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Exhibit 4(d)
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF
NOVEMBER 14, 2003
AMONG
HASBRO, INC.,
HASBRO SA,
THE BANKS PARTY HERETO, AND
FLEET NATIONAL BANK,
AS AGENT
WITH
FLEET SECURITIES, INC.,
HAVING ACTED AS ARRANGER
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TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF
INTERPRETATION........................................1
1.1.
Definitions..........................................................1
1.2. Rules of
Interpretation..............................................22
2. THE SYNDICATED AND COMPETITIVE BID
LOAN FACILITY...............................23
2.1. Commitment to
Lend Syndicated Loans..................................23
2.2. Commitment
Fee.......................................................24
2.3. Reduction of
Total Commitment........................................24
2.4. Requests for
Syndicated Loans........................................25
2.5. Competitive Bid
Loans................................................25
2.5.1.
Competitive Bid Borrowings.................................25
2.5.2. Repayment
of Competitive Bid Loans.........................30
2.6. The
Notes............................................................30
2.7. Interest on
Loans....................................................31
2.8.
Prepayments..........................................................32
2.9. Funds for
Loans......................................................33
2.10. Mandatory
Repayments................................................34
2.11. Application of
Payments; Commitment Reduction.......................35
2.12. Optional
Currency...................................................35
2.12.1. Request for
Optional Currency..............................35
2.12.2.
Funding....................................................36
3. THE SWING
LINE.................................................................36
3.1. The Swing Line
Loans.................................................37
3.2. Notice of
Borrowing..................................................37
3.3. Interest on Swing
Line Loans.........................................37
3.4. Repayment of
Swing Line Loans........................................38
3.5. The Swing Line
Note..................................................38
4. INTEREST; PAYMENTS AND
COMPUTATIONS............................................39
4.1. Interest; Costs
and Expenses.........................................39
4.2. Concerning
Interest Periods..........................................44
4.3. Interest on
Overdue Amounts..........................................44
4.4.
Payments.............................................................44
4.5.
Computations.........................................................45
4.6. Interest
Limitation..................................................45
4.7.
Indemnification......................................................45
4.8. Banks'
Obligations
Several...........................................46
4.9. Currency
Matters.....................................................46
4.9.1. Currency
of Account........................................46
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4.9.2. Currency
Fluctuations......................................47
4.9.3. Exchange
Rate..............................................47
4.9.4.
Denominations..............................................47
4.10. New
Currency.........................................................47
4.11. No Offset,
etc.......................................................48
4.12.
Forms...............................................................48
5. LETTERS OF
CREDIT..............................................................50
5.1. Letter of Credit
Commitments.........................................50
5.1.1.
Commitment to Issue Letters of Credit......................50
5.1.2. Letter of
Credit Applications..............................50
5.1.3. Terms of
Letters of Credit.................................51
5.1.4.
Reimbursement Obligations of Banks.........................51
5.1.5.
Participations of Banks....................................51
5.2. Reimbursement
Obligation of the Company..............................51
5.3. Letter of Credit
Payments............................................52
5.4. Obligations
Absolute.................................................53
5.5. Reliance by
Issuer...................................................53
5.6. Letter of Credit
Fee.................................................54
6. COLLATERAL SECURITY AND
GUARANTIES.............................................54
6.1. Release of
Collateral................................................54
6.2. Security of
Company..................................................54
6.3. Guaranties and
Security of Restricted Subsidiaries...................55
6.4. Limitation of
Security...............................................56
7.
FEES...........................................................................56
7.1. Closing
Fees.........................................................56
7.2. Agent's
Fee..........................................................56
8. REPRESENTATIONS AND
WARRANTIES.................................................56
8.1. Corporate
Existence..................................................56
8.2.
Corporate Authority,
etc.............................................57
8.3. Binding Effect of
Documents, etc.....................................57
8.4. Governmental
Approvals...............................................57
8.5.
No Event of
Default,etc..............................................58
8.6. Chief Executive
Offices..............................................58
8.7. Title to
Properties;Leases...........................................58
8.8.
Financial Statements
and Projections.................................58
8.8.1. Fiscal
Year...................................................58
8.8.2. Financial
Statements..........................................58
8.8.3.
Projections..................................................58
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8.9. No Material
Changes, Etc.............................................58
8.10. Franchises,
Patents, Copyrights, Etc................................59
8.11.
Litigation..........................................................59
8.12. No Materially
Adverse Contracts, Etc................................59
8.13. Compliance With
Other Instruments, Laws, Etc........................59
8.14.
Taxes...............................................................59
8.15. Absence of
Financing Statements, Etc................................59
8.16.
Indebtedness........................................................60
8.17. True Copies of
Charter and Other Documents..........................60
8.18. Employee Benefit
Plans..............................................60
8.18.1. In
General.................................................60
8.18.2. Terminability
of Welfare Plans.............................60
8.18.3. Guaranteed
Pension Plans...................................60
8.18.4. Multiemployer
Plans........................................61
8.19. Holding Company
and Investment Company Acts.........................61
8.20.
Certain
Transactions................................................61
8.21. Use of
Proceeds.....................................................61
8.21.1.
General....................................................61
8.21.2. Regulations U
and X........................................62
8.22. Environmental
Compliance............................................62
8.23.
Subsidiaries........................................................63
8.24.
Disclosure..........................................................63
8.25. Foreign Assets
Control Regulations, Etc.............................63
9. AFFIRMATIVE COVENANTS OF THE
COMPANY...........................................63
9.1. Punctual
Payment.....................................................63
9.2. Use of Loan
Proceeds.................................................63
9.3. Maintenance of
Office................................................63
9.4. Records and
Accounts.................................................64
9.5. Financial
Statements, Certificates and Information...................64
9.6.
Notices..............................................................65
9.6.1.
Defaults...................................................65
9.6.2.
Environmental Events.......................................66
9.6.3.
Notification of Claim against Collateral...................66
9.6.4. Notices
Concerning Inventory Collateral........ ...........66
9.6.5. Notice of
Litigation and Judgments..... ...................66
9.7. Corporate
Existence; Maintenance of Properties.......................66
9.8.
Insurance............................................................67
9.9.
Taxes................................................................67
9.10.
Access..............................................................67
9.11. Compliance with
Laws, Contracts, Licenses, and Permits..............68
9.12. Employee Benefit
Plans..............................................68
9.13. Fiscal
Year.........................................................69
9.14. Additional
Significant Subsidiaries and Restricted Subsidiaries.....69
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9.15.
Ratings.............................................................69
9.16. Further
Assurances..................................................69
10. CERTAIN NEGATIVE COVENANTS OF THE
COMPANY.....................................70
10.1. Restrictions on
Indebtedness........................................70
10.2. Restrictions on
Liens...............................................71
10.3. Restrictions on
Investments.........................................73
10.4. Restricted
Payments.................................................75
10.5. Merger,
Consolidation and Disposition of Assets.....................76
10.5.1. Mergers and
Acquisitions...................................76
10.5.2. Disposition of
Assets......................................77
10.6. Sale and
Leaseback..................................................78
10.7. Compliance with
Environmental Laws..................................78
10.8. Subordinated
Debt...................................................78
10.9. Employee Benefit
Plans..............................................78
10.10. Business
Activities.................................................79
10.11. Transactions with
Affiliates........................................79
10.12. Restrictions on Negative
Pledges....................................79
10.13. Hedging
Agreements..................................................80
11. FINANCIAL
COVENANTS...........................................................80
11.1. Minimum
EBITDA......................................................80
11.2. Total Funded
Debt to EBITDA.........................................80
11.3. Minimum Interest
Coverage Ratio.....................................81
11.4. Capital
Expenditures................................................81
12. CONDITIONS TO
EFFECTIVENESS...................................................81
12.1. Loan Documents,
etc.................................................81
12.2. Performance,
etc....................................................82
12.3. Certified Copies
of Charter Documents...............................82
12.4. Proof of
Corporate Action...........................................82
12.5. Incumbency
Certificates.............................................82
12.6. Proceedings and
Documents...........................................82
12.7. Certificates of
Insurance...........................................83
12.8. Payment of
Fees.....................................................83
12.9. Legality of
Transactions............................................83
12.10. Legal
Opinion.......................................................83
13. CONDITIONS TO
LOANS...........................................................83
13.1. Conditions to
Loans to the Company..................................83
13.1.1. Legality of
Transactions...................................83
13.1.2.
Representations and Warranties.............................83
13.1.3. Performance,
etc...........................................84
13.1.4. Proceedings
and Documents..................................84
13.1.5. Loan
Documents.............................................84
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13.2. Conditions to
Loans to Hasbro SA....................................84
13.2.1. Legality of
Transactions...................................84
13.2.2.
Representations andWarranties..............................84
13.2.3. Performance,
etc...........................................84
13.2.4. Proceedings
and Documents..................................85
13.2.5. Loan
Documents.............................................85
13.2.6. No
Defaults................................................85
14. EVENTS OF DEFAULT;
ACCELERATION...............................................86
14.1. Remedies Upon
Default...............................................86
14.2. Termination of
Commitments..........................................89
14.3.
Remedies............................................................89
14.4. Certain Rights
of Cure..............................................90
14.5. Distribution of
Collateral Proceeds.................................90
14.6. Judgment
Currency...................................................91
15.
SETOFF........................................................................93
16. THE
AGENT.....................................................................93
16.1.
Authorization.......................................................93
16.2. Employees and
Agents................................................94
16.3. No
Liability........................................................94
16.4. No
Representations..................................................94
16.4.1.
General....................................................94
16.4.2. Closing
Documentation, etc.................................95
16.5.
Indemnification.....................................................95
16.6.
Reimbursement.......................................................96
16.7. Non-Reliance on
Agent and Other Banks...............................96
16.8.
Payments............................................................96
16.8.1. Payments to
Agent..........................................96
16.8.2. Distribution
by Agent......................................96
16.8.3. Delinquent
Banks...........................................97
16.9. Holders of
Notes....................................................97
16.10. Agent as
Bank......................................................97
16.11. Resignation or
Removal ofAgent.....................................97
16.12. Notification of
Defaults and Events of Default.....................98
16.13. Duties in the
Case of Enforcement..................................98
16.14. Agent May File
Proofs of Claim.....................................98
17.
EXPENSES......................................................................99
18.
INDEMNIFICATION...............................................................100
19. SURVIVAL OF COVENANTS,
ETC....................................................101
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20. ASSIGNMENT AND
PARTICIPATION..................................................101
20.1. Conditions to
Assignment by Banks...................................101
20.2. Certain
Representations and Warranties; Limitations; Covenants......102
20.3.
Register............................................................103
20.4. New
Notes...........................................................103
20.5.
Participations......................................................103
20.6. Assignee or
Participant Affiliated with the Company.................104
20.7. Miscellaneous
Assignment Provisions.................................104
20.8. Increased
Costs.....................................................104
20.9. Assignment by
Company...............................................105
21. NOTICES,
ETC..................................................................105
22. TREATMENT OF CERTAIN CONFIDENTIAL
INFORMATION.................................106
22.1.
Confidentiality.....................................................106
22.2. Prior
Notification..................................................106
22.3.
Other...............................................................106
23. CONSENTS, AMENDMENTS, WAIVERS,
ETC............................................107
24. PROVISIONS OF GENERAL
APPLICATIONS............................................108
24.1. Governing
Law.......................................................108
24.2.
Headings............................................................109
24.3.
Counterparts........................................................109
24.4. Entire
Agreement,
Etc...............................................109
24.5.
Waiver of Jury
Trial................................................109
24.6.
Severability........................................................109
25. TRANSITIONAL
ARRANGEMENTS.....................................................110
25.1. Existing Credit
Agreement Superseded................................110
25.2. Return and
Cancellation of Notes....................................110
25.3. Interest and
Fees Under Superseded Agreement........................110
26. LIABILITY FOR THE
OBLIGATIONS.................................................110
27.
GUARANTY......................................................................110
27.1. Guaranty of
Payment and Performance.................................110
27.2. The Company's
Agreement to Pay Enforcement Costs, etc...............111
27.3. Waivers by the
Company; Banks' Freedom to Act.......................111
27.4. Unenforceability
of Hasbro SA Obligations Against Hasbro SA.........112
27.5. Subrogation;
Subordination..........................................112
27.5.1. Waiver of
Rights Against Hasbro SA.........................112
27.5.2.
Subordination..............................................112
27.5.3. Provisions
Supplemental....................................113
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27.6. Termination;
Reinstatement..........................................113
27.7. Successors and
Assigns..............................................113
27.8. Severability,
etc...................................................113
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SCHEDULES AND EXHIBITS
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Schedule 1
Banks, Commitments and Commitment Percentages
Schedule 2
Indicative Terms of Permitted Receivables Transactions
Schedule 8.7
Title to Properties; Leases
Schedule 8.11
Litigation
Schedule 8.22
Environmental Compliance
Schedule 8.23
Subsidiaries
Schedule 10.1
Existing Indebtedness
Schedule 10.2
Existing Liens
Schedule 10.12
Restrictions on Negative Pledges
Exhibit A-1
Form of Syndicated Note
Exhibit A-2
Form of Syndicated Loan Request
Exhibit B-1
Form of Competitive Bid Note
Exhibit B-2
Form of Competitive Bid Quote Request
Exhibit B-3
Form of Invitation for Competitive Bid Quotes
Exhibit B-4
Form of Competitive Bid Quote
Exhibit B-5
Form of Notice of Competitive Bid Borrowing
Exhibit C
Form of Swing Line Loan Request
Exhibit D
Form of Swing Line Note
Exhibit E
Form of Compliance Certificate
Exhibit F
Form of Subordination Agreement
Exhibit G
Form of Assignment and Acceptance
Exhibit H
Form of Confidentiality Agreement
Exhibit I
Form of Company Security Agreement
Exhibit J
Form of Subsidiary Security Agreement
Exhibit K
Form of Trademark Agreement
Exhibit L
Form of Patent Agreements
Exhibit M
Form of Memorandum of Grant of Security Interest in Copyrights
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THIRD AMENDED AND RESTATED
REVOLVING CREDIT
AGREEMENT
This THIRD
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, is dated as of
November 14, 2003, by and among HASBRO,
INC. (the "Company"), a Rhode Island
corporation having its principal place of
business at 1027 Newport Avenue,
Pawtucket, Rhode Island 02861, HASBRO SA, a
corporation organized under the laws
of Switzerland and wholly owned subsidiary
of the Company ("Hasbro SA"), and
FLEET NATIONAL BANK and the other lending
institutions listed on Schedule 1
(collectively, the "Banks") and FLEET
NATIONAL BANK, as agent for the Banks (the
"Agent").
WITNESSETH:
WHEREAS,
pursuant to that certain Second Amended and Restated Revolving
Credit Agreement, dated as of March 19,
2002 (as amended and in effect from time
to time, the "Existing Credit Agreement"),
by and among the Company, Hasbro SA,
the Banks, the Agent, and certain other
parties thereto, the Banks have made
available certain financing to the Company
and Hasbro SA upon the terms and
conditions contained therein; and
WHEREAS, the
Company has requested, among other things, to amend and
restate the Existing Credit Agreement and
the Banks are willing to amend and
restate the Existing Credit Agreement on
the terms and conditions set forth
herein;
NOW THEREFORE,
in consideration of the foregoing premises and the mutual
covenants contained herein, the Company,
the Banks and the Agent agree that as
of the date hereof, the Existing Credit
Agreement shall be amended and restated
in its entirety as set forth herein:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1.
DEFINITIONS. The following terms shall have the meanings set forth
in
thissection 1.1 or elsewhere in the
provisions of this Agreement referred to
below:
Accounts. As
defined in the Uniform Commercial Code as in effect in the
Commonwealth of Massachusetts from time to
time; and, with respect to the
Company and its Domestic Subsidiaries, all
such Accounts of such Persons,
whether now existing or existing in the
future, including, without limitation,
(a) all accounts receivable of such Person,
including, without limitation, all
accounts created by or arising from all of
such Person's sales of goods or
rendition of services made under any of its
trade names, or through any of its
divisions, (b) all unpaid rights of such
Person (including rescission, replevin,
reclamation and stopping in transit)
relating to the foregoing or arising
therefrom, (c) all rights to any goods
represented by any of the foregoing,
including, without limitation, returned or
repossessed goods, (d) all reserves
and credit balances held by such Person
with respect to any such accounts
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receivable of any purchaser of goods or
services or other Person obligated to
make payment to the Company or any of its
Subsidiaries (other than any
Receivables Subsidiaries and the Foreign
Subsidiaries) in respect of a purchase
of such goods or services, (e) all letters
of credit, guarantees or collateral
for any of the foregoing and (f) all
insurance policies or rights relating to
any of the foregoing.
Affiliate. Any
Person that would be considered to be an affiliate of the
Company under Rule 144(a) of the Rules and
Regulations of the Securities and
Exchange Commission, as in effect on the
date hereof, if the Company were
issuing securities.
Affected Bank.
See section 4.1(c).
Agent. Fleet,
acting as agent for the Banks, and each other Person
appointed as the successor Agent in
accordance with section 16.11.
Agent's Fee. See
section 7.2.
Agent's Fee
Letter. The fee letter, dated as of the Effective Date, by and
between the Company and the Agent, as the
same may be amended and in effect from
time to time.
Agent's Office.
The Agent's office located at 100 Federal Street, Boston,
Massachusetts 02110, or at such other
location as the Agent may designate from
time to time.
Agent's Special
Counsel. Bingham McCutchen LLP, or such other counsel as
the Agent may approve.
Agreement. This
Third Amended and Restated Revolving Credit Agreement,
including the Exhibits and Schedules
hereto, as originally executed, or if this
Third Amended and Restated Revolving Credit
Agreement is further amended, varied
or supplemented from time to time, as so
amended, varied or supplemented.
Applicable
Pension Legislation. At any time, any pension or retirement
benefits legislation (be it national,
federal, provincial, territorial or
otherwise) then applicable to the Company
or any of its Subsidiaries.
Arranger. Fleet
Securities, Inc.
Asset Sale. Any
one or series of related transactions in which the Company
or any of its Subsidiaries conveys, sells,
leases, licenses or otherwise
disposes of, directly or indirectly, any of
its properties, businesses or assets
whether owned on the Effective Date or
thereafter acquired.
Assignee. A bank
or other institution to which a Bank assigns all, or a
proportionate part of all, of such Bank's
rights and obligations under this
Agreement and the Notes payable to such
transferor Bank, pursuant to the terms
of section 20.
Assignment and
Acceptance. See section 20.1.
Atari. A societe
anonyme organized under the laws of France, formerly known
as Infogrames Entertainment S.A.
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Attributable
Debt. At any time, the amount of obligations outstanding at
such time under the legal documents entered
into as part of a Permitted
Receivables Securitization Facility on any
date of determination that would be
characterized as principal if such
Permitted Receivables Securitization Facility
were structured as a secured lending
transaction rather than as a purchase, less
(i) any escrowed or pledged cash proceeds
which effectively secure, or are
required to be maintained as reserves by
the applicable Receivables Subsidiary
for, the Indebtedness of the Company and
its Subsidiaries in respect of, or the
obligations of the Company and its
Subsidiaries under, such Permitted
Receivables Securitization Facility, (ii)
reasonable attorneys' fees,
accountants' fees, brokerage consultant and
other customary fees, underwriting
commissions and other reasonable fees and
expenses actually incurred in
connection with such Permitted Receivables
Securitization Facility and (iii) any
taxes paid or reasonably estimated to be
payable as a result thereof.
Authorized
Financial Officers. The Chief Financial Officer of the Company,
the Controller of the Company and any other
officer of the Company designated by
the Company from time to time as the chief
financial officer or the chief
accounting officer of the Company and
qualified to certify as to financial
information delivered on behalf of the
Company and its Subsidiaries pursuant to
section 9.5 hereof; and "Authorized
Financial Officer" means any one of the
Authorized Financial Officers.
Balance Sheet
Date. June 29, 2003.
Bank Affiliate.
(a) With respect to any Bank, (i) an affiliate of such Bank
or (ii) any entity (whether a corporation,
partnership, limited liability
company, trust or legal entity) that is
engaged in making, purchasing, holding
or otherwise investing in bank loans and
similar extensions of credit in the
ordinary course of its business and is
administered or managed by such Bank or
an affiliate of such Bank and (b) with
respect to any Bank that is a fund which
invests in bank loans and similar
extensions of credit, any other entity
(whether a corporation, partnership,
limited liability company, trust or other
legal entity) that is a fund that invests
in bank loans and similar extensions
of credit and is managed by the same
investment advisor as such Bank or by an
affiliate of such investment advisor.
Banks. As
defined in the Preamble, and any bank or institution that
becomes
an Assignee pursuant to, and fulfills the
conditions of, section 20.
Base Rate. With
respect to Loans denominated in Dollars, (a) the rate
(rounded to the nearest 1/100 of 1%) equal
to the higher of (i) the variable
annual rate of interest so designated from
time to time by Fleet as its "prime
rate", such rate being a reference rate and
not necessarily representing the
lowest or best rate being charged to any
customer, and (ii) one-half of one
percent (0.5%) above the Federal Funds
Effective Rate. For the purposes of this
definition, "Federal Funds Effective Rate"
shall mean for any day, the rate per
annum equal to the weighted average of the
rates on overnight federal funds
transactions with members of the Federal
Reserve System arranged by federal
funds brokers, as published for such day
(or, if such day is not a Business Day,
for the next preceding Business Day) by the
Federal Reserve Bank of New York,
or, if such rate is not so published for
any day that is a Business Day, the
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average of the quotations for such day on
such transactions received by the
Agent from three funds brokers of
recognized standing selected by the Agent; and
(b) with respect to Loans denominated in
any Optional Currency, the daily rate
(rounded to the nearest 1/100 of 1%)
determined to be the average rate charged
to borrowers of similar quality as the
Borrower of Loans denominated in such
Optional Currency as reasonably determined
by the Agent.
Base Rate
Loan(s). Loan(s) bearing interest calculated by reference to
the
Base Rate.
Borrowing. A
borrowing hereunder by the Company and/or Hasbro SA consisting
of a Loan to the Company and/or Hasbro SA
by the Banks or the Swing Line Bank.
Business Day.
Any day (a) on which banking institutions in Boston,
Massachusetts and New York City, New York
are open for the conduct of normal
banking business, (b) if such day involves
Eurocurrency Rate Loans denominated
in Dollars, a day on which dealings in
Dollars can be carried on in the relevant
Eurocurrency Interbank Market and Dollar
settlements of such dealings may be
effected in New York City, and (c) if such
day involves Loans denominated in any
Optional Currency, a day on which dealings
in the relevant Optional Currency and
exchange can be carried on in the relevant
Eurocurrency Interbank Market and in
the principal financial center of the
country in which such currency is legal
tender.
Capital
Expenditures. With respect to the Company and its Subsidiaries
and
for any period, the aggregate of all
amounts included in "Additions to property,
plant and equipment" as shown in the
Company's statement of cash flows for such
period, determined in accordance with
GAAP.
Capitalized
Leases. Leases under which the Company or any of its
Subsidiaries is the lessee or obligor, the
discounted future rental payment
obligations under which are required to be
capitalized on the balance sheet of
the lessee or obligor in accordance with
GAAP.
Capital Stock.
Any and all shares, interests, participations or other
equivalents (however designated) of capital
stock of a corporation, any and all
equivalent ownership interests in a Person
(other than a corporation) and any
and all warrants, rights or options to
purchase any of the foregoing.
Casualty Event.
With respect to any property (including any interest in
property) of any Hasbro Company, any loss
of, damage to, or condemnation or
other taking of, such property for which
such Person receives insurance
proceeds, proceeds of a condemnation award
or other compensation.
CERCLA. See
section 8.22.
Change of
Control. An event or series of events by which any person or
group of persons (within the meaning of
Section 13 or 14 of the Securities
Exchange Act of 1934) shall have acquired
beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission
under said Act), directly or indirectly, of
fifty-one percent (51%) or more of
the outstanding shares of Capital Stock of
the Company; or, during any period of
twelve (12) consecutive calendar months,
Continuing Directors shall cease to
constitute a majority of the board of
directors of the Company.
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Code. The
Internal Revenue Code of 1986, as amended.
Collateral. All
of the property, rights and interests of the Company and
the Restricted Subsidiaries that are or are
intended to be subject to the
security interests and mortgages created by
the Security Documents.
Commitment. With respect to
each Bank, the amount set forth on Schedule 1
hereto as the maximum amount of such Bank's
commitment to make Syndicated Loans
to, and to participate in the issuance,
extension and renewal of Letters of
Credit for the account of, the Company, as
the same may be reduced from time to
time; or if such Bank's commitment is
terminated pursuant to the provisions
hereof, zero. Each Bank's Commitment shall
be deemed to be reduced, while any
Competitive Bid Loans are outstanding, by
an amount equal to such Bank's
Commitment Percentage of such outstanding
Competitive Bid Loans.
Commitment Fee.
See section 2.2.
Commitment Fee
Rate. At any time of determination, an annual percentage
rate determined in accordance with the
Pricing Grid.
Commitment
Percentage. With respect to each Bank, the percentage set forth
opposite such Bank's name on Schedule 1
hereto.
Company. See
preamble.
Company Loans.
The Loans other than the Hasbro SA Loans.
Company Security
Agreement. The Security Agreement between the Company and
the Agent, substantially in the form of
Exhibit I hereto to be entered into to
the extent required by section 6.2.
Competitive Bid
Loan(s). A Borrowing hereunder consisting of one or more
revolving credit loans made by any of the
Banks whose offer to make a revolving
credit loan as part of such Borrowing has
been accepted by the Company and/or
Hasbro SA under the auction bidding
procedure described in section 2.5.
Competitive Bid
Notes. See section 2.6.
Competitive Bid
Note Record. A Record with respect to a Competitive Bid
Note.
Competitive Bid
Quote. An offer by a Bank to make a Competitive Bid Loan in
accordance with section 2.5 hereof.
Competitive Bid
Quote Request. See section 2.5.1(b).
Competitive Bid
Rate. See section 2.5.1(d)(ii)(C).
Compliance
Certificate. See section 9.5(c).
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Consolidated or
consolidated. With reference to any term defined herein,
shall mean that term as applied to the
accounts of the Company and all of its
Subsidiaries, consolidated in accordance
with GAAP.
Consolidated
Cash. The consolidated cash and cash equivalents of the
Company and its Subsidiaries, determined in
accordance with GAAP.
Consolidated Net
Earnings (or Loss). The consolidated net earnings (or
loss) of the Company and its Subsidiaries,
after deduction of all expenses,
taxes, and other proper charges, determined
in accordance with GAAP, after
eliminating therefrom all extraordinary
items of income.
Consolidated
Operating Profit (or Loss). The consolidated operating profit
(or loss) of the Company and its
Subsidiaries identified as such on the
Company's income statement for any period,
determined in accordance with GAAP.
Consolidated
Total Funded Debt. As at any date of determination, with
respect to the Company and its
Subsidiaries, the amount equal to, without
duplication, (a) the aggregate amount of
Indebtedness of the Company and its
Subsidiaries, on a consolidated basis,
relating to (i) the borrowing of money or
the obtaining of credit, (ii) the deferred
purchase price of assets (other than
trade payables incurred in the ordinary
course of business), (iii) in respect of
any Synthetic Leases or any Capitalized
Leases and (iv) the face amount of all
letters of credit outstanding plus (b) the
aggregate amount of Indebtedness of
the type referred to in clause (a) of
another Person (other than the Company or
a Subsidiary thereof) guaranteed by the
Company or any of its Subsidiaries plus
(c) the Attributable Debt. In determining
under clause (a) of this definition
the Indebtedness of the Company and its
Subsidiaries under or in respect of any
Permitted Receivables Securitization
Facility or under clause (c) of this
definition the Attributable Debt in respect
of any Permitted Receivables
Securitization Facility, such Indebtedness
or amount shall be reduced by any
escrowed or pledged cash proceeds which
effectively secure such Indebtedness or
the obligations of the Company or any such
Subsidiary under such Permitted
Receivables Securitization Facility.
Consolidated
Total Interest Expense. For any period, the aggregate amount
of interest expense of the Company and its
Subsidiaries determined on a
consolidated basis in accordance with GAAP
for such period.
Continuing
Directors. With respect to any period of twelve (12)
consecutive
calendar months, any member of the board of
directors of the Company who (a) was
a member of such board of directors on the
first day of such period or (b) was
nominated for election or elected to such
board of directors with the approval
of a majority of the Continuing Directors
who were members of such board of
directors at the time of such nomination or
election.
Copyright
Memorandum. The Memorandum of Grant of Security Interest in
Copyrights by and among the Company, the
Restricted Subsidiaries and the Agent,
in substantially the form of Exhibit M
hereto to be entered into to the extent
required by section 6.2.
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Credit Insurance
Provider. A Person party to a Credit Insurance Provider
Agreement.
Credit Insurance
Provider Agreement. An agreement entered into by and among
the Company, the Subsidiaries of the
Company named therein and the Credit
Insurance Provider, pursuant to which the
Company and certain of its
Subsidiaries agree to sell, assign, pledge
and transfer to the Credit Insurance
Provider certain accounts receivable under
the terms and conditions of the
Credit Insurance Provider Agreement.
Default. Any
Event of Default and any event which, but for the giving of
notice or the lapse of time, or both, would
constitute an Event of Default.
Delinquent Bank.
See section 16.8.3.
Distribution.
Any of (a) the declaration or payment of any dividend on or
in respect of any shares of any class of
Capital Stock of the Company other than
dividends payable solely in shares of
common stock of the Company (or payable
pursuant to the Rights Agreement, dated
June 16, 1999, between the Company and
Fleet National Bank (f/k/a BankBoston,
N.A.) as amended); (b) the purchase,
redemption, defeasance, retirement or other
acquisition of any shares of any
class of Capital Stock of the Company
directly or indirectly through a
Subsidiary of the Company or otherwise
(including the setting apart of assets
for a sinking or other analogous fund to be
used for such purpose, and excluding
any such acquisition by way of payment of
any portion of the exercise price for
any stock option in such shares, or in
respect to any withholding taxes related
to any such stock option exercise); or (c)
the return of capital by the Company
to its shareholders as such; or any other
distribution on or in respect of any
shares of any class of Capital Stock of the
Company.
Dollar(s) and $.
The lawful currency of the United States of America.
Dollar
Equivalent. On any particular date, with respect to any amount
denominated in Dollars, such amount in
Dollars, and with respect to any amount
denominated in currency other than Dollars,
the amount (as reasonably
ascertained by the Agent which
determination shall be conclusive absent manifest
error) of Dollars which could be purchased
by the Agent (in accordance with its
normal banking practices) in the London
foreign currency deposit market with
such amount of such currency at the
Exchange Rate on such date.
Domestic
Subsidiary. Any Subsidiary of the Company that is not a Foreign
Subsidiary.
Drawdown Date.
The date on which any Loan is made or is to be made, and the
date on which any Loan is converted or
continued in accordance with section
4.1(a).
EBITDA. With
respect to any particular fiscal period, EBITDA shall mean the
amount equal to (a) Consolidated Operating
Profit (or Loss) for such period,
plus (b) in each case without duplication,
and to the extent deducted in
calculating Consolidated Operating Profit
(or Loss) for such period, (i)
depreciation and amortization of the
Company and its Subsidiaries, (ii) other
non-cash charges of the Company and its
Subsidiaries, and (iii) extraordinary
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losses of the Company and its Subsidiaries,
and minus (c) to the extent included
in Consolidated Operating Profit (or Loss)
for such period, extraordinary gains
of the Company and its Subsidiaries for
such period, all determined in
accordance with GAAP.
Effective Date.
The date on which all of the conditions set forth in
section 12 have been satisfied, and all
"Loans" under and as defined in the
Existing Credit Agreement are converted
into Loans hereunder.
Employee Benefit
Plan. Any employee benefit plan within the meaning of
section 3(3) of ERISA maintained or
contributed to by the Company or any ERISA
Affiliate, other than a Guaranteed Pension
Plan or a Multiemployer Plan.
Environmental
Laws. See section 8.22.
EPA. See section
8.22.
Equity Issuance.
The sale or issuance by the Company or any of its
Subsidiaries of any of its Capital Stock
(other than to the Company or any of
its Subsidiaries).
ERISA. The
Employee Retirement Income Security Act of 1974, as amended
from
time to time, and the regulations
promulgated and rulings issued thereunder.
ERISA Affiliate.
Any Person which is treated as a single employer with the
Company under section 414 of the Code.
ERISA Reportable
Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of section
4043 of ERISA and the regulations
promulgated thereunder.
Euro or EUR. The
euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the
Council of the European Union, or, if
different, the then lawful currency of the
member states of the European Union
that participate in the third stage of the
Economic and Monetary Union.
Eurocurrency
Interbank Market. Any lawful recognized market in which
deposits of Dollars or the relevant
Optional Currencies, as applicable, are
offered by international banking units of
United States banking institutions and
by foreign banking institutions to each
other and in which foreign currency and
exchange operations or eurocurrency funding
operations are customarily
conducted.
Eurocurrency
Offered Rate. With respect to the Interest Period of any
Eurocurrency Rate Loan denominated in
Dollars, the annual rate of interest equal
to the rate at which Dollar deposits for
such Interest Period are offered based
on information presented on Page 3750 of
the Dow Jones Market Service (formerly
known as the Telerate Service) as of 11:00
A.M. (London time) (or as soon
thereafter as practicable) two (2) Business
Days preceding the first day of such
Interest Period.
Eurocurrency
Rate. With respect to amounts denominated in any Optional
Currency, the International Eurocurrency
Rate. With respect to all Eurocurrency
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Rate Loans denominated in Dollars for any
Interest Period, the annual rate of
interest, rounded to the nearest 1/100 of
1%, determined by the Agent for such
Interest Period in accordance with the
following formula:
Eurocurrency Rate = Eurocurrency Offered
Rate
------------------------------
1 - Eurocurrency Reserve Rate
Eurocurrency
Rate Loan(s). Loan(s) denominated in Dollars or in any
Optional Currency bearing interest
calculated by reference to the Eurocurrency
Rate.
Eurocurrency
Reserve Rate. The rate in effect from time to time, expressed
as a decimal, at which the Banks would be
required to maintain reserves under
Regulation D of the Board of Governors of
the Federal Reserve System (or any
successor or similar regulation relating to
such reserve requirements) against
"Eurocurrency Liabilities" (as that term is
used in Regulation D), if such
liabilities were outstanding.
Event of
Default. See section 14.1.
Exchange Rate.
With respect to any Optional Currency, at any date of
determination thereof, the spot rate of
exchange in London that appears on the
display page applicable to such Optional
Currency on the Reuters System (or such
other page as may replace such page on such
service for the purpose of
displaying the spot rate of exchange in
London) for the conversion of such
Optional Currency into Dollars at 4:00 P.M.
(London time) on such date;
provided, however, that if there shall at
any time no longer exist such a page
on such service, the Exchange Rate shall be
determined by reference to another
similar rate publishing service reasonably
selected by the Agent.
Existing Credit
Agreement. See Preamble.
Fee Letter. The
fee letter, dated as of the Effective Date, by and between
the Company and the Agent, as the same may
be amended and in effect from time to
time.
Fees.
Collectively, the Commitment Fee, Competitive Bid fees, the Letter
of
Credit Fees, the Agent's Fee and the
Closing Fees.
Final Maturity
Date. March 18, 2007.
Fitch.
FitchRatings, or its successors.
Fleet. Fleet
National Bank, in its capacity as a Bank hereunder.
Foreign
Subsidiary. Any Subsidiary that conducts substantially all its
business (other than export sales) in
countries other than the United States of
America and that is organized under the
laws of a jurisdiction other than the
United States of America and the states
thereof.
GAAP. (i) When
used in section 11, whether directly or indirectly through
reference to a capitalized term used
therein, principles which are (A)
consistent with the principles promulgated
or adopted by the Financial
Page 17
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Accounting Standards Board and its
predecessors, in effect for the fiscal period
ended on the Balance Sheet Date, and (B) to
the extent consistent with such
principles, the accounting practice of the
Company reflected in its financial
statements for the year ended on the
Balance Sheet Date; and (ii) when used in
general, other than as provided above,
principles which are (A) consistent with
the principles promulgated or adopted by
the Financial Accounting Standards
Board and its predecessors (or successor
organizations), as in effect from time
to time and (B) consistently applied with
past financial statements of the
Company adopting the same principles.
GBP. British
Pounds Sterling.
Governmental
Authority. Any foreign, federal, state, regional, local,
municipal or other government, or any
department, commission, board, bureau,
agency, public authority or instrumentality
thereof, or any court or arbitrator.
Guaranteed
Pension Plan. Any employee pension benefit plan within the
meaning of section 3(2) of ERISA maintained
or contributed to by the Company or
any ERISA Affiliate the benefits of which
are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV
of ERISA, other than a Multiemployer
Plan.
Guaranty. The
Third Amended and Restated Guaranty, dated as of the
Effective Date, as the same may be amended
and in effect from time to time, made
by each Restricted Subsidiary in favor of
the Banks and the Agent pursuant to
which each Restricted Subsidiary guarantees
to the Banks and the Agent the
payment and performance of the Secured
Obligations and in form and substance
reasonably satisfactory to the Agent.
Hasbro
Companies. Collectively, the Company, the Restricted
Subsidiaries
and the Significant Subsidiaries.
Hasbro SA. See
preamble.
Hasbro SA Loans.
Any Loans made or to be made by the Banks to Hasbro SA.
Hasbro SA
Obligations. All Obligations of Hasbro SA with respect to the
Hasbro SA Loans.
Hazardous
Substances. See section 8.22.
Hedging
Agreement. Any foreign exchange contract, currency swap
agreement,
currency or commodity agreement or other
similar agreement or arrangement
designed to protect against the fluctuation
in currency values.
Identified
Brands. Collectively, the brand names Action Man, Monopoly, Mr.
Potato Head, Tonka, Lincoln Logs,
Playskool, Yahtzee, Clue and GI Joe.
Indebtedness. As
to any Person and whether recourse is secured by or is
otherwise available against all or only a
portion of the assets of such Person
and whether or not contingent, but without
duplication:
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(a) every obligation of such Person to repay money borrowed,
(b) every obligation
of such Person for principal evidenced by bonds,
debentures,
notes or other similar instruments, including obligations
incurred in
connection with the acquisition of property, assets or
businesses,
(c) every reimbursement obligation of such Person with respect
to
letters of
credit, bankers' acceptances or similar facilities issued for
the account of
such Person,
(d) every obligation of such Person issued or assumed as the
deferred
purchase price
of property or services (including securities repurchase
agreements but
excluding (i) trade accounts payable or accrued liabilities
arising in the
ordinary course of business which are not overdue or which
are being
contested in good faith, (ii) earnout obligations in respect of
assets or
businesses acquired prior to the Effective Date and (iii)
obligations to
repurchase any Lucas Warrant under the Warrant Amendment
Agreement,
(e) every obligation of such Person under any Capitalized
Lease,
(f) every obligation of such Person under any Synthetic Lease,
(g) all sales with recourse by such Person of (i) accounts or
general
intangibles for
money due or to become due, (ii) chattel paper, instruments
or documents
creating or evidencing a right to payment of money or (iii)
other
receivables (collectively "receivables"), whether pursuant to a
purchase
facility or otherwise, other than in connection with the
disposition of
the business operations of such Person relating thereto or a
disposition of
defaulted receivables for collection and not as a financing
arrangement, and
together with any obligation of such Person to pay any
discount,
interest, fees, indemnities, penalties, recourse, expenses or
other amounts in
connection therewith (for the avoidance of doubt, it being
understood that
sales pursuant to Section 10.5.2(j) or (k) are not
"Indebtedness"
under this clause (g) or otherwise),
(h) Indebtedness of any other entity (including any partnership
in
which such
Person is a general partner) to the extent that such Person is
liable therefor
as a result of such Person's ownership interest in or other
relationship
with such entity, except to the extent that the terms of such
Indebtedness
provide that such Person is not liable therefor and such terms
are enforceable
under applicable law,
(i) every obligation, contingent or otherwise, of such Person
guaranteeing, or
having the economic effect of guaranteeing or otherwise
acting as surety
for, any obligation of a type described in any of clauses
(a) through (h)
(the "primary obligation") of another Person (the "primary
obligor"), in
any manner, whether directly or indirectly, and including,
without
limitation, any such obligation of such Person (i) to purchase
or
pay (or advance
or supply funds for the purchase of) any security for the
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payment of such
primary obligation, (ii) to purchase property, securities
or services for
the purpose of assuring the payment of such primary
obligation, or
(iii) to maintain working capital, equity capital or other
financial
statement condition or liquidity of the primary obligor so as
to
enable the
primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any
Indebtedness at any time of
determination represented by (w) any
Indebtedness, issued at a price that is
less than the principal amount at maturity
thereof, shall be the amount of the
liability in respect thereof determined in
accordance with GAAP, (x) any
Capitalized Lease shall be the discounted
aggregate rental obligations under
such Capitalized Lease required to be
capitalized on the balance sheet of the
lessee in accordance with GAAP, (y) any
sale of receivables shall be the amount
of unrecovered capital or principal
investment of the purchaser (other than the
Company or any of its wholly-owned
Subsidiaries) thereof, excluding amounts
representative of yield or interest earned
on such investment, and (z) any
Synthetic Lease shall be the stipulated
loss value, termination value or other
equivalent amount.
Installment
Amount. See section 2.8.
Intercompany
Indebtedness. The aggregate amount of all Indebtedness of any
of the Company or any Operating Subsidiary
of the Company to any other of the
Company and its Operating Subsidiaries.
International
Eurocurrency Rate. For any Interest Period with respect to a
Eurocurrency Rate Loan denominated in any
Optional Currency, the rate of
interest equal to (a) the applicable
British Bankers' Association Interest
Settlement Rate for deposits in the
applicable Optional Currency appearing on
Reuters Screen FRBD or the applicable
Reuters Screen for such Optional Currency
as of 11:00 a.m. (London time) two (2)
Business Days prior to the first day of
such Interest Period in the approximate
amount of the relevant Eurocurrency Rate
Loan, and having a maturity equal to such
Interest Period, provided, however,
(i) if Reuters Screen FRBD or the
applicable Reuters Screen for such Optional
Currency is not available to the Agent, as
the case may be, for any reason, the
applicable International Eurocurrency Rate
for the relevant Interest Period
shall instead be the applicable British
Bankers' Association Interest Settlement
Rate for deposits in the applicable
Optional Currency as reported by any other
generally recognized financial information
service as of 11:00 a.m. (London
time) 2 (two) Business Days prior to the
first day of such Interest Period, and
having a maturity equal to such Interest
Period, and (ii) if no such British
Bankers' Association Interest Settlement
Rate is available, the applicable
International Eurocurrency Rate for the
relevant Interest Period shall be the
rate at which the Agent offers to place
deposits in the applicable Optional
Currency with first-class banks in the
London interbank market at approximately
11:00 a.m. (London time) two Business Days
prior to the first day of such
Interest Period, in the approximate amount
of the relevant Eurocurrency Rate
Loan and having a maturity equal to such
Interest Period, divided by (b) a
number equal to 1.00 minus the Eurocurrency
Reserve Rate, if applicable.
Interest Hedging
Agreement. Any interest rate swap agreement, interest rate
cap agreement, interest rate collar
agreement, interest rate futures contract,
interest rate option agreement or other
agreement or arrangement (including
without limitation any securities
repurchase or borrowing arrangement) to which
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the Company or any of its Subsidiaries is a
party and intended to protect any of
the Company and its Subsidiaries against
fluctuations in interest rates.
Interest Period.
(a) With respect to each Base Rate Loan comprising the
same Borrowing, the period (i) commencing
on the Drawdown Date of such
Borrowing, and (ii) ending thirty (30) days
thereafter as determined in
accordance with the provisions of this
Agreement;
(b) With respect
to each Eurocurrency Rate Loan comprising the same
Borrowing, the period (i) commencing on the
Drawdown Date of such Borrowing, and
(ii) ending one (1), two (2), three (3) or
six (6) months thereafter as
determined in accordance with the
provisions of this Agreement; and
(c) With respect
to each Competitive Bid Loan comprising the same
Borrowing, the period (i) commencing on the
date of such Borrowing and (ii)
ending from seven (7) through one hundred
eighty (180) days thereafter as
determined in accordance with the
provisions of this Agreement.
Inventory. With
respect to the Company or any of the Restricted
Subsidiaries, finished goods, work in
progress and raw materials and component
parts inventory and all "Inventory" as such
term is defined in the Uniform
Commercial Code as in effect in the
Commonwealth of Massachusetts owned by such
Person; provided that, proceeds of
Inventory shall not include any Receivables
sold, transferred, contributed or pledged
to or financed by a Receivables
Subsidiary.
Investment Grade
Rating. A Rating that is at least "BBB-", "Baa3" or "BBB-"
by Fitch, Moody's or S&P,
respectively.
Investment Grade
Rating Event. The Company's receipt of a Rating that is at
least one level higher than the lowest
Investment Grade Rating from at least two
Rating Agencies.
Investment Grade
Rating Non-Event. The Company's receipt of a Rating that
is the lowest Investment Grade Rating or
lower from at least two Rating
Agencies.
Investments. As
to any Person, all expenditures made for the acquisition of
stock or Indebtedness of, or for loans,
advances or capital contributions to,
any other Person, in each case to the
extent the same would be recorded as an
investment on the balance sheet of the
first Person under GAAP. In determining
the aggregate amount of Investments
outstanding at any particular time: (a)
there shall be deducted in respect of each
such Investment any amount received
as a return of capital (but only by
repurchase, redemption, retirement,
repayment, liquidating dividend or
liquidating distribution); (b) there shall
not be deducted in respect of any
Investment any amounts received as earnings on
such Investment, whether as dividends,
interest or otherwise; and (c) there
shall not be deducted from the aggregate
amount of Investments any decrease in
the value thereof.
Invitation for
Competitive Bid Quotes. See section 2.5.1(c).
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LC Exposure. At
any time, the sum of (a) the aggregate Maximum Drawing
Amount of all outstanding Letters of Credit
at such time plus (b) the aggregate
amount of all Unpaid Reimbursement
Obligations at such time. The LC Exposure of
any Bank at any time shall be its
Commitment Percentage of the total LC Exposure
at such time.
Letter of
Credit. See section 5.1.1.
Letter of Credit
Application. See section 5.1.1.
Letter of Credit
Fee. See section 5.6.
Letter of Credit
Participation. See section 5.1.4.
Lien. Any
mortgage, deed of trust, security interest, pledge,
hypothecation, security assignment,
attachment, deposit arrangement, lien
(statutory, judgment or otherwise), or
other security agreement or similar
encumbrance or preferential arrangement of
any kind or nature whatsoever
(including any conditional sale or other
title retention agreement, any
Capitalized Lease, any Synthetic Lease, any
financing lease involving
substantially the same economic effect as
any of the foregoing and the filing of
any financing statement evidencing any of
the foregoing under the Uniform
Commercial Code or comparable law of any
jurisdiction).
Loan Documents.
Collectively, this Agreement, the Notes, the Letter of
Credit Applications, the Letters of Credit,
the Security Documents (if and as
applicable), the Subordination Agreements,
the Agent's Fee Letter and the Fee
Letter.
Loans.
Collectively, the Syndicated Loans, the Competitive Bid Loans
and
the Swing Line Loans.
Lucas Warrants.
Collectively, (a) the Warrant to Purchase Shares of Common
Stock, dated October 30, 1998, issued to
Lucas Licensing Ltd. for the purchase
of 3,600,000 shares of the common stock of
the Company at the exercise price of
$23.33 per share, (b) the Warrant to
Purchase Shares of Common Stock, dated
October 30, 1998, issued to Lucasfilm Ltd.
for the purchase of 2,400,000 shares
of the common stock of the Company at the
exercise price of $23.33 per share,
(c) the Warrant to Purchase Shares of
Common Stock, dated October 14, 1997,
issued to Lucas Licensing Ltd. for the
purchase of 5,850,000 shares of the
common stock of the Company at the exercise
price of $18.67 per share and (d)
the Warrant to Purchase Shares of Common
Stock, dated October 14, 1997, issued
to Lucasfilm Ltd. for the purchase of
3,900,000 shares of the common stock of
the Company at the exercise price of $18.67
per share.
Majority Banks.
As of any date, the Banks whose aggregate Commitments
constitute more than fifty percent (50%) of
the Total Commitment, provided, that
if at the time Majority Banks is being
determined, the Total Commitment has been
terminated, the Majority Banks shall be the
Banks holding more than fifty
percent (50%) of the aggregate outstanding
principal amount of the Loans on such
date.
Margin. At any
time of determination, an annual percentage rate determined
in accordance with the Pricing Grid.
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Material Adverse
Effect. With respect to any event or occurrence of
whatever nature (including any adverse
determination in any litigation,
arbitration or governmental investigation
or proceeding):
(a) a material adverse effect on the business, properties,
condition,
assets,
operations or results of operations of the Hasbro Companies,
taken
as a whole;
(b) a material adverse effect on the ability of the Company
individually or
the Hasbro Companies taken as a whole, to perform its or
their respective
Obligations (as the case may be) under the Loan Documents;
or
(c) any material impairment of (i) the validity, binding effect
or
enforceability
of this Agreement or any of the other Loan Documents, (ii)
the rights,
remedies or benefits available to the Agent or any Bank under
the Loan
Documents or (iii) the attachment, perfection or priority of
any
Lien of the
Agent on a material portion of the Collateral under the
Security
Documents (if such Security Documents shall have been entered
into
and remain in
full force and effect pursuant to section 6.2).
Material Asset
Sale. Any Asset Sale not in the ordinary course of business
producing Net Cash Sale Proceeds in excess
of $35,000,000, but excluding any
Asset Sale permitted under sections
10.5.2(j) or (k) hereof and any Specified
Sale.
Maximum Drawing
Amount. The maximum aggregate amount that the beneficiaries
may at any time draw under outstanding
Letters of Credit, as such aggregate
amount may be reduced from time to time
pursuant to the terms of the Letters of
Credit.
Moody's. Moody's
Investors Service, or its successors.
Multiemployer
Plan. Any multiemployer plan within the meaning of section
3(37) of ERISA maintained or contributed to
by the Company or any ERISA
Affiliate.
Net Cash Sale
Proceeds. The net cash proceeds received by a Person in
respect of any Asset Sale, less the sum of
(a) all reasonable out-of-pocket
fees, commissions and other expenses
actually incurred in connection with such
Asset Sale, (b) the amount of any transfer,
documentary, income or other taxes
required to be paid by the Company or any
of its Subsidiaries in connection with
such Asset Sale, (c) the aggregate amount
of any Indebtedness (other than under
the Loan Documents) of the Company or any
of its Subsidiaries permitted by this
Agreement that was secured by a Permitted
Lien with respect to the assets
transferred and is required to be repaid in
whole or in part (which repayment,
in the case of any other revolving credit
arrangement or multiple advance
arrangement, reduces the commitment
thereunder) in connection with such Asset
Sale, (d) the amount of such proceeds
attributable to (and payable to) minority
interests, (e) the amount of any reserve
reasonably maintained by the Company or
any of its Subsidiaries with respect to
indemnification obligations owing
pursuant to the definitive documentation
pursuant to which such Asset Sale is
Page 23
<Page>
consummated (with any unused portion of
such reserve to constitute Net Cash Sale
Proceeds on the date upon which the
indemnification obligations terminate or
such reserve is reduced other than in
connection with a payment), and (f)
appropriate amounts to be provided by the
Company or any of its Subsidiaries to
be applied to satisfy any reasonable
expenses and liabilities associated with
any such property or assets and retained by
the Company or any such Subsidiary
after such Asset Sale.
Net Cash Equity
Issuance Proceeds. With respect to any Equity Issuance, the
excess of the gross cash proceeds received
by such Person for such Equity
Issuance after deduction of all reasonable
transaction expenses (including,
without limitation, underwriting discounts
and commissions) actually incurred in
connection with such Equity Issuance.
New Loans. See
section 4.1(e).
Note(s). Singly,
any of, and collectively, all of the Syndicated Notes, the
Competitive Bid Notes and the Swing Line
Note.
Notice of
Competitive Bid Borrowing. See section 2.4.1(f).
Obligations. All
indebtedness, obligations and liabilities to the Banks and
the Agent, individually or collectively,
arising or incurred under this
Agreement or any of the other Loan
Documents, or in respect of Loans made and
any Notes or other instruments at any time
evidencing any thereof, whether such
indebtedness, obligations, and liabilities
exist on the date of this Agreement
or arise thereafter, or are direct or
indirect, joint or several, absolute or
contingent, matured or unmatured,
liquidated or unliquidated, secured or
unsecured, arising by contract, operation
of law or otherwise, of the Company
and/or Hasbro SA, as the case may be,
including, without limitation, the Hasbro
SA Obligations.
Operating
Subsidiary. As at any particular date, any Subsidiary (other
than
a Subsidiary engaged solely in the business
of incurring Indebtedness or a
Receivables Subsidiary or other Subsidiary
formed in connection with any
Permitted Receivables Securitization
Facility) of the Company actively engaged
in the conduct of business.
Optional
Currency. Each of the following types of currency: Euros and
GBP.
Outstanding.
With respect to the Loans, the unpaid principal thereof as of
any date of determination.
Participant. See
section 20.5.
Patent
Agreements. Collectively, (a) the Patent Security Agreement
(Registrations) by and among the Company,
the Restricted Subsidiaries and the
Agent, in substantially the form of Exhibit
L hereto, pertaining to U.S. patent
registrations, to be entered into to the
extent required by section 6.2, and (b)
the Patent Security Agreement
(Applications), by and among the Company, the
Restricted Subsidiaries and the Agent, in
substantially the form of Exhibit L
hereto, pertaining to U.S. patent
applications, to be entered into to the extent
required by section 6.2.
PBGC. The
Pension Benefit Guaranty Corporation created by section 4002 of
ERISA and any successor entity or entities
having similar responsibilities.
Page
24
<Page>
Permitted
Acquisition. Any acquisition permitted by section 10.5.1(b).
Permitted Liens.
Liens permitted by section 10.2.
Permitted
Receivables Securitization Facility. Any transaction or series
of
related transactions providing for the
financing of any Receivables; provided
that any such transaction shall be
consummated on terms that include terms
substantially as described on Schedule 2 or
as the Majority Banks may otherwise
consent, such consent not to be
unreasonably withheld.
Person. Any
individual, corporation, partnership, trust, unincorporated
association, business, or other legal
entity, and any government or any
governmental agency or political
subdivision thereof.
Pricing Grid. As
set forth in the table below:
<Table>
<Caption>
------------------------------------------------------------------------------------------
RATING (AT LEAST TWO OF
MARGIN FOR
FITCH, MOODY'S OR
MARGIN FOR
EUROCURRENCY
COMMITMENT
LEVEL
STANDARD & POOR'S) BASE RATE
LOANS RATE LOANS
FEE
RATE
------------------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
<C>
I
BB-/Ba3/BB- or lower
0.75%
2.00%
0.40%
------------------------------------------------------------------------------------------
II
BB/Ba2/BB
0.50%
1.75%
0.35%
------------------------------------------------------------------------------------------
III
BB+/Ba1/BB+
0.25%
1.50%
0.30%
------------------------------------------------------------------------------------------
IV
BBB-/Baa3/BBB-
0.00%
1.25%
0.25%
------------------------------------------------------------------------------------------
V
BBB/Baa2/BBB
0.00%
1.00%
0.20%
------------------------------------------------------------------------------------------
VI
BBB+/Baa1/BBB+ or
0.00%
0.75%
0.15%
higher
------------------------------------------------------------------------------------------
</Table>
For purposes of the foregoing
table:
(i) during any period in
which the Obligations are secured by the Liens
described in section 6.2, so long as no Event of Default has
occurred or is continuing, the applicable Margin for Base Rate
Loans
in Levels I, II and III above and the applicable Margin for
Eurocurrency Rate Loans in Levels I through VI above shall be
0.25%
lower than the applicable rates set forth above but not less
than
zero.
(ii)
if the rating
system of any Rating Agency shall change, or if any
Rating Agency shall cease to be in the business of rating
corporate
debt obligations, the Company and the Agent shall negotiate in
good
faith to amend the foregoing table (which amendment shall
require
the consent of the Majority Banks) to reflect such changed
rating
system or the
unavailability of ratings from such Rating Agency and,
pending the effectiveness of any such amendment, the Margin and
the
Page 25
<Page>
Commitment Fee Rate shall be determined by reference to, and
shall
be based on, the higher of, each Rating of each Rating Agency
to
which neither this clause (ii) nor clause (iv) below then
applies;
(iii)
if the Ratings
established by the Rating Agencies shall fall within
different Levels, the Margin and the Commitment Fee Rate shall
be
based on the lower of the two highest Ratings;
(iv)
if any Rating
Agency shall not have a Rating in effect (other than
by reason of the circumstances referred to in clause (ii)
above),
then the Margin and the Commitment Fee Rate shall be determined
by
reference to, and shall be based on, the higher of, each Rating
of
each Rating Agency to which neither clause (ii) above nor this
clause (iv) then applies; and
(v) if any Rating Agency
shall change its Rating (other than by reason
of the circumstances referred to in clause (ii) above), such
change
shall be effective as of the date on which it is first announced
by
such Rating Agency.
Each change in
the Margin and the Commitment Fee Rate shall apply during
the period
commencing on the effective date of such change and ending on
the date
immediately preceding the effective date of the next such
change.
Rating. The
rating issued from time to time (whether on a preliminary basis
or otherwise) by any Rating Agency or such
other rating service or services as
the Company may designate from time to time
with the consent of the Majority
Banks with respect to the Company's senior
unsecured debt.
Rating Agencies.
Collectively, Fitch, Moody's and S&P.
RCRA. See
section 8.22.
Record. The grid
attached to a Note, or the continuation of such grid, or
any other similar record, including
computer records, maintained by any Bank
with respect to any Loan referred to in
such Note.
Receivables. All
Accounts and accounts receivable of the Company or any of
its Subsidiaries, including, without
limitation, any Accounts and accounts
receivable constituting or evidenced by
chattel paper, instruments or general
intangibles, and all proceeds thereof and
rights (contractual and other) and
collateral for such Accounts and accounts
receivable. Notwithstanding the
foregoing, Receivables shall not include
any rights or interests in intellectual
property of the Company or any of its
Subsidiaries.
Receivables
Subsidiary. Any special purpose, bankruptcy-remote corporation,
limited liability company, trust or other
entity established and majority owned
by the Company that purchases, receives
contributions of, or receives financing
secured by, Receivables generated by the
Company or any of its Subsidiaries.
Page 26
<Page>
Real Estate. All
real property owned or leased (as lessee or sublessee) by
any of the Hasbro Companies.
Reemployment
Period. See section 2.8.
Reemployment
Rate. See section 2.8.
Reference Banks.
Fleet, Bank of America, N.A., Citicorp USA, Inc., Mellon
Bank, N.A. and Commerzbank AG, New York
Branch.
Reference
Period. As of the end of any fiscal quarter, the period of four
(4) consecutive fiscal quarters of the
Company and its Subsidiaries ending on
such date, or if any date of determination
is not a fiscal quarter end date, the
period of four (4) consecutive fiscal
quarters most recently ended (in each case
treated as a single accounting period).
Refinancing
Indebtedness. With respect to the Company and its Subsidiaries,
Indebtedness which (a) refinances, refunds,
replaces, renews, repays, restates,
substitutes or extends other Indebtedness
of the Company or any of its
Subsidiaries, (b) has a maturity after the
Final Maturity Date, and (c) is not
prohibited by section 10.1 hereof.
Reimbursement
Obligation. The Company's obligation to reimburse the Agent
and the Banks on account of any drawing
under any Letter of Credit as provided
in section 5.2.
Replacement
Bank. See section 4.1(f).
Replacement
Date. See section 4.1(f).
Restricted
Payment. In relation to the Company and its Subsidiaries, any
(a) Distribution, (b) payment or prepayment
by the Company or its Subsidiaries
to the Company's or any Subsidiary's
shareholders (or other equity holders) in
their capacity as such, in each case other
than (i) to the Company or any
Subsidiary (or any payment or prepayment
excluded from the definition of the
term "Distribution") and (ii) the
acquisition of the Capital Stock of any
Subsidiary of the Company existing on the
Effective Date from any then existing
minority holder thereof, (c) optional
repayment, redemption or repurchase of
long term unsecured Indebtedness of the
Company existing on the Effective Date,
or (d) derivatives or other transactions
with any financial institution,
commodities or stock exchange or
clearinghouse (a "Derivatives Counterparty")
obligating the Company or any Subsidiary to
make payments to such Derivatives
Counterparty as a result of any change in
market value of any Capital Stock of
the Company or such Subsidiary.
Restricted
Subsidiaries. Collectively, (a) Wizards of the Coast, Inc., a
Washington corporation, (b) OddzOn, Inc., a
Delaware corporation, and (c)
material Domestic Subsidiaries (other than
any Receivables Subsidiary) (i)
created or acquired by the Company
following the Effective Date and (ii)
designated as Restricted Subsidiaries by
the Company or the Agent in a written
notice (it being understood that any
Restricted Subsidiary which merges with and
into the Company such that the Company is
the survivor shall no longer
constitute a Restricted Subsidiary
following such merger).
Page 27
<Page>
SARA. See
section 8.22.
Secured
Obligations. Collectively, (a) the Obligations, (b) other
Indebtedness of the Company consisting of
guaranties of Indebtedness of Foreign
Subsidiaries owing to any Bank or Bank
Affiliate, and (c) obligations of the
Company or its Subsidiaries to the Banks or
any Bank Affiliate and the Agent
(individually or collectively) arising
under Interest Hedging Agreements and
Hedging Agreements, but in each case, only
to the extent that, and for so long
as, the provisions of section 6.2 require
the Company and its Subsidiaries to
grant security interests in the assets
described in section 6.2.
Security
Agreements. Collectively, the Company Security Agreement and
the
Subsidiary Security Agreement.
Security
Documents. The Guaranty, the Security Agreements, the Trademark
Agreement, the Patent Agreements, the
Copyright Memorandum and all other
instruments and documents, including
without limitation Uniform Commercial Code
financing statements, required to be
executed or delivered pursuant to any
Security Document.
Significant
Subsidiary. (a) Any Subsidiary of the Company (other than any
Receivables Subsidiary), organized under
the laws of the United States or any
State of the United States or the District
of Columbia, which, either alone or
together with the Subsidiaries of such
Subsidiary, meets either of the following
conditions:
(i) the investments of the Company and its Subsidiaries in, or
their
proportionate
share (based on their equity interests) of the book value of
the total assets
(after intercompany eliminations) of, the Subsidiary in
question exceed
10% of the book value of the total assets of the Company
and its
Subsidiaries on a consolidated basis, or
(ii) the equity of the Company and its Subsidiaries in the revenues
of
the Subsidiary
in question exceeds 10% of the revenues from continuing
operations of
the Company and its Subsidiaries on a consolidated basis for
the Company's
most recent fiscal year; or
(b) Any other
Subsidiary of the Company designated as a "Significant
Subsidiary" by the Company in a written
notice to the Agent.
Specified Sale.
Any disposition of Capital Stock of Atari by the Company
acquired in connection with the sale of the
Company's interactive and on-line
businesses to Atari.
Standard &
Poor's. Standard & Poor's Ratings Services, a division of
The
McGraw Hill Companies Inc., or its
successors.
Subordinated
Debt. Unsecured Indebtedness of any Operating Subsidiary that
is expressly subordinated and made junior
to the payment and performance in full
of the Obligations (other than pursuant to
the Subordination Agreements), and
Page 28
<Page>
evidenced as such by a written instrument
containing subordination provisions in
form and substance reasonably satisfactory
to the Majority Banks.
Subordination
Agreement. The Third Amended and Restated Subordination
Agreement, dated as of the Effective Date,
among the Company, the Significant
Subsidiaries and the Agent, substantially
in the form of Exhibit F hereto; and
"Subordination Agreements" means the
Subordination Agreement and any additional
subordination agreements executed and
delivered to the Agent for the benefit of
the Banks pursuant to section 9.14 hereof,
in each case as amended and in effect
from time to time.
Subsidiary. Any
corporation, limited liability company, association, trust,
or other business entity of which the
designated parent shall at any time own
directly or indirectly through a Subsidiary
or Subsidiaries at least a majority
(by number of votes) of the outstanding
Voting Stock.
Subsidiary
Security Agreement. The Security Agreement among the Restricted
Subsidiaries and the Agent, in
substantially the form of Exhibit J hereto, to be
entered into to the extent required by
section 6.2.
Swing Line Bank.
Fleet.
Swing Line Loan.
Any loan made by the Swing Line Bank pursuant to section
3.1 hereof.
Swing Line Loan
Maturity Date. See section 3.2.
Swing Line Loan
Request. See section 3.2.
Swing Line Note.
See section 3.5.
Swing Line Note
Record. A Record with respect to a Swing Line Note.
Syndicated
Loan(s). Singly, any of, and collectively, all of, the
revolving
credit loans made by the Banks in
accordance with their respective Commitment
Percentages to the Company and Hasbro SA as
contemplated by section 2.1 hereof.
Syndicated
Note(s). See section 2.6.
Syndicated Note
Record. A Record with respect to a Syndicated Note.
Synthetic Lease.
Any lease of goods or other property, whether real or
personal, which is treated as an operating
lease under GAAP and as a loan or
financing for U.S. income tax purposes.
Total
Commitment. The sum of the Commitments of the Banks, as in
effect
from time to time, which as of the
Effective Date shall be equal to the
aggregate principal amount of
$350,000,000.
Page 29
<Page>
Trademark
Agreement. The Trademark Security Agreement among the Company,
the Restricted Subsidiaries and the Agent,
in substantially the form of Exhibit
K hereto, to be entered into to the extent
required by section 6.2.
Type. As to any
Syndicated Loan, its nature as a Base Rate Loan or a
Eurocurrency Rate Loan.
Unpaid
Reimbursement Obligation. Any Reimbursement Obligation for which
the
Company does not reimburse the Agent and
the Banks on the date specified in, and
in accordance with, section 5.2.
Utilization. An
amount equal to the Dollar Equivalent of the sum of (i) the
outstanding amount of all Loans (after
giving effect to all amounts requested),
(ii) the Maximum Drawing Amount and (iii)
all Unpaid Reimbursement Obligations.
Voting Stock.
Stock or similar interests, of any class or classes (however
designated), the holders of which are at
the time entitled, as such holders, to
vote for the election of a majority of the
directors (or persons performing
similar functions) of the corporation,
association, trust or other business
entity involved, whether or not the right
so to vote exists by reason of the
happening of a contingency (unless the
happening of any such contingency is not
within the control of the Company).
Warrant
Amendment Agreement. The Warrant Amendment Agreement, dated
January
30, 2003 by and among the Company, Lucas
Licensing Ltd. and Lucasfilm Ltd.
Wholly Owned
Subsidiary. Any Subsidiary of the Company for which all its
outstanding Voting Stock (other than any
directors' qualifying shares and shares
required to be held by foreign nationals
under applicable law) is held by the
Company or one or more Wholly Owned
Subsidiaries.
1.2. RULES OF
INTERPRETATION.
(a) A reference
to any document or agreement shall include such document or
agreement as amended, modified or
supplemented from time to time in accordance
with its terms and the terms of this
Agreement.
(b) The singular
includes the plural and the plural includes the singular.
(c) A reference
to any law includes any amendment or modification to such
law.
(d) A reference
to any Person includes its permitted successors and
permitted assigns.
(e) Accounting
terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a
consistent basis by the accounting entity
to which they refer.
(f) The words
"include", "includes" and "including" are not limiting.
Page 30
<Page>
(g) Reference to
a particular "section " refers to that section of this
Agreement unless otherwise indicated.
(h) 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.
(i) Unless
otherwise expressly indicated, in the computation of periods of
time from a specified date to a later
specified date, the word "from" means
"from and including," the words "to" and
"until" each mean "to but excluding,"
and the word "through" means "to and
including."
(j) This
Agreement and the other Loan Documents may use several
different
limitations, tests or measurements to
regulate the same or similar matters. All
such limitations, tests and measurements
are, however, cumulative and are to be
performed in accordance with the terms
thereof.
(k) This
Agreement and the other Loan Documents are the result of
negotiation among, and have been reviewed
by counsel to, among others, the Agent
and the Company and are the product of
discussions and negotiations among all
parties. Accordingly, this Agreement and
the other Loan Documents are not
intended to be construed against the Agent
or any of the Banks merely on account
of the Agent's or any Bank's involvement in
the preparation of such documents.
2. THE SYNDICATED AND COMPETITIVE BID LOAN FACILITY.
2.1. COMMITMENT
TO LEND SYNDICATED LOANS. (a) Subject to the terms and
conditions set forth in this Agreement,
each of the Banks severally agrees to
lend to the Company and/or Hasbro SA, and
the Company and/or Hasbro SA may
borrow, repay, and reborrow from time to
time between the Effective Date and the
Final Maturity Date upon notice by the
Company and/or Hasbro SA, as the case may
be, to the Agent given in accordance with
section 2.4 hereof, such sums in
Dollars and/or, at the Company's and/or
Hasbro SA's option from time to time,
subject to section 2.12 hereof, in an
Optional Currency as are requested by such
Person ("Syndicated Loans") up to a maximum
aggregate amount outstanding (after
giving effect to all amounts requested) at
any one time equal to such Bank's
Commitment (as such Commitment has been
deemed to be reduced by such Bank's
Commitment Percentage of outstanding
Competitive Bid Loans) minus such Bank's
Commitment Percentage of the sum of the
Maximum Drawing Amount and all Unpaid
Reimbursement Obligations, provided that
the Utilization shall not at any time
exceed the Total Commitment. The Syndicated
Loans shall be made pro rata in
accordance with each Bank's Commitment
Percentage. Each request for Syndicated
Loans hereunder shall constitute a
representation by the Company or Hasbro SA,
as the case may be, that the applicable
conditions set forth in sections 12 and
13, in the case of the initial Syndicated
Loans to be converted into Syndicated
Loans hereunder on the Effective Date, and
section 13, in the case of all other
Syndicated Loans, have been satisfied on
the date of such request. Each Base
Rate Loan and Eurocurrency Rate Loan shall
mature and become due and payable on
the last day of the Interest Period
relating thereto and shall be payable in the
currency in which such Loan was made.
Page 31
<Page>
(b) After any
prepayment and at maturity of the Syndicated Loans pursuant
to section 2.1(a) above, the Company and/or
Hasbro SA, as applicable, shall be
entitled to reborrow any or all of the
principal amount of such Syndicated Loan,
subject to all of the applicable conditions
precedent set forth in section 13.
Each Bank's Commitment shall terminate, all
Syndicated Loans shall become
finally due and payable and the Company
promises to pay or, solely in the case
of Hasbro SA Loans, Hasbro SA promises to
pay, on the Final Maturity Date all
Syndicated Loans outstanding on the Final
Maturity Date.
(c) The
respective amount of each Bank's Commitment and its Commitment
Percentage shall be as set forth on
Schedule 1 hereto, subject to reduction in
accordance with section 2.3 and section
2.11.
(d) Each Bank
represents and warrants that it will use its best efforts to
ensure that the funding of its Loans is not
made directly out of the assets of
any "employee benefit plan" or of any
"separate account" in which any "employee
benefit plan" has any interest other than a
"government plan" (each such term
being used herein as defined in Section 3
of ERISA).
2.2. COMMITMENT
FEE. The Company agrees to pay to the Agent for the pro
rata accounts of the Banks in accordance
with their respective Commitment
Percentages a commitment fee (the
"Commitment Fee"), calculated at the
applicable annual percentage rate
determined in accordance with the Pricing
Grid, on the average daily amount during
each calendar quarter or portion
thereof from the Effective Date to the
Final Maturity Date by which (a) (i) the
Total Commitment minus (ii) the sum of (A)
the Maximum Drawing Amount and (B)
all Unpaid Reimbursement Obligations
exceeds (b) the outstanding amount of
Syndicated Loans during such calendar
quarter. The Commitment Fee shall be
payable quarterly in arrears on the first
day of each calendar quarter for the
immediately preceding calendar quarter
commencing on the first such date
following the Effective Date, with a final
payment on the Final Maturity Date or
any earlier date on which the Commitments
shall terminate.
2.3. REDUCTION
OF TOTAL COMMITMENT. The Company shall have the right at any
time and from time to time upon five (5)
Business Days written notice to the
Agent to reduce by $10,000,000 or an
integral multiple thereof or terminate
entirely the unborrowed portion of the
Total Commitment, whereupon the
Commitments of the Banks shall be reduced
pro rata in accordance with their
respective Commitment Percentages of the
amount specified in such notice or, as
the case may be, terminated. Promptly after
receiving any notice of the Company
delivered pursuant to this section 2.3, the
Agent will notify the Banks of the
substance thereof. Upon the effective date
of any such reduction or termination,
the Company shall pay to the Agent for the
respective accounts of the Banks the
full amount of the Commitment Fee then
accrued on the amount of the reduction.
No reduction of the Commitments of the
Banks may be reinstated unless otherwise
agreed to by the Company and each of the
Banks. Nothing contained in this
section 2.3 shall obligate any Bank in any
way whatsoever to reinstate all or
any part of its Commitment after a
reduction of such Commitment hereunder. If at
any time the outstanding amount of the
Loans exceeds the Total Commitment as a
result of any reduction of the Total
Commitment pursuant to this section 2.3,
Page 32
<Page>
then the Company shall immediately pay the
amount of such excess to the Agent
for the respective account of the Banks for
application to the Loans. Each
payment of Loans shall be allocated among
the Banks, in proportion, as nearly as
practicable to the respective unpaid
principal amount of each Bank's Syndicated
Note or Competitive Bid Note, as
applicable, with adjustments to the extent
practicable to equalize any prior payments
or repayments not exactly in
proportion. In addition, the Total
Commitment shall be reduced (i)
automatically, pursuant to this section
2.3, effective March 31, 2005, in the
amount of $50,000,000, (ii) automatically,
pursuant to this section 2.3,
effective November 30, 2005, in the
additional amount of $50,000,000, and (iii)
in accordance with section 2.11.
2.4. REQUESTS
FOR SYNDICATED LOANS. (a) The Company and/or Hasbro SA, as
the case may be, shall give to the Agent
written notice in the form of Exhibit
A-2 hereto (or telephonic notice confirmed
in a writing in the form of Exhibit
A-2 hereto) of each Syndicated Loan
requested hereunder (a "Loan Request") not
later than (i) with respect to Base Rate
Loans, 12 noon (Boston time) on the
proposed Drawdown Date (except in the case
of Hasbro SA Loans, which written
notice shall be by 8:00 A.M. (Boston time)
on the proposed Drawdown Date) of
such Base Rate Loan and (ii) with respect
to Eurocurrency Rate Loans, 1:00 P.M.
(Boston time) on the third Business Day
prior to the proposed Drawdown Date of
such Eurocurrency Rate Loan, provided, that
any notice requesting a Syndicated
Loan be made in an Optional Currency must
comply with the requirements of
section 2.12. The Agent shall promptly
notify the Banks of the contents of each
such notice at the address or addresses for
each Bank set forth on Schedule 1
hereof.
(b) Each such
notice delivered by the Company and/or Hasbro SA, as the case
may be, shall specify (i) the aggregate
principal amount of Syndicated Loans
requested, stated in Dollars, or subject to
section 2.12, an Optional Currency,
(ii) the Type of Syndicated Loan requested,
(iii) the proposed Drawdown Date and
duration of the proposed Interest Period(s)
applicable to any Base Rate Loans,
or Eurocurrency Rate Loans and (iv) the
Company's and/or Hasbro SA's, as the
case may be, account to which payment of
the proceeds of such Syndicated Loan is
to be made. Each such notice (which shall
be irrevocable) shall obligate the
Company and/or Hasbro SA to accept the
Syndicated Loans requested from the Banks
on the proposed Drawdown Date therefor.
(c) Each request
for Types of Syndicated Loans made hereunder shall be in a
minimum aggregate amount of $5,000,000 or a
greater integral multiple of
$1,000,000 (other than requests in Optional
Currencies, which shall be in the
amounts prescribed in section 2.12).
(d) Any
Syndicated Loans requested by the Company and/or Hasbro SA
pursuant
to this section 2.4 shall be made available
to such Person in accordance with
the provisions of section 2.9 hereof.
2.5. COMPETITIVE
BID LOANS.
2.5.1. COMPETITIVE BID BORROWINGS.
(a) The Competitive Bid Option. In addition to the Syndicated
Loans permitted to be made hereunder pursuant to section 2.1
hereof,
the Company or, solely in the case of Hasbro SA Loans, Hasbro SA
may,
pursuant to the terms of this section 2.5, cause the Agent to
request
the Banks to make offers to fund Competitive Bid Loans to the
Company
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or, solely in the case of Hasbro SA Loans, Hasbro SA from time to
time
prior to the Final Maturity Date. The Banks may, but shall have
no
obligation to, make such offers and the Company or, solely in the
case
of
Hasbro SA Loans, Hasbro SA may, but shall have no obligation
to,
accept such offers in the manner set forth in this section 2.5.
Notwithstanding any other provision herein to the contrary, at no
time
shall the Utilization exceed the Total Commitment.
(b) Competitive Bid Quote Request. When the Company or, solely
in
the case of Hasbro SA Loans, Hasbro SA wishes to request offers
to
make Competitive Bid Loans under this section 2.5, it shall
transmit
to the Agent by telephone, telex, cable or facsimile (in each
case
confirmed in writing by the Company or, solely in the case of
Hasbro
SA Loans, Hasbro SA) a Competitive Bid Quote Request substantially
in
the
form of Exhibit B-2 hereto (a "Competitive Bid Quote Request")
so
as to be received no later than 11:00 a.m. (Boston time) on the
first
Business Day (except in the case of Hasbro SA Loans, which
request
shall be received not later than the second Business Day) prior to
the
requested Drawdown Date, specifying (i) the requested Drawdown
Date
(which must be a Business Day) and the amount of such Competitive
Bid
Loan (which must be a minimum of $5,000,000 or any greater
integral
multiple of $1,000,000 and may not exceed the Total Commitment,
and
(ii) the Interest Period of such Competitive Bid Loan, subject to
the
provisions of the definition of Interest Period, and be accompanied
by
a Competitive Bid fee of $750 payable to the Agent with respect
to
each Competitive Bid Quote Request. The Company or, solely in the
case
of Hasbro SA Loans, Hasbro SA may request offers to make
Competitive
Bid Loans for no more than one (1) amount and three (3)
Interest
Periods in a single Competitive Bid Quote Request. No new
Competitive
Bid Quote Request shall be given until the Company or, solely in
the
case of Hasbro SA Loans, Hasbro SA has notified the Agent of
its
acceptance or non-acceptance of the Competitive Bid Quotes relating
to
any outstanding Competitive Bid Quote Request.
(c) Invitation for Competitive Bid Quotes. Subsequent to timely
receipt of a Competitive Bid Quote Request, the Agent shall send
to
the Banks by facsimile an Invitation for Competitive Bid Quotes
as
promptly as possible but not later than 3:00 p.m. (Boston time) on
the
first
Business Day prior to the requested Drawdown Date,
substantially
in the form of Exhibit B-3 hereto (an "Invitation for Competitive
Bid
Quotes"), which shall constitute an invitation by the Company
or,
solely in the case of Hasbro SA Loans, Hasbro SA to each Bank
to
submit Competitive Bid Quotes offering to make Competitive Bid
Loans
to which such Competitive Bid Quote Request relates in accordance
with
this section 2.5. If, after receipt by the Agent of a Competitive
Bid
Quote Request from the Company or, solely in the case of Hasbro
SA
Loans, Hasbro SA in accordance with subsection (b) of this
section
2.5.1, the Agent or any Bank shall be unable to complete any
procedure
of the auction process described in subsections (d) through (f)
(inclusive) of this section 2.5.1 due to the inability of such
Person
to transmit or receive communications through the means
specified
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therein, such Person may rely on telephonic notice for the
transmission or receipt of such communications. In any case where
such
Person shall rely on telephone transmission or receipt, any
communication made by telephone shall, as soon as possible
thereafter,
be followed by written confirmation thereof.
(d) Submission and Contents of Competitive Bid Quotes.
(i) Each Bank may, but shall be under no obligation to,
submit a Competitive Bid Quote containing an offer or offers to
make Competitive Bid Loans to the Company or, solely in the
case
of Hasbro SA Loans, Hasbro SA in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply
with the requirements of this subsection (d) and must be
submitted to the Agent by facsimile not later than 10:00 a.m.
(Boston time) on
the requested Drawdown Date (except in the case
of Hasbro SA Loans, which Competitive Bid Quote must be
submitted
not later than the day prior to the Drawdown Date), provided,
that Competitive Bid Quotes may be made by the Agent in its
capacity as a Bank only if it notifies the Company or, solely
in
the case of Hasbro SA Loans, Hasbro SA of the terms of its
Competitive Bid Quote no later than 9:45 a.m. (Boston time) on
the requested Drawdown Date (except in the case of Hasbro SA
Loans, which notice shall be made not later than the day prior
to
the requested Drawdown Date). Subject to the provisions of
sections 12 and 13 hereof, any Competitive Bid Quote so made
shall be irrevocable except with the written consent of the
Agent
given on the instructions of the Company or, solely in the case
of Hasbro SA Loans, Hasbro SA.
(ii) Each Competitive Bid Quote shall be in substantially
the form of Exhibit B-4 hereto and shall in any case specify:
(A) the requested Drawdown Date and Interest Periods;
(B) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal
amount (w) may be greater than the Commitment of the quoting
Bank but may not
exceed the Total Commitment, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may not
exceed the aggregate principal amount of Competitive Bid
Loans for which offers were requested, and (z) may be
subject to an aggregate limitation as to the principal
amount of Competitive Bid Loans for which offers being made
by such quoting Bank may be accepted;
(C) the rate of interest per annum (rounded to the
nearest 1/1000th of 1%) (the "Competitive Bid Rate") offered
for each such Competitive Bid Loan, and
(D) the identity of the quoting Bank.
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A Competitive Bid Quote may include up to five (5) separate
offers by the quoting Bank with respect to each Interest Period
specified in the related Invitation for Competitive Bid Quotes.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in the form of Exhibit B-4
hereto or does not specify all of the information required
by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language (except that it may, in the case of a quote
relating to more than one Interest Period, contain the
condition described in subsection (d)(ii)(B));
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) Notice to Company or Hasbro SA. Not later than 10:15
a.m. (Boston time) on the requested Drawdown Date (except in
the
case of Hasbro SA Loans, which notice shall be on the day prior
to the requested Drawdown Date), the Agent shall notify the
Company or, solely in the case of Hasbro SA Loans, Hasbro SA of
the terms of (i) all Competitive Bid Quotes submitted by the
Banks in accordance with the preceding subsection (d) and (ii)
of
any Competitive Bid Quote that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid Quote submitted by
such Bank with respect to the same Competitive Bid Quote
Request.
Any such subsequent Competitive Bid Quote shall be disregarded
by
the
Agent unless such subsequent Competitive Bid Quote is
submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Agent's notice to the Company or,
solely in the case of Hasbro SA Loans, Hasbro SA shall specify
(A) the aggregate principal amount of Competitive Bid Loans for
which offers have been received for each Interest Period
specified in the related Competitive Bid Quote Request, (B) the
respective principal amounts and Competitive Bid Rates so
offered, and the identity of the respective Banks submitting
such
offers, and (C) if applicable, limitations on the aggregate
principal amount of Competitive Bid Loans for which offers in
any
single Competitive Bid Quote may be accepted.
(f) Acceptance and Notice by Company or Hasbro SA and Agent.
Not later than 10:45 a.m. (Boston time) on the requested
Drawdown
Date (except in the case of Hasbro SA Loans, which notice shall
be on the day prior to the requested Drawdown Date), the
Company
or, solely in the case of Hasbro SA Loans, Hasbro SA shall
notify
the Agent of the Company's or, solely in the case of Hasbro SA
Loans, Hasbro SA's acceptance or non-acceptance of the offers
of
which it was notified pursuant to the preceding subsection (e)
in
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a notice, transmitted to the Agent by telephone, telex, cable
or
facsimile (in each case confirmed in writing by the Company or,
solely in the case of Hasbro SA Loans, Hasbro SA), in
substantially the form of Exhibit B-5 hereto (a "Notice of
Competitive Bid Borrowing"). Such notice shall specify the
aggregate principal amount of offers for each Interest Period
that are accepted. The Company or, solely in the case of Hasbro
SA Loans, Hasbro SA may accept any Competitive Bid Quote in
whole
or in part; provided that:
(i) the aggregate principal amount of each Competitive
Bid Loan may not exceed the applicable amount set forth in
the related Competitive Bid Quote Request,
(ii) the aggregate principal amount of each Competitive
Bid Loan must be $5,000,000 or a larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Competitive Bid Rates, and
(iv) no
offer may be accepted that is described in
subsection (d)(iii) or that otherwise fails to comply with
the requirements of this Agreement.
The Agent shall promptly notify each Bank which submitted a
Competitive Bid Quote of the acceptance or non-acceptance
thereof. The Agent will promptly notify each Bank which
submitted
a Competitive Bid Quote and each other Bank which so requests
the
following
information from the Agent of (a) the aggregate
principal amount of, and (b) the range of Competitive Bid Rates
of the accepted Competitive Bid Loans for each requested
Interest
Period.
(g) Allocation by Agent. If offers are made by two (2) or
more Banks with the same Competitive Bid Rates, for a greater
aggregate principal amount than the amount in respect of which
offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which
such offers are accepted shall be allocated by the Agent among
such Banks as nearly as possible (in such multiples, not less
than $100,000 as the Agent may deem appropriate) in proportion
to
the aggregate principal amounts of such offers. If any such
Bank
has indicated a minimum acceptable Competitive Bid Loan in its
Competitive Bid Request, and under the procedures of this
subsection (g), the Agent would have allocated to it an amount
less than such minimum, such Competitive Bid Quote will instead
be deemed to have been withdrawn. Determination by the Agent of
the amounts of Competitive Bid Loans and the allocation thereof
shall be conclusive in the absence of manifest error.
(h) Funding of Competitive Bid Loans. If, on or prior to the
Drawdown Date of any Competitive Bid Loan, the Total Commitment
has not terminated in full and if, on such Drawdown Date, the
applicable conditions of sections 12 and 13 hereof are
satisfied,
the Bank or Banks whose offers the Company or, solely in the
case
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of Hasbro SA Loans, Hasbro SA has accepted will fund each
Competitive Bid Loan so accepted. Such Bank or Banks will make
such Competitive Bid Loans, by crediting the Agent for further
credit to the Company's or, solely in the case of Hasbro SA
Loans, Hasbro SA's, specified account, in immediately available
funds not later than 1:00 p.m. (Boston time) on such Drawdown
Date.
2.5.2. REPAYMENT OF COMPETITIVE BID LOANS. The principal of
each Competitive Bid Loan shall become absolutely due and payable
by
the Company or, solely in the case of Hasbro SA Loans, Hasbro SA on
the
last day of the Interest Period relating thereto, and the Company
or,
solely in the case of Hasbro SA Loans, Hasbro SA hereby absolutely
and
unconditionally promises to pay to the Agent for the account of
the
relevant Banks on the last day of the Interest Period relating
thereto
the principal amount of all such Competitive Bid Loans, plus
interest
thereon at the applicable Competitive Bid Rate. The Competitive
Bid
Loans shall bear interest at the rate per annum specified in
the
applicable Competitive Bid Quotes. Interest on each Competitive
Bid
Loan shall be payable (a) on the last day of the applicable
Interest
Period, and if any such Interest Period is longer than ninety
(90)
days, also on the last day of each ninety (90) day period following
the
commencement of such Interest Period, and (b) on the Final
Maturity
Date for each Competitive Bid Loan. Subject to the terms of
this
Agreement, the Company or, solely in the case of Hasbro SA
Loans,
Hasbro SA may make Competitive Bid Quote Requests with respect to
new
Borrowings of any amounts so repaid prior to the Final Maturity
Date.
Except after an acceleration pursuant to section 14.1 hereof,
no
principal amount with respect to any Competitive Bid Loan may be
repaid
other than on the last day of the Interest Period relating
thereto
unless otherwise agreed to in writing by the Company or, solely in
the
case of Hasbro SA Loans, Hasbro SA and the funding Bank.
Notwithstanding the foregoing, Hasbro SA shall have no liability
to
repay any Competitive Bid Loans requested by the Company.
2.6. THE NOTES.
(a) The Syndicated Loans shall be evidenced by separate
promissory notes of the Company and Hasbro
SA in substantially the form of
Exhibit A-1 hereto (the "Syndicated
Notes"), dated as of the date hereof (or
such other date as a Bank may become a
party hereto pursuant to section 20) with
appropriate insertions; one Syndicated Note
being payable to the order of each
Bank in a principal amount equal to (i) in
the case of the Company, such Bank's
Commitment representing the obligation of
the Company to pay to such Bank such
amount and (ii) in the case of Hasbro SA,
such Bank's Commitment representing
the obligation of Hasbro SA to pay to such
Bank such amount, or in each case, if
less, the aggregate unpaid principal amount
of all Syndicated Loans made by such
Bank to such Person hereunder, plus
interest accrued thereon as set forth below.
Each of the Company and Hasbro SA hereby
irrevocably authorizes each Bank to
make or cause to be made, at or about the
time of each Syndicated Loan to such
Person made by such Bank, an appropriate
notation on such Bank's Syndicated Note
Record reflecting the unpaid principal
amount of all Syndicated Loans made by
such Bank to such Person, and such Bank
shall make or cause to be made, at or
about the time of receipt of any payment of
principal on the Syndicated Note of
such Bank, an appropriate notation on such
Syndicated Note Record reflecting
such payment. The aggregate unpaid amount
of Syndicated Loans made by such Bank
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to the Company and Hasbro SA set forth on
such Bank's Syndicated Note Records
shall be rebuttably presumptive evidence of
the principal amount thereof owing
and unpaid to such Bank, but the failure to
record, or any error in so
recording, any such amount on such Bank's
Syndicated Note Records shall not
limit or otherwise affect the obligations
of the Company or Hasbro SA hereunder
or under the Syndicated Note of such Person
to make payments of principal of or
interest on such Syndicated Note when
due.
(b) Competitive
Bid Notes. The Competitive Bid Loans shall be evidenced by
separate promissory notes of the Company
or, solely in the case of Hasbro SA
Loans, Hasbro SA in substantially the form
of Exhibit B-1 hereto (the
"Competitive Bid Notes"), dated as of the
date hereof (or such other date as a
Bank may become a party hereto pursuant to
section 20 hereof) with appropriate
insertions; one Competitive Bid Note being
payable to the order of each Bank in
a principal amount equal to the Total
Commitment and representing the obligation
of the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA to pay to
such Bank the aggregate unpaid principal
amount of all Competitive Bid Loans
made by such Bank hereunder, as set forth
in section 2.5 hereof, plus interest
accrued thereon as set forth below. Each of
the Company and Hasbro SA hereby
irrevocably authorizes each Bank to make or
cause to be made, at or about the
time of each Competitive Bid Loan to the
Company or, solely in the case of
Hasbro SA Loans, Hasbro SA made by such
Bank, an appropriate notation on the
Competitive Bid Note Record of such Bank
reflecting the unpaid principal amount
of all Competitive Bid Loans made by such
Bank, and such Bank shall make or
cause to be made, at or about the time of
receipt of any payment of principal on
the Competitive Bid Note of such Bank, an
appropriate notation on the
Competitive Bid Note Record reflecting such
payment. The aggregate unpaid amount
of Competitive Bid Loans made by such Bank
set forth on the Competitive Bid Note
Record shall be rebuttably presumptive
evidence of the principal amount thereof
owing and unpaid to such Bank, but the
failure to record, or any error in so
recording, any such amount on such
Competitive Bid Note Record shall not limit
or otherwise affect the obligations of the
Company or Hasbro SA hereunder or
under the Competitive Bid Note to make
payments of principal of or interest on
the Competitive Bid Note when due.
2.7. INTEREST ON
LOANS.
(a) Except as
provided in section 4.3 hereof, Base Rate Loans outstanding
from time to time shall bear interest
during the Interest Period relating
thereto at the annual percentage rate equal
to the sum of (i) the Base Rate in
effect from time to time and (ii) the
applicable Margin in effect during such
Interest Period. Interest on Base Rate
Loans shall be payable in Dollars or in
the applicable Optional Currency in which
the underlying Loan was made, as the
case may be, and in accordance with section
4.1(a) hereof.
(b) Except as
provided in section 4.3 hereof, Eurocurrency Rate Loans
outstanding from time to time shall bear
interest during the Interest Period
relating thereto at the annual percentage
rate equal to the sum of (i) the
Eurocurrency Rate and (ii) the applicable
Margin in effect during such Interest
Period. Interest on the Eurocurrency Rate
Loans shall be payable in Dollars or
in the applicable Optional Currency in
which the underlying Loan was made, as
the case may be, and in accordance with
section 4.1(a) hereof.
(c) Except as
provided in section 4.3 hereof, each Competitive Bid Loan
outstanding from time to time shall bear
interest at the rate per annum
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specified in the applicable Competitive Bid
Quote with respect to such
Competitive Bid Loan. Interest on
Competitive Bid Loans shall be payable in
Dollars and in accordance with section
4.1(a) hereof.
2.8.
PREPAYMENTS. The Company or, solely in the case of Hasbro SA
Loans,
Hasbro SA shall repay Base Rate Loans or
Eurocurrency Rate Loans made to the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA hereunder on the
last day of the Interest Period relating
thereto. As provided in section 2.5.2,
the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA shall repay
Competitive Bid Loans made to the Company
or, solely in the case of Hasbro SA
Loans, Hasbro SA hereunder on the last day
of the Interest Period relating
thereto. The Company or, solely in the case
of Hasbro SA Loans, Hasbro SA shall
also have the right at any time to prepay
Syndicated Loans consisting of Base
Rate Loans, as a whole or in part, without
premium or penalty; provided that the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA shall provide
written, telegraphic or telephonic notice
to the Agent not later than 11:00 a.m.
(Boston time) on the proposed date of
prepayment stating the aggregate principal
amount of such prepayment. Each partial
prepayment of any Syndicated Loan
pursuant to this section 2.8 shall be in a
minimum aggregate principal amount of
$5,000,000 or some greater integral
multiple of $1,000,000 (or the Dollar
Equivalent thereof in an Optional
Currency), or, if less, the aggregate
outstanding principal amount of the
Syndicated Loans. Subject to the conditions
of section 2.1 hereof, amounts so prepaid
may be reborrowed. In addition, the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA may, upon three (3)
Business Days' written, telegraphic or
telephonic notice to the Agent stating
the proposed date and the aggregate
principal amount of such prepayments, prepay
all, but not less than all, of the
Syndicated Loans constituting Eurocurrency
Rate Loans subject to a particular Interest
Period on a date other than the last
day of the Interest Period relating
thereto; provided, that upon any such
prepayment, and except as set forth in
section 4.1(f) hereof, the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA shall pay to the Agent, for the
respective accounts of the Banks on a pro
rata basis, a sum which shall be
determined by the Agent (to the extent that
the Agent is able to make such
determination), which determination shall
be conclusive in the absence of
manifest error, in the following manner
after each such payment:
(a) First, the Agent shall determine the amount (if any) (the
"Installment
Amount") by which (i) the total amount of interest which would
have otherwise
accrued hereunder on each installment of principal so
prepaid during
the period beginning on the date of such payment and ending
on the last day
of the Interest Period relating thereto (the "Reemployment
Period") exceeds
(ii) the total amount of interest which would accrue,
during the
Reemployment Period, at the annual rate of interest determined
by the Agent
(the "Reemployment Rate") as being the prevailing rate per
annum bid at or
about the time of such payment for the purchase of deposits
of Dollars or the relevant
Optional Currency, as applicable, from prime
banks in the
Eurocurrency Interbank Market selected by the Agent in its
sole discretion
(such Reemployment Rate to be the rate payable on an amount
equal (as nearly
as may be) to the Eurocurrency Rate Loans so prepaid and
to have a
maturity (as nearly as may be) equal to the Reemployment
Period);
(b) Second, each Installment Amount shall be treated as payable on
the
last day of the
Interest Period relating to the Eurocurrency Rate Loans
prepaid; and
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(c) Third, the amount to be paid shall be the present value of
the
Installment
Amount determined by discounting the amount thereof from the
date on which
the Installment Amount is to be treated as payable, at the
same annual
interest rate as the Reemployment Rate designated as aforesaid
by the
Agent.
Each prepayment made pursuant to this
section 2.8 shall be accompanied by the
payment of accrued interest on the
principal prepaid to the date of prepayment.
2.9. FUNDS FOR
LOANS. (a) Each Bank will, upon receiving notice from the
Agent of any request by the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA for Syndicated Loans pursuant to
section 2.4, become and be obligated
to make available to the Agent, on the
proposed Drawdown Date of each Syndicated
Loan, not later than (a) 2:30 P.M. (Boston
time) for Base Rate Loans with
respect to which the Agent sent notice to
the Banks pursuant to section 2.4
hereof no earlier than the proposed
Drawdown Date of such Loan, and (b) 11:00
A.M. (Boston time) with respect to
Eurocurrency Rate Loans and all other Base
Rate Loans, in funds immediately available
for credit to the Company's or,
solely in the case of Hasbro SA Loans,
Hasbro SA's account, an aggregate amount,
equal to such Bank's Commitment Percentage
of the Syndicated Loan requested at
the place specified in the notice delivered
by the Company or, solely in the
case of Hasbro SA Loans, Hasbro SA pursuant
to section 2.4. Upon satisfaction of
the conditions set forth in sections 12 and
13, as applicable, the Agent will
cause the aggregate amount of such funds
actually received by the Agent from the
Banks to be credited to the Company's or,
solely in the case of Hasbro SA Loans,
Hasbro SA's account as soon as practicable
on the date of such receipt. The
failure or refusal of any Bank to make
available to the Agent at the aforesaid
time on any Drawdown Date the amount of the
Syndicated Loan to be made by such
Bank thereon shall not relieve the other
Banks from their several obligations
hereunder to make their respective
Commitment Percentages of any requested
Syndicated Loans.
(b) The Agent
may, unless notified to the contrary by any Bank prior to a
Drawdown Date, assume that such Bank has
made available to the Agent on such
Drawdown Date the amount of such Bank's
Commitment Percentage of the Syndicated
Loans (or in the case of Competitive Bid
Loans, the amount of such Bank's
accepted offers of Competitive Bid Loans,
if any) to be made on such Drawdown
Date, and the Agent may (but it shall not
be required to), in reliance upon such
assumption, make available to the Company
or, solely in the case of Hasbro SA
Loans, Hasbro SA a corresponding amount. If
any Bank makes available to the
Agent such amount on a date after such
Drawdown Date, such Bank shall pay to the
Agent on demand an amount equal to the
product of (i) the average computed for
the period referred to in clause (iii)
below, of the weighted average interest
rate paid by the Agent for federal funds
acquired by the Agent during each day
included in such period (or, as to Loans
denominated in an Optional Currency,
the rate of interest per annum at which
overnight deposits in the applicable
Optional Currency, in an amount
approximately equal to the amount with respect
to which such rate is being determined,
would be offered for such day by the
Agent to major banks in the London
interbank market), times (ii) the amount of
such Bank's Commitment Percentage of such
Loans (or accepted offers of
Competitive Bid Loans, as applicable),
times (iii) a fraction, the numerator of
which is the number of days that elapse
from and including such Drawdown Date to
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the date on which the amount of such Bank's
Loans shall become immediately
available to the Agent, and the denominator
of which is 365. A statement of the
Agent submitted to such Bank with respect
to any amounts owing under this
paragraph shall be prima facie evidence of
the amount due and owing to the Agent
by such Bank. If the amount of such Bank's
Loans is not made available to the
Agent by such Bank within three (3)
Business Days following such Drawdown Date,
the Agent shall be entitled to recover such
amount from the Company or, solely
in the case of Hasbro SA Loans, Hasbro SA
on demand, with interest thereon at
the rate per annum applicable to the Loans
made on such Drawdown Date.
2.10. MANDATORY
REPAYMENTS. (a) In no event later than (i) seven (7) days
after receipt or (ii) in the case of net
cash proceeds received from Casualty
Events not committed or reinvested as
provided in clause (D) below or Net Cash
Sale Proceeds from Material Asset Sales
permitted to be applied as provided in
clause (II) below and not so applied, the
181st day following receipt, by any of
the Hasbro Companies of:
(A) Net Cash Sale Proceeds from Material Asset Sales;
(B) if an Event of Default has occurred and is continuing, Net
Cash
Equity Issuance
Proceeds from Equity Issuances by any of the Restricted
Subsidiaries and
Significant Subsidiaries;
(C) net cash proceeds received by (A) the Company in connection
with
its issuance of
any long term unsecured Indebtedness having a maturity
after the Final
Maturity Date (other than purchase money Indebtedness and
Refinancing
Indebtedness) or (B) any Operating Subsidiary of the Company in
connection with
its issuance of any Indebtedness permitted by section
10.1(c); and
(D) if an Event of Default has occurred and is continuing, net
cash
proceeds
received from Casualty Events by any of the Hasbro Companies
which
have not been
committed (as evidenced by a binding written contract) by
such Person
prior to or within one hundred eighty (180) days of receipt of
such proceeds to
the repair or replacement of the property so damaged,
destroyed or
taken, or, if so committed, such repair or replacement of the
property so
damaged, destroyed or taken shall have not commenced prior to
or within one
hundred eighty (180) days of receipt of such proceeds
pursuant to such
binding written contract,
the Company shall pay or (solely in the
case of Hasbro SA Loans) shall cause
Hasbro SA to pay to the Agent for the
respective accounts of the Banks an amount
equal to (x) (1) fifty percent (50%) of
such Net Cash Sale Proceeds from
Material Asset Sales, plus any additional
portion of such Net Cash Sale Proceeds
to the extent and when required by clause
(II) of the next sentence, and (2) one
hundred percent (100%) of such net cash
proceeds from Equity Issuances,
issuances of Indebtedness or Casualty
Events, or (y) if less, (1) the then
outstanding principal amount of the Loans
and the Unpaid Reimbursement
Obligations and (2) if an Event of Default
has occurred and is continuing, the
Maximum Drawing Amount of Letters of Credit
then outstanding to be held by the
Agent as cash collateral to secure all
Reimbursement Obligations, to be applied
in the manner set forth in section 2.11.
Notwithstanding the foregoing,
(I) no such payment shall be required unless, until and only to
the
extent that such
Material Asset Sales, Equity Issuances, issuances of
Indebtedness or
Casualty Events result in net cash proceeds that otherwise
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would be
required to be so applied equal to (x) $5,000,000 or more in
any
period of thirty
(30) consecutive days or (y) $15,000,000 in any fiscal
year of the
Company, and
(II) all or any portion of the fifty percent (50%) of the Net
Cash
Sale Proceeds
from any Material Asset Sale remaining after the initial
application of
such Net Cash Sale Proceeds in accordance with the preceding
sentence of this
section 2.10(a) may be applied to repay, redeem or
repurchase any
other Indebtedness within one hundred eighty (180) days of
receipt of such
proceeds, and if any portion of such remaining amount of
such Net Cash
Sale Proceeds is not so applied, an amount equal to such
portion shall be
required to be applied to make payment under this section
2.10 on the
181st day following receipt of such Net Cash Sale Proceeds.
(b) If at any time the
Utilization exceeds the Total Commitment (as reduced
pursuant to section 2.3), then the Company
shall immediately pay or (solely in
the case of Hasbro SA Loans) shall cause
Hasbro SA to pay the amount of such
excess to the Agent for the respective
account of the Banks to be applied in the
manner set forth in section 2.11.
(c) Hasbro SA
shall have no liability to prepay any Loans to the Company
pursuant to this section 2.10.
2.11.
APPLICATION OF PAYMENTS; COMMITMENT REDUCTION. All payments
made
pursuant to section 2.10 shall be applied
to reduce the outstanding principal
amount of the Loans and Unpaid
Reimbursement Obligations by such amount pro rata
based on the then outstanding principal
amount of the Loans and Unpaid
Reimbursement Obligations. Such mandatory
repayments shall be allocated among
the Banks in proportion, as nearly as
practicable, to the respective outstanding
amounts of each Bank's Note, with
adjustments to the extent practicable to
equalize any prior prepayments not exactly
in proportion.
Amounts repaid
pursuant to section 2.10(a)(A) or section 2.10(a)(C) may not
be reborrowed. The Total Commitment shall
be reduced by an amount equal to the
amount so repaid pursuant to section
2.10(a)(A) or section 2.10(a)(C). No
reduction of the Total Commitment made
pursuant to this section 2.11 may be
reinstated.
2.12. OPTIONAL
CURRENCY.
2.12.1. REQUEST FOR OPTIONAL CURRENCY. Subject to the limitations
set
forth in section
2.1, the Company and/or Hasbro SA may, not later than
10:00 A.M.
(Boston time) three (3) Business Days' prior to the proposed
Drawdown Date
thereof, give notice to the Agent (an "OC Notice") requesting
that one or more
Syndicated Loans be made as Eurocurrency Rate Loans in an
Optional
Currency, provided that any Syndicated Loan proposed to be made
under this
section 2.12 shall be in an amount not less than EUR5,000,000
or
GBP3,000,000, or
a greater amount which is a multiple of the Optional
Currency
equivalent of $1,000,000 in excess thereof in the requested
Optional
Currency. Each OC Notice requesting a Syndicated Loan in an
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Optional
Currency shall be by telephone, telex, telecopy or cable (in
each
case confirmed
in writing by the Company or, solely in the case of Hasbro
SA Loans, Hasbro
SA,), specifying (a) the amount of the Syndicated Loan to
be made, (b) the
requested date of the proposed borrowing, (c) the
requested Optional Currency in
which the Syndicated Loan is to be made, (d)
the initial
Interest Period for the Syndicated Loan to be borrowed, and (e)
the Company's
or, solely in the case of Hasbro SA Loans, Hasbro SA's
account with the
Agent to which payment of the proceeds of such Syndicated
Loan is to be
made. Promptly upon receipt of any such notice, the Agent
shall notify
each of the Banks thereof. If any Bank on or prior to the
second Business
Day preceding the first day of any Interest Period for
which an OC
Notice has been delivered requesting a Syndicated Loan in an
Optional
Currency or on any funding date, reasonably determines (which
determination
shall be conclusive absent manifest error) that the Optional
Currency is not
freely transferable and convertible into Dollars or that it
will be
impractical for such Bank to fund the Syndicated Loan in such
Optional
Currency, then such Bank shall so notify the Agent, which
notification
shall be given immediately by the Agent to the Company or,
solely in the
case of Hasbro SA Loans, Hasbro SA, and such Bank's portion
of the requested
Syndicated Loan shall, in each case, notwithstanding any
contrary
election by the Company or, solely in the case of Hasbro SA
Loans,
Hasbro SA, or
any other provisions hereof, be denominated in Dollars as a
Eurocurrency
Rate Loan with the same Interest Period as selected by the
Company or,
solely in the case of Hasbro SA Loans, Hasbro SA for such
Revolving Credit
Loan. The Company or, solely in the case of Hasbro SA
Loans, Hasbro SA
may repay such portion of a Syndicated Loan denominated in
Dollars as a
Eurocurrency Rate Loan at any time without premium or penalty,
subject to any other indemnity
under section 4.7, provided that, any Bank
that has failed
to provide the relevant Optional Currency shall not be
entitled to such
indemnity in connection with such Loan. In the event that
such repayment
results in Syndicated Loans outstanding that are not pro
rata in
accordance with the Commitment Percentages, then all subsequent
principal
repayments denominated in the Optional Currency which the
applicable Bank
did not advance shall be made by the Company, or solely in
the case of
Hasbro SA Loans, Hasbro SA to the Agent for the respective
accounts of such
Banks other than such Bank on a pro rata basis until such
time as the
Syndicated Loans are outstanding on a pro rata basis. Subject
to the foregoing
and to the satisfaction of the terms and conditions of
sections 12 and
13, each Syndicated Loan requested to be made in an
Optional
Currency will be made on the date specified therefor in the OC
Notice, in the
currency requested in the OC Notice and, upon being so made,
will have the
Interest Period requested in the OC Notice.
2.12.2. FUNDING. Each Bank may make any Eurocurrency Rate Loan
denominated in
an Optional Currency by causing any of its domestic or
foreign branches
or foreign affiliates to make such Eurocurrency Rate Loan
(whether or not
such branch or affiliate is named as a lending office on
the signature
pages hereof); provided that in such event the obligation of
the Company, or
solely in the case of Hasbro SA Loans, Hasbro SA to repay
such
Eurocurrency Rate Loan shall nevertheless be to such Bank and
shall,
for all purposes
of this Credit Agreement (including without limitation for
purposes of the
definition of the term "Majority Banks") be deemed made by
such Bank, to
the extent of such Eurocurrency Rate Loan.
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3. THE SWING LINE.
3.1. THE SWING
LINE LOANS. Subject to the terms and conditions hereinafter
set forth, upon notice by the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA made to the Swing Line Bank in
accordance with section 3.2 hereof, the
Swing Line Bank agrees to lend to the
Company or, solely in the case of Hasbro
SA Loans, Hasbro SA Swing Line Loans on any
Business Day prior to the Final
Maturity Date in an aggregate principal
amount not to exceed $25,000,000 (the
"Maximum Swing Line Loan Amount"). Each
Swing Line Loan shall be in a minimum
amount equal to $1,000,000 or an integral
multiple thereof. Notwithstanding any
other provisions of this Agreement and in
addition to the limit set forth above,
at no time shall the Utilization exceed the
Total Commitment; provided, however,
subject to the limitations set forth in
this section 3.1 from time to time the
sum of the aggregate outstanding Swing Line
Loans plus all outstanding
Syndicated Loans made by the Swing Line
Bank may exceed the Swing Line Bank's
Commitment Percentage of the Total
Commitment then in effect.
3.2. NOTICE OF
BORROWING. When the Company or, solely in the case of Hasbro
SA Loans, Hasbro SA desires the Swing Line
Bank to make a Swing Line Loan, the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA shall send to the
Agent and the Swing Line Bank written
notice in the form of Exhibit C hereto (or
telephonic notice confirmed in a writing in
the form of Exhibit C hereto) of
each Swing Line Loan requested hereunder (a
"Swing Line Loan Request") not later
than 1:00 p.m. (Boston time) on the
proposed Drawdown Date (except in the case
of Hasbro SA Loans, which written notice
shall be by 8:00 A.M. (Boston time) on
the proposed Drawdown Date) of any Swing
Line Loan. Each such Swing Line Loan
Request shall set forth the principal
amount of the proposed Swing Line Loan and
the date on which the proposed Swing Line
Loan would mature (the "Swing Line
Loan Maturity Date") which shall in no
event be later than the Final Maturity
Date. Each Swing Line Loan Request shall be
irrevocable and binding on the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA, and shall obligate
the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA to borrow the
Swing Line Loan from the Swing Line Bank on
the proposed Drawdown Date thereof.
Upon satisfaction of the applicable
conditions set forth in this Agreement, on
the proposed Drawdown Date the Swing Line
Bank shall make the Swing Line Loan
available to the Company or, solely in the
case of Hasbro SA Loans, Hasbro SA no
later than 3:00 p.m. (Boston time) on the
proposed Drawdown Date by crediting
the amount of the Swing Line Loan to the
account(s) of the Company or, solely in
the case of Hasbro SA Loans, Hasbro SA
specified in the Swing Line Loan Request;
provided that the Swing Line Bank shall not
advance any Swing Line Loans after
it has received notice from any Bank that a
Default or Event of Default has
occurred and stating that no new Swing Line
Loans are to be made until such
Default or Event of Default has been cured
or waived in accordance with the
provisions of this Agreement. The Swing
Line Bank shall not be obligated to make
any Swing Line Loans at any time when any
Bank is a Delinquent Bank unless the
Swing Line Bank has entered into
arrangements reasonably satisfactory to it to
eliminate the Swing Line Bank's risk with
respect to such Delinquent Bank, which
may include cash collateralizing such
Delinquent Bank's Commitment Percentage of
the outstanding Swing Line Loans and any
such additional Swing Line Loans to be
made.
3.3. INTEREST ON
SWING LINE LOANS. Each Swing Line Loan shall be a Base
Rate Loan and, except as otherwise provided
in section 4.3 hereof, shall bear
interest from the Drawdown Date thereof
until repaid in full at the rate per
annum equal to the Base Rate plus the
Margin with respect to Base Rate Loans,
which shall be paid on each Interest
Payment Date for Base Rate Loans.
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3.4. REPAYMENT
OF SWING LINE LOANS. The Company or, solely in the case of
Hasbro SA Loans, Hasbro SA shall repay each
outstanding Swing Line Loan on or
prior to the Swing Line Loan Maturity Date.
Upon notice by the Swing Line Bank
on any Business Day, each of the Banks
hereby agrees to make Syndicated Loans
constituting Base Rate Loans to the Company
or, solely in the case of Hasbro SA
Loans, Hasbro SA having outstanding Swing
Line Loans, on the next succeeding
Business Day following such notice, in an
amount equal to such Bank's Commitment
Percentage of the aggregate amount of all
Swing Line Loans outstanding to the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA. The proceeds
thereof shall be applied directly to the
Swing Line Bank to repay the Swing Line
Bank for such outstanding Swing Line Loans.
Each Bank hereby absolutely,
unconditionally and irrevocably agrees to
make such Syndicated Loans upon one
(1) Business Day's notice as set forth
above, notwithstanding (a) that the
amount of such Syndicated Loan may not
comply with the applicable minimums set
forth herein, (b) the failure of the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA to meet the conditions set
forth in sections 12 or 13 hereof,
(c) the occurrence or continuance of a
Default or an Event of Default hereunder,
(d) the date of such Syndicated Loan, and
(e) the Total Commitment in effect at
such time. In the event that it is
impracticable for such Syndicated Loan to be
made for any reason on the date otherwise
required above, then each Bank hereby
agrees that it shall forthwith purchase (as
of the date such Syndicated Loan
would have been made, but adjusted for any
payments received from the Company
or, solely in the case of Hasbro SA Loans,
Hasbro SA on or after such date and
prior to such purchase) from the Swing Line
Bank, and the Swing Line Bank shall
sell to each Bank, such participations in
the Swing Line Loans (including all
accrued and unpaid interest thereon)
outstanding as shall be necessary to cause
the Bank to share in such Swing Line Loans
pro rata based on their respective
Commitment Percentages (without regard to
any termination of the Total
Commitment hereunder) by making available
to the Swing Line Bank an amount equal
to such Bank's participation in the Swing
Line Loans; provided that (x) all
interest payable on the Swing Line Loans
shall be for the account of the Swing
Line Bank as a funding and administrative
fee until the date as of which the
respective participation is purchased, and
(y) at the time any purchase of such
participation is actually made, the
purchasing Bank shall be required to pay the
Swing Line Bank interest on the principal
amount of the participation so
purchased for each day from and including
the date such Syndicated Loan would
otherwise have been made until the date of
payment for such participation at the
rate of interest in effect applicable to
Base Rate Loans during such period.
Notwithstanding the foregoing, Hasbro SA
shall have no liability to repay any
Swing Line Loans requested by the
Company.
3.5. THE SWING
LINE NOTE. The obligation of the Company or, solely in the
case of Hasbro SA Loans, Hasbro SA to repay
the Swing Line Loans made pursuant
to this Agreement and to pay interest
thereon as set forth in this Agreement
shall be evidenced by separate promissory
notes of the Company or, solely in the
case of Hasbro SA Loans, Hasbro SA with
appropriate insertions substantially in
the form of Exhibit D attached hereto (the
"Swing Line Notes"), dated the
Effective Date and payable to the order of
the Swing Line Bank in a principal
amount stated to be the lesser of (a) the
Maximum Swing Line Loan Amount, or (b)
the aggregate principal amount of Swing
Line Loans at any time advanced by the
Swing Line Bank and outstanding thereunder.
Each of the Company and Hasbro SA
irrevocably authorizes the Swing Line Bank
to make or cause to be made, at or
about the time of the Drawdown Date of any
Swing Line Loan or at the time of
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receipt of any payment of principal on the
Swing Line Notes, an appropriate
notation on the Swing Line Note Record
reflecting the making of such Swing Line
Loan or (as the case may be) the receipt of
such payment. The outstanding amount
of the Swing Line Loans set forth on such
Swing Line Note Record shall be prima
facie evidence of the principal amount
thereof owing and unpaid to the Swing
Line Bank, but the failure to record, or
any error in so recording, any such
amount on such Swing Line Note Record shall
not limit or otherwise affect the
actual amount of the obligations of the
Company or, solely in the case of Hasbro
SA Loans, Hasbro SA hereunder or under the
Swing Line Notes to make payments of
principal of or interest on the Swing Line
Notes when due.
4. INTEREST; PAYMENTS AND COMPUTATIONS.
4.1. INTEREST;
COSTS AND EXPENSES.
(a) Elections.
At the option of the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA, so long as no
Default or Event of Default has
occurred and is then continuing, the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA may elect from time to
time to have a portion of the principal
amount of the Syndicated Loans to the
Company or, solely in the case of Hasbro
SA Loans, Hasbro SA outstanding from time
to time bear interest during any
particular Interest Period calculated by
reference to the Base Rate or the
Eurocurrency Rate, provided that any
portion of the Syndicated Loans selected to
bear interest by reference to the Base Rate
or the Eurocurrency Rate shall be in
an amount not less than $5,000,000 or some
greater integral multiple of
$1,000,000 with respect to any single
Interest Period. Any election by the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA to have interest
calculated by reference to the Base Rate or
the Eurocurrency Rate shall be made
by notice (which shall be irrevocable) to
the Agent as provided in section 2.4.
If in any such notice, the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA does not specify whether any
Eurocurrency Rate Loans are requested,
the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA shall be deemed
to have elected that the requested
Syndicated Loans bear interest at the Base
Rate. Any election of a Eurocurrency Rate
shall lapse at the end of the expiring
Interest Period unless extended by a
further election notice as provided in
section 2.4 hereof. If, on or prior to the
last day of any Interest Period for
Base Rate Loans or Eurocurrency Rate Loans,
the Company or, solely in the case
of Hasbro SA Loans, Hasbro SA (x) fails to
deliver a further election notice
with respect to such Loans pursuant to
section 2.4 hereof and this section
4.1(a), and (y) fails to repay all or any
part of such Loans as provided in
section 4.4 hereof, then such Syndicated
Loans shall be deemed to be Base Rate
Loans in accordance with the terms set
forth in section 4.4(b) hereof. Each Base
Rate Loan or Eurocurrency Rate Loan shall
bear interest during each Interest
Period relating thereto at the rate set
forth in section 2.7 or section 4.3
hereof, as the case may be. Interest on
each Base Rate Loan or Eurocurrency Rate
Loan shall be payable (i) on the last day
of the Interest Period relating
thereto or (ii) if the Interest Period is
longer than ninety (90) days, on the
last day of each 90-day period following
the commencement of such Interest
Period and on the last day of such Interest
Period.
(b) Notices,
etc. as to Eurocurrency Rate. Promptly after the commencement
of any Interest Period for any Syndicated
Loan, the Agent shall notify the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA and each of the
Banks of (A) the applicable interest rate
determined by the Agent hereunder with
respect to any Eurocurrency Rate Loan, (B)
each date on which interest is
payable hereunder, and (C) the date on
which the Interest Period with respect to
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such Syndicated Loan shall end; provided,
however, that the obligations of the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA to pay to each Bank
principal and interest as herein provided
shall not be subject to or in any way
conditional upon the giving of any such
notice by the Agent. Each such notice
shall, absent manifest error, be binding
upon each Bank and the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA.
(c) Substitution
of Base Rate. Notwithstanding any other provision of this
Agreement, if (i) the introduction of, any
change in, or any change in the
interpretation of, any law or regulation
applicable to any Bank (the "Affected
Bank") shall make it unlawful, or any
central bank or other Governmental
Authority having jurisdiction thereof shall
assert that it is unlawful, or in
the reasonable judgment of such Bank,
impracticable, for such Bank to perform
its obligations in respect of any Loans
bearing interest based on the
Eurocurrency Rate or (ii) if any Affected
Bank shall reasonably determine with
respect to Loans bearing interest based on
the Eurocurrency Rate that (A) by
reason of circumstances affecting any
Eurocurrency Interbank Market, adequate
and reasonable methods do not exist for
ascertaining the Eurocurrency Rate which
would otherwise be applicable during any
Interest Period, or (B) deposits of
Dollars or the relevant Optional Currency
in the relevant amount for the
relevant Interest Period are not available
to such Bank in any Eurocurrency
Interbank Market, or (C) the Eurocurrency
Rate does not or will not accurately
reflect the cost to such Bank of obtaining
or maintaining the applicable Loans
bearing interest based on the Eurocurrency
Rate during any Interest Period, then
any such Affected Bank shall promptly give
telephonic, telex or cable notice of
such determination to the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA (which notice shall be conclusive
and binding upon the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA absent manifest error), the
Agent and the other Banks. Upon such
notification by any Affected Bank, (x) the
obligation of such Affected Bank to make
Loans bearing interest based on the
Eurocurrency Rate shall be suspended until
such circumstances no longer exist,
(y) any new Loans made by such Affected
Bank on or after the date of such
notification, which Loans would otherwise
bear interest at the suspended rate
shall be deemed to be Loans bearing
interest by reference to the Base Rate, as
necessary, until such suspension is no
longer in effect, and (z) so long as it
is not unlawful for the Affected Bank to
continue carrying Outstanding Loans
bearing interest at the suspended rate,
Outstanding Loans of such Affected Bank
bearing interest based on the Eurocurrency
Rate shall continue to bear interest
at the applicable rate based on the
Eurocurrency Rate until the end of the
applicable Interest Period. If it is
unlawful for any Affected Bank to continue
carrying any Outstanding Loans bearing
interest at the suspended rate, such
Affected Bank shall so notify the Company
or, solely in the case of Hasbro SA
Loans, Hasbro SA and the Agent and any such
Outstanding Loans shall be
automatically converted to Base Rate Loans
at the end of the Interest Period
which is current when such notice is given.
Notwithstanding any provision of
this section 4.1(c) to the contrary, during
any period in which a suspension is
in effect pursuant to this section 4.1(c),
the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA may notify the
Agent and any Affected Bank to which
such suspension applies that (I) the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA shall repay, in accordance
with the provisions of section
4.1(f) hereof, any and all Loans made by
such Affected Bank to the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA, and (II) with respect to any
new Loans to be made by the Banks
hereunder, the Company or, solely in the case
of Hasbro SA Loans, Hasbro SA shall not
borrow from such Affected Bank and the
Commitment of such Affected Bank shall be
terminated.
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(d) Additional
Costs and Expenses; Reserve Requirements. Anything herein to
the contrary notwithstanding, if any
present or future applicable law (which
expression, as used herein, includes
statutes, rules and regulations thereunder
and interpretations thereof by any
competent court or by any governmental or
other regulatory body or official charged
with the administration or the
interpretation thereof and requests,
directives, instructions and notices at any
time or from time to time hereafter made
upon or otherwise issued to any Bank by
any central bank or other fiscal, monetary
or other Governmental Authority,
whether or not having the force of law)
shall
(i) subject such Bank to any tax, levy, impost, duty, charge,
fee,
deduction or
withholding of any nature not now in effect, with respect to
the Bank's
commitment to make Loans bearing interest based on the
Eurocurrency
Rate or the Bank's Loans bearing interest based on the
Eurocurrency
Rate; provided that this section 4.1(d)(i) shall apply only
with respect to
such Loans, or commitments to make such Loans, as the case
may be, made to
Hasbro SA; or
(ii) materially change the basis of taxation of payments to such
Bank
on the principal
of, interest on or any other amounts payable in respect of
the Loans
bearing interest based on the Eurocurrency Rate as such
(excluding
changes in taxes measured by or imposed on the net income, or
on
the capital or
net worth of such Bank; provided that this section
4.1(d)(ii) shall
apply only with respect to Loans made to Hasbro SA;
provided further
that nothing in this parenthetical shall be deemed to
limit the rights
of the Banks or the obligations of the Company and/or
Hasbro SA
pursuant to 4.1(e)); or
(iii) impose or increase or render applicable any liquidity,
capital,
special deposit
or reserve or similar requirements (whether or not having
the force of
law) not now in effect, against assets held by, or deposits in
or for the
account of, or loans by an office of such Bank with respect to
such Bank's
commitment to make Loans bearing interest based on the
Eurocurrency
Rate or such Bank's Loans bearing interest based on the
Eurocurrency
Rate; or
(iv) impose on such Bank any other condition or requirement not now
in
effect, with
respect to such Bank's commitment to make Loans bearing
interest based
on the Eurocurrency Rate or such Bank's Loans bearing
interest based
on the Eurocurrency Rate or any class of loans of which the
Loans bearing
interest based on the Eurocurrency Rate forms a part (other
than in respect
of taxes, which shall be governed solely by sections 4.11,
4.12 and 4.13;
provided that the foregoing exclusion shall not apply with
respect to such
Loans made by any Bank to Hasbro SA), and the result of any
of the foregoing
is (x) to increase the cost to such Bank attributable to
the making,
funding or maintaining of Loans bearing interest based on the
Eurocurrency
Rate or its commitment therefor, (y) to reduce the amount of
principal,
interest, commitment fees or other amounts payable in respect
of
Loans bearing
interest based on the Eurocurrency Rate to such Bank
hereunder or its
commitment therefor, or (z) to require such Bank to make
any payment or
to forego any interest or other sum payable in respect of
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Loans bearing
interest based on the Eurocurrency Rate hereunder or its
commitment
therefor, the amount of which payment or foregone interest or
other sum is
calculated by reference to the gross amount of any sum
receivable or
deemed received by such Bank from the Company and/or Hasbro
SA
hereunder;
then, and in each such case, the Company
or, solely in the case of Hasbro SA
Loans, Hasbro SA will, upon demand by such
Bank made by written notice to the
Company and/or Hasbro SA from time to time
as often as the occasion therefor may
arise, pay to such Bank, within ten (10)
days after receipt of notice of such
demand, such additional amounts as will be
sufficient, in the good faith opinion
of such Bank, to compensate the Bank for
such additional costs, reduction,
payment or foregone interest or other sum
in respect of Loans bearing interest
based on the Eurocurrency Rate; provided,
however, that the Company or, solely
in the case of Hasbro SA Loans, Hasbro SA
shall be required to pay only such
additional costs or other amounts which are
incurred by such Bank (A) from and
after the date of such notice, with respect
to Loans outstanding during Interest
Periods commencing after the date on which
the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA receives such
notice, (B) with respect to Loans
outstanding on the date of such notice
provided that (x) not less than 90 days
remain in the applicable Interest Period
for such Loans and (y) such costs are
assessed only for the period commencing on
the date of such notice to the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA, and (iii) from and
after the date of such notice to the extent
that the incurrence of such
additional costs or amounts is unrelated to
Outstanding Loans and is not
otherwise covered by clauses (A) or (B) of
this paragraph. Subject to the
provisions of the preceding sentence, a
claim by any Bank for all or any part of
any additional amount required to be paid
by the Company or, solely in the case
of Hasbro SA Loans, Hasbro SA pursuant to
this section 4.1(d) may be made before
and/or after the end of the Interest Period
to which such claim relates or
during the Interest Period in which such
claim has arisen and before and/or
after any repayment or prepayment of any
Eurocurrency Rate Loans owed hereunder
to which such claim relates. A certificate
signed by an officer of such Bank,
setting forth the amount of such loss,
expense or liability required to be paid
by the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA to such
Bank, and the computations made by such
Bank to determine such additional
amount, shall be submitted by the Bank to
the Company or, solely in the case of
Hasbro SA Loans, Hasbro SA in connection
with each demand made at any time by
such Bank upon the Company or, solely in
the case of Hasbro SA Loans, Hasbro SA
hereunder, and shall, save for manifest or
other obvious error, constitute
conclusive evidence of the additional
amount required to be paid by the Company
or, solely in the case of Hasbro SA Loans,
Hasbro SA to such Bank upon each such
demand.
(e) Increased
Capital Requirements. If any present or future, or any change
in any present or future, law or any
governmental rule, regulation, policy,
guideline or directive (whether or not
having the force of law) or the
interpretation or administration thereof by
a Governmental Authority with
appropriate jurisdiction affects the amount
of capital required or expected to
be maintained by any of the Banks or any
corporation controlling any of the
Banks and such Bank determines that any of
the foregoing imposes or increases a
requirement by such Bank to allocate
capital resources to such Bank's credit
facility established hereunder or any loans
made pursuant hereto, which would
have the effect of reducing the return on
such Bank's capital to a level below
that which such Bank could have achieved
(assuming full utilization of the
Bank's capital) but for such increased
capital requirements, then such Bank may
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notify the Company and Hasbro SA (with a
copy to the Agent) of such fact. To the
extent that the costs of such increased
capital requirements are not reflected
in the Base Rate, the Eurocurrency Rate or
the Competitive Bid Rate, the
Company, Hasbro SA and such Bank shall
thereafter attempt to negotiate in good
faith an adjustment to the compensation
payable hereunder with respect to such
Bank's Commitment and, in the case of any
Loans made by such Bank after the date
of the Company's and Hasbro SA's receipt of
such notice ("New Loans"), all such
New Loans, which adjustment will adequately
compensate the Bank in light of
these circumstances. If the Company, Hasbro
SA and such Bank are unable to agree
to such adjustment within thirty (30) days
of the day on which the Company and
Hasbro SA receive such notice, then
effective from the date on which the Company
and Hasbro SA have received such notice
(but not earlier than the effective day
of such requirement or retroactive to any
date prior to the date on which the
Company and Hasbro SA have received such
notice), the fees payable hereunder
with respect to any New Loans made by, or
the Commitment of, such Bank shall
increase by an amount which will, in such
Bank's reasonable determination,
provide adequate compensation. Such Bank
shall allocate such cost increases
among its customers in good faith and on an
equitable basis.
(f) Replacement
of Banks. Notwithstanding any other provision of this
Agreement, in the event that (i) the
obligation of any Bank to make Eurocurrency
Rate Loans is suspended pursuant to section
4.1(c) hereof, or (ii) any Bank
makes demand upon the Company and/or Hasbro
SA pursuant to section 4.1(d) hereof
(or upon the Company pursuant to section
4.11) for the payment of additional
costs or other amounts, or (iii) any Bank
makes demand upon the Company and/or
Hasbro SA pursuant to section 4.1(e) hereof
for an adjustment to the
compensation payable to such Bank by the
Company and/or Hasbro SA hereunder, or
(iv) any Bank is unable to fund a Loan in
an Optional Currency, then, in each
such case, the Company and/or Hasbro SA in
its discretion may (A) send written
notice to such Bank and the Agent advising
such Bank that, subject to the
provisions of this section 4.1(f), its
Commitment hereunder shall be terminated
on a date determined by the Company and/or
Hasbro SA (the "Replacement Date"),
which Replacement Date shall be no earlier
than the date on which such Bank and
the Agent have received such notice from
the Company and/or Hasbro SA, and
commencing on the Replacement Date, the
Commitment of such Bank hereunder shall
be terminated and no Commitment Fee shall
be payable by the Company and/or
Hasbro SA to such Bank with respect to such
Commitment, and (B) replace such
Bank with another Bank or other commercial
banking institution (the "Replacement
Bank") which has been selected by the
Company and/or Hasbro SA and approved by
the Majority Banks, which approval shall
not be unreasonably withheld, provided
that the Company and/or Hasbro SA, the
Banks and the Agent agree that (w) on or
prior to the Replacement Date, the Company
and/or Hasbro SA shall have paid all
principal, interest, fees and other amounts
owing by the Company and/or Hasbro
SA hereunder, accruing up to and including
the Replacement Date, to the Bank
being replaced on such Replacement Date,
(x) as of the Replacement Date, the
Replacement Bank will take over the entire
Commitment of the Bank being
replaced, (y) on or prior to the Drawdown
Date first following the Replacement
Date, the Company and/or Hasbro SA, the
Agent, the Banks (other than the Bank
being replaced) and the Replacement Bank
shall make such arrangements by way of
new Syndicated Loans, purchases or
refundings of existing Syndicated Loans or
otherwise as will result thereafter in the
outstanding and unpaid Syndicated
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Loans of each Bank being equal, as near as
may practically be, to such Bank's
Commitment Percentage of all of the
outstanding and unpaid Syndicated Loans made
to the Company, and (z) the Agent shall be
entitled to receive prior to the
Replacement Date from the Company and/or
Hasbro SA and the Replacement Bank such
supplemental agreements, documents,
certificates and legal opinions in
connection with the replacement of such
Bank as the Agent and the other Banks
may reasonably request to give effect to
the foregoing provisions of this
section 4.1(f).
(g) Change of
Lending Office. If a Bank changes its applicable lending
office (other than pursuant to paragraph
(h) below) and the effect of the
change, as of the date of the change, would
be to cause the Company and/or
Hasbro SA to become obligated to pay any
additional amount under this section
4.1 or under section 4.7 (or to cause the
Company to become obligated to pay any
additional amounts under section 4.11), the
Company and/or Hasbro SA shall not
be obligated to pay such additional
amount.
(h) Mitigation.
If a condition or an event occurs which would, or would
upon the passage of time or giving of
notice, result in the payment of any
additional amount to any Bank by the
Company and/or Hasbro SA pursuant to this
section 4.1 or under section 4.7 (or by the
Company pursuant to section 4.11),
such Bank shall take such steps as may
reasonably be available to it and
acceptable to the Company and/or Hasbro SA
to mitigate the effects of such
condition or event (which may include
efforts to rebook the Loans held by such
Bank at another lending office, or through
another branch or an affiliate, of
such Bank); provided that such Bank shall
not be required to take any step that,
in its reasonable judgment, would be
disadvantageous to its business or
operations or would require it to incur any
additional cost or expense unless
the Company agrees to reimburse such Bank
for such cost or expense.
4.2. CONCERNING
INTEREST PERIODS. No Interest Period for Loans may be
selected by the Company and/or Hasbro SA if
such Interest Period ends after the
Final Maturity Date. If any Interest Period
would otherwise end on a day which
is not a Business Day for Base Rate,
Eurocurrency Rate or Competitive Bid Rate
purposes, as applicable, that Interest
Period, shall end on the Business Day
next preceding or next succeeding such day
determined by the Agent in accordance
with section 4.4(c). Any Interest Period
relating to any Eurocurrency Rate Loan
that begins on the last Business Day of a
calendar month (or on a day for which
there is no numerically corresponding day
in the calendar month at the end of
such Interest Period) shall end on the last
Business Day of a calendar month.
4.3. INTEREST ON
OVERDUE AMOUNTS. Overdue principal and (to the extent
permitted by applicable law) interest on
the Loans and all other overdue amounts
payable hereunder shall bear interest
payable on demand at a rate per annum
equal to two percent (2%) above the rate
otherwise in effect with respect to
Base Rate Loans, whether or not any
Eurocurrency Rate or Competitive Bid Rate
would otherwise have been applicable
thereto, until such amount shall be paid in
full (whether before or after
judgment).
4.4. PAYMENTS.
(a) All payments of principal of and interest on Loans made
by the Company or Hasbro SA, any Fees and
any other amounts due hereunder shall
be made by the Company or Hasbro SA to the
Agent, at or prior to 11:00 A.M.,
Boston time, on any payment date, in
Dollars or the applicable Optional Currency
and in immediately available funds at the
Agent's Office without setoff,
counterclaim or deduction of any kind. The
Agent shall be entitled to debit any
account of the Company or, solely in the
case of Hasbro SA Loans, Hasbro SA with
the Agent in the amount of each such
payment when due in order to effect timely
payment thereof. Upon receipt by the Agent
of any such payment, the Agent shall
promptly send by wire transfer, in
immediately available like funds, to each
Bank, to an individual or an account
designated by such Bank, such Bank's pro
rata share of such payment.
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(b) If any Bank
makes a Syndicated Loan to the Company or Hasbro SA on a
day on which such Person is to repay all or
any part of any Outstanding
Syndicated Loan made to such Person, such
Bank shall, to the extent necessary,
apply the proceeds of the requested
Syndicated Loan to make such repayment, and
only an amount equal to (i) the excess, if
any, of the amount being repaid over
the amount being borrowed shall be remitted
by such Person to the Agent for the
account of such Bank as provided in section
2.8 and (ii) the excess, if any, of
the amount being borrowed over the amount
being repaid shall be remitted by such
Bank to the Agent for the account of such
Person. If the Company and/or Hasbro
SA fails to repay all or any part of any
Outstanding Syndicated Loan denominated
in Dollars on the last day of the
applicable Interest Period therefor, and if
the Company and/or Hasbro SA fails to
deliver an election notice with respect to
such unpaid portion of the Outstanding
Syndicated Loan in accordance with the
provisions of sections 2.4 and 4.1(a)
hereof, then, subject to satisfaction of
the conditions precedent set forth in
section 13 hereof, the Company and/or
Hasbro SA shall be deemed to have requested
that the unpaid portion of the
Outstanding Syndicated Loan constitute a
new Borrowing as a Base Rate Loan.
Nothing contained in this section 4.4(b)
shall obligate the Banks in any way to
make any Loans to the Company and/or Hasbro
SA at any time from and after the
Final Maturity Date.
(c) Whenever a
payment hereunder or under the Notes becomes due on a day
which is not a Business Day, the due date
for such payment shall be extended to
the next succeeding Business Day, and
interest shall accrue during such
extension (and shall not be considered
overdue during such extension), provided,
however, that if such extension would cause
payment of interest on or principal
of Eurocurrency Rate Loans to be made in
the next following calendar month, such
payment shall be made on the next preceding
Business Day.
4.5.
COMPUTATIONS. All computations of interest on the Loans shall be
based
on (a) with respect to Eurocurrency Rate
Loans and Competitive Bid Loans (other
than Eurocurrency Rate Loans and
Competitive Bid Loans denominated in GBP), a
360-day year, and (b) with respect to
Eurocurrency Rate Loans and Competitive
Bid Loans denominated in GBP, or Base Rate
Loans, a 365-day year, and paid for
the actual number of days elapsed.
4.6. INTEREST
LIMITATION. Notwithstanding any other term of this Agreement
or any Note or any other document referred
to herein or therein, the maximum
amount of interest, together with any other
amounts or charges which may
constitute interest under applicable law,
which may be charged to or collected
from any Person liable hereunder or under
any Note by the Banks shall be
absolutely limited to, and shall in no
event exceed, the maximum amount of
interest which could lawfully be charged or
collected under applicable law
(including, to the extent applicable, the
provisions of Section 5197 of the
Revised Statutes of the United States of
America, as amended, 12 U.S.C. Section
85, as amended), so that the maximum of all
amounts constituting interest under
applicable law, howsoever computed, shall
never exceed as to any Person liable
therefor such lawful maximum, and any term
of this Agreement or any Note or any
other document referred to herein or
therein which could be construed as
providing for interest in excess of such
lawful maximum shall be and hereby is
made expressly subject to and modified by
the provisions of this paragraph.
4.7.
INDEMNIFICATION. In the event that the Company and/or Hasbro SA
shall
at any time (a) repay or prepay (other than
in accordance with the provisions of
sections 2.8 or 2.12 hereof) any principal
of any Eurocurrency Rate Loans or
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Competitive Bid Loans on a date other than
the last day of the Interest Period
with respect thereto, whether by reason of
acceleration following an Event of
Default or otherwise, or (b) for any reason
fail to borrow any Loan with respect
to which the Company and/or Hasbro SA gave
a notice of borrowing pursuant to
section 2.4 or section 4.1(a) hereof at an
interest rate based on the
Eurocurrency Rate or a Notice of
Competitive Bid Borrowing pursuant to section
2.5.1(f) or prepay a Loan as to which
notice of prepayment has been given, the
Company or, solely in the case of Hasbro SA
Loans, Hasbro SA shall indemnify the
Banks against all losses, costs or expenses
incurred by the Banks in respect of
the Company's payment, prepayment or
failure to borrow, on the date of such
payment or failure to borrow. Such losses,
costs or expenses shall include, but
not be limited to (i) any costs incurred by
the Banks in carrying funds which
were to have been borrowed by the Company
and/or Hasbro SA or in carrying funds
to cover the amount of any overdue
principal of or overdue interest on any Loan,
(ii) any interest payable by the Banks to
Banks of the funds borrowed by the
Banks in order to carry the funds referred
to in the immediately preceding
sub-clause (i), and (iii) any losses
(including losses of anticipated interest
which would otherwise have been required to
be paid hereunder through the end of
such then existing or, as the case may be,
commencing Interest Period) incurred
by the Banks in liquidating or re-employing
funds acquired from third parties to
effect or maintain all or any part of the
Loans, provided that to the extent
that the reemployment formula set forth in
section 2.8 hereof is capable of
being employed to compute such losses, the
Agent shall employ such reemployment
formula to compute such losses. Any losses,
costs or expenses payable by the
Company to the Banks pursuant to this
section 4.7 shall be without duplication
of any amounts paid by the Company and/or
Hasbro SA pursuant to section 2.8,
section 4.1 or section 4.3 hereof.
4.8. BANKS'
OBLIGATIONS SEVERAL. The Banks' obligations hereunder shall be
several and not joint, and no Bank's
obligations to lend shall be affected by
any other Bank's failure to make any Loan
hereunder.
4.9. CURRENCY
MATTERS.
4.9.1. CURRENCY OF ACCOUNT. Dollars are the currency of account
and
payment for each
and every sum at any time due from the Company or, solely
in the case of
Hasbro SA Loans, Hasbro SA hereunder in each case except as
expressly
provided in this Credit Agreement; provided that:
(a) each repayment of a Loan, Unpaid Reimbursement Obligation
or
a part thereof shall be made in the currency in which such Loan
or
Unpaid Reimbursement Obligation is denominated at the time of
that
repayment;
(b) each payment of interest shall be made in the currency in
which such principal or other sum in respect of which such interest
is
payable, is denominated;
(c) each payment of Fees shall be in Dollars;
(d) each payment in respect of costs, expenses and indemnities
shall be made in the currency in which the same were incurred;
and
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(e) any amount expressed to be payable in a currency other than
Dollars shall be paid in that other currency.
No payment to the Agent or any Bank (whether under any judgment
or court order or otherwise) shall discharge the obligation or
liability in respect of which it was made unless and until the
Agent,
or such Bank shall have received payment in full in the currency
in
which such obligation or liability was incurred as provided in
this
section 4.9.1, and to the extent that the amount of any such
payment
shall, on actual conversion into such currency, fall short of
such
obligation or liability, actual or contingent, expressed in
that
currency, the Company or, solely in the case of Hasbro SA
Loans,
Hasbro SA agrees to indemnify and hold harmless the Agent or
such
Bank, as the case may be, with respect to the amount of the
shortfall.
4.9.2. CURRENCY FLUCTUATIONS. (a) Not later than 1:00 P.M.
(Boston
time) on the
last Business Day of each month with respect to Letters of
Credit and on
the last day of each Interest Period with respect to Loans
(in each case,
the "Calculation Date"), the Agent shall determine the
Dollar
Equivalent as of such date of the LC Exposure or, as the case
may
be, such Loan.
Notwithstanding the foregoing, the Agent may determine such
Dollar
Equivalent more frequently than on the Calculation Date, upon
notice
made by the
Agent to the Company and, solely in the case of Hasbro SA
Loans, Hasbro
SA. The Dollar Equivalent so determined shall become
effective on the
third Business Day immediately following such
determination (a
"Reset Date") and shall remain effective until the next
succeeding Reset
Date relating to LC Exposure or, as the case may be, such
Loan.
(b) If, on any Reset Date, the Dollar Equivalent of the sum of
the Outstanding Loans and the LC Exposure exceeds the Total
Commitment, then the Company or, solely in the case of Hasbro
SA
Loans, Hasbro SA shall repay or prepay the Loans in accordance
with
this Credit Agreement in an aggregate principal amount such
that,
after giving effect thereto, the sum of the Outstanding Loans and
the
LC Exposure (expressed in Dollars) no longer exceeds the Total
Commitment (expressed in Dollars).
4.9.3. EXCHANGE RATE. For purposes of this Credit Agreement,
the
amount in one
currency which shall be equivalent on any particular date to
a specified
amount in another currency shall be determined by reference to
the Exchange
Rate.
4.9.4. DENOMINATIONS. In the event that any portion of the
funds
available under
the terms of this Credit Agreement is denominated in an
Optional
Currency, the Dollar Equivalent of such portion of the funds
shall
be calculated
pursuant to section 4.9.3 above. The amount so determined
shall then be
added to the outstanding amount denominated in Dollars for
the purpose of
determining the remaining availability of funds under
sections 2.1,
2.5, 3 and 5 and any required repayments under section 4.9.2.
4.10. NEW
CURRENCY. If, after the making of any Loan or the issuance,
renewal or extension of any Letter of
Credit in any Optional Currency, currency
control or exchange regulations are imposed
in the country which issues such
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Optional Currency, as application, with the
result that different types of such
Optional Currency (the "New Currency") are
introduced and the type of currency
in which the Loan or Letter of Credit was
made (the "Original Currency") no
longer exists or the Company or, solely in
the case of Hasbro SA Loans, Hasbro
SA is not able to make payment to the Agent
for the account of the Banks or the
Agent in such Original Currency, then all
payments to be made by the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA hereunder in such currency
shall be made to the Agent in such amount
and such type of the New Currency as
shall be equivalent to the amount of such
payment otherwise due hereunder in the
Original Currency. In addition,
notwithstanding the foregoing provisions of this
section 4.10, if, after the making of any
Loan or the issuance, renewal or
extension of any Letter of Credit in any
Optional Currency, the Company or,
solely in the case of Hasbro SA Loans,
Hasbro SA are not able to make payment to
the Agent for the account of the Banks or
the Agent in the type of currency in
which such Loan was made or, as the case
may be, such Letter of Credit was
issued, extended or renewed because of the
imposition of any such currency
control or exchange regulation, then such
Loan or, as the case may be,
Reimbursement Obligation in respect of such
Letter of Credit shall instead be
repaid when due in Dollars in a principal
amount equal to the Dollar Equivalent
(as of the date of repayment) of such Loan
or, as the case may be, Reimbursement
Obligation in respect of such Letter of
Credit.
4.11. NO OFFSET,
ETC. All payments after November 14, 2003 by the Company
hereunder and under any of the other Loan
Documents shall be made without
recoupment, setoff or counterclaim and free
and clear of and without deduction
for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings,
compulsory loans, restrictions or
conditions of any nature now or hereafter
imposed or levied by any jurisdiction or
any political subdivision thereof or
taxing or other authority therein,
excluding any taxes that would not have been
imposed but for a connection between any
Bank or the Agent and the jurisdiction
or any political subdivision thereof
imposing such tax (other than a connection
arising solely as a result of entering into
any Loan Document or performing any
obligations, receiving any payments or
enforcing any rights thereunder) unless
the Company is compelled by law to make
such deduction or withholding. If any
such obligation is imposed upon the Company
with respect to any amount payable
by it after November 14, 2003 hereunder or
under any of the other Loan
Documents, the Company will pay to the
Agent, for the account of the Banks or
(as the case may be) the Agent, on the date
on which such amount is due and
payable hereunder or under such other Loan
Document, such additional amount in
Dollars as shall be necessary to enable the
Banks or the Agent to receive the
same net amount which the Banks or the
Agent would have received on such due
date had no such obligation been imposed
upon the Company; provided, however,
the Company shall not be required to pay
any such additional amount to any Bank
or Agent that fails to comply with section
4.12. The Company will deliver
promptly to the Agent receipts for all
taxes or other charges deducted from or
paid with respect to payments made by the
Company hereunder or under such other
Loan Document.
4.12. FORMS.
Each Bank and Agent that is not a U.S. Person as defined in
Section 7701(a)(30) of the Code for federal
income tax purposes (a "Non-U.S.
Lender") hereby agrees that it shall, prior
to the date of the first payment by
the Company hereunder to be made to such
Bank or the Agent or for such Bank's or
the Agent's account, deliver to the Company
and the Agent, as applicable, such
certificates, documents or other evidence,
as and when required by the Code or
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Treasury Regulations issued pursuant
thereto, including (a) in the case of a
Non-U.S. Bank that is a "bank" for purposes
of Section 881(c)(3)(A) of the Code,
two (2) duly completed copies of Internal
Revenue Service Form W-8BEN or Form
W-8ECI and any other certificate or
statement of exemption required by Treasury
Regulations, or any subsequent versions
thereof or successors thereto, properly
completed and duly executed by such Bank or
the Agent establishing that with
respect to payments of principal, interest
or fees hereunder it is (i) not
subject to United States federal
withholding tax under the Code because such
payment is effectively connected with the
conduct by such Bank or Agent of a
trade or business in the United States or
(ii) totally exempt from United States
federal withholding tax under a provision
of an applicable tax treaty and (b) in
the case of a Non-U.S. Bank that is not a
"bank" for purposes of Section
881(c)(3)(A) of the Code, a certificate in
form and substance reasonably
satisfactory to the Agent and the Company
and to the effect that (i) such
Non-U.S. Bank is not a "bank" for purposes
of Section 881(c)(3)(A) of the Code,
is not subject to regulatory or other legal
requirements as a bank in any
jurisdiction, and has not been treated as a
bank for purposes of any tax,
securities law or other filing or
submission made to any governmental authority,
any application made to a rating agency or
qualification for any exemption from
any tax, securities law or other legal
requirements, (ii) is not a ten (10)
percent shareholder for purposes of Section
881(c)(3)(B) of the Code and (iii)
is not a controlled foreign corporation
receiving interest from a related person
for purposes of Section 881(c)(3)(C) of the
Code, together with a properly
completed Internal Revenue Service Form W-8
or W-9, as applicable (or successor
forms). Each Bank or the Agent agrees that
it shall, promptly upon a change of
its lending office or the selection of any
additional lending office, to the
extent the forms previously delivered by it
pursuant to this section are no
longer effective, and promptly upon the
Company's and the Agent's reasonable
request after the occurrence of any other
event (including the passage of time)
requiring the delivery of a Form W-8BEN,
Form W-8ECI, Form W-8 or W-9 in
addition to or in replacement of the forms
previously delivered, deliver to the
Company and the Agent a properly completed
and executed Form W-8BEN, Form
W-8ECI, Form W-8 or W-9, as applicable (or
any successor forms thereto). Each
assignee, participant or other transferee
pursuant to section 20 shall, upon the
effectiveness of the related transfer, be
required to provide all of the forms,
documentation or certifications required
pursuant to this subsection, provided
that in the case of a participant such
participant shall furnish all such
required forms, documentation or
certifications to the Bank from which the
related participation shall have been
purchased, and such Bank shall in turn
furnish all such required forms (including
without limitation Internal Revenue
Service Form W-8IMY), documentation and
certifications to the Company and the
Agent, together with such other forms,
documentation or certifications as may be
necessary to establish a total exemption
from deduction or withholding of U.S.
federal income taxes on payments hereunder
or under a
