; or any other distribution on or in respect of any
shares of any class of capital stock of the Borrower, other
than pursuant to the Shareholder Rights Plan.
Dollar Equivalent. On any particular date, with
respect to any amount denominated in Dollars, such amount
of Dollars, and with respect to any amount denominated in a
currency other than Dollars, the amount (as conclusively
ascertained by the Agent absent manifest error) of Dollars
which could be purchased by the Agent (in accordance with
its normal banking practices) in the London foreign
currency deposit markets with such amount of such currency
at the spot rate of exchange prevailing at or about 11:00
a.m. (London time) on such date.
Dollars or $. Dollars in lawful currency of the
United States of America.
Domestic Lending Office. Initially, the office of
each Bank designated as such in Schedule 1 hereto;
thereafter, such other office of such Bank, if any, located
within the United States that will be making or maintaining
Prime Rate Loans.
Domestic Subsidiary. Any Subsidiary which is not a
Foreign Subsidiary; provided that for purposes of Sections 6.17
and 7.11, the term
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Domestic Subsidiary shall mean any Subsidiary at any time
owning, leasing or operating any Real Estate.
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 Section 2.7.
EBITDA. The Consolidated Net Income (or Deficit) of
the Borrower and its Subsidiaries for any fiscal period,
plus, to the extent deducted in the calculation of
Consolidated Net Income (or Deficit) and without
duplication, (a) depreciation, amortization and other
similar noncash charges for such period, (b) income tax
expense for such period, and (c) Consolidated Total
Interest Expense paid or accrued during such period,
excluding the net income (or deficit) of any Person (other
than a Subsidiary) in which the Borrower or a Subsidiary
has an ownership interest, except to the extent that any
such income has been actually received by the Borrower or
such Subsidiary in the form of cash dividends or similar
cash Distributions, in each case as determined in
accordance with generally accepted accounting principles.
Eligible Assignee. Any of (a) (i) a commercial bank
organized under the laws of the United States, or any State
thereof or the District of Columbia, and having total
assets in excess of $1,000,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the
United States, or any State thereof or the District of
Columbia, and having a net worth of at least $100,000,000,
calculated in accordance with generally accepted accounting
principles; (iii) a commercial bank organized under the
laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country,
and having total assets in excess of $1,000,000,000,
provided that such bank is acting through a branch or
agency located in the country in which it is organized or
another country which is also a member of the OECD; (iv)
the central bank of any country which is a member of the
OECD; and (v) if, but only if, any Event of Default has
occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial
institution or other Person approved by the Agent, such
approval not to be unreasonably withheld, and (b) any Bank
and any affiliate of any Bank and, with respect to any Bank
that is a fund that invests in loans, any other fund that
invests in loans and is managed by the same investment
advisor of such Bank or by an affiliate of such investment
advisor (and treating all such funds so managed as a single
Eligible Assignee).
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Employee Benefit Plan. Any employee benefit plan
within the meaning of Section 3(3) of ERISA maintained or
contributed to by the Borrower or any ERISA Affiliate,
other than a Guaranteed Pension Plan or a Multiemployer
Plan.
EMU. The European Economic and Monetary Union as
contemplated by the EU Treaties.
Environmental Laws. See Section 6.17(a).
EPA. See Section 6.17(b).
ERISA. The Employee Retirement Income Security Act of
1974.
ERISA Affiliate. Any Person which is treated as a
single employer with the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with
respect to a Guaranteed Pension Plan within the meaning of
Section 4043 of ERISA and the regulations promulgated thereunder.
EU Treaties. The Treaty of Rome of March 25, 1957
establishing the European Community, as amended by the
Treaty on the European Union signed on February 7, 1992
(the Maastricht Treaty), and as further amended from time
to time.
Euro or e. The single currency of the Participating
Member States.
Eurocurrency Interbank Market. Any lawful recognized
market in which deposits of Dollars and the relevant
Optional Currencies are offered by international banking
units of United States banking institutions and by foreign
banking institutions to each other and in which foreign
currency and exchange operations or eurocurrency funding
operations are customarily conducted.
Eurocurrency Lending Office. Initially, the office of
each Bank designated as such in Schedule 1 hereto;
thereafter, such other office of such Bank, if any, that
shall be making or maintaining Eurocurrency Rate Loans.
Eurocurrency Rate. With respect to amounts
denominated in Dollars, the Eurodollar Rate, and with
respect to amounts denominated in any Optional Currency,
the International Eurocurrency Rate.
Eurocurrency Rate Loans. Loans bearing interest
calculated by reference to a Eurocurrency Rate.
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Eurocurrency Reserve Rate. For any day with respect
to a Eurocurrency Rate Loan, the maximum rate (expressed as
a decimal) at which any lender subject thereto would be
required to maintain reserves under Regulation D of the
Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve
requirements) against "Eurocurrency Liabilities" (as that
term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be
adjusted automatically on and as of the effective date of
any change in the Eurocurrency Reserve Rate.
Eurodollar Rate. For any Interest Period with respect
to a Eurocurrency Rate Loan denominated in Dollars, the
rate of interest equal to (i) the rate per annum (rounded
upwards to the nearest 1/16 of one percent) at which the
Reference Bank's Eurocurrency Lending Office is offered
Dollar deposits two (2) Business Days prior to the
beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency
and exchange operations of such Eurocurrency Lending Office
are customarily conducted at or about 11:00 a.m. (London
time), for delivery on the first day of such Interest
Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurocurrency Rate
Loan denominated in Dollars of the Reference Bank to which
such Interest Period applies, divided by (ii) a number
equal to 1.00 minus the Eurocurrency Reserve Rate, if
applicable.
Event of Default. See Section 12.1.
Excluded Taxes. With respect to any of the Agent or
any Bank, any (i) franchise taxes on such Person, (ii)
taxes on income or profits of such Person, or (iii) other
taxes incurred by such Person except those imposed as a
result of, or relating to, this Agreement.
Existing Fleet Agreement. The Multi-Currency
Revolving Credit Agreement dated as of September 19, 1997
between the Borrower and Fleet, as amended and in effect
immediately prior to the Closing Date.
Existing Letters of Credit. The letters of credit
issued by Fleet for the account of the Borrower prior to
the Closing Date and listed on Schedule 2.
Fee Letter. The fee letter, dated on or prior to the
Closing Date, between the Borrower and the Agent, as the
same may be amended, modified or supplemented from time to
time.
Financial Affiliate. A Subsidiary of the bank holding
company controlling any Bank, which Subsidiary is engaging
in any of the
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activities permitted by Section 4(k) of the Bank
Holding Company Act of 1956 (12 U.S.C. Section 1843), as amended.
Fleet. Fleet National Bank, a national banking
association, in its individual capacity.
Foreign Subsidiary. Any Subsidiary which conducts
substantially all of its business 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 (or the District of Columbia)
thereof.
generally accepted accounting principles. Accounting
principles that are (A) consistent with the principles
promulgated or adopted by the Financial Accounting
Standards Board and its predecessors, as in effect from
time to time, and (B) consistently applied in material
respects with past financial statements of the Borrower, in
each case such that a certified public accountant would,
insofar as the use of such accounting principles is
pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in
generally accepted accounting principles) as to financial
statements in which such principles have been properly
applied.
Guaranteed Pension Plan. Any employee pension benefit
plan within the meaning of Section 3(2) of ERISA maintained or
contributed to by the Borrower or any ERISA Affiliate the
benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantors. Each Domestic Subsidiary of the Borrower
existing on the Closing Date (other than World Properties)
and each other Person required to be or become a guarantor
from time to time pursuant to Section 7.14.
Guaranty. The Guaranty, dated or to be dated on or
prior to the Closing Date, made jointly and severally by
each Domestic Subsidiary of the Borrower (other than World
Properties) in favor of the Banks and the Agent pursuant to
which each Domestic Subsidiary of the Borrower guaranties
to the Banks and the Agent the payment and performance of
the Obligations and in form and substance satisfactory to
the Banks and the Agent, and any other guaranty
substantially in the form of such Guaranty in favor of the
Banks and the Agent made by any Person required to be or
become a guarantor pursuant to Section 7.14.
Hazardous Substances. See Section 6.17(b).
-12-
Indebtedness. As to any Person and whether recourse
is secured by or is otherwise available against all or only
a portion of the assets of such Person and whether or not
contingent, but without duplication:
(i) every obligation of such Person for money
borrowed,
(ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the
acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the
account of such Person,
(iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or
services (including securities repurchase agreements
but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of
business),
(v) every obligation of such Person under any
Capitalized Lease,
(vi) every obligation of such Person under any
Synthetic Lease,
(vii) all sales by such Person of (A)
accounts or general intangibles for money due or to
become due, (B) chattel paper, instruments or
documents creating or evidencing a right to payment of
money or (C) other receivables (collectively
"receivables"), whether pursuant to a purchase
facility or otherwise, other than in connection with
the disposition of the business operations of such
Person relating thereto or a disposition of defaulted
receivables for collection and not as a financing
arrangement, and together with any obligation of such
Person to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other
amounts in connection therewith,
(viii) every obligation of such Person (an
"equity related purchase obligation") to purchase,
redeem, retire or otherwise acquire for value any
shares of capital stock of any class issued by such
Person, other than the obligation to purchase capital
stock arising solely as a result of the difference
between the trade date and the settlement date for
such purchase,
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(ix) every obligation of such Person under any
forward contract, futures contract, swap, option or
other financing agreement or arrangement (including,
without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon
interest rates, currency exchange rates, commodities
or other indices (a "Derivative Contract"),
(x) every obligation in respect of Indebtedness
of any other entity (including any joint venture to
which such Person is a party or any partnership in
which such Person is a general partner) to the extent
that such Person is liable therefor as a result of
such Person's ownership interest in or other
relationship with such entity, except to the extent
that the terms of such Indebtedness provide that such
Person is not liable therefor and such terms are
enforceable under applicable law,
(xi) every obligation, contingent or otherwise,
of such Person guaranteeing, or having the legal
effect of guaranteeing or otherwise acting as surety
for, any obligation of a type described in any of
clauses (i) through (x) (the "primary obligation") of
another Person (the "primary obligor"), in any manner,
whether directly or indirectly, and including, without
limitation, any obligation of such Person (A) to
purchase or pay (or advance or supply funds for the
purchase of) any security for the payment of such
primary obligation, (B) to purchase property,
securities or services for the purpose of assuring the
payment of such primary obligation, or (C) to maintain
working capital, equity capital or other financial
statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay
such primary obligation.
The "amount" or "principal amount" of any Indebtedness
at any time of determination represented by (u) any
Indebtedness, issued at a price that is less than the
principal amount at maturity thereof, shall be the amount
of the liability in respect thereof determined in
accordance with generally accepted accounting principles,
(v) any Capitalized Lease shall be the principal component
of the aggregate of the rental obligation under such
Capitalized Lease payable over the term thereof that is not
subject to termination by the lessee, (w) any sale of
receivables shall be the amount of unrecovered capital or
principal investment of the purchaser (other than the
Borrower or any of its wholly-owned Subsidiaries) thereof,
excluding amounts representative of yield or interest
earned on such investment, (x) any Synthetic Lease shall be
the stipulated loss value, termination value or other
equivalent amount, (y) any Derivative Contract shall be the
maximum amount of any termination or loss payment required
to be paid by such Person (net of
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any offsetting positions) if such Derivative Contract were, at the time of
determination, to be terminated by reason of any event of
default or early termination event thereunder, whether or
not such event of default or early termination event has in
fact occurred and (z) any equity related purchase
obligation shall be the maximum fixed redemption or
purchase price thereof inclusive of any accrued and unpaid
dividends to be comprised in such redemption or purchase
price.
Ineligible Securities. Securities which may not be
underwritten or dealt in by member banks of the Federal
Reserve System under Section 16 of the Banking Act of 1933
(12 U.S.C. Section 24, Seventh), as amended.
Intellectual Property. See Section 8.11.
Interest Payment Date. (i) As to any Prime Rate Loan,
with respect to interest accrued during the applicable
calendar quarter, the last day of such calendar quarter
(including the calendar quarter that includes the Drawdown
Date of such Prime Rate Loan); provided that if the last
day of a calendar quarter is not a Business Day, then the
Interest Payment Date shall be the next succeeding Business
Day; and (ii) as to any Eurocurrency Rate Loan in respect
of which the Interest Period is (A) 3 months or less, the
last day of such Interest Period and (B) more than 3
months, the date that is 3 months from the first day of
such Interest Period and, in addition, the last day of such
Interest Period.
Interest Period. With respect to each Eurocurrency
Rate Loan, (i) initially, the period commencing on the
Drawdown Date of such Loan and ending on the last day of
one of the periods set forth below, as selected by the
Borrower in a Loan Request or as otherwise required by the
terms of this Credit Agreement: 1, 2, 3, 6 or 9 months
(subject, in the case of 9 month periods, to availability
and the consent of each of the Banks), or periods of less
than one (1) month, subject to availability and consent of
each of the Banks; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest
Period applicable to such Loan and ending on the last day
of one of the periods set forth above, as selected by the
Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are
subject to the following:
(a) if any Interest Period with respect to a
Eurocurrency Rate Loan would otherwise end on a day
that is not a Business Day, that Interest Period shall
be extended to the next succeeding Business Day unless
the result of such extension would be to carry such
Interest Period into another calendar month, in which
event
-15-
such Interest Period shall end on the
immediately preceding Business Day;
(b) if the Borrower shall fail to give notice as
provided in Section 2.7, (i) for Eurocurrency Rate Loans
denominated in Dollars, the Borrower shall be deemed
to have requested a conversion of the affected
Eurocurrency Rate Loan to a Prime Rate Loan on the
last day of the then current Interest Period with
respect thereto, and (ii) for Eurocurrency Rate Loans
denominated in an Optional Currency, the Borrower
shall repay such Eurocurrency Rate Loan on the last
day of the then current Interest Period with respect
thereto;
(c) 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; and
(d) any Interest Period that would otherwise
extend beyond the Maturity Date shall end on the
Maturity Date.
International Eurocurrency Rate. For any Interest
Period with respect to a Eurocurrency Rate Loan denominated
in an Optional Currency, the rate of interest equal to (i)
the rate per annum (rounded upwards to the nearest 1/16 of
one percent) at which the Reference Bank is offered
deposits in the relevant Optional Currency, two (2)
Business Days prior to the beginning of such Interest
Period in the Eurocurrency Interbank Market where the
foreign currency and exchange operations or eurocurrency
funding operations of the Agent are customarily conducted
at or about 11:00 a.m. (London time), for delivery on the
first day of such Interest Period and for the number of
days comprised therein and in an amount equal (as nearly as
may be) to the Reference Bank's Commitment Percentage of
such Eurocurrency Rate Loan to which such Interest Period
applies, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate, if applicable.
International Standby Practices. With respect to any
standby Letter of Credit, International Standby Practices
(ISP98), International Chamber of Commerce Publication No.
590, or any successor code of standby letter of credit
practices among banks adopted by the Agent in the ordinary
course of its business as a standby letter of credit issuer
and in effect at the time of issuance of such Letter of
Credit.
Investments. All expenditures made and (without
duplication) all liabilities incurred (contingently or
otherwise) (a) for the acquisition of
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stock (other than stock of the Borrower) or Indebtedness of
any Person, (b) for loans, advances, capital contributions or
transfers of property to any Person (other than sales of inventory,
licenses of intellectual property and dispositions of
obsolete assets in the ordinary course of business
consistent with past practices), (c) in respect of any
guaranties (or other commitments as described under
Indebtedness) of the obligations of any Person; provided
that income from Joint Ventures shall not be an Investment
for purposes of this Credit Agreement notwithstanding that
the Borrower or such Subsidiary may, in accordance with
generally accepted accounting principles, account for such
income as a debit to the investment account on the Borrower
or such Subsidiary's balance sheet. In determining the
aggregate amount of Investments outstanding at any
particular time: (i) the amount of any Investment
represented by a guaranty shall be taken at not less than
the principal amount of the obligations guaranteed and
still outstanding; (ii) there shall be 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) or repayment of loan principal; (iii) there
shall not be deducted in respect of any Investment any
amounts received as earnings on such Investment, whether as
dividends, interest or otherwise; (iv) the amount of
Investments consisting of non-cash property (including
without limitation any Intellectual Property) transferred
to a Joint Venture shall be deemed to be the book value
(determined in accordance with generally accepted
accounting principles) of such non-cash property at the
time of such transfer to such Joint Venture, disregarding
for this purpose any valuation the parties to such Joint
Venture shall have placed thereon for purposes of
establishing such Joint Venture; provided that a non-
perpetual license of Intellectual Property in which the
Borrower or the applicable Subsidiary retains rights having
significant value and which is of limited exclusivity with
respect to the applicable territory or field of use, shall
not be deemed to be a transfer of such Intellectual
Property for purposes of this definition; and (v) there
shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof; provided
that the Borrower may in any fiscal period deduct from the
aggregate amount of Investments decreases in the value of
Investments (up to any aggregate amount of $2,500,000
during the term of this Agreement) to the extent the amount
of any such decrease is deducted from Consolidated Net
Income of the Borrower and its Subsidiaries during such
fiscal period.
Japanese Yen. The lawful currency of the country of
Japan.
Joint Venture. Any Affiliate of the Borrower or a
Subsidiary of which the designated parent shall at any time
own directly or indirectly
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through a Subsidiary or Subsidiaries less than a majority
(by number of votes) of the outstanding Voting Stock; provided
that notwithstanding the foregoing, Rogers Inoac shall be deemed
to be a Joint Venture until such time as the Borrower shall own,
directly or indirectly, sixty percent (60%) or more of its
outstanding Voting Stock.
Letter of Credit. See Section 4.1.1.
Letter of Credit Application. See Section 4.1.1.
Letter of Credit Fee. See Section 4.6.
Letter of Credit Participation. See Section 4.1.4.
Leverage Ratio. As at any date of determination, the
ratio of (a) Total Funded Indebtedness of the Borrower and
its Subsidiaries outstanding on such date to (b) EBITDA of
the Borrower and its Subsidiaries for the period of four
consecutive fiscal quarters ended on such date (or, if such
date is not a fiscal quarter end date, the period of four
consecutive fiscal quarters most recently ended).
Loan Documents. This Credit Agreement, the Notes, the
Letter of Credit Applications, the Letters of Credit, the
Guaranty and the Fee Letter.
Loan Request. See Section 2.6.
Loans. Revolving credit loans made or to be made by
the Banks to the Borrower pursuant to Section 2.
Majority Banks. As of any date, (a) if there are
fewer than three (3) Banks, all Banks and (b) if there are
three (3) or more Banks, the Banks holding at least sixty
percent (60%) of the outstanding principal amount of the
Notes on such date; and if no such principal is
outstanding, the Banks whose aggregate Commitments
constitutes at least sixty percent (60%) of the Total
Commitment.
Maturity Date. December 8, 2005.
Material Adverse Effect. A material adverse effect on
(a) the business, condition (financial or otherwise),
operations, performance or properties of the Borrowers and
its Subsidiaries, taken as a whole, (b) the rights and
remedies of the Agent or any Bank to enforce any of the
Loan Documents or (c) the ability of the Borrower or any of
the Guarantors to perform its obligations under the Loan
Documents.
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Maximum Drawing Amount. The maximum aggregate amount
that the beneficiaries may at any time draw under
outstanding Letters of Credit, as such aggregate amount may
be reduced from time to time pursuant to the terms of the
Letters of Credit.
Multiemployer Plan. Any multiemployer plan within the
meaning of Section 3(37) of ERISA maintained or contributed to by
the Borrower or any ERISA Affiliate.
Notes. The Revolving Credit Notes.
Obligations. All indebtedness, obligations and
liabilities of any of the Borrower and its Subsidiaries to
any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement
or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other
Loan Documents or in respect of any of the Loans made or
Reimbursement Obligations incurred or any of the Notes,
Letter of Credit Application, Letter of Credit or other
instruments at any time evidencing any thereof.
Optional Currency. Any of Japanese Yen, Belgian
Francs and the Euro, so long as such currency is freely
convertible into Dollars and is traded on a recognized
Eurocurrency Interbank Market selected by the Agent in good
faith.
Outstanding. With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.
Overnight Rate. For any day, (a) as to Loans
denominated in Dollars, the weighted average interest rate
paid by the Agent for federal funds acquired by the Agent,
and (b) as to Loans denominated in an Optional Currency,
the rate of interest per annum at which overnight deposits
in the applicable Optional Currency, in an amount
approximately equal to the amount with respect to which
such rate is being determined, would be offered for such
day by the Agent to major banks in the London interbank
market.
Participating Member State. A member state of the
European Union that adopts a single currency in accordance
with the EU Treaties.
PBGC. The Pension Benefit Guaranty Corporation
created by Section 4002 of ERISA and any successor entity or
entities having similar responsibilities.
-19-
Permitted Liens. Liens, security interests and other
encumbrances permitted by Section 8.2.
Person. Any individual, corporation, partnership,
trust, unincorporated association, business, or other legal
entity, and any government or any governmental agency or
political subdivision thereof.
Prime Rate. The higher of (i) the annual rate of
interest announced from time to time by Fleet at its head
office in Boston, Massachusetts, as its "prime rate" and
(ii) one-half of one percent (1/2%) above the Federal Funds
Effective Rate. The rate of interest announced from time
to time by Fleet as its "prime rate" is a reference rate
only and does not necessarily represent the lowest or best
rate being charged to any customer. For the purposes of
this definition, "Federal Funds Effective Rate" shall mean
for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds
transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such
day on such transactions received by the Agent from three
funds brokers of recognized standing selected by the Agent.
