Credit Agreement - Boston Celtics LP and Royal Bank of Scotland plc
EXECUTION COPY
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 31, 2000
Among
BOSTON CELTICS LIMITED PARTNERSHIP
and
BOSTON CELTICS LIMITED PARTNERSHIP II
as Borrowers,
and
THE ROYAL BANK OF SCOTLAND, plc,
as the Existing Lender,
and
THE OTHER LENDERS PARTIES HERETO,
and
CITIZENS BANK OF MASSACHUSETTS,
as Agent for the Lenders
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TABLE OF CONTENTS
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Page
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ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS 2
Section 1.1. Definitions 2
Section 1.2. Accounting Terms 12
ARTICLE 2. THE REVOLVING CREDIT 12
Section 2.1. The Revolving Credit 12
Section 2.2. Making of Revolving Credit Advances 12
Section 2.3. Interest on Revolving Credit Advances 14
Section 2.4. Election of LIBOR Pricing Options 14
Section 2.5. Additional Payments 14
Section 2.6. Computation of Interest, Etc 14
Section 2.7. Fees 15
Section 2.8. Set-Off 15
Section 2.9. Sharing of Payments 15
Section 2.10. Optional and Mandatory Reduction of Commitment 15
Section 2.11. Increased Costs, Etc 16
Section 2.12 Changed Circumstances 17
Section 2.13. Use of Proceeds 18
Section 2.14 New Borrower Assumption 18
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES 19
Section 3.1. Conditions to First Revolving Credit Advance 19
Section 3.2. Conditions to All Revolving Credit Advances 20
Section 3.3. Conditions to Restatement Effective Date 20
ARTICLE 4. PAYMENT AND REPAYMENT 23
Section 4.1. Mandatory Prepayment 23
Section 4.2. Voluntary Prepayments 23
Section 4.3. Payment and Interest Cutoff 23
Section 4.4. Payment or Other Actions on Non-Business Days 23
Section 4.5. Method and Timing of Payments 23
Section 4.6. Payments Not at End of Interest Period 24
Section 4.7. Currency 24
Section 4.8. New Borrower Release 25
ARTICLE 5. REPRESENTATIONS AND WARRANTIES 26
Section 5.1. Partnership Existence, Charter Documents, Etc 26
Section 5.2. Principal Place of Business; Location of Records 26
Section 5.3. Qualification 26
Section 5.4. Subsidiaries 26
Section 5.5. Power 26
Section 5.6. Valid and Binding Obligations 27
Section 5.7. Other Agreements 27
Section 5.8. Payment of Taxes 27
Section 5.9. Financial Statements 27
Section 5.10. Other Materials Furnished 27
Section 5.11. Equity Interests 28
Section 5.12. Changes in Condition 28
Section 5.13. Assets, Licenses, Patents, Trademarks, Etc 28
Section 5.14. Litigation 28
Section 5.15. Pension Plans 28
Section 5.16. Outstanding Indebtedness 29
Section 5.17. Environmental Matters 29
Section 5.18. Governmental Regulations 30
Section 5.19. Margin Stock 30
ARTICLE 6. REPORTS AND INFORMATION 30
Section 6.1. Quarterly Financial Statements and Reports 30
Section 6.2. Annual Financial Statements 31
Section 6.3. Notice of Defaults 31
Section 6.4. Notice of Litigation 31
Section 6.5. Communications with Others 31
Section 6.6. Reportable Events 31
Section 6.7. Reports to other Creditors 32
Section 6.8. Communications with Independent Public Accountants 32
Section 6.9. Environmental Reports 32
Section 6.10. Changes in FASB Rules Relating to Participations 32
Section 6.11. Miscellaneous 32
ARTICLE 7. FINANCIAL COVENANTS 33
ARTICLE 8. AFFIRMATIVE COVENANTS 33
Section 8.1. Existence and Business 33
Section 8.2. Taxes and Other Obligations 33
Section 8.3. Maintenance of Properties and Leases 33
Section 8.4. Insurance 33
Section 8.5. Records, Accounts and Places of Business 34
Section 8.6. Inspection 34
Section 8.7. Maintenance of Accounts 34
ARTICLE 9. NEGATIVE COVENANTS 34
Section 9.1. Restrictions on Indebtedness 34
Section 9.2. Restriction on Liens 35
Section 9.3. Investments 36
Section 9.4. Dispositions of Assets 36
Section 9.5. Assumptions, Guaranties, Etc. of Indebtedness of Other Persons 37
Section 9.6. Mergers, Etc. 37
Section 9.7. ERISA 37
Section 9.8. Distributions 37
Section 9.9. Sale and Leaseback 37
Section 9.10. Transactions with Affiliates 37
ARTICLE 10. EVENTS OF DEFAULT AND REMEDIES 38
Section 10.1. Events of Default 38
Section 10.2. Remedies 39
Section 10.3. Distribution of Proceeds 40
ARTICLE 11. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES 40
Section 11.1. Actions by Lenders 40
Section 11.2. Actions by Borrower 41
ARTICLE 12. SUCCESSORS AND ASSIGNS 41
Section 12.1. General 41
Section 12.2. Assignments 41
Section 12.3. Participations 42
ARTICLE 13. THE AGENT 43
Section 13.1. Authorization and Action 43
Section 13.2. Agent's Reliance, Etc. 44
Section 13.3. Agent as a Lender 44
Section 13.4. Lender Credit Decision 44
Section 13.5. Indemnification of Agent 45
Section 13.6. Successor Agent 45
Section 13.7. Amendment of Article 13 45
ARTICLE 14. MISCELLANEOUS 46
Section 14.1. Notices 46
Section 14.2. Merger 46
Section 14.3. Governing Law; Consent to Jurisdiction 47
Section 14.4. Counterparts 47
Section 14.5. Expenses and Indemnification 47
Section 14.6. Confidentiality 48
Section 14.7. WAIVER OF JURY TRIAL 48
Section 14.8. Termination 49
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Notice of Revolving Credit Borrowing
Exhibit C Form of Compliance Certificate
Exhibit D Form of Pricing Notice
Exhibit E Form of Amendment to Collateral Documents and Credit Support Agreements
Exhibit F Form of Opinion of Borrower's Counsel
Exhibit G Form of Assignment and Acceptance Agreement
Schedule 1 Schedule of Commitment Percentages
Schedule 2 Pricing Schedule
Schedule 5.4 Schedule of Subsidiaries
Schedule 5.9 Schedule of Financial Statements
Schedule 5.11 Schedule of Partnership Interests
Schedule 5.13 Schedule of Licenses, Patents, Copyrights and Trademarks
Schedule 5.15 Schedule of Pension Plans
Schedule 5.16 Schedule of Indebtedness, Liens, Charges and Encumbrances
Schedule 5.17 Environmental Matters
Schedule 8.4 Schedule of Insurance
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
October 31, 2000 by and among BOSTON CELTICS LIMITED PARTNERSHIP II, a
Delaware limited partnership (the "Existing Borrower") and BOSTON CELTICS
LIMITED PARTNERSHIP, a Delaware limited partnership ("BCLP", and in its
capacity as a borrower hereunder, the "New Borrower"), THE ROYAL BANK OF
SCOTLAND, plc (the "Existing Lender"), the other Lenders (as defined below)
from time to time party hereto, and CITIZENS BANK OF MASSACHUSETTS, a
Massachusetts bank, as agent for the Lenders (together with its successors
and assigns hereunder, the "Agent") (this Amended and Restated Credit
Agreement, as amended, supplemented or otherwise modified from time to time
in accordance with the terms hereof, this "Agreement").
Recitals
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WHEREAS, the Existing Borrower, the Existing Lender and the Agent
have entered into (a) the Credit Agreement dated as of May 20, 1998 (as
amended by the First Amendment and the Second Amendment (each as defined
below), the "Original Credit Agreement"), (b) the First Amendment dated as
of June 30, 1998 (the "First Amendment") to such Credit Agreement in order
to, among other things, permit the Existing Borrower to consummate the
Borrower Reorganization (as defined below), and (c) the Second Amendment
dated as of July 30, 1999 (the "Second Amendment") to such Credit
Agreement;
WHEREAS, the Existing Borrower desires (a) to distribute to the New
Borrower 100% of the Existing Borrower's equity interests in BCCLP Holding
Corporation, a Delaware corporation ("BCCLP") to the New Borrower, and the
New Borrower desires to receive such distribution, and (b) to distribute a
subordinated promissory note dated on or near the date hereof in an amount
equal to approximately $363,000 (the "BCLP II Subordinated Note") to BCLP
II, GP, Inc., a Delaware corporation and the general partner of the
Existing Borrower (the transactions described in the foregoing clauses (a)
and (b), collectively, the "Holdings Distribution");
WHEREAS, the Existing Borrower desires, among other things, to
assign, and the New Borrower desires, among other things, to assume, a
portion of the "Revolving Credit Advances" (as defined therein) outstanding
under the Original Credit Agreement in an aggregate amount equal to the
Assumed Advance (as defined below), and intend that, upon the consummation
of such assignment and assumption, the Existing Borrower shall be released
from all obligations with respect to the Assumed Advance (such assignment
and assumption, together with the Holdings Distribution, collectively, the
"2000 Reorganization");
WHEREAS, the Lenders and the Agent are willing to consent to the 2000
Reorganization, subject to the terms and conditions hereof, and to amend
and restate the Original Credit Agreement in order to permit, among other
things, the 2000 Reorganization, all as set forth herein and subject to and
in accordance with the terms and conditions hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS
Section 1.1. Definitions. In addition to the terms defined elsewhere
in this Agreement, unless otherwise specifically provided herein, the
following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined unless otherwise expressly stated):
"1998 Subordinated Debentures" shall mean the $54,073,280 6%
Subordinated Debentures due 2038 of the Existing Borrower issued
pursuant to the Indenture dated as of June 30, 1998 between the
Existing Borrower and The Chase Manhattan Bank, Trustee.
"2000 Financial Statements" shall mean, with respect to any
Person, the Consolidated Balance Sheet of such Person and its
Subsidiaries as of June 30, 2000 and the related Consolidated
Statements of Income, Shareholders' Equity and Cash Flow for the year
then ended and notes to such financial statements.
"2000 Reorganization" shall have the meaning ascribed thereto
in the Recitals to this Agreement.
"Affiliate" shall mean, with respect to any Person, (a) any
partner, director or officer of such Person and (b) any Person that
controls, is controlled by or is under common control with such
Person. For purposes of this definition, "control" of a Person shall
mean the possession, directly or indirectly, of the power to direct
or cause the direction of its management or policies, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" shall have the meaning ascribed thereto in the Preamble
of this Agreement.
"Applicable LIBOR Rate" shall mean the sum of (a) the LIBOR
Rate plus (b) the LIBOR Rate Margin, as each is in effect from time
to time.
"Assignment and Acceptance Agreement" shall have the meaning
set forth in Section 12.2(a) hereof.
"Assumed Advance" shall have the meaning ascribed thereto in
Section 2.14 below.
"Base Rate" shall mean the greater of (a) the rate of interest
announced from time to time by the Agent at its head office located
at 28 State Street, Boston, Massachusetts 02109 as its "Base Rate"
and (b) the Federal Funds Effective Rate plus 1/2% per annum (rounded
upwards, if necessary, to the next 1/8 of 1%).
"Base Rate Loan" shall mean any Revolving Credit Advance
bearing interest at a fluctuating rate determined by reference to the
Base Rate.
"BCCLP" shall have the meaning ascribed thereto in the Preamble
to this Agreement.
"BCCLP Credit Support Agreement" shall mean the BCCLP Credit
Support Agreement dated as of May 20, 1998 between BCCLP and the
Agent, as amended, supplemented or otherwise modified in accordance
with its terms.
"BCLP II Subordinated Note" has the meaning ascribed thereto in
the Recitals to this Agreement.
"BCLP Unit" has the meaning set forth in the Registration
Statement.
"Borrower" shall mean (unless the context requires otherwise):
(a) through the New Borrower Release Date,
(i) with respect to Article 2, Section 3.2,
Section 3.3, Article 4, Article 5, Article 6, Article 8,
Article 9, Article 12, Article 13 and Article 14 hereof,
each of the Existing Borrower and the New Borrower,
severally, except in reference to any specific Loan or
Revolving Credit Advance made or proposed to be made to
one of such Borrowers in such Article or Section, in
which case the term "Borrower" shall mean the Borrower
that has or will receive or has proposed or will propose
to receive such Loan or Revolving Credit Advance,
(ii) with respect to Section 3.1 hereof, the
Existing Borrower,
(iii) with respect to Article 10 hereof, either or
both of the Existing Borrower and the New Borrower,
provided that with respect to Section 10.3(c) hereof, the
term "Borrower" shall mean the Borrower entitled thereto,
(iv) with respect to Section 11.1 hereof, both the
Existing Borrower and the New Borrower, and with respect
to the remaining provisions of Article 11 hereof, either
or both of the Existing Borrower and the New Borrower,
(v) with respect to Article 14 hereof, both the
Existing Borrower and the New Borrower;
provided, however, that the term "Borrower" shall mean and be a
reference to: (i) with respect to the delivery of notice to or
receipt of notice by the Borrower, both the Existing Borrower and the
New Borrower, except that if such notice is with respect to a
particular Loan or Revolving Credit Advance such reference shall be
to the applicable Borrower, (ii) with respect to any payment to be
made by the Borrower hereunder, or under the Revolving Credit Notes
or any other Lender Agreement, the Borrower that is the payor of such
Revolving Credit Note or that has undertaken, agreed or otherwise
assumed the obligation to make such payment, and (iii) with respect
to the delivery of any financial statements and information pursuant
to Article 6, the New Borrower and Existing Borrower may deliver
jointly those financial statements and information that are
duplicative for the Borrowers, provided that each Borrower clearly
references its delivery of such financial statements; and
(b) from and after the New Borrower Release Date, the
Existing Borrower.
Without limiting the foregoing, from and after the New Borrower
Release Date, the term "Borrower" and the phrases "any Borrower,"
"either Borrower" or "a Borrower" shall mean and be a reference to
the Existing Borrower.
"Borrower Reorganization" has the meaning ascribed to the term
"Reorganization" in the Registration Statement.
"Borrowing Base" shall mean an amount equal to 80% of Eligible
Pledged Collateral.
"Business Day" shall mean (a) for all purposes other than as
covered by clause (b) below, any day other than a Saturday, Sunday or
legal holiday on which banks in Boston, Massachusetts and New York,
New York are open for the conduct of a substantial part of their
commercial banking business, and (b) with respect to all notices and
determinations in connection with, and payments of principal and
interest on, LIBOR Rate Loans any day that is a Business Day
described in clause (a) and that is also a day for trading by and
between banks in U.S. Dollar deposits in the London interbank
Eurodollar market.
"CCC" shall mean Celtics Capital Corporation, a Delaware
corporation.
"CCC Pledge Agreement" shall mean the Amended and Restated
Pledge and Security Agreement dated as of March 5, 1999 by and
between CCC and the Agent, as amended, supplemented or otherwise
modified in accordance with its terms.
"CCC Pledged Collateral" shall mean the Pledged Collateral as
defined in the CCC Pledge Agreement.
"Capital Assets" shall mean fixed assets, both tangible (such
as land, buildings, fixtures, machinery and equipment) and intangible
(such as patents, copyrights, trademarks, franchises and goodwill);
provided, however, that Capital Assets shall not include any item
customarily charged directly as an expense or depreciated over a
useful life of twelve (12) months or less in accordance with
generally accepted accounting principles.
"Capital Expenditures" shall mean, with respect to any Person,
amounts paid or incurred, including indebtedness incurred, by such
Person in connection with the purchase or lease by such Person of
Capital Assets that would be required to be capitalized and shown on
the balance sheet of such Person in accordance with generally
accepted accounting principles.
"Capitalized Lease" shall mean any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with
generally accepted accounting principles and Statement of Financial
Accounting Standards No. 13.
"Capitalized Lease Obligations" shall mean the amount of the
liability reflecting the aggregate discounted amount of future
payments under all Capitalized Leases calculated in accordance with
generally accepted accounting principles and Statement of Financial
Accounting Standards No. 13.
