$45,000,000
REVOLVING CREDIT AGREEMENT
dated as of December 10, 2001 among
FIDELITY MANAGEMENT TRUST COMPANY, not in its individual capacity, but
solely as trustee of THE COLT, INC. 2001 ANNUITY TRUST,
as Borrower
FLEET NATIONAL BANK, as Lender
FLEET NATIONAL BANK, as Agent COLT, INC.,
solely for the limited purposes set forth herein
and
FIDELITY INVESTORS IV LIMITED PARTNERSHIP, solely for the purposes
of consenting to the terms set forth herein
This Table of Contents is not part of the Agreement to which it
is attached but is inserted for convenience of reference only.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
Section 1.01. Certain Defined Terms 1
Section 1.02. Other Definitional and Interpretive Provisions 18
Section 1.03. Accounting Terms; GAAP 18
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 19
Section 2.01. Loans, Etc. 19
Section 2.02. Making the Loans 19
Section 2.03. Commitment Fees 21
Section 2.04. Repayment; Evidence of Debt 21
Section 2.05. Termination or Reduction of the Commitments 21
Section 2.06. Conversion of Loans 21
Section 2.07. Prepayments 22
Section 2.08. Interest 23
Section 2.09. Increased Costs, Illegality, Etc. 23
Section 2.10. Payments and Computations 25
Section 2.11. Taxes 26
Section 2.12. Sharing of Payments, Etc. 28
Section 2.13. Replacement of Lender 29
Section 2.14. Interest Rate Determination 29
Section 2.15. Borrowings in Sterling 30
ARTICLE III REPRESENTATIONS AND WARRANTIES 32
Section 3.01. Organization; Powers 32
Section 3.02. Authorization; Enforceability 32
Section 3.03. Governmental Approvals; No Conflicts 33
Section 3.04. Financial Condition; No Material Adverse Change 33
Section 3.05. Litigation 33
Section 3.06. Compliance with Laws and Agreements 33
Section 3.07. Investment Company Act 34
Section 3.08. Taxes 34
Section 3.09. ERISA 34
Section 3.10. Disclosure 34
Section 3.11. Holding Company Status 34
Section 3.12. Subsidiaries 34
ARTICLE IV CONDITIONS OF LENDING 34
Section 4.01. Conditions to Initial Loans 34
Section 4.02. Conditions to Each Borrowing 36
ARTICLE V AFFIRMATIVE COVENANTS 36
Section 5.01. Financial Statements and Other Information 36
Section 5.02. Notices of Material Events 37
Section 5.03. Existence; Conduct of Business 38
Section 5.04. Payment of Obligations 38
Section 5.05. Maintenance of Insurance 38
Section 5.06. Books and Records; Inspection Rights 38
Section 5.07. Compliance with Laws and Material Contractual
Obligations 39
Section 5.08. Use of Proceeds 39
Section 5.09. Maintenance of Properties, Etc 39
Section 5.10. Subsidiaries. 39
ARTICLE VI NEGATIVE COVENANTS 39
Section 6.01. Fundamental Changes 39
Section 6.02. Other Indebtedness of the Borrower. 40
Section 6.03. No Plans. 40
Section 6.04. Modification of Certain Documents. 40
Section 6.05. Limitation on Trustee, Distribution of Assets 40
ARTICLE VII EVENTS OF DEFAULT AND ACCELERATION EVENTS 41
Section 7.01. Events of Default 41
Section 7.02. Acceleration Events 43
ARTICLE VIII THE ADMINISTRATIVE AGENT 44
Section 8.01. Authorization and Action 44
Section 8.02. Reliance, Etc 44
Section 8.03. Fleet and Affiliates 44
Section 8.04. Lender Credit Decision 45
Section 8.05. Indemnification 45
Section 8.06. Successor Agent 45
ARTICLE IX MISCELLANEOUS 46
Section 9.01. Notices, Etc 46
Section 9.02. Waivers; Amendments 46
Section 9.03. Expenses; Indemnity; Damage Waiver 47
Section 9.04. Assignments and Participations 48
Section 9.05. Survival 50
Section 9.06. Counterparts; Integration; Effectiveness 51
Section 9.07. Severability 51
Section 9.08. Right of Setoff 51
Section 9.09. Governing Law; Jurisdiction; Etc. 51
Section 9.10. WAIVER OF JURY TRIAL 52
Section 9.11. Confidentiality 52
Section 9.12. Representations by Agent and the Lenders 53
Section 9.13. Judgment 53
Section 9.14. No Personal Liability of Trustee 54
SCHEDULE 1 Commitments
SCHEDULE 2 Disclosed Matters
SCHEDULE 3.04 Indebtedness
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT B-1 Form of Prepayment Notice for Loans
EXHIBIT C Form of Compliance Certificate
EXHIBIT D-1 Form of Opinion of Counsel for the Guarantor
and special counsel to the Borrower
EXHIBIT D-2 Form of Opinion of Counsel for the Borrower
EXHIBIT D-3 Form of Opinion of General Counsel of the Guarantor
EXHIBIT E Form of Assignment and Acceptance
EXHIBIT F Executive Shares Plans
EXHIBIT G Junior Subordination Terms
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of December
10, 2001 among FIDELITY MANAGEMENT TRUST COMPANY, a
Massachusetts trust company, not in its individual capacity, but solely as
trustee of The COLT, Inc. 2001 Annuity Trust, a grantor retained annuity
trust (the "Borrower"), FLEET NATIONAL BANK ('Fleet") and such
other banks which are or may become parties to this Agreement from
time to time (each of Fleet and such other banks, individually, a "Lender"
and together the "Lenders"), and FLEET NATIONAL BANK, as
administrative agent for the Lenders (together with its successors in such
capacity, the "Agent"), COLT, INC., a Massachusetts corporation (the
"Annuitant") solely for the limited purposes set forth herein, and
FIDELITY INVESTORS IV LIMITED PARTNERSHIP, a Delaware
limited partnership, as a beneficiary of the Trust (the "Beneficiary")
solely for the purposes of consenting to the terms set forth herein.
The Borrower has requested that the Lenders make advances to
the Borrower in an aggregate principal amount up to but not exceeding
$45,000,000 for the purposes of the Trust, including without limitation
purchasing Colt Shares and/or other assets. The Lenders are willing to
make such advances upon the terms and conditions hereof and,
accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. The following terms
shall have the meanings respectively assigned to them below in this
Section or in the provisions of this Agreement referred to below (such
meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Acceleration Event" means an event described in Section 7.02;
provided that for purposes other than Sections 2.08(b) and 9.08, an
"Acceleration Event" means any event or condition which constitutes an
Acceleration Event as described in Section 7.02 or which upon notice,
lapse of time or both would, unless cured or waived, become an
Acceleration Event (as so defined).
"Agent" has the meaning specified in the preamble to this
Agreement.
"Agent's Accounts" means an account or accounts designated by
the Agent in a notice to the Borrower and the Lenders.
"Administrative Questionnaire" means an administrative
questionnaire in a form supplied by the Agent.
"Affected Lender" has the meaning specified in Section 2.13(a).
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Agreement" means this Revolving Credit Agreement, together
with all Exhibits and Schedules hereto, as originally executed, or if
amended or supplemented from time to time, as so amended or
supplemented.
"Annuitant" means COLT, Inc., a Massachusetts corporation, as
annuitant of the Trust.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office (in the case of a Federal
Funds Rate Loan or a Base Rate Loan), and such Lender's LIBOR
Lending Office (in the case of a LIBOR Rate Loan).
"Applicable Rate" means,
(a) for any day, with respect to any Base Rate
Loans, 0% per annum;
(b) for any day, with respect to any Federal Funds
Rate Loans, 0.40% per annum; and
(c) for any day, with respect to any LIBOR Rate
Loans constituting a Loan, 0.40% per annum.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Agent, in accordance with Section 9.04 and in substantially the form of
Exhibit F.
"Base Rate" means for any day, the rate per annum equal to the
higher of (i) the variable per annum rate of interest announced from time
to time by Fleet at its Head Office, as its "Base Rate", or (ii) the Federal
Funds Effective Rate plus 1/2 of 1% for such date (rounded upwards, if
necessary, to the next 1/8 of 1%). The Base Rate is a reference rate and
does not necessarily represent the lowest or best rate being charged to any
customer. Any change in the Base Rate due to a change in the Base Rate
or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Base Rate or Federal Funds Effective Rate.
Changes in the Base Rate shall take place without notice of any kind.
"Base Rate Loan" means a Loan denominated in Dollars that
bears interest as provided in Section 2.08(a)(i).
"Beneficiary" means Fidelity Investors IV Limited Partnership,
a Delaware limited partnership, as beneficiary of the remainder interest in
the Trust.
"Borrower" means FMTC, not in its individual capacity, but
solely in its capacity as trustee of the Trust; and to the extent the Trust is
or may be treated as an entity under applicable law or for any other
purposes, the Trust as an entity. The term Borrower, as used herein or in
the other Loan Documents, shall be deemed to refer to the Trust or the
Trustee acting solely in its capacity as trustee and on behalf of the Trust.
"Borrowing" means a borrowing consisting of simultaneous
Loans of the same Type made by the Lenders pursuant to Section 2.01(a),
or Converted pursuant to Section 2.06.
"Business Day" means a day on which banks are not required or
authorized to close in Boston, Massachusetts and, if the applicable
Business Day relates to any LIBOR Rate Loans, on which dealings are
carried on in the London interbank market.
"Capital Base" means, as at any date, the sum of (a) Net Asset
Value of the Guarantor and its Restricted Subsidiaries as at such date plus
(b) the aggregate outstanding principal balance of all Junior Subordinated
Debt as at such date so long as such Junior Subordinated Debt is junior in
right of payment to the obligations of the Guarantor under the FMR
Guaranty.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
"Capital Stock" means, as to any Person, any and all shares,
interests, partnership interests, limited liability company interests,
participations, membership, trust and other interests, rights in or other
equivalents (however designated) of such Person's equity (however
designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other
equity.
"Change in Control" means an event which results in less than
51% of the voting Capital Stock of the Guarantor being held by one or
more of (a) Xxxxxx X. Xxxxxxx 3d, (b) members of his Immediate
Family, (c) any senior management officer or director of the Guarantor or
any of its Subsidiaries or a Person who would be an "executive officer" of
the Guarantor under Rule 3b-7 under the Securities Exchange Act of 1934
who has held a management or director position with the Guarantor or
any of its Subsidiaries for at least three years, or (d) trusts, limited
liability companies, partnerships or other entities for the benefit of, or
controlled by, any Person(s) referred to in the foregoing clauses (a), (b) or
(c). The term "Immediate Family" means, with respect to any Person, his
or her spouse, parents, brothers, sisters, children (natural and adopted)
and their spouses, stepchildren, grandchildren and grandparents, parents
in law, brothers and sisters in law, nephews and nieces.
"Closing Date" means the date on which the Agent notifies the
Borrower and the Lenders that the conditions precedent set forth in
Section 4.01 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Colt Shares" means the ordinary shares of 2 1/2 xxxxx of COLT
Telecom Group plc.
"Commission" means the Securities and Exchange Commission
and any other similar or successor agency of the United States
government administering the Investment Company Act.
"Commitment" means, as to any Lender, the obligation of such
Lender to make Loans to the Borrower in an aggregate principal amount
in Dollars (or the Equivalent thereof in Sterling) set forth opposite its
name on Schedule 1, as the same may be reduced pursuant to Section
2.05, or increased or reduced pursuant to assignments effected in
accordance with Section 9.04. The initial aggregate amount of the
Commitments is $45,000,000 (or the Equivalent thereof in Sterling).
"Commitment Termination Date" means the earlier of (a) the
stated termination date of the Trust in the Trust Agreement, and (b) the
date of termination in whole of the Commitments pursuant to Section
2.05 or Article VII; provided in each case that if any such date is not a
Business Day, the relevant Commitment Termination Date of such
Lender shall be the immediately preceding Business Day. When the term
"Commitment Termination Date" is used herein without reference to any
particular Lender, such term shall, in such instance, be deemed to be a
reference to the latest Commitment Termination Date of any of the
Lenders then in effect hereunder.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract
or otherwise. "Controlling", "Controlled", and "under common control
with" have meanings correlative thereto.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Loans of one Type into Loans of the other Type pursuant to
Section 2.06.
"Default" means any event or condition that constitutes an Event
of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"Delaware Act" means the Delaware Limited Liability Company
Act, 6 Del. C. sec. 18-101, et seq., as amended from time to time, and any
legislative enactment which may replace or supersede such Act.
"Designated Significant Subsidiary" means, as of any date, each
Restricted Subsidiary which has been designated as a "Designated
Significant Subsidiary" in accordance with the terms of Section 11 of the
FMR Guaranty.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule 2.
"Dollars" and "$" means lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" in
the Administrative Questionnaire of such Lender or in the Assignment
and Acceptance pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify to
the Borrower and the Agent.
"Eligible Assignee" means any bank or other entity; provided
that for purposes of this definition, "Eligible Assignee" shall not include
any Person (including any subsidiary of any bank or other entity) whose
business consists substantially of the management of financial assets
(other than commercial loans) or the provision of securities brokerage
services.
"Entitled Person" has the meaning specified in Section 9.13.
"Environmental Law" means any federal, state or local
governmental law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award relating to the environment, health, safety
or hazardous materials, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control
Act, the Clean Air Act, the Safe Drinking Water Act, the Atomic Energy
Act, the Federal Insecticide, Fungicide and Rodenticide Act and the
Occupational Safety and Health Act, in each case, as amended from time
to time.