Prime Rate Loans. Loans denominated in Dollars
bearing interest calculated by reference to the Prime Rate.
Pro Forma Basis. In connection with a proposed stock
or asset acquisition, the calculation of compliance with
the financial covenants set forth in Section 9 hereof by the
Borrower and its Subsidiaries (including the Person or
asset(s) to be acquired) with reference to the audited
historical financial results of such Person, if available,
and if not so available, then with reference to such
management certified financial results of such Person as
shall be reasonably acceptable to the Agent (or, if an
acquisition of assets, the financial results attributable
to such assets) for the most recently ended period of four
consecutive fiscal quarters ending prior to the date of
such acquisition for which such management certified
financial results are available (but in any event ending no
later than the penultimate fiscal quarter ending prior to
the date of such acquisition), after giving effect on a pro
forma basis to such acquisition in the manner described
below:
(i) all Indebtedness (whether under this Credit
Agreement or otherwise), all assets and any other
balance sheet adjustments incurred or made in
connection with such acquisition shall be
-20-
deemed to have been incurred or made on the first day of such
period of four fiscal quarters, and all Indebtedness
of the Person acquired or to be acquired in such
acquisition which was or will have been repaid in
connection with the consummation of such acquisition
shall be deemed to have been repaid concurrently with
the incurrence of the Indebtedness incurred in
connection with such acquisition;
(ii) all Indebtedness assumed to have been
incurred pursuant to the preceding clause (i) shall be
deemed to have borne interest at the sum of (a) the
arithmetic mean of (x) the Eurocurrency Rate for
Eurocurrency Rate Loans denominated in the currency in
which such Indebtedness has been incurred having an
Interest Period of one month, as in effect on the
first day of such period of four fiscal quarters, and
(y) the Eurocurrency Rate for Eurocurrency Rate Loans
having an Interest Period of one month, as in effect
on the last day of such period of four fiscal quarters
plus (b) the Applicable Margin on Eurocurrency Rate
Loans then in effect (after giving effect to the
incurrence of such Indebtedness);
(iii) without duplication, Consolidated Net
Income and EBITDA of the Borrower and its Subsidiaries
shall be determined, and any adjustments to
Consolidated Net Income and EBITDA which are
attributable to the change in ownership and/or
management resulting from such acquisition shall be
deemed to have been realized, assuming that such
acquisition occurred on the first day of such period
of four fiscal quarters; and
(iv) other reasonable cost savings, expenses and
other income statement or operating statement
adjustments which are attributable to the change in
ownership and/or management resulting from such
acquisition as may be approved by the Agent in writing
(which approval shall not be unreasonably withheld)
shall be deemed to have been realized on the first day
of such period of four fiscal quarters.
RCRA. See Section 6.17(a).
Real Estate. All real property situated in the United
States of America at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Note, or the
continuation of such grid, or any other similar record,
including computer records, maintained by any Bank with
respect to any Loan referred to in such Note.
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Reference Bank. Fleet National Bank.
Register. See Section 18.3.
Reimbursement Obligation. The Borrower's obligation
to reimburse the Agent and the Banks on account of any
drawing under any Letter of Credit as provided in Section 4.2.
Revolving Credit Note Record. A Record with respect
to a Revolving Credit Note.
Revolving Credit Notes. See Section 2.4.
Rogers Inoac. Rogers Inoac Corporation, a Japanese
corporation.
Sale/Leaseback Arrangement. See Section 8.6.
SARA. See Section 6.17(a).
Same Day Funds. With respect to disbursements and
payments in (a) Dollars, immediately available funds, and
(b) an Optional Currency, same day or other funds as may be
determined by the Agent to be customary in the place of
disbursement or payment for the settlement of international
banking transactions in the relevant Optional Currency.
Shareholder Rights Plan. The Rights Agreement between
the Borrower and Registrar and Transfer Company, as rights
agent, and filed with the Securities and Exchange
Commission as of March 25, 1997.
Subsidiary. Any corporation, association, trust, or
other business entity of which the designated parent owns
or acquires directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock, other than Rogers Inoac.
Synthetic Lease. Any lease treated as an operating
lease under generally accepted accounting principles and as
a loan or a financing for U.S. income tax purposes.
Total Commitment. The sum of the Commitments of the
Banks, as in effect from time to time. On the Closing Date
the Total Commitment is $75,000,000.
Total Funded Indebtedness. On any date of
determination, all Indebtedness of the Borrower and its
Subsidiaries for borrowed money (including, without
limitation, all notes and bonds and all guarantees by such
Persons of Indebtedness of others for borrowed money),
purchase
-22-
money Indebtedness, and Indebtedness with respect
to Capitalized Leases and Synthetic Leases outstanding on
such date, determined on a consolidated basis in accordance
with generally accepted accounting principles. Total
Funded Indebtedness shall not include Indebtedness for
borrowed money of any Joint Venture unless the Borrower or
a Subsidiary has guaranteed the Indebtedness for borrowed
money of such joint venture or similar entity or is
otherwise liable for such Indebtedness.
Type. As to any Loan, its nature as a Prime Rate Loan
or a Eurocurrency Rate Loan.
Uniform Customs. With respect to any Letter of
Credit, the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 or any successor version thereto
adopted by the Agent in the ordinary course of its business
as a letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement
Obligation for which the Borrower does not reimburse the
Agent and the Banks on the date specified in, and in
accordance with, Section 4.2.
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.
World Properties. World Properties, Inc., an Illinois
corporation and a wholly-owned Subsidiary of the Borrower.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement
shall include such document or agreement as amended,
modified or supplemented from time to time in
accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the
plural includes the singular.
(c) A reference to any law includes any
amendment or modification to such law.
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(d) A reference to any Person includes its
permitted successors and permitted assigns.
(e) Accounting terms not otherwise defined
herein have the meanings assigned to them by generally
accepted accounting principles applied on a consistent
basis by the accounting entity to which they refer.
(f) The words "include", "includes" and
"including" are not limiting.
(g) All terms not specifically defined herein or
by generally accepted accounting principles, which
terms are defined in the Uniform Commercial Code as in
effect in the Commonwealth of Massachusetts, have the
meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of the
Uniform Commercial Code.
(h) Reference to a particular "Section" refers to that
section of this Credit Agreement unless otherwise
indicated.
(i) The words "herein", "hereof", "hereunder"
and words of like import shall refer to this Credit
Agreement as a whole and not to any particular section
or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the
computation of periods of time from a specified date
to a later specified date, the word "from" means "from
and including," the words "to" and "until" each mean
"to but excluding," and the word "through" means "to
and including."
(k) This Credit Agreement and the other Loan
Documents may use several different limitations, tests
or measurements to regulate the same or similar
matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in
accordance with the terms thereof.
(l) This Credit Agreement and the other Loan
Documents are the result of negotiation among, and
have been reviewed by counsel to, among others, the
Agent and the Borrower and are the product of
discussions and negotiations among all parties.
Accordingly, this Credit Agreement and the other Loan
Documents are not intended to be construed against the
Agent or any of the Banks merely on account of the
Agent's or any Bank's involvement in the preparation
of such documents.
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2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and
conditions set forth in this Credit Agreement, each of the
Banks severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time
from the Closing Date up to but not including the Maturity
Date upon notice by the Borrower to the Agent given in
accordance with Section 2.6, such sums in Dollars and/or at the
Borrower's option and subject to Section 2.9, in an Optional
Currency, as are requested by the Borrower up to a maximum
aggregate amount outstanding (after giving effect to all
amounts requested) at any one time equal to such Bank's
Commitment minus the product of such Bank's Commitment
Percentage of the sum of (a) the Maximum Drawing Amount and
(b) all Unpaid Reimbursement Obligations, provided that the
sum of the Dollar Equivalents of the outstanding amounts of
the Loans (after giving effect to all amounts requested)
plus the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time exceed the
Total Commitment. The Loans shall be made pro rata in
accordance with each Bank's Commitment Percentage. Each
request for a Loan hereunder shall constitute a
representation and warranty by the Borrower that the
conditions set forth in Section 10 and Section 11, in the case of the
initial Loans to be made on the Closing Date, and Section 11, in
the case of all other Loans, have been satisfied on the
date of such request. Each Eurocurrency Rate Loan made to
the Borrower hereunder shall be denominated in Dollars, or,
subject to Section 2.9 hereof, in an Optional Currency.
2.2. Commitment Fee. The Borrower agrees to pay to
the Agent for the accounts of the Banks in accordance with
their respective Commitment Percentages a commitment fee
calculated at the Commitment Fee Rate per annum on the
average daily amount during each calendar quarter or
portion thereof from the Closing Date to the Maturity Date
by which the Total Commitment minus the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the Dollar Equivalent of the outstanding amount of
Loans during such calendar quarter. The commitment fee
shall be payable quarterly in arrears on the first Business
Day of each calendar quarter for the immediately preceding
calendar quarter commencing on the first such date
following the date hereof, with a final payment on the
Maturity Date or any earlier date on which the Commitments
shall terminate.
2.3. Reduction of Total Commitment. The Borrower
shall have the right at any time and from time to time upon
three (3) days prior written notice to the Agent to reduce
by $5,000,000 or a larger integral multiple of $1,000,000
or terminate entirely the Total Commitment,
-25-
whereupon the Commitments of the Banks shall be reduced pro rata in
accordance with their respective Commitment Percentages of
the amount specified in such notice or, as the case may be,
terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this Section 2.3, the Agent will
notify the Banks of the substance thereof. Upon the
effective date of any such reduction or termination, the
Borrower shall pay to the Agent for the respective accounts
of the Banks the full amount of any commitment fee then
accrued on the amount of the reduction. No reduction or
termination of the Commitments may be reinstated.
2.4. The Revolving Credit Notes. The Loans shall be
evidenced by separate promissory notes of the Borrower in
substantially the form of Exhibit A hereto (each a
"Revolving Credit Note"), dated as of the Closing Date and
completed with appropriate insertions. One Revolving
Credit Note shall be payable to the order of each Bank in a
principal amount equal to such Bank's Commitment or, if
less, the outstanding amount of all Loans made by such
Bank, plus interest accrued thereon, as set forth below.
The Borrower irrevocably authorizes each Bank to make or
cause to be made, at or about the time of the Drawdown Date
of any Loan or at the time of receipt of any payment of
principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Revolving Credit Note
Record reflecting the making of such Loan or (as the case
may be) the receipt of such payment. The outstanding
amount of the Loans set forth on such Bank's Revolving
Credit Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank, but
the failure to record, or any error in so recording, any
such amount on such Bank's Revolving Credit Note Record
shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Revolving Credit Note to
make payments of principal of or interest on any Revolving
Credit Note when due.
2.5. Interest on the Loans. Except as otherwise
provided in Section 5.11,
(a) Each Prime Rate Loan shall bear interest for
the period commencing with the Drawdown Date thereof
and ending on the date such Prime Rate Loan is repaid
at the rate per annum equal to the Prime Rate plus the
Applicable Margin for Prime Rate Loans as in effect
from time to time.
(b) Each Eurocurrency Rate Loan denominated in
Dollars or an Optional Currency shall bear interest
for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest
Period with respect thereto at the rate per annum
equal to the applicable Eurocurrency Rate determined
for
-26-
such Interest Period plus the Applicable Margin
for Eurocurrency Rate Loans as in effect from time to
time.
(d) The Borrower promises to pay interest on
each Loan in arrears on each Interest Payment Date
with respect thereto.
2.6. Requests for the Loans. The Borrower shall give
to the Agent written notice delivered by telecopier
substantially in the form of Exhibit B hereto (or
telephonic notice confirmed in a writing delivered by
telecopier substantially in the form of Exhibit B hereto)
of each Loan requested hereunder (a "Loan Request") no
later than 11:00 a.m. (Boston time) (i) on the proposed
Drawdown Date of any Prime Rate Loan, (ii) two (2) Business
Days prior to the proposed Drawdown Date of any
Eurocurrency Rate Loan denominated in Dollars and (iii)
three (3) Business Days prior to the proposed Drawdown Date
of any Eurocurrency Rate Loan denominated in an Optional
Currency. Each such notice shall specify (A) the principal
amount of the Loan requested, stated either in Dollars or,
subject to Section 2.9 hereof, in an Optional Currency, (B) the
proposed Drawdown Date of such Loan, (C) the Interest
Period for such Loan and (D) the Type of such Loan.
Promptly upon receipt of any such notice, the Agent shall
notify each of the Banks thereof. Each Loan Request shall
be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Loan requested from the
Banks on the proposed Drawdown Date. Each Loan Request
shall be in a minimum aggregate amount of $250,000 or
integral multiples of $50,000 in excess thereof (or, in the
case of a Eurocurrency Rate Loan denominated in an Optional
Currency, that whole number the Dollar Equivalent of which
is nearest to $250,000 or an integral multiple of $50,000
in excess thereof, rounded to the nearest thousand;
provided that other amounts denominated in an Optional
Currency the Dollar Equivalent of which is greater than
$250,000 but not an integral multiple of $50,000 may be
borrowed with the consent of each of the Banks).
2.7. Conversion Options.
2.7.1. Conversion to Different Type of
Loan. The Borrower may elect from time to time to
convert any outstanding Loan denominated in Dollars to
a Loan of another Type denominated in Dollars,
provided that (i) with respect to any such conversion
of a Loan to a Prime Rate Loan, the Borrower shall
give the Agent at least one (1) Business Days prior
written notice of such election; (ii) with respect to
any such conversion of a Prime Rate Loan to a
Eurocurrency Rate Loan, the Borrower shall give the
Agent at least two (2) Business Days prior written
notice of
-27-
such election; (iii) with respect to any
such conversion of a Eurocurrency Rate Loan into a
Prime Rate Loan, such conversion shall only be made on
the last day of the Interest Period with respect
thereto unless the Borrower shall have complied with
Section 5.10, and (iv) no Loan may be converted into a
Eurocurrency Rate Loan when any Default or Event of
Default has occurred and is continuing. On the date
on which such conversion is being made each Bank shall
take such action as is necessary to transfer its
Commitment Percentage of such Loans to its Domestic
Lending Office or its Eurocurrency Lending Office, as
the case may be. All or any part of outstanding Loans
denominated in Dollars of any Type may be converted
into a Loan denominated in Dollars of another Type as
provided herein, provided that any partial conversion
shall be in an aggregate principal amount of $250,000
or an integral multiple of $50,000 in excess thereof.
Each Conversion Request relating to the conversion of
a Loan to a Eurocurrency Rate Loan shall be
irrevocable by the Borrower.
2.7.2. Continuation of Type of Loan. Any Loan
of any Type may be continued as a Loan of the same
Type upon the expiration of an Interest Period with
respect thereto by compliance by the Borrower with the
notice provisions contained in Section 2.7.1; provided that
(a) as to any Eurocurrency Rate Loan denominated in
Dollars, no such Eurocurrency Rate Loan may be
continued as such when any Default or Event of Default
has occurred and is continuing, but shall be
automatically converted to a Prime Rate Loan on the
last day of the first Interest Period relating thereto
ending during the continuance of any Default or Event
of Default of which officers of the Agent active upon
the Borrower's account have actual knowledge, and (b)
as to any Eurocurrency Rate Loan denominated in an
Optional Currency, no such Eurocurrency Rate Loan may
be continued as such when a Default or Event of
Default has occurred or is continuing or the
provisions of Section 2.9 hereof have not or cannot be met at
the time of such continuation, but shall be repaid by
the Borrower on the last day of the Interest Period
relating thereto. In the event that the Borrower
fails to provide any such notice with respect to the
continuation of any Eurocurrency Rate Loan as such,
then (a) such Eurocurrency Rate Loan denominated in
Dollars shall be automatically converted to a Prime
Rate Loan on the last day of the first Interest Period
relating thereto, and (b) as to any Eurocurrency Rate
Loan denominated in an Optional Currency, shall be
repaid on the last day of the Interest Period relating
thereto. The Agent shall notify the Banks promptly
when any such automatic conversion contemplated by
this Section 2.7 is scheduled to occur.
-28-
2.7.3. Eurocurrency Rate Loans. Any conversion
to or from Eurocurrency Rate Loans shall be in such
amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate
principal amount of all Eurocurrency Rate Loans having
the same Interest Period shall not be less than
$250,000 or an integral multiple of $50,000 in excess
thereof (or, in the case of a Eurocurrency Rate Loan
denominated in an Optional Currency, that whole number
the Dollar Equivalent of which is nearest to $250,000
or an integral multiple of $50,000 in excess thereof,
rounded to the nearest thousand; provided that other
amounts denominated in an Optional Currency the Dollar
Equivalent of which is greater than $250,000 but not
an integral multiple of $50,000 may be outstanding
with the consent of each of the Banks). At no time
with respect to all Loans under this Credit Agreement
shall there be more than six (6) Eurocurrency Rate
Loans having different Interest Periods outstanding.
2.8. Funds for Loans.
2.8.1. Funding Procedures. Not later than 1:00
p.m. (Boston time) on the proposed Drawdown Date of
any Loans, each of the Banks will make available to
the Agent, at the Agent's Head Office, in Same Day
Funds, the amount of such Bank's Commitment Percentage
of the amount of the requested Loans. Upon receipt
from each Bank of such amount, and upon receipt of the
documents required by Section 10 (in the case of such Loans
to be made on the Closing Date) and Section 11, and the
satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make
available to the Borrower the aggregate amount of such
Loans made available to the Agent by the Banks. The
failure or refusal of any Bank to make available to
the Agent at the aforesaid time and place on any
Drawdown Date the amount of its Commitment Percentage
of the requested Loans shall not relieve any other
Bank from its several obligation hereunder to make
available to the Agent the amount of such other Bank's
Commitment Percentage of any requested Loans. In the
event that any Bank gives the Agent notice that it
will not make available to the Agent the amount of its
Commitment Percentage of the requested Loans, the
Agent will promptly notify the Borrower of its receipt
of such notice.
2.8.2. Replacement Banks. If any Bank fails to
make available to the Agent its Commitment Percentage
of any Loan within three (3) Business Days following
the Drawdown Date of such Loan (each, an "Affected
Bank"), then within a period of thirty
-29-
(30) days after such Drawdown Date, the Borrower may,
but shall not be required to, request that a replacement
bank or banks designated by the Borrower and satisfactory
to the Agent acquire and assume the outstanding Loans and
Commitment of the Affected Bank. The Affected Bank,
any replacement bank or banks which are to acquire the
Loans and Commitment of the Affected Bank and the
Borrower shall execute and deliver to the Agent, in
accordance with the provisions of Section 18 hereof, such
Assignments and Acceptances and other instruments,
including, without limitation, Notes, as are required
pursuant to Section 18 hereof to give effect to such
acquisition and assumption. On the effective date of
the applicable Assignments and Acceptances, the
Borrower shall pay to the Affected Bank all interest
accrued on its Loans up to but excluding such date,
along with any fees payable to such Affected Bank
hereunder up to but excluding such date, other than
commitment fees accrued in accordance with Section 2.2 for
any period after the Drawdown Date of the Loan that
the Affected Bank failed to make available to the
Agent; provided that if the Loan that the Affected
Bank failed to make available was to have been
denominated in an Optional Currency, the Borrower
shall pay to such Affected Bank all such fees
(including all commitment fees) through the effective
date of the applicable Assignment and Acceptance.
2.9. Optional Currencies.
2.9.1. General. Subject to this Section 2.9.1 and the
satisfaction of the terms and conditions of Section 10 (in
the case of such Loans to be made on the Closing Date)
and Section 11, each Loan requested to be made in an Optional
Currency will be made on the Drawdown Date specified
therefor in the applicable Loan Request, in the
Optional Currency requested in such Loan Request and,
upon being so made, will have the Interest Period
requested in such Loan Request. If on or prior to any
Drawdown Date of a Loan which the Borrower has
requested be denominated in an Optional Currency, any
Bank determines (which determination shall be
conclusive) that the requested Optional Currency is
not freely transferable and convertible into Dollars
or that it will be impracticable for such Bank to fund
the Loan in such Optional Currency, then such Bank
shall immediately so notify the Agent and the
Borrower, and such Bank's portion of the requested
Loan shall instead be denominated in Dollars. In the
event that the Borrower repays such portion of a Loan
denominated in Dollars in accordance with Section 3 hereof
and such repayment, and the fluctuation of currency
exchange rates, results in Loans being then
outstanding that are not held pro rata
-30-
in accordance with respective Commitment Percentages of
the Banks, then all subsequent principal repayments
denominated in the Optional Currency which the applicable
Bank did not advance shall be made by the Borrower to the Agent
for the respective accounts of the Banks other than
such Bank on a pro rata basis until such time as the
Loans are outstanding on a pro rata basis.
2.9.2. Exchange Rate. For purposes of this
Credit Agreement the amount in one Optional Currency
which shall be equivalent on any particular date to a
specified amount in another Optional Currency shall be
that amount (as conclusively ascertained by the Agent
by its normal banking practices, absent manifest
error) in the first Optional Currency which is or
could be purchased by the Agent (in accordance with
normal banking practices) with such specified amount
of the second Optional Currency in any recognized
Eurocurrency Interbank Market selected by the Agent in
good faith for delivery on such date at the spot rate
of exchange prevailing at 11:00 a.m. (London time) on
such date.
