SCHEDULE 13D
Amendment No. 10
America West Airlines Incorporated
Class B Common Stock, $0.01 par value per share
Warrants to Purchase Class B Common Stock
023650203 & 023650112
Date of Event: June 19, 1996
Filing Fee: No
Cusip # 23650203 & 023650112
Item 1: Reporting Person - FMR Corp. - (Tax ID: 04-2507163)
Item 2: See Item #5
Item 4: PF, but see Item #3
Item 6: Commonwealth of Massachusetts
Item 7: 1,724,238 shares of Class B Common Stock (including
518,893 shares issuable upon exercise of Warrants)
Item 8: None
Item 9: 5,691,038 shares of Class B Common Stock (including
880,793 shares issuable upon exercise of Warrants)
Item 10: None
Item 11: 5,691,138 shares of Class B Common Stock (including
880,793 shares issuable upon exercise of Warrants)
Item 13: 12.31%
Item 14: HC
Item 1. Security and Issuer.
The securities to which this statement relates are the Class
B common stock, $0.01 par value per share (the "Class B Common
Stock"), of America West Airlines Incorporated, a Delaware
corporation (the "Company"), and the Company's warrants to
purchase shares of Class B Common Stock (the "Warrants", together
with the Class B Common Stock, the "Shares"). The principal
executive offices of the Company are located at 4000 West Sky
Harbor Boulevard, Phoenix, AZ 85034.
Item 2. Identity and Background.
Item 2 is amended as follows:
This statement is being filed by FMR Corp., a Massachusetts
Corporation ("FMR"). A separate Schedule 13D is being filed by
Fidelity International Limited, a Bermuda joint stock company
incorporated for an unlimited duration by private act of the
Bermuda legislature ("FIL"). FMR is a holding company one of
whose principal assets is the capital stock of a wholly-owned
subsidiary, Fidelity Management & Research Company ("Fidelity"),
which is also a Massachusetts corporation. Fidelity is an
investment advisor which is registered under Section 203 of the
Investment Advisors Act of 1940 and which provides investment
advisory services to more than 30 investment companies which are
registered under Section 8 of the Investment Company Act of 1940
and serves as investment advisor to certain other funds which are
generally offered to limited groups of investors (the "Fidelity
Funds"). Fidelity Management Trust Company ("FMTC"), a wholly-
owned subsidiary of FMR Corp. and a bank as defined in Section
3(a)(6) of the Securities Exchange Act of 1934, serves as trustee
or managing agent for various private investment accounts,
primarily employee benefit plans and serves as investment adviser
to certain other funds which are generally offered to limited
groups of investors (the "Accounts"). Various directly or
indirectly held subsidiaries of FMR are also engaged in
investment management, venture capital asset management,
securities brokerage, transfer and shareholder servicing and real
estate development. The principal offices of FMR, Fidelity, and
FMTC are located at 82 Devonshire Street, Boston, Massachusetts
02109.
FIL is an investment adviser which provides investment
advisory and management services to a number of non-U.S.
investment companies or instrument trusts (the "International
Funds") and certain institutional investors. Prior to June 30,
1980, FIL was a majority-owned subsidiary of Fidelity. On that
date, the shares of FIL held by Fidelity were distributed, as a
dividend, to the shareholders of FMR. FIL currently operates as
an entity independent of FMR and Fidelity, with certain common
shareholders. The International Funds and FIL's other clients,
with the exception of Fidelity and an affiliate of Fidelity, are
non-U.S. entities. Various foreign-based subsidiaries of FIL are
also engaged in investment management. The principal office of
FIL is located at Pembroke Hall, 42 Crow Lane, Hamilton, Bermuda.
Members of the Edward C. Johnson 3d family are the
predominant owners of Class B shares of common stock of FMR
representing approximately 49% of the voting power of FMR. Mr.
Johnson 3d owns 12.0% and Abigail Johnson owns 24.5% of the
aggregate outstanding voting stock of FMR. Mr. Johnson 3d is the
Chairman of FMR. The Johnson family group and all other Class B
shareholders have entered into a shareholders' voting agreement
under which all Class B shares will be voted in accordance with
the majority vote of Class B shares. Accordingly, through their
ownership of voting common stock and the execution of the
shareholders' voting agreement, members of the Johnson family may
be deemed, under the Investment Company Act of 1940, to form a
controlling group with respect to FMR. The business address and
principal occupation of Mr. Johnson 3d is set forth in Schedule A
hereto.
In addition, a partnership controlled by Mr. Johnson and
members of his family own shares of FIL voting stock with the
right to cast approximately 47.22% of the total votes which may
be cast by all holders of FIL voting stock. Mr. Johnson 3d is
Chairman of FMR and FIL. FMR and FIL are separate and
independent corporate entities. FMR and FIL are managed
independently and their boards of Directors are generally
composed of different individuals. Their investment decisions
are made independently, and clients are different organizations.
The business address and principal occupation of Mr. Johnson 3d
is set forth in Schedule A hereto.
The Shares to which this statement relates are owned
directly by fourteen of the Fidelity Funds, twenty-seven of the
Accounts, and by Fidelity International Limited, through its
subsidiaries and affiliates.
FMR and FIL are of the view that they are not acting as a
"group" for purposes of Section 13(d) under the Securities
Exchange Act of 1934 (the "1934 Act") and that they are not
otherwise required to attribute to each other the "beneficial
ownership" of securities "beneficially owned" by the other
corporation within the meaning of Rule 13d-3 promulgated under
the 1934 Act. Therefore, they are of the view that the Shares
held by the other corporations need not be aggregated for
purposes of Section 13(d). However, FMR is making this filing on
a voluntary basis as if all of the Shares are beneficially owned
by FMR and FIL on a joint basis.
The name, residence or business address, principal
occupation or employment and citizenship of each of the executive
officers and directors of FMR are set forth in Schedule A hereto.
Within the past five years, none of the persons named in
this Item 2 or listed on Schedule A has been convicted in any
criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to any civil proceeding and as
a result thereof was or is subject to any judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to federal or state securities laws
or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is amended as follows:
The Fidelity Funds received 2,511,462 shares of Class B
Common Stock and 100,116 Warrants pursuant to the Company's Plan
of Reorganization filed under Chapter 11 of the United States
Bankruptcy Code (the "Plan"). Of these, 58,729 of the shares of
Class B Common Stock were received in exchange for certain claims
held against the Company prior to its reorganization ("Old AWA")
(such number includes 5,097 Shares distributed as an adjustment
under the Plan; such number may be subject to further adjustment
under the Plan); 2,452,733 shares of Class B Common Stock and
100,116 Warrants were purchased for $20,818,652. Such cash
purchases were made pursuant to a Subscription Agreement dated
June 28, 1994, as amended August 23, 1994, (the "Subscription
Agreement") which has been previously filed as an exhibit.
The Fidelity Funds have purchased and sold Shares since
receipt of the above described Shares. The attached Schedule B
sets forth Shares purchased and/or sold since June 7, 1996.
Except for Shares purchased on margin pursuant to typical
customer margin agreements, the Fidelity Funds used their own
assets in making such purchases and no part of the purchase price
is represented by borrowed funds.
The Accounts received 1,699,896 shares of Class B Common
Stock and 556,651 Warrants pursuant to the Plan. Of these,
280,632 shares of Class B Common Stock were received in exchange
for certain claims held against Old AWA (such number includes
24,356 shares distributed as an adjustment under the Plan; such
number may be subject to further adjustment under the Plan);
601,686 shares of Class B Common Stock and 523,279 Warrants were
received in exchange for common stock of Old AWA and preferred
stock of Old AWA and $3,418,704 cash; 817,578 shares of Class B
Common Stock and 33,372 Warrants were purchased for $6,939,552.
The purchase of the 817,578 shares of Class B Common Stock and
33,372 Warrants were made by Belmont Fund, L.P. ("Belmont I"), a
Bermuda limited partnership and one of the Accounts, pursuant to
the Subscription Agreement. In addition, Belmont I used funds
borrowed under a Credit Agreement (the "Credit Agreement") to
purchase Shares. A copy of the Credit Agreement is filed as an
exhibit hereto and is hereby incorporated by reference.
The Accounts have purchased and/or sold Shares since the
receipt of the above described Shares. The attached Schedule B
sets forth Shares purchased and/or sold since June 7, 1996.
Except for Shares purchased on margin pursuant to typical
customer margin agreements, the Accounts used their own assets in
making such purchases and no part of the purchase price is
represented by borrowed funds.
On March 1, 1996, the Shares beneficially owned by the
Fidelity Funds and the Accounts decreased by 202,500 Shares as a
result of the event described in Item 5(c) below.
The International Funds and accounts, which own or owned
Shares, purchased in the aggregate 100 Shares for cash in the
amount of approximately $2,157, including brokerage commissions.
The International Funds and accounts used their own assets in
making such purchase and no part of the purchase price is
represented by borrowed funds.
Item 4. Purpose of Transaction.
Item 4 is amended as follows:
As described in Item 3, certain of the Shares were acquired
by the Fidelity Funds and Accounts through the exchange of equity
securities of, and claims against, Old AWA. Other Shares were
purchased by the Fidelity Funds and Accounts in pursuit of
specified investment objectives established by the Board of
Trustees of the Fidelity Funds and by the investors in the
Accounts. The Fidelity Funds and Accounts hold the Shares for
investment purposes.
Fidelity and FMTC, respectively, may continue to have the
Fidelity Funds and the Accounts purchase Shares subject to a
number of factors, including, among others, the availability of
Shares for sale at what they consider to be reasonable prices and
other investment opportunities that may be available to the
Fidelity Funds and Accounts.
Fidelity and FMTC, respectively, intend to review
continuously the equity position of the Fidelity Funds and
Accounts in the Company. Depending upon future evaluations of
the business prospects of the Company and upon other
developments, including, but not limited to, general economic and
business conditions and money market and stock market conditions,
Fidelity may increase or decrease the equity interest in the
Company by acquiring additional Shares or by disposing of all or
a portion of the Shares.
Neither Fidelity nor FMTC has any present plan or proposal
which relates to or would result in (i) an extraordinary
corporate transaction, such as a merger, reorganization,
liquidation, or sale of transfer of a material amount of assets
involving the Company or any of its subsidiaries, (ii) any change
in the Company's present Board of Directors or management, (iii)
any material changes in the Company's present capitalization or
dividend policy or any other material change in the Company's
business or corporate structure, (iv) any change in the Company's
charter or by-laws, or (v) the Company's common stock becoming
eligible for termination of its registration pursuant to Section
12(g)(4) of the 1934 Act.
Item 5. Interest in Securities of Issuer.
Item 5 is amended as follows:
Although Item 5 assumes that FMR, Fidelity, and FMTC, and
FIL beneficially own all 5,691,138 Shares, reference is made to
Item 2 for a disclaimer of beneficial ownership with respect to
the securities which are "beneficially owned" by the other
corporations.
(a) FMR beneficially owns, through Fidelity, as investment
advisor to the Fidelity Funds, 3,783,100 Shares, or approximately
8.18% of the outstanding Shares of the Company, and through FMTC,
the managing agent for the Accounts, 1,907,938 Shares, or
approximately 4.13% of the outstanding Shares of the Company.
The number of Shares held by the Fidelity Funds and the Accounts
includes 880,793 Shares of common stock resulting from the
assumed conversion of 880,793 principal amount of the Warrants (1
share of common stock for each Warrant). FIL beneficially owns,
as investment advisor to the International Funds, 100 Shares, or
approximately 0.00% of the outstanding Shares of the Company.
Neither FMR, Fidelity, FMTC, Edward C. Johnson 3d, FIL, nor any
of its affiliates nor, to the best knowledge of FMR, any of the
persons name in Schedule A hereto, beneficially owns any other
Shares. The combined holdings of FMR, Fidelity, FMTC, and FIL,
are 5,691,138 Shares, or approximately 12.31% of the outstanding
Shares of the Company.
(b) FMR, through its control of Fidelity, investment
advisor to the Fidelity Funds, and the Fidelity Funds each has
sole power to dispose of the Shares. Neither FMR nor Mr. Johnson
has the sole power to vote or direct the voting of the 3,783,100
Shares owned directly by certain Fidelity Funds, which power
resides with the Funds' Boards of Trustees. Fidelity carries out
the voting of the Shares under written guidelines established by
the Funds' Board of Trustees. FMR, through its control of FMTC,
investment manager to the Accounts, and the Accounts each has
sole dispositive power over 1,907,938 Shares and sole power to
vote or to direct the voting of 1,724,238 Shares, and no power
to vote or to direct the voting of 183,700 Shares owned by the
Accounts.
(c) On March 1, 1996, the reporting person's beneficial
ownership of Shares decrease by 202,500 Shares as a result of (I)
the termination of the reporting person's interest in one Account
and a Fidelity Fund (a private investment partnership) and (ii)
the termination of investment management agreements FMTC and
Fidelity had with such Account and Fidelity Fund, respectively.
(d) Except as set forth in Schedule B, neither FMR, or any
of its affiliates, nor, to the best knowledge of FMR, any of the
persons named in Schedule A hereto has effected any transaction
in Shares during the past sixty (60) days.
Item 6. Contract, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
DDJ Capital Management, LLC or an affiliate of such Company
("DDJ"), provides investment advisory consulting services for
FMTC's use in connection with FMTC's investment management of two
Accounts. DDJ is not a direct or indirect subsidiary or
affiliate of FMR Corp. or FMTC; DDJ has no shared or sole voting
or dispositive power or any other investment discretion with
respect to such securities or any other securities owned by
Accounts managed by FMTC.
Other than the margin agreements and the Credit Agreement
described in Item 3 above and except as may otherwise be
described herein, neither FMR nor any of its affiliates nor, to
the best knowledge of FMR, any of the persons named in Schedule A
hereto has any joint venture, finder's fee, or other contract or
arrangement with any person with respect to any securities of the
Company.
As contemplated by the Plan, the Company, Belmont I, Belmont
II and Copernicus, and certain other securityholders of the
Company are parties to a Registration Rights Agreement dated
August 25, 1994 obligating the Company to register under the
Securities Act of 1933, as amended, certain of the Shares.
The Funds and Accounts may from time to time own debt
securities issued by the Company or its direct or indirect
subsidiaries, and may from time to time purchase and/or sell such
debt securitites.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Credit Agreement
This statement speaks as of its date, and no inference
should be drawn that no change has occurred in the facts set
forth herein after the date hereof.
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
FMR Corp.
DATE: July 2, 1996 By:
_/s/ Arthur S. Loring__
Arthur S. Loring
Vice President
SCHEDULE A
The name and present principal occupation or employment of
each executive officer and director of FMR Corp. are set forth
below. The business address of each person is 82 Devonshire
Street, Boston, Massachusetts 02109, and the address of the
corporation or organization in which such employment is conducted
is the same as his business address. All of the persons listed
below are U.S. citizens.
POSITION WITH
PRINCIPAL
NAME FMR CORP. OCCUPATION
Edward C. Johnson 3d President,
Chairman of the
Director, CEO Board and CEO, FMR
Chairman &
Mng. Director
J. Gary Burkhead Director President-Fidelity
Caleb Loring, Jr. Director, Director, FMR
Mng. Director
James C. Curvey Director, Sr. V.P., FMR
Sr. V.P.
William L. Byrnes Vice Chairman Vice Chairman, FIL
Director & Mng.
Director
Abigail P. Johnson Director Portfolio Mgr -
Fidelity
Management &
Research
Company
Robert C. Pozen Sr. V.P. & Gen'l Sr. V.P. & Gen'l
Counsel Counsel, FMR
David C. Weinstein Sr. Vice President Sr. Vice President
Administration Administration
Gerald M. Lieberman Sr. Vice Pres., Chief Sr. Vice Pres.,
Chief
Financial Officer Financial Officer
SCHEDULE B
America West Airlines Incorporated
Eight Fidelity Fund(s) purchased Shares of common stock since
June 7, 1996 at the dates and at the prices set forth below. The
transactions were made for cash in open market transactions or
with other investment companies with the same or an affiliated
investment advisor.
DATE SHARES PRICE
06-07-96 6,700 $21.22
06-10-96 57,800 21.46
06-11-96 55,300 21.94
06-12-96 19,900 21.96
06-13-96 69,600 22.16
06-14-96 39,300 21.88
06-17-96 6,900 22.25
06-18-96 114,400 21.92
06-19-96 124,300 21.52
SCHEDULE B
America West Airlines Incorporated
One Fidelity Fund(s) purchased warrants to purchase shares of
common stock since June 7, 1996 at the dates and at the prices
set forth below. The transactions were made for cash in open
market transactions or with other investment companies with the
same or an affiliated investment advisor.
DATE SHARES PRICE
06-17-96 13,100 $12.10
06-19-96 3,800 11.50
SCHEDULE B
America West Airlines Incorporated
Three Account(s) purchased Shares of common stock since June 7,
1996, at the dates and at the prices set forth below. The
transactions were made for cash in open market transactions or
with other investment companies with the same or an affiliated
investment advisor.
DATE SHARES PRICE
06-07-96 29,200 $21.22
06-10-96 3,600 21.46
06-11-96 4,700 21.94
06-12-96 3,100 21.98
06-13-96 3,800 22.16
06-14-96 2,800 21.88
06-17-96 2,000 22.25
06-18-96 5,800 21.92
06-19-96 6,300 21.52
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 11,
1994, by and among BELMONT FUND, L.P. (the "Borrower"), a Bermuda
limited partnership with an office at Belmont Fund, L.P., c/o
Fidelity Management Trust Company F7E, 82 Devonshire Street,
Boston, Massachusetts 02109, the Banks listed on the signature
pages hereof and each additional bank that may become a party
hereto pursuant to Section 11 hereof (each a "Bank" and
collectively, the "Banks") and [ ], a national
banking association with its head office at [ ],
as agent for the Banks (in such capacity, the "Agent").
WHEREAS, the Borrower is authorized to borrow money to
leverage its investment portfolio, and desires to enter into this
Agreement on the terms set forth below so that it may borrow
funds from the Banks from time to time for such purpose; and
WHEREAS, the Agent and the Borrower entered into a certain
Credit Agreement dated as of June 30, 1993, as amended (as so
amended, the "Prior Agreement"), providing for a revolving credit
facility in the original principal amount of $40,000,000; and
WHEREAS, pursuant to Assignment, Assumption and Agency
Agreements each dated October 8, 1993 (each an "Assignment
Agreement"), each of [ ] became parties to the
Prior Agreement; and
WHEREAS, the Banks under the Prior Agreement wish to amend
and restate the Prior Agreement to incorporate the amendments
thereto prior to the date hereof, make certain conforming changes
and increase the amount of the credit facility thereunder; and
WHEREAS, the Banks are willing to advance funds to the
Borrower from time to time on the terms and subject to the
conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises and
agreements of the parties set forth herein, the parties hereto
amend and restate the Prior Agreement, and supersede any
conflicting or duplicative terms of the Assignment Agreements, as
follows:
Section 1. DEFINITIONS; INTERPRETATION.
Section 1.1. Definitions. As used herein, the following
terms shall have meanings assigned to them below:
Adjusted Eurodollar Rate. Applicable to any Interest
Period, shall mean a rate per annum determined pursuant to the
following formula:
AER = [ IOR ]*
[ 1.00 - RP ]
AER = Adjusted Eurodollar Rate
IOR = Interbank Offered Rate
RP = Reserve Percentage
*The amount in brackets shall be rounded upwards,
if necessary, to the next higher 1/100 of l%.
Where:
"Interbank Offered Rate" applicable to any
Eurodollar Loan for any Interest Period means the rate
of interest determined by the Agent to be the
prevailing rate per annum at which deposits in U.S.
dollars are offered to the Agent by first-class banks
in the interbank Eurodollar market in which it
regularly participates on or about 10:00 a.m. (Boston,
Massachusetts time) two Business Days before the first
day of such Interest Period in an amount approximately
equal to the principal amount of the Agent's portion of
the Eurodollar Loan to which such Interest Period is to
apply for a period of time approximately equal to such
Interest Period.
"Reserve Percentage" applicable to any Interest
Period means the rate (expressed as a decimal), if any,
applicable to member banks of the Federal Reserve
System during such Interest Period under regulations
issued from time to time by the Board of Governors of
the Federal Reserve System for determining the maximum
reserve requirement (including, without limitation, any
basic, supplemental, emergency or marginal reserve
requirement) of the Agent with respect to "Eurocurrency
liabilities" as that term is defined under such
regulations.
The Adjusted Eurodollar Rate shall be adjusted automatically as
of the effective date of any change in the Reserve Percentage.
Agent. As defined in the preamble hereof and includes any
successors appointed pursuant to Section 14.8 hereof.
Agreement. This Amended and Restated Credit Agreement as
originally executed, or if amended or supplemented from time to
time, as so amended or supplemented. References to the Agreement
shall mean and include references to each of the Exhibits and
Schedules hereto.
Bank. As defined in the preamble hereof.
Base Rate. The greater of (i) the annual rate of interest
announced from time to time by the Agent at its Head Office as
its "Base Rate", and (ii) the Federal Funds Effective Rate plus
1/2 of 1% per annum (rounded upwards, if necessary, to the next
1/8 of 1%).
Base Rate Loan. A Loan that bears interest at the Base
Rate.
Borrower. As defined in the preamble hereof.
Borrowing Date. The date on which any Loan is made or is to
be made hereunder.
Business Day. (i) For all purposes other than as covered by
clause (ii) below, any day other than a Saturday, Sunday or legal
holiday on which banks in Boston, Massachusetts or New York, New
York are open for the conduct of a substantial part of their
commercial banking business; and (ii) with respect to all notices
and determinations in connection with, and payments of principal
and interest on, Eurodollar Loans, any day that is a Business Day
described in clause (i) and that is also a day for trading by and
between banks in U.S. Dollar deposits in the interbank Eurodollar
market.
Collateral Agency Agreement. The Collateral Agency
Agreement, substantially in the form of Exhibit C hereto, among
the Borrower, the Agent and the Custodian, to be delivered to the
Agent for the benefit of the Banks with respect to the Pledged
Securities after any demand therefor, as contemplated in Section
2.14 hereof.
Commitment Amount. The maximum amount of each Bank's
commitment to make Loans to the Borrower, as set forth next to
the name of each Bank on the signature pages hereof (as adjusted
from time to time pursuant to Section 11 hereof). The aggregate
amount of all Banks' Commitment Amounts initially shall be
$60,000,000, as the same may be reduced from time to time
pursuant to Section 2.2 hereof or terminated pursuant to Section
2.2 or Section 6.1 hereof.
Commitment Expiry Date. As defined in Section 2.4(e)
hereof.
Custodian. Brown Brothers Harriman & Co. or such other
entity that acts as the Borrower's custodian of the Borrower's
portfolio of securities.
Default. As defined in Section 6.1 hereof.
Eligible Assets. As of any date of determination, all
assets then owned by the Borrower not constituting Margin Stock,
other than puts, calls and combinations thereof.
Eurodollar Loans. Loans bearing interest at a rate
determined with reference to the Adjusted Eurodollar Rate.
Event of Default. As defined in Section 6.1 hereof.
Federal Funds Effective Rate. For any day, a fluctuating
interest rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for such
day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent.
General Partner. Each of Fidelity International Services
Limited, a corporation organized under the laws of Bermuda;
[ ] and Fidelity Investments Capital Funding Corp., a
corporation organized under the laws of The Commonwealth of
Massachusetts, in each such company's capacity as general partner
of the Borrower.
Head Office. The head office of the Agent, which at present
is located at [ ].
Indebtedness. All obligations, contingent and otherwise,
that in accordance with generally accepted accounting principles
should be classified upon the Borrower's balance sheet as
indebtedness, or to which reference should be made by footnotes
thereto, including, without limitation, in any event and whether
or not so classified: (i) all debt for money borrowed and similar
extensions of credit, whether direct or indirect; (ii) all
liabilities secured by any mortgage, pledge, security interest,
lien, charge, or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured
thereby shall have been assumed; and (iii) all guaranties,
endorsements and other contingent obligations, whether direct or
indirect, in respect of Indebtedness of others, including any
obligation to supply funds to or in any manner to invest in,
directly, or indirectly, the debtor, to purchase Indebtedness, or
to assure the owner of Indebtedness against loss, through an
agreement to purchase goods, supplies, or services for the
purpose of enabling the debtor to make payment of the
Indebtedness held by such owner or otherwise, and the obligations
to reimburse the issuer of any letters of credit; but excluding
in any event obligations of the Borrower with respect to unfunded
liabilities on open commitments to purchase loans and loan
participations.
Interest Period. With respect to each Eurodollar Loan, the
period commencing on the date of the making of such Eurodollar
Loan and ending one, two, three or six months (or such other
period as all Banks may agree to provide in their sole
discretion) thereafter, as the Borrower may elect in the
applicable Loan Request delivered pursuant to Section 2.2(a);
provided that:
(i) any Interest Period (other than an Interest Period
determined pursuant to clause (iii) 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;
(ii) 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 (iii) below, end on the last Business Day of a
calendar month; and
(iii) any Interest Period that would otherwise end
after the Commitment Expiry Date shall end on the Commitment
Expiry Date.
Loan or Loans. Singly, any of, and collectively, all of,
the loans made or to be made to the Borrower as contemplated by
this Agreement.
Loan Account. As defined in Section 2.3 hereof.
Loan Documents. This Agreement, the Pledge Agreement, the
Collateral Agency Agreement, and all instruments, agreements and
documents required to be executed and/or delivered by the
Borrower in connection with the transactions contemplated hereby
or thereby.
Loan Request. As defined in Section 2.2 hereof.
Management Agreement. The Management Agreement dated
May 15, 1989 between the Borrower and Fidelity Management Trust
Company, as amended from time to time.
M Portion. As defined in the introductory paragraph to
Section 2 hereof.
Margin Stock. As defined in Regulation U.
Maximum Amount. With respect to the Borrower, and on any
date of determination, an amount equal to the least of (i)
$60,000,000, or (ii) 25% of the value of the Borrower's total
assets at such time, or (iii) the maximum amount the Borrower is
permitted to borrow hereunder at such time under:
(a) applicable federal or state laws, statutes and
regulations;
(b) agreements (whether or not having the force of
law) by the Borrower with federal, state, local or foreign
governmental agencies, authorities or regulators, as more
particularly described in Part 1 of Schedule I hereto, as
amended and in effect from time to time; or
(c) limitations on borrowing adopted by the Borrower
and described in the Partnership Agreement or elsewhere, as
more particularly described in Part 2 of Schedule I hereto,
as amended and in effect from time to time.
NM Portion. As defined in the introductory paragraph to
Section 2 hereof.
Obligations. Any and all obligations of the Borrower to the
Banks hereunder of every kind and description, direct or
indirect, absolute or contingent, primary or secondary, due or to
become due, now existing or hereafter arising, regardless of how
they arise or by what agreement or instrument, if any, and
including obligations to perform acts and refrain from taking
action as well as obligations to pay money.
Partnership Agreement. The Limited Partnership Agreement
dated May 15, 1989, of the Borrower, as amended from time to
time.
Pledge Agreement. The Pledge Agreement, substantially in
the form of Exhibit B hereto, executed by the Borrower in favor
of the Agent on behalf of the Banks and to be delivered to the
Agent with respect to the Pledged Securities after any demand
therefor, as contemplated in Section 2.14 hereof.
Pledged Securities. The stock or other portfolio securities
pledged to the Agent, for the benefit of the Banks, pursuant to
the Pledge Agreement and Section 2.14 of this Agreement.
Regulation U. Regulation U promulgated by the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
Regulation X. Regulation X promulgated by the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
Required Banks. Banks holding 66-2/3% of the aggregate of
all Banks' Commitment Amounts or, if the Commitment Amounts have
been reduced to zero, Banks holding 66-2/3% of the outstanding
Loans hereunder.
Revolving Loan or Loans. Singly, any of, and collectively,
all of, the revolving loans made to the Borrower as contemplated
by Section 2.1(a).
Term Loans. The Term Loans made to the Borrower as
contemplated by Section 2.1(b).
Section 1.2. Interpretation. All terms of an accounting
character not specifically defined herein shall have the meanings
assigned thereto by generally accepted accounting principles in
the United States of America, unless the context otherwise
requires. All terms not specifically defined herein which are
defined in the Uniform Commercial Code as in effect in The
Commonwealth of Massachusetts shall have the same meanings herein
as therein. Each reference herein to a particular person or
entity shall include a reference to the successors and permitted
assigns of such person or entity. The words "herein", "hereof",
"hereunder", and words of like import shall refer to this
Agreement as a whole and not to any particular Section or
subdivision of this Agreement.
Section 2. CREDIT FACILITY. There is hereby established
for the Borrower a revolving credit facility described in Section
2.1 and a term loan facility described in Section 2.2. Each such
facility shall be divided into two separate portions, referred to
respectively as the "M Portion" and the "NM Portion". The M
Portion of the Loans shall be "indirectly secured", within the
meaning of Regulation U, first by the Margin Stock in the
Borrower's portfolio, and second, after the NM Portion of the
Loans are paid in full, by Eligible Assets. The NM Portion of
the Loans shall be "indirectly secured", within the meaning of
Regulation U, first, by Eligible Assets, and second, after the M
Portion of the Loans are paid in full, by the Margin Stock in the
Borrower's portfolio.
Section 2.1. Commitment to Lend. (a) Subject to the terms
and conditions set forth in this Agreement, each Bank severally
agrees to make revolving loans (collectively as to all Banks, the
"Revolving Loans") to the Borrower from time to time on any
Business Day during the period from the date hereof to (but not
including) the Commitment Expiry Date, as may be requested by the
Borrower. Each Revolving Loan made by the Banks shall be in the
principal amount stated in the applicable Loan Request, shall be
in a minimum principal amount of at least $1,000,000 and an
integral multiple of $100,000, and shall be allocated among the
Banks ratably in proportion to their respective Commitment
Amounts, provided that (i) at no time shall the aggregate
outstanding principal amount of all Revolving Loans made by any
Bank exceed such Bank's Commitment Amount; (ii) at the time of
such Revolving Loan, and after giving effect thereto, the M
Portion of all outstanding Revolving Loans shall not exceed 50%
of the current market value of the securities constituting Margin
Stock in the Borrower's investment portfolio, as set forth on the
schedule of portfolio securities delivered by the Borrower with
the applicable Loan Request; (iii) at the time of such Revolving
Loan, and after giving effect thereto, the NM Portion of all
outstanding Revolving Loans shall not exceed 50% of the current
market value of Eligible Assets, as set forth on the schedule of
portfolio securities delivered by the Borrower with the
applicable Loan Request; and (iv) at no time shall the aggregate
outstanding principal amount of all Revolving Loans made by all
Banks exceed the Maximum Amount. Within the limits of the
provisions of this Section 2.1, the Borrower may borrow, repay
pursuant to Section 2.9 or prepay pursuant to Section 2.10(a) and
reborrow under this Section 2.1(a) from time to time until the
Commitment Expiry Date.
(b) Subject to the terms hereof, each Bank will lend to the
Borrower, on the Commitment Expiry Date, a term loan
(collectively as to all Banks, the "Term Loans") that shall not
exceed, in the aggregate principal amount, the lesser of (i) such
Bank's Commitment Amount and (ii) the aggregate principal amount
of Revolving Loans made by such Bank then outstanding (it being
understood that the proceeds of such Loans will be applied to the
repayment in full of all such outstanding Revolving Loans);
provided that (i) at the time of such Term Loan, and after giving
effect thereto, the M Portion of all outstanding Term Loans shall
not exceed 50% of the current market value of the securities
constituting Margin Stock in the Borrower's investment portfolio,
as set forth on the schedule of portfolio securities delivered by
the Borrower with the applicable Loan Request; (ii) at the time
of such Term Loan, and after giving effect thereto, the NM
Portion of all outstanding Term Loans shall not exceed 50% of the
current market value of Eligible Assets, as set forth on the
schedule of portfolio securities delivered by the Borrower with
the applicable Loan Request; and (iii) at no time shall the
aggregate outstanding principal amount of all Term Loans made by
all Banks exceed the Maximum Amount. The Term Loans shall be
payable in eight equal consecutive quarterly installments on the
last day of each calendar quarter, commencing on the first of
such dates to occur after the Commitment Expiry Date.
(c) Provided that no Default shall have occurred and be
continuing, the Borrower may convert all or any part (in integral
multiples of $1,000,000) pro rata among the Banks of any
outstanding Loan into a Loan of any other type provided for in
this Agreement in the same aggregate principal amount, on any
Business Day (which, in the case of a conversion of a Eurodollar
Loan, shall be the last day of the Interest Period applicable to
such Eurodollar Loan). The Borrower shall give the Agent prior
notice of each such conversion (which notice shall be effective
upon receipt) in accordance with Section 2.2.
Section 2.2. Notice and Manner of Borrowing. All Revolving
Loans shall be requested and funded in accordance with the
procedures set forth below:
(a) Loan Requests. Each request by the Borrower for the
making, conversion or continuation of a Loan hereunder shall be
made by telephonic notice to the Agent (a "Loan Request") prior
to 11:30 a.m., Boston time, on the Borrowing Date, in the case of
Base Rate Loans, and two days prior to the Borrowing Date, in the
case of Eurodollar Loans. Each Loan Request shall be irrevocable
and shall state (i) the principal amount of the requested Loan,
(ii) the portion of such Loan that the Borrower designates as
being borrowed under the M Portion of the facility; (iii) the
portion of such Loan that the Borrower designates as being
borrowed under the NM Portion of the facility; (iv) the interest
rate to be applicable thereto, and, in the case of Eurodollar
Loans, (v) the Interest Period requested for such Loan (subject
to the definition of Interest Period). Each Loan Request shall
also state the maximum amount the Borrower is then permitted to
borrow hereunder, determined in accordance with Section 2.1 and
the definition of Maximum Amount. Each Loan Request shall be
made by a duly authorized representative of the Borrower, as
specified by the Borrower in writing from time to time, and the
Agent may rely upon any telephone request that it reasonably
believes is made by such a representative. The Agent shall
promptly advise the Banks of the content of each such notice and,
if an Interest Period of other than one, two, three or six months
is requested, request the consent of each Bank to such Interest
Period. Each Loan Request shall promptly be followed by a
written confirmation thereof, substantially in the form of
Exhibit A hereto, provided that if such written confirmation
differs in any material respect from the action of the Banks
taken in good faith reliance upon such telephone request, the
records of the Banks shall control absent manifest error. The
Agent shall promptly notify the Borrower if any Bank has refused
to allow an alternative Interest Period, and the Borrower may
thereafter modify its Loan Request to specify an Interest Period
of the duration permitted herein.
Each Loan Request made by the Borrower shall constitute a
representation and warranty by the Borrower to the Banks that (i)
the Loan requested thereby is permitted under the Partnership
Agreement; (ii) such Loan will not, when made, cause the
aggregate indebtedness of the Borrower hereunder to exceed the
Maximum Amount then in effect; (iii) such Loan will not, when
made, cause the aggregate M Portions of all Loans hereunder to
exceed 50% of the current market value of the securities
constituting Margin Stock in the Borrower's investment portfolio;
(iv) such Loan will not, when made, cause the aggregate NM
Portions of all Loans hereunder to exceed 50% of the current
market value of Eligible Assets; (v) the proceeds of such Loan
will be used by the Borrower only in accordance with the
provisions of Section 2.13 hereof; and (vi) all of the
representations and warranties of the Borrower contained in
Section 4 hereof are true and correct on and as of the date of
such Loan Request and the date of such Revolving Loan as though
made on and as of such dates.
(b) Funding the Loans. Not later than 2:00 p.m. (Boston,
Massachusetts time) on the date of each Loan each Bank shall make
available its pro rata share of such Loan in immediately
available funds at the head office of the Agent in Boston,
Massachusetts. The Agent shall thereafter deposit or wire the
proceeds of such Loan, on the same day, in immediately available
funds and at the Borrower's expense, to an account maintained on
the Borrower's behalf by the Custodian in accordance with the
wiring instructions set forth in Schedule II hereto, as amended
and in effect from time to time. If any Bank makes a Loan
hereunder on a day on which the Borrower is to repay all or any
portion (including the repayment of any M Portion or any NM
Portion, as contemplated in Section 2.10(d)) of an outstanding
Loan from such Bank, such Bank shall apply the proceeds of its
new Loan (or portion) to make such repayment and only an amount
equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by
such Bank to the Agent, as provided in this Section 2.1(b), or
remitted to the Agent as provided in Section 2.9.
Section 2.3. Loan Account. The Agent will maintain a
separate account on its books for the Borrower (the "Loan
Account") on which will be recorded, in accordance with the
Agent's customary accounting practice, (a) all Loans made by the
Banks to the Borrower and each Bank's pro rata share thereof, (b)
all payments of such Loans made to the Banks, and (c) all other
charges and expenses properly chargeable to the Borrower
hereunder. The debit balance of the Loan Account shall reflect
the amount of the Borrower's indebtedness from time to time to
the Banks hereunder and, in the absence of manifest error,
constitute conclusive evidence of the indebtedness of the
Borrower to the Banks hereunder.
Section 2.4. Reduction or Termination of Commitment
Amounts.
(a) Unless terminated earlier pursuant to the provisions of
clauses (b) or (c) of this Section 2.4, or extended pursuant to
clause (d), the Banks' several commitments to make Loans
hereunder shall be in effect from the date of this Agreement
through December 30, 1994.
(b) Subject to Section 2.12 hereof, the Borrower may at any
time on or prior to the Commitment Expiry Date, (i) terminate
this Agreement by giving written notice thereof to the Agent and
repaying in full all obligations of the Borrower hereunder; or
(ii) reduce pro rata the Commitment Amounts in part in integral
multiples of $1,000,000 by giving 30 Business Days' prior written
notice thereof to the Agent and repaying the amount, if any, by
which the aggregate unpaid principal amount of the Loans exceeds
the then reduced Commitment Amounts. The Agent shall promptly
advise the Banks of each such notice. Any such termination or
reduction shall be accompanied by the payment of any fees
referred to in Section 2.6 accrued to the date of such
termination or reduction. Any such termination or reduction may
be effected by the Borrower without penalty. No termination or
reduction of the Commitment Amounts shall be subject to
reinstatement.
(c) Upon the occurrence of an Event of Default (unless
waived pursuant to Section 16 hereof), the Banks may terminate
their commitment to make Loans hereunder, in the manner
contemplated in Section 18, by written notice to the Borrower,
except as such written notice is not required by Section 6.1
hereof.
(d) On any date occurring not later than 60 days prior to
the then effective Commitment Expiry Date, the Borrower may
request that the Banks extend such Commitment Expiry Date for an
additional year, by written notice delivered to the Agent, which
shall promptly notify the Banks thereof. If each Bank, in its
sole discretion, shall agree to so extend such Commitment Expiry
Date, such Bank shall so notify the Agent, which shall then
notify the Borrower, not later than 30 days prior to such
Commitment Expiry Date. If all Banks shall advise the Agent and
the Borrower of their willingness to so extend such Commitment
Expiry Date, then effective on such Commitment Expiry Date such
Commitment Expiry Date shall thereupon be so extended for such
additional year. During such extended period, the terms and
conditions of this Agreement and the other Loan Documents shall
remain in full force and effect.
(e) The date on which the Banks' several commitments to
make Loans hereunder terminates or is terminated pursuant to this
Section 2.4 is sometimes herein referred to as the "Commitment
Expiry Date".
Section 2.5. Repayment of Loans. (a) Each Revolving Loan
that is a Base Rate Loan shall mature and the principal amount
thereof become due and payable in full on the Commitment Expiry
Date. Each Revolving Loan that is a Eurodollar Loan shall mature
and the principal amount thereof become due and payable on the
last day of the applicable Interest Period.
(b) The Term Loans shall become due and payable in
accordance with the provisions of Section 2.1(b).
Section 2.6. Fees. (a) The Borrower agrees to pay to the
Agent the fees described in a letter agreement dated the date
hereof.
(b) The Borrower agrees to pay to the Agent, for the
account of the Banks, for the period commencing on the date this
Agreement becomes effective and ending on the Commitment Expiry
Date, a commitment fee computed at the rate of 1/4 of 1% per
annum of the aggregate unused Commitment Amounts, such fee to be
payable quarterly in arrears on the last day of each March, June,
September and December and on the Commitment Expiry Date. Such
commitment fee shall be pro-rated for any quarter or any part
thereof after the termination of this Agreement by the Borrower
pursuant to Section 2.4(b) or by the Banks pursuant to
Section 6.1.
Section 2.7. Interest Rates and Payments of Interest. (a)
Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof at a rate per annum equal to the Base
Rate, which rate shall change contemporaneously with any change
in the Base Rate. Such interest shall be payable on the last day
of each month, commencing June 30, 1993, and when such Loan is
due (whether at maturity, by reason of acceleration or
otherwise).
(b) Each Eurodollar Loan shall bear interest on the
outstanding principal amount thereof, for each Interest Period
applicable thereto, at a rate per annum equal to the Adjusted
Eurodollar Rate plus one and one-half of one percent (1-1/2%).
Such interest shall be payable for such Interest Period on the
last day thereof and when such Eurodollar Loan is due (whether at
maturity, by reason of acceleration or otherwise) and, if such
Interest Period is longer than three months, at intervals of
three months after the first day thereof.
(c) Overdue principal and (to the extent permitted by
applicable law) interest on each Loan and all other overdue
amounts payable hereunder shall bear interest compounded monthly
and payable on demand at a rate per annum equal to two percent
above the greater of (i) the interest rate then in effect for
such Loan and (ii) the Base Rate, until such amount shall be paid
in full (whether before or after judgment).
(d) No provision of this Agreement shall require the
payment or permit the collection of interest in excess of the
rate then permitted by applicable law.
Section 2.8 Changed Circumstances. (a) In the event that:
(i) on any date on which the Adjusted Eurodollar 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 Interbank Offered Rate, or
(ii) at any time the Agent shall have received notice
that:
(A) the making or continuation of or conversion of any
Loan to a Eurodollar Loan by any Bank has been made
impracticable or unlawful by (l) the occurrence of a
contingency that materially and adversely affects the
interbank Eurodollar market in which such Bank regularly
participates or (2) compliance by any Bank 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
(B) the Adjusted Eurodollar Rate applicable to any
proposed Eurodollar Loan shall not fairly and adequately
reflect the cost of the Required Banks to fund such Loan;
then, and in any 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
ability of the Borrower to select Eurodollar Loans shall be
suspended. If at the time the Agent so notifies the Borrower,
the Borrower has previously delivered a Loan Request for a
Eurodollar Loan but such Loan has not yet gone into effect, such
Loan Request shall be deemed to be void and the Borrower may
borrow a Base Rate Loan by giving a substitute Loan Request
pursuant to Section 2.2 hereof.
Upon such date as shall be specified in such notice (which
shall not be earlier than the date such notice is given) the
Borrower shall, with respect to outstanding Eurodollar Loans,
prepay the same, together with interest thereon and any amounts
required to be paid pursuant to Section 2.12, and may borrow a
Base Rate Loan by requesting such Loan in accordance with Section
2.2 hereof.
(b) In case any law, regulation, treaty or official
directive or the interpretation or application thereof by any
court or by any governmental authority charged with the
administration thereof or the compliance with any guideline or
request of any central bank or other governmental authority
(whether or not having the force of law):
(i) subjects any Bank to any tax with respect to
payments of principal or interest or any other amounts
payable hereunder by the Borrower or otherwise with respect
to the transactions contemplated hereby (except for taxes on
the overall net income of any Bank imposed by the United
States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit
insurance, reserve, special deposit or similar requirement
against assets held by, or deposits in or for the account
of, or loans by, any Bank (other than such requirements as
are already included in the determination of the Adjusted
Eurodollar Rate), or
(iii) imposes upon any Bank any other condition with
respect to its performance under this Agreement,
and the result of any of the foregoing is to increase the cost to
such Bank, reduce the income receivable by such Bank or impose
any expense upon such Bank with respect to any Loans, such Bank
shall notify the Agent and the Agent shall notify the Borrower
thereof. The Borrower agrees to pay to such Bank the amount of
such increase in cost, reduction in income or additional expense
as and when such cost, reduction or expense is incurred or
determined, upon presentation by the affected Bank of a statement
in the amount and setting forth such Bank's calculation thereof,
which statement shall be deemed true and correct absent manifest
error.
Section 2.9. Place and Mode of Payments; Computations.
(a) Each payment made or caused to be made by the Borrower
to the Banks under this Agreement shall be made to the Agent for
the account of the Banks in United States Dollars at the Agent's
Head Office, not later than 2:00 p.m., Boston time, on the due
date of each such payment, and in immediately available and
freely transferable funds.
(b) If any sum would, but for the provisions of this clause
(b), become due and payable to the Banks by the Borrower on any
day that is not a Business Day, then such sum shall become due
and payable on the next succeeding Business Day, and interest
payable to the Banks under this Agreement shall be adjusted
accordingly.
(c) All computations of interest and fees payable under
this Agreement shall be made on the basis of a 360-day year and
paid for the actual number of days elapsed.
(d) The Agent will determine the Base Rate in effect from
time to time. Any change in the Base Rate shall, for all
purposes of this Agreement, become effective on, and from the
beginning of, the day on which such change shall first be
announced or determined by the Agent in accordance with the
Agent's customary banking practices.
(e) Each payment by the Borrower under this Agreement shall
be made without set-off or counterclaim and free and clear of and
without deduction or withholding of any kind.
(f) Whenever the Borrower makes a payment or prepayment of
Loans hereunder, and to the extent it may reasonably do so, it
shall identify the source of the funds used to effect such
payment (i.e., whether from the sale or disposition of Margin
Stock, the sale or liquidation of Eligible Assets, or otherwise);
and the Agent shall apply such funds to the payment or prepayment
of then outstanding Loans directly or indirectly secured by the
assets in question (i.e., Loans constituting the M Portion or the
NM Portion). In the absence of such identification, if the Agent
is nevertheless aware of the source of funds, it shall apply such
funds to the payment or prepayment of then outstanding Loans
directly or indirectly secured by the assets in question. If the
Agent is not aware of the source of funds, it may apply such
funds to the payment or prepayment of such Loans as it in its
sole discretion shall determine.
(g) Unless the Agent shall have been notified by a Bank
prior to the date on which such Bank is scheduled to make payment
to the Agent of the proceeds of a Loan (which notice shall be
effective upon receipt) that such Bank does not intend to make
such payment, the Agent may assume that such Bank has made such
payment when due and the Agent may in reliance upon such
assumption (but shall not be required to) make available to the
Borrower the proceeds of the Loan to be made by such Bank and, if
any Bank has not in fact made such payment to the Agent, such
Bank shall, on demand, pay to the Agent the amount made available
to the Borrower attributable to such Bank together with interest
thereon in respect of each day during the period commencing on
the date such amount was made available to the Borrower and
ending on (but excluding) the date such Bank pays such amount to
the Agent, at a rate per annum equal to the Federal Funds Rate.
If such amount is not received from such Bank by the Agent
immediately upon demand, the Borrower will, on demand, repay to
the Agent the proceeds of the Loan attributable to such Bank with
interest thereon at a rate per annum equal to the interest rate
applicable to the relevant Loan.
Section 2.10. Optional Prepayments; Certain Mandatory
Prepayments. (a) The Borrower shall have the right at any time
to prepay any Loans, in whole or in part, upon telephonic notice
to the Agent received prior to 12:00 noon (Boston, Massachusetts
time), on the date such prepayment is to be made. The Agent
shall promptly advise the Banks of such prepayment. Each such
prepayment (except a prepayment in full) shall be made in an
amount of $1,000,000 or an integral multiple thereof. Eurodollar
Loans may only be prepaid on the last day of the applicable
Interest Period.
(b) Upon any reduction of the Commitment Amounts pursuant
to Section 2.4(b) hereof or otherwise, or if at any time the
aggregate unpaid principal amount of Loans exceeds the aggregate
outstanding Commitment Amounts, the Borrower agrees to
immediately prepay the amount of such excess, together with any
amounts payable pursuant to Section 2.12 hereof.
(c) If at any time the aggregate unpaid principal amount of
Loans shall exceed the Maximum Amount, the Borrower shall
immediately prepay the amount of such excess, together with any
amounts payable pursuant to Section 2.12 hereof.
(d) If at any time (i) the sale or disposition of any
Margin Stock would cause the aggregate unpaid principal amount of
the M Portion of Loans to exceed 50% of the current market value
of all Margin Stock in the Borrower's investment portfolio, or
(ii) the sale or disposition of any Eligible Assets would cause
the aggregate unpaid principal amount of the NM Portion of Loans
to exceed 50% of the current market value of all Eligible Assets,
the Borrower shall immediately prepay such excess portion of the
M Portion or the NM Portion, as the case may be. Provided no
Event of Default shall then have occurred, such prepayment may be
effected by the simultaneous borrowing of Loans of the unaffected
Portion, to the extent that the Borrower may do so in accordance
with the limitations set forth in Section 2.1.
(e) Upon each repayment or prepayment of any principal of
any Loan pursuant to any of the provisions of this Agreement, the
Borrower hereby absolutely and unconditionally promises to pay to
the Banks, and there shall become absolutely due and payable on
the date of each such repayment or prepayment, all of the unpaid
interest accrued to such date on the amount of the principal of
the Loan being repaid or prepaid on such date. Whenever any
interest on and any principal of the Loans are paid
simultaneously hereunder, the whole amount paid shall be applied
first to interest then due and payable.
Section 2.11. Increased Capital Requirements. If any law
or any governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) or the
interpretation thereof by a court or governmental authority with
appropriate jurisdiction affects the amount of capital required
to be maintained by any Bank or any corporation controlling any
Bank and such Bank determines that the amount of capital required
is increased by or based upon the existence of the credit
facilities established hereunder or any Loans made pursuant
hereto, and such increase has or would have effect of reducing
the return on such Bank's equity to a level below that which such
Bank could have achieved (taking into consideration such Bank's
then existing policies with respect to capital adequacy and
assuming the full utilization of such Bank's capital) but for
such law, rule, regulation, policy, guideline or directive, then
such Bank shall notify the Agent, in writing of such fact, and
the Agent shall forthwith so notify the Borrower. The Borrower
agrees to pay to the Agent, for the account of such Bank, the
amount of such reduction as and when such reduction is
determined, upon presentation by such Bank of a statement in the
amount and setting forth such Bank's calculation thereof, which
statement shall be deemed true and correct absent manifest error.
In determining such amount, such Bank may use any reasonable
averaging and attribution methods. In this connection, such Bank
shall allocate such costs among its customers in good faith and
on an equitable basis.
Section 2.12. Funding Losses. If the Borrower for any
reason makes any payment of principal with respect to a
Eurodollar Loan on any date other than the scheduled maturity
thereof (other than a mandatory prepayment and simultaneous
borrowing of a like amount made pursuant to Section 2.10(d)), or
fails to borrow a Eurodollar Loan after giving a Loan Request
therefor, the Borrower shall reimburse each Bank for any
resulting loss or expense incurred by it, including without
limitation any loss incurred in obtaining, liquidating or
employing of deposits from third parties. The Borrower shall pay
to the Agent, for the account of each affected Bank, the amount
of such loss or expense upon presentation of a statement in the
amount thereof, which statement shall be deemed true and correct
absent manifest error.
Section 2.13. Use of Proceeds. The proceeds of each Loan
hereunder shall be used only to leverage the Borrower's portfolio
in accordance with the Partnership Agreement and applicable law
or regulation.
Section 2.14. Collateral Security for Loans. As a
condition precedent to making any Loan or continuing any Loan
made hereunder, at any time after a change in the condition or
affairs (financial or otherwise) of the Borrower reasonably
deemed by the Required Banks to be adverse and material, the
Agent may require the Borrower to pledge its portfolio securities
and other assets (the "Pledged Securities") to the Agent, for the
benefit of the Banks, as collateral for the Obligations, as
contemplated in and subject to the terms and conditions of the
Pledge Agreement. Upon demand by the Agent, the Borrower shall
forthwith grant to the Agent, for the benefit of the Banks, a
security interest in the Pledged Securities and deliver to the
Agent a Pledge Agreement and Collateral Agency Agreement with
respect to such Pledged Securities, and instruct the Custodian to
take any action necessary under the Collateral Agency Agreement
as the Agent may require to realize the full benefits of this
Section 2.14 and the security interest described herein.
Section 2.15. Pro Rata Treatment.
(a) Each Loan shall be made, and each payment of commitment
fee made to the Agent for the account of the Banks shall be
distributed, pro rata to the Banks in the proportion that each
Bank's Commitment Amount bears to the aggregate of all Banks'
Commitment Amounts. Each payment and prepayment of Loans made to
the Agent for the account of all of the Banks shall be
distributed pro rata to the Banks in proportion to the respective
amounts of the Loans outstanding immediately prior to such
payment or prepayment.
(b) Each reduction of the Commitment Amounts pursuant to
Section 2.4 shall reduce the applicable Commitment Amount of each
Bank pro rata in the proportion that each Bank's Commitment
Amount bears to the aggregate of all Banks' Commitment Amounts
immediately prior to such reduction.
Section 3. CONDITIONS PRECEDENT.
Section 3.1. Conditions of Closing. This Agreement shall
become effective upon the receipt by the Agent, with copies for
each Bank, of the following:
(a) an executed original counterpart of this Agreement;
(b) certified copies of any amendments to the Partnership
Agreement and the Management Agreement since June 30, 1993;
(c) certified copies of all documents relating to the due
authorization and execution by the Borrower of this Agreement as
the Agent may reasonably request, including, without limitation,
all partnership actions taken by the Borrower authorizing (i) the
execution and delivery by the Borrower of this Agreement and the
other Loan Documents, (ii) its performance of all of its
agreements and obligations under this Agreement and under the
other Loan Documents, and (iii) the borrowings and other
transactions contemplated by this Agreement and the other Loan
Documents;
(d) an incumbency certificate, dated the date hereof,
signed by an authorized General Partner, setting forth the names
and specimen signatures of each individual authorized to give
notices, sign or act on behalf of the Borrower in connection with
the transactions contemplated by this Agreement and the other
Loan Documents;
(e) certified copies of all documents relating to the
General Partner executing this Agreement on behalf of the
Borrower as the Agent may reasonably request, including, without
limitation, all resolutions or other actions taken by the
Borrower authorizing the execution and delivery by the General
Partner on behalf of the Borrower of this Agreement and the other
Loan Documents;
(f) an incumbency certificate, dated the date hereof,
signed by the Secretary or Assistant Secretary of the General
Partner acting on behalf of the Borrower hereunder, setting forth
the names and specimen signatures of each individual authorized
to give notices, sign or act on behalf of the Borrower in
connection with the transactions contemplated by this Agreement
and the other Loan Documents;
(g) good standing certificates from each of (i) Bermuda and
(ii) Massachusetts with respect to the Borrower and each General
Partner;
(h) a duly completed and executed Federal Reserve Form U-1,
describing all Margin Stock then held by the Borrower in its
investment portfolio and all Eligible Assets, in the form
required by such Form U-1;
(i) an opinion from Judy K. Mencher, Esq., counsel to the
Borrower, and Conyers, Dill & Pearman, special Bermuda counsel,
substantially in the form of Exhibit E attached hereto, in each
case given upon the express instructions of the Borrower (and by
its execution of this Agreement the Borrower confirms that it has
so instructed such counsel);
(j) receipt of the Agent's fee referred to in Section
2.6(a); and
(k) such other documents as any Bank shall have requested
in order to comply with applicable rules and regulations
promulgated by the Federal Reserve Board and other governmental
and regulatory authorities.
Section 3.2. Conditions of Loans. The obligation of the
Banks to make any Loan on a Borrowing Date shall be subject to
the satisfaction, at or before the time each such Loan is made,
of each of the following conditions precedent (unless and to the
extent that satisfaction of such conditions precedent or any of
them is waived pursuant to Section 16 hereof):
(a) The Agent shall have received a Loan Request from the
Borrower as required by Section 2.2, together with the schedule
of Margin Stock and Eligible Assets required by Section 2.1(a) or
(b), as applicable;
(b) The representations and warranties contained in this
Agreement and the other Loan Documents and otherwise made by or
on behalf of or with respect to the Borrower in connection with
the transactions contemplated by this Agreement and the other
Loan Documents shall (except to the extent that such
representations and warranties relate expressly to a specific
date, and except to the extent of changes resulting from the
transactions contemplated or permitted by this Agreement and the
other Loan Documents and changes occurring in the ordinary course
of business that, singly or in the aggregate, do not materially
adversely affect the Borrower or its business, assets,
operations, prospects or its condition (financial or otherwise)),
be true and correct at and as of such Borrowing Date;
(c) There shall exist no Default or Event of Default or
condition which would, with the giving of notice or the passage
of time or both, result in a Default or Event of Default upon the
making of the Loan;
(d) The Required Banks shall be satisfied that there has
been no material adverse change in the business, assets,
operations, prospects or condition (financial or otherwise) of
the Borrower since December 31, 1992; and
(e) The making of the Loan shall not contravene any law,
regulation, decree or order binding on the Borrower or any Bank,
and the Agent shall have received all such certificates and
documents in relation thereto as the Agent or the Agent's counsel
shall have reasonably requested.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Banks that:
Section 4.1. Organization, Qualification, Etc. (a) The
Borrower is duly organized and validly existing as a limited
partnership under the laws of Bermuda and is duly qualified to do
business in each other jurisdiction wherein the nature of its
properties or its business requires such qualification and in
which the failure to be so qualified could materially adversely
affect the business, assets or condition (financial or otherwise)
of the Borrower.
(b) Each of the Borrower's General Partners is duly
organized and validly existing under the laws of its jurisdiction
of incorporation and is duly qualified to do business in each
other jurisdiction wherein the nature of its properties or its
business requires such qualification and in which the failure to
be so qualified could materially adversely affect the business,
assets or condition (financial or otherwise) of such General
Partner.
Section 4.2. Authorization, Etc. The execution, delivery
and performance of this Agreement and the other Loan Documents by
the Borrower and the General Partner executing this Agreement and
the other Loan documents on behalf of the Borrower are within the
powers of the Borrower, have been duly authorized by all
necessary and proper action, and do not and will not (i) violate
or contravene any provision of the constituent documents of the
Borrower or such General Partner, or any amendment thereof, (ii)
conflict with, or result in a breach of any material term,
condition or provision of, or constitute a default under or
result in the creation of any mortgage, lien, pledge, charge,
security interest or other encumbrance upon any of the property
or assets of the Borrower (other than as contemplated by this
Agreement and the Pledge Agreement) under, any agreement, trust
deed, indenture, mortgage or other instrument to which the
Borrower is a party or by which the Borrower or any of its
property or assets is bound or affected, or (iii) violate or
contravene any provision of any material law, regulation, order,
ruling or interpretation thereunder or any decree, order or
judgment of any court or governmental or regulatory authority,
bureau, agency or official.
Section 4.3. Binding Effect of Agreement, Etc. This
Agreement and the other Loan Documents and all the provisions
hereof and thereof constitute legally valid and binding
obligations of the Borrower and the General Partners,
enforceable against the Borrower and the General Partners in
accordance with their respective terms, except as enforceability
is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement
of creditors' rights and except to the extent that the
availability of equitable remedies is subject to the discretion
of the court before which any proceeding therefor may be brought.
Section 4.4. Approvals, Etc. No authorization, approval,
consent or other action by, and no notice to or filing with, any
shareholder or creditor of the Borrower or any General Partner,
or governmental or regulatory agency or authority, is required to
make valid and legally binding the execution, delivery and
performance by the Borrower and the General Partners of this
Agreement or the other Loan Documents or the consummation by the
Borrower of the transactions contemplated hereby or thereby or
the exercise by the Banks of their rights and remedies hereunder
or thereunder.
Section 4.5. Compliance with Other Instruments. The
Borrower is in compliance with all investment policies and
restrictions identified in the Partnership Agreement and is in
compliance with all other provisions contained therein. The
Borrower is not in default under any indenture or agreement to
which it is a party or by which it or any of its property or
assets is bound, or in violation of any material applicable laws
or orders, regulations, rulings, decrees or requirements of a
court or governmental or regulatory agency or authority by which
it or any of its property or assets is bound, which default or
violation could have a material adverse effect on the business,
assets, operations, prospects or condition (financial or
otherwise) of the Borrower.
Section 4.6. Litigation. There are no pending or, to the
best knowledge of the Borrower, threatened actions, suits,
investigations or proceedings at law or in equity before any
federal, state, local or foreign court, governmental or
regulatory authority, agency, commission, board, bureau or
instrumentality, or board of arbitration, against or affecting
the Borrower or its right, title and interest in or to any of its
properties or assets.
Section 4.7. Taxes. The Borrower has made or filed all
federal, state, local, foreign and other tax returns, reports and
declarations required by any jurisdiction to which the Borrower
is subject, and has paid all taxes and other assessments and
charges shown or determined to be due on such returns, reports
and declarations or pursuant to any matters raised by audits or
for other reasons known to it, except those being contested in
good faith by appropriate proceedings and as to which there have
been set aside reserves adequate with respect to such tax,
assessment or charge so contested. The Borrower has set aside on
its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid
taxes claimed to be due by the taxing authority of any
jurisdiction, and the Borrower knows of no basis for any such
claim.
Section 4.8. Financial Statements; No Material Changes.
The Borrower has furnished to the Banks its Annual Report dated
as of December 31, 1992, setting forth the statement of assets
and liabilities, the statement of portfolio holdings and the
statements of capital accounts of the Borrower and of each
General Partner, as of the date of such Report; and the statement
of profits and loss of the Borrower as of the period then ended,
in each case certified by Coopers & Lybrand. The Borrower has
also furnished to the Banks its trial balance dated as of
February 28, 1994, setting forth the statement of assets and
liabilities of the Borrower as of such date and the statements of
portfolio holdings and profits and loss of the Borrower as of the
period then ended, prepared by management of the Borrower. All
such financial statements are complete and correct, and fairly
present the financial condition of the Borrower as of such dates
and the results of the operations of the Borrower for the periods
ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis. Since
December 31, 1992, there has been no change in the assets,
liabilities, business, condition (financial or otherwise) or
results of operations of the Borrower, that have been, in any
case or in the aggregate, materially adverse.
Section 4.9. No Defaults. No Default or Event of Default
has occurred and is continuing.
Section 4.10. Disclosure. The Borrower has delivered to
the Banks a true and complete copy of the Partnership Agreement
and the Management Agreement. Neither of such agreements nor
this Agreement, the other Loan Documents nor any of the
information concerning the Borrower submitted to the Banks in
connection herewith or therewith contains any untrue statement of
a material fact or omits to state a material fact necessary in
order to make the statements contained therein not misleading in
light of the circumstances in which they are made. Except as
disclosed herein or in the other Loan Documents, there is no fact
known to the Borrower that adversely affects, or that, in the
best judgment of the management of the Borrower, could in the
future materially adversely affect, the assets, business,
prospects, condition (financial or otherwise) or operations of
the Borrower.
Section 5. COVENANTS. The Borrower covenants and agrees
that, so long as any amounts are owing under this Agreement or
under any of the other Loan Documents or, if no such amount is
owing, so long as the Banks shall have any commitment to make
Loans hereunder as provided herein:
Section 5.1. Use of Proceeds. The Borrower shall use the
proceeds of Loans only for the purposes specified in Section
2.13.
Section 5.2. Punctual Payment. The Borrower will duly and
punctually pay or cause to be paid principal and interest and all
other sums due under this Agreement in accordance with the terms
hereof.
Section 5.3. Taxes, Etc. The Borrower will file all
federal, state, local, foreign and other tax returns, reports and
declarations required by any jurisdiction to which the Borrower
is subject on or before the due dates for the returns, reports
and declarations; and will pay and discharge, before the same
shall become in arrears, all taxes, assessments and other
governmental charges shown or determined to be due on such
returns, reports and declarations, unless, and in any such case,
the same is being contested in good faith by appropriate
proceedings and an adequate reserve therefor has been
established.
Section 5.4. Compliance with Law, Etc. The Borrower will
comply with (i) all applicable federal, state and local laws,
rules, regulations and governmental or regulatory directives
(whether or not having the force of law), and all orders, writs,
judgments, injunctions, decrees or awards to which it may be
subject; (ii) all of its investment policies and restrictions;
and (iii) the provisions of the Partnership Agreement and all
agreements and instruments by which it or any of its property or
assets may be affected or bound.
Section 5.5. Compliance with Regulations U and X. The
Borrower will, at any time and from time to time upon receipt of
notice from the Agent, at the request of any Bank, and at the
Borrower's expense, promptly execute and deliver or file all
additional instruments and documents, and take all further
action, that may be necessary or desirable, or that any Bank may
reasonably request, in order to fully comply with the
requirements of Regulation U and Regulation X.
Section 5.6. Notice of Certain Events. The Borrower will
give the Agent prompt written notice of:
(a) any change in any federal, state or local law, rule or
regulation or governmental or regulatory directive (whether or
not having the force of law) materially affecting the Borrower,
or any of its property or assets, or affecting the Borrower's
ability to repay the Loans and comply with the terms of this
Agreement;
(b) any change in its agreements with governmental
authorities or regulators or its investment policies or
restrictions that would make any of the information set forth in
Schedule I hereto incorrect, incomplete or misleading in any
material respect, and will prepare and submit to the Agent for
attachment to this Agreement an amendment to Schedule I
reflecting such change;
(c) any material change in its method of business or
amendments to the Partnership Agreement (it being understood that
any change in the investment restrictions and limitations on
indebtedness applicable to the Borrower shall constitute material
changes);
(d) the commencement of any litigation or any
administrative, regulatory or arbitration proceeding or
investigation to which the Borrower may hereafter become a party,
that may involve any material risk of any material final judgment
or liability not adequately covered by insurance or that may
otherwise result in any material adverse change in the business,
assets, operations, prospects or condition (financial or
otherwise) of the Borrower;
(e) any sales or other dispositions of Margin Stock in the
Borrower's investment portfolio or of Eligible Assets that would
cause the limitations set forth in Section 2.1 to be breached,
such notice to be accompanied by a revised schedule of Margin
Stock and Eligible Assets after giving effect to such sales or
other dispositions and any prepayment of Loans required by
Section 2.10(d); and
(f) the occurrence of any Default or Event of Default.
The Agent will promptly notify the Banks of each such notice from
the Borrower.
Section 5.7. Total Value, Net Asset Value, Etc. The
Borrower will, at any time and from time to time during normal
business hours, notify the Agent by telephone or in writing, as
requested by notice to the Agent from any Bank, of the
composition (by issuer) of its portfolio securities, the portion
of such securities that constitute Margin Stock and Eligible
Assets, identified by issuer, if any Bank so requests, the total
asset value of such Margin Stock and Eligible Assets, the net
asset value of such securities and the total value of the
unencumbered assets in the Borrower's portfolio, and any changes
in any of such values, in each case as most recently calculated.
Section 5.8. Reports, Additional Information, Etc. The
Borrower will furnish to the Banks:
(a) as soon as available, and not later than 125 days after
the end of each fiscal year of the Borrower, an Annual Report
including audited financial statements certified by Coopers &
Lybrand or other independent public accountants of national
standing, setting forth the statement of assets and liabilities,
the statement of portfolio securities and the statement of
capital accounts of the Borrower, each as of the end of such
fiscal year, and a statement of profit and loss of the Borrower
for the fiscal period then ended;
(b) as soon as available, and not later than 50 days after
the end of the first six months of each fiscal year of the
Borrower, a Semi-Annual Report prepared by the Borrower, setting
forth the Statement of Assets and Liabilities and Statement of
Portfolio Securities of the Borrower as of the end of such fiscal
quarter and a Statement of Profit and Loss of the Borrower for
the fiscal period then ended;
(c) on request by the Agent, on behalf on any Bank, and in
any event not later than 45 days after the end of the first and
third fiscal quarters of the Borrower, a trial balance sheet as
of the last day of such quarter, and a list of all portfolio
securities (broken down by issuer and industry concentrations,
and indicating whether such securities are Margin Stock or
Eligible Assets) as of such date, certified by the principal
financial officer of the Borrower and accompanied by a revised
schedule of Margin Stock and Eligible Assets as of such date;
(d) upon request by the Agent, on behalf of any Bank,
within 10 Business Days after the issuance thereof, copies of all
other public regular and periodic reports and any other reports
that the Borrower may be required to file with any governmental
or regulatory agency or authority;
(e) upon execution thereof, a copy of any amendment to the
Partnership Agreement or the Management Agreement;
(f) promptly after delivery thereof, a copy of any report
or information delivered to the limited partners of the Borrower;
and
(g) such other information with respect to the financial
standing and history or the business, property, assets or
prospects of the Borrower as any Bank may, at any time and from
time to time, reasonably request.
Section 5.9. Further Assurances. The Borrower will, at any
time and from time to time, execute and deliver such additional
instruments and take such further action as the Agent may
reasonably request to carry out to the Agent's satisfaction the
transactions contemplated by this Agreement and the other Loan
Documents, including without limitation such documents as may be
required by the Agent to ensure the validity, perfection or
priority of its security interest in the Pledged Securities.
Section 5.10. Negative Pledge on Assets. The Borrower will
not create or permit to exist any lien or encumbrance upon any of
its property or assets in favor of any person or entity other
than the Banks, other than (i) liens granted to secure the
Borrower's obligations with respect to unfunded liabilities on
open commitments to purchase loans and loan participations, so
long as such liens do not exceed $2,000,000 individually or in
the aggregate; and (ii) liens granted in connection with short
sales transactions engaged in to the extent permitted by the
Partnership Agreement and consistent with the Borrower's
investment policies.
Section 5.11. Limitation on Additional Indebtedness. The
Borrower will not incur or permit to exist or remain outstanding
any Indebtedness to any person or entity, other than the
following:
(a) Indebtedness in respect of taxes, assessments and other
governmental charges to the extent that payment thereof is not at
the time required to be made or is being contested in good faith
by appropriate proceedings and for which an adequate reserve has
been established;
(b) Indebtedness of the Borrower to the Banks arising under
this Agreement;
(c) unsecured Indebtedness of the Borrower to any partner
of the Borrower, provided that such Indebtedness is subordinated
to the Obligations on terms and conditions satisfactory to the
Required Banks; and
(d) Indebtedness of the Borrower incurred in connection
with short sales transactions engaged in to the extent permitted
by the Partnership Agreement and consistent with the Borrower's
investment policies; provided, that all such Indebtedness
permitted by clauses (b), (c) and (d) of this Section 5.11 shall
not at any time exceed 25% of the value of the total assets of
the Borrower; and provided, further, that if at any time the
securities of any single issuer shall constitute more than 20% of
the current market value of the total assets of the Borrower, due
to market appreciation, then the amount of Indebtedness permitted
by clauses (b), (c) and (d) of this Section 5.11 shall be reduced
by the amount of such excess.
Section 5.12. Restrictions on Portfolio Investments. The
Borrower will not at any time permit (i) the securities of
issuers in any single industry to constitute more than 35% of the
value of the total assets of the Borrower, valued at cost, (ii)
the securities of any single issuer to constitute more than 20%
of the total assets of the Borrower, valued at cost; or (iii)
securities that are Margin Stock to constitute more than 50% of
the total assets of the Borrower, valued at cost.
Section 5.13. Restrictions on Fundamental Changes. The
Borrower will not change in any material manner its operations or
any material provision of the Management Agreement or the
Partnership Agreement.
Section 6. EVENTS OF DEFAULT; ACCELERATION.
Section 6.1. Events of Default; Acceleration. If any of
the following events ("Events of Default" or, if the giving of
notice or the lapse of time or both is required, then, prior to
such notice and/or lapse of time, "Defaults") shall occur:
(a) if the Borrower shall fail to pay any principal of any
Loan outstanding to it hereunder when the same shall become due
and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for
payment;
(b) if the Borrower shall fail to pay any interest on any
Loan outstanding to it when the same shall become due and
payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for
payment, and such failure shall continue unremedied for five
Business Days;
(c) if the Borrower shall fail to pay any fees due
hereunder when the same shall become due and payable, and such
failure shall continue unremedied for five Business Days;
(d) if the Borrower shall fail to perform, discharge,
observe or comply with any of the terms, covenants and agreements
contained in Section 5.1, 5.6(e) or 5.7 through 5.13;
(e) if the Borrower shall fail to perform, discharge,
observe or comply with any of the terms, covenants and agreements
contained herein (other than those specified in clauses (a), (b),
(c), and (d) of this Section 6.1), and such failure shall
continue unremedied for 30 days after written notice of such
failure has been given to the Borrower by Agent or any Bank;
(f) if any representation or warranty of the Borrower
contained in this Agreement or any other document or instrument
delivered by the Borrower pursuant to or in connection with this
Agreement shall prove to have been false or misleading in any
material respect as of the time when made or deemed to have been
made;
(g) if the Borrower shall fail in the performance or the
payment, at maturity or within an applicable period of grace, of
any obligation contained in any agreement or instrument
evidencing any other Indebtedness with respect to borrowed money
or credit received in amounts exceeding $2,000,000 (individually
or in the aggregate), or any mortgage, pledge, agreement,
indenture or other agreement relating thereto, for such period of
time as would, or would have permitted (assuming the giving of
appropriate notice if required) the holder or holders thereof or
of any obligations issued thereunder to accelerate the maturity
thereof;
(h) if the Borrower or any General Partner makes an
assignment for the benefit of creditors, or admits in writing its
inability to pay or generally fails to pay its debts as they
mature or become due, or petitions or applies for the appointment
of a trustee or other custodian, liquidator or receiver of the
Borrower or such General Partner or of any substantial part of
the property or assets of the Borrower or such General Partner or
commences any case or other proceeding relating to the Borrower
or such General Partner under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter
in effect, or takes any action to authorize or in furtherance of
any of the foregoing;
(i) if any such petition or application is filed or any
such case or other proceeding is commenced against the Borrower
or any General Partner and the Borrower or such General Partner
indicates its approval thereof, consent thereto or acquiescence
therein or an order for relief or appointing any such trustee,
custodian, liquidator or receiver is entered adjudicating the
Borrower or such General Partner bankrupt or insolvent, or
approving a petition in any such case or other proceeding, and
such order remains in effect for more than 60 days, whether or
not consecutive;
(j) if there shall remain in force, undischarged,
unsatisfied and unstayed, for more than 30 days, whether or not
consecutive, any final judgment against the Borrower that, with
other outstanding final judgments undischarged against the
Borrower, (i) exceeds, in the aggregate, $2,000,000 or (ii) shall
have a materially adverse effect upon the business, assets,
operations, prospects or condition (financial or otherwise) of
the Borrower;
(k) if there shall occur a material adverse change in the
business, assets, operations, prospects or condition, financial
or otherwise, of the Borrower; then and in any such event and
subject to the proviso at the end of this Section 6.1, the Agent
shall, at the request of the Required Banks, by written notice to
the Borrower declare (i) the obligation of the Banks to make
Loans to the Borrower to be terminated, whereupon the same shall
terminate, (ii) the Loans of the Borrower, all interest thereon
and all other amounts payable by the Borrower under this
Agreement to be forthwith due and payable, whereupon such Loans,
all such interest and all such other amounts shall become and be
forthwith due and payable without presentment, demand, protest or
notice (other than as required above), all of which are expressly
waived by the Borrower, provided that upon the occurrence of any
of the events specified in clauses (h) or (i) of this Section
6.1, such termination of the obligations to make Loans and
acceleration of the maturity of the Loans shall occur
automatically and without any action by the Banks. In case any
one or more of the Events of Default shall have occurred and be
continuing, and whether or not the Banks shall have accelerated
the maturity of the Loans of the Borrower pursuant to the
foregoing, the Agent shall, at the request of the Required Banks,
proceed to protect and enforce its rights by suit in equity,
action at law and/or other appropriate proceeding, whether for
the specific performance of any covenant or agreement contained
in this Agreement or any instrument pursuant to which the
obligations of the Borrower to the Banks hereunder are evidenced,
and, if such amount shall have become due, by declaration or
otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of the Banks hereunder and under the
Pledge Agreement. No remedy conferred upon the Banks herein and
in the Pledge Agreement is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other
provision of law.
Section 7. SET-OFF. Regardless of the adequacy of any
collateral, any deposits, balances or other sums credited by or
due from any Bank or any of their branch offices to the Borrower,
other than participations in loans that may have been purchased
by the Borrower from such Bank, may, at any time and from time to
time after the occurrence and during the continuation of an Event
of Default hereunder, without notice to the Borrower or
compliance with any other condition precedent now or hereafter
imposed by statute, rule of law, or otherwise (all of which are
hereby expressly waived) be set off, appropriated, and applied by
such Bank against any and all Obligations of the Borrower to such
Bank in such manner as such Bank in its sole discretion may
determine, and the Borrower hereby grants such Bank a continuing
security interest in such deposits, balances or other sums for
the payment and performance of all Obligations. Each Bank agrees
with the other Banks that (a) if an amount to be set off is to be
applied to Indebtedness of the Borrower to such Bank other than
the Obligations, such amount shall be applied first to the
Obligations and the excess, if any, may be applied to such other
Indebtedness and (b) if such Bank shall receive from the
Borrower, whether by voluntary payment, exercise of the right of
setoff, counterclaim, cross action, enforcement of the
Obligations of the Borrower owed to such Bank by proceedings
against the Borrower at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the
payment of the Obligations of the Borrower owed to such Bank any
amount in excess of its ratable portion of the payments received
by all Banks, such Bank will make such disposition and
arrangement with the other Banks with respect to such excess,
either by way of participation, distribution, assignment of
claims, subrogation or otherwise as shall result in each Bank's
receiving in respect of the Obligations of the Borrower owed to
it, its ratable portion; provided, however, that if all or any
part of such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded and
the amount restored to the extent of such recovery, but without
interest. As used in this Section, "ratable" shall refer to the
proportion that each Bank's Loans bears to the aggregate of all
Banks' Loans.
Section 8. EXPENSES. Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to
reimburse the Agent upon demand for all reasonable expenses,
including but not limited to reasonable attorneys' fees and
disbursements (and the allocated costs of in-house counsel for
the Agent), incurred or expended in connection with the
preparation or interpretation of this Agreement or any amendment
hereof; and the Borrower further agrees to reimburse each Bank
upon demand for all reasonable expenses, including but not
limited to reasonable attorneys' fees and disbursements (and the
allocated costs of in-house counsel) incurred or expended in
connection with the enforcement of any obligations or the
satisfaction of any indebtedness of the Borrower hereunder, or in
connection with any litigation, legal proceeding or dispute
hereunder in any way related to such Bank's relationship
hereunder.
Section 9. SURVIVAL OF COVENANTS, ETC. All covenants,
agreements, representations and warranties made herein and in the
other Loan Documents or in any documents or other papers
delivered by, or on behalf of, the Borrower pursuant hereto shall
be deemed to have been relied upon by the Banks, notwithstanding
any investigation heretofore or hereafter made by it, and shall
survive the making by the Banks of the Loans, as herein
contemplated, and shall continue in full force and effect so long
as any amount due under this Agreement remains outstanding and
unpaid or any Bank has any obligation to make any Loans
hereunder. All statements contained in any certificate, document
or other paper delivered by any authorized person to the Agent or
any Bank at any time by or on behalf of the Borrower pursuant
hereto or in connection with the transactions contemplated hereby
shall constitute representations and warranties by the Borrower
hereunder.
Section 10. INDEMNIFICATION. The Borrower agrees to
indemnify and hold harmless each Bank from and against any and
all claims, actions and suits whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this
Agreement or the transactions evidenced hereby; provided that no
Bank shall have the right to be indemnified hereunder with
respect to any such claims, actions, suits, liabilities, losses,
damages and expenses to the extent arising as a result of its own
gross negligence or willful misconduct; and provided, further
that if the Borrower shall exercise its right to participate in
the resolution of any dispute, as contemplated in the following
sentence, the Borrower shall not be liable for any settlement,
compromise or consent to the entry of any order adjudicating or
otherwise disposing of any claim, action, suit, liability, loss,
damage or expense effected without the consent of the Borrower.
Should any claim be made by a person not a party to this
Agreement with respect to any matter to which the foregoing
indemnity relates, the affected Bank shall promptly notify the
Agent, which shall forthwith notify the Borrower of any such
claim, and the Borrower shall have the right to direct and
control the defense of such claim or any litigation based thereon
at its own expense through counsel of its own choosing, without
becoming a party to such litigation.
Section 11. EFFECT OF AGREEMENT; SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Agent and the Banks and their
respective successors and assigns; provided that the Borrower may
not assign or transfer its rights hereunder without the prior
written consent of all of the Banks.
(b) Any Bank may (i) without the consent of the Agent or
the Borrower if the proposed assignee is a Bank hereunder or (ii)
otherwise with the consent of the Agent and the Borrower, which
consent shall not be unreasonably withheld or delayed, assign to
one or more assignees (each, an "Assignee") all or a portion of
such Bank's interests, rights and obligations under this
Agreement and the other Loan Documents, its Commitment Amount and
the Loans at the time owing to it; provided, however, that (y)
the aggregate Commitment Amount and Loans subject to each such
assignment (determined as of the date the Assignment and
Acceptance Agreement referred to in the following clause (z) with
respect to such assignment is delivered to the Agent) shall not
be less than $5,000,000, and (z) the parties to each such
assignment shall execute and deliver to the Agent an "Assignment
and Acceptance Agreement", substantially in the form of Exhibit D
hereto, and a processing and recordation fee of $2,500. Upon
acceptance and recording pursuant to subsection (d) of this
Section 11, from and after the effective date specified in each
Assignment and Acceptance Agreement (which effective date shall
be at least five Business Days after the execution thereof) (A)
the Assignee shall be a party hereto and, to the extent provided
in such Assignment and Acceptance Agreement, have the rights and
obligations of a Bank under this Agreement and (B) the assigning
Bank shall, to the extent provided in such assignment, be
released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance Agreement covering all or
the remaining portion of an assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Section 10, as well as to any fees accrued for its account
hereunder and not yet paid).
(c) The Agent shall maintain at its head office in Boston,
Massachusetts a copy of each Assignment and Acceptance Agreement
delivered to it and a register for the recordation of the name
and address of each Bank, and the Commitment Amount of, and
principal amount of the Loans owing to, each Bank from time to
time. The entries in such register shall be conclusive in the
absence of manifest error and the Borrower, the Agent, and the
Banks may treat each person whose name is recorded in the
Register as a Bank for all purposes of this Agreement. Such
register shall be available for inspection by the Borrower and
the Banks, at any reasonable time upon reasonable prior notice.
(d) Upon its receipt of a completed Assignment and
Acceptance Agreement executed by an assigning Bank and an
Assignee together with the processing and recordation fee
referred to in subsection (b) above, the Agent shall (i) accept
such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the register referred to in
subsection (c) and (iii) give prompt notice thereof to the
Borrower.
(e) Each Bank may, without the consent of the Borrower or
the Agent, sell to one or more entities participations in all or
a portion of its interests, rights and obligations under this
Agreement and the other Loan Documents (including all or a
portion of its Commitment Amount and the Loans owing to it);
provided, however, that (i) such Bank's obligations under this
Agreement shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the
performance of such obligations, and (iii) the Agent and such
Bank shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement, and such Bank shall retain the sole right to enforce
the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of
this Agreement (other than amendments, modifications or waivers
with respect to the matters set forth in Section 18 requiring the
consent of all of the Banks).
(f) Each Bank may at any time pledge or assign all or any
portion of its rights under this Agreement to a Federal Reserve
Bank, and the Borrower agrees to issue to such Bank at such
Bank's request a promissory note in form and substance reasonably
satisfactory to such Bank to facilitate such pledge or
assignment. No such pledge or assignment shall release such Bank
from its obligations hereunder.
Section 12. NOTICES, ETC. Except as otherwise expressly
provided in this Agreement, all notices and other communications
made or required to be given pursuant to this Agreement shall be
in writing and shall be delivered by hand, mailed by United
States first class mail, postage prepaid, by accepted express
mail service, postage prepaid, or sent by telegraph, telex or
such Bank's facsimile transmission and confirmed by letter,
addressed as follows:
(a) if to the Borrower, at:
Belmont Fund, L.P.
c/o Fidelity Management Trust Company
Mailzone F7E
82 Devonshire Street
Boston, MA 02109
Facsimile: (617) 570-7458
Attention: Portfolio Manager
and with a copy to:
Fidelity Management Trust Company
Mailzone N8A
82 Devonshire Street
Boston, MA 02109
Facsimile: (617) 227-3893
Attention: Manager Trust Operations
and with a copy to:
Judy K. Mencher, Esq.
Associate General Counsel
Fidelity Investments
Mailzone F7D
82 Devonshire Street
Boston, MA 02109
Facsimile: (617) 570-7688
or at such other address for notice as the Borrower shall
last have furnished in writing to the Agent; or
(b) if to the Agent, at
[ ]
[ ]
Boston, Massachusetts [ ]
Facsimile: [ ]
Attention: [ ]
or at such other address for notice as the Agent shall last
have furnished in writing to the Borrower; or
(c) if to any Bank, to the address set forth beneath the
name of such Bank on the signature pages hereof, or in the
Assignment and Acceptance Agreement applicable thereto, or
at such other address for notice as any Bank shall last have
furnished in writing to the Agent and the Borrower.
Any such notice shall be deemed to have been duly given or made
and to have become effective (a) if delivered by hand to a
responsible officer of the party to which it is directed, at the
time of receipt thereof by such officer, (b) if sent by
registered or certified first class mail, postage prepaid, three
Business Days after the posting thereof, (c) if sent by accepted
express mail service, postage prepaid, one Business Day after
posting thereof, and (d) if sent by facsimile transmission, telex
or cable, at the time of receipt of any automatic answer-back or
other similar acknowledgment of receipt thereof.
Section 13. GOVERNING LAW; CONSENT TO JURISDICTION. This
Agreement is intended to take effect as a sealed instrument and
shall be governed by, and construed in accordance with, the laws
of The Commonwealth of Massachusetts. The Borrower agrees that
any suit for the enforcement of this Agreement or any of the
other Loan Documents may be brought in the courts of The
Commonwealth of Massachusetts or any Federal Court sitting
therein and consents to the non-exclusive jurisdiction of such
court and to service of process in any such suit being made upon
the Borrower by mail at the address specified in Section 12
hereof. The Borrower hereby waives any objection that it may now
or hereafter have to the venue of any such suit or any such court
or that such suit was brought in an inconvenient court.
Section 14. THE AGENT.
Section 14.1. Appointment, Powers and Immunities. Each
Bank hereby appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents (including, without
limitation, the authorization to enter into the Loan Documents as
agent on behalf of the Banks and to bind the Banks to the terms
thereof) with such powers as are specifically delegated to the
Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this
sentence and in Section 14.4 hereof and the first sentence of
Section 14.5 hereof shall include reference to its officers,
directors, employees and agents): (i) shall have no duties or
responsibilities except those expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason
of this Agreement or any other Loan Document be a trustee for any
Bank; (ii) shall not be responsible to the Banks for any
recitals, statements, representations or warranties of the
Borrower or any other Person contained in this Agreement or in
any other Loan Document or in any certificate or other document
received by any of them hereunder or thereunder, or for the
value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for
any failure by the Borrower or any other person or entity to
perform any of its obligations hereunder or thereunder, or for
the satisfaction of any condition precedent specified in Section
3 hereof (except receipt of documents required to be delivered to
the Agent hereunder); (iii) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or
under any other Loan Document unless it shall have been so
directed by the Required Banks; and (iv) shall not be responsible
for any action taken or omitted to be taken by it hereunder or
under any other Loan Document, except for its own gross
negligence or willful misconduct. The Agent may employ agents
and attorneys-in-fact selected by it in good faith. The Agent
may deem and treat each Bank as the party entitled to receive any
amounts hereunder for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have
been filed with the Agent.
Section 14.2. Reliance by Agent. The Agent shall be
entitled to rely upon any certificate, notice or other
communication (including any thereof by telephone, telex,
telegram or cable) reasonably and in good faith believed by it to
be genuine and correct and to have been signed or sent by or on
behalf of the proper person or entity, and upon advice and
statements of legal counsel, independent accountants and other
experts selected by the Agent. As to any matters not expressly
provided for by this Agreement or any other Loan Document, the
Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions
signed by the Required Banks, and such instructions of the
Required Banks and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks.
Section 14.3. Defaults. The Agent shall not be deemed to
have knowledge of the occurrence of a Default or an Event of
Default (other than the non-payment of principal of or interest
on Loans or the non-payment of any fees payable hereunder) unless
the Agent has received notice from a Bank or the Borrower
specifying such Default or Event of Default and stating that such
notice is a "Notice of Default". In the event that the Agent
receives such a notice of the occurrence of a Default or an Event
of Default, the Agent shall give prompt notice thereof to the
Banks (and shall give each Bank prompt notice of each such non-
payment). The Agent shall (subject to Sections 14.1 and 14.5
hereof) take such action with respect to such Default or Event of
Default as shall be directed by the Required Banks; provided,
however, that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in
the best interest of the Banks.
Section 14.4. Indemnification. The Banks agree to
indemnify the Agent (to the extent not reimbursed under Section
10 hereof, but without limiting the obligations of the Borrower
under said Section 10 hereof), ratably in accordance with the
aggregate principal amount of the Loans made by the Banks (or, if
no Loans are at the time outstanding, ratably in accordance with
their respective Commitment Amounts), for any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out
of this Agreement or any of the other Loan Documents or the
transactions contemplated hereby (including, without limitation,
the costs and expenses which the Borrower is obligated to pay
under Section 10 hereof) or thereby or the enforcement of any of
the terms hereof or thereof, provided that no Bank shall be
liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the Agent.
Section 14.5. Agent and Affiliates. With respect to its
Commitment Amount and the Loans made by it, the Agent shall have
the same rights and powers under the Loan Documents as any other
Bank and may exercise the same as though it were not the Agent;
and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include the Agent in its capacity as a Bank.
[ ] shall have no duty to disclose to the other Banks
any information obtained by it in its capacity as a Bank as
opposed to any information obtained by it in its capacity as the
Agent. [ ] and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Borrower and
any person or entity that may do business with or own securities
of the Borrower, all as if [ ] were not the Agent
hereunder and without any duty to account therefor to the Banks.
Section 14.6. Non-reliance on Agent. Each Bank (and each
successor and assignee thereof) agrees that it has, independently
and without reliance on the Agent or any other Bank, and based on
such documents and information as it has deemed appropriate, made
its own credit analysis and evaluation of the Borrower and its
Subsidiaries and filings relating thereto, the manner of
perfection of the security interest in any collateral provided
hereunder and under the Pledge Agreement and its own decision to
enter into the Loan Documents and make the Loans and that it
will, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under the
Loan Documents. The Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower of
this Agreement or the other Loan Documents or to inspect the
properties or books of any party. Except for notices, reports
and other documents and information expressly required to be
furnished to the Banks by the Agent hereunder or under the other
Loan Documents, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or
business of the Borrower that may come into the possession of the
Agent or any of its affiliates as a result of its or their
independent dealings with the Borrower; provided that the Agent
shall endeavor to provide the Banks with such other information
as it may receive in its capacity as Agent hereunder.
Section 14.7. Failure to Act. Except for action expressly
required of the Agent hereunder or under any other Loan Document,
the Agent shall in all cases be fully justified in failing or
refusing to act hereunder or thereunder unless it shall be
indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
Section 14.8. Resignation or Removal of Agent. Subject to
the appointment and acceptance of a successor Agent as provided
below, the Agent may resign at any time by giving notice thereof
to the Banks and the Borrower; and the Agent may be removed at
any time with or without cause by the Required Banks. Upon any
such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent reasonably satisfactory to the
Borrower. If no such successor Agent shall have been so
appointed by the Required Banks and shall have accepted such
appointment within 30 days after the retiring Agent's giving of
notice of resignation or the Required Banks' removal of the
retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor agent reasonably satisfactory to the
Borrower, which shall be a bank which has an office in the United
States of America with a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. After
any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section 14 shall continue in effect of its
benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent.
Section 15. MISCELLANEOUS. The rights and remedies herein
expressed are cumulative and not exclusive of any other rights
that the Banks or the Borrower, as the case may be, would
otherwise have. The captions in this Agreement are for
convenience of reference only and shall not define or limit the
provisions hereof. This Agreement and any amendment hereof may
be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and
delivered shall be an original, but all of which together shall
constitute one instrument. In proving this Agreement, it shall
not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is
sought.
Section 16. SEVERABILITY. If any of the provisions of this
Agreement or the application thereof to any party hereto or to
any person or entity or circumstance is held to be invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other term or
provision hereof or thereof or the application thereof to any
other party hereto or to any other person or entity or
circumstance.
Section 17. ENTIRE AGREEMENT, ETC. This Agreement,
together with the other Loan Documents and any other documents
executed in connection herewith and therewith expresses the
entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated
orally or in writing, except as provided in Section 18 hereof.
Section 18. CONSENTS, AMENDMENTS, WAIVERS, ETC. (a) Except
as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement to be given by
the Banks may be given, and any term of this Agreement or of any
other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower of any
terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default or any condition
or term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but
only with, the written consent of the Borrower and the written
consent of the Agent or the requisite number of Banks, as
provided in the immediately following sentence. The Agent shall
not, without the prior written consent of the Required Banks,
agree to the modification, amendment, waiver or release of any of
the terms of this Agreement, the Pledge Agreement, the Collateral
Agency Agreement or the Obligations, or any other document
relative thereto, to consent to any action or failure to act by
the Borrower, and to exercise or refrain from exercising any
powers or rights which the Lenders may have under or in respect
of this Agreement, the Pledge Agreement, the Collateral Agency
Agreement or the Obligations or any collateral therefor,
including, without limitation, the right to enforce the
obligations of the Borrower or any other party; provided that the
Agent shall not, without the prior written consent of the all of
the Banks, agree (i) to increase the Commitment Amounts; (ii) to
reduce or forgive the principal of or reduce the rate of interest
on any Loan or postpone any date fixed for any payment of
principal of or interest on any Loan; (iii) to reduce any fee
payable under this Agreement or release any collateral granted or
to be granted in respect of the Obligations; (iv) to any
amendment, modification or waiver of the definition of "Required
Banks", Section 2.8(b), 2.11, 2.12, 2.15, 7 or this Section 18;
or (v) to agree to permit the Borrower to change in any material
manner its operations or any material provision of the Management
Agreement or the Partnership Agreement; and provided, further
that the Agent's consent shall be required for any such
modification, waiver, release or amendment that would affect the
rights and liabilities of the Agent. The Agent shall be fully
protected in refraining from acting in accordance with, and each
Lender shall be bound by, the withholding of consent by the Banks
or Required Banks, as applicable.
(b) No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent
or any Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to the
Borrower shall entitle the Borrower to other or further notice in
similar or other circumstances.
Section 19. WAIVER OF JURY TRIAL. THE BANKS AND THE
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 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 SECTION HAVE BEEN FULLY
DISCUSSED BY THE BANKS AND THE BORROWER, AND THESE PROVISIONS
SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER ANY BANK NOR THE
BORROWER HAS AGREED WITH OR REPRESENTED TO THE OTHER THAT THE
PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be duly executed as an instrument under seal by
its duly authorized officer as of the date first written above.
BELMONT FUND, L.P.
By: Fidelity Management Trust Company,
pursuant to a Power of Attorney for
Fidelity International Services
Limited, Managing General Partner
By:____________________________________
Title:_________________________________
[ ], as Agent
By:____________________________________
Title:_________________________________
COMMITMENT AMOUNT [ ]
$40,000,000 [ ]
Boston, Massachusetts [ ]
By:____________________________________
Title:_________________________________
COMMITMENT AMOUNT [ ]
$10,000,000 [ ]
New York, New York [ ]
By:____________________________________
Title:_________________________________
COMMITMENT AMOUNT [ ]
$10,000,000 [ ]
[ ]
New York, New York [ ]
By:____________________________________
Title:_________________________________
TOTAL COMMITMENT AMOUNTS: $60,000,000
BELMONT FUND, L.P.
AMENDED AND RESTATED CREDIT AGREEMENT
Amendment No. 1
This Agreement dated as of August 17, 1994 (the "Agreement")
is among Belmont Fund, L.P., a Bermuda limited partnership (the
"Company"), the Banks party hereto and
[ ], as agent for itself and the other Banks. The
parties agree as follows:
1. Reference to Credit Agreement; Definitions. Reference is
made to the Amended and Restated Credit Agreement dated as of
April 11, 1994, as in effect on the date hereof prior to giving
effect to this Agreement (the "Credit Agreement"), among the
Company, the Banks from time to time party thereto and the Agent.
Terms defined in the Credit Agreement as amended hereby (the
"Amended Credit Agreement") and not otherwise defined herein are
used herein with the meaning so defined.
2. Effectiveness. Upon the execution and delivery hereof, the
amendments set forth in Section 3 shall become effective as of
August 17, 1994; provided, however, that if the Commitment Expiry
Date is extended pursuant to Section 2.4 (d) of the Credit
Agreement, the amendments set forth in Sections 3.1.2, 3.2 and
3.3. hereof shall cease to be effective on December 30, 1994 and
the provisions of the Credit Agreement which were amended thereby
shall revert and read the same as said provisions read
immediately prior to the effectiveness of the amendments set
forth in said Sections 3.1.2, 3.2 and 3.3 and on and after
December 30, 1994 the aggregate Commitment Amount of all Banks
shall be reduced to $60,000,000, pro rata in accordance with each
Bank's Commitment Amount immediately prior to the effectiveness
of this Agreement.
3. Amendments to Credit Agreement.
3.1. Amendment to Section 1.1.
3.1.1. The definition of "Commitment Amount" is
hereby amended to read in its entirety as follows:
"Commitment Amount. The maximum amount of each Bank's
commitment to make Loans to the Borrower is as set forth
next to the name of each Bank on Exhibit A to Amendment
Number 1 to this Agreement (adjusted as set forth on said
Exhibit A and as adjusted from time to time pursuant to
Section 11 hereof). The aggregate amount of all Banks'
Commitment Amount shall be $85,000,000 upon the
effectiveness of Amendment Number 1 to this Agreement as the
same may be reduced from time to time pursuant to Section
2.4 hereof or pursuant to Section 2 of Amendment Number 1 to
this Agreement, or be terminated pursuant to Section 2.4 or
Section 6.1 hereof."
3.1.2. The definition of "Maximum Amount" is
hereby amended to read in its entirety as follows:
"Maximum Amount. With respect to the Borrower, and on any
date of determination, an amount equal to the least of (i)
$85,000,000, or (ii) 33% of the value of the Borrower's
total assets at such time, or (iii) the maximum amount the
Borrower is permitted to borrow hereunder at such time
under:
(a) applicable federal or state laws, statutes
and regulations;
(b) agreements (whether or not having the force
of law) by the Borrower with federal, state, local or
foreign governmental agencies, authorities or
regulators, as more particularly described in Part 1 of
Schedule I hereto, as amended and in effect from time
to time; or
(c) limitations on borrowing adopted by the
Borrower and described in the Partnership Agreement or
elsewhere, as more particularly described in Part 2 of
Schedule I hereto, as amended and in effect from time
to time."
3.2. Amendment to Section 5.11. The proviso at the end
of Section 5.11 is hereby amended by substituting the figure
"33%" for the figure "25%" appearing therein and by
substituting the figure "25%" for the figure "20%" appearing
therein.
3.3. Amendment to Clause (ii) of Section 5.12. Clause
(ii) of Section 5.12 is hereby amended by substituting the
figure "25%" for the figure "20%" appearing therein.
3.4. Deletion of Clause (iii) of Section 5.12. Clause
(iii) of Section 5.12 is hereby deleted, the word "or"
appearing immediately prior to said clause (iii) is hereby
moved immediately prior to clause (ii) of Section 5.12 and a
period is substituted for the semicolon appearing at the end
of said clause (ii).
4. Representations and Warranties. In order to induce the
Banks and the Agent to enter in to this Agreement, the Borrower
hereby represents and warrants that after giving effect to the
amendments provided for in this Agreement, the representations
and warranties set forth in Section 4 of the Amended Credit
Agreement are true and correct on and as of the date hereof.
5. Amendment Fee. Upon the effectiveness hereof, the Company
will pay (a) to each of the Banks for its account an amendment
fee equal to .1% of each Bank's Commitment Amount set forth in
the first column of Exhibit A and (b) to the Agent for its
account an Agent's fee based on the increase in the Banks'
aggregate Commitment Amounts giving effect to this Agreement for
the period from the date hereof to and including December 30,
1994.
6. Closing Documents. The effectiveness of this Agreement
shall be conditioned upon the receipt by the Agent of such
documents as the Agent may reasonably request in order to
evidence the due execution, delivery, enforceability and legality
of this Agreement and the Amended Credit Agreement, including
Federal Reserve Board Forms U-1 and opinions of counsel addressed
to the Banks.
7. Miscellaneous. This Agreement may be executed in any number
of counterparts, which together shall constitute one instrument,
and shall bind and inure to the benefit of the parties and their
respective successors and assigns, including as such successors
and assigns all holders of any Note. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (OTHER THAN
THE CONFLICT OF LAWS RULES) OF THE COMMONWEALTH OF MASSACHUSETTS.