"Equivalent" in Dollars of Sterling on any date means the
Equivalent in Dollars of Sterling determined by using the quoted spot rate
at which Fleet's principal office in London offers to exchange Dollars for
Sterling in London at 11:00 a.m. (London time) two Business Days prior
to such date, and the "Equivalent" in Sterling of Dollars means the
equivalent in Sterling of Dollars determined by using the quoted spot rate
at which Fleet's principal office in London offers to exchange Sterling for
Dollars in London at 11:00 a.m. (London time) two Business Days prior
to such date. Each determination required for the purposes of the Loan
Documents shall be made by the Agent and shall (save for manifest error)
be conclusive and binding on the parties hereto.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Guarantor or the Borrower, is treated
as a single employer under Section 414(b) or (c) of the Code, or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" means, with respect to the Guarantor, (a) any
"reportable event", as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event
for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Guarantor or
any ERISA Affiliate of any liability under Title IV of ERISA with respect
to the termination of any Plan; (e) the receipt by the Guarantor or any
ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Guarantor or any
ERISA Affiliate of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
the Guarantor or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Guarantor or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Events of Default" has the meaning specified in Section 7.01.
"Excluded Period" means, with respect to any additional amount
payable under Section 2.09(a) or 2.09(b), the period ending 90 days prior
to the applicable Lender's delivery of a certificate referenced in Section
2.09(a) or 2.09(b), as applicable, with respect to such additional amount.
"Executive Shares Plan" means, collectively, the 2001
Performance Options-Equity Plan and the 2001 Variable Rate Preferred
Plan, each attached as Exhibit F hereto, and other equivalent plans.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for such day for such transactions received
by the Agent from three Federal funds brokers of recognized standing
selected by it.
"Federal Funds Rate" means, for any day, a fluctuating rate per
annum equal to the rate appearing on Page 5 of the Telerate Service as the
"Federal Funds Ask Rate" (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such
Service, as determined by the Agent from time to time for purposes of
providing quotations of interest rates applicable to overnight Federal
funds) at or about 9:30 a.m. (Boston time) on such day. The Agent will
confirm the "Federal Funds Rate" to the Lenders by 2:00 p.m. (Boston
time) on the date a Federal Funds Rate Loan is made and on each
Business Day on which such Loan remains outstanding. In the event that
such rate is not available for any Borrowing at such time for any reason,
then the "Federal Funds Rate" with respect to such Borrowing shall be
the average of the respective rates notified to the Agent, upon request by
the Agent, by each Reference Bank as the rates at which such Reference
Bank is offered overnight Federal funds at or about the rate setting time
for such Borrowing (notified to each such Reference Bank by the Agent)
by three Federal funds brokers selected by each such Reference Bank. In
either case, from and after the date any Federal Funds Rate Loan is made,
and for so long as such Loan remains outstanding, the "Federal Funds
Rate" shall be reset on a daily basis in accordance with the above
procedures.
"Federal Funds Rate Loan" means a Loan denominated in
Dollars that bears interest as provided in Section 2.08(a)(ii).
"Federal Funds Rate Loan Maturity Date" has the meaning
specified in Section 2.02(a)(7).
"Financial Officer" means, with respect to the Annuitant or the
Guarantor, the chief financial officer, principal accounting officer,
treasurer or controller, or other authorized representative whose primary
responsibilities extend to accounting matters of the Annuitant or the
Guarantor, as applicable.
"Fleet" means Fleet National Bank, a national banking
association.
"FMR Co." means Fidelity Management & Research Company,
a Massachusetts corporation.
"FMR Guaranty" means the Guaranty of the Guarantor dated as
of the date hereof, pursuant to which the Guarantor has agreed to
guarantee the payment and performance of the Obligations upon the
occurrence of certain Trigger Events as set forth therein, as the same may
be amended, supplemented, restated, replaced or otherwise modified from
time to time.
"FMTC" means Fidelity Management Trust Company, a
Massachusetts trust company and any successor Trustee or co-Trustee of
the Trust.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time.
"Governmental Authority" means the government of the United
States, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"GRAT" means a Grantor Retained Annuity Trust formed
pursuant to Section 2702 of the Code.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof or (c) as an
account party in respect of any letter of credit or letter of guaranty issued
to support such Indebtedness or obligation; provided that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantor" means FMR Corp., a Delaware corporation.
"Guarantor Cure Period" has the meaning specified in Section
1(a) of the FMR Guaranty.
"Head Office" means the office of the Agent in Boston,
Massachusetts, which on the date hereof is located at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency rate or commodity
price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily
paid, (d) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase price
of property or services (excluding current accounts payable incurred in
the ordinary course of business and excluding any obligation to pay for
portfolio securities or other financial instruments within standard
settlement periods or on a when issued or delayed delivery basis), (f) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital
Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty and (j) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnitee" has the meaning specified in Section 9.03(b).
"Interbank Offered Rate" means, for any Interest Period for each
LIBOR Rate Loan comprising part of the same Borrowing, the rate
appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Telerate Service or, if none, the equivalent to such
Service provided by Bloomberg providing rate quotations comparable to
those currently provided on such page of such Telerate Service, as
determined by the Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar or Sterling deposits, as the
case may be, in the London interbank market) at approximately 11:00
a.m. (London time), two Business Days prior to the commencement of
such Interest Period, as the rate for Dollar or Sterling deposits, as the case
may be, with a maturity comparable to such Interest Period; provided
that, in the event that such rate is not available at such time for any
reason, then the Interbank Offered Rate for such Interest Period shall be
the rate per annum equal to the average (rounded upwards, if necessary,
to the nearest 1/16 of 1%) of the respective rates notified to the Agent,
upon request by the Agent, by each Reference Bank as the rate at which
Dollar or Sterling deposits, as the case may be, are offered to such
Reference Bank by prime banks in the London interbank eurodollar
market at or about 11:00 a.m. (London time) two Business Days prior to
the beginning of such Interest Period for delivery on the first day of such
Interest Period in an amount approximately equal to $5,000,000.
"Interest Period" means, for each LIBOR Rate Loan or
comprising part of the same Borrowing, the period commencing on the
date of such LIBOR Rate Loan or the date of the Conversion of any Base
Rate Loan or Federal Funds Rate Loan into such LIBOR Rate Loan and
ending on the last day of the period selected by a Borrower pursuant to
the provisions below and, thereafter, with respect to any such LIBOR
Rate Loan, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be seven days, one (1) month,
two (2) months, three (3) months or six (6) months, as the Borrower may,
in the case of any LIBOR Rate Loan, upon notice received by the Agent
not later than 11:00 a.m. (Boston time) on the third Business Day prior to
the first day of such Interest Period, select; provided that:
(a) the Borrower may not select any Interest
Period for any Revolving Credit Borrowing that ends after the
Commitment Termination Date;
(b) Interest Periods commencing on the same date
for LIBOR Rate Loans comprising part of the same Borrowing shall be of
the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided that, in the case of any Interest Period for a
LIBOR Rate Loan, if such extension would cause the last day of such
Interest Period to occur in the next succeeding calendar month, the last
day of such Interest Period shall occur on the next preceding Business
Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the number of
months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Investment Advisory Subsidiary" means, as of any date, each
Subsidiary of the Guarantor designated as an "Investment Advisory
Subsidiary" in accordance with the terms of the FMR Guaranty.
"Investment Company" means any "investment company"
within the meaning of, and registered under, the Investment Company
Act.
"Investment Company Act" means the Investment Company Act
of 1940, as amended from time to time.
"Junior Subordinated Debt" means the Series B Subordinated
Debentures due December 31, 2008, the Series C Subordinated
Debentures due December 31, 2009, the Series D Subordinated
Debentures due December 31, 2011, the Series E Subordinated
Debentures due December 31, 2020, the Series F Subordinated
Debentures due December 31, 2020, the Series G Subordinated
Debentures due December 31, 2022, the Series H Subordinated
Debentures due December 31, 2019, the Series I Subordinated
Debentures due December 31, 2020, the Series J Subordinated
Debentures due December 31, 2021, the Series K Subordinated
Debentures due December 31, 2022, the Series L Subordinated
Debentures due December 31, 2023, the Series M Subordinated
Debentures due December 31, 2024, the Series N Subordinated
Debentures due December 31, 2025, the Junior Subordinated Debentures
due 2001 and the Junior Subordinated Debentures due 2004-2007, in each
case of the Guarantor, and such other liabilities of the Guarantor and its
Restricted Subsidiaries from time to time owing to any of the following:
(a) an individual who is a current, prospective or former director, officer
or employee of the Guarantor and its Subsidiaries, (b) an individual who
is a professional advisor or consultant to the Guarantor and its
Subsidiaries, (c) a family member by blood, marriage or adoption of any
Person described in clause (a) or (b) immediately above, (d) any trust,
partnership, corporation, or other entity in which the Persons described in
clauses (a), (b) and/or (c) immediately above are the holders of the
majority of either the voting or beneficial interests of such entity, (e) any
organization qualifying under Section 501(c)(3) of the Code, (f) any
private foundation qualifying under Section 509 of the Code, (g) any
business entity with which the Guarantor or any of its Subsidiaries has a
beneficial business relationship, and (h) any Person not described in any
of clauses (a) through (g) but only to the extent that the aggregate
principal amount of such Indebtedness held by such Persons described in
clause (g) and this clause (h) does not exceed 30% of the aggregate
principal amount of all Junior Subordinated Debt; provided that such
Subordinated Debentures, and such other liabilities owing to Persons
described in the foregoing clauses (a) through (h), are unsecured and
subordinated to the Obligations and all other Indebtedness which is itself
not expressly subordinated in right of payment to any other Indebtedness
on terms substantially identical to the Junior Subordination Terms.
"Junior Subordination Terms" means the terms of subordination
set forth in Exhibit G.
"Lenders" means, collectively, Fleet and each other Eligible
Assignee that acquires the rights and obligations of a Lender hereunder
pursuant to Section 9.04.
"Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Lending Office" in the Administrative
Questionnaire of such Lender or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Agent.
"LIBOR Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "LIBOR Lending Office" in the
Administrative Questionnaire of such Lender or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrower
and the Agent.
"LIBOR Rate" means, for any Interest Period for each LIBOR
Rate Loan comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the Interbank
Offered Rate for such LIBOR Rate Loan by (b) a percentage equal to
100% minus the Reserve Percentage for such Interest Period.
"LIBOR Rate Loan" means a Loan that bears interest as
provided in Section 2.08(a)(iii).
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Loan Documents" means, collectively, this Agreement, the
Notes, the FMR Guaranty, and any other instruments or agreements
executed and delivered by the parties in connection with the transactions
contemplated by this Agreement.
"Loans" has the meaning specified in Section 2.01(a).
"Loan-to-Assets Ratio" means the ratio of two times the
aggregate outstanding principal amount of the Loans at any time to the
sum of (a) the fair market value of the Qualified Assets held by the Trust
at such time and (b) two times the aggregate amount of the cash and U.S.
Government Obligations held by the Trust at such time, as determined in
accordance with Section 4 of the FMR Guaranty.
"Margin Stock" has the meaning specified in Regulations U and
X.
"Material Adverse Effect" means, with respect to the Borrower
or the Guarantor, a material adverse effect on (a) the business, condition
(financial or otherwise), operations, performance, properties, or prospects
of the Borrower or the Guarantor, as applicable, (b) the enforceability of
the Loan Documents, or the rights and remedies of the Agent or any
Lender under the Loan Documents or (c) the ability of the Borrower or
the Guarantor, as applicable, to pay and perform its obligations under this
Agreement or the FMR Guaranty, as the case may be.
"Material Indebtedness" means, on any date, with respect to the
Guarantor or the Borrower: (a) all Subject Debt (other than Indebtedness
under this Agreement) and (b) the net termination obligations in respect
of one or more Hedging Agreements (calculated as if such Hedging
Agreements were terminated as of such date), if on such date the
aggregate outstanding principal amount of any such Indebtedness exceeds
(i) $75,000,000 in the case of the Guarantor, and (ii) $10,000,000 in the
case of the Borrower.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor thereto.
"Xxxxx'x Rating" means, at any time, the then current rating by
Moody's (including the failure to rate) of the Guarantor's senior,
unsecured, long-term indebtedness for money borrowed that is not
guaranteed by any other Person or subject to any other credit
enhancement.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Asset Value" means, as of any date and with respect to the
Guarantor and any one or more of its Subsidiaries (in each case
determined on a consolidated basis without duplication, in accordance
with GAAP), the sum of (a) the total of all assets which in accordance
with GAAP should appear on the asset side of the consolidated balance
sheet of the Guarantor and such Subsidiaries minus (b) the amount of all
assets on such balance sheet (including, without limitation, goodwill)
which should be treated as intangibles under GAAP minus (c) all
liabilities and obligations contingent or otherwise, which in accordance
with GAAP should be reflected on such balance sheet, all subject to the
following adjustments:
(i) securities, other than Capital Stock of
Subsidiaries, in which a quoted market exists shall be
taken at market values on the date as of which Net
Asset Value shall be determined; securities, other than
Capital Stock of Subsidiaries, in which a quoted market
does not exist shall be taken at their cost to the
Guarantor less subsequent adjustments, if any, as
shown by its books of account or at such value
determined in accordance with Section 6.04; and the
equity investment by the Guarantor or any Subsidiary in
any other Subsidiary shall not be taken into account in
determining Net Asset Value;
(ii) real estate (including land and
buildings) shall be taken at book value or at such value
determined in accordance with Section 6.04;
(iii) without duplication, there shall be
deducted from or added to Net Asset Value such
reserves for contingencies and undetermined liabilities
(other than any liabilities arising under the Guarantor's
Certificate of Incorporation, as in effect as of the date
hereof), including tax liabilities (benefits) which would
arise from possible realization by the Guarantor and
such Subsidiaries of then existing unrealized gains
(losses) on securities valued above cost as permitted by
clause (i) of this definition or real estate valued above
book value as permitted by clause (ii) of this definition;
and
(iv) the obligations of the Guarantor in
connection with the Executive Shares Plan shall not be
treated as liabilities of the Guarantor except to the
extent that the "Net Asset Value" (as such term is
defined in the Executive Shares Plan) per share of any
Executive Shares is less than the respective original
issue price.
"Non-recourse Debt" means, with respect to the Borrower or the
Guarantor and its Restricted Subsidiaries, all liabilities thereof incurred to
finance the acquisition of property which is subject to a lease, mortgage
or security agreement which provides for payments sufficient to pay the
entire principal, premium and interest on such liability, and which
liability is payable solely out of the assets specifically encumbered and
not out of other assets of the Borrower or the Guarantor or any of its
Restricted Subsidiaries, as applicable.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Default" has the meaning specified in Section 1(a)
and Section 1(b) of the FMR Guaranty.
"Obligations" All indebtedness, obligations and liabilities of the
Borrower and the Guarantor to the Agent, the Lenders existing on the
date of this Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law
or otherwise under or in connection with this Agreement or in respect of
the Loans, the Notes, the FMR Guaranty or the other Loan Documents.
"Ordinary Course Debt" means with respect to any Person, its
liabilities incurred in the ordinary course, including (a) liabilities in
respect of certificates of deposit, (b) any agreement entered into in the
ordinary course of business to purchase or repurchase securities, (c) trade
payables, (d) margin debt and stock loan debt and (e) liabilities incurred
to fund contingent deferred sales commissions; provided that in any event
"Ordinary Course Debt" shall not include liabilities incurred in
connection with acquisitions.
"Original Dollar Amount" means:
(a) with respect to any Loan made in Dollars, the
original amount thereof; and
(b) in respect of any Loan made in Sterling, the
Equivalent in Dollars of Sterling of the original amount of such Loan,
advance or payment as of the date of the making thereof, reduced,
however, in any case by the amount of such Loan which shall have been
repaid or prepaid.
"Other Restricted Subsidiary" means, as of any date, each
Subsidiary of the Guarantor designated as an "Other Restricted
Subsidiary" in accordance with the terms of the FMR Guaranty.
"Other Taxes" has the meaning specified in Section 2.11(b).
"Participant" has the meaning specified in Section 9.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity performing
similar functions.
"Permitted Liens" means, collectively:
(a) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising
in the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 13(d) of the FMR Guaranty;
(b) pledges and deposits made in the ordinary
course of business in compliance with workers' compensation,
unemployment insurance, social security and other similar laws or
regulations;
(c) deposits and pledges to secure the performance
of bids, tenders, contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and appeal bonds and other
obligations of a like nature arising in the ordinary course of business;
(d) judgment liens in respect of judgments that do
not constitute an Event of Default under paragraph (k) of Section 7.01;
and
(e) zoning ordinances, easements, rights-of-way,
minor defects, irregularities and other similar encumbrances on real
property imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary conduct of
business of the Guarantor.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of
which the Guarantor, the Borrower or any ERISA Affiliate is (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA.
"Qualified Assets" has the meaning specified in Section 4 of the
FMR Guaranty.
"Quarterly Dates" means March 31, June 30, September 30 and
December 31 in each year, the first of which shall be the first such day
after the Closing Date; provided that, if any such day is not a Business
Day, the relevant Quarterly Date shall be the immediately preceding
Business Day.
"Reference Banks" means Fleet and Deutsche Bank AG, or their
respective applicable lending offices, as the case may be).
"Register" has the meaning specified in Section 9.04(c).
"Regulation U" and "Regulation X" mean Regulation U and X
of the Board of Governors of the Federal Reserve System, respectively, as
in effect from time to time.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Replacement Lender" has the meaning specified in Section
2.13(a).
"Reported Net Asset Value" means, with respect to the
Guarantor and any one or more of its Subsidiaries, as of any date of
determination thereof, the Net Asset Value of the Guarantor and such
Subsidiaries as of the fiscal quarter most recently ended prior to such date
in respect of which the certificate referred to in Section 14(a)(iii) of the
FMR Guaranty shall have been delivered.
"Reported Net Income" means, with respect to any Person or
group of Persons, as of any date of determination thereof, the net income
before income taxes and extraordinary items of such Person or group of
Persons, as the case may be, determined on a consolidated basis, without
duplication, in accordance with GAAP, for the four consecutive fiscal
quarter period most recently ended prior to such date in respect of which
the certificate referred to in Section 14(a)(iii) of the FMR Guaranty shall
have been delivered.
"Required Lenders" means, at any time, Lenders to which
greater than 50% of the aggregate principal amount of the Loans is owing
or, if no Loan is outstanding, the Lenders which together have
Commitments aggregating greater than 50% of the total Commitments.
"Reserve Percentage" means, for any Interest Period for each
LIBOR Rate Loan comprising part of the same Borrowing, the reserve
percentage (if any) applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with
deposits exceeding $1,000,000,000 with respect to liabilities or assets
consisting of or including "Eurocurrency Liabilities" as that term is
defined in such regulations (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
LIBOR Rate Loans is determined) having a term equal to such Interest
Period.
"Responsible Officer" means any authorized representative and
any other officer of the Guarantor, the Annuitant, or FMTC acting solely
in its capacity as trustee and on behalf of the Borrower, as the case may
be, with responsibility for the administration of the relevant portion of the
FMR Guaranty or this Agreement, as the case may be.
"Restricted Payment" means (a) the declaration or payment of
any dividend on or in respect of any shares of any class of Capital Stock
of any Person other than dividends payable solely in shares of common
stock of such Person, or (b) the purchase, redemption or retirement of any
shares of any class of Capital Stock of any Person or of warrants, rights or
other options to purchase any shares of Capital Stock of such Person or of
any participating interest factor relating to any Capital Stock or liability
of such Person, in any such case directly or indirectly, through a
Subsidiary of such Person or otherwise, other than for consideration
consisting solely of shares of any class of Capital Stock of such Person,
(c) the return of capital by any Person to its shareholders as such, or (d)
any other distribution in or in respect of any shares of any class of Capital
Stock of such Person.
"Restricted Subsidiary" means, as of any date, (a) FMR Co., (b)
each Investment Advisory Subsidiary as of such date, and (c) each Other
Restricted Subsidiary as of such date.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., or any successor thereto.
"S&P Rating" means, at any time, the then current rating by
S&P (including the failure to rate) of the Guarantor's senior, unsecured,
long-term indebtedness for money borrowed that is not guaranteed by any
other Person or subject to any other credit enhancement.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Second Currency" has the meaning specified in Section 9.13.
"Security" means a "security" as defined in Section 2(1) of the
Securities Act of 1933, as amended.
"Series" means a designated series of interests in a limited
liability company organized under Delaware law having, under sec. 18-215
of the Delaware Act, separate rights, powers or duties with respect to
specified property or obligations of such limited liability company.
"Short Term Indebtedness" means, with respect to the Guarantor
and its Restricted Subsidiaries, or the Borrower, as of any date, all
Indebtedness (including any current portion thereof) of the Guarantor and
its Restricted Subsidiaries, or the Borrower, as applicable, which by its
terms matures in one year or less from such date.
"Significant Subsidiary" means (a) FMR Co., (b) each
Investment Advisory Subsidiary, (c) as of any date, each Designated
Significant Subsidiary as of such date, and (d) as of any date, any other
Subsidiary of the Guarantor which meets any of the following conditions
as of the fiscal quarter ending on or most recently ended prior to such
date:
(i) the investments, recorded on the
equity method of accounting, of the Guarantor and its
Subsidiaries in such Subsidiary exceeds in the
aggregate 10% of the Net Asset Value of the Guarantor
and all of its Subsidiaries; or
(ii) the equity of the Guarantor and its
Subsidiaries in the income before income taxes and
extraordinary items of such Subsidiary exceeds 10% of
such income of the Guarantor and all of its Subsidiaries
(determined on a consolidated basis without duplication
in accordance with GAAP) for the four fiscal quarters
ending on or most recently ended prior to such date.
The conditions in the foregoing clauses (i) and (ii) shall be
applied based upon the certificate most recently delivered pursuant to
Section 13(a)(iii) of the FMR Guaranty.
"Specified Currency" has the meaning specified in Section 9.13.
"Sterling" means lawful money of the United Kingdom of Great
Britain and Northern Ireland.
"Subject Debt" means, at any date of determination (and without
duplication), with respect to the Guarantor or the Borrower, (a) all
Indebtedness (including any current portion thereof) of the Guarantor and
its Restricted Subsidiaries outstanding on such date which by its terms
matures more than one year from such date or is renewable or extendible
at the option of the debtor beyond one year from such date (including any
Indebtedness for money borrowed under a revolving credit or similar
agreement having a maturity more than one year from such date), (b) any
Indebtedness of the Guarantor and its Restricted Subsidiaries or the
Borrower, as the case may be, outstanding on such date secured by a
mortgage, security interest or similar Lien on assets of the Guarantor or
its Restricted Subsidiaries or the Borrower, as the case may be, (c) all
Indebtedness represented by this Agreement outstanding on such date, (d)
any Short Term Indebtedness outstanding on such date and (e) all
Guarantees, endorsements, letters of credit, equity maintenance
agreements and other similar obligations of the Guarantor and its
Restricted Subsidiaries or the Borrower, as the case may be, whether
contingent or matured, in each case in an amount equal to the lesser of the
stated or face amount of such Guarantee, endorsement or other obligation
or the amount, if quantifiable, of the obligation which is covered by such
Guarantee, endorsement or other obligation; provided that "Subject Debt"
shall not include with respect to the Guarantor or the Borrower (i) any
Indebtedness to the extent the debtor has deposited in trust with a trustee
or similar fiduciary an amount of money (or notes, debentures or other
evidences of Indebtedness, if permitted pursuant to the terms of the
agreement or instrument creating or evidencing such liability) sufficient
to pay, prepay, redeem, retire or otherwise satisfy such liability, and the
Agent and the Lenders shall have received an opinion in form, scope and
substance and from counsel reasonably satisfactory to them that such trust
is a legal and contractual defeasance, (ii) any Ordinary Course Debt, (iii)
any Non-recourse Debt or (iv) any Junior Subordinated Debt.
"Subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, Series, partnership,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements
if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, limited liability company,
Series, partnership, association or other entity (a) of which securities or
other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent;
provided that in no event shall a Tax Benefit Entity be a Subsidiary.
"Tax Benefit Entity" means, with respect to the Borrower or the
Guarantor, any Person that would otherwise constitute a Subsidiary of the
Borrower or the Guarantor, as applicable, so long as the activities of such
Person consist solely of engaging in transactions in which more than fifty
percent of the prospective investment return to such Person is derived
from the generation of tax benefits.
"Tax Indemnitee" has the meaning specified in Section 2.11(a).
"Taxes" has the meaning specified in Section 2.11(a).
"Transactions" means, (i) with respect to the Borrower, the
execution, delivery and performance by the Borrower of this Agreement
and the borrowing of Loans and the use of the proceeds thereof, and (ii)
with respect to the Guarantor, the execution, delivery and performance by
the Guarantor of the FMR Guaranty.
"Trigger Event" has the meaning specified in Section 4 of the
FMR Guaranty.
"Trust" means The Colt, Inc. 2001 Annuity Trust and any
successor trust created under or pursuant to the Trust Agreement.
"Trust Agreement" means The Colt, Inc. 2001 Annuity Trust
Agreement between Colt, Inc., as Grantor, and Fidelity Management
Trust Company, as Trustee, dated as of September 27, 2001, and as
amended from time to time.
"Trust Assets" means, collectively, the Qualified Assets, any
cash, U.S. Government Obligations and other assets which the Borrower
may own from time to time.
"Type" refers to the distinction between Loans bearing interest
at rates based upon the Base Rate, the Federal Funds Rate and the LIBOR
Rate.
"United States" means, except as provided in Section 2.11(d),
the United States of America.
"U.S. Government Obligations" has the meaning specified in
Section 4 of the FMR Guaranty.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
Section 1.02. Other Definitional and Interpretive Provisions.
(a) All terms in this Agreement, the Exhibits and
Schedules hereto shall have the same defined meanings when used in the
FMR Guaranty or any other Loan Documents, unless the context shall
require otherwise.
(b) All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include
all other genders; the singular shall include the plural, and the plural shall
include the singular.
(c) The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provisions of this
Agreement.
(d) The preamble hereto is part of this Agreement.
Titles and headings of Articles and Sections in this Agreement are for
convenience only, do not constitute part of this Agreement and neither
limit nor amplify the provisions of this Agreement, and all references in
this Agreement to Articles, Sections, Subsections, paragraphs, clauses,
subclasses, Schedules or Exhibits shall refer to the corresponding Article,
Section, Subsection, paragraph clause, subclause, Schedule or Exhibit
attached to this Agreement, unless specific reference is made to the
articles, sections or other subdivisions or divisions of such Schedule or
Exhibit to or in another document or instrument.
(e) Each definition of a document in this
Agreement shall include such document as amended, modified,
supplemented, restated, renewed or extended from time to time.
(f) Except where specifically restricted, reference
to a party in a Loan Document includes that party and its successors and
assigns permitted hereunder or under such Loan Document.
(g) Unless otherwise specifically stated, whenever
a time is referred to in this Agreement or in any other Loan Document,
such time shall be the local time in the city in which the principal office
of the Agent is located at all times when Fleet is the Agent hereunder.
(h) Any list in this Agreement of one or more
items preceded by the words "include or "including" shall not be deemed
limited to the stated items but shall be deemed without limitation.
Section 1.03. Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if the Guarantor or the Borrower notifies
the Agent that the Guarantor or the Borrower requests an amendment to
any provision hereof or of the FMR Guaranty to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Agent notifies the
Guarantor or the Borrower that the Required Lenders request an
amendment to any provision hereof or of the FMR Guaranty for such
purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. Loans, Etc.
(a) Loans. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make advances to the
Borrower ("Loans") from time to time on any Business Day during the
period from the Closing Date until the Commitment Termination Date in
an aggregate amount (based in respect of any Borrowing denominated in
Sterling or the Equivalent thereof in Sterling) at any one time outstanding
not to exceed at any time the amount of such Lender's Commitment;
provided that in no event shall any Loan be made by any Lender to the
extent that, after giving effect thereto, (i) the sum of the Loans owed to
such Lender would exceed the amount of its Commitment or (ii) the
aggregate outstanding principal amount of the Loans would exceed the
aggregate amount of the Commitments. Loans may be made as Federal
Funds Rate Loans, Base Rate Loans, or LIBOR Rate Loans, all as more
particularly described herein.
(b) Minimum Amounts. Each Borrowing shall be
in an aggregate amount not less than $1,000,000 (or the Equivalent
thereof in Sterling) or an integral multiple of $500,000 (or the Equivalent
thereof in Sterling) in excess thereof and shall consist of Loans of the
same Type made or Converted on the same day by the Lenders.
(c) Loans Made Ratably. The Loans shall be
made by the Lenders ratably according to their respective Commitments.
(d) Borrowings and Repayments. Within the
limits of each Lender's Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section
2.07, repay and reborrow the Loans. The borrowing of Loans may be
denominated in Dollars or Sterling or both such types of Loans, all as
more particularly described herein. The currency and amount of each
Loan shall be specified by the Borrower in the notice relating thereto.
(e) Sterling. A Loan denominated in Sterling
must be a LIBOR Rate Loan.
(f) Number of Loans. There shall be no more
than ten (10) Loans outstanding at any time.
Section 2.02. Making the Loans.
(a) Notice of Borrowing. Each Borrowing shall
be made on notice, given not later than (x) 11:00 a.m. (Boston time) on
the third Business Day prior to the date of the proposed Borrowing (in the
case of a Borrowing to consist of LIBOR Rate Loans denominated in
Dollars), (y) 11:00 a.m. (Boston time) on the fourth Business Day prior to
the date of the proposed Borrowing (in the case of a Borrowing consisting
of LIBOR Rate Loans denominated in Sterling), or (z) no later than 11:00
a.m. (Boston time) on the Business Day of the proposed Borrowing (in
the case of a Borrowing to consist of Base Rate Loans or Federal Funds
Rate Loans), by the Borrower to the Agent, which shall give to each
Lender prompt notice thereof by facsimile transmission. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be made in
writing, in substantially the form of Exhibit B, specifying therein (1) the
requested date of such Borrowing (which shall be a Business Day), (2)
the requested Type of Loans comprising such Borrowing, (3) the
requested aggregate amount of such Borrowing and the aggregate
principal amount of all outstanding Loans (not including the requested
Borrowing) held by the Borrower as of such date, (4) the requested
currency of such Borrowing (which shall be denominated in either
Dollars or Sterling), (5) the account to which the proceeds of such
Borrowing are to be made available, (6) in the case of a Borrowing to
consist of a LIBOR Rate Loan, the initial Interest Period therefor and (7)
in the case of a Borrowing to consist of a Federal Funds Rate Loan, the
requested maturity date for repayment of each such Federal Funds Rate
Loan to be made (which maturity date may not be later than five Business
Days after the date of such Borrowing) (a "Federal Funds Rate Loan
Maturity Date"). Each Notice of Borrowing shall be irrevocable and
binding on the Borrower.
(b) Funding by Lenders. Each Lender shall,
before 1:00 p.m. (Boston time) on the date of each Borrowing, make
available for the account of its Applicable Lending Office to the Agent at
the Agent's Accounts, in same day funds, such Lender's ratable portion
of such Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article IV, the Agent
will wire or deposit the proceeds of such Borrowing, in same day funds,
to the account of the Borrower specified in the Notice of Borrowing.
(c) Presumption by Agent. Unless the Agent shall
have received notice from a Lender prior to 12:00 noon (Boston time) on
the date of any Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such Borrowing, the Agent may
assume that such Lender has made such portion available to the Agent on
the date of such Borrowing in accordance with Section 2.02(b) and the
Agent may, in reliance upon such assumption, make available, to the
Borrower requesting such Borrowing on such date, a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent and the Agent shall have made
available such corresponding amount to the Borrower, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand
such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the
date such amount is repaid to the Agent, at (i) in the case of the Borrower,
the interest rate applicable at such time under Section 2.08 to Loans
comprising such Borrowing and (ii) in the case of such Lender, (A) the
Federal Funds Effective Rate in the case of Loans denominated in Dollars
(or) (B) the cost of funds incurred by the Agent in respect of such an
amount in the case of Loans denominated in Sterling. If such Lender
shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(d) Lender's Obligations Several. The failure of
any Lender to make the Loan to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to
make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on the date of any Borrowing.
Section 2.03. Commitment Fees. The Borrower agrees to
pay to the Agent for the account of each Lender a commitment fee, which
shall accrue at 0.10% per annum on the daily amount of the Commitment
of such Lender (whether used or unused) during the period from the date
of this Agreement to the Commitment Termination Date, payable in
arrears on each Quarterly Date and on the Commitment Termination
Date, commencing on the first such date to occur after the date hereof.
Section 2.04. Repayment; Evidence of Debt.
(a) Loans. Subject to Section 2.01(a), the
Borrower promises to pay to the Agent for the account of the Lenders, on
the Commitment Termination Date, the full outstanding principal amount
of any Loans made to the Borrower.
(b) Promissory Notes. The Loans of each Lender
shall be evidenced by one or more promissory notes in favor of the
Lender. The Borrower shall prepare, execute and deliver to such Lender
a promissory note payable to the order of such Lender (or, if requested by
such Lender, to such Lender and its registered assigns) in substantially
the form of Exhibit A.
Section 2.05. Termination or Reduction of the
Commitments.
(a) Optional. The Borrower may at any time,
upon not less than seven Business Days' notice to the Agent, which shall
be irrevocable, terminate in whole or reduce in part the Commitments;
provided that (i) each partial reduction of the Commitments shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, (ii) the aggregate amount of the Commitments shall not be
reduced below the sum of the aggregate Loans outstanding at such time
and (iii) any such reductions shall be applied to the Commitments of the
Lenders ratably in accordance with the aggregate amount thereof.
(b) Mandatory. The Commitments shall be
automatically and permanently reduced to zero on the Commitment
Termination Date.
(c) No Reinstatement. Commitments once
terminated or reduced may not be reinstated.
Section 2.06. Conversion of Loans.
(a) Optional. The Borrower may on any Business
Day, upon notice given to the Agent not later than 11:00 a.m. (Boston
time) on the third Business Day prior to the date of the proposed
Conversion, Convert all Loans of one Type comprising the same
Borrowing into Loans of another Type; provided that any Conversion of
LIBOR Rate Loans into Base Rate Loans or Federal Funds Rate Loans
shall be made only on the last day of an Interest Period for such LIBOR
Rate Loans. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii)
the Loans to be Converted, (iii) the Type of Loans to be Converted into,
and (iv) if such Conversion is into LIBOR Rate Loans, the duration of the
initial Interest Period for each such Loan and the currency (which shall
either be Dollars or Sterling) such LIBOR Rate Loan shall be made in.
Each notice of Conversion shall be irrevocable and binding on the
Borrower.
(b) Mandatory. Upon the occurrence and during
the continuation of any Event of Default or Acceleration Event, (i) each
LIBOR Rate Loan will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Loan, and the
obligations of the Lenders to make or Convert Loans into, or to continue,
LIBOR Rate Loans shall be suspended and (ii) each Federal Funds Rate
Loan will automatically, on the next Business Day, Convert into a Base
Rate Loan, and the obligations of the Lenders to make or Convert Loans
into, or to continue, Federal Funds Rate Loans shall be suspended.
Section 2.07. Prepayments.
(a) Notice of Prepayment. The Borrower may,
upon notice substantially in the form of Exhibit B-1 given to the Agent
(which notice shall state the proposed date and aggregate principal
amount of the prepayment), and if such notice is given, the Borrower
shall, prepay, in whole or in part, the outstanding principal amount of the
Loans made to it in the aggregate amount and on the date specified in
such notice; provided that each such notice shall be made not later than
(A) 11:00 a.m. (Boston time) on the relevant day (in the case of a
prepayment of a Base Rate Loan or a Federal Funds Rate Loan) or (B)
11:00 a.m. (Boston time) on the second Business Day prior to the date of
the proposed prepayment (in the case of a prepayment of a LIBOR Rate
Loan). Each prepayment of Loans under this Section 2.07(a) shall be
made for account of the Lenders according to the respective principal
amounts of their Loans then outstanding.
(b) Mandatory Prepayments.
(i) If the Agent notifies the Borrower
that, on any interest payment date, the sum of (A) the
aggregate principal amount of all Borrowings
denominated in Dollars then outstanding plus (B) the
Equivalent in Dollars of the aggregate principal amount
of all Borrowings denominated in Sterling then
outstanding exceeds 105% of the aggregate amounts of
the Commitments on such date, the Borrower shall,
within two Business Days after receipt of such notice,
prepay the outstanding principal amount of any
Borrowings in an aggregate amount sufficient to reduce
such sum to an amount not to exceed 100% of the
Commitments on such date.
(ii) To reduce breakfunding costs, if the
Agent notifies the Borrower that, on any date, the sum
of the amounts described in clauses (A) and (B) of
subsection (i) above exceeds 103% of the aggregate
amount of the Commitments on such date, the
Borrower shall, within two Business Days after receipt
of such notice, prepay the outstanding principal amount
of any Borrowings in an aggregate amount sufficient to
reduce such sum to an amount not to exceed 100% of
the aggregate amount of the Commitments on such
date; provided that if the aggregate principal amount of
Base Rate Loans and Federal Funds Rate Loans then
outstanding is less than the amount of such required
prepayment, the portion of such required prepayment in
excess of the aggregate principal amount of Base Rate
Loans and Federal Funds Rate Loans then outstanding
shall be paid on the last day of each Interest Period
ended on or after the date of such notice in an amount
equal to the aggregate principal amount of the LIBOR
Rate Loans then maturing until such excess has been
fully paid.
(c) Terms Applicable to All Prepayments. All
prepayments (whether made under this Section 2.07 or otherwise) shall be
made together with accrued interest to the date of such prepayment on the
principal amount prepaid, and all amounts owing under Section 2.09(f) in
respect of such prepayment.
Section 2.08. Interest.
(a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Loan owing by the
Borrower from the date of such Loan until such principal amount shall be
paid in full at the following rates per annum:
(i) Base Rate Loans. In the case of a
Base Rate Loan, a rate per annum equal at all times to
the sum of (x) the Base Rate in effect from time to time
plus (y) the Applicable Rate, payable in arrears on each
Quarterly Date, and at maturity.
(ii) Federal Funds Rate Loans. In the
case of a Federal Funds Rate Loan, a rate per annum
equal at all times to the sum of (x) the Federal Funds
Rate in effect from time to time plus (y) the Applicable
Rate, payable in arrears on the applicable Federal Funds
Rate Loan Maturity Date.
(iii) LIBOR Rate Loans. During such
periods as such Loan is a LIBOR Rate Loan, a rate per
annum equal at all times during each Interest Period for
such Loan to the sum of (x) the LIBOR Rate for such
Interest Period for such Loan plus (y) the Applicable
Rate in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest
Period has a duration of more than three (3) months, on
each day that occurs during such Interest Period every
three (3) months from the first day of such Interest
Period and on the date such LIBOR Rate Loan shall be
Converted or paid in full.
(b) Default Interest. Notwithstanding Section
2.08(a), upon the occurrence and during the continuance of an Event of
Default or Acceleration Event, the Borrower shall pay interest on the
outstanding principal amount of any Loan made to the Borrower, and
upon the unpaid amount of all interest, fees and other amounts payable by
the Borrower hereunder, such interest to be paid in arrears on the date
such amount shall be paid in full and on demand, at a rate per annum
equal at all times to (i) in the case of any amount of principal, 2% per
annum above the rate per annum required to be paid pursuant to
paragraph (a) above, and (ii) in the case of all other amounts, 2% per
annum above the Base Rate from time to time.
Section 2.09. Increased Costs, Illegality, Etc.
(a) Change in Law. If, due to either (i) the
introduction of or any change in or in the interpretation or application of
(to the extent any such introduction or change occurs after the date
hereof) any law or regulation or (ii) the compliance with any direction,
guideline or request from any central bank or other Governmental
Authority adopted or made after the date hereof (whether or not having
the force of law), there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining LIBOR Rate Loans,
then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided that, before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a
different LIBOR Lending Office if the making of such a designation
would avoid the need for, or reduce the amount of, such increased cost
and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such
increased cost shall be submitted to the Borrower by such Lender, and
such certificate shall be conclusive and binding for all purposes, absent
manifest error.
(b) Capital Requirements. If any Lender
determines in good faith that compliance with any law or regulation
enacted or introduced after the date hereof or any guideline or request
from any central bank or other Governmental Authority adopted or made
after the date hereof (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained
by such Lender or any corporation controlling such Lender and that the
amount of such capital is increased by or based upon the existence of
such Lender's Commitment, then, upon demand by such Lender (with a
copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender in the
light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's Commitment. A certificate as to such amounts shall be
submitted to the Borrower by such Lender, and such certificate shall be
conclusive and binding for all purposes, absent manifest error.
(c) Rates Not Covering Costs. If, with respect to
any LIBOR Rate Loans, the Required Lenders notify the Agent that the
LIBOR Rate for any Interest Period for such Loans will not adequately
reflect the cost to such Required Lenders of making, funding or
maintaining their respective LIBOR Rate Loans for such Interest Period,
the Agent may notify the Borrower and the Lenders that the making or
maintaining of LIBOR Rate Loans shall be suspended, whereupon (i)
such LIBOR Rate Loan will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Loan, and (ii)
the obligation of the Lenders to make, or to Convert Loans into LIBOR
Rate Loans shall be suspended until the Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer
exist.
(d) Illegality. Notwithstanding any other
provision of this Agreement, if the introduction of or any change in or in
the interpretation of (to the extent any such introduction or change occurs
after the date hereof) any law or regulation shall make it unlawful, or any
central bank or other Governmental Authority having appropriate
jurisdiction shall assert in writing after the date hereof that it is unlawful,
for any Lender or its LIBOR Lending Office to perform its obligations
hereunder to make LIBOR Rate Loans or to continue to fund or maintain
LIBOR Rate Loans hereunder, then, on notice thereof and demand
therefor by such Lender through the Agent to the Borrower (i) each
LIBOR Rate Loan of such Lender will automatically, upon such demand,
Convert to a Base Rate Loan and (ii) the obligation of such Lender to
make, or to Convert Base Rate Loans into, LIBOR Rate Loans shall be
suspended until the Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer
exist; provided that, before making any such demand, such Lender agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different LIBOR Lending Office if
the making of such a designation would allow such Lender or its LIBOR
Lending Office to continue to perform its obligations to make LIBOR
Rate Loans or to continue to fund or maintain LIBOR Rate Loans and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(e) Excluded Period. Notwithstanding anything to
the contrary set forth therein, the Borrower shall not be obligated to pay
any additional amounts arising pursuant to clauses (a) and (b) above that
are attributable to the Excluded Period with respect to such additional
amount; provided that if an applicable law, rule, regulation, guideline or
request shall be adopted or made on any date and shall be applicable to
the period (a "Section 2.09(e) Retroactive Period") prior to the date on
which such law, rule, regulation, guideline or request is adopted or made,
the limitation on the Borrower's obligation to pay such additional
amounts hereunder shall not apply to the additional amounts payable in
respect of such Section 2.09(e) Retroactive Period so long as the
Borrower receives notice of such law, rule, regulation, guideline or
request from the Agent or any Lender within 90 days after its adoption.
(f) Breakfunding. If any payment of principal of,
or Conversion of, any LIBOR Rate Loan is made by the Borrower to or
for the account of a relevant Lender other than on the last day of the
Interest Period for such Loan, as a result of a payment or Conversion
pursuant to Section 2.06(b), 2.07 or 2.09(d) or as the result of acceleration
of the maturity of the Loans pursuant to Article VII or for any other
reason, or in the event the Borrower shall fail (for any reason, including
by reason of the failure of any conditions precedent in Article IV to be
satisfied) to borrow a LIBOR Rate Loan from any Lender on the date
specified therefor in the applicable Notice of Borrowing, the Borrower
shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment,
including any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such LIBOR Rate Loan
made to the Borrower.
Section 2.10. Payments and Computations.
(a) Payments. The Borrower shall make each
payment hereunder not later than 1:00 p.m. (Boston time) on the day
when due in Dollars, in the case of Borrowings denominated in Dollars,
or in Sterling, in the case of Borrowings denominated in Sterling, to the
Agent at the Agent's Accounts in same day funds and, except as
expressly set forth herein, without deduction, set-off or counterclaim.
The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest and facility fees ratably
(other than amounts payable pursuant to Sections 2.09, 2.11 or 9.03) to
the Lenders for the account of their Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in each
case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 9.04(c),
from and after the effective date of such Assignment and Acceptance, the
Agent shall make all payments hereunder in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) Computations. All computations of interest in
respect of Base Rate Loans or Federal Funds Rate Loans shall be made on
the basis of a year of 365 or 366 days, as the case may be, for the actual
number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable and all
computations of interest in respect of LIBOR Rate Loans and of facility
fees shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable. Each
determination by the Agent of an interest rate or fee hereunder made in
accordance with the provisions of this Agreement shall be conclusive and
binding for all purposes, absent manifest error.
(c) Payments Due on Non-Business Days. Unless
otherwise specified herein, whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest
and fees, as the case may be.
(d) Presumption by Agent. Unless the Agent shall
have received notice from the Borrower prior to the date on which any
payment is due to any Lender hereunder that the Borrower will not make
such payment in full, the Agent may assume that the Borrower has made
such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each such
Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent the Borrower shall not have so made such
payment in full to the Agent, each such Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount
to the Agent, at the Federal Funds Effective Rate.
Section 2.11. Taxes.
(a) Payments Free of Taxes. Except as expressly
otherwise provided herein, any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.10, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent
(each, a "Tax Indemnitee"), net income taxes that are imposed by the
United States and franchise taxes and net income taxes that are imposed
on such Tax Indemnitee by any state or foreign jurisdiction in which such
Tax Indemnitee is organized or in which its Applicable Lending Office is
located (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If
the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Tax Indemnitee, (i) subject
to Section 2.11(f), the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.11) such Tax
Indemnitee receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(b) Other Taxes. In addition, the Borrower agrees
to pay any present or future stamp or documentary taxes or similar levies
that arise from any payment made by it hereunder or from its execution,
delivery or registration of this Agreement (hereinafter referred to as
"Other Taxes").
(c) Indemnification by Borrower. The Borrower
will indemnify each Tax Indemnitee for the full amount of Taxes or Other
Taxes (including any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section 2.11) attributable to the Borrower
hereunder and paid by such Tax Indemnitee and any liability (including
penalties, additions to tax, interest and reasonable expenses) arising
therefrom or with respect thereto. This indemnification shall be made
within 30 days from such date the Tax Indemnitee makes written demand
therefor.
(d) Evidence of Payments. Within 30 days after
the date of any payment of Taxes, the Borrower will furnish to the Agent,
at its address referred to in Section 9.01, original receipts or certified
copies thereof evidencing payment thereof. If the Borrower shall make a
payment hereunder through an account or branch outside the United
States, or a payment is made on behalf of the Borrower by a payor that is
not a United States Person, the Borrower will, if no taxes are payable in
respect of such payment, furnish, or will cause such payor to furnish, to
the Agent, at such address, a certificate from the appropriate taxing
authority or authorities, or an opinion of counsel acceptable to the Agent,
in either case stating that such payment is exempt from or not subject to
Taxes. For purposes of this paragraph (d) and paragraph (e) below, the
terms "United States" and "United States Person" shall have the
meanings specified in Section 7701 of the Code.
(e) Non-U.S. Lenders. Each Tax Indemnitee
organized under the laws of a jurisdiction outside the United States shall,
on or prior to the date of its execution and delivery of this Agreement or
on the date of the Assignment and Acceptance pursuant to which it
became a Lender (as the case may be), and from time to time thereafter if
required by applicable law or if reasonably requested in writing by the
Borrower or the Agent (but only so long as such Tax Indemnitee remains
lawfully able to do so after the date such Person becomes a party hereto),
provide the Agent and the Borrower with either Internal Revenue Service
form W-8BEN or W-8ECI, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying in the case of Form
W-8BEN that such Tax Indemnitee is either (i) entitled to benefits under
an income tax treaty to which the United States is a party that reduces the
rate of withholding tax on payments under this Agreement or (ii) is a
Portfolio Interest Eligible Non-Bank or certifying in the case of Form W-
8ECI that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States. If
the form provided by a Tax Indemnitee at the time it first becomes a party
to this Agreement indicates a United States interest withholding tax rate
in excess of zero (or if such Tax Indemnitee cannot provide at such time
such form because it is not entitled to reduced withholding under a treaty
and the payments are not effectively connected income), withholding tax
at the rate indicated in such form (or at the then existing U.S. statutory
rate if the Tax Indemnitee cannot provide such a form) shall be excluded
from Taxes unless and until such Lender provides the appropriate form
certifying that a zero rate applies. For purposes of this paragraph (e) the
term "Portfolio Interest Eligible Non-Bank" means a Tax Indemnitee that
certifies in form and substance reasonably satisfactory to the Borrower
that (i) it is not a bank within the meaning of Code section 881(c)(3)(A),
(ii) it is not a 10% shareholder of the Borrower within the meaning of
Code section 881(c)(3)(B) and (iii) it is not a controlled foreign
corporation related to the Borrower within the meaning of Code section
881(c)(3)(C).
(f) Effect of Failure to Provide Forms. For any
period with respect to which a Tax Indemnitee has failed to provide the
Borrower and the Agent with the appropriate form described in paragraph
(e) above (other than if such failure is due to a change in law occurring
after the date on which a form originally was required to be provided or if
such form otherwise is not required under paragraph (e) above), such
Lender shall not be entitled to indemnification under paragraph (a) or (c)
above with respect to Taxes imposed by the United States or any State or
other political subdivision thereof that exceed the Taxes that would have
been imposed if the Lender had complied with its obligations under
paragraph (e) above.
(g) Mitigation by Lenders. Any Lender claiming
any additional amounts payable pursuant to this Section 2.11 shall use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office(s) if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
(h) Applications for Refunds. Following a
reasonable written request of the Borrower, the Agent or a Lender, as the
case may be, shall execute and deliver to the Borrower such certificates,
forms or other documents as can be furnished, and take such other action
as can be taken consistent with the facts, as are reasonably necessary to
assist the Borrower in applying for refunds of any Taxes and Other Taxes
remitted hereunder to the Agent or such Lender, as the case may be;
provided that all costs associated with any of the foregoing shall be paid
by the Borrower; provided further that furnishing of such documents or
taking of such actions would not, in the sole judgment of the Agent or
such Lender, be otherwise disadvantageous to the Agent or such Lender.
Such refunds, together with any interest received thereon, shall be for
account of the Borrower.
Section 2.12. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Loans owing to it
(other than amounts payable pursuant to Sections 2.09, 2.11 or 9.03) in
excess of its ratable share of payments on account of the Loans obtained
by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Loans owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender,
such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower agrees
that, to the fullest extent permitted by applicable law, any Lender so
purchasing a participation from another Lender pursuant to this Section
2.12 may exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
Section 2.13. Replacement of Lender.
(a) Election to Replace by Borrower. Subject to
Section 2.13(b) below, in the event that any Lender requests
compensation pursuant to Section 2.09 or 2.11 (such Lender being herein
called an "Affected Lender"), then, so long as such condition exists, the
Borrower may (i) obtain an assignee (any such assignee being herein
called a "Replacement Lender") acceptable to the Borrower and the
Agent, which acceptance shall not be unreasonably withheld, to acquire
or assume all or part of such Affected Lender's Loans and Commitment,
or (ii) request one or more other Lenders to acquire or assume all or part
of such Affected Lender's Loans and Commitment, any assumption and
purchase hereunder to be without recourse to or representation or
warranty by, or expense to, the Affected Lender, and the purchase price to
be equal to the aggregate principal amount of the outstanding Loans held
by the Affected Lender plus all accrued but unpaid interest on such Loans
and accrued but unpaid fees and all other amounts owing to the Affected
Lender (and upon such assumption, purchase and substitution, and subject
to the execution and delivery to the Agent by the Replacement Lender of
documentation satisfactory to the Agent and the Affected Lender and
compliance with the requirements of Section 9.04(c), the Replacement
Lender shall succeed to the rights and obligations of the Affected Lender
hereunder); provided that the Borrower shall also arrange for payment to
the Agent of the processing and recordation fee specified in Section
9.04(b)(iv) with respect to such assignment. In the event that the
Borrower exercises its rights under this Section 2.13(a), the Affected
Lender shall no longer be a party hereto or have any rights or obligations
hereunder; provided that the obligations of the Borrower to the Affected
Lender under Sections 2.09, 2.11 and 9.03 with respect to events
occurring or obligations arising before or as a result of such replacement
shall survive such exercise.
(b) No Replacement During Default, Etc. The
Borrower may not exercise its rights under this Section 2.13 with respect
to any Affected Lender (i) if a Default, Acceleration Event or Event of
Default has occurred and is then continuing or (ii) if the Borrower has not
otherwise paid all amounts owing to such Affected Lender under this
Agreement or (iii) if the Agent is the only Lender who is a party to this
Agreement at that time.
Section 2.14. Interest Rate Determination.
(a) Reference Bank Determinations. Each
Reference Bank agrees, upon request of the Agent, to furnish to the Agent
timely information for the purpose of determining the LIBOR Rate and
the Federal Funds Rate for Loans. If any one or more of the Reference
Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine
such interest rate on the basis of timely information furnished by the
remaining Reference Bank. The Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by
the Agent for purposes of Section 2.08(a)(ii), (iii) or (iv), and the rate, if
any, furnished by each Reference Bank for the purpose of determining the
interest rate for LIBOR Rate Loans or Federal Funds Rate Loans under
Section 2.08(a)(ii), (iii) or (iv).
(b) Failure to Elect. If the Borrower shall fail to
select the duration of any Interest Period for any LIBOR Rate Loans
made to the Borrower in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Agent will forthwith so
notify the Borrower and the Lenders and the Borrower shall be deemed to
have selected an Interest Period of one (1) month.
(c) Failure to Repay or Convert Federal Funds
Rate Loans. If the Borrower shall fail to repay, or Convert to a Loan of
another Type, any Federal Funds Rate Loan made to the Borrower by
11:00 a.m. (Boston time) on the Federal Funds Rate Loan Maturity Date,
the Agent will forthwith so notify the Borrower and the Lenders and such
Loans shall automatically Convert into Base Rate Loans, effective as of
such Federal Funds Rate Loan Maturity Date.
(d) Failure of Reference Banks to Provide Rates.
If no Reference Bank furnishes timely information to the Agent for
determining the LIBOR Rate for any LIBOR Rate Loans, or the Federal
Funds Rate for Federal Funds Rate Loans,
(i) the Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot
be determined for such Loans made to the Borrower,
(ii) each Loan will automatically, on the
last day of the then existing Interest Period therefor,
Convert into a Base Rate Loan (or if such Loan is then
a Base Rate Loan, will continue as a Base Rate Loan),
and
(iii) the obligation of the Lenders to make,
or to Convert Loans into, LIBOR Rate Loans shall be
suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such
suspension no longer exist.
(e) Changes in Ratings Systems. If the rating
system of either Xxxxx'x or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt
obligations, the Guarantor, the Borrower and the Agent (on behalf of the
Lenders) shall negotiate in good faith to amend the references to specific
ratings in this Agreement to reflect such changed rating system or the
non-availability of ratings from such rating agency (provided that any
such amendment to such specific ratings shall in no event be effective
without the approval of the Required Lenders).
Section 2.15. Borrowings in Sterling.
(a) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation
of (to the extent any such introduction or change occurs after the date
hereof) any law or regulation shall make it unlawful, or any central bank
or other Governmental Authority having appropriate jurisdiction shall
assert in writing after the date hereof that it is unlawful, for any Lender or
its LIBOR Lending Office to perform its obligations hereunder to make
Loans denominated in Sterling or to continue to fund or maintain Loans
denominated in Sterling hereunder, then, on notice thereof and demand
therefor by such Lender through the Agent to the Borrower, as the case
may be, (i) each outstanding Loan of such Lender that is denominated in
Sterling will automatically, upon demand, be redenominated in Dollars in
an amount equal to the Equivalent thereof in Dollars on the date of such
redenomination and shall automatically be Converted to a Base Rate
Loan on the date of such redenomination and (ii) the obligation of such
Lender to make, or to Convert Base Rate Loans into, LIBOR Rate Loans
denominated in Sterling shall be suspended until the Agent shall notify
the Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist; provided that, before making
any such demand, such Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions)
to designate a different LIBOR Lending Office if the making of such a
designation would allow such Lender or its LIBOR Lending Office to
continue to perform its obligations to make Loans denominated in
Sterling or to continue to fund or maintain Loans denominated in Sterling
and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(b) If, with respect to any Loans denominated in
Sterling, the Required Lenders notify the Agent that the LIBOR Rate for
any Interest Period for such Loans denominated in Sterling will not
adequately reflect the cost to such Required Lenders of making, funding
or maintaining their respective LIBOR Rate Loans denominated in
Sterling for such Interest Period, the Agent may notify the Borrower and
the Lenders that the making or maintaining of Loans denominated in
Sterling shall be suspended, whereupon (i) such Loans denominated in
Sterling will automatically, on the last day of the then existing Interest
Period therefor, be redenominated in Dollars in an amount equal to the
Equivalent thereof in Dollars on such date and shall automatically be
Converted to a Base Rate Loan on such date, and (ii) the obligation of the
Lenders to make, or to Convert Loans into, LIBOR Rate Loans
denominated in Sterling shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If any principal of the Loans made to the
Borrower is being carried in Sterling and the Borrower shall have failed
to specify in a notice to the Agent, pursuant to Section 2.02, the currency
in which such principal is to be denominated after the end of the current
Interest Period applicable thereto, such principal shall be continued in
Sterling.
(d) If any principal of the Loans of the Borrower
has been denominated in Dollars and is to be renewed in Sterling, the
amount in which it shall be renewed shall be the Equivalent in Sterling of
the Original Dollar Amount of such principal.
(e) If any principal of the Loans of the Borrower
has been denominated in Sterling and is to be renewed in Dollars, then:
(i) if the Equivalent in Dollars of
Sterling of such principal at the last day of the relevant
Interest Period exceeds the Original Dollar Amount
thereof, the Borrower will pay to the Agent for the
account of the Lenders in Sterling the amount of the
excess or, subject to the conditions set forth in Section
4.02 hereof, the Borrower shall borrow the amount of
the excess in Dollars from the Lenders in accordance
with Section 2.02 hereof; or
(ii) if the Equivalent in Dollars of
Sterling of such principal at the last day of such Interest
Period is less than the Original Dollar Amount thereof,
the Lenders will, at the Borrower's request, on that date
advance to the Borrower in Dollars the amount of the
shortfall.
(f) If, as provided in this Section 2.15, the
Lenders are required to advance any shortfall to the Borrower on the
renewal of any principal of the Loans then, on the date on which such
shortfall is to be advanced, each Lender will make available to the Agent
in accordance with Section 2.02(b) its ratable portion of the amount of the
shortfall in the relevant currency and the Agent will immediately make
the amount received by it available to the Borrower.
(g) Subject to the provisions of Sections 2.9, 2.14
and this Section 2.15, and provided that no Default or Event of Default
shall exist, the Borrower shall have the right to convert into a LIBOR
Rate Loan denominated in Sterling, any principal of the Loans made to
the Borrower which for the time being is denominated in Dollars and the
Borrower shall have the right to convert into a Loan denominated in
Dollars, any principal of the Loans which for the time being is
denominated in Sterling; provided that the aggregate principal amount of
Loans that may be converted on one occasion must be at least One
Million Dollars ($1,000,000) or an integral multiple of Five Hundred
Thousand Dollars ($500,000) in excess thereof (or the Equivalent in
Sterling thereof) unless such aggregate principal amount of all Loans
outstanding at such time is less than One Million Dollars ($1,000,000) or
the Equivalent in Sterling thereof, in which case all of such amount must
be converted at the same time. The Borrower shall give the Agent at least
four (4) Business Days' prior notice of each such conversion of a Loan,
specifying the date for conversion which shall be a Business Day, the
aggregate amount to be converted, the Loan or Loans to be converted and
the applicable Interest Period to begin on the date of conversion. The
Agent shall promptly notify the Lenders of the contents of any such
notice relating to the Loans.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
Section 3.01. Organization; Powers. The Borrower (i) is a
trust duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, and (ii) has all requisite power and
authority and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and to carry on its
business as now conducted except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
Section 3.02. Authorization; Enforceability. The
Transactions are within the trust or other powers of the Borrower and
have been duly authorized by all necessary trust or other action on the
part of the Borrower. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except
such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation (including the
Investment Company Act) or declaration of trust, trust agreement, or
other organizational or constitutional documents, as the case may be, of
the Borrower, or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any of its assets, or give rise to
a right thereunder to require any payment to be made by any such Person,
and (d) will not result in the creation or imposition of any Lien on any
asset of the Borrower.
Section 3.04. Financial Condition; No Material Adverse
Change.
(a) The Borrower has heretofore furnished to the
Lenders a copy of the statement of Trust Assets as of the Closing Date,
which statement sets forth the fair market value of all Qualified Assets
and the aggregate amount of all cash and U.S. Government Obligations
held by the Trust. There has been no material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower since November 30, 2001.
(b) As of the date hereof, the Borrower has no
Indebtedness owing to any bank or other financial institution, except for
Indebtedness as set forth on Schedule 3.04 hereto.
Section 3.05. Litigation.
(a) Actions, Suits and Proceedings. There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of the Borrower,
threatened against or affecting, the Borrower (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Disclosed Matters. Since the date of this
Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse Effect.
Section 3.06. Compliance with Laws and Agreements. The
Borrower is in compliance with all laws, regulations and orders of any
Governmental Authority (including all Environmental Laws) applicable
to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. No Default has occurred and is
continuing.
Section 3.07. Investment Company Act. The Borrower is
not required to register as an "investment company" as defined in, or
subject to regulation under, the Investment Company Act.
Section 3.08. Taxes. The Borrower has timely filed or
caused to be filed all tax returns and reports required to have been filed
and has paid or caused to be paid all taxes required to have been paid by
it, except (a) taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
Section 3.09. ERISA. The Trust does not maintain,
contribute to or participate in, nor has the Trust at any time maintained,
contributed to or participated in any Plan or Multiemployer Plan.
Section 3.10. Disclosure. The Borrower has disclosed to the
Lenders all material agreements, instruments and corporate or other
restrictions to which it is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect. (None of the certificates, reports or other
information furnished by or on behalf of the Borrower to the Lenders
pursuant to Sections 5.01(b), 5.01(c), 5.01(d), and 5.02 contain any
material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading).
Section 3.11. Holding Company Status. The Borrower is
not a "holding company" as defined in the Public Utility Holding
Company Act of 1935.
Section 3.12. Subsidiaries. The Borrower has no
Subsidiaries.
ARTICLE IV
CONDITIONS OF LENDING
Section 4.01. Conditions to Initial Loans. The obligation of
each Lender to make its initial Loans to the Borrower is subject to the
following conditions precedent being satisfied on or before the Closing
Date:
(a) Documents. The Agent shall have received
the following documents (with sufficient copies for each Lender), each of
which shall be satisfactory to the Agent in form and substance:
(i) Authority and Approvals. Certified
copies of the resolutions of the Board of Directors of
the Guarantor authorizing and approving the FMR
Guaranty and any other Loan Documents to which it is
a party and certified copies of all documents evidencing
other necessary action (corporate, partnership, or
otherwise) and governmental approvals, if any, with
respect to the FMR Guaranty.
(ii) Secretary's or Assistant Secretary's
Certificate. A certificate of the Secretary or an
Assistant Secretary (or General Partner, Managing
Member, or other Responsible Officer, as applicable) of
the Guarantor certifying the names and true signatures
of the officers of the Guarantor authorized to sign the
FMR Guaranty and any other documents to be
delivered thereunder.
(iii) Trust Documentation. A copy of the
Trust Agreement, along with a certificate of a
Responsible Officer of FMTC, certifying to (A) such
Trust Agreement as the true, correct and complete trust
agreement of the Trust; (B) the then-current trustee or
trustees of the Trust; (C) a copy of any and all
documentation evidencing an anticipation, pledge,
assignment, sale, transfer, alienation or other
encumbrance of any beneficial interests in the Trust or
under the Trust Agreement that has occurred on or prior
to the Closing Date; and (D) that such documentation
is true, complete and correct and that, to the knowledge
of such Responsible Officer, no other documentation of
a similar nature exists as of the Closing Date.
(iv) Opinion of Borrower's Counsel. (A)
A favorable opinion of Xxxxxxxx & Worcester LLP,
special counsel to the Borrower and the Guarantor, in
substantially the form of Exhibit D-1 (and the Borrower
hereby instructs such counsel to deliver such opinion to
the Lenders and the Agent); and (B) a favorable opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the Borrower, in substantially the form of Exhibit
D-2 (and the Borrower hereby instructs such counsel to
deliver such opinion to the Lenders and the Agent).
(v) Opinion of General Counsel of the
Guarantor. A favorable opinion of the Deputy General
Counsel of the Guarantor, in substantially the form of
Exhibit D-3, to be delivered to the Lenders and the
Agent.
(vi) Closing Certificate. A certificate of a
Responsible Officer of each the Borrower and of the
Guarantor to the effect that:
(x) the representations and warranties of the Borrower
contained in this Agreement, and the representations and warranties of the
Guarantor contained in the FMR Guaranty, respectively, are true and
correct on and as of the Closing Date, before and after giving effect to the
transactions contemplated to occur on or prior to the Closing Date, as
though made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of
such specific date); and
(y) no event has occurred and is continuing that constitutes
a Default or Acceleration Event.
(b) Approvals. The Agent shall have received
evidence satisfactory to it of receipt of all third party consents and
approvals necessary in connection with this Agreement (without the
imposition of any conditions except those that are acceptable to the
Lenders) and that the same remain in effect.
(c) Fees. The Borrower shall have paid all
accrued fees and expenses of the Agent (including the reasonable fees and
expenses of counsel to Fleet) owed by the Borrower in connection with
this Agreement.
(d) Other Items. The Agent shall have received
such other approvals, opinions and documents relating to this Agreement
and the transactions contemplated hereby as any Lender may, through the
Agent, reasonably request.
(e) Delivery of Loan Documents. The Borrower
shall have delivered to the Agent, on behalf of the Lenders, this
Agreement and the Borrower shall have executed and delivered the
Notes, and the Guarantor shall have delivered to the Agent, on behalf of
the Lenders, the FMR Guaranty.
Section 4.02. Conditions to Each Borrowing. The obligation
of each Lender to make a Loan to the Borrower on the occasion of each
Borrowing (including the initial Borrowing) shall be subject to the further
conditions precedent that on the date of such Borrowing the following
statements shall be true (and the giving of the applicable Notice of
Borrowing and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing and after giving effect thereto such
statements are true):
(a) the representations and warranties contained in
this Agreement are true and correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date);
(b) no event has occurred and is continuing, or
would result from such Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, Acceleration Event or an Event of
Default; and
(c) Such Borrowing is permitted under the
Investment Company Act, under the Trust Agreement and under any
other of the Borrower's organizational documents.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full, the Borrower covenants and agrees with the
Lenders that:
Section 5.01. Financial Statements and Other Information.
The Borrower will furnish to the Agent and each Lender:
(a) within 90 days after the end of each fiscal
quarter of each fiscal year of the Borrower, a copy of the statement of
Trust Assets of the Borrower as at the end of such fiscal quarter, which
statement sets forth the fair market value of all Qualified Assets and the
aggregate amount of all cash and U.S. Government Obligations held by
the Trust and a calculation of the Loan-to-Assets Ratio as at the end of
such fiscal quarter, and a copy of a statement of liabilities of the Trust as
at the end of such fiscal quarter;
(b) concurrently with any delivery of statements
of Trust Assets and liabilities under paragraph (a) above, a certificate of
a Financial Officer of the Annuitant, substantially in the form of Exhibit
C, certifying (i) as to whether a Default has occurred and, if so,
specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) as to the fair market value of the Qualified
Assets and the aggregate amount of all cash and U.S. Government
Obligations held by the Trust and to the Loan-to-Assets Ratio as of the
end of the period covered by such statements of Trust Assets, and (iii)
that the Borrower has no liabilities as at the end of such fiscal quarter that
are not set forth on such statement of liabilities of the Trust other than
customary and reasonable liabilities related to its existence and
management;
(c) in the event that the Borrower becomes subject
to the periodic reporting requirements of Section 13 or 15 of the
Securities Exchange Act of 1934, as amended, promptly upon their
becoming available, copies of (i) all financial statements, reports, notices
and proxy statements sent or made available generally by the Borrower to
its public security holders, (ii) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by the Borrower
with any securities exchange or with the Commission, and (iii) all press
releases and other statements made available generally by the Borrower
to the public concerning material developments in the business of the
Borrower; and
(d) promptly following any request therefor, such
other information regarding the Borrower, or compliance with the terms
of this Agreement, as the Agent may reasonably request in writing.
Section 5.02. Notices of Material Events. The Annuitant
will furnish to the Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Acceleration
Event;
(b) the filing or commencement of any action, suit
or proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of a Trigger Event under the
FMR Guaranty; and
(d) any other development (other than matters of a
general economic nature) that results in a Material Adverse Effect.
Each notice delivered under this Section 5.02 shall be
accompanied by a statement of a Responsible Officer of the Annuitant
reasonably describing the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
Section 5.03. Existence; Conduct of Business. The
Borrower will do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.01.
Section 5.04. Payment of Obligations. The Borrower will
pay its obligations, including tax liabilities, that, if not paid, could result
in a Material Adverse Effect before the same shall become delinquent or
in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Borrower has
set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.05. Maintenance of Insurance. The Borrower will
maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily
maintained with respect to trusts of the same or similar nature; provided
that the Borrower may self insure with respect to certain risks up to
specified limits, in each case where it is appropriate and consistent with
the self-insurance programs maintained with respect to trusts of the same
or similar nature.
Section 5.06. Books and Records; Inspection Rights.
(a) Books and Records. The Annuitant will keep
proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to the business and
activities of the Borrower.
(b) Inspection Rights. On the Effective Date, the
Annuitant shall designate a Responsible Officer of the Annuitant who
shall make or himself or herself, and other officers and employees of the
Annuitant designated by such Responsible Officer available to the Agent
and each Lender (the Agent and each Lender being herein called a
"Credit Party"), by telephone or in person, from time to time during
regular business hours, upon reasonable prior notice from any Credit
Party, to provide (orally or in writing) such information as shall be
reasonably requested by any Credit Party and to discuss the business and
affairs of the Borrower with the Credit Parties. The Annuitant may, from
time to time, change the identity of such Responsible Officer for purposes
of this Section 5.06(b), and shall provide prompt notice of such change to
the Credit Parties.
In addition, at any time after the occurrence of an Event of
Default and during its continuance, the Annuitant will permit each Credit
Party from time to time during regular business hours and under the
supervision of an officer of the Annuitant, upon reasonable prior notice
(i) to examine all the accounts, records, reports and other papers of the
Annuitant relating to the Borrower and to make copies and extracts
therefrom, (ii) to visit the offices of the Annuitant and (iii) to examine
and inspect the property of the Annuitant relating to the Borrower or the
Trust Assets. Each visitation or inspection by a Credit Party pursuant to
this Section 5.06(b) shall be at the sole expense of such Credit Party
unless a Default shall have occurred and be continuing, in which case, the
reasonable out-of-pocket expenses of the Agent and such Lender in
connection with such visitation or inspection shall be at the sole expense
of the Borrower.
Section 5.07. Compliance with Laws and Material
Contractual Obligations. The Borrower shall comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or
its property (including ERISA, applicable Environmental Laws,
Regulations U and X and all laws, rules, regulations and orders of any
Governmental Authority relating to a GRAT, including the Code), and all
of its material contractual obligations, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Section 5.08. Use of Proceeds. The proceeds of each
extension of credit will be used solely by the Borrower for the general
purposes of the Trust, including, without limitation, purchasing Colt
Shares and/or other assets, in compliance with all applicable legal and
regulatory requirements, including, Regulations U and X, the Securities
Act of 1933, the Securities Exchange Act of 1934, the Investment
Company Act and all regulations thereunder; provided that neither the
Agent nor any Lender shall have any responsibility as to the application
or use of any of the proceeds of any extension of credit.
Section 5.09. Maintenance of Properties, Etc. The Borrower
shall maintain and preserve all of its properties that are used or useful in
the conduct of its business, including, without limitation, licenses,
permits, trademarks, tradenames and other intellectual property, except
where failure to do so could not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
Section 5.10. Subsidiaries. The Borrower will not have any
Subsidiaries.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder
have been paid in full, the Borrower covenants and agrees with the
Lenders that:
Section 6.01. Fundamental Changes. The Borrower will not
merge into or consolidate with any other Person or permit any other
Person to merge into or consolidate with it or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all
or substantially all of its assets, whether now owned or hereafter acquired
(any of the foregoing transactions described in this Section 6.01 herein
referred to as a "Fundamental Transaction"), except that if at the time of
such Fundamental Transaction and after giving effect thereto no Default
or Acceleration Event shall have occurred and be continuing, the
Borrower may enter into a Fundamental Transaction where (i) the
Borrower is the surviving entity (or the acquiring Person) or (ii) if the
Borrower is not the surviving entity (or the acquiring Person), then the
surviving entity (or the acquiring Person) is an
(x) Affiliate of the Borrower or the Guarantor,
(y) provides a written assumption of the obligations of the
Borrower hereunder, together with such proof of corporate, partnership,
limited liability company or other required action, opinions of counsel
and other documents as are consistent with those delivered by the
Borrower pursuant to Section 4.01 on the Closing Date or as the Agent
may reasonably request and
(z) if the surviving entity (or acquiring Person) is not an
entity organized under the laws of the United States or any state thereof,
such entity shall enter into such amendments of this Agreement
satisfactory to the Agent and the Lenders and as is necessary or advisable
to incorporate such provisions (including, without limitation, those
provisions relating to taxes, enforcement of judgments and jurisdictional
immunity) as are customarily included in loan documents with borrowers
organized outside of the United States,
and upon the consummation of any such Fundamental
Transaction, the surviving or acquiring Person (if not the Borrower) shall
succeed to, and be substituted for, and may exercise every right and
power of, the Borrower under or in respect of this Agreement as if such
successor Person had been named herein and therein as the Borrower.
Section 6.02. Other Indebtedness of the Borrower. The
Borrower will not create, incur, assume or permit to exist any
Indebtedness of any type whatsoever owed to any bank or other financial
institution except Indebtedness to the Lenders incurred pursuant to this
Agreement and the other Loan Documents.
Section 6.03. No Plans. The Borrower shall not maintain,
contribute to or participate in any Plan or Multiemployer Plan, nor shall
the Borrower have any ERISA Affiliate(s).
Section 6.04. Modification of Certain Documents. FMTC
will not amend or otherwise modify or terminate, or permit such
amendment or modification or termination of, the Trust Agreement or
other constitutive document without the written consent of the Agent,
which consent may not be unreasonably withheld, except for any such
modification or amendment that would not result in a Material Adverse
Effect.
Section 6.05. Limitation on Trustee, Distribution of Assets.
(a) If an Event of Default shall exist and be
continuing, FMTC shall not assert any provisions or language of the Trust
Agreement as a defense to prevent the Agent or any Lender, in exercise
of the rights and remedies permitted hereunder, from liquidating the Trust
Assets in accordance with an order of a court of competent jurisdiction or
from otherwise realizing the value against the Trust Assets in satisfaction
of the Obligations.
(b) There shall be no distribution of the Trust
Assets upon the termination date of the Trust if any Loan or Obligations
remain unpaid; provided that nothing in this Agreement shall restrict the
Trust's ability to pay the Qualified Annuity Amount (as defined in the
Trust Agreement) in accordance with the terms of the Trust Agreement.
ARTICLE VII
EVENTS OF DEFAULT AND ACCELERATION EVENTS
Section 7.01. Events of Default. If any of the following
events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of
any Loan, when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or
otherwise; or
(b) the Borrower shall fail to pay any interest on
any Loan made to it or any fee or other amount (other than an amount
referred to in paragraph (a)) payable by it hereunder when and as the
same shall become due and payable, and such failure shall continue
unremedied for a period of five or more days; or
(c) any representation or warranty made or
deemed made by or on behalf of the Borrower or the Guarantor in or in
connection with this Agreement or the FMR Guaranty, as applicable, or
any amendment or modification thereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification
thereof, shall prove to have been incorrect in any material respect when
made or deemed made; or
(d) the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.03 (with
respect to the Borrower's existence), or in Article VI hereof or the
Guarantor shall fail to observe or perform any covenant, condition or
agreement contained in Section 13(c) of the FMR Guaranty (with respect
to the Guarantor's existence), or in Section 13(j) of the FMR Guaranty, or
in Section 14 of the FMR Guaranty; or
(e) the Borrower or the Guarantor shall fail to
observe or perform any covenant, condition or agreement contained in
this Agreement or the FMR Guaranty, as the case may be, (other than
those specified in paragraph (a), (b), (c) or (d) above) and such failure
shall continue unremedied for a period of 45 or more calendar days after
notice thereof from the Agent (given at the request of any Lender) to the
Borrower or the Guarantor, as applicable; or
(f) the Borrower, the Guarantor or any of its
Restricted Subsidiaries shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable and as
a consequence of such non-payment, the holder or holders of such
Material Indebtedness or any trustee or agent on its or their behalf are
able to cause such Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity (whether or not such actions are taken); or
(g) any event or condition occurs that results in
any Material Indebtedness of the Borrower, the Guarantor or any of its
Restricted Subsidiaries becoming due prior to its scheduled maturity or
that enables or permits (without the lapse of time or the taking of any
action, other than the giving of notice) the holder or holders of any such
Material Indebtedness or any trustee or agent on its or their behalf to
cause any such Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity (whether or not such actions are taken); provided that
this paragraph (g) shall not apply to secured Indebtedness of the
Borrower, the Guarantor or its Restricted Subsidiaries that becomes due
as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness; or
(h) an involuntary proceeding shall be
commenced or an involuntary petition shall be filed seeking (i)
liquidation, reorganization or other relief in respect of the Borrower, the
Guarantor or any of its Significant Subsidiaries or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, bankruptcy trustee, custodian,
sequestrator, conservator or similar official for the Borrower, the
Guarantor or any of its Significant Subsidiaries, or for a substantial part
of the assets of any of them, and, in any such case, such proceeding or
petition shall continue undismissed for a period of 90 or more days or an
order or decree approving or ordering any of the foregoing shall be
entered; or
(i) The Borrower and the Guarantor or any of its
Significant Subsidiaries shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or
petition described in paragraph (h) above, (iii) apply for or consent to the
appointment of a receiver, bankruptcy trustee, custodian, sequestrator,
conservator or similar official for the Borrower, the Guarantor or any of
its Significant Subsidiaries or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing; or
(j) The Borrower, the Guarantor or any of its
Significant Subsidiaries shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due; or
(k) one or more judgments for the payment of
money (i) in an aggregate amount in excess of $25,000,000 shall be
rendered against the Borrower, or (ii) in an aggregate amount in excess of
$100,000,000 shall be rendered against the Guarantor or any of its
Significant Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Borrower, the Guarantor, or any of its Significant Subsidiaries to enforce
any such judgment; or
(l) an ERISA Event shall have occurred that,
when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in liability of the Guarantor and its
Subsidiaries in an aggregate amount exceeding $100,000,000 and such
ERISA Event shall continue unremedied for a period of 60 or more
Business Days after notice thereof from the Agent (given at the request of
any Lender) to the Guarantor; or
(m) the FMR Guaranty shall for any reason cease
to be in full force and effect in accordance with its terms or shall become
or be adjudged by a competent court to be invalid or unenforceable in any
respect against the Guarantor;
then, and (i) in case of any event with respect to the Guarantor or the
Borrower (other than an event described in paragraph (h) or (i) of this
Section 7.01), and at any time thereafter during the continuance of such
event, the Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times: (A) terminate the Commitments, and thereupon
the Commitments shall terminate immediately, and (B) declare the Loans
then outstanding to be due and payable in whole (or in part, in which case
any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans
so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; and (ii) in case of any event with respect to the Borrower or
the Guarantor described in paragraph (h) or (i) of this Section 7.01, the
Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower.
Notwithstanding the foregoing, the Agent and each Lender
hereby agree that, so long as no Event of Default under Section 7.01(m)
of this Agreement shall have occurred and be continuing, no event or
condition set forth in this Section 7.01 relating to the Borrower, including
without limitation with respect to the Borrower's representations or
warranties, its payment or its performance or observance of any covenant,
condition or agreement in this Agreement, shall constitute an Event of
Default, and neither the Agent nor any Lender shall accelerate the
maturity date of any Loan or otherwise exercise rights or remedies against
the Borrower in respect of such event or condition, unless and until (i) the
Agent shall have complied with its obligations to deliver a Notice of
Default under Section 1(b) of the FMR Guaranty and (ii) such event or
condition shall have continued without cure by Guarantor through the end
of the Guarantor Cure Period applicable thereto. The Guarantor's
payment or performance of any obligation of the Borrower under or in
respect of this Agreement in accordance with the terms of the FMR
Guaranty shall be deemed to cure any event or condition hereunder
relating to the Borrower which would otherwise constitute an Event of
Default.
Section 7.02. Acceleration Events. If a Change in Control
shall occur then, and at any time thereafter during the continuance of such
event, the Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments, and thereupon
the Commitments shall terminate immediately, and (ii) declare the Loans
then outstanding to be due and payable in whole (or in part, in which case
any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans
so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01. Authorization and Action. Each Lender
hereby appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement, the Agent shall not be required
to exercise any discretion or take any action, but shall be required to act
or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and
such instructions shall be binding upon all Lenders; provided that the
Agent shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement or applicable
law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by or on behalf of the Borrower or the Guarantor
pursuant to the terms of this Agreement.
Section 8.02. Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the Agent
(i) may consult with legal counsel (including counsel for the Borrower,
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith by it
in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Lender and shall not be
responsible to any of them for any statements, warranties or
representations made in or in connection with this Agreement; (iii) shall
not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this
Agreement or the FMR Guaranty on the part of the Borrower or the
Guarantor or to inspect the property (including the books and records) of
the Borrower, the Guarantor, or any of its Subsidiaries; (iv) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
instrument or document furnished pursuant hereto; (v) shall be deemed
not to have knowledge of any Default or Acceleration Event unless and
until written notice thereof is given to it by the Borrower or the Guarantor
or a Lender; and (vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopy) believed by it to be
genuine and signed or sent by the proper party or parties.
Section 8.03. Fleet and Affiliates. With respect to its
respective Commitments and the Loans made by it, Fleet shall have the
same rights and powers hereunder as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Fleet in its
individual capacity. Fleet and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures for, accept investment
banking engagements from and generally engage in any kind of business
with, the Borrower, the Guarantor and its Subsidiaries, any of their
respective Affiliates and any Person who may do business with or own
securities of the Borrower, the Guarantor or any such Subsidiary or
Affiliate, all as if Fleet were not Agent and without any duty to account
therefor to the Lenders.
Section 8.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the
Agent or any other Lender and based on the statement of Trust Assets
referred to in Section 3.04 hereof and the financial statements referred to
in Section 12(e)(i) of the FMR Guaranty and such other documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
Section 8.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not promptly reimbursed by the
Borrower), ratably according to the principal amounts of the Loans made
by each Lender (or if no Loans are at the time outstanding, ratably
according to the amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against it in
any way relating to or arising out of this Agreement or any action taken
or omitted by it; provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Agent. Without limitation
of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs and expenses payable by
the Borrower under Section 9.03 of this Agreement, to the extent that the
Agent is not promptly reimbursed for such costs and expenses by the
Borrower.
Section 8.06. Successor Agent. The Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower
and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor. If no successor Agent shall
have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring
Agent, then the Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized or licensed under the
laws of the United States or of any State thereof and having a combined
capital and surplus of at least $500,000,000; provided that if no such
successor is willing and able to function as Agent hereunder, such
resignation or removal shall nonetheless become effective and (a) the
resigning or removed Agent shall be discharged from its duties and
obligations hereunder and (b) the Required Lenders shall perform the
duties of the Agent (and all payments and communications provided to be
made by, to or through the Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this Section 8.06. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices, Etc.
(a) All notices, consents and other
communications provided for hereunder shall be in writing (including
telecopy communication) and mailed, telecopied or delivered:
(i) if to the Borrower, to it at Fidelity
Management Trust Company, as trustee of The COLT,
Inc. 2001 Annuity Trust, c/o FMR Corp.,
00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 02109-
3614, Attention: Office of the Treasurer (Telecopy No.
(000) 000-0000; Telephone No. (000) 000-0000), with
a copy to: Deputy General Counsel, 00 Xxxxxxxxxx
Xxxxxx XX X0X, Xxxxxx, Xxxxxxxxxxxxx 00000-0000
(Telecopy No. (000) 000-0000; Telephone No. (617)
000-0000);
(ii) if to any Lender, at the address for
notices specified in the Administrative Questionnaire of
such Lender or as otherwise specified in writing to the
Agent; and
(iii) if to the Agent, at its address at 000
Xxxxxxx Xxxxxx, Xxxxxxxx XX XX 00000X, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X.
XxXxxxxxxx, Director (Telecopy No. (000) 000-0000),
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when mailed or telecopied, be effective when
deposited in the mails or transmitted by facsimile transmission,
respectively, except that notices and communications to the Agent
pursuant to Article II, IV, VII or VIII shall not be effective until received
by the Agent.
(b) Any notice, consent or other communication
hereunder by the Agent or any Lender(s) to the Borrower or the
Guarantor shall, without more, be deemed given to the Borrower and the
Guarantor. Any notice, consent or other communication hereunder by the
Borrower or the Guarantor to the Agent or any Lender(s) shall, without
more, be deemed given by, and shall be binding upon, the Borrower and
the Guarantor.
Section 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative.
No failure or delay by the Agent or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Agent and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of
the foregoing, the making of an Loan shall not be construed as a waiver
of any Default or Acceleration Event, regardless of whether the Agent or
any Lender may have had notice or knowledge of such Default or
Acceleration Event at the time.
(b) Amendments. Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by the Borrower and
the Required Lenders or by the Borrower and the Agent with the consent
of the Required Lenders; provided that no such agreement shall:
(i) increase the Commitment of any
Lender without the consent of such Lender;
(ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the consent of each
Lender affected thereby;
(iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any
interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration
of any Commitment, without the consent of each
Lender affected thereby;
(iv) change Section 2.12 without the
consent of each Lender affected thereby; or
(v) change any of the provisions of this
Section 9.02 or the percentage in the definition of the
term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders
required to waive, amend or modify any rights
hereunder or make any determination or grant any
consent hereunder, without the consent of each Lender.
and provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Agent hereunder
without the prior written consent of the Agent.
Section 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower, agrees to
pay on demand and shall pay (i) in accordance with Section 9.03(d), of all
reasonable out-of-pocket expenses incurred by the Agent, including the
reasonable fees, charges and disbursements of counsel for the Agent, in
connection with the preparation, negotiation and administration of this
Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and
(ii) in accordance with Section 9.03(d), of all out-of-pocket expenses
incurred by the Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Agent or any Lender, in connection
with the enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section 9.03, or in connection
with the Loans made hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof.
(b) Indemnification by the Borrower. The
Borrower agrees to indemnify the Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee"), as determined in accordance with Section
9.03(d), against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other
transactions contemplated hereby or (ii) any Loan or the use of the
proceeds therefrom; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Waiver of Consequential Damages, Etc. To
the extent permitted by applicable law, no party hereto shall assert, and
each party hereto hereby waives, any claim against any other party (or
any Related Party to such party), on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this
Agreement, or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(d) Payments. All amounts due under this Section
9.03 shall be payable promptly after written demand therefor.
Section 9.04. Assignments and Participations.
(a) Assignments Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby,
except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other
than the parties hereto, their respective successors and assigns permitted
hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may
assign to one or more Eligible Assignees, and subject to the provisions of
Section 9.04(e) may sell participations in, all or a portion of its rights and
obligations under this Agreement to one or more Eligible Assignees
(including all or a portion of its Commitment and the Loans at the time
held by it); provided that
(i) the Borrower and the Agent must
give their prior written consent to such assignment and
participation (which consent shall not be unreasonably
withheld),
(ii) in the case of an assignment, except
in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the
amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to
such assignment is delivered to the Agent) shall be
equal to $5,000,000 or a multiple of $1,000,000 in
excess thereof, unless the Borrower and the Agent
otherwise consent,
(iii) in the case of an assignment, each
partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights
and obligations under this Agreement,
(iv) in the case of an assignment, the
parties to each assignment shall execute and deliver to
the Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500, and
(v) in the case of an assignment, the
assignee, if it shall not be a Lender, shall deliver to the
Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required
under this paragraph (b) shall not be required if an Event of Default under
paragraph (a), (b), (h), (i), or (m) of Section 7.01 has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d)
below, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have
(in addition to any such rights and obligations theretofore held by it) the
rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.11 and 9.03). Any
assignment by a Lender of rights or obligations under this Agreement that
does not comply with this paragraph (b) shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights
and obligations.
(c) Maintenance of Register by the Agent. The
Agent, acting for this purpose as an agent of the Borrower, shall maintain
at its address referred to in Section 9.01 a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans held by, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available
for inspection and copying by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice. The
Agent agrees to provide the Borrower with an official copy of the
Register at such times and in such format as the Borrower may
reasonably request.
(d) Effectiveness of Assignments. Upon its
receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) above and any written consent to such assignment required
by paragraph (b) above, the Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph (d).
(e) Participations. As provided in Section 9.04(b),
any Lender may sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and
the Loans held by it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (f) below, the Borrower agrees that
each Participant shall be entitled to the benefits of Section 2.11 to the
same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) above.
(f) Limitations on Rights of Participants. In no
event shall the rights of a Participant in respect of a participation acquired
by it under paragraph (e) above result in an increase in the total amount
payable by the Borrower under Section 2.11 in excess of the amount the
Borrower would have been required to pay had such participation not
been sold to such Participant.
(g) Certain Pledges. Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any such
pledge or assignment to a Federal Reserve Bank, and this Section 9.04
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
(h) No Assignments to the Borrower or Affiliates.
Anything in this Section 9.04 to the contrary notwithstanding, no Lender
may assign or sell any participations in any interest in any Loan held by it
hereunder to the Borrower, the Guarantor or any of their respective
Affiliates without the prior consent of each Lender.
Section 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant
to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Agent or any Lender may have had notice or knowledge of any Default or
Acceleration Event or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan, or any fee or
any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.09, 2.11 (to the extent provided therein),
9.03 and 9.11 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision
hereof.
Section 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Agreement, the Loan Documents and any separate letter
agreements with respect to fees payable to the Agent constitute the entire
contract between and among the parties relating to the subject matter
hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Agent and when the
Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page to this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this
Agreement.
Section 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
Section 9.08. Right of Setoff. If an Event of Default or
Acceleration Event shall have occurred and be continuing, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or any banking Affiliate
thereof to or for the credit or the account of the Borrower against any of
and all the obligations of the Borrower now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this
Section 9.08 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
Section 9.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be
construed in accordance with and governed by the law of The
Commonwealth of Massachusetts.
(b) Submission to Jurisdiction. Each party to this
Agreement hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of all federal and state courts
located in The Commonwealth of Massachusetts, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
and determined in The Commonwealth of Massachusetts or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement shall
affect any right that the Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against the Borrower
or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each party to this
Agreement hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) above. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
(d) Service of Process. Each party to this
Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
Section 9.10. WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.
Section 9.11. Confidentiality. Each of the Agent and the
Lenders acknowledges, understands and agrees that the Information
(defined below) is confidential and proprietary, and is of great value and
importance to the success of the Borrower's, the Guarantor's and their
respective Related Parties' business. Any Person required to maintain the
confidentiality of Information as provided in this Section 9.11 shall be
considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential
information. Each of the Agent and the Lenders shall not disclose and
shall cause each of its Related Parties not to disclose, without the prior
written approval of a Responsible Officer of the Borrower or Guarantor,
as appropriate, directly or indirectly, the Information to any Person or
business entity, except that the Information may be disclosed (a) to its and
its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisers that have a need to know
that Information either in connection with the performance of their duties
with respect to the Transactions and this Agreement or in connection with
the administration of such Lender's loan portfolio generally (it being
understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to
keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, provided that such Information shall remain
subject to the limitations set forth in this Section 9.11, (e) in connection
with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section 9.11, to any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement, (g) with the consent of the Borrower or
the Guarantor or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section 9.11 or (y)
becomes available to the Agent or any Lender on a nonconfidential basis
from a source other than the Borrower or the Guarantor.
For the purposes of this Section 9.11, "Information" means all
technical, trade secret or business information, including financial
information, business or marketing strategies or plans, product
development or customer information of the Borrower or Guarantor, that
is received from the Borrower or Guarantor relating to the Borrower or
Guarantor, and its business or any Related Party of the Borrower or
Guarantor, and its business, other than any such information that is
publicly available to the Agent or any Lender prior to disclosure by the
Borrower or Guarantor. Each of the Agent and the Lenders
acknowledges and understands that upon the disclosure of the
Information of the Borrower or Guarantor in any manner inconsistent
with this Agreement, the Borrower or Guarantor, as the case may be, shall
have a right to: (a) equitable and injunctive relief to prevent such use or
disclosure; and (b) subject to Section 9.03(c), recover the amount of all
damage (including attorneys' fees and expenses) to the Borrower or
Guarantor in connection with such use and disclosure.
Section 9.12. Representations by Agent and the Lenders.
The Agent and each of the Lenders hereby represents and warrants that it
in good faith is not relying upon any Margin Stock as direct or indirect
collateral in entering into this Agreement, its Commitment or the making
of the Loans hereunder.
Section 9.13. Judgment.
This is an international loan transaction in which the
specification of Dollars or Sterling, as the case may be (the "Specified
Currency"), and payment in Boston or other city specified by the Agent
for the payment of Sterling, as the case may be (the "Specified Place"), is
of the essence, and the Specified Currency shall be the currency of
account in all events relating to Loans denominated in the Specified
Currency. The payment obligations of the Borrower under this
Agreement shall not be discharged or satisfied by an amount paid in
another currency or in another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on conversion to the
Specified Currency and transfer to the Specified Place under normal
banking procedures does not yield the amount of the Specified Currency
at the Specified Place due hereunder. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in
the Specified Currency into another currency (the "Second Currency"),
the rate of exchange that shall be applied shall be the rate at which in
accordance with normal banking procedures the Agent could purchase the
Specified Currency with the Second Currency on the Business Day next
preceding the day on which such judgment is rendered. The obligation of
the Borrower in respect of any such sum due from it to the Agent or any
Lender hereunder (for purposes of this Section 9.13, an "Entitled Person")
shall, notwithstanding the rate of exchange actually applied in rendering
such judgment, be discharged only to the extent that on the Business Day
following receipt by such Entitled Person of any sum adjudged to be due
hereunder in the Second Currency such Entitled Person may in
accordance with normal banking procedures purchase and transfer to the
Specified Place the amount of the Specified Currency due hereunder with
the amount of the Second Currency so adjudged to be due; and the
Borrower hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay
such Entitled Person on demand, in the Specified Currency, the amount
(if any) by which the sum originally due to such Entitled Person in the
Specified Currency hereunder exceeds the amount of the Specified
Currency so purchase and transferred.
Section 9.14. No Personal Liability of Trustee. It is
expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by FMTC, not individually or
personally but solely as trustee of the Borrower, in the exercise of the
powers and authority conferred and vested in it under the Trust
Agreement, (b) each of the representations, undertakings and agreements
herein made on the part of the Borrower is made and intended not as
personal representations, undertakings and agreements by FMTC or any
other trustee but is made and intended for the purpose of binding only the
trust estate of the Borrower and (c) under no circumstances shall FMTC
or any other trustee be personally liable for the payment of any
indebtedness or expenses of the Borrower or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Borrower under this Agreement or any Note or other
Loan Document to which the Borrower is a party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed under seal by their respective officers
thereunto duly authorized, as of the date first above written.
BORROWER
FIDELITY MANAGEMENT TRUST COMPANY, not in its individual
capacity, but solely as trustee of THE COLT, INC. 2001
ANNUITY TRUST
By: /s/ XXXX X'XXXXXX
Name: Xxxx X'Xxxxxx
Title: Executive Vice President
ADMINISTRATIVE AGENT
FLEET NATIONAL BANK
By: /s/ XXXXXX X. XXXXXXXXXX
Name: Xxxxxx X. XxXxxxxxxx
Title: Director
LENDER
FLEET NATIONAL BANK
By: /s/ XXXXXX X. XXXXXXXXXX
Name: Xxxxxx X. XxXxxxxxxx
Title: Director
FIDELITY INVESTORS IV LIMITED PARTNERSHIP, solely for purposes of
consenting to the provisions hereof, including without limitation Section
6.05
By: Fidelity Investors Management LLC, its general partner
By: /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer and President
COLT, INC., solely for the limited purposes set forth herein and for
consenting to the provisions hereof, including without limitation Section
6.05
By: /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board and President