"Celtics Credit Agreement" shall mean the Credit Agreement
dated as of December 15, 1997 by and between Celtics Limited
Partnership, a Delaware limited partnership, and Citizens Bank of
Massachusetts, as amended by the First Amendment to the Credit
Agreement and Assumption Agreement dated as of June 30, 1998 and the
Second Amendment to the Credit Agreement dated as of July [30], 1999,
and as the same may be further amended, modified, supplemented,
replaced, extended or refinanced from time to time in accordance with
its terms.
"Change of Control" shall mean any event, circumstance, action,
omission or other set of facts as a result of which (a) neither the
Existing Borrower nor the New Borrower shall own of record and
beneficially all of the issued and outstanding capital stock of
BCCLP, except with the prior written consent of the Agent, which will
not be unreasonably withheld, and delivery of such related
instruments, certificates and opinions as the Agent may reasonably
request, (b) BCCLP shall cease to own of record and beneficially all
of the issued and outstanding capital stock of CCC, or (c) Paul E.
Gaston and his family, as determined with reference to Section
544(a)(2) of the Code including attributions from any partnership,
estate, trust or corporation, shall cease to own, directly or
indirectly, less than 75% of the equity interests and voting
interests in the general partner of either Borrower.
"Closing Date" shall mean the date on which all of the
conditions set forth in Section 3.1 hereof have been satisfied.
"Collateral Documents" shall mean the CCC Pledge Agreement, the
Master Participation Agreement dated March 5, 1999 between The Chase
Manhattan Bank and CCC, and the Consent, Acknowledgement and
Collection Account Agreement dated as of March 5, 1999 among The
Chase Manhattan Bank, the Agent and CCC, together with each other
pledge agreement, security agreement or similar agreement entered
into by any Loan Party in favor of the Agent and/or the Lenders for
the purpose of securing all or a portion of the Lender Obligations,
in each case, as amended, supplemented or otherwise modified from
time to time.
"Commitment Percentage" shall mean as to each Lender its
percentage interest in the Maximum Revolving Credit Amount as set
forth on Schedule 1 hereto, as such Schedule may be amended,
supplemented or otherwise modified in accordance with the terms of
Section 12.2 hereof.
"Compliance Certificate" shall mean, with respect to any
Person, a certificate in the form of Exhibit C hereto and executed by
the chief executive officer or chief financial officer of such
Person.
"Consolidated" and "Consolidating," and "consolidated" and
"consolidating" when used with reference to any term, mean that term
(or the terms "combined" and "combining", as the case may be, in the
case of partnerships, joint ventures and Affiliates that are not
Subsidiaries) as applied to the accounts of the specified Person and
all of its Subsidiaries (or other specified Persons), or such of its
Subsidiaries as may be specified, consolidated (or combined) in
accordance with generally accepted accounting principles and with
appropriate deductions for minority interests in Subsidiaries, as
required by generally accepted accounting principles.
"Consolidated Current Liabilities" shall mean, with respect to
any Person, at any date as of which the amount thereof shall be
determined, all liabilities of such Person and its Subsidiaries which
should properly be classified as current in accordance with generally
accepted accounting principles consistently applied, including,
without limitation, all fixed prepayments of, and sinking fund
payments with respect to, Indebtedness and all estimated taxes of
such Person and its Subsidiaries required to be made within one year
from the date of determination, including all Indebtedness of such
Person hereunder.
"Consolidated Net Income" shall mean the net income (or
deficit) from operations of the specified Person and its
Subsidiaries, after taxes, determined in accordance with generally
accepted accounting principles consistently applied.
"Credit Participants" shall have the meaning set forth in
Section 12.3 hereof.
"Credit Support Affiliates" means from and after the date of
the First Amendment, each of (a) BCLP in its capacity as a signatory
to the Credit Support Agreement dated as of June 30, 1998 in favor of
the Agent, Celtics Limited Partnership, a Delaware limited
partnership, Celtics Pride, G.P., a Delaware general partnership, and
Celtics Basketball Holdings, L.P., a Delaware limited partnership,
and (b) each other party which becomes a party hereto in such
capacity.
"Credit Support Agreements" means (a) the BCCLP Credit Support
Agreement, (b) the Credit Support Agreements dated as of June 30,
1998 from the Credit Support Affiliates, and (c) any other Credit
Support Agreement entered into from time to time by any Person in
favor of the Agent and Lenders, in each case, as amended,
supplemented or otherwise modified in accordance with their
respective terms.
"Default" shall mean an Event of Default or an event or
condition which with the passage of time or giving of notice, or
both, would become such an Event of Default.
"Distribution" shall mean as to any Person: (a) the payment of
any dividend on or in respect of any shares of any class of capital
stock or partnership interests of such Person, other than dividends
payable solely in shares of common stock or partnership interests of
such Person, (b) the purchase, redemption, or other acquisition or
retirement of any shares of any class of capital stock or partnership
interests of such Person directly or indirectly, (c) any other
distribution on or in respect of any shares of any class of capital
stock or partnership interests of such Person, and (d) any setting
apart or allocating any sum for the payment of any dividend or
distribution, or for the purchase, redemption or retirement of any
shares of capital stock of such Person.
"Eligible Pledged Collateral" shall mean the sum of (a) the
principal amount of the outstanding Loan Participations (as defined
in the CCC Pledge Agreement) as to which the Agent holds a first
perfected security interest subject to no other liens or
encumbrances, (b) amounts on deposit in the Collection Account (as
defined in the CCC Pledge Agreement) which have been pledged to the
Agent and (c) the fair market value of any other investments pledged
to the Agent as approved by the Agent and the Lenders in their
discretion.
"Environmental Law" means any judgment, decree, order, law,
license, rule or regulation pertaining to environmental matters, or
any federal, state, county or local statute, regulation, ordinance,
order or decree relating to public health, welfare, the environment,
or to the storage, handling, use or generation of hazardous
substances in or at the workplace, worker health or safety, whether
now existing or hereafter enacted.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Event of Default" shall have the meaning set forth in Section
10.1 hereof.
"Existing Borrower" shall have the meaning ascribed thereto in
the Preamble of this Agreement.
"Existing Borrower Note" shall mean the promissory note in the
form of Exhibit A-1 hereto, dated the Restatement Effective Date and
duly executed by the Existing Borrower.
"Existing Borrower Revolving Credit Advance" shall mean (i) any
loan or advance from any Lender to the Existing Borrower pursuant to
Section 2.1 of this Agreement and (ii) any "Revolving Credit Advance"
(as defined in the Original Credit Agreement) that is not an Assumed
Advance pursuant to Section 2.14 hereof.
"First Amendment" shall have the meaning ascribed thereto in
the Recitals to this Agreement.
"Generally accepted accounting principles" shall mean generally
accepted accounting principles as defined by controlling
pronouncements of the Financial Accounting Standards Board, as from
time to time supplemented and amended.
"Guaranty" or "Guarantee" or "Guaranties" shall include any
arrangement whereby a Person is or becomes liable in respect of any
Indebtedness or other obligation of another and any other arrangement
whereby credit is extended to another obligor on the basis of any
promise of a guarantor, whether that promise is expressed in terms of
an obligation to pay the Indebtedness of such obligor, or to purchase
or lease assets under circumstances that would enable such obligor to
discharge one or more of its obligations, or to maintain the capital,
the working capital, solvency or general financial condition of such
obligor, whether or not such arrangement is listed in the balance
sheet of the guarantor or referred to in a footnote thereto.
"Holdings Distribution" shall have the meaning ascribed thereto
in the Recitals to this Agreement.
"Indebtedness" shall mean, as to any Person, all obligations,
contingent and otherwise, which in accordance with generally accepted
accounting principles consistently applied should be classified upon
such Person's balance sheet as liabilities, but in any event
including liabilities secured by any mortgage, pledge, security
interest, lien, charge or other encumbrance existing on property
owned or acquired by such Person whether or not the liability secured
thereby shall have been assumed, letters of credit open for account,
obligations under acceptance facilities, Capitalized Lease
Obligations and all obligations on account of Guaranties,
endorsements and any other contingent obligations in respect of the
Indebtedness of others whether or not reflected on such balance sheet
or in a footnote thereto.
"Initial Reorganization" shall mean the reorganization of the
Existing Borrower as described in the letter dated May 20, 1998 from
the Agent and the Lenders under the Original Credit Agreement to the
Existing Borrower.
"Interest Expense" shall mean for any period, the aggregate
amount (determined in accordance with generally accepted accounting
principles) of interest charged to earnings during such period by the
specified Person in respect of all Indebtedness for borrowed money,
Capitalized Lease Obligations and the deferred purchase price of
property.
"Interest Period" shall mean with respect to each LIBOR Rate
Loan, the period commencing on the date of such LIBOR Rate Loan and
ending one, two, three, six or twelve months thereafter, as a
Borrower may request as provided in Sections 2.1(a) or 2.4 hereof,
provided, that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (c) below) that would otherwise
end on a day that is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls
in the next calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day;
(b) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to clause (c)
below, end on the last Business Day of a calendar month;
(c) any Interest Period that would otherwise end after
the Revolving Credit Termination Date shall end on the
Revolving Credit Termination Date; and
(d) notwithstanding clause (c) above, no Interest
Period shall have a duration of less than one month, and if any
Interest Period applicable to any LIBOR Rate Loan would be for
a shorter period, such Interest Period shall not be available
hereunder.
"Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
"Investment" shall mean (a) any stock, evidence of Indebtedness
or other security of another Person, (b) any loan, advance,
contribution to capital, extension of credit (except for current
trade and customer accounts receivable for inventory sold or services
rendered in the ordinary course of business and payable in accordance
with customary trade terms) to another Person, and (c) any purchase
of (i) stock or other securities of another Person or (ii) any
business or undertaking of another Person (whether by purchase of
assets or securities), any commitment or option to make any such
purchase if, in the case of an option, the aggregate consideration
paid for such option was in excess of $100, or (d) any other
investment, in all cases whether existing on the date of this
Agreement or thereafter made.
"Lender Agreements" shall mean this Agreement, the Revolving
Credit Notes, the CCC Pledge Agreement and the other Collateral
Documents, the Credit Support Agreements, and any other agreement
from time to time entered into by any Loan Party with the Agent
and/or the Lenders, each such agreement as from time to time amended
or supplemented, and all statements, reports, certificates, documents
and instruments delivered by any Loan Party to the Agent and/or the
Lenders in connection herewith or therewith.
"Lender Obligations" shall mean all present and future
obligations and Indebtedness of any Borrower or any Affiliate thereof
owing to the Agent and/or the Lenders under this Agreement or any
other Lender Agreement, including, without limitation, the
obligations to pay the Indebtedness from time to time evidenced by
the Revolving Credit Notes, and the obligations to pay interest,
commitment fees, balance deficiency fees, charges, expenses and
indemnification from time to time owed under any Lender Agreement.
"Lenders" shall mean (a) the Existing Lender, (b) any other
Person who becomes a Successor Lender hereunder in accordance with
the terms of Section 12.2 hereof, and (c) their respective
successors.
"LIBOR Pricing Option" shall mean the option granted to a
Borrower pursuant to Section 2.5 hereof to have interest on all or a
portion of the Loans computed on the basis of the Applicable LIBOR
Rate for an applicable Interest Period.
"LIBOR Rate" shall mean for any Interest Period for any LIBOR
Rate Loan, the quotient of (a) the rate of interest determined by the
Agent, at about 10:00 a.m. (Boston time) on the LIBOR Rate Fixing Day
as being the rate at which deposits in U.S. dollars are offered to it
by first-class banks in the London interbank market for deposit for
such Interest Period in amounts comparable to the aggregate principal
amount of LIBOR Rate Loans to which such Interest Period relates,
divided by (b) one (1) minus the Reserve Requirement (expressed as a
decimal) applicable to that Interest Period. The LIBOR Rate shall be
adjusted automatically as of the effective date of any change in the
Reserve Requirement.
"LIBOR Rate Fixing Day" shall mean, in the case of any LIBOR
Rate Loan, the second Business Day preceding the Business Day on
which an Interest Period begins.
"LIBOR Rate Loan" shall mean any Loan hereunder upon which
interest will accrue on the basis of a formula including as a
component thereof the LIBOR Rate. The expiration date of any LIBOR
Rate Loan shall be the last day of the Interest Period applicable to
such LIBOR Rate Loan.
"LIBOR Rate Margin" shall mean a rate per annum equal to 0.70%.
"Loan" shall mean (a) with respect to either Borrower any and
all Revolving Credit Advances outstanding hereunder or made to such
Borrower by the Lenders pursuant to Article 2 of this Agreement, and
(b) with respect to both Borrowers all Revolving Credit Advances
outstanding hereunder or made to either Borrower by the Lenders
pursuant to Article 2.
"Loan Party" shall mean each Borrower, BCCLP, CCC and each
Credit Support Affiliate.
"Majority Lenders" shall mean, at any time, the Lenders having
made not less than 51% of the outstanding principal amount of the
Loans hereunder, or, if no Loans are outstanding, the Lenders having
aggregate Commitment Percentages of not less than 51%.
"Material Adverse Effect" shall mean a material adverse effect
on the business, properties, assets or condition, financial or
otherwise, of the Borrower or any of its Subsidiaries.
"Maximum Revolving Credit Amount" shall mean, as of any date of
determination:
(a) with respect to both Borrowers, (i) prior to the
New Borrower Release Date, the lesser of (x) $60,000,000 from
the Closing Date through December 31, 2001, (y) $50,000,000
from January 1, 2002 through December 31, 2002, and (z)
$40,000,000 from January 1, 2003 through the Revolving Credit
Termination Date, in each case, less each reduction, if any,
made pursuant to Section 2.10 below, and (ii) from and after
the New Borrower Release Date, $10,000,000 less each reduction,
if any, made pursuant to Section 2.10 below;
(b) with respect to the Existing Borrower, the amount
of $10,000,000 less the reductions, if any, permitted under
Section 2.10 below; and
(c) with respect to the New Borrower, (i) prior to the
New Borrower Release Date, the amount of $50,000,000 less each
reduction, if any, made pursuant to Section 2.10 below and (ii)
after the New Borrower Release Date, $0;
provided that if the obligation of the Lenders to make further
Revolving Credit Advances is terminated upon the occurrence of an
Event of Default, the Maximum Revolving Credit Amount, as of any date
of determination thereof and thereafter and with respect to any
Borrower or both Borrowers, shall be deemed to be $0.
"New Borrower" shall have the meaning ascribed thereto in the
Preamble of this Agreement.
"New Borrower Assumption" shall have the meaning ascribed
thereto in Section 2.14 hereof.
"New Borrower Note" shall mean the promissory note in the form
of Exhibit A-2 hereto, dated the Restatement Effective Date and duly
executed by the New Borrower.
"New Borrower Release" shall have the meaning ascribed thereto
in Section 4.8 hereof.
"New Borrower Release Date" shall have the meaning ascribed
thereto in Section 4.8 hereof.
"New Borrower Revolving Credit Advance" shall mean (a) any loan
or advance from any Lender to the New Borrower pursuant to Section
2.1 of this Agreement and (b) any Assumed Advance.
"Notice of Revolving Credit Borrowing" shall have the meaning
set forth in Section 2.2(a) hereof.
"Original Credit Agreement" shall have the meaning ascribed
thereto in the Recitals to this Agreement.
"Participation Agreements" shall mean agreements by and between
the Borrower and financial institutions, on terms and conditions
acceptable to the Bank, providing for the Borrower's participation in
loans made by such financial institutions.
"Pension Plan" shall mean, with respect to any Person, an
employee benefit plan or other plan maintained for the employees of
such Person or any Subsidiary as described in Section 4021(a) of
ERISA.
"Person" shall mean an individual, corporation, partnership,
joint venture, association, estate, joint stock company, trust,
organization, business, or a government or agency or political
subdivision thereof.
"Pricing Notice" shall have the meaning set forth in Section
2.4 hereof.
"Reportable Event" shall mean an event reportable to the
Pension Benefit Guaranty Corporation under Section 4043 of Title IV
of ERISA.
"Registration Statement" shall mean the Registration Statement
No. 333-50367 on Form S-4 filed with the Securities and Exchange
Commission by BCCLP.