2.9.3. Multiple Denominations. In the event that
any portion of the funds available under the terms of
this Credit Agreement is denominated in one or more
Optional Currencies, the Dollar Equivalent of such
portion of the funds shall be calculated pursuant to
the definition of "Dollar Equivalent". The amount so
determined shall then be added to the amount already
outstanding in Dollars for the purpose of determining
the remaining availability of funds under Section 2.1 hereof
and any required repayments under Section 3.2(a).
2.9.4. Funding. A Bank may make any Loan
denominated in an Optional Currency by causing its
Eurocurrency Lending Office or any of its foreign
branches or foreign affiliate to make such Loan
(whether or not such lending office, branch or
affiliate is named as a lending office on Schedule 1
hereto); provided that in such event the obligation of
the Borrower to repay such Loan shall nevertheless be
to such Bank and shall, for all purposes of this
Credit Agreement (including without limitation for
purposes of the definition of the term "Majority
Banks") be deemed made by such Bank to the extent of
such Loan, for the account of such applicable lending
office, branch or affiliate.
-31-
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity. The Borrower promises to pay on the
Maturity Date, and there shall become absolutely due and
payable on the Maturity Date, all Loans outstanding on such
date, together with any and all accrued and unpaid interest
thereon.
3.2. Mandatory Repayments of the Loans.
(a) If at any time the sum of the Dollar
Equivalents of the outstanding amounts of the Loans,
the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total Commitment
(whether as a result of currency fluctuations or
otherwise), then the Borrower shall immediately pay
the amount of such excess to the Agent for the
respective accounts of the Banks for application:
first, to any Unpaid Reimbursement Obligations;
second, to the Loans; and third, to provide to the
Agent cash collateral for Reimbursement Obligations as
contemplated by Section 4.2(b) and (c).
(b) Each payment of any Unpaid Reimbursement
Obligations or prepayment of Loans shall be allocated
among the Banks, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as
the case may be) the respective unpaid principal
amount of each Bank's Revolving Credit Note, with
adjustments to the extent practicable to equalize any
prior payments or repayments not exactly in
proportion.
3.3. Optional Repayments of the Loans. The Borrower
shall have the right, at its election, to repay the
outstanding amount of the Loans, as a whole or in part, at
any time without penalty or premium, provided that any full
or partial prepayment of the outstanding amount of any
Eurocurrency Rate Loans pursuant to this Section 3.3 may be made
only on the last day of the Interest Period relating
thereto unless the Borrower shall have complied with Section 5.10.
The Borrower shall give the Agent written notice no later
than 10:00 a.m. (Boston time) (i) on the date of any
proposed prepayment pursuant to this Section 3.3 of Prime Rate
Loans, (ii) two (2) Business Days notice of any proposed
prepayment pursuant to this Section 3.3 of Eurocurrency Rate Loans
denominated in Dollars and (iii) three (3) Business Days
notice of any proposed prepayment pursuant to this Section 3.3 of
Eurocurrency Rate Loans denominated in an Optional
Currency, in each case specifying the proposed date of
prepayment of Loans and the principal amount to be prepaid.
Each such partial prepayment of the Loans shall be in an
integral multiple of $50,000 (or in the case of a Loan
denominated in an Optional Currency an amount
-32-
(rounded to the nearest thousand) of which the Dollar Equivalent is
$50,000), shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment
and shall be applied, in the absence of instruction by the
Borrower, first to the principal of Prime Rate Loans and
then to the principal of Eurocurrency Rate Loans. Each
partial prepayment shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective
unpaid principal amount of each Bank's Revolving Credit
Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
4. LETTERS OF CREDIT.
4.1. Letter of Credit Commitments.
4.1.1. Commitment to Issue Letters of
Credit. Subject to the terms and conditions hereof
and the execution and delivery by the Borrower of a
letter of credit application on the Agent's customary
form (a "Letter of Credit Application"), the Agent on
behalf of the Banks and in reliance upon the agreement
of the Banks set forth in Section 4.1.4 and upon the
representations and warranties of the Borrower
contained herein, agrees, in its individual capacity,
at any time and from time to time from the Closing
Date to the date which is thirty (30) days prior to
the Maturity Date, to issue, extend and renew for the
account of the Borrower one or more standby or
documentary letters of credit (individually, a "Letter
of Credit") denominated in Dollars, in such form as
may be requested from time to time by the Borrower and
agreed to by the Agent; provided, however, that, after
giving effect to such request, (a) the sum of the
aggregate Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not exceed $5,000,000
at any one time and (b) the sum of (i) the Maximum
Drawing Amount of all Letters of Credit, (ii) all
Unpaid Reimbursement Obligations, and (iii) the Dollar
Equivalent of the amount of all Loans outstanding
shall not exceed the Total Commitment. The parties
hereto hereby acknowledge and agree that on the
Closing Date the Existing Letters of Credit shall be
deemed to be, and shall become, Letters of Credit
outstanding hereunder for all purposes of this Credit
Agreement, including without limitation the Borrower's
reimbursement obligations under Section 4.2 and the
reimbursement and participation obligations of the
Banks under Sections 4.1.4 and 4.1.5.
4.1.2. Letter of Credit Applications. Each
Letter of Credit Application shall be completed to the
satisfaction of the Agent. In the event that any
provision of any Letter of Credit Application
-33-
shall be inconsistent with any provision of this Credit
Agreement, then the provisions of this Credit
Agreement shall, to the extent of any such
inconsistency, govern.
4.1.3. Terms of Letters of Credit. Each Letter
of Credit issued, extended or renewed hereunder shall,
among other things, (i) provide for the payment of
sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied
by the documents described therein, and (ii) have an
expiry date no later than seven (7) days prior to the
Maturity Date. Each Letter of Credit so issued,
extended or renewed shall be subject to the Uniform
Customs or, in the case of a standby Letter of
Credit, either the Uniform Customs or the
International Standby Practices.
4.1.4. Reimbursement Obligations of Banks. Each
Bank severally agrees that it shall be absolutely
liable, without regard to the occurrence of any
Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's
Commitment Percentage, to reimburse the Agent on
demand for the amount of each draft paid by the Agent
under each Letter of Credit to the extent that such
amount is not reimbursed by the Borrower pursuant to
Section 4.2 (such agreement for a Bank being called herein
the "Letter of Credit Participation" of such Bank).
4.1.5. Participations of Banks. Each such
payment made by a Bank shall be treated as the
purchase by such Bank of a participating interest in
the Borrower's Reimbursement Obligation under Section 4.2 in
an amount equal to such payment. Each Bank shall
share in accordance with its participating interest in
any interest which accrues pursuant to Section 4.2.
4.2. Reimbursement Obligation of the Borrower. In
order to induce the Agent to issue, extend and renew each
Letter of Credit and the Banks to participate therein, the
Borrower hereby agrees to reimburse or pay to the Agent,
for the account of the Agent or (as the case may be) the
Banks, with respect to each Letter of Credit issued,
extended or renewed by the Agent hereunder,
(a) except as otherwise expressly provided in
Section 4.2(b) and (c), on each date that any draft presented
under such Letter of Credit is honored by the Agent,
or the Agent otherwise makes a payment with respect
thereto, (i) the amount paid by the Agent under or
with respect to such Letter of Credit, and (ii) the
amount of any taxes (other than Excluded Taxes), fees,
charges or other
-34-
costs and expenses whatsoever incurred by the Agent
or any Bank in connection with any payment made by the
Agent or any Bank under, or with respect to, such Letter
of Credit,
(b) upon the reduction (but not termination) of
the Total Commitment to an amount less than the
Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent
for the benefit of the Banks and the Agent as cash
collateral for all Reimbursement Obligations, and
(c) upon the termination of the Total
Commitment, or the acceleration of the Reimbursement
Obligations with respect to all Letters of Credit in
accordance with Section 12, an amount equal to the then
Maximum Drawing Amount on all Letters of Credit, which
amount shall be held by the Agent for the benefit of
the Banks and the Agent as cash collateral for all
Reimbursement Obligations.
Each such payment shall be made to the Agent at the Agent's
Head Office in Same Day Funds. Interest on any and all
amounts remaining unpaid by the Borrower under this Section 4.2 at
any time from the date such amounts become due and payable
(whether as stated in this Section 4.2, by acceleration or
otherwise) until payment in full (whether before or after
judgment) shall be payable to the Agent on demand at the
rate specified in Section 5.11 for overdue principal on Prime Rate
Loans.
4.3. Letter of Credit Payments. If any draft shall
be presented or other demand for payment shall be made
under any Letter of Credit, the Agent shall notify the
Borrower of the date and amount of the draft presented or
demand for payment and of the date and time when it expects
to pay such draft or honor such demand for payment. If the
Borrower fails to reimburse the Agent as provided in Section 4.2
on or before the date that such draft is paid or other
payment is made by the Agent, the Agent may at any time
thereafter notify the Banks of the amount of any such
Unpaid Reimbursement Obligation. No later than 3:00 p.m.
(Boston time) on the Business Day next following the
receipt of such notice, each Bank shall make available to
the Agent, at the Agent's Head Office, in Same Day Funds,
such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to
the product of (i) the average, computed for the period
referred to in clause (iii) below, of the Overnight Rate
for each day included in such period, times (ii) the amount
equal to such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, times (iii) a fraction, the
numerator of which is the number of days that elapse from
and including the date the Agent paid the draft presented
for honor or otherwise made payment to the date on which
such Bank's Commitment Percentage of
-35-
such Unpaid Reimbursement obligation shall become immediately
available to the Agent, and the denominator of which is 360. The
responsibility of the Agent to the Borrower and the Banks
shall be only to determine that the documents (including
each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in
all material respects with such Letter of Credit.
4.4. Obligations Absolute. The Borrower's
obligations under this Section 4 shall be absolute and
unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of
Default or any condition precedent whatsoever or any
setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Agent, any Bank
or any beneficiary of a Letter of Credit. The Borrower
further agrees with the Agent and the Banks that the Agent
and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 4.2 shall not
be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or
all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, the beneficiary of any
Letter of Credit or any financing institution or other
party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against
the beneficiary of any Letter of Credit or any such
transferee. The Agent and the Banks shall not be liable
for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter
of Credit, except to the extent such error, omission,
interruption or delay arose from the Agent's gross
negligence or willful misconduct. The Borrower agrees that
any action taken or omitted by the Agent or any Bank under
or in connection with each Letter of Credit and the related
drafts and documents, if done in good faith and absent
gross negligence or willful misconduct, shall be binding
upon the Borrower and shall not result in any liability on
the part of the Agent or any Bank to the Borrower.
4.5. Reliance by Issuer. To the extent not
inconsistent with Section 4.4, the Agent shall be entitled to
rely, and shall be fully protected in relying upon, any
Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal
counsel, independent accountants and other experts selected
by the Agent. In connection with Letters of Credit, the
Agent shall be fully justified in failing or refusing to
take any action under this Credit Agreement unless
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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. In connection with
Letters of Credit, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, under
this Credit Agreement in accordance with a request of the
Majority Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the
Banks and all future holders of the Revolving Credit Notes
or of a Letter of Credit Participation.
4.6. Letter of Credit Fee. The Borrower shall pay a
fee (in each case, a "Letter of Credit Fee") to the Agent
in respect of each documentary or standby Letter of Credit
calculated at the rate equal to the Applicable Margin for
Eurocurrency Rate Loans per annum of the face amount of
such Letter of Credit, which Letter of Credit Fee shall be
for the accounts of the Banks in accordance with their
respective Commitment Percentages. The Letter of Credit
Fees for each Letter of Credit shall be payable quarterly
in arrears on the first day of each calendar quarter for
the immediately preceding calendar quarter. In respect of
each Letter of Credit, the Borrower 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.
5. CERTAIN GENERAL PROVISIONS.
5.1. Arrangement Fee. The Borrower agrees to pay to
the Agent, for the Agent's own account, on the Closing Date
an arrangement fee in the amount set forth the Fee Letter.
5.2. Agent's Fee. The Borrower agrees to pay to the
Agent, for the Agent's own account, on the Closing Date and
on the other dates set forth in the Fee Letter, an Agent's
fee in the amount set forth in the Fee Letter.
5.3. Funds for Payments.
5.3.1. Payments to Agent. All payments of
principal, interest, Reimbursement Obligations,
commitment fees, Letter of Credit Fees and any other
amounts due hereunder or under any of the other Loan
Documents shall be made in Same Day Funds on the due
date thereof to the Agent, for the respective accounts
of the Banks and the Agent, at the Agent's Head Office
or at such other place that the Agent may from time to
time designate, in each case
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at or about 11:00 a.m. (Boston, Massachusetts, time or
other local time at the place of payment).
5.3.2. No Offset, etc. All payments by the
Borrower hereunder and under any of the other Loan
Documents shall be made without recoupment, setoff or
counterclaim and free and clear of and without
deduction for any taxes (other than any Excluded
Taxes, if applicable), levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by
law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with
respect to any amount payable by it hereunder or under
any of the other Loan Documents, the Borrower will pay
to the Agent, for the account of the Banks or (as the
case may be) the Agent, on the date on which such
amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Banks or the Agent
to receive the same net amount which the Banks or the
Agent would have received on such due date had no such
obligation been imposed upon the Borrower. The
Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or
other charges deducted from or paid with respect to
payments made by the Borrower hereunder or under such
other Loan Document.
5.3.3. Currency Matters.
(a) Dollars are the currency of payment for each
and every sum due at any time from the Borrower
hereunder; provided, that (i) except as expressly
provided in this Credit Agreement, each repayment of a
Loan or a part thereof shall be made in the currency
in which such Loan is denominated at the time of
repayment; (ii) each payment of interest shall be made
in the currency in which the applicable principal
amount is denominated; (iii) each payment of Letter of
Credit Fees and commitment fees shall be in Dollars;
(iv) each payment in respect of costs, expenses and
indemnities shall be made in the currency in which
they were incurred; and (v) any amount expressed to be
payable in a currency other than Dollars shall be paid
in that other currency.
(b) No payment to the Agent or any Bank (whether
under any judgment or court order or otherwise) shall
discharge the obligation or liability in respect of
which it was made unless and
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until the Agent or such Bank shall have received payment
in full in the currency in which such obligation or
liability was incurred, and to the extent that the amount
of any such payment shall, on actual conversion into such
currency, fall short of such obligation or liability
expressed in that currency, the Borrower shall
indemnify and hold harmless the Agent or such Bank, as
the case may be, with respect to the amount of the
shortfall. In the event that, notwithstanding the
requirements of Section 5.3.3(a), the Borrower makes a
payment in a currency other than the currency in which
the amount to be paid is expressed, the Agent or the
Bank receiving such payment shall use reasonable
efforts to convert such amount promptly into such
currency in accordance with its usual and customary
practice.
5.4. Computations. All computations of interest on
the Loans (other than Prime Rate Loans), commitment fees,
Letter of Credit Fees and all other fees and charges shall
be based on a 360-day year and paid for the actual number
of days elapsed. All computations of interest on Prime
Rate Loans shall be based on a 365-day year and paid for
the actual number of days elapsed. Except as otherwise
provided in the definition of the term "Interest Period"
with respect to Eurocurrency Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding
Business Day, and interest shall accrue during such
extension. The Agent shall disclose to the Borrower the
outstanding amount of the Loans as reflected on the
Revolving Credit Note Records from time to time within ten
(10) days after notice from the Borrower requesting such
amount. The outstanding amount of the Loans as reflected
on the Revolving Credit Note Records from time to time
shall be considered correct and binding on the Borrower
unless within five (5) Business Days after receipt of any
notice by the Agent or any of the Banks of such outstanding
amount, the Agent or such Bank shall notify the Borrower to
the contrary.
5.5. Inability to Determine Eurocurrency Rate. In
the event, prior to the commencement of any Interest Period
relating to any Eurocurrency Rate Loan, the Agent shall
determine that adequate and reasonable methods do not exist
for ascertaining the Eurocurrency Rate that would otherwise
determine the rate of interest to be applicable to any
Eurocurrency Rate Loan during any Interest Period, the
Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower and
the Banks) to the Borrower and the Banks. In such event
(i) any Loan Request or Conversion Request with respect to
Eurocurrency Rate Loans shall, in the case of Loans
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denominated in Dollars, be deemed a request for Prime Rate
Loans, and in the case of any Eurocurrency Loan denominated
in an Optional Currency, be withdrawn, (ii) each
Eurocurrency Rate Loan denominated in Dollars will
automatically, on the last day of the then current Interest
Period relating thereto, become a Prime Rate Loan, (iii)
each Eurocurrency Rate Loan denominated in an Optional
Currency will be required to be repaid on the last day of
the then current Interest Period relating thereto, and (iv)
the obligations of the Banks to make Eurocurrency Rate
Loans shall be suspended until the Agent determines that
the circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Borrower and
the Banks.
5.6. Illegality. Notwithstanding any other
provisions herein, if any change in any law, regulation,
treaty or directive or in the interpretation or application
thereof shall make it unlawful for any Bank to make or
maintain Eurocurrency Rate Loans, such Bank shall forthwith
give notice of such circumstances to the Borrower and the
other Banks and thereupon (i) the commitment of such Bank
to make Eurocurrency Rate Loans or convert Loans of another
Type to Eurocurrency Rate Loans or to make Loans in any
Optional Currency shall forthwith be suspended and (ii)
such Bank's Loans then outstanding as Eurocurrency Rate
Loans, if any, shall (x) if denominated in Dollars, be
converted automatically to Prime Rate Loans on the last day
of each Interest Period applicable to such Eurocurrency
Rate Loans or within such earlier period as may be required
by law and (y) if denominated in an Optional Currency, be
immediately repaid. The Borrower hereby agrees promptly to
pay the Agent for the account of such Bank, upon demand by
such Bank, any additional amounts necessary to compensate
such Bank for any costs incurred by such Bank in making any
conversion in accordance with this Section 5.6, including any
interest or fees payable by such Bank to lenders of funds
obtained by it in order to make or maintain its
Eurocurrency Rate Loans hereunder.
5.7. Additional Costs, etc. If any change in any
applicable law, which expression, as used herein, includes
statutes, rules and regulations thereunder and
interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged
with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time
or from time to time hereafter made upon or otherwise
issued to any Bank or the Agent by any central bank or
other fiscal, monetary or other authority (whether or not
having the force of law), shall:
(a) subject any Bank or the Agent to any tax,
levy, impost, duty, charge, fee, deduction or
withholding of any nature with
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respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, such Bank's
Commitment or the Loans (other than Excluded Taxes), or
(b) change the basis of taxation (except for
changes in Excluded Taxes) of payments to any Bank of
the principal of or the interest on any Loans or any
other amounts payable to any Bank or the Agent under
this Credit Agreement or any of the other Loan
Documents, or
(c) impose or increase or render applicable
(other than to the extent specifically provided for
elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or not
having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an
office of any Bank, or
(d) impose on any Bank or the Agent any other
conditions or requirements with respect to this Credit
Agreement, the other Loan Documents, any Letters of
Credit, the Loans, such Bank's Commitment, or any
class of loans, letters of credit or commitments of
which any of the Loans or such Bank's Commitment forms
a part,
and the result of any of the foregoing is:
(i) to increase in any material respect the
cost to any Bank of making, funding, issuing,
renewing, extending or maintaining any of the
Loans or such Bank's Commitment or any Letter of
Credit, or
(ii) to reduce the amount of principal,
interest, Reimbursement Obligation or other
amount payable to such Bank or the Agent
hereunder on account of such Bank's Commitment,
any Letter of Credit or any of the Loans, or
(iii) to require such Bank or the Agent
to make any payment or to forego any interest or
Reimbursement Obligation or other material sum
payable hereunder, the amount of which payment or
foregone interest or Reimbursement Obligation or
other sum is calculated by reference to the gross
amount of any sum receivable or deemed received
by such Bank or the Agent from the Borrower
hereunder,
then, and in each such case, the Borrower will, upon demand
made by such Bank or (as the case may be) the Agent at any
time and from time to time and as often as the occasion
therefor may arise, pay to such Bank or the Agent such
additional amounts as will be sufficient to compensate such
Bank or the Agent for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or
other sum.
5.8. Capital Adequacy. If after the date hereof any
Bank or the Agent determines that (i) the adoption of or
change in any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank
holding companies or any change in the interpretation or
application thereof by a court or governmental authority
with appropriate jurisdiction, or (ii) compliance by such
Bank or the Agent or any corporation controlling such Bank
or the Agent with any law, governmental rule, regulation,
policy, guideline or directive (whether or not having the
force of law) of any such entity regarding capital
adequacy, has the effect of reducing the return on such
Bank's or the Agent's commitment with respect to any Loans
to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or the Agent's then
existing policies with respect to capital adequacy and
assuming full utilization of such entity's capital) by any
amount deemed by such Bank or (as the case may be) the
Agent to be material, then such Bank or the Agent may
notify the Borrower of such fact. To the extent that the
amount of such reduction in the return on capital is not
reflected in the applicable interest rate, the Borrower and
such Bank shall thereafter attempt to negotiate in good
faith, within thirty (30) days of the day on which the
Borrower receives such notice, an adjustment payable
hereunder that will adequately compensate such Bank in
light of these circumstances. If the Borrower and such
Bank are unable to agree to such adjustment within thirty
(30) days of the date on which the Borrower receives such
notice, then commencing on the date of such notice (but not
earlier than the effective date of any such increased
capital requirement), the fees payable hereunder shall
increase by an amount that will, in such Bank's reasonable
determination, provide adequate compensation. Each Bank
shall allocate such cost increases among its customers in
good faith and on an equitable basis.
5.9. Certificate. A certificate setting forth any
additional amounts payable pursuant to Sections 5.7 or 5.8 and a
brief explanation of such amounts which are due, submitted
by any Bank or the Agent to the Borrower, shall be
conclusive, absent manifest error, that such amounts are
due and owing.
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5.10. Indemnity. The Borrower agrees to indemnify
each Bank and to hold each Bank harmless from and against
any loss, cost or expense (including loss of anticipated
profits) that such Bank may sustain or incur as a
consequence of (i) default by the Borrower in payment of
the principal amount of or any interest on any Eurocurrency
Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to
maintain its Eurocurrency Rate Loans, (ii) default by the
Borrower in making a borrowing or conversion after the
Borrower has given (or is deemed to have given) a Loan
Request or a Conversion Request relating thereto in
accordance with Section 2.6 or Section 2.7 or (iii) the making of any
payment of a Eurocurrency Rate Loan or the making of any
conversion of any such Loan to a Prime Rate Loan on a day
that is not the last day of the applicable Interest Period
with respect thereto, including interest or fees payable by
such Bank to lenders of funds obtained by it in order to
maintain any such Loans.
5.11. Interest After Default. During the continuance
of a Default or an Event of Default the principal of the
Loans and all other amounts payable hereunder or under any
of the other Loan Documents shall, until such Default or
Event of Default has been cured or remedied or such Default
or Event of Default has been waived by the Majority Banks
pursuant to Section 25, bear interest at a rate per annum (a) in
the case of the Loans, equal to two percent (2%) above the
rate of interest otherwise applicable to such Loans
pursuant to Section 2.5, and (b) in the case of all such other
amounts, equal to two percent (2%) above the rate of
interest otherwise applicable to Prime Rate Loans pursuant
to Section 2.5.
5.12. European Monetary Union.
(a) If, as a result of the implementation of the EMU,
(i) any Optional Currency ceases to be lawful currency of
the nation issuing such Optional Currency and is replaced
by the Euro as the lawful currency of such nation, or (ii)
any Optional Currency and the Euro are at the same time
recognized by the central bank or comparable authority of
the nation issuing such Optional Currency as lawful
currency of such nation, then:
(x) if the Agent or the Majority Banks shall so
notify the Borrower, any amount payable hereunder in
such Optional Currency shall instead be payable in the
Euro and the amount so payable shall be determined by
translating the amount payable in such Optional
Currency to the Euro at the exchange rate recognized
by the European Central Bank for the purposes of
implementing the EMU; and
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(y) if so specified in the notice delivered
under clause (x) or in any subsequent notice, the
Optional Currency recognized at the same time as the
Euro shall no longer be available as an Optional
Currency for purposes of this Credit Agreement. Such
notice shall apply to (1) any Loan to be made on or
after such notice or (2) any Loan outstanding at the
time of such notice and denominated in such Optional
Currency, following the expiration of the Interest
Period applicable to such outstanding Loan.
(b) The Agent may in its discretion by notice to the
Banks and the Borrower (i) modify the definition of
"Business Day" to include a principal financial center of
any Participating Member State where Loans denominated in
the Euro are or are to be funded, or any amounts are or are
to be paid in Euros; (ii) designate an account or accounts
at a bank in a principal financial center of any
Participating Member State for receiving payments to the
Agent, whether for the account of the Agent or for the
account of the Banks, in immediately available funds, in
Euros or for disbursing Loans denominated in Euros; (iii)
designate the date or time for fixing the Eurocurrency Rate
for Loans denominated in Euros for any Interest Period to
be consistent with any practice or convention in the
applicable interbank market; (iv) designate the fraction
for rounding upwards quotations to the Reference Bank used
to determine the Eurocurrency Rate for Loans denominated in
Euros, to be consistent with the rounding of quotations by
the Reference Bank for other Optional Currencies and
consistent with any practice or convention in the
applicable interbank market, in the reasonable judgment of
the Agent; (v) designate other mechanics for fixing the
Eurocurrency Rate for Loans denominated in Euros to be, in
the reasonable judgment of the Agent, consistent with the
mechanics for determining rates for other Optional
Currencies and consistent with any practice or convention
in the applicable interbank market, in the reasonable
judgment of the Agent; (vi) designate the basis of accrual
of interest, fees or other amounts to be consistent with
any practice or convention in the applicable interbank
market with respect to amounts calculated or payable in
Euros; (vii) designate a convenient amount in Euros to
account for de minimis rounding in instances where this
Credit Agreement specifies an amount to be paid in an
Optional Currency that is, under the terms of this Section,
to be paid in Euros.
(c) Section 5.5 of this Credit Agreement shall not
apply in the event that an Optional Currency is not
available or an interbank offered rate may not be quoted
for such Optional Currency, solely because such Optional
Currency ceases to be lawful currency of the nation issuing
such Optional Currency and is replaced by the Euro as the
lawful
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currency of such nation, so long as the Euro is
available as an Optional Currency and the Eurocurrency Rate
may be quoted for the Euro.
(d) The Borrower agrees, at the request of any Bank
or the Agent, to compensate such Bank or the Agent for any
reasonable loss, cost, expense or reduction in return that
shall be incurred or sustained by such Bank or the Agent as
a result of the implementation of the EMU that would not
have been incurred or sustained but for the transactions
contemplated by this Credit Agreement. A certificate of a
Bank or the Agent setting forth (i) the amount or amounts
necessary to compensate such Bank or the Agent, (ii) a
description of the nature of the loss or expense sustained
or incurred by such Bank or the Agent, as the case may be,
as a consequence thereof and (iii) a reasonably detailed
explanation of the calculation thereof shall be delivered
to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Bank or the Agent, as
the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof. Each
Bank shall allocate such cost increases among its customers
in good faith and on an equitable basis.
6. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
The Borrower represents and warrants to the Banks and
the Agent as follows:
6.1. Corporate Authority.
6.1.1. Incorporation; Good Standing. Each of
the Borrower and its Subsidiaries (i) is a corporation
or other limited liability entity duly organized,
validly existing and in good standing under the laws
of its state or other jurisdiction of incorporation
except, in the case of Foreign Subsidiaries, where the
failure to be so organized, existing or in good
standing would not have a Material Adverse Effect,
(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.
6.1.2. Authorization. The execution, delivery
and performance of this Credit Agreement and the other
Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (i) are
within the authority (corporate or otherwise) of such
Person, (ii) have been duly authorized by all
necessary proceedings
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(corporate or otherwise), (iii) to the knowledge of
the Borrower or any of its Subsidiaries, do not conflict
with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which
the Borrower or any of its Subsidiaries is subject or
any judgment, order, writ, injunction, license or permit
applicable to the Borrower or any of its Subsidiaries and
(iv) do not conflict with any provision of the charter or
bylaws of, or any agreement or other instrument
binding upon, the Borrower or any of its Subsidiaries.
6.1.3. Enforceability. The execution and
delivery of this Credit Agreement and the other Loan
Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in
valid and legally binding obligations of such Person
enforceable against it in accordance with the
respective terms and provisions hereof and thereof,
except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of
creditors' rights and except to the extent that
availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be
brought.
6.2. Governmental Approvals. The execution, delivery
and performance by the Borrower and any of its Subsidiaries
of this Credit Agreement and the other Loan Documents to
which the Borrower or any of its Subsidiaries is or is to
become a party and the transactions contemplated hereby and
thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other
than those already obtained.
6.3. Title to Properties; Leases. Except as
indicated on Schedule 6.3 hereto and except for property
and assets disposed of pursuant to Section 8.5.2, the Borrower and
its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date or acquired since
that date (except property and assets either singly or in
the aggregate (i) the failure of which to be owned by the
Borrower or a Subsidiary would not have a Material Adverse
Effect, or (ii) sold or otherwise disposed of in the
ordinary course of business since that date), subject to no
rights of others, including any mortgages, leases,
conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
6.4. Financial Statements and Projections.
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6.4.1. Fiscal Year. Except as set forth in
Schedule 6.4.1, the Borrower and each of its Domestic
Subsidiaries has a fiscal year which is the twelve
months beginning on the Monday nearest January 1 and
ending on the Sunday nearest December 31 of each year.
6.4.2. Financial Statements. There has been
furnished to each of the Banks a consolidated balance
sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, and a consolidated statement of
income of the Borrower and its Subsidiaries for the
fiscal year then ended, each certified by Ernst &
Young LLP. Such balance sheet and statement of income
have been prepared in accordance with generally
accepted accounting principles and fairly present the
financial condition of the Borrower as at the close of
business on the date thereof and the results of
operations for the fiscal year then ended. There are
no contingent liabilities of the Borrower or any of
its Subsidiaries as of such date involving material
amounts, known to the officers of the Borrower, which
were not disclosed in such balance sheet and the notes
related thereto.
6.4.3. Projections. The projections of the
annual operating budgets of the Borrower and its
Subsidiaries on a consolidated basis, balance sheets
and cash flow statements for the 2000 to 2004 fiscal
years of the Borrower, copies of which have been
delivered to each Bank, disclose all material
assumptions made with respect to general economic,
financial and market conditions used in formulating
such projections. To the knowledge of the Borrower or
any of its Subsidiaries, 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 reasonable estimates and
assumptions, have been prepared on the basis of the
assumptions stated therein and reflect the reasonable
estimates of the Borrower and its Subsidiaries of the
results of operations and other information projected
therein.
6.5. No Material Changes, Solvency etc. (a) Since
the Balance Sheet Date there has occurred no materially
adverse change in the financial condition or business of
the Borrower and its Subsidiaries as shown on or reflected
in the consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, or the
consolidated statement of income for the fiscal year then
ended, other than changes in the ordinary course of
business that have not had any Material Adverse Effect.
Since the Balance Sheet Date, the Borrower has not made any
Distributions other than as permitted by Section 8.4.
(b) Except as disclosed on Schedule 6.5(b), the
Borrower and each of its Subsidiaries (both before and
after giving effect to the transactions contemplated by
this Credit Agreement and the other Loan Documents) (i) is
solvent, (ii) has assets having a fair value in excess of
its liabilities, (iii) has assets having a fair value in
excess of the amount required to pay its liabilities on
existing debts as such debts become absolute and matured,
and (iv) has, and expects to continue to have, access to
adequate capital for the conduct of its business and the
ability to pay its debts from time to time incurred in
connection therewith as such debts mature.
6.6. Franchises, Patents, Copyrights, etc. Each of
the Borrower and its Subsidiaries possesses all franchises,
patents, copyrights, trademarks, trade names, licenses and
permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now
conducted without known conflict with any rights of others,
except where the failure to possess any of the foregoing
would not, either in any case or in the aggregate, have a
Material Adverse Effect.
6.7. Litigation. Except as set forth in Schedule 6.7
hereto, there are no actions, suits, proceedings or
investigations of any kind pending or threatened against
the Borrower or any of its Subsidiaries before any court,
tribunal or administrative agency or board that, if
adversely determined, might, either in any case or in the
aggregate, have a Material Adverse Effect, or result in any
substantial liability not adequately covered by insurance,
or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower and its
Subsidiaries, or which question the validity of this Credit
Agreement or any of the other Loan Documents, or any action
taken or to be taken pursuant hereto or thereto.
6.8. No Materially Adverse Contracts, etc. Neither
the Borrower nor any of its Subsidiaries is subject to any
charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is
expected in the future to have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries is a party
to any contract or agreement that has or is expected, in
the judgment of the Borrower's officers, to have a Material
Adverse Effect.
6.9. Compliance with Other Instruments, Laws,
etc. Neither the Borrower nor any of its Subsidiaries is
in violation of any provision of its charter documents,
bylaws, or any agreement or instrument to which it may be
subject or by which it or any of its properties may be
bound or any decree, order, judgment, statute, license,
rule or regulation, in any of
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the foregoing cases in a manner that could result in the
imposition of substantial penalties or have a Material Adverse Effect.
6.10. Tax Status. The Borrower and its Subsidiaries
(i) to their knowledge have made or filed all federal and
state income and all other tax returns, reports and
declarations required by any jurisdiction to which any of
them is subject, (ii) to their knowledge have paid all
taxes and other governmental assessments and charges shown
or determined to be due on such returns, reports and
declarations, except those being contested in good faith
and by appropriate proceedings and (iii) have set aside on
their books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be overdue
by the taxing authority of any jurisdiction except for
those being contested in good faith and by appropriate
proceedings, and (except in respect of such contested
taxes) the officers of the Borrower know of no basis for
any such claim. On the Closing Date, neither the Borrower
nor its Subsidiaries is the subject of an ongoing audit
conducted by the Internal Revenue Service or an agency
having equivalent authority in any other country, except as
otherwise set forth on Schedule 6.10.
6.11. No Event of Default. No Default or Event of
Default has occurred and is continuing.
6.12. Holding Company and Investment Company
Acts. Neither the Borrower nor any of its Subsidiaries is
a "holding company", or a "subsidiary company" of a
"holding company", or an affiliate" of a "holding company",
as such terms are defined in the Public Utility Holding
Company Act of 1935; nor is it an "investment company", or
an "affiliated company" or a "principal underwriter" of an
"investment company", as such terms are defined in the
Investment Company Act of 1940.
6.13. Absence of Financing Statements, etc. To the
knowledge of the Borrower or any of its Subsidiaries, after
reasonable inquiry, and except with respect to the liens
set forth on Schedule 8.2 and other Permitted Liens, there
is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or
recorded with any filing records, registry or other public
office, that purports to cover, affect or give notice of
any present or possible future lien on, or security
interest in, any assets or property of the Borrower or any
of its Subsidiaries or any rights relating thereto.
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6.14. Certain Transactions. Except for arm's length
transactions pursuant to which the Borrower or any of its
Subsidiaries makes payments in the ordinary course of
business upon terms no less favorable than the Borrower or
such Subsidiary could obtain from third parties, none of
the Borrower's officers, directors, or to the knowledge of
the Borrower employees of the Borrower or any of its
Subsidiaries is presently a party to any transaction with
the Borrower or any of its Subsidiaries (other than for
services as employees, officers and directors), including
any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental
of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such
employee or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which
any officer, director, or any such employee has a
substantial interest or is an officer, director, trustee or
partner.
6.15. Employee Benefit Plans.
6.15.1. In General. Each Employee Benefit Plan
and each Guaranteed Pension Plan has been maintained
and operated in compliance in all material respects
with the provisions of ERISA and, to the extent
applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited
transactions and the bonding of fiduciaries and other
persons handling plan funds as required by Section 412 of
ERISA, except where such noncompliance would not have
a Material Adverse Effect.
6.15.2. Terminability of Welfare Plans. No
Employee Benefit Plan that is an employee welfare
benefit plan within the meaning of Section 3(1) or
Section 3(2)(B) of ERISA provides benefit coverage
subsequent to termination of employment, except as
set forth on Schedule 6.15 or as required by Title I,
Part 6 of ERISA or the applicable state insurance laws.
The Borrower may terminate each such Plan at any time (or
at any time subsequent to the expiration of any
applicable bargaining agreement) in the discretion of
the Borrower without liability to any Person other
than for claims arising prior to termination.
6.15.3. Guaranteed Pension Plans. Each
contribution required to be made to a Guaranteed
Pension Plan, whether required to be made to avoid the
incurrence of an accumulated funding deficiency, the
notice or lien provisions of Section 302(f) of ERISA, or
otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of
amortization periods has been received with respect to
any Guaranteed Pension Plan, and neither
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the Borrower nor any ERISA Affiliate is obligated to or
has posted security in connection with an amendment to a
Guaranteed Pension Plan pursuant to Section 307 of ERISA or
Section 401(a)(29) of the Code. No liability to the PBGC
(other than required insurance premiums, all of which
have been paid when due) has been incurred by the
Borrower or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any
ERISA Reportable Event (other than an ERISA Reportable
Event as to which the requirement of 30 days notice
has been waived), or any other event or condition
which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the
valuation of each Guaranteed Pension Plan dated as of
January 1, 2000, and on the actuarial methods and
assumptions employed for that valuation, as of January
1, 2000 the benefit liabilities of each such
Guaranteed Pension Plan within the meaning of Section 4001 of
ERISA did not exceed the value of the assets of such
Guaranteed Pension Plan by more than $500,000.
6.15.4. Multiemployer Plans. Neither the
Borrower nor any ERISA Affiliate has incurred any
material liability (including secondary liability) to
any Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan under
Section 4201 of ERISA or as a result of a sale of assets
described in Section 4204 of ERISA. Neither the Borrower nor
any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or insolvent
under and within the meaning of Section 4241 or Section 4245 of
ERISA or is at risk of entering reorganization or
becoming insolvent, or that any Multiemployer Plan
intends to terminate or has been terminated under
Section 4041A of ERISA.
6.16. Use of Proceeds.
6.16.1. General. The proceeds of the Loans
shall be used on the Closing Date to repay all
existing Indebtedness outstanding under the Existing
Fleet Agreement and thereafter for working capital and
general corporate purposes. The Borrower will obtain
Letters of Credit solely for general corporate
purposes.
6.16.2. Regulations U and X. No portion of any
Loan is to be used, and no portion of any Letter of
Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U
and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
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6.16.3. Ineligible Securities. No portion of
the proceeds of any Loans is to be used, and no
portion of any Letter of Credit is to be obtained, for
the purpose of knowingly purchasing, or providing
credit support for the purchase of, during the
underwriting or placement period or within 30 days
thereafter, any Ineligible Securities underwritten or
privately placed by a Financial Affiliate.
6.17. Environmental Compliance. Except as disclosed
on Schedule 6.17:
(a) to the best of the knowledge of the Borrower
or its Domestic Subsidiaries, none of the Borrower,
its Domestic Subsidiaries or any of the Real Estate
currently owned or leased by any one or more of them
or in respect of which any of them is an "operator"
within the meaning of that term as used in 42 U.S.C.
Sections 9601 et seq. is in 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 analogous state or local statute, regulation,
ordinance, order or decree (hereinafter "Environmental
Laws"), which violation would have a Material Adverse
Effect;
(b) neither the Borrower nor any of its Domestic
Subsidiaries has received notice from any third party
including, without limitation, any federal, state or
local governmental authority, (i) that any one of them
has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible
party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part 300
Appendix B; (ii) that any hazardous waste, as defined
by 42 U.S.C. Section 6903(5), any hazardous substances as
defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) and any
toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental
Laws ("Hazardous Substances") which any one of them
has generated, transported or disposed of has been
found at any site at which a federal, state or local
agency or other third party has conducted or has
ordered that any Borrower or any of its Domestic
Subsidiaries conduct a remedial investigation, removal
or other response action pursuant to any Environmental
Law; or (iii) that it is a named
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party to any claim, action, cause of action, complaint,
or legal or administrative proceeding (in each case,
contingent or otherwise) in connection with such third
party's incurrence of costs, expenses, losses or damages of
any kind whatsoever caused by the release of Hazardous
Substances; and
(c) to the knowledge of the Borrower or its
Domestic Subsidiaries after reasonable inquiry, (i) no
portion of the Real Estate currently owned or leased
by any one or more of them or in respect of which any
of them is an "operator" within the meaning of that
term as used in 42 U.S.C. Sections 9601 et seq. has been used
for the handling, processing, storage or disposal of
Hazardous Substances except in accordance with
applicable Environmental Laws (A) at any time since
1995; or (B) between 1980 and 1995, other than matters
which have been closed and could not reasonably be
expected to be reopened and as to which the failure to
comply with such laws would not have a Material
Adverse Effect; or (C) prior to 1980, other than
matters as to which the failure to comply with such
laws would not have a Material Adverse Effect; (ii) no
underground tank or other underground storage
receptacle for Hazardous Substances is located on any
portion of that Real Estate except in accordance with
applicable Environmental Law; (iii) in the course of
any business or operations conducted by the Borrower,
its Domestic Subsidiaries or other operators of its
properties, no Hazardous Substances are currently
being generated or are currently being used on the
Real Estate except in accordance with applicable
Environmental Laws; (iv) there have been no releases
(i.e. any past or present releasing, spilling,
leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or
dumping) or threatened releases of Hazardous
Substances on, upon, into or from the Real Estate
currently owned or leased by any one or more of them
or in respect of which any of them is an "operator"
within the meaning of that term as used in 42 U.S.C.
Sections 9601 et seq. of the Borrower or its Domestic
Subsidiaries, which releases would have a Material
Adverse Effect; (v) there have been no releases from
any real property in the vicinity of any of the Real
Estate currently owned or leased by any one or more of
them or in respect of which any of them is an
"operator" within the meaning of that term as used in
42 U.S.C. Sections 9601 et seq. which, through soil or
groundwater contamination, may have come to be located
on that Real Estate, and which would have a Material
Adverse Effect; and (vi) any Hazardous Substances that
have been generated on any of the Real Estate
currently owned or leased by any one or more of them
or in respect of which any of them is an "operator"
within the
-53-
meaning of that term as used in 42 U.S.C.
Sections 9601 et seq. have been transported offsite by
carriers having an identification number issued by the
EPA, treated or disposed of by treatment or disposal
facilities maintaining valid permits as required under
applicable Environmental Laws at the time of such
transportation, treatment or disposal.
6.18. Subsidiaries, etc. The only Subsidiaries of
the Borrower are set forth on Schedule 6.18 hereto. Except
as set forth on Schedule 6.18 hereto or as permitted by
Section 8.3, neither the Borrower nor any Subsidiary of the
Borrower has an interest in any Joint Venture or is engaged
in any partnership with any other Person.
6.19. Disclosure. None of this Credit Agreement or
any of the other Loan Documents contains any untrue
statement of a material fact or omits to state a material
fact (known to the Borrower or any of its Subsidiaries in
the case of any document or information not furnished by it
or any of its Subsidiaries) necessary in order to make the
statements herein or therein not misleading. There is no
fact known to the Borrower or any of its Subsidiaries 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.
7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any
Loan, Unpaid Reimbursement Obligation, Letter of Credit or
Note is outstanding or any Bank has any obligation to make
any Loans or the Agent has any obligation to issue, extend
or renew any Letters of Credit:
7.1. Punctual Payment. The Borrower will duly and
punctually pay or cause to be paid the principal and
interest on the Loans, all Reimbursement Obligations, the
Letter of Credit Fees, the commitment fees, the Agent's fee
and all other amounts provided for in this Credit Agreement
and the other Loan Documents to which the Borrower or any
of its Subsidiaries is a party, all in accordance with the
terms of this Credit Agreement and such other Loan
Documents.
7.2. Maintenance of Office. The Borrower will
maintain its chief executive office in Rogers, Connecticut,
or at such other place in the United States of America as
the Borrower shall designate upon written notice to the
Agent, where notices, presentations and demands to or upon
the Borrower in respect of the Loan Documents to which the
Borrower is a party may be given or made.
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7.3. Records and Accounts. The Borrower will (i)
keep, and cause each of its Subsidiaries to keep, true and
accurate records and books of account in which full, true
and correct entries will be made in accordance with
generally accepted accounting principles, (ii) maintain
adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and
amortization of its properties and the properties of its
Subsidiaries, contingencies, and other reserves, and (iii)
at all times engage Ernst & Young LLP or other independent
certified public accountants satisfactory to the Agent as
the independent certified public accountants of the
Borrower and its Subsidiaries (on a consolidated basis) and
will not permit more than thirty (30) days to elapse
between the cessation of such firm's (or any successor
firm's) engagement as the independent certified public
accountants of the Borrower and its Subsidiaries and the
appointment in such capacity of a successor firm as shall
be satisfactory to the Agent.
7.4. Financial Statements, Certificates and
Information. The Borrower will deliver to each of the
Banks:
(a) as soon as practicable, but in any event not
later than ninety (90) days after the end of each
fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries, as at the
end of such year, and the related consolidated
statement of income and consolidated statement of cash
flow for such year, each setting forth in comparative
form the figures for the previous fiscal year and all
such consolidated statements to be in reasonable
detail, prepared in accordance with generally accepted
accounting principles, and certified without
qualification (other than a qualification regarding
changes in generally accepted accounting principles)
by Ernst & Young LLP or by other independent certified
public accountants satisfactory to the Agent, together
with a written statement from such accountants to the
effect that they have examined the relevant sections
of this Credit Agreement, and that, in making the
examination necessary to said certification, they have
obtained no knowledge of any Default or Event of
Default under Sections 8 or 9 of this Credit Agreement, or,
if such accountants shall have obtained knowledge of
any then existing Default or Event of Default under
any of such sections 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 forty-seven (47) days after the end of each
of the fiscal quarters of
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the Borrower, copies of the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of
such quarter, and the related consolidated statement of income
and consolidated statement of cash flow for such fiscal
quarter and for the portion of the Borrower's fiscal
year then elapsed, each setting forth in comparative
form the figures for the comparable periods in the
previous fiscal year (where applicable), all such
consolidated statements to be in reasonable detail and
prepared in accordance with generally accepted
accounting principles, together with a certification
by a principal financial or accounting officer of the
Borrower that the information contained in such
financial statements fairly presents the financial
position of the Borrower and its Subsidiaries on the
date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the
financial statements referred to in subsections (a)
and (b) above, a statement certified by a principal
financial or accounting officer of the Borrower in
substantially the form of Exhibit C hereto setting
forth in reasonable detail computations evidencing
compliance with the covenants contained in Section 9 and (if
applicable) reconciliations to reflect changes in
generally accepted accounting principles since the
Balance Sheet Date;
(d) contemporaneously with the filing or mailing
thereof, copies of all material of a financial nature
filed with the Securities and Exchange Commission or
sent to the stockholders of the Borrower;
(e) not later than May 1 of each year, (i) a
budget for the fiscal year of the Borrower and (ii)
projections of the Borrower and its Subsidiaries
updating those projections delivered to the Banks and
referred to in Section 6.4.3 or, if applicable, updating any
later such projections delivered pursuant to this
Section 7.4(e); and
(f) from time to time such other financial data
and information (including an annual accountants'
management letter) as the Agent or any Bank may
reasonably request.
7.5. Notices.
7.5.1. Defaults. The Borrower will promptly
notify the Agent and each of the Banks in writing of
the occurrence of any Default or Event of Default.
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7.5.2. Environmental Events. The Borrower will
promptly give notice to the Agent and each of the
Banks (i) of any violation of any Environmental Law
that the Borrower or any of its Domestic Subsidiaries
reports in writing to any federal, state or local
environmental agency and may reasonably be expected to
have a Material Adverse Effect, and (ii) any written
notice from any federal, state or local environmental
agency or board of potential environmental liability
that may reasonably be expected to have a Material
Adverse Effect.
7.5.3. Notice of Litigation and Judgments. The
Borrower will, and will cause each of its Subsidiaries
to, give notice to the Agent and each of the Banks in
writing within fifteen (15) days of becoming aware of
any litigation or proceedings threatened in writing or
any pending litigation and proceedings affecting the
Borrower or any of its Subsidiaries or to which the
Borrower or any of its Subsidiaries is or becomes a
party involving an uninsured claim against the
Borrower or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse
Effect, and stating the nature and status of such
litigation or proceedings. The Borrower will, and
will cause each of its Subsidiaries to, give notice to
the Agent and each of the Banks, in writing, in form
and detail satisfactory to the Agent, within ten (10)
days of any judgment not covered by insurance, final
or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $5,000,000.
7.5.4. Notice of Underfunding. The Borrower
will promptly notify the Agent if at any time, based
on the latest valuation of each Guaranteed Pension
Plan, and on the actuarial methods and assumptions
employed for that valuation, the benefit liabilities
of each such Guaranteed Pension Plan within the
meaning of Section 4001 of ERISA exceed the value of the
assets of such Guaranteed Pension Plan.
7.6. Corporate Existence; Maintenance of
Properties. The Borrower will do or cause to be done all
things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and
those of its Subsidiaries and will not, and will not cause
or permit any of its Subsidiaries to, convert to a limited
liability company. It (i) will cause all of its properties
and those of its Subsidiaries used or useful in the conduct
of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and working
order, (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements
thereof, all as in the judgment of the
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Borrower may be necessary so that the business carried on
in connection therewith may be properly and advantageously
conducted at all times, and (iii) will, and will cause each
of its Subsidiaries to, continue to engage primarily in the
businesses now conducted by them and in related businesses;
provided that nothing in this Section 7.6 shall prevent the
Borrower from discontinuing the operation and maintenance
of any of its properties or any of those of its
Subsidiaries if such discontinuance is, in the judgment of
the Borrower, desirable in the conduct of its or their
business and would not have a Material Adverse Effect.
7.7. Insurance. The Borrower will, and will cause
each of its Subsidiaries to, maintain with financially
sound and reputable insurers insurance with respect to its
properties and business against such casualties and
contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in
similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be
reasonable and prudent.
7.8. Taxes. The Borrower will, and will cause each
of its Subsidiaries to, duly pay and discharge, or cause to
be paid and discharged, before the same shall become
overdue, all taxes, assessments and other governmental
charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become a
lien or charge upon any of its property, other than amounts
not to exceed $5,000.00 where the failure to make such
payment would not constitute a Material Adverse Effect;
provided that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof
shall currently be contested in good faith by appropriate
proceedings and if the Borrower or such Subsidiary shall
have set aside on its books adequate reserves with respect
thereto; and provided further that the Borrower and each
Subsidiary of the Borrower will pay all such taxes,
assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien that may
have attached as security therefor.
7.9. Inspection of Properties and Books, etc.
7.9.1. General. The Borrower shall permit the
Banks, through the Agent or any of the Banks' other
designated representatives, to visit and inspect any
of the properties of the Borrower or any of its
Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies
thereof and extracts therefrom), and to discuss the
affairs, finances and accounts of the Borrower and its
Subsidiaries
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with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as
the Agent or any Bank may reasonably request.
7.9.2. Communications with Accountants. The
Borrower authorizes the Agent and, if accompanied by
the Agent, the Banks to communicate directly with the
Borrower's independent certified public accountants
and authorizes such accountants to disclose to the
Agent and the Banks any and all financial statements
and other supporting financial documents and schedules
including copies of any management letter with respect
to the business, financial condition and other affairs
of the Borrower or any of its Subsidiaries. At the
request of the Agent, the Borrower shall deliver a
letter addressed to such accountants instructing them
to comply with the provisions of this Section 7.9.2.
7.10. Compliance with Laws, Contracts, Licenses, and
Permits. The Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with (i)
the applicable laws and regulations wherever its business
is conducted, (ii) the provisions of its charter documents
and by-laws, (iii) all agreements and instruments by which
it or any of its properties may be bound and (iv) all
applicable decrees, orders, and judgments. If any
authorization, consent, approval, permit or license from
any officer, agency or instrumentality of any government
shall become necessary or required in order that the
Borrower or any of its Subsidiaries may fulfill any of its
obligations hereunder or any of the other Loan Documents to
which the Borrower or such Subsidiary is a party, the
Borrower will, or (as the case may be) will cause such
Subsidiary to, immediately take or cause to be taken all
reasonable steps within the power of the Borrower or such
Subsidiary to obtain such authorization, consent, approval,
permit or license and furnish the Agent and the Banks with
evidence thereof.
7.11. Compliance with Environmental Laws. The
Borrower will, and will cause each of its Domestic
Subsidiaries to, comply with all applicable Environmental
Laws and the terms of any permits, licenses or approvals
required for the operation of the Borrower's or any
Domestic Subsidiaries' businesses or Real Estate currently
owned, leased or "operated" within the meaning of 42 U.S.C.
Sections 9601 et seq. by any one or more of them, other than where
such failure to comply could not result in a fine,
judgment, penalty or other levy in excess of $10,000.00 and
could not result in an order of any court or administrative
or regulatory agency enjoining or otherwise preventing the
use of any material part of the Borrower's or any Domestic
Subsidiary's business.
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7.12. Employee Benefit Plans. The Borrower will (i)
promptly upon request of the Agent, furnish to the Agent a
copy of the most recent actuarial statement required to be
submitted under Section 103(d) of ERISA and Annual Report, Form
5500, with all required attachments, in respect of each
Guaranteed Pension Plan and (ii) promptly upon receipt or
dispatch, furnish to the Agent any notice, report or demand
sent or received in respect of a Guaranteed Pension Plan
under Sections 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of
ERISA, or in respect of a Multiemployer Plan, under
Sections 4041A, 4202, 4219, 4242, or 4245 of ERISA.
7.13. Use of Proceeds. The Borrower will use the
proceeds of the Loans and will obtain Letters of Credit
solely for the purposes described in Section 6.16.1.
7.14. Additional Subsidiaries. If, after the Closing
Date, the Borrower or any of its Subsidiaries creates or
acquires, either directly or indirectly, any Subsidiary, or
acquires an interest in any Joint Venture, it will
immediately notify the Agent and the Banks of such creation
or acquisition, as the case may be, and provide the Agent
and the Banks with an updated Schedule 6.18 hereof. The
Borrower will cause each Domestic Subsidiary (other than
World Properties) created, acquired or existing on or after
the Closing Date to become a Guarantor within thirty (30)
days of such Domestic Subsidiary having been created,
acquired or existing, and shall cause such Subsidiary to
execute and deliver to the Agent for the benefit of the
Agent and the Banks a Guaranty, together with a legal
opinion in form and substance reasonably satisfactory to
the Agent to be delivered to the Agent and the Banks
opining as to the authorization, validity and
enforceability of such Guaranty.
7.15. Further Assurances. The Borrower will, and
will cause each of its Subsidiaries to, cooperate with the
Banks and the Agent and execute such further instruments
and documents as the Banks or the Agent shall reasonably
request to carry out to their satisfaction the transactions
contemplated by this Credit Agreement and the other Loan
Documents.
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any
Loan, Unpaid Reimbursement Obligation, Letter of Credit or
Note is outstanding or any Bank has any obligation to make
any Loans or the Agent has any obligations to issue, extend
or renew any Letters of Credit:
8.1. Restrictions on Indebtedness. The Borrower will
not, and will not permit any of its Subsidiaries to,
create, incur, assume,
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guarantee or be or remain liable, contingently or otherwise,
with respect to any Indebtedness other than the following (each
of which categories shall be interpreted as being separately
permitted, notwithstanding any overlap among such categories):
(a) Indebtedness to the Banks and the Agent
arising under any of the Loan Documents;
(b) endorsements for collection, deposit or
negotiation and warranties of products or services, in
each case incurred in the ordinary course of business;
(c) Indebtedness (i) incurred in connection with
the secured financing of any real or personal property
by the Borrower or any of its Domestic Subsidiaries,
(ii) under any Synthetic Lease or (iii) under any
Capitalized Lease, provided that the aggregate
principal amount of such Indebtedness (including under
any such Synthetic Lease or Capitalized Lease) of the
Borrower and its Domestic Subsidiaries shall not
exceed the aggregate amount of $5,000,000 at any one
time;
(d) Indebtedness of the Borrower and its
Domestic Subsidiaries existing on the date hereof and
listed and described on Schedule 8.1(d) hereto;
(e) Indebtedness of the Borrower's Foreign
Subsidiaries existing on the date hereof and listed
and described on Schedule 8.1(e) hereto;
(f) Indebtedness (i) of a Subsidiary of the
Borrower to the Borrower or to another Subsidiary of
the Borrower, (ii) of the Borrower to any Guarantor,
or (iii) of the Borrower to World Properties in an
aggregate principal amount not to exceed $30,000,000;
provided that in each of cases (ii) and (iii) above,
such Indebtedness shall be subordinated to the
Obligations on terms and conditions satisfactory to
the Agent and the Banks;
(g) Indebtedness in respect of borrowings
against the cash value of life insurance policies
owned by the Borrower or any of its Subsidiaries in an
aggregate principal amount not to exceed $6,000,000;
(h) Indebtedness of Foreign Subsidiaries (other
than as permitted by Section 8.1(f)) which, when aggregated
with amounts outstanding under Section 8.1(e), shall not
exceed fifty percent (50%) of Consolidated Foreign
Tangible Assets at any time;
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(i) Indebtedness (in addition to and other than
Indebtedness otherwise permitted and classified as
Investments pursuant to paragraphs (g) and (h) of
Section 8.3 hereof) in respect of guaranties by the
Borrower or any of its Domestic Subsidiaries of
Indebtedness of Foreign Subsidiaries or Joint Ventures
("Guarantied JV/Foreign Indebtedness"); provided that
the aggregate principal amount of all Guarantied
JV/Foreign Indebtedness shall not exceed $5,000,000 at
any time outstanding;
(j) Indebtedness in respect of Derivative
Contracts entered into solely for hedging (and not
speculative) purposes in the ordinary course of the
Borrower's (or the applicable Subsidiary's) business;
and
(k) unsecured Indebtedness of the Borrower and
its Domestic Subsidiaries other than as permitted by
clauses (a) through (j) above; provided that the
aggregate principal amount of all such Indebtedness
shall not exceed $5,000,000 at any time outstanding.
8.2. Restrictions on Liens. The Borrower will not,
and will not permit any of its Subsidiaries to, (i) create
or incur or suffer to be created or incurred or to exist
any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any
of its property or assets of any character whether now
owned or hereafter acquired, or upon the income or profits
therefrom; (ii) transfer any of such property or assets or
the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or
performance of any other obligation in priority to payment
of its general creditors; (iii) acquire, or agree or have
an option to acquire, any property or assets upon
conditional sale or other title retention or purchase money
security agreement, device or arrangement; (iv) suffer to
exist for a period of more than thirty (30) days after the
same shall have been incurred any Indebtedness or claim or
demand against it that if unpaid might by law or upon
bankruptcy or insolvency, or otherwise, be given any
priority whatsoever over its general creditors; or (v)
sell, assign, pledge or otherwise transfer any
"receivables" as defined in clause (vii) of the definition
of the term "Indebtedness," with or without recourse; or
(vi) enter into or permit to exist any arrangement or
agreement, enforceable under applicable law, which directly
or indirectly prohibits the Borrower or any of its
Subsidiaries from creating or incurring any lien,
encumbrance, mortgage, pledge, charge, restriction or other
security interest other than in favor of the Agent for the
benefit of the Banks and the Agent under the Loan Documents
and other than customary anti-assignment provisions in
leases and licensing agreements entered into by
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the Borrower or such Subsidiary in the ordinary course of its
business, provided that the Borrower or any of its
Subsidiaries may create or incur or suffer to be created or
incurred or to exist the following (each of which
categories shall be interpreted as being separately
permitted, notwithstanding any overlap among such
categories):
(a) liens in favor of the Borrower on all or
part of the assets of Subsidiaries of the Borrower
securing Indebtedness owing by Subsidiaries of the
Borrower to the Borrower;
(b) liens to secure taxes, assessments and other
government charges in respect of obligations not
overdue or liens on properties to secure claims for
labor, material or supplies in respect of obligations
not overdue;
(c) deposits or pledges made in connection with,
or to secure payment of, workmen's compensation,
unemployment insurance, old age pensions or other
social security obligations;
(d) liens on properties in respect of judgments
or awards that have been in force for less than the
applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of
which the Borrower or such Subsidiary shall at the
time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay
of execution shall have been obtained pending such
appeal or review;
(e) liens of carriers, warehousemen, mechanics
and materialmen, and other like liens on properties,
in existence less than 120 days from the date of
creation thereof in respect of obligations not
overdue;
(f) encumbrances on real property owned by the
Borrower or a Subsidiary consisting of easements,
rights of way, zoning restrictions, restrictions on
the use of real property and defects and
irregularities in the title thereto, which defects and
irregularities do not individually or in the aggregate
have a Material Adverse Effect; and landlord's or
lessor's liens under leases to which the Borrower or a
Subsidiary of the Borrower is a party;
(g) liens existing on the date hereof and listed
on Schedule 8.2 hereto;
(h) purchase money security interests in, title
retention agreements in, conditional sales agreements
for, purchase money mortgages on or other single asset
liens on real or personal
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property securing Indebtedness of the type and amount
permitted by Section 8.1(c), which security interests,
mortgages or liens cover only the applicable real or
personal property and do not extend to any other assets
or properties of the Borrower or its Subsidiaries;
(i) liens or security interests arising pursuant
to or in connection with the Economic Development and
Manufacturing Assistance Act of 1990 (the "Act") set
forth in Sections 32-220 to 32-234 of Chapter 5881 of
Title 32 of the General Statutes of Connecticut
Revision of 1958, Revised to 1996 as the same may be
amended from time to time (the "Connecticut Statutes")
and as set forth in Connecticut tax code (the
"Connecticut Tax Code") Section 12-81(70) and (72) of
Chapter 201 of Title 12 of the Connecticut Statues
(the lien described in this clause (i) shall be
limited to transactions in which tax credits or
exemptions are granted to purchasers under the Act and
the Connecticut Tax Code arising from the purchase of
specific machinery and equipment);
(j) liens or security interests in, or pledges
or assignments of, life insurance policies owned by
the Borrower or any of its Subsidiaries securing
borrowings against the cash value of said policies
provided that the Indebtedness in respect of such
borrowings is permitted by Section 8.1(g);
(k) liens on the assets and properties of
Foreign Subsidiaries securing Indebtedness of such
Foreign Subsidiaries permitted by Section 8.1(h); and
(l) unrecorded minor liens, leases or
encumbrances on the Real Estate or other assets of the
Borrower and its Subsidiaries which do not interfere
materially with the use of the property or assets
affected in the ordinary course of such Person's
business and do not secure Indebtedness for borrowed
money.
8.3. Restrictions on Investments. The Borrower will
not, and will not permit any of its Subsidiaries to, make
or permit to exist or to remain outstanding any Investment
except Investments in the following (each of which
categories shall be interpreted as being separately
permitted, notwithstanding any overlap among such
categories):
(a) marketable direct or guaranteed obligations
of the United States of America or any state or city
therein, in each case that mature within two (2) years
from the date of purchase by the Borrower; provided
that such obligations of any such state or city shall
have a long-term credit rating of not less than "A" by
Moody's Investors Service, Inc. and Standard & Poors
Ratings Services;
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(b) demand deposits, certificates of deposit,
bankers acceptances and time deposits of United States
banks (including any offshore branches thereof) having
total assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial
paper" issued by a corporation organized and existing
under the laws of the United States of America or any
state thereof that at the time of purchase have been
rated and the ratings for which are not less than
"P 1" if rated by Moody's Investors Service, Inc., or
not less than "A 1" if rated by Standard & Poor's
Ratings Services;
(d) (i) Repurchase agreements secured by any one
or more of the securities and other Investments
permitted by (a), (b) or (c) above, or (ii) mutual or
other investment funds that invest primarily in any
one or more of the securities and other Investments
permitted by (a), (b) or (c) above;
(e) Investments existing on the date hereof
(including existing Investments in the Foreign
Subsidiaries and Joint Ventures) and listed on
Schedule 8.3 hereto;
(f) Investments with respect to Indebtedness
permitted by Section 8.1(f);
(g) (i) Investments by the Guarantors consisting
of the Guaranty, (ii) Investments by any Subsidiary in
the Borrower, (iii) Investments by the Borrower in any
Guarantor, (iv) Investments in World Properties not to
exceed $750,000 at any time outstanding, and (v)
Investments made after the Closing Date in the Foreign
Subsidiaries not to exceed $15,000,000 at any time
outstanding;
(h) Investments made after the Closing Date in
Joint Ventures in an aggregate amount not to exceed
$30,000,000 at any time outstanding;
(i) Investments in respect of Guarantied
JV/Foreign Indebtedness permitted by Section 8.1(i);
(j) Investments in respect of guaranties by the
Borrower or any of its Domestic Subsidiaries of
contractual obligations (not constituting
Indebtedness) of Foreign Subsidiaries or Joint
Ventures requiring payments in any fiscal year in
excess of $500,000 ("Material JV/Foreign Contracts");
provided that the aggregate amount of required
payments under all such guarantied
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Material JV/Foreign Contracts shall not exceed
$5,000,000 in any fiscal year of the Borrower;
(k) Investments consisting of promissory notes
received as proceeds of asset dispositions permitted
by Section 8.5.2;
(l) Investments consisting of loans and advances
to employees or former employees for moving,
entertainment, travel and other similar expenses in
the ordinary course of business not to exceed
$1,500,000 in the aggregate at any time outstanding;
(m) Investments in respect of mergers,
consolidations and acquisitions permitted by Section 8.5.1;
and
(n) Investments other than as permitted by
clauses (a) through (m) above; provided that the
aggregate amount of all such Investments shall not
exceed $750,000 at any time outstanding.
For the avoidance of doubt, the foregoing restrictions
shall not apply to investments made by any Guaranteed
Pension Plan or Multiemployer Plan or so-called "Rabbi
Trust" established for the benefit of directors or
executives of the Borrower (or former executives or
directors).
8.4. Distributions. The Borrower will not make any
Distributions unless no Default or Event of Default shall
have occurred and be continuing or shall arise from such
Distribution.
8.5. Merger, Consolidation and Disposition of Assets.
8.5.1. Mergers and Acquisitions. The Borrower
will not, and will not permit any of its Subsidiaries
to, become a party to any merger or consolidation, or
agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in
the ordinary course of business consistent with past
practices) except:
(i) the merger or consolidation of one or more
of the Subsidiaries of the Borrower with and
into the Borrower,
(ii) the merger or consolidation of two or more
Subsidiaries of the Borrower or
(iii) mergers or consolidations with or stock
or asset acquisitions of entities or
businesses that are in the
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same or a related line of business as the
Borrower or any of its Subsidiaries and which
have been approved by the board of directors
or equivalent governing body of the entity or
business to be acquired; provided that (x)
in the case of mergers or consolidations the
Borrower or a Subsidiary is the survivor
thereof, (y) no Default or Event of Default
shall have occurred and be continuing both
immediately before and immediately after
giving effect to such transaction, and (z)
if the aggregate consideration for such
stock or asset acquisition is $25,000,000 or
more, prior to consummating such acquisition
the Borrower (A) shall have delivered to the
Banks projections, prepared based on
assumptions and otherwise in a manner
reasonably satisfactory to the Majority
Banks, of the balance sheets, statements of
income and cash flows of the Borrower and
its Subsidiaries for the forthcoming period
of four fiscal quarters after giving effect
to such acquisition, and (B) based on the
projections referred to in clause (A) above,
shall have demonstrated to the reasonable
satisfaction of the Majority Banks that (x)
both immediately before and immediately
after giving effect to such acquisition it
is and will be in compliance with the
financial covenants set forth in Section 9 on a Pro
Forma Basis and (y) the Borrower can
reasonably be expected to remain in
compliance with the financial covenants set
forth in Section 9 for such forthcoming period of
four fiscal quarters.
8.5.2. Disposition of Assets. The Borrower will
not, and will not permit any of its Subsidiaries to,
become a party to or agree to or effect any sale or
other disposition of assets, except the following
(each of which categories shall be interpreted as
being separately permitted, notwithstanding any
overlap among such categories):
(a) the Borrower and its Subsidiaries may
sell inventory, license intellectual property and
dispose of obsolete assets, in each case in the
ordinary course of business consistent with past
practices;
(b) the Borrower and its Subsidiaries may
transfer intellectual property to World
Properties consistent with past practices;
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(c) any Guarantor may sell or otherwise
dispose of all or any part of its assets to the
Borrower or another Guarantor;
(d) the Borrower may sell or otherwise
dispose of any assets to a Guarantor;
(e) any Foreign Subsidiary may sell or
otherwise dispose of all or any part of its
assets to the Borrower, any Guarantor or any
other Foreign Subsidiary;
(f) the Borrower or any Subsidiary may sell
or otherwise dispose of all or any part of its
stock or its assets to any other Person; provided
that the aggregate value on the books of the
Borrower and its Subsidiaries of the assets so
sold or otherwise disposed of (including any
dispositions of the assets or stock of World
Properties pursuant to Section 8.11) shall not exceed
(i) ten percent (10%) of Consolidated Tangible
Assets in any fiscal year of the Borrower, as
determined on the last day of the previous fiscal
year, and (ii) twenty-five percent (25%) of
Consolidated Tangible Assets in the aggregate
during the term of this Credit Agreement, as
determined on December 31, 2000 (it being
understood that prior to December 31, 2000 the
Borrower shall be required to comply only with
the requirements of subclause (i) of this proviso
with respect to such dispositions); and
(g) the Borrower may transfer assets
consisting of cash or cash equivalents or stock
of the Borrower into a so-called "Rabbi Trust"
for the benefit of certain executives or
directors of the Borrower (or former executives
or directors); provided that the amount of cash
or cash equivalents so transferred shall not
exceed, in the aggregate, the sum of (i)
$7,000,000 plus (ii) $2,000,000 for each fiscal
year of the Borrower ending after the Closing
Date, and not exceeding a maximum amount of
$17,000,000 during the term of this Agreement.
8.6. Sale and Leaseback. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby the Borrower
or any Subsidiary of the Borrower shall sell or transfer
any property owned by it in order then or thereafter to
lease such property or lease other property that the
Borrower or any Subsidiary of the Borrower intends to use
for substantially the same purpose as the property being
sold or transferred (each, a
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"Sale/Leaseback Arrangement"); provided that so long as in each
case the Indebtedness incurred thereunder is permitted by Section
8.1(c), the Borrower and its Subsidiaries may (a) enter into Sale
/Leaseback Arrangements the aggregate consideration for which does
not exceed $5,000,000 during the term of this Credit Agreement,
and (b) enter into Sale/Leaseback Arrangements with respect
to newly-acquired property purchased no more than sixty
(60) days prior to the effective date of such
Sale/Leaseback Arrangement.
8.7. Employee Benefit Plans. Neither the Borrower
nor any ERISA Affiliate will:
(a) engage in any "prohibited transaction"
within the meaning of Section 406 of ERISA or Sections 4975 of the
Code which could result in a material liability for
the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur
an "accumulated funding deficiency", as such term is
defined in Section 302 of ERISA, for a period of thirty (30)
days or more, whether or not such deficiency is or may
be waived; or
(c) fail to contribute to any Guaranteed Pension
Plan to an extent which, or terminate any Guaranteed
Pension Plan in a manner which, could result in the
imposition of a lien or encumbrance on the assets of
the Borrower or any of its Subsidiaries pursuant to
Section 302(f) or Section 4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in
circumstances requiring the posting of security
pursuant to Section 307 of ERISA or Section 401(a)(29)
of the Code; or
(e) terminate any Guaranteed Pension Plan at any
time that the benefit liabilities (with the meaning of
Section 4001 of ERISA) of such Guaranteed Pension Plan exceed
the value of the assets of such Plan.
8.8. Business Activities. The Borrower 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 Closing Date and in related businesses.
8.9. Fiscal Year. The Borrower will not, and will
not permit any of it Subsidiaries to, change the date of
the end of its fiscal year from that set forth in Section 6.4.1,
unless any such change (i) will have no Material Adverse
Effect and (ii) does not prevent the Borrower and its
Subsidiaries
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from calculating and does not limit the ability of the Agent and
the Banks from readily determining compliance with the provisions
of this Agreement, including without limitation the financial
covenants set forth in Section 9.
8.10. Transactions with Affiliates. The Borrower
will not, and will not permit any of its Subsidiaries to,
engage in any transaction with any Affiliate (other than
for services as employees, officers and directors),
including any contract, agreement or other arrangement
providing for the furnishing of services to or by,
providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any such
Affiliate or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which
any such Affiliate has a substantial interest or is an
officer, director, trustee or partner, on terms more
favorable to such Person than would have been obtainable on
an arm's-length basis in the ordinary course of business;
provided that the provisions of this Section 8.10 shall not apply
to transactions of the of the Borrower or any Subsidiary
with Rogers Inoac, Durel Corporation, Polyimide Laminate
Systems LLC, Rogers Chang Chun Technology Co., Ltd. and any
other Joint Ventures in which the Borrower has an interest.
8.11. Activities of World Properties. The Borrower
will not permit World Properties to (a) own or otherwise
hold any assets other than patents, trademarks, copyrights
and related rights (the "Intellectual Property"), or notes
and interest receivable, cash and short term investments
received in connection with Intellectual Property licensed
or transferred by World Properties, or (b) engage directly
or indirectly (whether through Subsidiaries or otherwise)
in any type of business other than the ownership,
licensing, protecting, defending and managing of the
Intellectual Property. The Borrower will not permit World
Properties to transfer (including pursuant to long-term
licenses) the Intellectual Property or its other assets in
any way economically or legally equivalent to a sale,
except that World Properties may transfer assets in such
manner in an amount not to exceed (i) ten percent (10%) of
the book value of its total assets in any fiscal year, as
determined on the last day of the previous fiscal year, and
(ii) twenty-five percent (25%) of the book value of its
total assets in the aggregate during the term of this
Credit Agreement, as determined on December 31, 2000. The
Borrower will not sell or otherwise transfer the stock of
World Properties to anyone other than a wholly-owned
Subsidiary, nor will it permit World Properties to incur
any Indebtedness or to create or incur or suffer to be
created or incurred or to exist any lien, encumbrance,
mortgage, pledge, charge, restriction or other security
interest of any kind upon any of its property or assets,
whether now owned or hereafter acquired, or upon the income
or profits therefrom.
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8.12. Modification of Charter Documents. Neither the
Borrower nor any of its Subsidiaries will amend or permit
to be amended its certificate of incorporation or bylaws,
or similar organizational documents without the Agent's
prior written consent unless such change or amendment would
not have a Material Adverse Effect.
8.13. Upstream Limitations. Neither the Borrower nor
any of its Subsidiaries will enter into, or permit any of
their Subsidiaries to enter into, any agreement, contract
or arrangement (other than this Credit Agreement and the
other Loan Documents) restricting the ability of such
Subsidiary to pay or make dividends or distributions in
cash or kind, to make loans, advances or other payments of
whatsoever nature or to make transfers or distributions of
all or any part of its assets to the Borrower or any
Subsidiary of which such Subsidiary is a Subsidiary.
8.14. Inconsistent Agreements. Neither the Borrower
nor any of its Subsidiaries will, nor will they permit
their Subsidiaries to, enter into any agreement containing
any provision which would be violated or breached by the
performance by the Borrower or such Subsidiary of its
obligations hereunder or under any of the Loan Documents.
9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any
Loan, Unpaid Reimbursement Obligation, Letter of Credit or
Note is outstanding or any Bank has any obligation to make
any Loans or the Agent has any obligation to issue, extend
or renew any Letters of Credit:
9.1. Leverage Ratio. The Borrower will not, as of
the end of any fiscal quarter, permit the Leverage Ratio to
exceed 2.00 to 1.00 at any time.
9.2. Interest Coverage Ratio. The Borrower will not,
as of the end of any fiscal quarter, permit the ratio of
(i) EBITDA for any period of four consecutive fiscal
quarters ended on such date, to (ii) Consolidated Total
Interest Expense for such period to be less than 4.50 to
1.00 at any time.
9.3. Capital Expenditures. The Borrower will not
make, or permit any Subsidiary of the Borrower to make,
Capital Expenditures in any fiscal year that exceed, in the
aggregate, $35,000,000 for such fiscal year; provided,
however, that, if during any fiscal year the amount of
Capital Expenditures permitted for that fiscal year is not
so utilized, such unutilized amount may be utilized in the
next succeeding fiscal year (after first utilizing the
maximum amount for such succeeding fiscal year) but not in
any subsequent fiscal year.
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9.4. Consolidated Net Worth. The Borrower will not
permit Consolidated Net Worth at any time to be less than
the sum of $123,000,000 plus, on a cumulative basis, 50% of
positive Consolidated Net Income for each fiscal quarter
subsequent to the fiscal quarter ended July 2, 2000 (with
no deduction for any quarter in which there is a net loss).
10. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Loans
and of the Agent to issue any initial Letters of Credit
shall be subject to the satisfaction of the following
conditions precedent:
10.1. Loan Documents. Each of the Loan Documents
shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and
effect and shall be in form and substance satisfactory to
each of the Banks. Each Bank shall have received a fully
executed copy of each of this Credit Agreement, its Note,
the Guaranty and any other Loan Documents to which it is a
party.
10.2. Certified Copies of Charter Documents. Each of
the Banks shall have received from the Borrower and each of
the Guarantors a copy, certified by a duly authorized
officer of such Person to be true and complete on the
Closing Date, of each of (i) its charter or other
incorporation documents as in effect on such date of
certification, and (ii) its by-laws as in effect on such
date.
10.3. Corporate Action. All corporate action
necessary for the valid execution, delivery and performance
by the Borrower and each of the Guarantors of this Credit
Agreement and the other Loan Documents to which it is or is
to become a party shall have been duly and effectively
taken, and evidence thereof satisfactory to the Banks shall
have been provided to each of the Banks.
10.4. Incumbency Certificate. Each of the Banks
shall have received from the Borrower and each of the
Guarantors an incumbency certificate, dated as of the
Closing Date, signed by a duly authorized officer of the
Borrower or such Guarantor, as the case may be, and giving
the name and bearing a specimen signature of each
individual who shall be authorized: (i) to sign, in the
name and on behalf of the Borrower or such Guarantor, each
of the Loan Documents to which the Borrower or such
Guarantor is or is to become a party; (ii) in the case of
the Borrower, to make Loan Requests and Conversion Requests
and to apply for Letters of Credit; and (iii) to give
notices and to take other action on its behalf under the
Loan Documents.
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10.5. Opinion of Counsel. Each of the Banks and the
Agent shall have received favorable legal opinions
addressed to the Banks and the Agent, dated as of the
Closing Date, in form and substance satisfactory to the
Banks and the Agent, from:
(a) Hill & Barlow, counsel to the Borrower and its
Subsidiaries; and
(b) Paul V. Wentworth, Esq., Arizona counsel to the
Borrower and TL Properties, Inc.
10.6. UCC Search Results, etc. The Agent shall be
satisfied with the results of all Uniform Commercial Code,
Patent and Trademark Office, mortgage, tax and judgment
lien search results with respect to the Borrower and its
Domestic Subsidiaries in all relevant jurisdictions.
10.7. Payment of Fees and Expenses. The Borrower
shall have paid to the Banks or the Agent, as appropriate,
the fees payable pursuant to the Fee Letter and all
expenses subject to reimbursement under the terms of this
Credit Agreement.
10.8. Termination of Existing Fleet Agreement. Fleet
shall have received a letter from the Borrower terminating
all commitments to lend under the Existing Fleet Agreement
effective on and as of the Closing Date.
10.9. Payoff Letter. The Agent and the Borrower
shall have received a payoff letter from Fleet, indicating
the amount of the loan obligations of the Borrower, if any,
under the Existing Fleet Agreement to be discharged on the
Closing Date.
10.10. Initial Loan Request. The Agent shall have
received a Loan Request, if applicable, dated the Closing
Date duly completed with the details of all Loans to be
made on the Closing Date, if any, together with
disbursement instructions from the Borrower with respect to
proceeds thereof.
11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, and of
the Agent to issue, extend or renew any Letter of Credit,
in each case whether on or after the Closing Date, shall
also be subject to the satisfaction of the following
conditions precedent:
11.1. Representations True; No Event of
Default. Each of the representations and warranties of any
of the Borrower and its
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Subsidiaries contained in this Credit Agreement, the other
Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made
and shall also be true at and as of the time of the making
of such Loan or the issuance, extension or renewal of such
Letter of Credit, with the same effect as if made at and
as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit
Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or
in the aggregate do not have a Material Adverse Effect, and
to the extent that such representations and warranties
relate expressly to an earlier date) and no Default or
Event of Default shall have occurred and be continuing.
11.2. No Legal Impediment. No change shall have
occurred in any law or regulations thereunder or
interpretations thereof that in the reasonable opinion of
any Bank would make it illegal for such Bank to make such
Loan or to participate in the issuance, extension or
renewal of such Letter of Credit or in the reasonable
opinion of the Agent would make it illegal for the Agent to
issue, extend or renew such Letter of Credit. None of the
Banks or the Agent is aware, on and as of the Closing Date,
of any such law or regulations.
11.3. Governmental Regulation. Each Bank shall have
received such statements in substance and form reasonably
satisfactory to such Bank as such Bank shall require for
the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of
Governors of the Federal Reserve System.
11.4. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this
Credit Agreement, the other Loan Documents and all other
documents incident thereto shall be satisfactory in
substance and in form to the Banks and to the Agent and the
Agent's Special Counsel, and the Banks, the Agent and such
counsel shall have received all information and such
counterpart originals or certified or other copies of such
documents as the Agent may reasonably request.
12. EVENTS OF DEFAULT; ACCELERATION; ETC.
12.1. Events of Default and Acceleration. If any of
the following events ("Events of Default" or, if the giving
of notice or the lapse of time or both is required, then,
prior to such notice or lapse of time, "Defaults") shall
occur:
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(a) the Borrower shall fail to pay any principal
of the Loans or any Reimbursement Obligation when the
same shall become due and payable, whether at the
stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries
shall fail to pay any interest on the Loans, the
commitment fee, any Letter of Credit Fee, the Agent's
fee, or other sums due hereunder or under any of the
other Loan Documents, within five (5) days after the
same shall become due and payable, whether at the
stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with any
of its covenants contained in Sections 7.1, 7.4, 7.5, 7.6 (as
it relates to corporate existence), 7.8, 8 or 9;
(d) the Borrower or any of its Subsidiaries
shall fail to perform any term, covenant or agreement
contained herein or in any of the other Loan Documents
(other than those specified elsewhere in this Section 12.1)
for thirty (30) days after written notice of such
failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the
Borrower or any of its Subsidiaries in this Credit
Agreement or any of the other Loan Documents or in any
other document or instrument delivered pursuant to or
in connection with this Credit Agreement shall prove
to have been false in any material respect upon the
date when made or deemed to have been made or
repeated;
(f) the Borrower or any of its Subsidiaries
shall fail to pay at maturity, or within any
applicable period of grace, any obligation for
borrowed money or credit received (other than trade
payables incurred in the ordinary course of business)
or in respect of any Capitalized Leases in an
aggregate principal amount outstanding of $1,000,000
or more, or fail to observe or perform any material
term, covenant or agreement contained in any agreement
by which it is bound, evidencing or securing borrowed
money or credit received or in respect of any
Capitalized Leases in an aggregate principal amount
outstanding of $1,000,000 or more, for such period of
time as would permit (assuming the giving of
appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to
accelerate the maturity thereof, or
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any such holder or holders shall rescind or shall
have a right to rescind the purchase of any such
obligations;
(g) the Borrower or any of its Subsidiaries
shall make an assignment for the benefit of creditors,
or admit in writing its inability to pay or generally
fail to pay its debts as they mature or become due, or
shall petition or apply for the appointment of a
trustee or other custodian, liquidator or receiver of
the Borrower or any of its Subsidiaries or of any
substantial part of the assets of the Borrower or any
of its Subsidiaries or shall commence any case or
other proceeding relating to the Borrower or any of
its Subsidiaries under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall
take any action to authorize or in furtherance of any
of the foregoing, or if any such petition or
application shall be filed or any such case or other
proceeding shall be commenced against the Borrower or
any of its Subsidiaries and the Borrower or any of its
Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such
petition or application shall not have been dismissed
within sixty (60) days following the filing thereof;
(h) a decree or order is entered appointing any
such trustee, custodian, liquidator or receiver or
adjudicating the Borrower or any of its Subsidiaries
bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order
for relief is entered in respect of the Borrower or
any Subsidiary of the Borrower in an involuntary case
under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged,
unsatisfied (unless bonded) and unstayed, for more
than forty-five days, whether or not consecutive, any
final judgment against the Borrower or any of its
Subsidiaries that, with other outstanding final
judgments, undischarged, against the Borrower or any
of its Subsidiaries exceeds in the aggregate
$5,000,000;
(j) if any of the Loan Documents shall be
cancelled, terminated, revoked or rescinded, 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 any action at
law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of the Borrower or
any of its Subsidiaries party thereto or any of their
respective stockholders, or any court or any other
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governmental or regulatory authority or agency of
competent jurisdiction shall make a determination
that, or issue a judgment, order, decree or ruling to
the effect that, any one or more of the Loan Documents
is illegal, invalid or unenforceable in accordance
with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs
any liability to the PBGC or a Guaranteed Pension Plan
pursuant to Title IV of ERISA in an aggregate amount
exceeding $5,000,000, or the Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to
Title IV of ERISA by a Multiemployer Plan requiring
aggregate annual payments exceeding $3,000,000, or any
of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a
failure to make a required installment or other
payment (within the meaning of Section 302(f)(1) of ERISA),
provided that the Agent determines in its reasonable
discretion that such event (A) is reasonably likely to
result in liability of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $5,000,000 and
(B) could constitute grounds for the termination of
such Guaranteed Pension Plan by the PBGC, for the
appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed
Pension Plan or for the imposition of a lien in favor
of such Guaranteed Pension Plan; or (ii) the
appointment by a United States District Court of a
trustee to administer such Guaranteed Pension Plan; or
(iii) the institution by the PBGC of proceedings to
terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries
shall be enjoined, restrained or in any way prevented
by the order of any court or any administrative or
regulatory agency from conducting any material part of
its business and such order shall continue in effect
for more than thirty (30) days;
(m) there shall occur the loss, suspension or
revocation of, or failure to renew, any license or
permit now held or hereafter acquired by the Borrower
or any of its Subsidiaries if such loss, suspension,
revocation or failure to renew would have a Material
Adverse Effect; or
(n) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and
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Exchange Commission under said Act) of 20% or more
of the outstanding shares of common stock of the
Borrower; or, during any period of twelve consecutive
calendar months, individuals who were directors of the
Borrower on the first day of such period shall cease
to constitute a majority of the board of directors
of the Borrower;
then, and in any such event, so long as the same may be
continuing, the Agent may, and upon the request of the
Majority Banks shall, by notice in writing to the Borrower
declare all amounts owing with respect to this Credit
Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon
forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower;
provided that in the event of any Event of Default
specified in Sections 12.1(g) or 12.1(h), all such amounts shall
become immediately due and payable automatically and
without any requirement of notice from the Agent or any
Bank.
12.2. Termination of Commitments. If any one or more
of the Events of Default specified in Section 12.1(g) or
Section 12.1(h) shall occur, any unused portion of the credit
hereunder shall forthwith terminate and each of the Banks shall be
relieved of all further obligations to make Loans to the
Borrower and the Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit.
If any other Event of Default shall have occurred and be
continuing, the Agent may and, upon the request of the
Majority Banks, shall, by notice to the Borrower, terminate
the unused portion of the credit hereunder, and upon such
notice being given such unused portion of the credit
hereunder shall terminate immediately and each of the Banks
shall be relieved of all further obligations to make Loans
and the Agent shall be relieved of all further obligations
to issue, extend or renew Letters of Credit. No
termination of the credit hereunder shall relieve the
Borrower or any of its Subsidiaries of any of the
Obligations.
12.3. Remedies. In case any one or more of the
Events of Default shall have occurred and be continuing,
and whether or not the Banks shall have accelerated the
maturity of the Loans pursuant to Section 12.1, each Bank, if owed
any amount with respect to the Loans or the Reimbursement
Obligations, may, with the consent of the Majority Banks
but not otherwise, proceed to protect and enforce its
rights by suit in equity, action at law or other
appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this
Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank
are evidenced, including
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as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of such Bank.
No remedy herein conferred upon any Bank or the Agent or the holder
of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by
statute or any other provision of law.
13. SETOFF.
Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits or
other sums credited by or due from any of the Banks to the
Borrower and any securities or other property of the
Borrower in the possession of such Bank may be applied to
or set off by such Bank against the payment of Obligations
and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrower to such Bank. Each
of the Banks agrees with each other Bank that (i) if an
amount to be set off is to be applied to Indebtedness of
the Borrower to such Bank, other than Indebtedness
evidenced by the Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, such amount
shall be applied ratably to such other Indebtedness and to
the Indebtedness evidenced by all such Notes held by such
Bank or constituting Reimbursement Obligations owed to such
Bank, and (ii) if such Bank shall receive from the
Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of
the claim evidenced by the Notes held by, or constituting
Reimbursement Obligations owed to, such Bank by proceedings
against the Borrower at law or in equity or by proof
thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and
shall retain and apply to the payment of the Note or Notes
held by, or Reimbursement Obligations owed to, such Bank
any amount in excess of its ratable portion of the payments
received by all of the Banks with respect to the Notes held
by, and Reimbursement Obligations owed to, all of the
Banks, such Bank will make such disposition and
arrangements with the other Banks with respect to such
excess, either by way of distribution, pro tanto assignment
of claims, subrogation or otherwise as shall result in each
Bank receiving in respect of the Notes held by it or
Reimbursement Obligations owed it, its proportionate
payment as contemplated by this Credit Agreement; provided
that if all or any part of such excess payment is
thereafter recovered from such Bank, such disposition and
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arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
14. THE AGENT.
14.1. Authorization.
(a) The Agent is authorized to take such action
on behalf of each of the Banks and to exercise all
such powers as are hereunder and under any of the
other Loan Documents and any related documents
delegated to the Agent, together with such powers as
are reasonably incident thereto, provided that no
duties or responsibilities not expressly assumed
herein or therein shall be implied to have been
assumed by the Agent.
(b) The relationship between the Agent and each
of the Banks is that of an independent contractor.
The use of the term "Agent" is for convenience only
and is used to describe, as a form of convention, the
independent contractual relationship between the Agent
and each of the Banks. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be
construed to create an agency, trust or other
fiduciary relationship between the Agent and any of
the Banks.
(c) As an independent contractor empowered by
the Banks to exercise certain rights and perform
certain duties and responsibilities hereunder and
under the other Loan Documents, the Agent is
nevertheless a "representative" of the Banks, as that
term is defined in Article 1 of the Uniform Commercial
Code, for purposes of actions for the benefit of the
Banks and the Agent with respect to all collateral
security and guaranties, if any, contemplated by the
Loan Documents.
14.2. Employees and Agents. The Agent may exercise
its powers and execute its duties by or through employees
or agents and shall be entitled to take, and to rely on,
advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other
Loan Documents. The Agent may utilize the services of such
Persons as the Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such
Persons shall be paid by the Borrower.
14.3. No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any
other Person assisting them in their duties nor any agent
or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted
to be
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taken, in good faith by it or them hereunder or under
any of the other Loan Documents, or in connection herewith
or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the
Agent or such other Person, as the case may be, may be
liable for losses due to its willful misconduct or gross
negligence.
14.4. No Representations.
14.4.1. General. The Agent shall not be
responsible for the execution or validity or
enforceability of this Credit Agreement, the Notes,
the Letters of Credit, any of the other Loan Documents
or any instrument at any time constituting, or
intended to constitute, collateral security for the
Notes, or for the value of any such collateral
security or for the validity, enforceability or
collectability of any such amounts owing with respect
to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of
the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf
of the Borrower or any of its Subsidiaries, or be
bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants
or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral
security for the Notes or to inspect any of the
properties, books or records of the Borrower or any of
its Subsidiaries. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower or any holder
of any of the Notes shall have been duly authorized or
is true, accurate and complete. The Agent has not
made nor does it now make any representations or
warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit
worthiness or financial conditions of the Borrower or
any of its Subsidiaries. Each Bank acknowledges that
it has, independently and without reliance upon the
Agent or any other Bank, and based upon such
information and documents as it has deemed
appropriate, made its own credit analysis and decision
to enter into this Credit Agreement.
14.4.2. Closing Documentation, etc. For
purposes of determining compliance with the conditions
set forth in Section 10, each Bank that has executed this
Credit Agreement shall be deemed to have consented to,
approved or accepted, or be satisfied with, each
document and matter either sent, or made available, by
the Agent to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to
be consented to or approved by or
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acceptable or satisfactory to such Bank, unless an
officer of the Agent active upon the Borrower's account
shall have received notice from such Bank prior to the
Closing Date specifying such Bank's objection thereto and
such objection shall not have been withdrawn by notice to
the Agent to such effect on or prior to the Closing
Date.
14.5. Payments.
14.5.1. Payments to Agent. A payment by the
Borrower to the Agent hereunder or any of the other
Loan Documents for the account of any Bank shall
constitute a payment to such Bank. The Agent agrees
promptly to distribute to each Bank such Bank's pro
rata share of payments received by the Agent for the
account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
14.5.2. Distribution by Agent. If in the
opinion of the Agent the distribution of any amount
received by it in such capacity hereunder, under the
Notes or under any of the other Loan Documents might
involve it in liability, it may refrain from making
distribution until its right to make distribution
shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed
by the Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either
repay to the Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be
determined by such court.
14.5.3. Delinquent Banks. Notwithstanding
anything to the contrary contained in this Credit
Agreement or any of the other Loan Documents, any Bank
that fails (i) to make available to the Agent its pro
rata share of any Loan or to purchase any Letter of
Credit Participation or (ii) to comply with the
provisions of Section 13 with respect to making dispositions
and arrangements with the other Banks, where such
Bank's share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata
share of such payments due and payable to all of the
Banks, in each case as, when and to the full extent
required by the provisions of this Credit Agreement,
shall be deemed delinquent (a "Delinquent Bank") and
shall be deemed a Delinquent Bank until such time as
such delinquency is satisfied. A Delinquent Bank
shall be deemed to have assigned any and all payments
due to it from the Borrower, whether on account of
outstanding Loans, Unpaid Reimbursement
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Obligations, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction
of, their respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement
Obligations. The Delinquent Bank hereby authorizes
the Agent to distribute such payments to the
nondelinquent Banks in proportion to their respective
pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. A Delinquent Bank shall be
deemed to have satisfied in full a delinquency when
and if, as a result of application of the assigned
payments to all outstanding Loans and Unpaid
Reimbursement Obligations of the nondelinquent Banks,
the Banks' respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement Obligations
have returned to those in effect immediately prior to
such delinquency and without giving effect to the
nonpayment causing such delinquency.
14.6. Holders of Notes. The Agent may deem and treat
the payee of any Note or the purchaser of any Letter of
Credit Participation as the absolute owner or purchaser
thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or
by a subsequent holder, assignee or transferee.
14.7. Indemnity. The Banks ratably agree hereby to
indemnify and hold harmless the Agent and its affiliates
from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent or
such affiliate has not been reimbursed by the Borrower as
required by Section 15), and liabilities of every nature and
character arising out of or related to this Credit
Agreement, the Notes, or any of the other Loan Documents or
the transactions contemplated or evidenced hereby or
thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall
be directly caused by the Agent's willful misconduct or
gross negligence.
14.8. Agent as Bank. In its individual capacity,
Fleet shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the
Loans made by it, and as the holder of any of the Notes and
as the purchaser of any Letter of Credit Participations, as
it would have were it not also the Agent.
14.9. Resignation. The Agent may resign at any time
by giving sixty (60) days prior written notice thereof to
the Banks and the Borrower. Upon any such resignation, the
Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have
occurred and be continuing, such successor Agent shall be
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reasonably acceptable to the Borrower. If no successor
Agent shall have been so appointed by the Majority Banks
and shall have accepted such appointment within thirty (30)
days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a
financial institution having a rating of not less than A or
its equivalent by Standard & Poor's Ratings Services. Upon
the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's
resignation, the provisions of this Credit Agreement and
the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be
taken by it while it was acting as Agent.
14.10. Notification of Defaults and Events of
Default. Each Bank hereby agrees that, upon learning of
the existence of a Default or an Event of Default, it shall
promptly notify the Agent thereof. The Agent hereby agrees
that upon receipt of any notice under this Section 14.10 it shall
promptly notify the other Banks of the existence of such
Default or Event of Default.
15. EXPENSES AND INDEMNIFICATION.
15.1. Expenses. The Borrower agrees to pay (i) the
reasonable costs of producing and reproducing this Credit
Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (ii) any taxes
(including any interest and penalties in respect thereto)
payable by the Agent or any of the Banks (other than
Excluded Taxes) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrower hereby
agreeing to indemnify the Agent and each Bank with respect
thereto), (iii) the reasonable fees, expenses and
disbursements of the Agent or any of its affiliates or
Agent's Special Counsel or any local counsel to the Agent
incurred in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder,
any amendments, modifications, approvals, consents or
waivers hereto or hereunder, 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, and (iv) all
reasonable out-of-pocket expenses (including without
limitation reasonable attorneys' fees and costs, which
attorneys may be employees of Fleet or the Agent, and
reasonable consulting, accounting, appraisal, investment
banking and similar professional fees and charges) incurred
by Fleet or the Agent, and all reasonable attorneys' fees
and costs (which
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attorneys may be employees of the applicable Bank) incurred
by any other Bank, in each case in connection with (A) the
enforcement of or preservation of rights under any of the
Loan Documents against the Borrower or any of its Subsidiaries
or the administration thereof after the occurrence of a Default
or Event of Default and (B) any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related
to any Bank's or the Agent's relationship with the Borrower
or any of its Subsidiaries.
15.2. Indemnification. The Borrower agrees to
indemnify and hold harmless the Agent, its affiliates and
the Banks (together, the "Indemnitees") from and against
any and all claims, actions and suits whether groundless or
otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character
arising out of this Credit Agreement or any of the other
Loan Documents or the transactions contemplated hereby
including, without limitation, (i) any actual or proposed
use by the Borrower or any of its Subsidiaries of the
proceeds of any of the Loans or Letters of Credit, (ii) the
Borrower or any of its Subsidiaries entering into or
performing this Credit Agreement or any of the other Loan
Documents or (iii) with respect to the Borrower and its
Subsidiaries and the Real Estate, (x) the violation of any
Environmental Law, or (y) the presence, disposal, escape,
seepage, leakage, spillage, discharge, emission, release or
threatened release of any Hazardous Substances in violation
of applicable Environmental Laws or any action, suit,
proceeding or investigation brought or threatened with
respect thereto (including, but not limited to, claims with
respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated
costs of internal counsel incurred in connection with any
such investigation, litigation or other proceeding;
provided that the Borrower shall not be required to
indemnify any Indemnitee from and against any claims,
actions, suits, liabilities, losses, damages or expenses to
the extent the same arises out of such Indemnitee's own
gross negligence or willful misconduct. 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 Borrower
agrees to pay promptly the reasonable fees and expenses of
such counsel. If, and to the extent that the obligations
of the Borrower under this Section 15.2 are unenforceable for any
reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such
obligations which is permissible under applicable law.
15.3. Survival. The covenants contained in this Section 15
shall survive payment or satisfaction in full of all other
Obligations.
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16. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
16.1. Confidentiality. Each of the Banks and the
Agent agrees, on behalf of itself and each of its
affiliates, directors, officers, employees and
representatives (including their respective counsel,
auditors and accountants), 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 proprietary information supplied
to it by the Borrower or any of its Subsidiaries pursuant
to this Credit Agreement that is identified orally or in
writing by such Person as being confidential or proprietary
(or words of like effect) 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 Section 16, (b) to the extent required
by statute, rule, regulation or judicial process, (c) to
counsel for any of the Banks or the Agent, (d) to bank
examiners or any other regulatory authority having
jurisdiction over any Bank or the Agent, or to auditors or
accountants, (e) to the Agent 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, or (g) to any assignee or
participant (or prospective assignee or participant) so
long as such assignee or participant agrees to be bound by
the provisions of Section 18.6. The covenants contained in this
Sections 16.1 shall survive payment or satisfaction in full of the
Obligations for a period of eighteen (18) months.
16.2. 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 Borrower of any request for disclosure of any
such non-public information by any governmental agency or
representative thereof (other than any such request in
connection with an examination of the financial condition
of such Bank by such governmental agency) or pursuant to
legal process.
16.3. Other. In no event shall any Bank or the Agent
be obligated or required to return any materials furnished
to it by the Borrower or any of its Subsidiaries. The
obligations of each Bank under this Section 16 shall supersede and
replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed
and delivered by such Bank to the Borrower prior to the
date hereof and shall be binding upon any assignee of, or
purchaser of any participation in, any interest in any of
the Loans or Reimbursement Obligations from any Bank.
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17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and
warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers
delivered by or on behalf of the Borrower or any of its
Subsidiaries pursuant hereto shall be deemed to have been
relied upon by the Banks and the Agent, notwithstanding any
investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of any of the
Loans and the issuance, extension or renewal of any Letters
of Credit, as herein contemplated, and shall continue in
full force and effect so long as any Letter of Credit or
any amount due under this Credit Agreement or the Notes or
any of the other Loan Documents remains outstanding or any
Bank has any obligation to make any Loans or the Agent has
any obligation to issue, extend or renew any Letter of
Credit, and for such further time as may be otherwise
expressly specified in this Credit Agreement. All
statements contained in any certificate or other paper
delivered to any Bank or the Agent at any time by or on
behalf of the Borrower or any of its Subsidiaries pursuant
hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by
the Borrower or such Subsidiary hereunder unless otherwise
specifically provided in such certificate or other paper.
18. ASSIGNMENT AND PARTICIPATION.
18.1. Conditions to Assignment by Banks. Except as
provided herein, each Bank may assign to one or more
Eligible Assignees all or a portion of its interests,
rights and obligations under this Credit Agreement
(including all or a portion of its Commitment Percentage
and Commitment and the same portion of the Loans at the
time owing to it, the Notes held by it and its
participating interest in the risk relating to any Letters
of Credit); provided that (i) each of the Agent and, unless
a Default or Event of Default shall have occurred and be
continuing, the Borrower shall have given its prior written
consent to such assignment, which consent, in the case of
the Borrower, will not be unreasonably withheld, (ii) each
such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and
obligations under this Credit Agreement, (iii) each
assignment shall be in the minimum amount of $5,000,000,
(iv) 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 D hereto (an
"Assignment and Acceptance"), together with the Notes
subject to such assignment, (v) unless a Default or Event
of Default shall have occurred, no Bank may assign its
interests, rights and obligations hereunder during the
period of eighteen (18) months
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commencing on the Closing Date, and (vi) unless a Default
or Event of Default shall have occurred, Fleet shall retain
a Commitment hereunder of not less than $20,000,000 and Citizens
shall retain a Commitment hereunder of not less than $10,000,000,
in each case as such amounts are ratably adjusted for any reduction
in the Total Commitment occurring after the Closing Date.
Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof,
(i) the assignee thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Bank hereunder, and (ii)
the assigning Bank shall, to the extent provided in such
assignment and upon payment to the Agent of the
registration fee referred to in Section 18.3, be released from its
obligations under this Credit Agreement.
18.2. Certain Representations and Warranties;
Limitations; Covenants. By executing and delivering an
Assignment and Acceptance, the parties to the assignment
thereunder confirm to and agree with each other and the
other parties hereto as follows:
(a) other than the representation and warranty
that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any
adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and
assumes no responsibility with respect to any
statements, warranties or representations made in or
in connection with this Credit Agreement or the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit
Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security
interest or mortgage,
(b) the assigning Bank makes no representation
or warranty and assumes no responsibility with respect
to the financial condition of the Borrower and its
Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the
Obligations, or the performance or observance by the
Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of
the Obligations of any of their obligations under this
Credit Agreement or any of the other Loan Documents or
any other instrument or document furnished pursuant
hereto or thereto;
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(c) such assignee confirms that it has received
a copy of this Credit Agreement, together with copies
of the most recent financial statements referred to in
Section 6.4 and Section 7.4 and such other documents and information
as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment
and Acceptance;
(d) such assignee will, independently and
without reliance upon the assigning Bank, the Agent or
any other Bank and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or
not taking action under this Credit Agreement;
(e) such assignee represents and warrants that
it is an Eligible Assignee;
(f) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and
to exercise such powers under this Credit Agreement
and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with
such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in
accordance with their terms all of the obligations
that by the terms of this Credit Agreement are
required to be performed by it as a Bank;
(h) such assignee represents and warrants that
it is legally authorized to enter into such Assignment
and Acceptance; and
(i) such assignee acknowledges that it has made
arrangements with the assigning Bank satisfactory to
such assignee with respect to its pro rata share of
Letter of Credit Fees in respect of outstanding
Letters of Credit.
18.3. Register. The Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a
register or similar list (the "Register") for the
recordation of the names and addresses of the Banks and the
Commitment Percentage of, and principal amount of the Loans
owing to and Letter of Credit Participations purchased by,
the Banks from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and
the Borrower, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder
for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower and the
Banks
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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.
18.4. New Notes. Upon its receipt of an Assignment
and Acceptance executed by the parties to such assignment,
together with each Note subject to such assignment, the
Agent shall (i) record the information contained therein in
the Register, and (ii) give prompt notice thereof to the
Borrower and the Banks (other than the assigning Bank).
Within five (5) Business Days after receipt of such notice,
the Borrower, at its own expense, shall execute and deliver
to the Agent, in exchange for each surrendered Note, a new
Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee
pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained some portion of its obligations
hereunder, a new Note to the order of the assigning Bank in
an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for
the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes. Within five
(5) days of issuance of any new Notes pursuant to this
Section 18.4, the Borrower shall deliver an opinion of counsel,
addressed to the Banks and the Agent, relating to the due
authorization, execution and delivery of such new Notes and
the legality, validity and binding effect thereof, in form
and substance satisfactory to the Banks. The surrendered
Notes shall be cancelled and returned to the Borrower.
18.5. Participations. Each Bank may sell
participations to one or more banks or other entities in
all or a portion of such Bank's rights and obligations
under this Credit Agreement and the other Loan Documents;
provided that (i) each such participation shall be in an
amount of not less than $5,000,000, (ii) any such sale or
participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower and (iii) the only
rights granted to the participant pursuant to such
participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications
that would reduce the principal of or the interest rate on
any Loans, release any guaranty of the Obligations, extend
the term or increase the amount of the Commitment of such
Bank as it relates to such participant, reduce the amount
of any commitment fees or Letter of Credit Fees to which
such participant is entitled or extend any regularly
scheduled payment date for principal or interest.
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18.6. Disclosure. The Borrower agrees that in
addition to disclosures made in accordance with standard
and customary banking practices any Bank may disclose
information obtained by such Bank pursuant to this Credit
Agreement to assignees or participants and potential
assignees or participants hereunder; provided that such
assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such
information unless such information otherwise becomes
public knowledge through no fault of such Bank, (ii) not to
disclose such information to a third party, except as
required by law or legal process and (iii) not to make use
of such information for purposes of transactions unrelated
to such contemplated assignment or participation. For
purposes of this Section 18.6 an assignee or participant or
potential assignee or participant may include a
counterparty with whom such Bank has entered into or
potentially might enter into a derivative contract
referenced to credit or other risks or events arising under
this Credit Agreement or any other Loan Document.
18.7. Assignee or Participant Affiliated with the
Borrower. If any assignee Bank is an Affiliate of the
Borrower, then any such assignee Bank shall have no right
to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or
for purposes of agreeing to amendments or other
modifications to any of the Loan Documents or for purposes
of making requests to the Agent pursuant to Section 12.1 or
Section 12.2, and the determination of the Majority Banks
shall for all purposes of this Credit Agreement and the other Loan
Documents be made without regard to such assignee Bank's
interest in any of the Loans or Reimbursement Obligations.
If any Bank sells a participating interest in any of the
Loans or Reimbursement Obligations to a participant, and
such participant is the Borrower or an Affiliate of the
Borrower, then such transferor Bank shall promptly notify
the Agent of the sale of such participation. A transferor
Bank shall have no right to vote as a Bank hereunder or
under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to
amendments or modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to
Section 12.1 or Section 12.2 to the extent that such participation is
beneficially owned by the Borrower or any Affiliate of the
Borrower, and the determination of the Majority Banks shall
for all purposes of this Credit Agreement and the other
Loan Documents be made without regard to the interest of
such transferor Bank in the Loans or Reimbursement
Obligations to the extent of such participation.
18.8. Miscellaneous Assignment Provisions. Any
assigning Bank shall retain its rights to be indemnified
pursuant to Section 15 with respect to any claims or actions
arising prior to the date of such
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assignment. If any assignee Bank is not incorporated under
the laws of the United States of America or any state thereof,
it shall, prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents for
its account, deliver to the Borrower and the Agent
certification as to its exemption from deduction or
withholding of any United States federal income taxes. If
any Reference Bank transfers all of its interest, rights
and obligations under this Credit Agreement, the Agent
shall, in consultation with the Borrower and with the
consent of the Borrower and the Majority Banks, appoint
another Bank to act as a Reference Bank hereunder.
Anything contained in this Section 18 to the contrary
notwithstanding, any Bank may at any time pledge all or any
portion of its interest and rights under this Credit
Agreement (including all or any portion of its Notes) to
any of the twelve Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge
or the enforcement thereof shall release the pledgor Bank
from its obligations hereunder or under any of the other
Loan Documents.
18.9. Assignment by Borrower. The Borrower shall not
assign or transfer any of its rights or obligations under
any of the Loan Documents without the prior written consent
of each of the Banks.
19. NOTICES, ETC.
Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or
required to be given pursuant to this Credit Agreement or
the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United
States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by telegraph,
telecopy, facsimile or telex and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the Borrower, at One Technology Drive,
P. O. Box 188, Rogers, Connecticut 06263-0188,
Attention: Robert M. Soffer, Vice President and
Treasurer or at such other address for notice as the
Borrower shall last have furnished in writing to the
Person giving the notice;
(b) if to the Agent, at 100 Federal Street, MA
DE 10010A Boston, Massachusetts 02110, USA, Attention:
Roger C. Boucher, 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.
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Any such notice or demand shall be deemed to have been
duly given or made and to have become effective (i) if
delivered by hand, overnight courier or facsimile to a
responsible officer of the party to which it is directed,
at the time of the receipt thereof by such officer or the
sending of such facsimile and (ii) if sent by registered or
certified first-class mail, postage prepaid, on the third
Business Day following the mailing thereof.
20. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN
DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE
PARTIES AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS
OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY
MAIL AT THE ADDRESS SPECIFIED IN SECTION 19. EACH OF THE PARTIES
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR
THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
21. HEADINGS.
The captions in this Credit Agreement are for
convenience of reference only and shall not define or limit
the provisions hereof.
22. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a
separate counterpart, each of which when executed and
delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit
Agreement it shall not be necessary to produce or account
for more than one such counterpart signed by the party
against whom enforcement is sought.
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23. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in
connection herewith or therewith express the entire
understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit
Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in Section 25.
24. WAIVER OF JURY TRIAL.
The Borrower hereby waives its right to a jury trial
with respect to any action or claim arising out of any
dispute in connection with this Credit Agreement, the Notes
or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of
such rights and obligations. Except as prohibited by law,
the Borrower hereby waives any right it may have to claim
or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to,
actual damages. The Borrower (i) certifies that no
representative, agent or attorney of any Bank or the Agent
has represented, expressly or otherwise, that such Bank or
the Agent would not, in the event of litigation, seek to
enforce the foregoing waivers and (ii) acknowledges that
the Agent and the Banks have been induced to enter into
this Credit Agreement, the other Loan Documents to which it
is a party by, among other things, the waivers and
certifications contained herein.
25. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this
Credit Agreement to be given by the Banks may be given, and
any term of this Credit Agreement, the other Loan Documents
or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the
Borrower or any of its Subsidiaries of any terms of this
Credit Agreement, the other Loan Documents or such other
instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with,
but only with, the written consent of the Borrower and the
written consent of the Majority Banks. Notwithstanding the
foregoing, the rate of interest on the Notes (other than
interest accruing pursuant to Section 5.11 following the
effective date of any waiver by the Majority Banks of the
Default or Event of Default relating thereto) or the
amount of the commitment fee or Letter of Credit Fees may
not be decreased without the written consent of each Bank
affected thereby; any guaranty of the Obligations may not
be released without the written consent of each Bank
affected thereby;
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the amount of the Commitments may not be increased and
without the written consent of the Borrower and of each
Bank affected thereby; the Maturity Date and any required
payment dates may not be postponed without the written
consent of each Bank affected thereby; this Section 25
and the definition of Majority Banks may not be amended,
without the written consent of all of the Banks; and the
amount of the Agent's Fee and Section 14 may not be
amended without the written consent of the Agent. No
waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
No course of dealing or delay or omission on the part of
the Agent or any Bank in exercising any right shall operate
as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or
other circumstances.
26. SEVERABILITY.
The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held
invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part
thereof, in such jurisdiction, and shall not in any manner
affect such clause or provision in any other jurisdiction,
or any other clause or provision of this Credit Agreement
in any jurisdiction.
27. REPRESENTATIONS AND WARRANTIES OF THE BANKS AND THE
AGENT.
Each of the Banks and the Agent represents and
warrants to the Borrower that the execution, delivery and
performance of this Credit Agreement and the other Loan
Documents to which the Agent or such Bank, as the case may
be, is a party and the transactions contemplated hereby and
thereby (i) are within the authority (corporate or
otherwise) of such Person, (ii) have been duly authorized
by all necessary proceedings (corporate or otherwise),
(iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or
regulation to which such Person is subject or any judgment,
order, writ, injunction, license or permit applicable to
such Person, and (iv) do not conflict with any provision of
the charter or bylaws of, or any agreement or other
instrument binding upon, such Person.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have duly executed
this Credit Agreement as a sealed instrument as of the date
first set forth above.
ROGERS CORPORATION
By: /s/ Robert M. Soffer
Name: Robert M. Soffer
Title: Vice President and
Treasurer
FLEET NATIONAL BANK,
individually and as Agent
By: /s/ Roger C. Boucher
Name: Roger C. Boucher
Title: Director
CITIZENS BANK OF CONNECTICUT
By: /s/ Patricia D. Donnelly
Name: Patricia D. Donnelly
Title: Vice President
SCHEDULE 1
Banks; Commitments; Commitment Percentages
Bank; Address;
Domestic Lending Office; Commitment
Eurodollar Lending Office Percentage Commitment
Fleet National Bank
100 Federal Street, MA DE
10010A
Boston, MA 02110
Attn: Roger C. Boucher 60.0% $45,000,000
Citizens Bank of Connecticut
90 State House Square
Hartford, Connecticut 06103
Attn: Patricia D. Donnelly 40.0% $30,000,000
TOTAL 100% $75,000,000
BD Draft
12/07/00
Exhibit A
FORM OF
REVOLVING CREDIT NOTE
($ ) Date
FOR VALUE RECEIVED, the undersigned Rogers
Corporation, a Massachusetts corporation (the "Borrower"),
hereby promises to pay to the order of ( ),
a ( ) (the "Bank") at the Agent's Head
Office at 100 Federal Street, Boston, Massachusetts 02110:
(a) prior to or on the Maturity Date, the
principal amount of [Insert Bank's Commitment] DOLLARS
($ ) or, if less, the aggregate unpaid principal
amount of Loans advanced by the Bank to the Borrower
pursuant to the Multicurrency Revolving Credit
Agreement dated as of December 8, 2000 (as amended,
modified, supplemented or restated and in effect from
time to time, the "Credit Agreement"), among the
Borrower, the Bank, the other lending institutions
party thereto and Fleet National Bank, as agent (the
"Agent"); and
(b) interest on the principal balance hereof
from time to time outstanding, from the Closing Date
under the Credit Agreement through and including the
repayment in full hereof and termination of all
commitments under the Credit Agreement, at the times
and at the rates set forth in the Credit Agreement.
This Revolving Credit Note (this "Note") evidences
borrowings under and has been issued by the Borrower in
accordance with the terms of the Credit Agreement. The
Bank and any holder hereof is entitled to the benefits of
the Credit Agreement and the other Loan Documents, and may
enforce the agreements of the Borrower contained therein,
and any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings
herein as in the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make
or cause to be made, at or about the time of the Drawdown
Date of any Loan or at the time of receipt of any payment
of principal of this Note, an
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appropriate notation on the grid attached to this Note,
or the continuation of such grid, or any other similar record,
including computer records, reflecting the making of such Loan
or (as the case may be) the receipt of such payment. The
outstanding amount of the Loans set forth on the grid attached to
this Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by
the Agent with respect to any Loans shall be prima facie
evidence of the principal amount thereof owing and unpaid
to the Agent, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation
or other record shall not limit or otherwise affect the
obligation of the Borrower hereunder or under the Credit
Agreement to make payments of principal of and interest on
this Note when due.
The Borrower has the right in certain circumstances
and the obligation 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.
No delay or omission on the part of the Bank or any
holder hereof in exercising any right hereunder shall
operate as a waiver of such right or of any other rights of
the Bank or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the
same or any other right on any further occasion.
The Borrower and every endorser and guarantor of this
Note or the obligation represented hereby waives
presentment, demand, notice, protest and all other demands
and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and
assents to any extension or postponement of the time of
payment or any other indulgence, to any substitution,
exchange or release of collateral and to the addition or
release of any other party or person primarily or
secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER
HEREUNDER SHALL FOR ALL PURPOSES BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY
SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE
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COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 19 OF THE CREDIT AGREEMENT. THE BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed
instrument under the laws of The Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the undersigned has caused this
Revolving Credit Note to be signed in its corporate name by
its duly authorized officer as of the day and year first
above written.
ROGERS CORPORATION
By:
Name:
Title:
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
BD Draft
12/08/00
EXHIBIT B
FORM OF LOAN REQUEST
, 200
Fleet National Bank, as Agent
100 Federal Street
Boston, Massachusetts 02110
Attention: Multinational Division
Re: Loan Request under Multicurrency Revolving Credit
Agreement
Ladies and Gentlemen:
Reference is hereby made to that certain Multicurrency
Revolving Credit Agreement, dated as of December 8, 2000
(as the same may be amended, modified, supplemented or
restated and in effect from time to time, the "Credit
Agreement"), by and among ROGERS CORPORATION, a
Massachusetts corporation (the "Borrower"), FLEET NATIONAL
BANK and the other lending institutions which are or may
become parties thereto from time to time (collectively, the
"Banks"), and FLEET NATIONAL BANK, 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 Section 2.6 of the Credit Agreement, we hereby
request that a Loan consisting of [a Prime Rate Loan in the
principal amount of $( ) or (a Eurocurrency Rate
Loan in the principal amount of $( ) with an
Interest Period of ) or (a Eurocurrency Rate Loan
denominated in the optional currency of (Japanese
Yen/Belgian Francs/the Euro) in the principal amount of
with an interest period of ) be made on
, 200 . We understand that this request is
irrevocable and binding on us and obligates us to accept
the requested Loan on such date.
We hereby certify (a) that we will use the proceeds of
the requested Loan in accordance with the provisions of the
Credit Agreement, and (b) that each of the conditions set
forth in Section 11.1 of the Credit Agreement have been satisfied.
Very truly yours,
ROGERS CORPORATION
By:
Name:
Title:
BD Draft
12/07/00
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
___________, 200__
To the Banks Party to the
Credit Agreement Referred to Below
c/o Fleet National Bank, as Agent
100 Federal Street
Boston, Massachusetts 02110
Attn: Multinational Division
Re: Compliance Certificate
Ladies and Gentlemen:
Reference is made to the Multicurrency Revolving
Credit Agreement, dated as of December 8, 2000 (as amended,
modified, supplemented or restated and in effect from time
to time, the "Credit Agreement"), by and among ROGERS
CORPORATION, a Massachusetts corporation (the "Borrower"),
FLEET NATIONAL BANK, a national banking association, and
the other lending institutions party thereto from time to
time (collectively, the "Banks"), and FLEET NATIONAL BANK,
as agent for the Banks (in such capacity, the "Agent").
Capitalized terms used herein without definition that are
defined in the Credit Agreement shall have the respective
meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 7.4 of the Credit Agreement, a
principal financial or accounting officer of the Borrower hereby
certifies to each of you as follows: (a) the information
furnished in the calculations attached hereto was true and
correct as of the last day of the fiscal [year] [quarter]
next preceding the date of this certificate; (b) as of the
date of this certificate, there exists no Event of Default
or condition which would, with either (or both) the giving
of notice or the lapse of time, result in an Event of
Default; and (c) the financial statements delivered
herewith were prepared in accordance with generally
accepted accounting principles (as defined in the Credit
Agreement), except, in the case of quarterly statements,
for year-end adjustments and provisions for footnotes.
IN WITNESS WHEREOF, the undersigned officer has
executed this Compliance Certificate as of the date first
written above.
ROGERS CORPORATION
By:_______________________________
Name:
Title:
Compliance Certificate Worksheet
ROGERS CORPORATION
As of ______________
Section
Calculation
9.1 Leverage Ratio.
(four consecutive fiscal quarters then ended)
A. Total Funded Indebtedness:
(1) Indebtedness for borrowed money
(including notes and bonds): $
(2) plus purchase money Indebtedness: $
(3) plus Indebtedness with respect to Capitalized
Leases: and Synthetic Leases $
(4) Total: $
B. EBITDA:
(1) Consolidated Net Income: $
(2) plus depreciation and amortization and similar
non-cash charges: $
(3) plus income tax expense: $
(4) plus Consolidated Total Interest Expense: $
(5) minus net income (or deficit) of joint ventures,
except to the extent actually received in cash: $
(6) Total: $
C. Ratio of A(4) to B(6): :
--- ---
D. Maximum Permitted Leverage Ratio: 2.00:1.00
9.2 Interest Coverage Ratio.
(four fiscal quarters then ended)
A. EBITDA (see 9.1(B)): $
B. Consolidated Total Interest Expense: $
C. Ratio of A to B: :
--- ---
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D. Minimum Required Interest Coverage Ratio: 4.50:1.00
9.3 Capital Expenditures
(any fiscal year)
A. Capital Expenditures: $
B. Maximum Permitted Capital Expenditures
($35,000,000 plus permitted carryover of unused
Capital Expenses from prior year): $
9.4 Consolidated Net Worth Minimum
(four fiscal quarters then ended)
A. Consolidated Net Worth:
(1) Consolidated Total Assets: $
(2) minus Consolidated Total Liabilities: $
(3) minus subscriptions receivable: $
(4) Total: $
B. Required Consolidated Net Worth Minimum:
(1) $123,000,000
$123,000,000
(2) plus 50% of positive Consolidated Net Income
Subsequent to July 2, 2000: $
(3) Total Required: $
BD Draft
12/07/00
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of , 200
Reference is made to the Multicurrency Revolving
Credit Agreement, dated as of December 8, 2000 (as amended
and in effect from time to time, the "Credit Agreement"),
by and among ROGERS CORPORATION, a Massachusetts
corporation (the "Borrower"), FLEET NATIONAL BANK and the
other lending institutions party thereto (collectively, the
"Banks"), and FLEET NATIONAL BANK, as agent for the Banks
(in such capacity, the "Agent"). Capitalized terms used
herein without definition that are defined in the Credit
Agreement shall have the meanings assigned to such terms in
the Credit Agreement.
__________ (the "Assignor") and _________ (the
"Assignee") hereby agree as follows:
2. 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).
29. 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 Dollar Equivalent of the
aggregate outstanding principal balance of its Loans equals
$___________, the aggregate amount of its Letter of Credit
Participations equals $__________ (in each case after
giving effect to the assignment contemplated hereby but
without giving effect to any contemplated assignments which
have not yet become effective), and (C) immediately after
giving effect to all assignments which have not yet become
effective, the Assignor's Commitment Percentage will be
sufficient to give effect to this Assignment and
Acceptance, (ii) makes no representation or warranty,
express or implied, and assumes no responsibility with
respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any
of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant thereto or
the attachment, perfection or priority of any security
interest or mortgage, other than that it is the legal and
beneficial owner of the interest being assigned by it
hereunder free and clear of any claim or encumbrance; (iii)
makes no representation or warranty and assumes no
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responsibility with respect to the financial condition of
the Borrower or any of its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the
Borrower or any of its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the
Obligations of any of its obligations under the Credit
Agreement or any of the other Loan Documents or any other
instrument or document delivered or executed pursuant
thereto; and (iv) attaches hereto the Revolving Credit Note
delivered to it under the Credit Agreement.
The Assignor requests that the Borrower exchange the
Assignor's Revolving Credit Note for new Revolving Credit
Notes payable to the Assignor and the Assignee as follows:
Note Payable to Amount of Revolving
the Order of: Credit Note
Assignor $__________
Assignee $__________
3. Assignee's Representations. The Assignee (i)
represents and warrants that (A) it is duly and legally
authorized to enter into this Assignment and Acceptance,
(B) the execution, delivery and performance of this
Assignment and Acceptance do not conflict with any
provision of law or of the charter or by-laws of the
Assignee, or of any agreement binding on the Assignee, (C)
all acts, conditions and things required to be done and
performed and to have occurred prior to the execution,
delivery and performance of this Assignment and Acceptance,
and to render the same the legal, valid and binding
obligation of the Assignee, enforceable against it in
accordance with its terms, have been done and performed and
have occurred in due and strict compliance with all
applicable laws; (ii) confirms that it has received a copy
of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.4
thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance;
(iii) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement; (iv) represents and warrants that it is an
Eligible Assignee; (v) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably
incidental thereto; (vi) agrees that it will perform in
accordance with their terms all the obligations which by
the terms of the Credit Agreement are required to be
performed by it as a Bank; and (vii) acknowledges that it
has made arrangements with the Assignor satisfactory to the
Assignee with respect to its pro rata share of Letter of
Credit Fees in respect of outstanding Letters of Credit, if
any.
4. Effective Date. The effective date for this
Assignment and Acceptance shall be ____ ____, 200_ (the
"Effective Date"). Following the execution of this
Assignment and Acceptance and the consent, if required, of
the Borrower hereto having been obtained, each party hereto
shall deliver its duly executed counterpart hereof to the
Agent for acceptance by the Agent and recording in the
Register by the Agent. Schedule 1 to the Credit Agreement
shall thereupon be replaced as of the Effective Date by
Schedule 1 annexed hereto.
5. Rights Under Credit Agreement. Upon such acceptance
and recording, from and after the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to
the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder, and (ii)
the Assignor shall, with respect to that portion of its
interest under the Credit Agreement assigned hereunder,
relinquish its rights and be released from its obligations
under the Credit Agreement; provided, however, that the
Assignor shall retain its rights to be indemnified pursuant
to Section 15.2 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
PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS). THE PARTIES
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS ASSIGNMENT
AND ACCEPTANCE MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENT TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE PARTIES BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 19 OF THE CREDIT AGREEMENT. EACH OF THE
PARTIES 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.
-4-
8. Counterparts. This Assignment and Acceptance may be
executed in any number of counterparts which shall together
constitute but one and the same agreement.
-5-
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:
Name:
Title:
[ASSIGNEE]
By:
Name:
Title:
CONSENTED TO:
FLEET NATIONAL BANK,
as Agent
By:
Name:
Title:
ROGERS CORPORATION
By:
Name:
Title: