EXHIBIT B-1
FORM OF CREDIT AGREEMENT
Borrower: _________________________
Commitment: $________________________
Availability: For cash advances against the Borrower's promissory notes, in an
appropriate form similar to either Exhibit A or Exhibit B hereto,
provided that all loans mature before ______________________.
Conditions The Bank shall have no obligation to make advances
Precedent: hereunder unless it has received:
a) the Note(s), and a copy of this Agreement, all duly
executed;
b) certified (as of the date of this Agreement) copies of (i)
the charter and by-laws of the Borrower and (ii) all
corporate action taken by the Borrower, including
resolutions of its Board of Directors, authorizing the
execution, delivery, and performance of this Agreement and
the Note(s) and each other document to which it is a party
to be delivered pursuant to this Agreement;
c) a certificate (dated as of the date of this Agreement) of
the Secretary of the Borrower certifying the name and true
signatures of the officers of the Borrower authorized to
sign this Agreement and the Note(s) and the other documents
to be delivered by the Borrower under this Agreement;
d) such financial and other information bearing on the
Borrower's credit as the Bank may from time to time
reasonably request (including, but not limited to the
Borrower's audited annual and quarterly financial
statements).
The acceptance by the Borrower of any advance hereunder
shall constitute a representation and warranty by the
Borrower to the Bank that the representations and warranties
of the Borrower set forth herein are true and correct as of
the date of such advance and that no Event of Default then
exists.
Tenor of At the option of the Borrower:
Loans: a) Domestic dollar rates - up to 90 days
b) Eurocurrency rates - 1, 2, 3, or 6 months
In no event will a loan mature later than
_____________________.
Notice of In the case of Eurocurrency rate borrowings, the
Drawing: Borrower will notify the bank in writing of drawing requests
at least two New York banking days before the date of the
borrowing, which date shall be a New York banking day. In
the case of Domestic U.S. dollar rate borrowings, the
Borrower will notify the Bank in writing of drawing requests
by 12:00 noon, New York time, on the date of the borrowing,
which date shall be a New York banking day.
Interest Rate: a) Domestic U.S. dollar rate - at the Bank's New York floating
base rate. Interest is payable at maturity over the actual
days elapsed on the basis of 365 or 366 day year, whichever
the case may be.
b) Eurodollar rate - at .25% over the rate offered to the Bank
in the offshore interbank market of U.S. dollar deposits of
the term and the amount of the borrowing, fixed two London
business days prior to the date of the borrowing. Interest
on each Eurodollar borrowing is calculated over the actual
number of days elapsed on the basis of a 360 day year and
will be payable at the maturity thereof, provided that in
respect of any Eurodollar borrowing with a maturity in
excess of three months, interest shall be payable at the end
of each three month period and on the maturity thereof.
c) Subject to availability in the Bank's sole discretion, at a
fixed rate to be negotiated between the Bank and the
Borrower at prevailing market rates. Interest is payable
semi-annually in arrears.
Payments by Bank: Each borrowing shall be effected by transfer of funds by the
Bank to ___________________.
Borrowings hereunder shall be made and repaid in Federal
Funds unless otherwise agreed to by the Borrower and the
Bank.
Commitment Fee: The Borrower will pay .100% per annum on the average daily
unused portion of the Commitment, payable quarterly in
arrears on the last day of each calendar quarter on a 365 or
366 day basis (whichever the case may be) for actual days
elapsed.
Payments by The Borrower shall make all payments hereunder
the Borrower: to _________________________________________________
by 12:00 noon New York time, on the date such payment is
due. Notwithstanding the foregoing, if payment would
otherwise be due on a day which is not a New York banking
day, the payment shall instead be made on the next following
day which is a New York banking day.
2
Prepayments: No advance may be prepaid prior to its maturity unless the
Bank gives specific consent thereto in writing, which
consent may be withheld in the Bank's sole discretion.
Early Termination: The Borrower may terminate the unused portion of this
Commitment, in whole or in part, at any time, or from time
to time, by written or telegraphic notice to the Bank no
less than five New York banking days prior to the date of
termination.
Taxes/ a) Payments of all amounts (including, but not limited to,
Indemnification: principal, interest, and Commitment Fee) shall be free and
clear and without deduction for any future taxes, levies,
imports or duties imposed by any governmental authority in
any jurisdiction or political subdivision or taxing
authority therein. The foregoing shall not apply, however,
in the case of any tax imposed in the jurisdiction of the
Bank hereunder in respect of income or profits of the Bank.
b) The Borrower shall indemnify the Bank against, and
reimburse it for any net cost to the Bank (as determined by
the Bank in good faith) resulting from (i) any material and
adverse change in the basis of taxation by any government of
payments of principal or of interest on any loan outstanding
at the time such change becomes effective; or (ii) the
imposition by any government or governmental regulatory
agency or authority, of reserve, assessment, special
deposit, capital adequacy, or similar requirement, tax, or
charge with respect to any loan outstanding at the time such
imposition becomes effective or with respect to any deposits
or funds acquired by the Bank to fund any such loan; or
(iii) the imposition on the Bank of any other condition
regarding this Agreement or the Note(s); provided that the
foregoing provisions of this clause shall not apply to taxes
or increases in taxes imposed on net income.
The Borrower will similarly indemnify the Bank as aforesaid
in connection with any loan which is made to the Borrower
subsequent to the time of the aforementioned change or
imposition, provided that the Bank shall have notified the
Borrower of such change or imposition prior to the making of
such loan.
Default Interest Should any amount hereunder not be paid when due, it shall
Rate: accrue interest at a rate of 2% per annum over the rate
which would otherwise be applicable to such amount.
Representations The Borrower represents and warrants to the
and Warranties Bank that:
by the Borrower:
3
a) the Borrower is a corporation duly incorporated, validly
existing, and in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its assets and transact the business in
which it is now engaged or proposed to be engaged in, and is
duly qualified as foreign corporation and in good standing
under the laws of each other jurisdiction in which such
qualification is required;
b) the execution, delivery, and performance by the Borrower
of this Agreement and the Note(s) are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not and will not (1) contravene the
Borrower's Certificate of Incorporation or By-Laws or (2)
any law, governmental regulation, or any contractual
restriction binding on or affecting the Borrower;
c) this Agreement and the Note(s) are legal, valid, and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms;
d) the audited financial statements of the Borrower as of
______________ and the interim financial statements as of
__________ for the three (3) month period then ended, copies
of which have been furnished to the Bank, are complete and
correct and fairly present the financial condition of the
Borrower as at such dates and the results of the operations
of the Borrower for the periods covered by such statements,
all in accordance with GAAP consistently applied (subject to
year-end adjustments in the case of the interim financial
statements), and there has been no material adverse change
in the condition (financial or otherwise), business, or
operations of the Borrower; and
e) there is no pending or threatened action or proceeding
against or affecting the Borrower or any of its subsidiaries
before any court, governmental agency, or arbitrator, which
may, in any one case or in the aggregate, materially and
adversely affect the financial condition, operations,
properties, or business of the Borrower or the ability of
the Borrower to perform it obligation under this Agreement
or the Note(s).
Events of Default: In the event that the Borrower:
a) defaults in the payment or performance of any obligation
or liability owed to the Bank, now existing or hereafter
arising, including the obligations under this Agreement and
the Note(s);
b) defaults in the payment of principal of, or interest on,
any other indebtedness for borrowed money (and any such
default in the payment of interest shall continue beyond any
period of grace applicable thereto) or the occurrence of any
event or the existence of any condition the effect of
4
which is to cause (or to permit one or more persons to
cause) any individual piece of indebtedness of the Borrower
to become due before its stated maturity or before its
regularly scheduled payment date;
c) makes an assignment for the benefit of creditors, file a
petition in bankruptcy, is adjudicated insolvent or
bankrupt, petitions or applies to any tribunal for the
appointment of a receiver or any trustee for the Borrower or
a substantial part of its assets, or commences any
proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now
or hereafter in effect; or files any such petition or
application, or has any such proceeding commenced against
it, which remains undismissed for a period of thirty (30)
days or more; or by any act or omission, indicates its,
consent to approval of or acquiescence in any such petition,
application or proceeding or the appointment of a receiver
of or any trustee for it or any substantial part of its
properties or suffers any such receivership or trusteeship
to continue undischarged for a period of thirty (30) days or
more; or the admission by it of its inability to pay its
debts as they mature;
d) has title to, or possession of, all or any substantial
part of its property taken or managed by the United States
Government, any other government (de facto or de jure) or
any agency or instrumentality of any thereof;
e) makes any representation or warranty to the Bank for the
purpose of obtaining any loan, advance, extension of credit
or other financial accommodation that was false or incorrect
in a material respect when made or deemed made; or
f) sells, lends, transfers, or otherwise disposes of all or
substantially all of its assets, whether in one or a series
of transactions;
then the Bank may, at the Bank's option, by written notice
to the Borrower, terminate the Bank's Commitment to lend
hereunder and declare all Note(s) then outstanding hereunder
to be immediately due and payable without presentment,
demand, protest or any other notice of any kind, all of
which are hereby expressly waived.
Notices: Unless otherwise specified herein, all notices, requests and
other communications hereunder shall be in electronic,
telephonic or written (including bank wire, telegram,
telecopier, telex or similar writing) form and shall be
given to the party to whom addressed, at its address or
telephone, telecopier or telex number set forth below, or
such other address or telephone, telecopier or telex number
as such party may hereafter specify for the purpose by
notice in writing to the other parties listed below.
5
Costs and Expenses: The Borrower agrees to pay on demand all costs and expenses
in connection with the enforcement of this Agreement or the
Note(s), including any attorney's fees.
Governing Law, This Agreement and the Note(s) shall be deemed to be a
Etc.: contract made under, and shall be construed in accordance
with and governed by, the laws of the State of New York.
Both parties hereto hereby consent to the jurisdiction of
the state and federal courts of New York State in any suit
or proceeding which may arise in connection with this
Agreement or the Notes. Both parties hereby waive any
objection they might have to the laying of venue in such
suit or proceeding in the courts situated in New York City.
BOTH PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN
ANY SUCH SUIT.
If the foregoing terms and conditions are agreeable to you, please signify your
acceptance by signing, dating and returning to us the enclosed copy of this
Agreement, whereupon it shall constitute a binding agreement between us
effective as of the date of your acceptance.
Sincerely,
By:______________________ By:_____________________
Title:___________________ Title:__________________
Address for Notices:
By:_____________________ By:_____________________
Title:__________________ Title:__________________
Address for Notices:
6
Exhibit A
P R O M I S S O R Y N O T E
$XX,000,000.00
For value received, the undersigned,
(the "Borrower"), promises to pay to the order of
(the "Bank"),
XXX Million dollars
($XX,000,000.00) or, if less, such lesser amount as shall equal the aggregate
outstanding principal amount of the loans (the "Loans") made by the Bank
pursuant to the Revolving Credit Facility Agreement of _________________ (the
"Agreement") exclusively in lawful money of the United States of America, on the
maturity dates (the "Maturity Dates") for such Loans. The Borrower shall also
pay interest (computed on the basis of a year of 360 days over the actual number
of days elapsed) on the unpaid principal amount of each Loan from the date of
the borrowing of such amount until the Maturity Date at the rates and at the
times set forth in the Agreement.
The Bank shall enter in its internal records and, prior to any transfer of
this Note (or, at the discretion of the Bank, at any other time), endorse on the
schedule attached hereto or any continuation thereof, the date and amount of
each Loan made by the Bank to the Borrower hereunder, the date and amount of
each repayment of principal and interest, and the Maturity Date of each Loan.
Entries made in such internal records reflecting said information as to all
Loans shall constitute prima facie evidence of the transactions represented by
such entries provided, however, that the failure by the Bank to make an entry in
such records shall not limit or otherwise affect the obligation of the Borrower
hereunder to make payment of the principal amount and interest accrued thereon.
This is one of the "Note(s)" referred to in the Agreement. This Note
incorporates by this reference the provisions of said Agreement, including the
provisions for payment dates of interest, acceleration of indebtedness, and
payment of expenses and attorney fees.
This Note shall be governed by, and construed in accordance with the laws
of the State of New York.
The Borrower hereby waives all defenses to enforcement of, and collection
upon, this Note, including lack of presentment, protest, and all notices.
By:_____________________ By:_____________________
Title:__________________ Title:__________________
7
BORROWING AND PAYMENT SCHEDULE
Princip. Date and
Loan Amount Maturity Amount of Interest Notation
Date of Loan Date Repayment Rate Made by
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
8
Exhibit B
P R O M I S S O R Y N O T E
$XX,000,000.00
For value received, the undersigned,
(the "Borrower"), promises to pay to the order of
(the "Bank"),
XX Million dollars
($XX,000,000.00) or, it less, such lesser amount as shall equal the aggregate
outstanding principal amount of the loans (the "Loans") made by the Bank
pursuant to the Revolving Credit Facility Agreement of ________________ (the
"Agreement") exclusively in lawful money of the United States of America, on the
maturity dates (the "Maturity Dates") for such Loans. The Borrower shall also
pay interest (computed on the basis of a year of 365 or 366 days, whichever the
case may be, over the actual number of days elapsed) on the unpaid principal
amount of each Loan from the date of the borrowing of such amount until the
Maturity Date at the rates and at the times set forth in the Agreement.
The Bank shall enter in its internal records and, prior to any
transfer of this Note (or, at the discretion of the Bank, at any other time),
endorse on the schedule attached hereto or any continuation thereof, the date
and amount of each Loan made by the Bank to the Borrower hereunder, the date and
amount of each repayment of principal and interest, and the Maturity Date of
each Loan. Entries made in such internal records reflecting said information as
to all Loans shall constitute prima facie evidence of the transactions
represented by such entries provided, however, that the failure by the Bank to
make an entry in such records shall not limit or otherwise affect the obligation
of the Borrower hereunder to make payment of the principal amount and interest
accrued thereon.
This is one of the "Note(s)" referred to in the Agreement. This Note
incorporates by this reference the provisions of said Agreement, including the
provisions for payment dates of interest, acceleration of indebtedness, and
payment of expenses and attorney fees.
This Note shall be governed by, and construed in accordance with the
laws of the State of New York.
The Borrower hereby waives all defenses to enforcement of, and
collection upon, this Note, including lack of presentment, protest, and all
notices.
By:____________________ By:_____________________
Title:__________________ Title:__________________
9
BORROWING AND PAYMENT SCHEDULE
Princip. Date and
Loan Amount Maturity Amount of Interest Notation
Date of Loan Date Repayment Rate Made by
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
10