"Reserve Requirement" shall mean the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other
reserves) which is imposed under Regulation D on the Lenders against
"Euro-currency Liabilities" as defined in said Regulation D.
"Restatement Effective Date" shall mean the date on which all
of the conditions set forth in Section 3.3 hereof have been satisfied
or duly waived by the party entitled thereto.
"Restructuring Transactions" shall have the meaning set forth
in the Registration Statement.
"Revolving Credit Advance" shall mean (a) with respect to the
Existing Borrower, any Existing Borrower Revolving Credit Advance,
(b) with respect to the New Borrower, any New Borrower Revolving
Credit Advance, and (c) with respect to both Borrowers or the Maximum
Revolving Credit Amount, any or all, respectively, of the Existing
Borrower Revolving Credit Advances and the New Borrower Revolving
Credit Advances; provided that nothing in this definition shall
render the Borrowers jointly and severally liable with respect to the
Lender Obligations or otherwise under the Lender Agreements.
"Revolving Credit Notes" shall mean collectively, the Existing
Borrower Note and the New Borrower Note, and, individually, the
Existing Borrower Note with respect to the Existing Borrower and the
New Borrower Note with respect to the New Borrower.
"Revolving Credit Termination Date" shall mean June 30, 2003.
"Second Amendment" shall have the meaning ascribed thereto in
the Recitals to this Agreement.
"Subordinated Indebtedness" shall mean, with respect to any
Person, the Indebtedness of such Person that is subordinated to the
Indebtedness of such Person hereunder and under the Revolving Credit
Notes and to all other Lender Obligations, on terms and conditions
approved in writing by the Agent.
"Subsidiary" shall mean, with respect to any Person specified
as a parent, any Person of which such specified parent shall now or
hereafter at the time own, directly or indirectly sufficient voting
stock (or other beneficial interest) to entitle it to elect at least
a majority of the board of directors or trustees or similar managing
body.
"UCC" shall mean the Massachusetts Uniform Commercial Code,
Massachusetts General Laws c. 106, as amended from time to time.
Section 1.2. Accounting Terms. All accounting terms used and not
defined in this Agreement shall be construed in accordance with generally
accepted accounting principles consistently applied, and all financial data
required to be delivered hereunder shall be prepared in accordance with
such principles.
ARTICLE 2. THE REVOLVING CREDIT
Section 2.1. The Revolving Credit.
(a) Subject to the terms and conditions of this Agreement and so
long as there exists no Default, at any time prior to the Revolving Credit
Termination Date, each Lender, severally and not jointly, shall make such
Revolving Credit Advances to the Borrower as the Borrower may from time to
time request, by notice to the Agent in accordance with Section 2.2, in an
aggregate amount (i) as to each Lender, not to exceed at any time such
Lender's Commitment Percentage of the Maximum Revolving Credit Amount, and
(ii) as to all Lenders, not to exceed the Maximum Revolving Credit Amount;
provided, however, that at no time shall any Lender make a Revolving Credit
Advance to any Borrower if, after giving effect to such Revolving Credit
Advance, the aggregate amount of Revolving Credit Advances made to the
Borrowers exceeds the Borrowing Base. The outstanding principal amount of
the Revolving Credit Advances, together with all accrued interest and other
fees and charges related thereto, shall be repaid in full on the Revolving
Credit Termination Date. On the Closing Date the Borrower shall execute and
deliver to each Lender a Revolving Credit Note to evidence the Revolving
Credit Advances from time to time made by such Lender to the Borrower
hereunder.
Subject to the foregoing limitations and the provisions of Section
4.2, the Borrower shall have the right to make prepayments reducing the
outstanding balance of Revolving Credit Advances and to request further
Revolving Credit Advances, all in accordance with Section 2.2, without
other restrictions hereunder; provided that the Lenders shall have the
absolute right to refuse to make any Revolving Credit Advances for so long
as there exists any Default or any other condition which would constitute a
Default upon the making of such a Revolving Credit Advance.
Section 2.2. Making of Revolving Credit Advances.
(a) Each Revolving Credit Advance shall be made on notice given by
the Borrower to the Agent not later than 11:00 a.m. (Boston time) on the
date of the proposed Borrowing (a "Notice of Revolving Credit Borrowing");
provided, however that if the Borrower elects a LIBOR Rate Pricing Option
with respect to any Revolving Credit Advance in accordance with Section 2.4
hereof, such Notice of Revolving Credit Borrowing shall be given by the
Borrower contemporaneously with a Pricing Notice in the manner and within
the time specified in Section 2.4. The Agent shall give the Lenders notice
of each Notice of Revolving Credit Borrowing in accordance with the Agent's
customary practice. Each such Notice of Revolving Credit Borrowing shall be
by telephone or telecopy, in each case confirmed immediately in writing by
the Borrower in substantially the form of Exhibit B hereto, specifying
therein (i) the requested date of such Revolving Credit Advance, and (ii)
the amount of such Revolving Credit Advance (which must be a minimum of
$100,000). The Borrower agrees to indemnify and hold the Lenders harmless
for any action, including the making of any Revolving Credit Advances
hereunder, or loss or expense, taken or incurred by the Agent and the
Lenders in good faith reliance upon such telephone request. At the time of
the initial request for a Revolving Credit Advance made under this Section
2.2, the Borrower shall have provided the Agent with a Compliance
Certificate. The Borrower hereby agrees (i) that the Lenders shall be
entitled to rely upon the Compliance Certificate most recently delivered to
the Agent until it is superseded by a more recent Compliance Certificate,
and (ii) that each request for a Revolving Credit Advance, whether by
telephone or in writing or otherwise, shall constitute a confirmation of
the representations and warranties contained in the most recent Compliance
Certificate then in the Agent's possession.
(b) Subject to the terms and conditions of this Agreement, each
Lender shall make available on or before 2:00 p.m. on the date of each
proposed Revolving Credit Advance, to the Agent at the Agent's address and
in immediately available funds, such Lender's Commitment Percentage of such
Revolving Credit Advance. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article 3, the Agent
will credit such funds to the Borrower's account on the date of the
proposed Revolving Credit Advance.
(c) Unless the Agent shall have received notice from a Lender prior
to the date of any Revolving Credit Advance that such Lender will not make
available to the Agent such Lender's Commitment Percentage of such
Revolving Credit Advance, the Agent may assume that such Lender has made
such amount available to the Agent on the date of such Revolving Credit
Advance in accordance with and as provided in this Section 2.2 and the
Agent may, in reliance upon such assumption, make available on such date a
corresponding amount to the Borrower. If and to the extent such Lender
shall not have so made its Commitment Percentage of such Revolving Credit
Advance available to the Agent and the Agent shall have made available such
corresponding amount to the Borrower, such Lender agrees to pay to the
Agent forthwith on demand, and the Borrower agrees to repay to the Agent
within two Business Days after demand (but only after demand for payment
has first been made to such Lender and such Lender has failed to make such
payment), an amount equal to such corresponding amount together with
interest thereon for each day from the date the Agent shall make such
amount available to the Borrower until the date such amount is paid or
repaid to the Agent, at an interest rate equal to the interest rate
applicable at the time to such Revolving Credit Advances. If such Lender
shall pay to the Agent such corresponding amount, such amount so paid shall
constitute such Lender's Revolving Credit Advance for purposes of this
Agreement. If the Borrower makes a repayment required by the foregoing
provisions of this Section 2.2(c) and thereafter the applicable Lender or
Lenders make the payments to the Agent required by this Section 2.2(c), the
Agent shall promptly refund the amount of the Borrower's payment.
(d) The failure of any Lender to make the Revolving Credit Advance
to be made by it on any date shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance on such
date, but no Lender shall be responsible for the failure of any other
Lender to make the Revolving Credit Advance to be made by such other
Lender.
Section 2.3. Interest on Revolving Credit Advances. Subject to the
terms of Section 2.4 relating to LIBOR Pricing Options, the Borrower shall
pay interest on the unpaid balance of the Revolving Credit Advances which
are Base Rate Loans from time to time outstanding at a per annum rate equal
to the Base Rate. Interest on the Revolving Credit Advances which are Base
Rate Loans shall be payable quarterly in arrears on the last day of each
March, June, September and December, commencing December 31, 2000 and
continuing until all of the Indebtedness of the Borrower to the Lenders
under the Revolving Credit Notes shall have been paid in full.
Section 2.4. Election of LIBOR Pricing Options.
(a) Subject to all the terms and conditions hereof and so long as
there exists no Default, the Borrower may, by delivering a Pricing Notice
to the Agent received at or before 10:00 a.m. Boston time on the date two
Business Days prior to the commencement of the Interest Period selected in
such Pricing Notice, elect to have all or a portion of the outstanding
Revolving Credit Advances, as the Borrower may specify in such Pricing
Notice, accrue and bear daily interest during the Interest Period so
selected at a per annum rate equal to the Applicable LIBOR Rate for such
Interest Period; provided, however, that any such election made with
respect to the Revolving Credit Advances shall be in an amount not less
than $1,000,000 and in increments of $100,000; and provided further that no
such election will be made if it would result in there being more than four
(4) LIBOR Pricing Options in the aggregate outstanding at any one time.
Interest on Loans bearing interest at the Applicable LIBOR Rate shall be
paid for the applicable Interest Period on the last day thereof and when
such Loan is due (whether at maturity, by reason of acceleration or
otherwise) but at least semi-annually.
(b) Each Pricing Notice shall be substantially in the form of
Exhibit D attached hereto and shall specify: (i) the selection of a LIBOR
Pricing Option; (ii) the effective date and amount of Revolving Credit
Advances subject to such LIBOR Pricing Option, subject to the limitations
set forth herein; and (iii) the duration of the applicable Interest Period.
Each Pricing Notice shall be irrevocable.
(c) The Agent will promptly inform each Lender of a Pricing Notice
and the Interest Period specified by the Borrower therein. Upon
determination by the Agent of the Applicable LIBOR Rate for any Interest
Period selected by the Borrower, the Agent will promptly inform the
Borrower and each Lender of such Applicable LIBOR Rate so determined or, if
applicable, the reason why the Borrower's election will not become
effective.
Section 2.5. Additional Payments. During the continuance of any
Event of Default, the Borrower shall, on demand, pay to the Agent for the
account of the Lenders interest on the unpaid principal balance of the
Revolving Credit Advances and, to the extent permitted by law, on any
overdue installments of interest, at a rate per annum equal to the lesser
of (i) the stated interest rates applicable thereto plus 2% per annum, and
(ii) the maximum rate of interest permitted to be charged under applicable
law.
Section 2.6. Computation of Interest, Etc. Interest hereunder and
under the Revolving Credit Advances shall be computed on the basis of a
360-day year for the number of days actually elapsed. Any increase or
decrease in the interest rate on the Revolving Credit Advances resulting
from a change in the Base Rate shall be effective immediately from the date
of such change. No interest payment or interest rate charged hereunder
shall exceed the maximum rate authorized from time to time by applicable
law. The outstanding balance of the Revolving Credit Notes as reflected on
the Agent's records from time to time shall be considered correct and
binding on the Borrower and the Lenders (absent manifest error) unless
within thirty (30) days after receipt of any notice by the Agent or any
Lender of such outstanding amount, the Borrower or a Lender notifies the
Agent to the contrary.
Section 2.7. Fees. The Borrower shall pay to the Agent, for the
accounts of the Lenders in accordance with their respective Commitment
Percentages of the applicable Maximum Revolving Credit Amount, a commitment
fee (the "Revolving Commitment Fee") computed at a rate of 0.25% per annum
on the average daily unused amount of the applicable Maximum Revolving
Credit Amount from time to time in effect from the date hereof through the
Revolving Credit Termination Date. The Revolving Commitment Fee shall be
payable quarterly in arrears on the last day of each March, June, September
and December, commencing December 31, 2000, for the quarter then ended, and
on the termination hereof.
Section 2.8. Set-Off. To the extent not prohibited by applicable
law, the Borrower hereby authorizes the Agent and each Lender, without
notice to the Borrower, if and to the extent payment is not promptly made
when due pursuant to the Revolving Credit Notes or pursuant to any
provision hereof or of any other Lender Agreement, to charge against any
account of the Borrower with the Agent or such Lender, an amount equal to
the accrued interest and principal and other amounts from time to time then
due and payable to the Agent and the Lenders hereunder and under all other
Lender Agreements.
Section 2.9. Sharing of Payments. 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 made by it in excess of
its ratable share (according to the then outstanding principal amount of
the Loans) of payments on account of the Loans obtained by all the Lenders,
such Lender shall purchase from the other Lenders such participations in
the Loans held by such other Lenders as shall cause such purchasing Lender
to share such payment ratably according to the then outstanding principal
amount of the Loans with each of such other Lenders; provided, however,
that if all or any portion of such payment is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, with interest at an interest
rate per annum equal to the Applicable Base Rate. The Borrower agrees that
any Lender so purchasing a participation in the Loans from another Lender
pursuant to this Section 2.9 may, to the fullest extent permitted by law,
exercise all its rights of payment 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 2.10. Optional and Mandatory Reduction of Commitment. The
Borrower at its option may, at any time and from time to time, irrevocably
reduce in part (with respect to the Existing Borrower, in integral
multiples of $1,000,000 and, with respect to the New Borrower, in integral
multiples of $5,000,000) the unused portion of the Maximum Revolving Credit
Amount on not less than five (5) Business Days' prior written notice to the
Agent. No such reduction, may be reinstated by the Borrower.
Section 2.11. Increased Costs, Etc.
(a) Anything herein to the contrary notwithstanding, if any changes
in present or future applicable law (which term "applicable law", as used
in this Agreement, includes statutes and rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental
or other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices
at any time or from time to time heretofore or hereafter made upon or
otherwise issued to any Lender by any central bank or other fiscal,
monetary or other authority, whether or not having the force of law),
including without limitation any change according to a prescribed schedule
of increasing requirements, whether or not known or in effect as of the
date hereof, shall (i) subject such Lender to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement or the payment to such Lender of any amounts due to it hereunder,
or (ii) materially change the basis of taxation of payments to such Lender
of the principal of or the interest on the Revolving Credit Advances or any
other amounts payable to such Lender hereunder, or (iii) impose or increase
or render applicable any special or supplemental deposit or reserve or
similar requirements or assessment against assets held by, or deposits in
or for the account of, or any liabilities of, or loans by an office of such
Lender in respect of the transactions contemplated herein, or (iv) impose
on such Lender any other condition or requirement with respect to this
Agreement or any Revolving Credit Advance, and the result of any of the
foregoing is (A) to increase the cost to such Lender of making, funding or
maintaining all or any part of the Revolving Credit Advances or its
commitment hereunder, or (B) to reduce the amount of principal, interest or
other amount payable to such Lender hereunder, or (C) to require such
Lender to make any payment or to forego any interest or other sum payable
hereunder, the amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable or deemed
received by such Lender from the Borrower hereunder, then, and in each such
case not otherwise provided for hereunder, the Borrower will upon demand
made by such Lender promptly following such Lender's receipt of notice
pertaining to such matters accompanied by calculations thereof in
reasonable detail, pay to such Lender such additional amounts as will be
sufficient to compensate such Lender for such additional cost, reduction,
payment or foregone interest or other sum; provided that the foregoing
provisions of this sentence shall not apply in the case of any additional
cost, reduction, payment or foregone interest or other sum resulting from
any taxes charged upon or by reference to the overall net income, profits
or gains of any Lender. In determining the additional amounts payable
hereunder, the Lenders may use any reasonable method of averaging,
allocating or attributing such additional costs, reductions, payments,
foregone interest or other sums among their respective customers.
(b) Anything herein to the contrary notwithstanding, if, after the
date hereof, any Lender shall have determined that any present or future
applicable law, rule, regulation, guideline, directive or request (whether
or not having force of law), including without limitation any change
according to a prescribed schedule of increasing requirements, whether or
not known or in effect as of the date hereof, regarding capital
requirements for banks or bank holding companies generally, or any change
therein or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender with
any of the foregoing, either imposes a requirement upon such Lender to
allocate additional capital resources or increases such Lender's
requirement to allocate capital resources or such Lender's commitment to
make, or to such Lender's maintenance of, the Revolving Credit Advances
hereunder, which has or would have the effect of reducing the return on
such Lender's capital to a level below that which such Lender could have
achieved (taking into consideration such Lender's then existing policies
with respect to capital adequacy and assuming full utilization of such
Lender's capital) but for such applicability, change, interpretation,
administration or compliance, by any amount deemed by such Lender to be
material, such Lender shall promptly after its determination of such
occurrence give notice thereof to the Borrower. The Borrower and such
Lender shall thereafter attempt to negotiate in good faith an adjustment to
the compensation payable hereunder which will adequately compensate such
Lender for such reduction. If the Borrower and such Lender are unable to
agree to such adjustment within thirty (30) days of the day on which the
Borrower receives such notice, then commencing on the date of such notice
(but not earlier than the effective date of any such applicability, change,
interpretation, administration or compliance), the fees payable hereunder
shall increase by an amount which will, in such Lender's reasonable
determination, evidenced by calculations in reasonable detail furnished to
the Borrower, compensate such Lender for such reduction, such Lender's
determination of such amount to be conclusive and binding upon the
Borrower, absent manifest error. In determining such amount, such Lender
may use any reasonable methods of averaging, allocating or attributing such
reduction among its customers.
Section 2.12 Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise
be set the Agent shall have determined in good faith (which determination
shall be final and conclusive) that adequate and fair means do not exist
for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith
(which determination shall be final and conclusive) that
(i) the implementation of LIBOR Pricing Option has been made
impracticable or unlawful by (A) the occurrence of a contingency that
materially and adversely affects the London interbank market, or (B)
compliance by any Lender in good faith with any applicable law or
governmental regulation, guideline or order or interpretation or
change thereof by any governmental authority charged with the
interpretation or administration thereof or with any request or
directive of any such governmental authority (whether or not having
the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective
cost to the Lenders for U.S. dollar deposits in the London interbank
market, as applicable for deposits in which they regularly
participate;
then, and in such event, the Agent shall forthwith so notify the Borrower
thereof. Until the Agent notifies the Borrower that the circumstances
giving rise to such notice no longer apply, the obligation of the Lenders
and the Agent to allow election by the Borrower of a LIBOR Pricing Option
shall be suspended. If at the time the Agent so notifies the Borrower, the
Borrower has previously given the Agent a Pricing Notice with respect to a
LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has
not yet gone into effect, such Pricing Notice shall automatically be deemed
to be withdrawn and be of no force or effect. Upon such date as shall be
specified in such notice (which shall not be earlier than the date such
notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate
Loans shall be terminated and the Borrower shall pay all interest due on
such LIBOR Rate Loans and any amounts required to be paid pursuant to
Section 4.3.
Section 2.13. Use of Proceeds. The proceeds of all Revolving Credit
Advances outstanding on the date hereof have been used by the Borrowers to
facilitate payments required in connection with the Initial Reorganization,
to repay the Cohen Notes (as such term is defined in the Original Credit
Agreement), and for general working capital purposes not in excess of
$10,000,000. At no time shall more than $10,000,000 of the proceeds of all
outstanding Revolving Credit Advances be used for working capital purposes
of the Borrowers. The Borrower will not, directly or indirectly, use any
part of such proceeds for the purpose of purchasing or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System or to extend credit to any Person for the purpose of
purchasing or carrying any such margin stock.
Section 2.14 New Borrower Assumption.
(a) Effective as of the Restatement Effective Date, the Existing
Borrower hereby assigns, and the New Borrower hereby assumes, all of the
rights and obligations of the Existing Borrower with respect to $50,000,000
of the "Revolving Credit Advances" (as defined in the Original Agreement)
outstanding on such date (such amount, the "Assumed Advance", and such
assignment and assumption, the "New Borrower Assumption"). Such New
Borrower Assumption shall be and shall be deemed to be, for all purposes
hereunder (including, without limitation, Section 3.2 below) and under the
other Lender Agreements, a Revolving Credit Advance and a Loan made to the
New Borrower pursuant to Article 2 hereof on and as of the Restatement
Effective Date, subject in all cases to the terms and conditions hereof and
thereof, as applicable.
(b) The Agent and the Existing Lender hereby consent to the New
Borrower Assumption and release the Existing Borrower from all of its
obligations with respect to the amount of Revolving Credit Advances so
assumed; provided that nothing herein shall release the Existing Borrower
from any liability with respect to the Assumed Advance accrued prior to the
date hereof or arising under the Original Credit Agreement (including
Section 14.5 of the Original Credit Agreement), if such liability is not
assumed (or is deemed to not be assumed or to not have been assumed) by the
New Borrower. Each Borrower shall be liable severally, and not jointly with
the other Borrower, for the Loans made to such Borrower under this
Agreement, and any and all amounts due with respect thereto, including,
without limitation, interest accrued thereon.
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES
Section 3.1. Conditions to First Revolving Credit Advance. The
Lenders' obligations to make the first Revolving Credit Advance shall be
subject to compliance by the Borrower with their agreements contained in
this Agreement, and to the condition precedent that the Lenders shall have
received each of the following, in form and substance satisfactory to the
Agent and its counsel or in the form attached hereto as an Exhibit, as the
case may be:
(a) The Revolving Credit Notes duly executed by the Borrower.
(b) Copies of the resolutions of the general partner of the
Borrower authorizing the execution, delivery and performance of this
Agreement, the Revolving Credit Notes and the other Lender Agreements
to which the Borrower is a party, certified by the Secretary or an
Assistant Secretary (or Clerk or Assistant Clerk) of the Borrower
(which certificate shall state that such resolutions are in full
force and effect).
(c) A certificate of the Secretary or an Assistant Secretary
(or Clerk or Assistant Clerk) of the Borrower certifying the name and
signatures of the officers of the Borrower authorized to sign this
Agreement, the Revolving Credit Notes, the other Lender Agreements to
which the Borrower is a party and the other documents to be delivered
by the Borrower hereunder.
(d) Copies of the resolutions of the Board of Directors of
CCC and BCCLP authorizing the execution, delivery and performance of
the Lender Agreements to which CCC or BCCLP is a party, certified by
the Secretary or an Assistant Secretary (or Clerk or Assistant Clerk)
of CCC or BCCLP (which certificate shall state that such resolutions
are in full force and effect).
(e) A certificate of the Secretary or an Assistant Secretary
(or Clerk or Assistant Clerk) of CCC and BCCLP certifying the name
and signatures of the officers of CCC and BCCLP authorized to sign
the Lender Agreements to which CCC or BCCLP is a party and the other
documents to be delivered by CCC or BCCLP hereunder.
(f) Certificates of legal existence and corporate good
standing for the Borrower, BCCLP and CCC of recent date issued by the
appropriate Delaware governmental authorities.
(g) Certificate of tax good standing for the Borrower, BCCLP
and CCC of recent date issued by the appropriate Delaware
governmental authorities.
(h) The opinion of Choate Hall & Stewart, counsel to the
Borrower, BCCLP and CCC, dated the date of execution of this
Agreement, in substantially the form of Exhibit G attached hereto.
(i) A certificate of a duly authorized officer of the
Borrower, dated the date of the first Revolving Credit Advances, to
the effect that all conditions precedent on the part of the Borrower
to the execution and delivery hereof and the making of the first
Revolving Credit Advances have been satisfied.
(j) A Compliance Certificate dated the date of the first
Revolving Credit Advances.
(k) The CCC Pledge Agreement duly executed by CCC and the
BCCLP Credit Support Agreement duly executed by BCCLP.
(l) Evidence of solvency of the Borrower.
(m) Evidence of the Agent's perfection of the security
interest in the CCC Pledged Collateral (as defined in the CCC Pledge
Agreement) satisfactory in all respects to the Agent.
(n) Payment of the Lender's one-time facility fee of $150,000
which shall be earned in full by the Lender on the Closing Date.
(o) Such other documents, certificates and opinions as the
Agent or the Lenders may reasonably request.
Section 3.2. Conditions to All Revolving Credit Advances. The
Lenders' obligations to make any Revolving Credit Advances pursuant to this
Agreement shall be subject to compliance by the Borrower with its
agreements contained in this Agreement and each other Lender Agreement, and
to the satisfaction, at or before the making of each Revolving Credit
Advance, of all of the following conditions precedent:
(a) The representations and warranties herein and those made
by or on behalf of the Borrower in any other Lender Agreement shall
be correct as of the date on which any Revolving Credit Advance is
made, with the same effect as if made at and as of such time (except
as to transactions permitted hereunder and described in a Compliance
Certificate previously delivered to the Agent and except that the
references in Article 5 to the 2000 Financial Statements shall be
deemed to refer to the most recent annual audited consolidated
financial statements of the Borrower and its Subsidiaries furnished
to the Agent.)
(b) On the date of any Revolving Credit Advances hereunder,
there shall exist no Default.
(c) The making of the requested Revolving Credit Advances
shall not be prohibited by any law or governmental order or
regulation applicable to the Lenders or to the Borrower, and all
necessary consents, approvals and authorizations of any Person for
any such Revolving Credit Advances shall have been obtained.
Section 3.3. Conditions to Restatement Effective Date.
(a) This Agreement shall be effective on the date on which:
(i) before and after giving effect to this Agreement and the
2000 Reorganization and other transactions contemplated hereby, (A)
the representations and warranties of each Borrower under Article 5
hereof shall be true and correct, (B) no default or event of default
shall have occurred and be continuing under the 1998 Subordinated
Debentures, and (C) no Default or Event of Default under the Original
Credit Agreement shall have occurred and be continuing; and
(ii) the Agent and the Lenders shall be reasonably satisfied
with the terms of the 2000 Reorganization; and
(iii) the Lenders shall have received each of the following, in
form and substance satisfactory to the Agent and its counsel or in
the form attached hereto as an Exhibit, as the case may be:
(A) The Revolving Credit Notes, duly executed by the
Borrowers.
(B) The Consent and Amendment to the Collateral
Documents and the Credit Support Agreements, in substantially
the form of Exhibit E hereto, duly executed by each of the Loan
Parties.
(C) Revised Schedules to this Agreement from each
Borrower.
(D) A certificate of the Secretary or an Assistant
Secretary (or Clerk or Assistant Clerk) of the Existing
Borrower, certifying (I) the full force and effect of true and
complete copies of the resolutions of the general partner of
the Existing Borrower authorizing the execution, delivery and
performance of this Agreement, the Revolving Credit Notes and
the other Lender Agreements to which the Existing Borrower is
or is to be a party and (II the name and signatures of the
officers of the Existing Borrower authorized to sign this
Agreement, the Revolving Credit Notes, the other Lender
Agreements to which the Existing Borrower is or is to be a
party and the other documents to be delivered by the Existing
Borrower hereunder.
(E) A certificate of the Secretary or an Assistant
Secretary (or Clerk or Assistant Clerk) of the New Borrower,
certifying (I) the full force and effect of true and complete
copies of the resolutions of the general partner of the New
Borrower authorizing the execution, delivery and performance of
this Agreement, the Revolving Credit Notes and the other Lender
Agreements to which the New Borrower is or is to be a party and
(II the name and signatures of the officers of the New Borrower
authorized to sign this Agreement, the Revolving Credit Notes
and the other Lender Agreements to which the New Borrower is or
is to be a party and the other documents to be delivered by the
New Borrower hereunder.
(F) True and correct copies of each agreement, document
and instrument executed by any Borrower or delivered by any
Borrower, in connection with the Holdings Distribution or any
other aspect of the 2000 Reorganization (collectively, the
"2000 Reorganization Documents"), certified by the Secretary or
Assistant Secretary of either Borrower which 2000
Reorganization Document shall be reasonably satisfactory in
form and substance to the Agent.
(G) A copy of the Certificate of Limited Partnership of
each Borrower certified by the Secretary of State of the State
of Delaware dated reasonably proximate to the Restatement
Effective Date.
(H) Certificates of legal existence and corporate good
standing for each Borrower issued by the Secretary of State or
other appropriate governmental authority, of the State of
Delaware.
(I) Certificate of tax good standing for each Borrower
of recent date issued by the appropriate Delaware governmental
authorities.
(J) A certificate of a duly authorized officer of each
Borrower, dated the Restatement Effective Date, certifying the
matters set forth in Section 3.3(a) above and that all other
conditions precedent on the part of such Borrower to the
execution and delivery hereof and Restatement Effective Date
have been duly performed or otherwise satisfied.
(K) A Compliance Certificate of each Borrower dated the
Restatement Effective Date.
(L) Evidence of the solvency of each Borrower.
(M) The opinion of Gibson, Dunn & Crutcher LLP, counsel
to the Loan Parties, dated the date of execution of this
Agreement, in substantially the form of Exhibit F attached
hereto.
(N) Such other documents, certificates and opinions as
the Agent or the Existing Lender may reasonably request.
(O) Payment of the Agent's one-time amendment fee of
$12,500, which fee shall be earned in full by the Agent on the
Restatement Effective Date.
(P) The Subordination Agreement dated as of the date
hereof made by the Existing Borrower and BCLP II GP, Inc. in
favor of the Lenders and the Agent in form and substance
reasonably acceptable to the Agent, together with the BCLP II
Subordinated Note.
(b) The Existing Lender hereby agrees to return to the Existing
Borrower the promissory note made thereby in favor of the Existing Lender
under the Original Credit Agreement (or an affidavit of lost note in form
and substance reasonably acceptable to the Existing Borrower), after the
Existing Lender receives the Revolving Credit Notes. Notwithstanding the
failure of the Existing Lender to so deliver such promissory note, such
promissory note is and shall be deemed to be cancelled as of the
Restatement Effective Date.
ARTICLE 4. PAYMENT AND REPAYMENT
Section 4.1. Mandatory Prepayment. If at any time the aggregate
outstanding principal balance of all Revolving Credit Advances made
hereunder exceeds the lesser of (i) the Borrowing Base or (ii) the Maximum
Revolving Credit Amount, the Borrower shall immediately repay to the Agent
for the ratable accounts of the Lenders an amount equal to such excess;
provided, however, that prior to the New Borrower Release Date, such excess
amount shall be repaid by the Borrowers pro rata based on the outstanding
Revolving Credit Advances of each Borrower.
Section 4.2. Voluntary Prepayments.
(a) The Borrower may make prepayments to the Agent for the ratable
accounts of the Lenders of any outstanding principal amount of the
Revolving Credit Advances equal to $100,000 or an integral multiple thereof
which are Base Rate Loans in accordance with Section 4.3 at any time prior
to 11:00 a.m. (Boston time) on any Business Day without premium or penalty.
(b) The Borrower may make prepayments to the Agent for the ratable
accounts of the Lenders of any Revolving Credit Advances equal to
$1,000,000 or an integral multiple of $100,000 in excess thereof which are
LIBOR Rate Loans in accordance with Section 4.3 at any time prior to 11:00
a.m. (Boston time) on any Business Day subject, however, to the premiums
and penalties set forth in Section 4.6.
Section 4.3. Payment and Interest Cutoff. Notice of each prepayment
pursuant to Section 4.2 shall be given to the Agent (a) in the case of
prepayment of Base Rate Loans, not later than 11:00 a.m. (Boston time) on
the date of payment, and (b) in the case of prepayment of or LIBOR Rate
Loans on any day other than the last day of the Interest Period applicable
thereto, not later than 11:00 a.m. (Boston time) two (2) Business Days
prior to the proposed date of payment, and, in each case, shall specify the
total principal amount of the Revolving Credit Advances to be paid on such
date. Notice of prepayment having been given in compliance with this
Section 4.3, the amount specified to be prepaid shall become due and
payable on the date specified for prepayment and from and after said date
(unless the Borrower shall default in the payment thereof) interest thereon
shall cease to accrue. Unpaid interest on the principal amount of any
Revolving Credit Advances so prepaid accrued to the date of prepayment
shall be due on the date of prepayment.
Section 4.4. Payment or Other Actions on Non-Business Days. Whenever
any payment to be made 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 or fees, as the case may be. In the
case of any other action the last day for performance of which shall be a
day other than a Business Day, the date for performance shall be extended
to the next succeeding Business Day.
Section 4.5. Method and Timing of Payments.
(a) All payments required to be made pursuant to the provisions of
this Agreement and any other Lender Agreement, and all prepayments pursuant
to Section 4.1, may be charged by the Agent against the Borrower's accounts
with the Agent. The Borrower hereby authorizes the Agent and the Lenders,
without notice to the Borrower, to charge against any account of the
Borrower with the Agent or such Lender an amount equal to the accrued
interest, principal and other amounts from time to time due and payable to
the Agent and the Lenders hereunder and under all other Lender Agreements.
(b) The Borrower shall make each payment to be made by it hereunder
not later than 11:00 a.m. (Boston time) on the day when due in lawful money
of the United States to the Agent at its address set forth in Section 14.2
in immediately available funds. The Agent will, after its receipt thereof,
distribute like funds relating to the payment of principal, interest or any
other amounts payable hereunder ratably to the Lenders in accordance with
their respective Commitment Percentages. Any payment made by the Borrower
to the Agent under this Agreement or under the Notes in the manner provided
in this Agreement shall be deemed to be a payment to each of the respective
Lenders, unless the provisions of this Agreement expressly provide that any
such payment shall be solely for the account of the Agent or any specific
Lender.
Section 4.6. Payments Not at End of Interest Period. If the Borrower
for any reason makes any payment of principal with respect to any LIBOR
Rate Loan on any day other than the last day of the Interest Period
applicable to such LIBOR Rate Loan, including without limitation by reason
of acceleration, or fails to borrow a LIBOR Rate Loan after electing a
LIBOR Pricing Option with respect thereto pursuant to Section 2.1(a) or
2.4, the Borrower shall pay to the Agent, for the ratable account of the
Lenders, any amounts required to compensate the Lenders for any additional
losses, costs or expenses which they may reasonably incur as a result of
such payment or failure to borrow, including without limitation, any loss,
including lost profits, costs or expenses incurred by reason of the
liquidation, reutilization or reemployment of deposits or other funds
acquired by the Lenders to fund or maintain such Revolving Credit Advances.
Such compensation may include, without limitation, an amount equal to (a)
the amount of interest which would have accrued on the amount so paid or
not borrowed, for the period from the date of such payment or failure to
borrow, to the last day of the then current Interest Period for such
Revolving Credit Advance (or, in the case of a failure to borrow, to the
last day of the Interest Period for the Revolving Credit Advance which
would have commenced on the date of such failure to borrow), at the
applicable rate of interest for such Revolving Credit Advance provided for
herein minus (b) the amount of interest (as reasonably determined by the
Agent), which would accrue and become payable to the Lenders during such
period on the principal repaid or not borrowed if the Lenders, following
such repayment or failure to borrow, were to reinvest such principal in
U.S. Treasury securities selected by the Agent in an amount equal (as
nearly as may be) to the principal so repaid or not borrowed and having a
term equal (as near as may be) to such period. The Borrower shall pay such
amount upon presentation by the Agent of a statement setting forth the
amount and the Agent's calculation thereof pursuant hereto, which statement
shall be deemed true and correct absent manifest error.
Section 4.7. Currency. All payments and prepayments provided for
under this Agreement shall be made in lawful currency of the United States
of America in immediately available funds.
Section 4.8. New Borrower Release.
(a) The New Borrower may pay in full the outstanding principal
under the New Borrower Note on any date in accordance with this Article IV,
whereupon, at the request of the New Borrower and subject to the following
conditions, the Agent and the Lenders shall release the New Borrower from
its agreements, covenants, rights and obligations hereunder and under the
New Borrower Note and terminate the revolving credit facility made
available to the New Borrower hereunder (such release, the "New Borrower
Release"; and the later date to occur of such payment and the satisfaction
of the following conditions precedent, the "New Borrower Release Date"):
(i) The New Borrower shall deliver a notice of the principal
amount to be prepaid, the date of such prepayment and its prepayment
thereof under this Section 4.8 to the Agent at least five Business
Days prior to such payment date; and
(ii) The New Borrower shall deliver to the Agent and the
Lenders the following certificates:
(A) a Compliance Certificate of the Existing Borrower,
dated the New Borrower Release Date duly executed by such
Borrower; and
(B) a certificate of the chief executive officer or
president of the Existing Borrower, dated the New Borrower
Release Date, certifying that (A) before and after giving
effect to the New Borrower Release, the representations and
warranties of such Borrower are true and correct as if made on
such date; and (B) no Default or Event of Default has occurred
and is continuing;
provided, however, that the New Borrower shall not be released pursuant to
this Section 4.8 from its obligations (as a Borrower or otherwise), and nor
shall the New Borrower's rights be terminated, under Section 14.5 hereof
for any cost or expense, or any damages, losses, settlement payments,
obligations, liabilities and claims, or any indemnity therefor, arising
hereunder, under any other Lender Agreements or under the New Borrower
Note, or in connection herewith, with any other Lender Agreement, or with
the New Borrower Note, prior to the New Borrower Release Date; provided
further, however, that the New Borrower Release shall not and shall not be
deemed to be a release of BCLP in its capacity as a Credit Support
Affiliate or otherwise as Loan Party (other than in its capacity as a
Borrower as described above), nor shall any other Loan Party be released or
deemed to be released from its obligations under any Lender Agreement to
which such Loan Party is party.
(b) The Existing Borrower hereby acknowledges, confirms and agrees
that in no event shall the Existing Borrower be released under this Section
4.8 in connection with the New Borrower Release from any liability or
obligation hereunder or under any other Lender Agreement.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make the Revolving Credit Advances
as contemplated hereby, each Borrower hereby makes the following
representations and warranties with respect to itself:
Section 5.1. Partnership Existence, Charter Documents, Etc. The
Borrower is a limited partnership validly formed, legally existing and in
good standing under the laws of Delaware and has partnership power to own
its properties and conduct its business as now conducted and as proposed to
be conducted by it. Certified copies of the Partnership Agreement of the
Borrower have been delivered to the Lenders and are true, accurate and
complete as of the date hereof.
Section 5.2. Principal Place of Business; Location of Records.
Borrower's principal place of business is located at 151 Merrimac Street,
Boston, Massachusetts 02114, and Borrower has not had any other principal
place of business during the last six months. All of the books and records
or true and complete copies thereof relating to the accounts and contracts
of Borrower are and will be kept at such location.
Section 5.3. Qualification. Borrower is duly qualified, licensed and
authorized to do business and is in good standing as a foreign limited
partnership corporation in each jurisdiction where its failure to be so
qualified would have a Material Adverse Effect.
Section 5.4. Subsidiaries. The Borrower has the Subsidiaries listed
in Schedule 5.4. All of the issued and outstanding capital stock of each
Subsidiary listed on Schedule 5.4 is owned of record and beneficially as
described therein.
Section 5.5. Power. The execution, delivery and performance of this
Agreement, the Revolving Credit Notes and all other Lender Agreements and
other documents delivered or to be delivered by the Borrower to the Agent
or the Lenders, and the incurrence of Indebtedness to the Lenders hereunder
or thereunder, now or hereafter owing:
(a) are within the corporate or partnership powers of the
Borrower, having been duly authorized by the Board of Directors of
its general partner or other similar governing body, and, if required
by law, by their charter documents or by their By-Laws, by their
partners or stockholders;
(b) do not require any approval or consent of, or filing
with, any governmental agency or other Person (or such approvals and
consents have been obtained and delivered to the Lenders) and are not
in contravention of law or the terms of the Partnership Agreement of
the Borrower or any amendment thereof;
(c) do not and will not
(i) result in a breach of or constitute a default under
any indenture or loan or credit agreement or any other
agreement, lease or instrument to which any of the Borrower is
a party or by which the Borrower or any of its properties is
bound or affected,
(ii) result in, or require, the creation or imposition
of any mortgage, deed of trust, pledge, lien, security interest
or other charge or encumbrance of any nature on any property
now owned or hereafter acquired by the Borrower, except as
provided in the Lender Agreements, or
(iii) result in a violation of or default under any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award having applicability to the Borrower or
any Subsidiary, or to any of their respective properties.
Section 5.6. Valid and Binding Obligations. This Agreement, the
Revolving Credit Notes, and all the other Lender Agreements executed in
connection herewith and therewith constitute, or will constitute when
delivered, the valid and binding obligations of the Borrower, enforceable
in accordance with their respective terms, except as the enforceability
thereof may be subject to bankruptcy, insolvency, moratorium and other laws
affecting the rights and remedies of creditors and secured parties and to
the exercise of judicial discretion in accordance with general equitable
principles.
Section 5.7. Other Agreements. Borrower is not a party to any
indenture, loan or credit agreement, or any lease or other agreement or
instrument, or subject to any partnership restriction, which is likely to
have a Material Adverse Effect, or which restricts the ability of Borrower
to carry out any of the provisions of this Agreement, the Revolving Credit
Notes or any of the Lender Agreements executed in connection herewith and
therewith. The Lenders acknowledge that Borrower is a party to the Celtics
Credit Agreement.
Section 5.8. Payment of Taxes. The Borrower has filed all tax
returns which are required to be filed by it and has paid, or made adequate
provision for the payment of, all taxes which have or may become due
pursuant to said returns or to assessments received. The Borrower is and
always has been a partnership for federal and state income tax purposes.
The Borrower knows of no material additional assessments since such date
for which adequate reserves appearing in the balance sheet contained in the
2000 Financial Statements have not been established. The Borrower has made
adequate provision for all current taxes, and to the best knowledge of the
Borrower there will not be any additional assessments for any fiscal
periods prior to and including that which ended on the date of said balance
sheet in excess of the amounts reserved therefor.
Section 5.9. Financial Statements. All balance sheets, statements
and other financial information furnished to the Lenders in connection with
this Agreement and the transactions contemplated hereby (each of which is
listed on Schedule 5.9), including, without limitation, the 2000 Financial
Statements, have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
(except for normal year-end adjustments and for the absence of footnotes
with interim statements) and present fairly the consolidated financial
condition of the Borrower and all such information so furnished was true,
correct and complete as of the date thereof.
Section 5.10. Other Materials Furnished. No written information,
exhibits, memoranda or reports furnished to the Lenders by or on behalf of
the Borrower in connection with the negotiation of this Agreement contains
any material misstatement of fact or omits to state a material fact
necessary to make the statements contained therein not misleading.
Section 5.11. Equity Interests. There are presently issued by the
Borrower and outstanding the partnership interests indicated on Schedule
5.11. The Borrower has received the consideration for which such
partnership interests were authorized to be issued and has otherwise
complied with all legal requirements relating to the authorization and
issuance of such partnership interests and all such partnership interests
are validly issued, fully paid and non-assessable. The Borrower has no
other equity interests outstanding.
Section 5.12. Changes in Condition. Since the date of the balance
sheet contained in the 2000 Financial Statements, there has been no
material adverse change in the business or assets or in the condition,
financial or otherwise, of Borrower, and other than the proposed Borrower
Reorganization, Borrower has not entered into any transaction outside of
the ordinary course of business which is material to Borrower. Borrower has
no contingent liabilities of any material amount which are not referred to
in the 2000 Financial Statements.
Section 5.13. Assets, Licenses, Patents, Trademarks, Etc.
(a) The Borrower has good and marketable title to, or valid
leasehold interests in, all of its assets, real and personal, including the
assets carried on its books and reflected in the 2000 Financial Statements,
subject to no liens, charges or encumbrances, except for (i) liens, charges
and encumbrances described in Schedule 5.13 and permitted by Section 9.2
hereof, and (ii) assets sold, abandoned or otherwise disposed of in the
ordinary course of business.
(b) The Borrower owns all material licenses, patents, patent
applications, copyrights, service marks, trademarks, trademark
applications, and trade names necessary to continue to conduct its business
as heretofore conducted by it, now conducted by it and proposed to be
conducted by it, each of which is listed, together with Patent and
Trademark Office application or registration numbers, where applicable, on
Schedule 5.13 hereto. The Borrower conducts its business without
infringement or claim of infringement of any license, patent, copyright,
service mark, trademark, trade name, trade secret or other intellectual
property right of others. To the best knowledge of the Borrower, there is
no infringement or claim of infringement by others of any material license,
patent, copyright, service mark, trademark, trade name, trade secret or
other intellectual property right of the Borrower.
Section 5.14. Litigation. There is no litigation, at law or in
equity, or any proceeding before any federal, state, provincial or
municipal board or other governmental or administrative agency pending or,
to the knowledge of Borrower, threatened, or any basis therefor, which
involves a material risk of any judgment or liability which could result in
any material adverse change in the business or assets or in the condition,
financial or otherwise, of the Borrower, and no judgment, decree, or order
of any federal, state, provincial or municipal court, board or other
governmental or administrative agency has been issued against the Borrower
which has or may have a Material Adverse Effect.
Section 5.15. Pension Plans. No employee benefit plan established or
maintained by the Borrower or any other Person a member of the same
"control group," as the Borrower (a "Pension Affiliate"), within the
meaning of Section 302(f)(6)(b) of ERISA, (including any multi-employer
plan to which the Borrower contributes) which is subject to Part 3 of
Subtitle B of Title I of the ERISA, had a material accumulated funding
deficiency (as such term is defined in Section 302 of ERISA) as of the last
day of the most recent fiscal year of such plan ended prior to the date
hereof, or would have had an accumulated funding deficiency (as so defined)
on such day if such year were the first year of such plan to which Part 3
of Subtitle B of Title I of ERISA applied, and no material liability under
Title IV of ERISA has been, or is expected by the Borrower to be, incurred
with respect to any such plan by the Borrower or any Pension Affiliate. The
execution, delivery and performance by the Borrower of this Agreement and
the other Lender Agreements executed on the date hereof will not involve
any prohibited transaction within the meaning of ERISA or Section 4975 of
the Internal Revenue Code. The Borrower has no Pension Plan other than
those described on Schedule 5.15.
Section 5.16. Outstanding Indebtedness.
(a) The outstanding amount of Indebtedness for borrowed money,
including Capitalized Lease Obligations and Guaranties of borrowed money,
of the Borrower as of the date hereof, is correctly set forth in Schedule
5.16 hereto, and said Schedule correctly describes the credit agreements,
guaranties, leases and other instruments pursuant to which such
Indebtedness has been incurred and all liens, charges and encumbrances
securing such Indebtedness. Said schedule also describes all agreements and
other arrangements pursuant to which the Borrower may borrow any money.
(b) No default or event of default exists, or event that, with the
passing of time, the giving of notice, or both, will be a default or event
of default under the 1998 Subordinated Debentures.
Section 5.17. Environmental Matters. Except as set forth in Schedule
5.17:
(a) Neither the Borrower nor any operator of any of its owned
properties is in violation, or to the knowledge of the Borrower is in alleged
violation, of any Environmental Law, which violation would have a Material
Adverse Effect.
(b) Neither the Borrower nor any operator of any of its owned
properties has received notice from any third party, including without
limitation any federal, state, county, or local governmental authority, (i)
that it has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
as amended ("CERCLA") or any equivalent state law, with respect to any site
or location; (ii) that any hazardous waste, as defined in 42 U.S.C.
Section 6903(5), any hazardous substances, as defined in 42 U.S.C.
Section 9601(14), any pollutant or contaminant, as defined in 42 U.S.C.
Section 9601(33), or any toxic substance, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which it has generated, transported or disposed of, has been
found at any site at which a federal, state, county, or local agency or other
third party has conducted or has ordered the Borrower or another third party
or parties (e.g. a committee of potentially responsible parties) to conduct a
remedial investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint (contingent or otherwise) or legal
or administrative proceeding arising out of any actual or alleged release or
threatened release of Hazardous Substances. For purposes of this Agreement,
"release" means any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping of Hazardous Substances into the environment.
(c) (i) The Borrower and each operator of any real property owned or
operated by the Borrower is in compliance, in all material respects, with all
provisions of the Environmental Laws relating to the handling, manufacturing,
processing, generation, storage or disposal of any Hazardous Substances; (ii)
to the best knowledge of the Borrower, no portion of property owned, operated
or controlled by the Borrower has been used for the handling, manufacturing,
processing, generation, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; (iii) to the best knowledge of
the Borrower, there have been no releases or threatened releases of Hazardous
Substances on, upon, into or from any property owned, operated or controlled
by the Borrower, which releases could have a Material Adverse Effect; (iv) to
the best knowledge of the Borrower, there have been no releases of Hazardous
Substances on, upon, from or into any real property in the vicinity of the
real properties owned, operated or controlled by the Borrower which, through
soil or groundwater contamination, may have come to be located on the
properties of the Borrower; (v) to the best knowledge of the Borrower, there
have been no releases of Hazardous Substances on, upon, from or into any real
property formerly but no longer owned, operated or controlled by the Borrower.
(d) None of the properties of the Borrower is or shall be subject to
any applicable environmental cleanup responsibility law or environmental
restrictive transfer law or regulation by virtue of the transactions set
forth herein and contemplated hereby.
Section 5.18. Governmental Regulations. Neither Borrower nor any
Affiliate of the Borrower is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Investment Company
Act of 1940, or is a common carrier under the Interstate Commerce Act, or
is engaged in a business or activity subject to any statute or regulation
which regulates the incurring by the Borrower of Indebtedness for borrowed
money, including statutes or regulations relating to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone or
telegraph or other public utility services.
Section 5.19. Margin Stock. Neither the Borrower nor any Subsidiary
owns any "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, or any regulations,
interpretations or rulings thereunder, nor is the Borrower engaged
principally or as one of its important activities in extending credit which
is used for the purpose of purchasing or carrying margin stock.
ARTICLE 6. REPORTS AND INFORMATION
Section 6.1. Quarterly Financial Statements and Reports. As soon as
available, and in any event within seventy-five (75) days after the end of
each of the first three quarters of each fiscal year of the Borrower, the
Borrower shall furnish to the Agent and each Lender: (i) consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as of the
end of such quarter and consolidated and consolidating statements of
income, shareholders' equity and cash flow of the Borrower and its
Subsidiaries for such quarter and for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding fiscal year, all in reasonable
detail; and (ii) a Compliance Certificate.
Section 6.2. Annual Financial Statements. As soon as available, but
in any event within one-hundred ten (110) days after the end of each fiscal
year of the Borrower, the Borrower shall furnish to the Agent and each
Lender: (a) consolidated and consolidating balance sheets of the Borrower
and its Subsidiaries as of the end of such fiscal year and consolidated and
consolidating statements of income, changes in partners' capital and
changes in cash flows of the Borrower and its Subsidiaries for such fiscal
year, in each case (other than the consolidating statements) reported on by
Ernst & Young, or other independent certified public accountants of
recognized national standing acceptable to the Lenders, which report shall
express, without reliance upon others, a positive opinion regarding the
fairness of the presentation of such financial statements in accordance
with generally accepted accounting principles consistently applied, said
report to be without qualification, except in cases of unresolved
litigation and accounting changes with which such accountants concur,
together with the statement of such accountants that they have caused the
provisions of this Agreement to be reviewed and that nothing has come to
their attention to lead them to believe that any Default exists hereunder
or specifying any Default and the nature thereof; and (b) a Compliance
Certificate.
Section 6.3. Notice of Defaults. As soon as possible, and in any
event within five (5) days after the occurrence of each Default, the
Borrower shall furnish to the Agent and each Lender the statement of its
chief executive officer or chief financial officer setting forth details of
such Default and the action which the Borrower has taken or proposes to
take with respect thereto.
Section 6.4. Notice of Litigation. Promptly after the commencement
thereof, the Borrower shall furnish to the Agent and each Lender written
notice of all actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower, which, if
adversely determined, would have a Material Adverse Effect.
Section 6.5. Communications with Others. The Borrower shall furnish
to the Agent and each Lender promptly (and in any event within five (5)
days) after the filing thereof (a) copies of all regular, periodic and
special reports and all registration statements which the Borrower files
and (b) any Schedules 13D or 13G which beneficial owners of the Borrower's
equity securities file with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor, or with any
national or regional securities exchange.
Section 6.6. Reportable Events. At any time that the Borrower has a
Pension Plan, the Borrower shall furnish to the Agent and each Lender, as
soon as possible, but in any event within thirty (30) days after the
Borrower knows or has reason to know that any Reportable Event with respect
to any Pension Plan has occurred, the statement of its chief executive
officer or chief financial officer setting forth the details of such
Reportable Event and the action which the Borrower has taken or proposes to
take with respect thereto, together with a copy of the notice of such
Reportable Event to the Pension Benefit Guaranty Corporation.
Section 6.7. Reports to other Creditors. Promptly after filing the
same, the Borrower shall furnish to the Agent and each Lender copies of any
compliance certificate and other information furnished to any other holder
of the securities (including debt obligations) of the Borrower pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Agent or the Lenders pursuant to
any other provision of this Agreement.
Section 6.8. Communications with Independent Public Accountants. At
any reasonable time and from time to time, the Borrower shall provide the
Agent and the Lenders and any agents or representatives of the Lenders
access to the independent public accountants of the Borrower to discuss the
Borrower's financial condition, including, without limitation any
recommendations of such independent public accountants concerning the
management, finances, financial controls or operations of the Borrower.
Promptly after the receipt thereof, (and in any event within five (5) days)
the Borrower shall furnish to the Agent and each Lender copies of any
written recommendations concerning the management, finances, financial
controls, or operations of any Borrower received from any Borrower's
independent public accountants.
Section 6.9. Environmental Reports. The Borrower shall furnish to
the Agent and each Lender: (a) not later than seven (7) days after notice
thereof, notice of any enforcement actions, or, to the knowledge of the
Borrower, threatened enforcement actions affecting the Borrower by any
Governmental Agency related to Environmental Laws; (b) copies, promptly
after they are received, of all orders, notices of responsibility, notices
of violation, notices of enforcement actions, and assessments, and other
written communications pertaining to any such orders, notices, claims and
assessments received by the Borrower from any Governmental Agency; (c) not
later than seven (7) days after notice thereof, notice of any civil claims
or threatened civil claims affecting the Borrower by any third party
alleging any violation of Environmental Laws or harm to human health or the
environment; (d) copies of all cleanup plans, site assessment reports,
response plans, remedial proposals, or other submissions of the Borrower,
other third party (e.g., committee of potentially responsible parties at a
Superfund site), or any combination of same, submitted to a Governmental
Agency in response to any communication referenced in subsections (a) and
(b) herein simultaneously with their submission to such Governmental
Agency; and (e) from time to time, on request of the Agent, evidence
satisfactory to the Agent of the Borrower's insurance coverage, if any, for
any environmental liabilities.
Section 6.10. Changes in FASB Rules Relating to Participations. At
the request of the Agent (but not more frequently than annually), the
Borrower shall provide the Agent and the Lenders with a letter from its
accountants stating whether there has occurred any change in Financial
Accounting Standards Board Rules, including without limitation Rule 125,
which changes the accounting rules applicable to the accounting treatment
of the Loan Participations (as defined in the CCC Pledge Agreement) by
either CCC or by The Chase Manhattan Bank.
Section 6.11. Miscellaneous. The Borrower shall provide the Agent
and the Lenders with such other information as the Agent or the Lenders may
from time to time request respecting the business, properties, prospects,
condition or operations, financial or otherwise, of the Borrower and its
Subsidiaries, including any unconsolidated Subsidiaries.
ARTICLE 7. FINANCIAL COVENANTS
[Intentionally Omitted].
ARTICLE 8. AFFIRMATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations
shall have been paid in full and the Lenders shall have no commitment
hereunder, each Borrower covenants with respect to itself that it will
comply with the following covenants and provisions:
Section 8.1. Existence and Business. The Borrower will (a) preserve
and maintain its corporate existence and qualify and remain qualified as a
foreign corporation in each jurisdiction in which such qualification is
required, (b) preserve and maintain in full force and effect all material
rights, licenses, patents and franchises, (c) comply in all material
respects with all valid and applicable statutes, rules and regulations
necessary for the conduct of business, and (d) engage only in the
businesses which it is conducting on the date of this Agreement ? namely,
as a holding company holding partnership interests and stock of its
Subsidiaries.
Section 8.2. Taxes and Other Obligations. The Borrower (a) will duly
pay and discharge, or cause to be paid and discharged, before the same
shall become in arrears, all material taxes, assessments and other
governmental charges, imposed upon it and its properties, sales and
activities, or upon the income or profits therefrom, as well as the claims
for labor, materials, or supplies which if unpaid might by law result in a
lien or charge upon any of its properties; provided, however, that the
Borrower may contest any such charges or claims in good faith so long as
(i) an adequate reserve therefor has been established and is maintained if
and as required by generally accepted accounting principles and (ii) no
action to foreclose any such lien has been commenced, and (b) will promptly
pay or cause to be paid when due, or in conformance with customary trade
terms (but not later than 60 days from the due date in the case of trade
debt), all lease obligations, trade debt and all other Indebtedness
incident to its operations. The Borrower shall cause all applicable tax
returns and all amounts due thereunder to be filed and paid, as the case
may be, in order to maintain its good standing with the Internal Revenue
Service and state, local and foreign tax authorities.
Section 8.3. Maintenance of Properties and Leases. The Borrower
shall maintain, keep and preserve all of its properties (tangible and
intangible) in good repair and working order, ordinary wear and tear
excepted. The Borrower shall replace and improve its properties as
necessary for the conduct of its business. The Borrower shall comply in all
material respects with all leases naming it as lessee.
Section 8.4. Insurance. The Borrower (a) will keep its real and
personal property insured by financially sound and reputable insurers
against loss or damage by fire, explosion or hazards, by extended coverage
in an amount sufficient to avoid co-insurance liability, and (b) will
maintain with financially sound and reputable insurers insurance against
other hazards and risks and liability to persons and property to the extent
and in a manner satisfactory to the Lenders, and in any event as customary
for companies in similar businesses similarly situated; provided, however,
that on prior notice to the Agent and the Lenders it may effect workmen's
compensation insurance through an insurance fund operated by such state or
jurisdiction and may also be a self-insurer with respect to workmen's
compensation and with respect to group medical benefits under any medical
benefit plan. On request of the Agent from time to time, the Borrower will
render to the Agent and the Lenders a statement in reasonable detail as to
all insurance coverage required by this Section 8.4. A description of the
material elements of insurance coverage of the Borrower as of the date
hereof is set forth on Schedule 8.4.
Section 8.5. Records, Accounts and Places of Business. The Borrower
shall maintain comprehensive and accurate records and accounts in
accordance with generally accepted accounting principles consistently
applied. The Borrower shall maintain adequate and proper reserves. The
Borrower shall promptly (and in any event within five (5) days) notify the
Agent of (a) any changes in the places of business of the Borrower and (b)
any additional places of business which may arise hereafter.
Section 8.6. Inspection. At any reasonable time and from time to
time, the Borrower shall permit the Agent and the Lenders and any of the
Lenders' agents or representatives to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and to discuss the affairs, finances and
accounts of the Borrower with any of its officers or directors and with
their independent accountants.
Section 8.7. Maintenance of Accounts. The Borrower shall maintain
all of its depository, operating, concentration and disbursement accounts
with the Agent, except for clearing accounts maintained with financial
institutions in connection with the Participation Agreements.
ARTICLE 9. NEGATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations
shall have been paid in full and the Lenders shall have no commitments to
make any loans or advances to the Borrower hereunder, each Borrower
covenants with respect to itself that such Borrower will not:
Section 9.1. Restrictions on Indebtedness. Create, incur, suffer or
permit to exist, or assume or guarantee, either directly or indirectly, or
otherwise become or remain liable with respect to, any Indebtedness, except
the following:
(a) Indebtedness outstanding at the date of this Agreement as
set forth on Schedule 5.16 but no refinancings thereof.
(b) Indebtedness on account of Consolidated Current
Liabilities (other than for money borrowed) incurred in the normal
and ordinary course of business.
(c) Indebtedness in respect of (i) taxes, assessments,
governmental charges or levies and claims for labor, materials and
supplies to the extent that payment thereof shall not at the time be
required to be made in accordance with the provisions of Section 8.2
hereof, (ii) judgments or awards which have been in force for less
than the applicable appeal period so long as execution is not levied
thereunder or in respect of which the Borrower shall at the time in
good faith be prosecuting an appeal or proceedings for review in a
manner satisfactory to the Lenders and in respect of which a stay of
execution shall have been obtained pending such appeal or review and
for which adequate reserves have been established in accordance with
generally accepted accounting principles, and (iii) endorsements made
in connection with the deposit of items for credit or collection in
the ordinary course of business.
(d) Indebtedness in an amount not to exceed $500,000 in
respect of purchase money security interests permitted under Section
9.2(b) hereof.
(e) Indebtedness to the Lenders.
(f) Subordinated Indebtedness; provided, however, that no
payments of principal or interest shall be made on any Subordinated
Indebtedness, except in accordance with the subordination terms and
provisions which the Agent has approved in writing.
(g) The 1998 Subordinated Debentures.
(h) Indebtedness evidenced by the BCLP II Subordinated Note,
provided that the payee thereof shall have entered into a
subordination agreement in favor of the Lenders and the Agent in form
and substance reasonably satisfactory to the Agent.
Section 9.2. Restriction on Liens. Create or incur or suffer to be
created or incurred or to exist any encumbrance, mortgage, pledge, lien,
charge or other security interest of any kind upon any of its property or
assets of any character, whether now owned or hereafter acquired, or
transfer any of such property or assets for the purposes of subjecting the
same to the payment of Indebtedness or performance of any other obligation
in priority to payment of its general creditors, or acquire or agree or
have an option to acquire any property or assets upon conditional sale or
other title retention agreement, device or arrangement (including
Capitalized Leases) or suffer to exist for a period of more than 30 days
after the same shall have been incurred any Indebtedness against it which
if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be
given any priority whatsoever over the claims of its general creditors, or
sell, assign, pledge or otherwise transfer for security any of its
accounts, contract rights, general intangibles, or chattel paper (as those
terms are defined in the UCC) with or without recourse; provided, however,
that the Borrower may create or incur or suffer to be created or incurred
or to exist:
(a) Existing liens and security interests described in
Schedule 5.16 securing presently outstanding Indebtedness permitted
by Section 9.1(a).
(b) Purchase money security interests (which term shall
include mortgages, conditional sale contracts, Capitalized Leases and
all other title retention or deferred purchase devices) to secure the
purchase price of property acquired hereafter by the Borrower, or to
secure Indebtedness incurred solely for the purpose of financing such
acquisitions; provided, however, that no such purchase money security
interests shall extend to or cover any property other than the
property the purchase price of which is secured by it, and that the
principal amount of Indebtedness (whether or not assumed) with
respect to each item of property subject to such a security interest
shall not exceed the fair value of such item on the date of its
acquisition.
(c) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security; liens in respect of judgments or
awards to the extent such judgments or awards are permitted as
Indebtedness by the provisions of Section 9.1(c); and liens for
taxes, assessments or governmental charges or levies and liens to
secure claims for labor, material or supplies to the extent that
payment thereof shall not at the time be required to be made in
accordance with Section 8.2.
(d) Encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real
property which do not materially detract from the value of such
property or impair its use in the business of the owner or lessee.
(e) Liens (other than judgments and awards) created by or
resulting from any litigation or legal proceeding, provided the
execution or other enforcement thereof is effectively stayed and the
claims secured thereby are being actively contested in good faith by
appropriate proceedings satisfactory to the Agent.
(f) Liens arising by operation of law to secure landlords,
lessors or renters under leases or rental agreements made in the
ordinary course of business and confined to the premises or property
rented.
(g) Liens in favor of the Agent for the benefit of the
Lenders.
Nothing contained in this Section 9.2 shall permit the Borrower to incur
any Indebtedness or take any other action or permit to exist any other
condition which would be in contravention of any other provision of this
Agreement.
Section 9.3. Investments. Have outstanding or hold or acquire or
make or commit itself to acquire or make any Investment except the
following:
(a) Investments having a maturity of less than one year from
the date thereof by the Borrower in: (i) obligations of the Agent or
any of the Lenders; (ii) obligations of the United States of America
or any agency or instrumentality thereof; (iii) repurchase agreements
involving securities described in clauses (i) and (ii) with the Agent
or any of the Lenders; and (iv) commercial paper which is rated not
less than prime-one or A-1 or their equivalents by Moody's Investor
Service, Inc. or Standard & Poor's Corporation, respectively, or
their successors.
(b) Existing Investments of the Borrower, as described on
Schedule 5.4.
(c) Investments consisting of normal travel and similar
advances to employees of the Borrower and its Subsidiaries not
exceeding $250,000 in the aggregate at any one time outstanding.
(d) Investments made pursuant to the terms of the
Participation Agreements.
Section 9.4. Dispositions of Assets. Sell, lease or otherwise
dispose of any assets except for the sale, lease or other disposition of
inventory or other property (not including receivables) in the ordinary
course of business; provided that the Existing Borrower may make the
Holdings Distribution so long as no Default or Event of Default shall have
occurred and be continuing.
Section 9.5. Assumptions, Guaranties, Etc. of Indebtedness of Other
Persons. Assume, guarantee, endorse or otherwise be or become directly or
contingently liable (including, without limitation, by way of agreement,
contingent or otherwise, to purchase, provide funds for payment, supply
funds to or otherwise invest in any Person or otherwise assure the
creditors of any such Person against loss) in connection with any
Indebtedness of any other Person, except for Guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business.
Section 9.6. Mergers, Etc. Enter into any merger or consolidation
with or acquire all or substantially all of the assets of any Person, or
sell, assign, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to any Person.
Section 9.7. ERISA. At any time while the Borrower has a Pension
Plan, permit any accumulated funding deficiency to occur with respect to
any Pension Plan or other employee benefit plans established or maintained
by the Borrower or to which contributions are made by the Borrower (the
"Plans"), and which are subject to the "Pension Reform Act" and the rules
and regulations thereunder or to Section 412 of the Internal Revenue Code,
and at all times comply in all material respects with the provisions of the
Act and Code which are applicable to the Plans. The Borrower will not
permit the Pension Benefit Guaranty Corporation to cause the termination of
any Pension Plan under circumstances which would cause the lien provided
for in Section 4068 of the Pension Reform Act to attach to the assets of
the Borrower.
Section 9.8. Distributions. Make any Distribution or make any other
payment on account of the purchase, acquisition, redemption, or other
retirement of any shares of stock, whether now or hereafter outstanding;
provided, however, that the Existing Borrower may make Distributions to the
New Borrower solely for the purpose of the New Borrower making payment of
Lender Obligations and the tax, if any, assessed on such Distributions;
provided that the Existing Borrower may make the Holdings Distribution so
long as no Default or Event of Default shall have occurred and be
continuing.
Section 9.9. Sale and Leaseback. Sell or transfer any of its
properties with the intention of taking back a lease of the same property
or leasing other property for substantially the same use as the property
being sold or transferred.
Section 9.10. Transactions with Affiliates. Enter into any
transaction, including, without limitation, the purchase, sale or exchange
of property or the rendering of any service, with any Affiliate, except
that the Borrower may (a) pay such salaries, fees and bonuses to its
directors, officers and employees of the general partner of the Borrower as
correlate to the general partner's activities for and/or on behalf of the
Borrower, as are usual and customary in the Borrower's or its Subsidiaries'
business and (b) enter into other transactions with Affiliates on terms
that are no less favorable to the Borrower than those which could be
obtained at the time from Persons who are not Affiliates; and provided
further, however, that the Borrowers may consummate the 2000 Reorganization
so long as no Default or Event of Default shall have occurred and be
continuing.
ARTICLE 10. EVENTS OF DEFAULT AND REMEDIES
Section 10.1. Events of Default. Each of the following events shall
be deemed to be Events of Default hereunder:
(a) The Borrower shall fail to make any payment in respect of
(i) the principal of any of the Lender Obligations as the same shall
become due, whether at the stated payment dates, required prepayment
or by acceleration, demand or otherwise, or (ii) interest or
commitment fees on or in respect of any of the Lender Obligations as
the same shall become due, and such failure shall continue for a
period of five (5) days.
(b) The Borrower shall fail to perform or observe any of the
terms, covenants, conditions or provisions of Sections 6.1, 6.2, 6.3,
6.5, 6.8, 8.1, 8.5, 8.6 or Article 9 hereof.
(c) The Borrower shall fail to perform or observe any other
term, covenant, condition or provision to be performed or observed by
the Borrower under this Agreement or any other Lender Agreement, and
such failure shall not be rectified or cured to the Agent's
satisfaction within thirty (30) days after the occurrence thereof.
(d) Any representation or warranty of the Borrower herein or
in any other Lender Agreement or any amendment to any thereof shall
have been materially false or misleading at the time made or intended
to be effective.
(e) The Borrower shall fail to make any payment of principal
of or interest on Indebtedness for money borrowed by the Borrower or
any Guaranty of money borrowed in either case an outstanding
principal amount of not less than $250,000 when such payment is due
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) or shall fail to perform or observe any
provision of any agreement or instrument relating to such
Indebtedness, and such failure shall permit the holder thereof to
accelerate such Indebtedness.
(f) The Borrower or any Subsidiary shall be involved in
financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title
11 of the United States Code as from time to time in effect, or
by its authorizing, by appropriate proceedings of its general
partner or other governing body, the commencement of such a
voluntary case;
(ii) by its filing an answer or other pleading admitting
or failing to deny the material allegations of a petition filed
against it commencing an involuntary case under said Title 11,
or seeking, consenting to or acquiescing in the relief therein
provided;
(iii) by the entry of an order for relief in any
involuntary case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any
applicable law, other than said Title 11, of any jurisdiction
relating to the liquidation or reorganization of debtors or to
the modification or alteration of the rights of creditors, or
by its consenting to or acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (1) by finding it to be bankrupt or insolvent, (2)
ordering or approving its liquidation, reorganization or any
modification or alteration of the rights of its creditors, or
(3) assuming custody of, or appointing a receiver or other
custodian for all or a substantial part of its property and
such order shall not be vacated or stayed on appeal or
otherwise stayed within 30 days;
(vi) by the filing of a petition against the Borrower or
any Subsidiary under said Title 11 which shall not be vacated
within 60 days; or
(vii) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing
or consenting to the appointment of a receiver or other
custodian for all or a substantial part of its property.
(g) There shall have occurred a judgment against the Borrower
in any court (i) for an amount in excess of $250,000, and from which
no appeal has been taken or with respect to which all appeal periods
have expired, unless such judgment is, to the Agent's satisfaction,
insured against in full, or (ii) which shall have a Material Adverse
Effect.
(h) The occurrence of a Change of Control.
(i) Any "Event of Default" or other default under any other
Lender Agreement shall have occurred.
(j) An "Event of Default" shall have occurred under the
Celtics Credit Agreement or Citizens Bank of Massachusetts shall
cease to be the "Lender" thereunder or the Celtics Credit Agreement
is terminated.
Section 10.2. Remedies. Upon the occurrence of an Event of Default,
in each and every case, the Agent may, and upon the request of the Majority
Lenders, shall proceed to protect and enforce the rights of the Agent and
the Lenders by suit in equity, action at law and/or other appropriate
proceeding either for specific performance of any covenant or condition
contained in this Agreement or any other Lender Agreement or in any
instrument delivered to the Agent or the Lenders pursuant hereto or
thereto, or in aid of the exercise of any power granted in this Agreement,
any Lender Agreement or any such instrument, and (unless there shall have
occurred an Event of Default under Section 10.1(f), in which case the
unpaid balance of Lender Obligations shall automatically become due and
payable without notice or demand) by notice in writing to the Borrower
declare (a) the obligations of the Lenders to make Revolving Credit
Advances to be terminated, whereupon such obligations shall be terminated,
and (b) all or any part of the unpaid balance of the Lender Obligations
then outstanding to be forthwith due and payable, whereupon such unpaid
balance or part thereof shall become so due and payable without
presentation, protest or further demand or notice of any kind, all of which
are hereby expressly waived, and the Agent may proceed to enforce payment
of such balance or part thereof in such manner as the Agent may elect, and
the Agent and each Lender may offset and apply toward the payment of such
balance or part thereof any Indebtedness of the Agent or any Lender to the
Borrower, or to any obligor of the Lender Obligations, including any
Indebtedness represented by deposits in any general or special account
maintained with the Agent or any Lender or with any other Person
controlling, controlled by or under common control with the Agent or any
Lender.
Section 10.3. Distribution of Proceeds. Notwithstanding anything to
the contrary contained herein, in the event that following the occurrence
or during the continuance of any Event of Default, the Agent or any Lender
receives any monies on account of the Lender Obligations from either
Borrower or otherwise, such monies shall be distributed for application as
follows:
(a) First, to the payment of or the reimbursement of, the
Agent for or in respect of all costs, expenses, disbursements and
losses which shall have been incurred or sustained by the Agent in
connection with the collection of such monies by the Agent, or in
connection with the exercise, protection or enforcement by the Agent
of all or any of the rights, remedies, powers and privileges of the
Agent or the Lenders under this Agreement or any other Lender
Agreement;
(b) Second, in such order of priority and in such amounts as
the Agent and the Majority Lenders shall determine, to the payment of
(i) interest, including interest on overdue amounts, and late
charges, then due and payable with respect to any outstanding Loans
of any Borrower, (ii) outstanding principal of any Loans of any
Borrower, and (iii) any other outstanding Lender Obligations, in each
case allocated among the Lenders in proportion to their respective
Commitment Percentages; and
(c) Third, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
ARTICLE 11. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES
Section 11.1. Actions by Lenders. Except as otherwise expressly set
forth in any particular provision of this Agreement, any consent or
approval required or permitted by this Agreement to be given by the
Lenders, including without limitation under Section 11.2, may be given, and
any term of this Agreement or of any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) with,
but only with, the written consent of the Borrower and the Majority
Lenders; provided, however, that without the written consent of all
Lenders:
(a) no reduction in the interest rates on or any fees
relating to the Revolving Credit Advances shall be made;
(b) no extension or postponement shall be made of the stated
time of payment of the principal amount of, interest on, or fees
payable to the Lenders relating to the Revolving Credit Advances;
(c) no increase in the Maximum Revolving Credit Amount or
extension of the Revolving Credit Termination Date shall be made;
(d) no release of all or substantially all of the collateral
security for, or any guarantor of, the Lender Obligations shall be
made;
(e) no change in the definition of the term "Majority
Lenders" shall be made; and
(f) no change in the provisions of this Section 11.1 shall be
made.
Section 11.2. Actions by Borrower. No delay or omission on the
Agent's or the Lenders' part in exercising their rights and remedies
against the Borrower or any other interested party shall constitute a
waiver. A breach by the Borrower of its obligations under this Agreement
may be waived only by a written waiver executed by the Agent and the
Lenders in accordance with Section 11.1. The Agent's and the Lenders'
waiver of the Borrower's breach in one or more instances shall not
constitute or otherwise be an implicit waiver of subsequent breaches. To
the extent permitted by applicable law, the Borrower hereby agrees to
waive, and does hereby absolutely and irrevocably waive (a) all
presentments, demands for performance, notices of protest and notices of
dishonor in connection with any of the Indebtedness evidenced by the
Revolving Credit Notes, (b) any requirement of diligence or promptness on
the Agent's or the Lenders' part in the enforcement of its rights under the
provisions of this Agreement or any Lender Agreement, and (c) any and all
notices of every kind and description which may be required to be given by
any statute or rule of law with respect to its liability (i) under this
Agreement or in respect of the Indebtedness evidenced by the Revolving
Credit Notes or any other Lender Obligation or (ii) under any other Lender
Agreement. No course of dealing between the Borrower and the Agent or the
Lenders shall operate as a waiver of any of the Agent's or the Lenders'
rights under this Agreement or any Lender Agreement or with respect to any
of the Lender Obligations. This Agreement shall be amended only by a
written instrument executed by the Agent and the Lenders in accordance with
Section 11.1 making explicit reference to this Agreement. The Agent's and
the Lenders' rights and remedies under this Agreement and under all
subsequent agreements between the Agent, the Lenders and the Borrower shall
be cumulative and any rights and remedies expressly set forth herein shall
be in addition to, and not in limitation of, any other rights and remedies
which may be applicable to the Agent and the Lenders in law or at equity.
ARTICLE 12. SUCCESSORS AND ASSIGNS
Section 12.1. General. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors (which shall include in the case of the Agent or any Lender any
entity resulting from a merger or consolidation) and assigns, except that
(a) the Borrower may not assign its rights or obligations under this
Agreement, and (b) each Lender may assign its rights in this Agreement only
as set forth below in this Article 12.
Section 12.2. Assignments.
(a) Assignments. In compliance with applicable laws with respect to
such assignment and with the consent of the Borrower (provided that if
there shall exist a Default, the Borrower's consent shall not be required
for any such assignment) and the Agent (which consents in all cases shall
not be unreasonably withheld), a Lender may assign to one or more financial
institutions (each a "Successor Lender") a proportionate part of its rights
and obligations in connection with this Agreement, its Revolving Credit
Note and the related Lender Agreements and each such Successor Lender shall
assume such rights and obligations pursuant to an Assignment and Acceptance
Agreement ("Assignment and Acceptance Agreement") duly executed by such
Successor Lender and such assigning Lender and acknowledged and consented
to by the Borrower and the Agent, substantially in the form of Exhibit G
attached hereto. Any assignment under this Section (a) shall be in a
minimum amount of $5,000,000 of the Maximum Revolving Credit Amount. In
connection with any assignment under this Section 12.2(a) there shall be
paid to the Agent by the assigning Lender or the Successor Lender an
administrative processing fee in the amount of $3,000.
(b) Assignment Procedures. In the event of an assignment in
accordance with Section 12.2(a), upon execution and delivery of such an
assignment at least five (5) Business Days prior to the proposed assignment
date, and payment by such Successor Lender to the assigning Lender of an
amount equal to the purchase price agreed between such assigning Lender and
such Successor Lender, such Successor Lender shall become party to this
Agreement as a signatory hereto and shall have all the rights and
obligations of a Lender under this Agreement and the other Lender
Agreements with an interest therein as set forth in such assignment, and
such assignor making such assignment shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by
any party shall be required. Upon the consummation of any such assignment,
the assigning Lender, the Successor Lender and the Borrower shall make
appropriate arrangements so that, if required, a new Revolving Credit Note
is issued to the Successor Lender and a replacement Revolving Credit Note
is issued to the assigning Lender in principal amounts reflecting their
respective revised interests.
(c) Register. The Agent shall maintain a register (the "Register")
for the recordation of (i) the names and addresses of all Successor Lenders
that enter into Assignment and Acceptance Agreements, (ii) the interests of
each Lender, and (iii) the amounts of the Revolving Credit Advances owing
to each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is registered therein for
all purposes as a party to this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Further Assurances. The Borrower shall sign such documents and
take such other actions from time to time reasonably requested by the Agent
or a Lender to enable any Successor Lender to share in the benefits and
rights created by the Lender Agreements.
(e) Assignments to Federal Reserve Bank. Any Lender at any time may
assign all or any portion of its rights under this Agreement and its
Revolving Credit Note to a Federal Reserve Bank. No such assignment shall
release the transferor Lender from its obligations hereunder.
Section 12.3. Participations. Any Lender may, without the consent of
the Borrower or the Agent, at any time grant or offer to grant to one or
more financial institutions ("Credit Participants") participating interests
in such Lender's rights and obligations in this Agreement, its Revolving
Credit Note and the related Lender Agreements, and each such Credit
Participant shall acquire such participation subject to the terms set forth
below.
(a) Amount. Each such participation shall be in a minimum
amount of at least $5,000,000 of the Maximum Revolving Credit Amount.
(b) Procedure. Each Lender granting such participation shall
comply with all applicable laws with respect to such transfer and
shall remain responsible for the performance of its obligations
hereunder and under the other Lender Agreements and shall retain the
sole right and responsibility to exercise its rights and to enforce
the obligations of the Borrower hereunder and under the other Lender
Agreements, including the right to consent to any amendment,
modification or waiver of any provision of any Lender Agreement,
except for those matters referred to in Section 11.1 which require
the consent of all Lenders and which may also require the consent of
each Credit Participant.
(c) Dealing with Lenders. The Borrower shall continue to deal
solely and directly with the Lenders in connection with their rights
and obligations under this Agreement and the other Lender Agreements.
(d) Rights of Credit Participants. The Borrower agrees that
each Credit Participant shall, to the extent provided in its
participation instrument, be entitled to the benefits of Sections
2.7, 2.8, 2.9, 2.11, 2.12 and 14.5, and the set off rights in Section
10.2 with respect to its participating interest; provided, however,
that no Credit Participant shall be entitled to receive any greater
payment under such Sections than the Lender granting such
participation would have been entitled to receive with respect to the
interests transferred.
(e) Notice. At the time of granting any participation, the
Lender granting such participation shall notify the Agent and the
Borrower.
ARTICLE 13. THE AGENT
Section 13.1. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action on its behalf and to exercise
such powers under this Agreement and the other Lender Agreements 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 and the other Lender Agreements
(including, without limitation, enforcement or collection of the Revolving
Credit Notes), 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 Majority Lenders, and such instructions shall be
binding upon all Lenders; provided, however, that the Agent shall not be
required to take any action which exposes the Agent to liability or which
is contrary to this Agreement or the other Lender Agreements or applicable
law. Subject to the foregoing provisions and to the other provisions of
this Article 13, the Agent shall, on behalf of the Lenders: (a) execute any
documents on behalf of the Lenders providing collateral for or guarantees
of the Lender Obligations; (b) hold and apply any collateral for the Lender
Obligations, and the proceeds thereof, at any time received by it, in
accordance with the provisions of this Agreement and the other Lender
Agreements; (c) exercise any and all rights, powers and remedies of the
Lenders under this Agreement or any of the other Lender Agreements,
including the giving of any consent or waiver or the entering into of any
amendment, subject to the provisions of Section 11.1; (d) at the direction
of the Lenders, execute, deliver and file UCC financing statements,
mortgages, deeds of trust, lease assignments and such other agreements in
respect of any collateral for the Lender Obligations, and possess
instruments included in the collateral on behalf of the Lenders; and (e) in
the event of acceleration of the Borrower's Indebtedness hereunder, act at
the direction of the Majority Lenders to exercise the rights of the Lenders
hereunder and under the other Lender Agreements.
Section 13.2. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable to the Lenders
for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or the other Lender Agreements, except for
its or their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent: (a) may treat the payee of
any Revolving Credit Note as the holder thereof until the Agent receives
written notice of the assignment or transfer thereof signed by such payee
and in form required under Article 12 hereof; (b) may consult with legal
counsel, 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; (c) makes no warranty or representations to any Lender and shall
not be responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement or the other
Lender Agreements; (d) 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 other Lender Agreements on the part of
the Borrower or any other Person or to inspect the property (including the
books and records) of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or the
other Lender Agreements or any other instrument or document furnished
pursuant hereto or thereto; and (f) shall incur no liability under or in
respect of this Agreement or the other Lender Agreements by acting upon any
notice, consent, certificate or other instrument or writing (which may be
by telecopy or telegram) believed by the Agent to be genuine and signed or
sent by the proper party or parties.
Section 13.3. Agent as a Lender. With respect to its Revolving
Credit Commitment Percentage of the Revolving Credit Advances hereunder,
Citizens Bank of Massachusetts shall have the same rights and powers under
this Agreement and the other Lender Agreements as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lender(s)" shall, unless otherwise expressly indicated, include Citizens
Bank of Massachusetts in its individual capacity. Citizens Bank of
Massachusetts and its affiliates may lend money to, and generally engage in
any kind of business with, the Borrower, any of its Affiliates and any
Person who may do business with or own securities of the Borrower or any
such Affiliate, all as if Citizens Bank of Massachusetts were not the Agent
and without any duty to account therefor to the Lenders.
Section 13.4. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 5.9 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 13.5. Indemnification of Agent. Each Lender agrees to
indemnify the Agent and its directors, officers, employees and agents (to
the extent that the Agent is not reimbursed by the Borrower), ratably
according to each Lender's Commitment Percentage, from and against any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Agent or its directors, officers, employees or agents in any way relating
to or arising out of this Agreement or any other Lender Agreement or any
action taken or omitted by the Agent in such capacity under this Agreement;
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 Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement and each other
Lender Agreement, to the extent that the Agent is not reimbursed for such
expenses by the Borrower.
Section 13.6. Successor Agent. Except as provided below, the Agent
may resign at any time by giving written notice thereof to the Lenders and
the Borrower. Upon any such resignation, the Lenders shall have the right
to appoint a successor Agent which shall be reasonably acceptable to the
Borrower. If no successor Agent shall have been so appointed by the Lenders
(other than the resigning Agent), and shall have accepted such appointment,
within thirty (30) days after the retiring Agent's giving notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint
a successor Agent, which shall be a commercial bank or financial
institution organized under the laws of the United States of America or of
any state thereof and having a combined capital and surplus of at least
$50,000,000 and which shall be reasonably acceptable to the Borrower. 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 and the other Lender Agreements. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article 13 shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement and the other Lender Agreements.
Section 13.7. Amendment of Article 13. The Borrower hereby agrees
that the foregoing provisions of this Article 13 constitute an agreement
among the Agent and the Lenders (and the Agent and the Lenders acknowledge
that except for the provisions of Section 13.6, the Borrower is not a party
to or bound by such foregoing provisions) and that any and all of the
provisions of this Article 13 may be amended at any time by the Lenders
without the consent or approval of, or notice to, the Borrower (other than
the requirement of notice to the Borrower of the resignation of the Agent
and the appointment of a successor Agent).
ARTICLE 14. MISCELLANEOUS
Section 14.1. Notices. All notices and other communications made or
required to be given pursuant to this Agreement shall be in writing and
shall be mailed by United States mail, postage prepaid, or sent by hand, by
telecopy or by nationally-recognized overnight carrier service, addressed
as follows:
(a) If to the Agent, at 28 State Street, Boston,
Massachusetts 02109, Telecopier No. (617) 725-5690, Attention: Ms.
Lori B. Leeth, Senior Vice President, with a copy to: Goodwin,
Procter & Hoar LLP, Exchange Place, Boston, MA 02109, Telecopier No.
617-523-1231, Attention: Edward Matson Sibble, Jr., or at such other
address(es) or to the attention of such other Person(s) as the Agent
shall from time to time designate in writing to the Borrower and the
Lenders.
(b) If to the Existing Borrower, at 151 Merrimac Street,
Boston, Massachusetts 02114, Telecopier No. (617) 720-7833,
Attention: Mr. Richard Pond, Executive Vice President and Chief
Financial Officer, or at such other address(es) or to the attention
of such other Person(s), as the Existing Borrower shall from time to
time designate in writing to the Agent and the Lenders.
(c) If to the New Borrower, at 151 Merrimac Street, Boston,
Massachusetts 02114, Telecopier No. (617) 720-7833, Attention: Mr.
Richard Pond [Executive Vice President and Chief Financial Officer],
or such other address(es) or to the attention of such other Person(s)
as the New Borrower shall from time to time designate in writing to
the Agent and the Lenders.
(d) If to the Existing Lender, at 101 Park Avenue, New York,
New York 10178, Telecopier No.: (212) 401-3768, Attention: Jayne
Seaford, [Vice President], or such other address(es), or to the
attention of such other Person(s), as the Existing Lender shall from
time to time designate in writing to the Agent and the Borrower.
(e) If to any other Lender, at the address(es) and to the
attention of the Person(s) specified below such Lender's name on the
execution page of this Agreement (or in the case of a Successor
Lender, at the address(es) and to the attention of the Person(s)
specified in the Assignment and Acceptance Agreement executed by such
Successor Lender), or at such other address(es) and to the attention
of such other Person(s) as any Lender shall from time to time
designate in writing to the Agent and the Borrower.
Any notice so addressed and mailed by registered or certified mail
shall be deemed to have been given when mailed. Any notice so addressed and
sent by hand, by telecopy or by overnight carrier service shall be deemed
to have been given when received. A notice from the Agent stating that it
has been given on behalf of the Lenders shall be relied upon by the
Borrower as having been given by the Lenders.
Section 14.2. Merger. This Agreement and the other Lender Agreements
and documents contemplated hereby and thereby constitute the entire
agreement of the Borrowers and the Agent and the Lenders and express their
entire understanding with respect to credit advanced or to be advanced by
the Lenders to the Borrowers.
Section 14.3. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced under the laws of The
Commonwealth of Massachusetts. Each Borrower hereby irrevocably submits
itself to the non-exclusive jurisdiction of the courts of The Commonwealth
of Massachusetts and to the non-exclusive jurisdiction of any Federal court
of the United States located in the District of Massachusetts for the
purpose of any suit, action or other proceeding arising out of this
Agreement or any other Lender Agreement or any of the transactions
contemplated hereby or thereby.
Section 14.4. Counterparts. This Agreement and all amendments to
this Agreement may be executed in several counterparts, each of which shall
be an original. The several counterparts shall constitute a single
Agreement.
Section 14.5. Expenses and Indemnification.
(a) The Borrower agrees to pay, on demand, all of the Agent's
reasonable expenses in preparing, executing, delivering and administering
this Agreement, the Lender Agreements and all related instruments and
documents, including, without limitation, the reasonable fees and out-of-
pocket expenses of the Agent's special counsel, Goodwin, Procter & Hoar
LLP, and the Agent's and Lenders' expenses in connection with periodic
audits of the Borrower provided that the Borrower shall be obligated to pay
for only one such audit annually unless a Default has occurred. The
Borrower also agrees to pay, on demand, all reasonable out-of-pocket
expenses incurred by the Agent and the Lenders, including, without
limitation, reasonable legal and accounting fees, in connection with the
collection of amounts due hereunder and under all other Lender Agreements
upon the occurrence of an Event of Default hereunder, the revision,
protection or enforcement of any of the Agent's or the Lenders' rights
against the Borrower under this Agreement, the Revolving Credit Notes and
all other Lender Agreements and the administration of special problems that
may arise under this Agreement or any other Lender Agreement. The Borrower
also agrees to pay all stamp and other taxes in connection with the
execution and delivery of this Agreement and related instruments and
documents.
(b) Without limitation of any other obligation or liability of the
Borrower or right or remedy of the Agent or the Lenders contained herein,
the Borrower hereby covenants and agrees to indemnify and hold the Agent,
the Lenders, and the directors, officers, subsidiaries, shareholders,
agents, affiliates and Persons controlling the Agent and the Lenders,
harmless from and against any and all damages, losses, settlement payments,
obligations, liabilities, claims, including, without limitation, claims for
finder's or broker's fees, actions or causes of action, and reasonable
costs and expenses incurred, suffered, sustained or required to be paid by
any such indemnified party in each case by reason of or resulting from any
claim relating to the transactions contemplated hereby, other than any such
claims which are determined by a final, non-appealable judgment or order of
a court of competent jurisdiction to be the result of the gross negligence
or willful misconduct of such indemnified party. Promptly upon receipt by
any indemnified party hereunder of notice of the commencement of any action
against such indemnified party for which a claim is to be made against the
Borrower hereunder, such indemnified party shall notify the Borrower in
writing of the commencement thereof, although the failure to provide such
notice shall not affect the indemnification rights of any such indemnified
party hereunder unless and only to the extent the Borrower demonstrates to
the reasonable satisfaction of such party that such failure to provide
notice prejudiced the Borrower in its defense of such claim. The Borrower
shall have the right, at its option upon notice to the indemnified parties,
to defend any such matter at its own expense and with its own counsel,
except as provided below, which counsel must be reasonably acceptable to
the indemnified parties. The indemnified party shall cooperate with the
Borrower in the defense of such matter. The indemnified party shall have
the right to employ separate counsel and to participate in the defense of
such matter at its own expense. In the event that (a) the employment of
separate counsel by an indemnified party has been authorized in writing by
the Borrower, (b) the Borrower has failed to assume the defense of such
matter within fifteen (15) days of notice thereof from the indemnified
party, or (c) the named parties to any such action (including impleaded
parties) include any indemnified party who has been advised by counsel that
there may be one or more legal defenses available to it or prospective
bases for liability against it, which are different from those available to
or against the Borrower, then the Borrower shall not have the right to
assume the defense of such matter with respect to such indemnified party.
The Borrower shall not compromise or settle any such matter against an
indemnified party without the written consent of the indemnified party,
which consent may not be unreasonably withheld or delayed.
Section 14.6. Confidentiality. The Agent and the Lenders agree to
use commercially reasonable efforts to keep in confidence all financial
data and other information relative to the affairs of the Borrower
heretofore furnished or which may hereafter be furnished to them pursuant
to the provisions of this Agreement; provided, however, that this Section
14.6 shall not be applicable to information otherwise disseminated to the
public by the Borrower or any of its Affiliates; and provided further,
however, that such obligation of the Agent and the Lenders shall be subject
to the Agent's or the Lenders', as the case may be, (a) obligation to
disclose such information pursuant to a request or order under applicable
laws and regulations or pursuant to a subpoena or other legal process, (b)
right to disclose any such information to bank examiners, affiliates,
auditors, accountants and counsel who agree to keep such information
confidential, and (c) right to disclose any such information (i) in
connection with the transactions set forth herein including assignments or
the sale of participation interests pursuant to Article 12, so long as such
potential assignees or participants shall agree in writing to be bound by
the terms of this Section 14.6, or (ii) in connection with any litigation
or dispute involving the Agent or any transfer or other disposition by the
Agent or the Lenders, as the case may be, of any of the Lender Obligations;
provided that information disclosed pursuant to this provision shall be so
disclosed subject to such procedures as are reasonably calculated to
maintain the confidentiality thereof.
Section 14.7. WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS AND EACH
BORROWER AGREE THAT NONE OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A)
SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
ACTION BASED UPON OR ARISING OUT OF, THIS AGREEMENT, THE REVOLVING CREDIT
NOTES, ANY LENDER AGREEMENT, ANY RELATED INSTRUMENTS, ANY COLLATERAL OR THE
DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF THEM, OR (B) SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY DISCUSSED BY EACH OF THE AGENT, THE LENDERS AND EACH BORROWER
WITH THEIR RESPECTIVE COUNSEL, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NONE OF THE AGENT, THE LENDERS OR EACH BORROWER HAS AGREED WITH
OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH
WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
Section 14.8. Termination. This Agreement shall continue in full
force and effect, and the obligations and agreements of the Borrower
hereunder shall continue to be fully operative, until all of the Lender
Obligations shall have been paid and satisfied in full. To the extent that
the Borrower or any guarantor of or provider of collateral for Lender
Obligations, including without limitation CCC, makes any payment on the
Lender Obligations that is subsequently invalidated, declared to be
fraudulent or preferential or set aside or is required to be repaid to a
trustee, receiver or any other party under any bankruptcy, insolvency or
reorganization act, state or federal law, common law or equitable cause or
to Morgan Guaranty Trust Company of New York pursuant to the Consent,
Acknowledgment and Control Agreement of even date herewith (such payment
being hereinafter referred to as a "Voided Payment"), then to the extent of
such Voided Payment, that portion of the Lender Obligations that had been
previously satisfied by such Voided Payment shall be revived and continue
in full force and effect as if such Voided Payment had never been made.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
caused this Credit Agreement to be executed by their duly authorized
officers as of the date set forth above.
The Existing Borrower:
----------------------
BOSTON CELTICS LIMITED PARTNERSHIP II
By BCLP II GP, Inc., Its General Partner
By: /s/ Richard Pond
-------------------------------
Name: Richard Pond
Title: Chief Financial Officer
The New Borrower:
-----------------
BOSTON CELTICS LIMITED PARTNERSHIP
By BCLP GP, Inc., Its General Partner
By: /s/ Richard Pond
-------------------------------
Name: Richard Pond
Title: Chief Financial Officer
The Agent:
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CITIZENS BANK OF MASSACHUSETTS, as Agent
By: /s/ Lori Leeth
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Name: Lori Leeth
Title: Senior Vice President
The Existing Lender:
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THE ROYAL BANK OF SCOTLAND plc
By: /s/ Jayne Seaford
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Name: Jayne Seaford
Title: