Exhibit 10.42
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Execution Version
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Published CUSIP Number: ________________
CREDIT AGREEMENT
dated as of October 31, 2005
among
MAIN STREET RESTAURANT GROUP, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Section Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms...........................................................................................1
1.02 Other Interpretive Provisions..........................................................................27
1.03 Accounting Terms.......................................................................................27
1.04 Rounding...............................................................................................28
1.05 Times of Day...........................................................................................28
1.06 Letter of Credit Amounts...............................................................................28
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Term Loan..............................................................................................28
2.02 Revolving Loans........................................................................................29
2.03 Revolving Borrowings, Conversions and Continuations of Revolving Loans and Term Loan Segments..........29
2.04 Letters of Credit......................................................................................31
2.05 Prepayments............................................................................................39
2.06 Termination or Reduction of Commitments................................................................42
2.07 Repayment of Loans.....................................................................................42
2.08 Interest...............................................................................................42
2.09 Fees...................................................................................................43
2.10 Computation of Interest and Fees.......................................................................44
2.11 Evidence of Debt.......................................................................................44
2.12 Payments Generally; Administrative Agent's Clawback....................................................45
2.13 Sharing of Payments by Lenders.........................................................................47
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes..................................................................................................47
3.02 Illegality.............................................................................................49
3.03 Inability to Determine Rates...........................................................................50
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.....................................................50
3.05 Compensation for Losses................................................................................52
3.06 Mitigation Obligations; Replacement of Lenders.........................................................52
3.07 Survival...............................................................................................53
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension.................................................................53
4.02 Conditions to all Credit Extensions....................................................................56
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws...............................................57
5.02 Authorization; No Contravention........................................................................57
5.03 Governmental Authorization; Other Consents.............................................................57
5.04 Binding Effect.........................................................................................57
5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event............................58
5.06 Litigation.............................................................................................58
5.07 No Default.............................................................................................58
5.08 Ownership of Property; Liens...........................................................................59
5.09 Environmental Compliance...............................................................................59
5.10 Insurance..............................................................................................59
5.11 Taxes..................................................................................................59
5.12 ERISA Compliance.......................................................................................59
5.13 Subsidiaries; Equity Interests.........................................................................60
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.........................60
5.15 Disclosure.............................................................................................60
5.16 Compliance with Laws...................................................................................61
5.17 Intellectual Property; Licenses, Etc...................................................................61
5.18 Collateral.............................................................................................61
5.19 Locations of Loan Parties..............................................................................61
5.20 Franchise Agreements...................................................................................62
5.21 Leases.................................................................................................62
5.22 Material Management Agreements.........................................................................62
5.23 Solvency...............................................................................................62
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements...................................................................................62
6.02 Certificates; Other Information........................................................................64
6.03 Notices................................................................................................65
6.04 Payment of Obligations.................................................................................66
6.05 Preservation of Existence, Etc.........................................................................66
6.06 Maintenance of Properties..............................................................................66
6.07 Maintenance of Insurance...............................................................................67
6.08 Compliance with Laws...................................................................................67
6.09 Books and Records......................................................................................67
6.10 Inspection Rights......................................................................................67
6.11 Use of Proceeds........................................................................................67
6.12 New Subsidiaries.......................................................................................67
6.13 New Unit Location and Other Real Property..............................................................69
6.14 Franchise Agreements, Leases and Other Material Contracts..............................................70
6.15 Interest Rate Protection...............................................................................70
6.16 Material Management Agreements.........................................................................70
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6.17 Internal Control Events................................................................................70
6.18 Leases and Franchise Agreements for Excluded Restaurants...............................................70
6.19 Additional Subsidiary Securities.......................................................................71
6.20 Excluded West Sahara Restaurant........................................................................71
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Liens..................................................................................................72
7.02 Investments............................................................................................73
7.03 Indebtedness...........................................................................................73
7.04 Fundamental Changes....................................................................................74
7.05 Dispositions...........................................................................................75
7.06 Restricted Payments....................................................................................75
7.07 Change in Nature of Business...........................................................................76
7.08 Transactions with Affiliates...........................................................................76
7.09 Burdensome Agreements..................................................................................76
7.10 Use of Proceeds........................................................................................76
7.11 Financial Covenants....................................................................................77
7.12 Capital Expenditures...................................................................................77
7.13 Management Agreements..................................................................................77
7.14 General Partner........................................................................................78
7.15 Acquisitions; New Subsidiaries.........................................................................78
7.16 Management of the Borrower.............................................................................78
7.17 New Unit Locations.....................................................................................78
7.18 Prepayments, etc. of Indebtedness......................................................................78
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default......................................................................................78
8.02 Remedies Upon Event of Default.........................................................................80
8.03 Application of Funds...................................................................................81
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority..............................................................................82
9.02 Rights as a Lender.....................................................................................82
9.03 Exculpatory Provisions.................................................................................82
9.04 Reliance by Administrative Agent.......................................................................83
9.05 Delegation of Duties...................................................................................84
9.06 Resignation of Administrative Agent....................................................................84
9.07 Non-Reliance on Administrative Agent and Other Lenders.................................................85
9.08 No Other Duties, Etc...................................................................................85
9.09 Administrative Agent May File Proofs of Claim..........................................................85
9.10 Collateral and Guaranty Matters........................................................................86
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ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc........................................................................................86
10.02 Notices; Effectiveness; Electronic Communication.......................................................88
10.03 No Waiver; Cumulative Remedies.........................................................................90
10.04 Expenses; Indemnity; Damage Waiver.....................................................................90
10.05 Payments Set Aside.....................................................................................92
10.06 Successors and Assigns.................................................................................92
10.07 Treatment of Certain Information; Confidentiality......................................................95
10.08 Right of Setoff........................................................................................96
10.09 Interest Rate Limitation...............................................................................97
10.10 Counterparts; Integration; Effectiveness...............................................................97
10.11 Survival of Representations and Warranties.............................................................97
10.12 Severability...........................................................................................97
10.13 Replacement of Lenders.................................................................................98
10.14 Governing Law; Jurisdiction; Etc.......................................................................98
10.15 Waiver of Jury Trial...................................................................................99
10.16 USA PATRIOT Act Notice.................................................................................99
SIGNATURES.....................................................................................................S-1
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of October 31, 2005,
among MAIN STREET RESTAURANT GROUP, INC., a Delaware corporation (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), and BANK OF AMERICA, N.A., as
Administrative Agent and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving credit
facility and term loan facility, and the Lenders are willing to do so on the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling equity interest in
another Person (including the purchase of an option, warrant or convertible or
similar type security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of such equity
interest or upon exercise of an option or warrant for, or conversion of
securities into, such equity interest, or (ii) assets of another Person which
constitute all or substantially all of the assets of such Person or of a line or
lines of business conducted by such Person.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means, as of the date of determination thereof, the
sum of (a) the Aggregate Revolving Credit Commitments at such date plus (b) the
Outstanding Amount with respect to the Term Loan at such date.
"Aggregate Revolving Credit Commitments" means, as at the date of
determination thereof, the sum of all Revolving Credit Commitments of all
Revolving Lenders at such date.
"Agreement" means this Credit Agreement.
"Applicable Interest Notice Date" means, with respect to any Compliance
Certificate that is not delivered when due in accordance with Section 6.02, the
date that the Administrative Agent delivers notice to the Borrower that such
Compliance Certificate was not delivered when due and that the Applicable Rate
shall thereafter be computed at Pricing Level III (pursuant to the definition of
"Applicable Rate").
"Applicable Percentage" means, with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) equal to:
(a) the sum of (i) such Lender's Revolving Credit Commitment at such
time (or, if a Commitment Termination Event (defined below) has occurred
the Revolving Credit Commitment of such Lender most recently in effect,
giving effect to any subsequent assignments), plus (ii) the portion of the
outstanding principal amount of the Term Loan funded by such Term Loan
Lender, after giving effect to any subsequent assignments,
divided by
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(b) the sum of (i) the Aggregate Revolving Credit Commitments (or, if
a Commitment Termination Event has occurred, the Aggregate Revolving Credit
Commitments most recently in effect), plus (ii) the outstanding principal
amount of the Term Loan:
Where,
"Commitment Termination Event" means the occurrence of any of the
following: (y) the termination, pursuant to Section 2.06 or 8.02, of the
commitment of each Revolving Lender to make Revolving Loans or the L/C
Issuer to make L/C Credit Extensions, or (z) the expiration of the
Aggregate Revolving Credit Commitments.
"Applicable Rate" means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):
Applicable Rate
---------------- --------------------------------- --------------- ---------------- ------------- ----------------
Pricing Consolidated Leverage Base Rate Eurodollar Rate Letter of Commitment Fee
Level Ratio Credit Fee
---------------- --------------------------------- --------------- ---------------- ------------- ----------------
I Less than 2.00 to 1.00 0.75% 2.00% 2.00% 0.25%
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Less than 2.50 to 1.00 but
II greater than or equal to 2.00
to 1.00 1.00% 2.25% 2.25% 0.375%
---------------- --------------------------------- --------------- ---------------- ------------- ----------------
Greater than or equal to 2.50
III to 1.00 1.25% 2.50% 2.50% 0.50%
---------------- --------------------------------- --------------- ---------------- ------------- ----------------
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Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate relating to
financial statements described in Section 6.01(a) is delivered pursuant to
Section 6.02(b); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level III shall
apply as of the first Business Day after the Applicable Interest Notice Date
until the first Business Day after the date such Compliance Certificate is
actually delivered, then the Pricing Level consistent with such Compliance
Certificate shall apply. Subject to the preceding sentence, the Applicable Rate
in effect from the Closing Date through the date of delivery of a Compliance
Certificate for the fiscal period ending December 26, 2005 shall be determined
based upon Pricing Level III.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit D or any other form approved by the
Administrative Agent.
"Assignment of Lease" means, collectively, the Collateral Assignment of
Rights in Leases now or hereafter encumbering any of the Borrower's or any
Guarantor's Space Leased Restaurants.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended December 27,
2004, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
▇
"▇▇▇▇▇▇ ▇▇▇▇" means The Bamboo Club Asian Bistro.
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"Bank of America" means Bank of America, N.A. and its successors.
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"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% or (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan (including a Segment) that bears interest
based on the Base Rate.
"Base Rate Revolving Loan" means a Revolving Loan that is a Base Rate Loan.
"Base Rate Segment" means a Segment that bears interest based on the Base
Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means (a) a Term Loan Borrowing, or (b) a Revolving Borrowing,
as the context may require.
"Business" means the operation by the Borrower and its Subsidiaries of
Restaurants at the Unit Locations.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
4
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 20% or more of
the equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the
Borrower cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause
(iii), any individual whose initial nomination for, or assumption of office
as, a member of that board or equivalent governing body occurs as a result
of an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on
behalf of the board of directors);
(c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Borrower, or control over
the equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
Person or group has the right to acquire pursuant to any option right)
representing 20% or more of the combined voting power of such securities;
or
(d) ▇▇▇▇ ▇▇▇▇▇▇▇ ceases to be a member of the board of directors of
the Borrower.
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.
"CNL Facility" means the agreements identified on Schedule 1.01A.
"CNL Sale/Leaseback" the agreements identified on Schedule 1.01B
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"Code" means the Internal Revenue Code of 1986.
"Collateral" means any and all assets and rights and interest in or to
property of the Borrower or any of the other Loan Parties, whether real or
personal, tangible or intangible, in which a Lien is granted or purported to be
granted pursuant to the Security Instruments.
"Commitment" means, as to each Lender, its obligation to (a) make Term
Loans to the Borrower pursuant to Section 2.01, (b) make Revolving Loans to the
Borrower pursuant to Section 2.02, and (c) purchase participations in L/C
Obligations, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Consolidated Debt Service" means, with respect to any period, the sum
(without duplication) of (a) the aggregate amount of all scheduled principal
payments of Indebtedness during such period (other than optional or mandatory
prepayments of Obligations due under Section 2.04 hereof), whether or not
payment was made during the measurement period, (b) Deemed Amortization for such
period, (c) Consolidated Interest Charges during such period, (d) the aggregate
amount of all actual payments due, whether or not payment was made during the
measurement period, under capital leases obligations, and (e) Operating Lease
and Rental Expense for such measurement period, each of (a) (except as to the
inclusion of synthetic leases), (c), (d) and (e) above determined in accordance
with GAAP on a consolidated basis.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign income taxes payable by
the Borrower and its Subsidiaries for such period, (iii) depreciation and
amortization expense and (iv) other non-recurring expenses of the Borrower and
its Subsidiaries reducing such Consolidated Net Income which do not represent a
cash item in such period or any future period and minus (b) the following to the
extent included in calculating such Consolidated Net Income: (i) Federal, state,
local and foreign income tax credits of the Borrower and its Subsidiaries for
such period and (ii) all non-cash items increasing Consolidated Net Income for
such period.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA less Maintenance Capital
Expenditures less income taxes paid during such period plus Operating Lease and
Rental Expense, in each case for the period of the four prior fiscal quarters
ending on such date to (b) Consolidated Debt Service for such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, the sum of (a)
the outstanding principal amount of all obligations, whether current or
long-term, for borrowed money (including Obligations hereunder) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
6
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than the Borrower or any Subsidiary, and (g) all Indebtedness of the types
referred to in clauses (a) through (f) above of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability
company) in which the Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Borrower and
its Subsidiaries in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase price of assets, in each
case to the extent treated as interest in accordance with GAAP, and (b) the
portion of rent expense of the Borrower and its Subsidiaries with respect to
such period under capital leases that is treated as interest in accordance with
GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended.
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debt Issuance" means the incurrence, issuance or sale by the Borrower or
any of its Subsidiaries of any debt (including, without limitation, any debt
securities, whether in a public offering of such securities or otherwise) but
excluding issuance of any Indebtedness permitted under Section 7.03(a) through
(g).
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
7
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Deemed Amortization" means, with respect to any four-fiscal-quarter
period, the aggregate Outstanding Amount of Revolving Loans and L/C Obligations
(including, without limitation, the undrawn amounts of outstanding Letters of
Credit) as of the last day of such four-fiscal-quarter period divided by 10.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Loans or participations in L/C Obligations required to
be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute, or (c) has been deemed insolvent or become the subject of
a bankruptcy or insolvency proceeding.
"Direct Foreign Subsidiary" means a Foreign Subsidiary, a majority of whose
Voting Securities is owned directly by the Borrower or a Domestic Subsidiary.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and the L/C Issuer, and (ii) unless an
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
8
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"Equity Issuance" means the issuance, sale or other disposition by the
Borrower or any of its Subsidiaries of any of its Equity Interests (including,
without limitation, pursuant to an initial Public Equity Offering), any rights,
warrants or options to purchase or acquire any shares of its Equity Interests or
any other security or instrument representing, convertible into or exchangeable
for any Equity Interests in the Borrower or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
9
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Loan (including a Segment) that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Segment" means a Segment that bears interest at a rate
based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded CNL Restaurant" means any of the fourteen (14) Restaurants
identified on Schedule 1.01C, in each case so long as CNL or its assignee has a
Lien on such Restaurant.
"Excluded GMAC Restaurant" means either of (i) the Restaurant located at
▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and (ii) the Restaurant located at ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, in each case so long as GMAC or
its assignee has a Lien on such Restaurant, as each Restaurant is identified on
Schedule 1.01C.
"Excluded West Sahara Restaurant" means the Restaurant located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, as identified on Schedule 1.01C.
"Excluded Receipts" means, collectively, tax refunds, indemnity payments
and insurance proceeds received by the Borrower or any of its Subsidiaries,
provided that (a) the amount of any such Excluded Receipt shall not exceed
$500,000, and (b) the aggregate amount of all Excluded Receipts of the Borrower
and its Subsidiaries shall not exceed $1,000,000.
"Excluded Restaurants" means, collectively, the Excluded CNL Restaurants,
Excluded GMAC Restaurants, the Excluded Sale/Leaseback Restaurants and the
Excluded West Sahara Restaurant.
10
"Excluded Sale/Leaseback Restaurant" means any of the nine (9) Restaurants
identified on Schedule 1.01D, in each case so long as CNL or its assignee is the
owner of such Restaurant and the Lease of such Restaurant to the Borrower or any
Subsidiary prohibits the Borrower or such Subsidiary from granting a Lien on
such Restaurant to the Administrative Agent.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"Existing Indebtedness" means the Borrower's and its Subsidiaries'
Indebtedness existing in connection with the agreements identified on Schedule
1.01E.
"Existing Letters of Credit" means those letters of credit set forth on
Schedule 1.01K.
"Extraordinary Receipts" means cash payments received by the Borrower or
its Subsidiaries not constituting Excluded Receipts or proceeds of any Debt
Issuance, Equity Issuance or Property Sale, and includes without limitation
pension reversions and any tax refunds, indemnity payments and insurance
proceeds other than Excluded Receipts; provided, however, that cash payments
received in the ordinary course of business shall not constitute Extraordinary
Receipts.
"Facility Termination Date" means the date as of which all of the following
shall have occurred: (a) the Borrowers shall have permanently terminated the
credit facilities under the Loan Documents by final payment in full of all
Outstanding Amounts, together with all accrued and unpaid interest and fees
thereon; (b) all Commitments shall have terminated or expired; (c) all Letters
of Credit shall have terminated or expired; (d) the obligations and liabilities
of the Borrower and each other Loan Party under all Related Credit Arrangements
shall have been fully, finally and irrevocably paid and satisfied in full and
11
the Related Credit Arrangements shall have expired or been terminated, or other
arrangements satisfactory to the counterparties shall have been made with
respect thereto; and (e) the Borrower and each other Loan Party shall have
fully, finally and irrevocably paid and satisfied in full all of their
respective obligations and liabilities arising under the Loan Documents,
including with respect to the Borrower and the Obligations other than Related
Credit Arrangements as to which clause (d) shall apply (except for future
obligations consisting of continuing indemnities and other contingent
Obligations of the Borrower or any Loan Party that may be owing to the
Administrative Agent, any Lender, or any Related Parties of the Administrative
Agent or any Lender pursuant to the Loan Documents and expressly survive
termination of the Credit Agreement or any other Loan Document).
"Federal Funds Rate" means, 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 on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated July 27, 2005, among the
Borrower, the Administrative Agent and the Arranger.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Franchise Agreements" means, collectively, all franchise agreements,
development agreements, license agreements or related agreements by and between
the Franchisor and the Borrower or any Subsidiary, which agreements relate to
any of the Restaurants, including but not limited to those Franchise Agreements
described on Schedule 1.01F attached hereto.
"Franchisor" means, collectively, ▇▇▇▇▇▇▇ Restaurants Worldwide, its
successors and assigns.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
12
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Ground Leased Real Estate Support Documents" means, with respect to any
Restaurant or other real property which is leased or subleased to the Borrower
or a Guarantor, pursuant to a ground lease, such landlord and mortgagee waivers
and nondisturbance agreements, third party consents, mortgagee title insurance
policies (in amounts and with endorsements acceptable to the Administrative
Agent), surveys, environmental reports, flood hazard certifications, evidence of
flood insurance, if required, and other mortgage-related documents as the
Administrative Agent may reasonably request.
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means, collectively, each Subsidiary of the Borrower.
"Guaranty" means that certain Guaranty Agreement executed by the Guarantors
in favor of the Administrative Agent and the Lenders, substantially in the form
of Exhibit E, as supplemented from time to time by execution and delivery of
Guaranty Joinder Agreements pursuant to Section 6.12 or otherwise.
"Guaranty Joinder Agreement" means each Guaranty Joinder Agreement,
substantially in the form thereof attached to the Guaranty, executed and
delivered by a Subsidiary to the Administrative Agent pursuant to Section 6.12.
13
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business;
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in
such Person or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
14
"Information" has the meaning specified in Section 10.07.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; and (b) as to any Base Rate Loan, the first Business Day after
the end of each March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two or three
months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
Notwithstanding the foregoing, at the option of the Administrative Agent, on a
one-time basis, an Interest Period may be slightly shorter or slightly longer in
order to allow the last days of Interest Periods to match with the dates
amortization amounts are due under the Term Loan as set forth in Section 2.07 of
this Agreement.
"Internal Control Event" means, with respect to the Borrower or any
Subsidiary, a determination by management or the Audit Committee of the Board of
Directors of the Borrower or by the Borrower's Public Accountants that (i) a
material weakness, as described in the Securities Laws, exists in the Borrower's
or any Subsidiary's internal controls over financial reporting, or (ii) a member
of the senior management of the Borrower or any Subsidiary has committed an act
of fraud.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IP Rights" has the meaning specified in Section 5.17.
15
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Key Management Team" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Revolving Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lease" means each operating or capital lease of real or personal property,
or both, related to a Restaurant or to the operations of the Business,
including, but not limited to, those leases set forth in Schedule 1.01G attached
hereto.
16
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"Letter of Credit Sublimit" means an amount equal to $4,000,000. The Letter
of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Term Loan, including any
Segment.
"Loan Documents" means this Agreement, each Note, each Issuer Document, the
Fee Letter, the Guaranty (including each Guaranty Joinder Agreement) and each
Security Instrument.
"Loan Notice" means (i) with respect to a Revolving Loan, a written notice
delivered by the Responsible Officer of the Borrower in connection with (a) a
Revolving Borrowing, (b) a conversion of Revolving Loans from one Type to the
other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.03(a), or (ii) with respect to the Term Loan, a written notice delivered by a
Responsible Officer of the Borrower in connection with (a) the conversion of any
Eurodollar Segment to a Base Rate Segment or (b) the conversion of any Base Rate
Segment to a Eurodollar Rate Segment, in each case in substantially the form of
Exhibit A.
"Loan Parties" means, collectively, the Borrower, each Guarantor, and each
Person (other than the Administrative Agent or any Lender) executing a Security
Instrument.
"Maintenance Capital Expenditures" means, as of any date of determination,
the greater of (A) actual maintenance capital expenses during the period of four
fiscal quarters ending on such date and (B) $35,000 per Restaurant in operation
as of the end of the fiscal quarter immediately preceding such four fiscal
quarters.
17
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to
which it is a party; or (d) a material adverse effect upon the rights and
remedies of the Administrative Agent or any Lender under the Loan Documents.
"Material Management Agreements" means (i) the employment agreement between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and the Borrower, dated as of November 19, 2004, and (ii)
the employment agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and the Borrower, dated as
of November 19, 2004.
"Maturity Date" means October 31, 2010.
"Mortgages" means, collectively, the mortgages or deeds of trust now or
hereafter encumbering any of the Borrower's or any Guarantor's fee or leasehold
estates in the Restaurants and other property as described therein in favor of
the Administrative Agent.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash proceeds received by the
Borrower or any of its Subsidiaries in respect of any Debt Issuance, Equity
Issuance or Property Sale (including, without limitation, any cash received upon
the sale or other disposition of any noncash consideration received in any Debt
Issuance, Equity Issuance or Property Sale), net of the direct costs relating to
such Debt Issuance, Equity Issuance or Property Sale (including, without
limitation legal, accounting and investment banking fees, and sales
commissions), taxes paid or payable as a result thereof, and any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit B.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan, Letter of Credit or Related Credit
Arrangement, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
"Operating Lease and Rental Expense" means, for any period, all operating
lease and rental expense paid in cash by the Borrower and its Subsidiaries
during such period.
18
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to the Term Loan on any date,
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and any prepayments or repayments of the Term Loan (or any Segment,
as the case may be) occurring on such date, (ii) with respect to Revolving Loans
on any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Revolving Loans
occurring on such date, and (iii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements by the Borrower of Unreimbursed Amounts.
"Owned Real Estate Support Documents" means, with respect to any Restaurant
or other real property which is owned by the Borrower or a Guarantor in fee
simple, such third party consents, mortgagee title insurance policies (in
amounts and with endorsements acceptable to the Administrative Agent), surveys,
environmental reports, flood hazard certifications, evidence of flood insurance,
if required, and other mortgage-related documents as the Administrative Agent
may reasonably request.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Equity Issuances" means, collectively, (a) the sale of capital
stock of the Borrower to the holders of Permitted Warrants or Options pursuant
to the exercise of such warrants or options by such holders, and (b) the
19
issuance of Permitted Warrants or Options or restricted stock of the Borrower to
employees of the Borrower or any Subsidiary as part of the employment
compensation or benefits of such employees, in each case in the ordinary course
of business consistent with past practices of the Borrower and its Subsidiaries.
"Permitted Liens" means (i) those Liens created by the Loan Documents or
permitted under Section 7.01 hereof, and (ii) (a) those Liens, encumbrances and
other matters affecting title to any Unit Location listed on Schedule B to the
loan title insurance policy delivered to and accepted by the Administrative
Agent in respect thereof, (b) as to any particular real property at any time,
such easements, encroachments, covenants, rights of way, minor defects,
irregularities or encumbrances on title which do not, in the reasonable opinion
of the Administrative Agent, materially impair the value or use of such real
property for the purpose for which it is held by any Loan Party, (c) municipal
and zoning ordinances which are not violated in any material respect by the
existing improvements and the present use made by any Loan Party, (d) Liens for
general real estate taxes and assessments not yet delinquent, and (e) such other
items as to which the Administrative Agent may consent.
"Permitted Stock Rights" means, collectively, those certain rights held on
the date hereof by certain owners of capital stock of the Borrower, which rights
(a) are listed on Schedule 1.01H and (b) entitle the holders thereof to purchase
additional shares of the capital stock of the Borrower under certain conditions,
provided that under the terms of the stock rights plan governing such rights,
the Borrower may repurchase such rights from the holders thereof in lieu of
selling such additional shares of capital stock.
"Permitted Warrants or Options" means, collectively, (a) those certain
warrants and options to purchase capital stock of the Borrower, which warrants
and options are held by employees of the Borrower or any Subsidiary on the date
hereof and are listed on Schedule 1.01I, and (b) and any additional warrants or
options to purchase capital stock of the Borrower that are issued by the
Borrower to employees of the Borrower or any Subsidiary as part of the
employment compensation or benefits of such employees, in each case in the
ordinary course of business consistent with past practices of the Borrower and
its Subsidiaries.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Pro Rata Revolving Share" means, with respect to each Revolving Lender at
any time, a fraction (expressed as a percentage, carried out to the ninth
decimal place), the numerator of which is the amount of the Revolving Credit
Commitment of such Revolving Lender at such time and the denominator of which is
the amount of the Aggregate Revolving Credit Commitments at such time. If the
commitment of each Revolving Lender to make Revolving Loans and the obligation
of the L/C Issuer to make L/C Extensions have been terminated at such time or if
20
the Aggregate Revolving Credit Commitments have expired, then the Pro Rata
Revolving Share of each Revolving Lender shall be determined based on the Pro
Rata Revolving Share of such Revolving Lender most recently in effect, after
giving effect to any subsequent assignments made pursuant to the terms hereof.
The initial Pro Rata Revolving Share of each Revolving Lender is set forth
opposite the name of such Revolving Lender on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Revolving Lender becomes a party hereto,
as applicable.
"Pro Rata Term Share" means, with respect to each Term Loan Lender, the
percentage (carried out to the ninth decimal place) of the principal amount of
the Term Loan funded by such Term Loan Lender, after giving effect to any
subsequent assignments made pursuant to the terms hereof. The initial Pro Rata
Term Share of each Term Loan Lender is set forth opposite the name of such Term
Loan Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Term Loan Lender becomes a party hereto, as applicable.
"Property Sale" means any sale, conveyance or other disposition of any
assets or property of the Borrower or any of its Subsidiaries, other than the
sale of inventory or equipment in the ordinary course of business consistent
with past practices and other than Dispositions permitted by Sections 7.04(a),
7.04(b) and 7.05(d).
"Public Accountant" has the meaning specified in Section 6.01(a).
"Public Equity Offering" means underwritten public offering of the common
stock of the Borrower or a Subsidiary pursuant to an effective registration
statement filed with the SEC in accordance with Securities Laws (whether alone
or in conjunction with a secondary public offering).
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed in the
Securities Laws.
"Related Credit Arrangements" means, collectively, Related Swap Contracts
and Related Treasury Management Arrangements.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Related Swap Contract" means a Swap Contract which is entered into or
maintained by any Loan Party with a Lender or an Affiliate of a Lender that has
executed and delivered a letter of undertaking in the form of Exhibit H.
"Related Treasury Management Arrangement" means an arrangement for the
delivery of treasury management services to or for the benefit of any Loan Party
which is entered into or maintained with a Lender or Affiliate of a Lender and
which is not prohibited by the express terms of the Loan Documents.
21
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30-day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Revolving Loans, a Loan Notice, and (b) with
respect to an L/C Credit Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, Lenders having
at least 75% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, Lenders holding in the aggregate
at least 75% of the Total Outstandings (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations being
deemed "held" by such Lender for purposes of this definition); provided that the
portion of the Aggregate Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Required Revolving Lenders" means, as of any date of determination,
Revolving Lenders having at least 75% of the Aggregate Revolving Credit
Commitments or, if the commitment of each Revolving Lender to make Revolving
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02, Revolving Lenders holding in the
aggregate at least 75% of the Outstanding Amount of Revolving Loans (with the
aggregate amount of each Revolving Lender's risk participation and funded
participation in L/C Obligations being deemed "held" by such Lender for purposes
of this definition); provided that the portion of the Aggregate Revolving Credit
Commitment of, and the portion of the Outstanding Amount of Revolving Loans held
or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Revolving Lenders.
"Required Term Loan Lenders" means, as of any date of determination, Term
Loan Lenders having at least 75% of the Outstanding Amount of the Term Loan;
provided that the portion of the Outstanding Amount of Term Loan held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Term Loan Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, vice president/controller, vice president/general counsel or
treasurer of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restaurant" means any T.G.I. Friday's, ▇▇▇▇▇ ▇▇▇▇▇▇'stown, Bamboo Club or
Redfish restaurant owned or leased and operated by the Borrower or any
Subsidiary.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
22
Equity Interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Borrower's stockholders, partners
or members (or the equivalent Person thereof).
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Revolving Lenders pursuant
to Section 2.02.
"Revolving Credit Commitment" means, as to each Lender, its obligation to
(a) make Revolving Loans to the Borrower pursuant to Section 2.02 in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Revolving Lender's name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.
"Revolving Credit Facility" means the facility described in Section 2.02
providing for Revolving Loans to the Borrower by the Revolving Lenders in the
maximum aggregate principal amount at any time outstanding of $20,000,000, as
reduced from time to time pursuant to the terms of this Agreement.
"Revolving Lender" means each Lender that has a Revolving Credit Commitment
or, following termination of the Revolving Credit Commitments, has Revolving
Loans outstanding.
"Revolving Loan" has the meaning specified in Section 2.02.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Parties" means, collectively, with respect to each of the Security
Instruments, the Administrative Agent, the Lenders, and each Affiliate of any
Lender, which Affiliate is party to a Related Credit Arrangement.
"Securities Laws" means the Securities Act of 1933, the Securities Exchange
Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Security Agreement" means that certain Security Agreement dated as of the
Closing Date made by the Borrower and each Guarantor in favor of the
Administrative Agent for the benefit of the Secured Parties, substantially in
the form of Exhibit F attached hereto, as supplemented from time to by the
execution and delivery of Security Joinder Agreements pursuant to Section 6.12
or otherwise.
23
"Security Joinder Agreement" means each Security Joinder Agreement,
substantially in the form thereof attached to the Security Agreement, executed
and delivered by the Borrower or a Guarantor, as applicable, to the
Administrative Agent pursuant to Section 6.12 or otherwise.
"Security Instruments" means, collectively or individually as the context
may indicate, the Security Agreement (and any Security Joinder Agreement), the
Mortgages, the Assignments of Lease, and all other agreements (including control
agreements), instruments and other documents, whether now existing or hereafter
in effect, pursuant to which the Borrower, any Guarantor or any other Person
shall grant or convey to the Administrative Agent or the Lenders a Lien in, or
any other Person shall acknowledge any such Lien in, property as security for
all or any portion of the Obligations, any other obligation under any Loan
Document and any obligation or liability arising under any Related Credit
Arrangement.
"Segment" means a portion of the Term Loan (or all of the Term Loan), in
each case with respect to which a particular interest rate is (or is proposed to
be) applicable.
"September 2006 Quarter End" means the last day of the fiscal quarter of
the Borrower ending closest to September 30, 2006.
"September 2007 Quarter End" means the last day of the fiscal quarter of
the Borrower ending closest to September 30, 2007.
"Solvent" means, when used with respect to any Person, that at the time of
determination:
(a) the fair value of its assets (both at fair valuation and at
present fair saleable value on an orderly basis) is in excess of the total
amount of its liabilities, including contingent obligations; and
(b) it is then able and expects to be able to pay its debts as they
mature; and
(c) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Space Lease" (and the correlative phrase "Space-Leased") refer to (a) a
lease of the improvements (or the land and improvements) constituting a
Restaurant or other office or business location or (b) a lease of a Restaurant
(or other office or business location)or the land thereunder which the
Administrative Agent, in its sole discretion, determines to be the legal or
practical equivalent of a space lease of such Restaurant or other location as
described in clause (a).
"Space Leased Real Estate Support Documents" means, with respect to any
Restaurant or other real property which is leased or subleased to the Borrower
or a Guarantor, pursuant to a Space Lease, such landlord and mortgagee waivers
and nondisturbance agreements, third party consents, surveys, environmental
reports, flood hazard certifications, evidence of flood insurance, if required,
and other documents as the Administrative Agent may reasonably request.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
24
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Securities" means the shares of capital stock or the other
equity interests issued by or equity participations in any Subsidiary, whether
or not constituting a "security" under Article 8 of the Uniform Commercial Code
as in effect in any jurisdiction.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
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"Term Loan" means, individually or in the aggregate as the context may
indicate, the loans made pursuant to the Term Loan Facility in accordance with
Section 2.01.
"Term Loan Borrowing" means a borrowing consisting of simultaneous Term
Loans of the same Type and, as to Eurodollar Rate Loans, having the same
Interest Period made by each of the Term Loan Lenders pursuant to Section 2.01.
"Term Loan Commitment" means, as to each Term Loan Lender, its obligation
to fund Borrowings under the Term Loan pursuant to Section 2.01 in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Term Loan Lender's name on Schedule 2.01, as such amount may be
reduced or adjusted from time to time in accordance with this Agreement.
"Term Loan Facility" means the facility described in Section 2.01 providing
for a Term Loan to the Borrower by the Term Loan Lenders in the principal amount
of $25,000,000.
"Term Loan Lender" means each Lender that has a Term Loan Commitment or a
Term Loan outstanding under the Term Loan Facility.
"Threshold Amount" means $2,000,000.
"Total Outstandings" means, as at any date of determination thereof, the
aggregate of the Outstanding Amount of (a) the Term Loan, (b) the Revolving
Loans and (c) all L/C Obligations.
"Total Revolving Credit Outstandings" means, at any date of determination
thereof, the aggregate of the Outstanding Amount of Revolving Loans.
"Type" means, with respect to a Revolving Loan, Term Loan or Segment, its
character as a Base Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"Unit Locations" means, collectively, the property comprising the
Restaurant locations described on Schedule 1.01J and the property comprising any
other Restaurant locations.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Voting Securities" means shares of capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
26
1.02 Other Interpretive Provisions. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." The word "will" shall be construed to have
the same meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) 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."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) Generally. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to
27
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 - Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.
1.04 Rounding. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 Times of Day. Unless otherwise specified, all references herein to
times of day shall be references to Central time (daylight or standard, as
applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Term Loan. (a) Subject to the terms and conditions of this Agreement,
each Term Loan Lender severally agrees to make an advance of its Pro Rata Term
Share of the Term Loan to the Borrower on the Closing Date. The principal amount
of each Segment of the Term Loan outstanding hereunder from time to time shall
bear interest and the Term Loan shall be repayable as herein provided. No amount
of the Term Loan repaid or prepaid by the Borrower may be reborrowed hereunder,
and no subsequent advances of Term Loan amounts shall be made by any Lender
after the initial such advance.
(b) Not later than 1:00 P.M. on the Closing Date, each Term Loan Lender
shall, pursuant to the terms and subject to the conditions of this Agreement,
make the amount of its Pro Rata Term Share of the Term Loan available by wire
transfer to the Administrative Agent. Such wire transfer shall be directed to
the Administrative Agent at the Administrative Agent's Office and shall be in
the form of immediately available, freely transferable Dollars. The amount so
28
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Borrower by delivery of the proceeds
thereof as shall be directed by a Responsible Officer and reasonably acceptable
to the Agent. The initial Borrowing of the Term Loan shall be a single Base Rate
Segment, subject to conversion after the Closing Date in accordance with a Loan
Notice delivered on the Closing Date pursuant to Section 4.01(a) (or, if no Loan
Notice is so delivered on the Closing Date with respect to the Term Loan,
thereafter in accordance with Section 2.03).
2.02 Revolving Loans. Subject to the terms and conditions set forth herein,
each Revolving Lender severally agrees to make loans (each such loan, a
"Revolving Loan") to the Borrower from time to time, on any Business Day during
the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Revolving Lender's Revolving Credit Commitment;
provided, however, that after giving effect to any Revolving Borrowing, (i) the
Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving
Credit Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans
of any Lender, plus such Lender's Pro Rata Revolving Share of the Outstanding
Amount of all L/C Obligations shall not exceed such Lender's Revolving Credit
Commitment. Within the limits of each Revolving Lender's Revolving Credit
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.02, prepay under Section 2.05, and reborrow
under this Section 2.02. Revolving Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.
2.03 Revolving Borrowings, Conversions and Continuations of Revolving Loans
and Term Loan Segments.
(a) Each Revolving Borrowing, each conversion of Revolving Loans or
Segments of Term Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower's irrevocable notice to
the Administrative Agent. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each
notice by the Borrower pursuant to this Section 2.03(a) must be accomplished by
delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Section 2.04(c), each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Loan Notice shall specify (i)
whether the Borrower is requesting a Revolving Borrowing, a conversion of
Revolving Loans or Segments of the Term Loan from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or continued, (iv)
the Type of Loans to be borrowed or to which existing Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to specify a Type of Revolving Loan in a Loan Notice with
respect to Revolving Loans or Type of Segment in a Loan Notice with respect to a
Segment of the Term Loan, or if the Borrower fails to give a timely notice
29
requesting a conversion or continuation, then the applicable Revolving Loans and
applicable Segments of the Term Loan shall be made as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective
as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice,
but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Loan Notice with respect to a Revolving Loan,
the Administrative Agent shall promptly notify each Revolving Lender of the
amount of its Pro Rata Revolving Share of the applicable Revolving Loans, and if
no timely notice of a conversion or continuation is provided by the Borrower,
the Administrative Agent shall notify each applicable Lender of the details of
any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Revolving Borrowing, each Revolving Lender shall
make the amount of its Revolving Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent's Office not later than
1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower; provided, however, that if, on the date the Loan Notice with
respect to such Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and second, shall be made available
to the Borrower as provided above.
(c) Following receipt of a Loan Notice with respect to a Segment of the
Term Loan, the Administrative Agent shall promptly notify each Term Loan Lender
of the amount of its Pro Rata Term Share of the applicable Term Loan, and if no
timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each applicable Lender of the details of any
automatic conversion to Base Rate Loans described in subsection (a).
(d) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(e) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(f) After giving effect to all Revolving Borrowings, all conversions of
Revolving Loans and Segments of the Term Loan from one Type to the other, and
30
all continuations of Revolving Loans as the same Type, there shall not be more
than ten Interest Periods in the aggregate in effect with respect to Revolving
Loans and Segments of the Term Loan.
2.04 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Revolving Lenders set
forth in this Section 2.04, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the Borrower
or its Subsidiaries, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Revolving Lenders
severally agree to participate in Letters of Credit issued for the account
of the Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, (x) the aggregate Outstanding Amount of all Revolving Loans
and L/C Obligations shall not exceed the Aggregate Revolving Credit
Commitments, and (z) the aggregate Outstanding Amount of the Revolving
Loans of any Revolving Lender, plus such Revolving Lender's Pro Rata
Revolving Share of the Outstanding Amount of all L/C Obligations shall not
exceed such Revolving Lender's Revolving Credit Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of
Credit Sublimit. Each request by the Borrower for the issuance or amendment
of a Letter of Credit shall be deemed to be a representation by the
Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. All Existing Letters of Credit shall
be deemed to have been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and conditions
hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Revolving
Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Revolving Lenders have approved such expiry date.
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(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $500,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars; or
(E) a default of any Revolving Lender's obligations to fund
under Section 2.04(c) exists or any Revolving Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrower or such Revolving Lender
to eliminate the L/C Issuer's risk with respect to such Revolving
Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities
(A) provided to the Administrative Agent in Article IX with respect to any
acts taken or omissions suffered by the L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
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(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and
the L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Revolving Lender, the Administrative
Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Article IV shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of
the Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Revolving Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
L/C Issuer a risk participation in such Letter of Credit in an amount equal
to the product of such Revolving Lender's Pro Rata Revolving Share times
the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic extension provisions (each,
an "Auto-Extension Letter of Credit"); provided that any such
33
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration
Date; provided, however, that the L/C Issuer shall not permit any such
extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter
of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.04(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Revolving Lenders have elected not to permit such extension or (2)
from the Administrative Agent, any Revolving Lender or the Borrower that
one or more of the applicable conditions specified in Section 4.02 is not
then satisfied, and in each such case directing the L/C Issuer not to
permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
-------------------------------------------------------
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "Honor Date"), the Borrower shall reimburse the
L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Revolving Lender of the Honor Date, the amount of the unreimbursed drawing
(the "Unreimbursed Amount"), and the amount of such Lender's Pro Rata
Revolving Share thereof. In such event, the Borrower shall be deemed to
have requested a Revolving Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.03 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Revolving Credit Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.04(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
34
(ii) Each Revolving Lender shall upon any notice pursuant to Section
2.04(c)(i) make funds available to the Administrative Agent for the account
of the L/C Issuer at the Administrative Agent's Office in an amount equal
to its Pro Rata Revolving Share of the Unreimbursed Amount not later than
1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.04(c)(iii), each Revolving Lender that so makes funds available shall be
deemed to have made a Base Rate Revolving Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the
L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Revolving Lender's payment to the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.04(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Revolving Lender in satisfaction
of its participation obligation under this Section 2.04.
(iv) Until each Revolving Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 2.04(c) to reimburse the L/C Issuer for
any amount drawn under any Letter of Credit, interest in respect of such
Revolving Lender's Pro Rata Revolving Share of such amount shall be solely
for the account of the L/C Issuer.
(v) Each Revolving Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Revolving Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving
Lender's obligation to make Revolving Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Revolving Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required
to be paid by such Revolving Lender pursuant to the foregoing provisions of
this Section 2.04(c) by the time specified in Section 2.04(c)(ii), the L/C
Issuer shall be entitled to recover from such Revolving Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the L/C Issuer at a rate
35
per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation. A certificate of the L/C Issuer submitted to any
Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Revolving Lender such Lender's
L/C Advance in respect of such payment in accordance with Section 2.04(c),
if the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Revolving Lender its Pro Rata
Revolving Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving
Lender's L/C Advance was outstanding) in the same funds as those received
by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.04(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Lender shall pay to the Administrative Agent
for the account of the L/C Issuer its Pro Rata Revolving Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Revolving Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
36
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will notify the L/C Issuer within five (5) Business Days of the
Borrower's receipt of such Letter of Credit or amendment. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Revolving Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders, the Required Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.04(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
37
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Sections 2.05 and 8.02(c)
set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.04, Section 2.05 and Section 8.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Revolving Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Borrower hereby grants
to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be maintained
in blocked, non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the ISP
shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Revolving Lender in accordance with its Pro Rata
Revolving Share a Letter of Credit fee (the "Letter of Credit Fee") for each
Letter of Credit equal to the Applicable Rate times the daily amount available
to be drawn under such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required Revolving Lenders, while any Event of Default exists, all Letter of
Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at the rate per annum
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specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit and on a quarterly basis in arrears. Such fronting
fee shall be due and payable on the tenth Business Day after the end of each
March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
2.05 Prepayments.
(a) In addition to the required payments of principal of the Term Loan set
forth in Section 2.07(b) and any mandatory prepayments of principal of the
Revolving Loans and the Term Loan effected under subsection (b) or (c) below,
the Borrower may, upon notice by the Borrower to the Administrative Agent, at
any time or from time to time voluntarily prepay Revolving Loans or the Term
Loan in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 11:00 a.m.
(A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans
and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof; and (iii) any prepayment of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment, whether such prepayment is applicable to the Revolving Loans or the
Term Loan and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each applicable Lender of its receipt of each such notice, and
of the amount of such Lender's Pro Rata Revolving Share or Pro Rata Term Share,
as applicable of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Revolving Loans of
the Lenders in accordance with their respective Pro Rata Revolving Shares. Each
such prepayment of principal of the Term Loan under this Section 2.05(a) shall
be applied to remaining installments of principal of the Term Loan, on a pro
rata basis.
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(b) If for any reason the Total Revolving Credit Outstandings plus all L/C
Obligations at any time exceed the Aggregate Revolving Credit Commitments then
in effect, then the Borrower shall immediately prepay Revolving Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after
the prepayment in full of the Revolving Loans the Total Revolving Credit
Outstandings plus all L/C Obligations exceed the Aggregate Revolving Credit
Commitments then in effect.
(c) In addition to the required payments of principal of the Term Loan set
forth in Section 2.07 and any optional or mandatory payments of principal of the
Term Loan and the Revolving Loans effected under subsections (a) and (b) above,
the Borrower shall make the following required prepayments of the Term Loan and
the Revolving Loans, each such payment to be made to the Administrative Agent
for the benefit of the applicable Lenders within the time period specified
below.
(i) The Borrower shall make, or cause each applicable Subsidiary to
make, a prepayment in an amount equal to one hundred percent (100%) of the
Net Cash Proceeds of each Property Sale by the Borrower or any Subsidiary,
each such prepayment to be made within thirty (30) days of receipt of the
Net Cash Proceeds thereof and upon not less than five (5) Business Days'
prior written notice to the Administrative Agent, which notice shall
include a certificate of a Responsible Officer of the Borrower setting
forth in reasonable detail the calculations utilized in computing the Net
Cash Proceeds of such sale and the amount of such prepayment; provided,
however, that the Borrower and its Subsidiaries may sell Exempted
Restaurants (defined below) without making a prepayment arising from such
sales so long as (A) within 360 days after the sale of any Exempted
Restaurant, all of the Net Cash Proceeds of such sale are used by the
Borrower or the applicable Subsidiary to purchase or develop another
Restaurant (a "Replacement Restaurant") owned in fee simple or leased by
the Borrower or such Subsidiary, and (B) the purchase of such Replacement
Restaurant complies in all respects with Section 6.13, and (without
limitation of the foregoing) the Administrative Agent has received a
Mortgage or (in the case of a Spaced-Leased Restaurant) an Assignment of
Lease with respect to such Replacement Restaurant and all other documents
required by Section 6.13; provided further that in the case of a Property
Sale by the Borrower or any Subsidiary of any Excluded Restaurant (other
than the Excluded West Sahara Restaurant), (i) the Borrower shall not be
required to make such prepayment to the extent such prepayment is
prohibited by the transaction documents relating to the Indebtedness owing
with respect to such Excluded Restaurant, and (ii) in the event such
prepayment is not prohibited by clause (i) above, the amount of such
prepayment shall be reduced by the amount, if any, then due and owing (as a
result of such Property Sale) by the Borrower or and Subsidiary, as the
case may be, to the holder of the Indebtedness owing with respect to such
Excluded Restaurant in accordance with the transaction documents relating
to such Indebtedness. For the purposes of the Section, "Exempted
Restaurants" means up to five (5) restaurants in the aggregate (none of
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which may be a T.G.I. Friday's Restaurant except for T.G.I. Friday's
Restaurants located in Kansas City, Kansas, Kansas City, Missouri or Omaha,
Nebraska) sold by the Borrower and its Subsidiaries after the Closing Date.
(ii) the Borrower shall make, or cause each applicable Subsidiary to
make, a prepayment in an amount equal to one hundred percent (100%) of the
Net Cash Proceeds of each Debt Issuance, each such prepayment to be made
within ten (10) Business Days of receipt of such proceeds and upon not less
than five (5) Business Days' prior written notice to the Administrative
Agent, which notice shall include a certificate of a Responsible Officer of
the Borrower setting forth in reasonable detail the calculations utilized
in computing the Net Cash Proceeds of such issuance and the amount of such
prepayment;
(iii) the Borrower shall make, or cause each applicable Subsidiary to
make, a prepayment in an amount equal to fifty percent (50%) of the Net
Cash Proceeds of each Equity Issuance (other than Permitted Equity
Issuances), each such prepayment to be made within ten (10) Business Days
of receipt of such proceeds and upon not less than five (5) Business Days'
prior written notice to the Administrative Agent, which notice shall
include a certificate of a Responsible Officer of the Borrower setting
forth in reasonable detail the calculations utilized in computing the Net
Cash Proceeds of such issuance and the amount of such prepayment; and
(iv) the Borrower shall make, or cause each applicable Subsidiary to
make, a prepayment equal to one hundred percent (100%) of all Extraordinary
Receipts, each such prepayment to be made within thirty (30) days of
receipt of such proceeds and upon not less than five (5) Business Days'
prior written notice to the Administrative Agent, which notice shall
include a certificate of a Responsible Officer of the Borrower setting
forth in reasonable detail the amount of such prepayment.
Each prepayment received pursuant to this Section 2.05(c) shall be applied:
First, to the then outstanding principal installments of the Term Loan on a
pro rata basis until the Term Loan is paid in full; and
Second, to the outstanding Revolving Loans and Unreimbursed Amounts
(including L/C Borrowings), and shall automatically reduce the Aggregate
Revolving Credit Commitments by an amount equal to the amount so applied,
which reduction shall be allocated to the Revolving Lenders on a pro rata
basis, until the outstanding Revolving Loans and Unreimbursed Amounts
(including L/C Borrowings) are repaid in full; and
Third, to pay all accrued interest on a pro rata basis.
(d) In the event there is a Change of Control within twelve (12) months
after the Closing Date, the Borrower shall, on the earlier of the date that all
outstanding Loans are paid and the date that all outstanding Loans are required
to be paid (whether by acceleration or otherwise), pay to the Administrative
Agent for the benefit of each Lender a prepayment fee in an amount equal to 0.5%
times the Commitment of such Lender as of the date of such Change of Control;
provided, however, that this subsection (d) shall not waive any Default or Event
41
of Default or limit any rights or remedies of the Administrative Agent, any
Lender or the L/C Issuer arising from the Change in Control (including the right
to require acceleration of outstanding Obligations pursuant to Section 8.02).
2.06 Termination or Reduction of Commitments. The Borrower may, upon notice
to the Administrative Agent, terminate the Aggregate Revolving Credit
Commitments, or from time to time permanently reduce the Aggregate Revolving
Credit Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the Aggregate
Revolving Credit Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Revolving Credit Outstandings plus
all L/C Obligations would exceed the Aggregate Revolving Credit Commitments, and
(iv) if, after giving effect to any reduction of the Aggregate Revolving Credit
Commitments, the Letter of Credit Sublimit exceeds the amount of the Aggregate
Revolving Credit Commitments, such Sublimit shall be automatically reduced by
the amount of such excess. The Administrative Agent will promptly notify the
Revolving Lenders of any such notice of termination or reduction of the
Aggregate Revolving Credit Commitments. Any reduction of the Aggregate Revolving
Credit Commitments shall be applied to the Revolving Credit Commitment of each
Revolving Lender according to its Pro Rata Revolving Share. All fees accrued
until the effective date of any termination of the Aggregate Revolving Credit
Commitments shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Revolving Lenders on the Maturity Date
the aggregate principal amount of Revolving Loans outstanding on such date.
(b) The Borrower shall repay the principal amount of the Term Loan
(together with any additional amounts required pursuant to Section 3.05 and all
interest accrued as of such payment date on the principal portion so repaid) on
the dates (or, in the event that the date set forth below is not a Business Day,
on the immediately following Business Day) and, in each case, in the respective
amount set forth on Schedule 2.07(b) and the Borrower shall repay the
Outstanding Amount of the Term Loan on Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
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(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
(d) Without limiting the generality of the foregoing, at the time of
payment of each installment of principal under the Term Loan, the Borrower shall
pay interest accrued on the amount repaid.
2.09 Fees. In addition to certain fees described in subsections (i) and (j)
of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Revolving Lender in accordance with its Pro Rata Revolving
Share, a commitment fee equal to the Applicable Rate times the actual daily
amount by which the Aggregate Revolving Credit Commitments exceed the sum of (i)
the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date. The commitment fee shall be calculated quarterly
in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
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(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.10 Computation of Interest and Fees. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
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2.12 Payments Generally; Administrative Agent's Clawback.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Revolving Share or Pro Rata Term Share, as applicable
(or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender's Lending Office. All payments received
by the Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to
the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the
case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date
of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.01 or 2.02, as
applicable, (or, in the case of a Borrowing of Base Rate Loans, that such
Lender has made such share available in accordance with and at the time
required by Section 2.02) and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to
the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the
greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower,
the interest rate applicable to Base Rate Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period.
If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such
Lender's Loan included in such Borrowing. Any payment by the Borrower shall
be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
45
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the applicable Lenders or the L/C Issuer, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Revolving Lenders Several. The obligations of the
Revolving Lenders hereunder to make Revolving Loans, to fund participations in
Letters of Credit and to make payments pursuant to Section 10.04(c) are several
and not joint. The failure of any Revolving Lender to make any Revolving Loan,
to fund any such participation or to make any payment under Section 10.04(c) on
any date required hereunder shall not relieve any other Revolving Lender of its
corresponding obligation to do so on such date, and no Revolving Lender shall be
responsible for the failure of any other Revolving Lender to so make its
Revolving Loan, to purchase its participation or to make its payment under
Section 10.04(c).
(e) Obligations of Term Loan Lenders Several. The obligations of the Term
Loan Lenders to fund each of their respective Pro Rata Term Shares of the Term
Loan and to make payments pursuant to Section 10.04(c) are several and not
joint. The failure of any Term Loan Lender to fund its Pro Rata Term Share of
the Term Loan or to make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Term Loan Lender of its corresponding
obligation to do so on such date, and no Term Loan Lender shall be responsible
for the failure of any other Term Loan Lender so to fund its Pro Rata Term Share
of the Term Loan or to make its payment under Section 10.04(c).
(f) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
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2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Revolving Loans or Term Loan made by it,
or the participations in L/C Obligations held by it resulting in such Lender's
receiving payment of a proportion of the aggregate Outstanding Amount of Loans
and L/C Obligations, or participations and accrued interest thereon, greater
than its pro rata share thereof as provided herein, then the Lender receiving
such greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase for cash at face value from the other Lenders such
participations in the Revolving Loans of the other Lenders, or portion of the
Term Loan made by them, or subparticipations in the L/C Obligations, as the case
may be, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Revolving Lenders and Term
Loan Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them,
provided that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to
(x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans or subparticipations in L/C Obligations to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to
which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
For the purposes of this Section 2.13, any calculation of pro rata shares
of Loans will be determined on the basis of the Outstanding Amount of all Loans
and all L/C Obligations (and each Lender's participation therein) without
distinction between Revolving Loans and Term Loans.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
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after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
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thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
49
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan , or
(c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in
by, any Lender (except any reserve requirement contemplated by Section
3.04(e)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made by it,
or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;
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and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
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costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 10 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.13;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
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(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Borrower may replace such Lender in accordance with Section
10.13.
3.07 Survival. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement, the Guaranty and each
Security Instrument sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to
act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;
(iv) certified Organization Documents of each Loan Party, and such
other documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, and that each of the Borrower and each other Loan Party is validly
existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect;
(v) a favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel to the
Loan Parties, addressed to the Administrative Agent and each Lender, as to
the matters set forth in Exhibit G and such other matters concerning the
Loan Parties and the Loan Documents as the Required Lenders may reasonably
request;
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(vi) favorable opinions of local counsel to the Loan Parties in each
of Arizona, California, and Nevada, addressed to the Administrative Agent
and each Lender, as to certain matters set forth in Exhibit G and such
other matters concerning the Loan Parties and the Loan Documents as the
Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party
and the validity against such Loan Party of the Loan Documents to which it
is a party, and such consents, licenses and approvals shall be in full
force and effect, or (B) stating that no such consents, licenses or
approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, (B) that there has been no event or circumstance since
the date of the Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; (C) that there has been no material adverse change
in the facts and information regarding the Borrower and its Subsidiaries
since the date of the Audited Financial Statements, and (D) a calculation
of the Consolidated Leverage Ratio as of the last day of the fiscal quarter
of the Borrower most recently ended prior to the Closing Date;
(ix) a certificate signed by the chief financial officer of each Loan
Party certifying that each Loan Party is Solvent, after giving effect to
this Agreement, the transactions contemplated hereby and any Indebtedness
incurred in connection herewith;
(x) a copy of each Lease in effect on the Closing Date with respect
to any Restaurant (other than Excluded Restaurants), each of which Leases
shall be certified by a Responsible Officer of the Borrower;
(xi) a copy certified by a Responsible Officer of the Borrower of each
Franchise Agreement with respect to any Restaurant (other than Excluded
Restaurants);
(xii) a copy certified by a Responsible Officer of the Borrower of
each Material Management Agreement;
(xiii) evidence of the consent and approval by the Franchisor of the
transactions contemplated by this Agreement and the other Loan Documents
and the Liens in favor of the Administrative Agent pursuant to the Loan
Documents or evidence that such consents and approvals are not required;
(xiv) with respect to each Restaurant that is owned by any Loan Party:
(A) the Mortgage and evidence of the proper recordation of each such
Mortgage (or the delivery of any such Mortgage to the applicable title
insurance company for recordation, on or immediately after the Closing
Date) in the appropriate filing office, and (B) the Owned Real Estate
Support Documents with respect to such Restaurant;
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(xv) with respect to each Restaurant (other than any Excluded
Restaurant) that is ground leased by any Loan Party: (A) the Mortgage and a
memorandum of lease for such Restaurant, and evidence of the proper
recordation of each such Mortgage and memorandum of lease (or the delivery
of any such Mortgage or memorandum of lease to the applicable title
insurance company for recordation on or immediately after the Closing Date)
in the appropriate filing office, and (B) the Ground Leased Real Estate
Support Documents with respect to such Restaurant;
(xvi) with respect to each Restaurant (other than any Excluded
Restaurant) that is Space Leased by any Loan Party: (A) the Assignment of
Leases and a memorandum of lease for such Restaurant, and evidence of the
proper recordation of each such Assignment of Leases and memorandum of
lease (or the delivery of any such Assignment of Leases or memorandum of
lease to the applicable title insurance company for recordation on or
immediately after the Closing Date) in the appropriate filing office, and
(B) the Space Leased Real Estate Support Documents with respect to such
Restaurant;
(xvii) such warehouseman and bailee letters as the Administrative
Agent may request;
(xviii) such executed intercreditor agreements as the Administrative
Agent may request;
(xix) Uniform Commercial Code search results showing only those Liens
as are acceptable to the Administrative Agent;
(xx) delivery of Uniform Commercial Code financing statements suitable
in form and substance for filing in all places required by applicable Law
to perfect the Liens of the Administrative Agent under the Security
Instruments as a first priority Lien as to items of Collateral in which a
security interest may be perfected by the filing of financing statements,
and such other documents and/or evidence of other actions as may be
necessary under applicable Law to perfect the Liens of the Administrative
Agent under the Security Instruments as a first priority Lien in and to
such other Collateral as the Administrative Agent may require;
(xxi) evidence that all insurance required to be maintained pursuant
to the Loan Documents has been obtained and is in effect; and endorsements
naming the Administrative Agent (on behalf of the Lenders and the other
Secured Parties) as an additional insured or loss payee, as the case may
be, on all such insurance policies maintained with respect to properties of
any Loan Party constituting part of the Collateral;
(xxii) a duly completed Compliance Certificate as of the last day of
the fiscal quarter of the Borrower ended on June 27, 2005, signed by a
Responsible Officer of the Borrower;
(xxiii) evidence that the Existing Indebtedness has been or
concurrently with the Closing Date is being paid in full, all credit
facilities listed on Schedule 1.01E have been or concurrently with the
Closing Date are being terminated and all Liens securing obligations under
55
the Existing Indebtedness have been or concurrently with the Closing Date
are being released;
(xxiv) evidence satisfactory to the Administrative Agent that all
taxes, filing fees and recording fees and other related transaction costs
have been paid; and
(xxv) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer or the Required
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have
paid all fees, charges and disbursements of counsel to the Administrative Agent
to the extent invoiced prior to or on the Closing Date, plus such additional
amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
(d) The Closing Date shall have occurred on or before October 31, 2005.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to
honor any Request for Credit Extension (other than a Loan Notice requesting only
a conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower and each other Loan
Party contained in Article V or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section
4.02, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall have
received a Request for Credit Extension in accordance with the requirements
hereof.
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Each Request for Credit Extension (other than a Loan Notice requesting only
a conversion of Loans to the other Type or a continuation of Eurodollar Rate
Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan
Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation (including any Franchise
Agreement) to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law. Each
Loan Party is in compliance with all Contractual Obligations referred to in
clause (b)(i), except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by each
Loan Party that is party thereto. This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party
thereto in accordance with its terms.
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5.05 Financial Statements; No Material Adverse Effect; No Internal Control
Event.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated June 27, 2005, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the Borrower
and its Subsidiaries as of the date thereof and their results of operations for
the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. Schedule 5.05
sets forth all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the date of
such financial statements, including liabilities for taxes, material commitments
and Indebtedness.
(c) Except as set forth on Schedule 5.05(c), since the date of the Audited
Financial Statements, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.
(d) Since the date of the Audited Financial Statements, no Internal
Control Event has occurred.
(e) The consolidated forecasted balance sheet and statements of income and
cash flows of the Borrower and its Subsidiaries delivered pursuant to Section
6.01(c) were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions existing at the
time of delivery of such forecasts, and represented, at the time of delivery,
the Borrower's best estimate of its future financial performance.
5.06 Litigation. Except as set forth on Schedule 5.06, there are no
actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Borrower after due and diligent investigation, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Authority, by or
against the Borrower or any of its Subsidiaries or against any of their
properties or revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions contemplated hereby, or
(b) either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
5.07 No Default. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
58
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary
has good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than
Liens permitted by Section 7.01.
5.09 Environmental Compliance. There are no Environmental Laws that could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. There are no claims alleging potential liability or
responsibility for violation of any Environmental Law on the respective
businesses, operations or properties of the Borrower or any Subsidiary, which
claims could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.10 Insurance. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
5.11 Taxes. Except as set forth on Schedule 5.11, the Borrower and its
Subsidiaries have filed all Federal, state and other material tax returns and
reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax
sharing agreement.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
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(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests. The Borrower has no Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens. The Borrower
has no equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13. All of the outstanding
Equity Interests in each Subsidiary have been validly issued, are fully paid and
nonassessable and are owned by the Persons and in the respective amounts
specified on Part (c) of Schedule 5.13 free and clear of all Liens.
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
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delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
5.16 Compliance with Laws. Each of the Borrower and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 Intellectual Property; Licenses, Etc. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person. No claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Borrower, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.18 Collateral.
(a) All of the Collateral is owned by the grantor of the security interest
therein in favor of the Administrative Agent free of any title defects or any
Liens or interests of others, except for the liens and security interests of the
Administrative Agent and other Permitted Liens. All of the furniture, fixtures
and equipment used in connection with the Business are located at the Unit
Locations, except for individual items requiring repair away from the applicable
Unit Location.
(b) The Liens and security interests granted to the Administrative Agent
(for the benefit of the Administrative Agent, Lenders hereunder and certain
Affiliates of the Lenders) are valid first priority Liens and security interests
in the Collateral (subject only to Permitted Liens), and each has been perfected
in accordance with the requirements of all states in which any item of the
Collateral is located or any Loan Party is organized to the extent that the
filing of UCC financing statements or the recording of the Mortgages is
sufficient to perfect such lien or security interest. The Administrative Agent
has a perfected security interest in, or Lien on, substantially all of the
Collateral.
5.19 Locations of Loan Parties. Each Loan Party's correct legal name, type
of organization, jurisdiction of organization, state organization number and
federal employers identification number are set forth on Schedule 5.19. Each
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Loan Party's chief executive office is located at the address set forth in
Schedule 5.19. Borrower shall immediately report to the Administrative Agent any
change in any of (a) any Loan Party's name, type of organization, state of
organization or organization number, (b) the location of any Loan Party's chief
executive office, or (c) the location of any material Collateral.
5.20 Franchise Agreements. There is a Franchise Agreement in force for each
Unit Location, each Franchise Agreement is in full force and effect without
amendment or modification from the form or copy delivered to Lenders except for
amendments permitted hereunder; no default by any party exists under any
Franchise Agreement that could result in termination of such Franchise
Agreement, nor has any event occurred which, with the passage of time or the
giving of notice, or both, would constitute such a default. Schedule 1.01F is a
complete and correct listing of all Franchise Agreements as of the Closing Date
and which will remain outstanding after the Closing Date.
5.21 Leases. There is a Lease in force for each Unit Location which is
ground leased or Space Leased by any Loan Party, each Lease is in full force and
effect without amendment or modification from the form or copy delivered to
Lenders except for amendments permitted hereunder; no default by any party
exists under any such Lease that could result in termination of such Lease, nor
has any event occurred which, with the passage of time or the giving of notice,
or both, would constitute such a default. Schedule 1.01G is a complete and
correct listing of all Leases as of the Closing Date and which will remain
outstanding after the Closing Date.
5.22 Material Management Agreements. Each of the Material Management
Agreements is full force and effect without amendment or modification from the
copy delivered to the Lenders; no default by any party exists under any such
Material Management Agreement that could result in the termination of such
agreement, nor has any event occurred which, with the passage of time or the
giving of notice, or both, would constitute such a default.
5.23 Solvency. Both before and after giving effect to the Loans hereunder,
each Loan Party is Solvent.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event by the date on which
consolidated financial statements for such period are required to be delivered
to the SEC under the Securities Laws (without regard to any extensions of such
date permitted by the Securities Laws for which any special application is
required), a consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such fiscal year, and the related consolidated statements of
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income or operations, shareholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by (i) a report and opinion of a Registered Public
Accounting Firm of nationally recognized standing reasonably acceptable to the
Required Lenders (the "Public Accountants") as to whether such financial
statements are free of material misstatement, which report and opinion shall be
prepared in accordance with audit standards of the Public Company Accounting
Oversight Board and applicable Securities Laws and shall not be subject to any
"going concern" or like qualification or exception or any qualification or
exception as to the scope of such audit or with respect to the absence of
material misstatement and (ii) an attestation report of such Registered Public
Accounting Firm as to the Borrower's internal controls pursuant to Section 404
of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ expressing a conclusion of which the Required Lenders do not
object;
(b) as soon as available, but in any event by the date on which
consolidated financial statements for such period are required to be delivered
to the SEC under the Securities Laws (without regard to any extensions of such
date permitted by the Securities Laws for which any special application is
required), a consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal
quarter and for the portion of the Borrower's fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results of
operations, shareholders' equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;
(c) as soon as available, but in any event by January 31 of each calendar
year, the internal budget prepared by management of the Borrower, in form
satisfactory to the Administrative Agent and the Required Lenders, of
consolidated balance sheets and statements of income or operations and cash
flows of the Borrower and its Subsidiaries on a quarterly basis for the current
fiscal year (including the fiscal year in which the Maturity Date occurs); and
(d) as soon as available, but in any event by the date on which the
Borrower delivers financials pursuant to Sections 6.01(a) and 6.01(b) above,
store level statements of income with respect to each Restaurant, such
statements of income to be certified by a Responsible Officer of the Borrower
and fairly presenting the profits and/or losses of each Restaurant.
The requirements of Sections 6.01(a) and 6.01(b) (other than the
requirements of Section 6.01(a)(i) or (ii)) shall be satisfied if the Borrower
delivers to the Administrative Agent (no later than the respective dates such
financial statements are required to be delivered to the SEC under applicable
Securities Laws) any financial statements required to be delivered to the SEC,
including each annual report on Form 10-K, and each quarterly report on Form
10-Q; provided, however, that (x) any such annual report shall be accompanied by
a report and opinion of the Public Accountants satisfying the requirements of
clause (i) of Section 6.01, (y) any such quarterly report shall be accompanied
by a certificate of a Responsible Officer of the Borrower satisfying the
requirements of Section 6.01(b), and (z) upon review of any such report or
63
financial statement, the Administrative Agent or any Lender may request
additional information and detail from the Borrower regarding such reports or
financial statements.
6.02 Certificates; Other Information. Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the Administrative Agent and
the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower;
(b) promptly after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(c) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished to the Lenders
pursuant to Section 6.01 or any other clause of this Section 6.02;
(e) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof;
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request;
(g) promptly, any notice of any environmental action, proceeding or
liability, ERISA Event or tax action, proceeding or liability; and
(h) promptly, any notice of any other material litigation or material
judicial or governmental proceeding, or any material investigation, action or
liability whether direct or contingent.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
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delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its
securities) (each, a "Public Lender"). The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC", the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Platform
designated "Public Investor"; and (z) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked "PUBLIC"
as being suitable only for posting on a portion of the Platform not designated
"Public Investor".
6.03 Notices. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
65
suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of the Public Accountants' determination (in connection with its
preparation of its report under Section 6.01(a)) or the Borrower's determination
of the occurrence or existence of any Internal Control Event;
(e) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary; and
(f) any default under any Franchise Agreement, any Lease, or any Material
Management Agreement.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04 Payment of Obligations. Pay and discharge as the same shall become due
and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property;
and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.05 Preservation of Existence, Etc. Preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.04 or 7.05; (b) take all reasonable action to maintain all charter and
statutory rights and all privileges, permits, licenses, approvals and franchises
necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
6.06 Maintenance of Properties. Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in
good working order and condition, ordinary wear and tear excepted; (b) make all
necessary repairs thereto and renewals and replacements thereof except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
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6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage (including
business interruption insurance) of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons and providing for not less than 30 days' prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.
6.08 Compliance with Laws. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 Books and Records. (a) Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
6.10 Inspection Rights. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records located at
the Borrower's executive offices, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Borrower
and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists, the Administrative Agent or any
Lender may visit any Restaurant and inspect the corporate, financial and
operating records located at such Restaurant; and provided further, that when an
Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may take any of the
actions described in this Section 6.10 at the expense of the Borrower at any
time during normal business hours and without advance notice.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions (i) to
refinance certain existing indebtedness of the Borrower and its subsidiaries,
(ii) to fund the development of new T.G.I. Friday's Restaurant locations; and
(iii) to expend for working capital, capital expenditures, and other general
corporate purposes not in contravention of any Law or of any Loan Document.
6.12 New Subsidiaries. If the Required Lenders agree, pursuant to Section
7.15 and Section 10.01 to permit the Borrower or a Subsidiary to acquire or
create a new Subsidiary, then, within 30 days of the acquisition or creation of
such Subsidiary, the Borrower shall (and shall cause its Subsidiaries to) cause
to be delivered to the Administrative Agent for the benefit of the Lenders each
of the following (in form and substance satisfactory to the Administrative
Agent):
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(a) with respect to such Subsidiary:
(i) a Guaranty Joinder Agreement and Security Joinder Agreement;
(ii) with respect to each Restaurant or other real property owned by
such Subsidiary: (A) the Mortgage and evidence of the proper recordation of
each such Mortgage (or the delivery of any such Mortgage to the applicable
title insurance company for recordation, on or immediately after the date
of such delivery to such company) in the appropriate filing office, and (B)
the Owned Real Estate Support Documents with respect to such Restaurant or
other real property;
(iii) with respect to each Restaurant or other real property that is
ground leased by such Subsidiary: (A) the Mortgage and a memorandum of
lease for such Restaurant or other real property, and evidence of the
proper recordation of each such Mortgage and memorandum of lease (or the
delivery of any such Mortgage or memorandum of lease to the applicable
title insurance company for recordation, on or immediately after the date
of delivery thereof) in the appropriate filing office, and (B) the Ground
Leased Real Estate Support Documents with respect to such Restaurant or
other real property;
(iv) with respect to each Restaurant or other real property that is
Space Leased by such Subsidiary: (A) the Assignment of Leases and a
memorandum of lease for such Restaurant or other real property, and
evidence of the proper recordation of each such Assignment of Leases and
memorandum of lease (or the delivery of any such Assignment of Leases or
memorandum of lease to the applicable title insurance company for
recordation, on or immediately after the date of such Borrowing) in the
appropriate filing office with respect to such Restaurant or other real
property, and (B) the Space Leased Real Estate Support Documents with
respect to such Restaurant or other real property;
(v) a copy of each Lease with respect to each Unit Location leased by
the Subsidiary;
(vi) a copy of each Franchise Agreement with respect to each Unit
Location owned or leased by the Subsidiary;
(b) such Uniform Commercial Code financing statements or other documents
as are required to perfect the security interest of the Secured Parties in the
Collateral;
(c) (subject to Section 2.03(a)(iii)) opinions of counsel to the
Subsidiary dated as of the date of delivery of the Guaranty Joinder Agreement or
Security Joinder Agreement, as applicable, and addressed to the Administrative
Agent and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent;
(d) documents of the types identified in Section 4.01(iii) and (iv) as
appropriate to such Subsidiary; and
(e) evidence satisfactory to the Administrative Agent that all taxes,
filing fees and recording fees and other related transaction costs have been
paid/.
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6.13 New Unit Location and Other Real Property. Give the Administrative
Agent prompt notice of the acquisition or lease of any new Unit Location or
other real property by any Loan Party and within 30 days of the acquisition or
lease of any such Unit Location or other real property, cause to be delivered to
the Administrative Agent for the benefit of the Lenders each of the following
(in form and substance satisfactory to the Administrative Agent) (without
limiting any requirements of Section 4.02(d) or (e)):
(i) such environmental due diligence with respect to the applicable
Restaurant or other real property as shall be reasonably requested by the
Administrative Agent;
(ii) if such Restaurant or other real property is owned by any Loan
Party: (A) the Mortgage and evidence of the proper recordation of each such
Mortgage (or the delivery of any such Mortgage to the applicable title
insurance company for recordation, on or immediately after the Closing
Date) in the appropriate filing office, and (B) the Owned Real Estate
Support Documents with respect to such Restaurant or other real property;
(iii) if such Restaurant is ground leased by any Loan Party: (A) the
Mortgage and a memorandum of lease for such Restaurant or other real
property, and evidence of the proper recordation of each such Mortgage and
memorandum of lease (or the delivery of any such Mortgage or memorandum of
lease to the applicable title insurance company for recordation, on or
immediately after the date of such Borrowing) in the appropriate filing
office, and (B) the Ground Leased Real Estate Support Documents with
respect to such Restaurant or other real property;
(iv) if such Restaurant or other real property is Space Leased by any
Loan Party: (A) the Assignment of Leases and a memorandum of lease for such
Restaurant or other real property, and evidence of the proper recordation
of each such Assignment of Leases and memorandum of lease (or the delivery
of any such Assignment of Leases or memorandum of lease to the applicable
title insurance company for recordation, on or immediately after the date
of such Borrowing) in the appropriate filing office with respect to such
Restaurant or other real property, and (B) the Space Leased Real Estate
Support Documents with respect to such Restaurant or other real property;
(v) such Uniform Commercial Code financing statements or other
documents as are required to perfect the security interest of the Secured
Parties in such Restaurant or other real property;
(vi) opinions of counsel to the applicable Loan Party dated as of the
date of delivery of such Mortgage or Assignment of Lease, and addressed to
the Administrative Agent and the Lenders, in form and substance reasonably
acceptable to the Administrative Agent;
(vii) a copy of each Lease with respect to such Restaurant or other
real property;
(viii) a copy of each Franchise Agreement with respect to such
Restaurant or other real property; and
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(ix) evidence satisfactory to the Administrative Agent that all taxes,
filing fees and recording fees and other related transaction costs have
been paid.
6.14 Franchise Agreements, Leases and Other Material Contracts. (a) At all
times, comply in all material respects with the terms and provisions of the
Franchise Agreements and Leases of the Unit Locations and any other material
contracts of any Borrower or any Loan Party, and to cause the Franchise
Agreements and Leases of the Unit Locations to be kept in full force and effect
without termination, amendment or modification, except for (i) renewals or
extensions on substantially the same terms as the existing Franchise Agreement
or Lease of the Unit Location, or (ii) as otherwise approved by the
Administrative Agent in writing, which approval shall not be unreasonably
withheld.
(b) No Loan Party shall cause or permit any Franchise Agreement to expire
in accordance with its terms, unless (i) such Loan Party obtains a replacement
Franchise Agreement on substantially the same terms as the expiring Franchise
Agreement or (ii) the Administrative Agent otherwise consents in writing, such
consent not to be unreasonably withheld.
(c) If any Loan Party acquires fee title to any Unit Location which was
theretofore subject to a Lease on the Closing Date or thereafter, such Loan
Party will grant (as soon as practicable and, in any event, within ten (10)
days) the Administrative Agent a first priority mortgage or deed of trust lien
thereon, and deliver to the Administrative Agent the Owned Real Estate Support
Documents.
6.15 Interest Rate Protection. At all times after the Closing Date, the
Borrower shall maintain Swap Contracts providing interest rate protection
containing terms and conditions satisfactory to the Administrative Agent which
limit the risk of interest rate fluctuations, which Swap Contracts shall be in
an aggregate notional amount of not less than fifty percent (50%) of the
Outstanding Amount of the Term Loan.
6.16 Material Management Agreements. The Borrower shall, at all times,
comply in all material respects with the terms and provisions of each Material
Management Agreement, and to cause each Material Management Agreement to be kept
in full force and effect without termination, amendment or modification, except
for the termination of any Material Management Agreement in accordance with its
terms or as otherwise approved by the Administrative Agent in writing.
6.17 Internal Control Events. Upon notification from the Administrative
Agent to the Borrower that the Required Lenders require remediation of any
Internal Control Event of which they have received notice pursuant to Section
6.03(e) or as reported in any report delivered pursuant to Section 6.01(a),
remediate or cause to be remediated such Internal Control Event, and to test and
confirm such remediation, not later than the end of the time period reasonably
agreed by the Required Lenders with the Company as necessary for such
remediation (the "Remediation Period"). It is understood that the Remediation
Period will require a sufficient period of time to permit testing required by
the relevant Securities Laws.
6.18 Leases and Franchise Agreements for Excluded Restaurants. Within
forty-five (45) days following the Closing Date, deliver to the Administrative
Agent (a) a copy of each Lease in effect as of such date with respect to any
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Excluded Restaurant, each of which Leases shall be certified by a Responsible
Officer of the Borrower, and (b) a copy of each Franchise Agreement in effect as
of such date with respect to any Excluded Restaurant, each of which Franchise
Agreements shall be certified by a Responsible Officer of the Borrower.
6.19 Additional Subsidiary Securities. Within thirty (30) days of the
termination of the CNL Facility, cause to be delivered to the Administrative
Agent each of the following (in form and substance satisfactory to the
Administrative Agent):
(a) such stock certificates and related powers in blank or other documents
as are required to perfect the security interest of the Administrative Agent (on
behalf of the Lenders) in the Subsidiary Securities of Main St. California,
Inc., Main St. Midwest, Inc and Cornerstone Productions, Inc.;
(b) opinions of counsel to the Borrower dated as of the date of delivery
of such Subsidiary Securities, and addressed to the Administrative Agent;
(c) such Uniform Commercial Code financing statements or other documents
as are required to perfect the security interest of the Lenders in such
Subsidiary Securities.
6.20 Excluded West Sahara Restaurant. Within forty-five (45) days following
the Closing Date, cause to be delivered to the Administrative Agent for the
benefit of the Lenders each of the following (in form and substance satisfactory
to the Administrative Agent) (without limiting any requirements of Section
4.02(d) or (e)):
(i) such environmental due diligence with respect to the Excluded
West Sahara Restaurant as shall be reasonably requested by the
Administrative Agent;
(ii) if the Excluded West Sahara Restaurant is owned by any Loan
Party: (A) the Mortgage and evidence of the proper recordation of such
Mortgage (or the delivery of such Mortgage to the applicable title
insurance company for immediate recordation) in the appropriate filing
office, and (B) the Owned Real Estate Support Documents with respect to the
Excluded West Sahara Restaurant;
(iii) if the Excluded West Sahara Restaurant is ground leased by any
Loan Party: (A) the Mortgage and a memorandum of lease for the Excluded
West Sahara Restaurant, and evidence of the proper recordation of such
Mortgage and memorandum of lease (or the delivery of such Mortgage or
memorandum of lease to the applicable title insurance company for immediate
recordation) in the appropriate filing office, and (B) the Ground Leased
Real Estate Support Documents with respect to the Excluded West Sahara
Restaurant;
(iv) if the Excluded West Sahara Restaurant is Space Leased by any
Loan Party: (A) the Assignment of Leases and a memorandum of lease for the
Excluded West Sahara Restaurant, and evidence of the proper recordation of
such Assignment of Leases and memorandum of lease (or the delivery of such
Assignment of Leases or memorandum of lease to the applicable title
insurance company for immediate recordation) in the appropriate filing
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office with respect to the Excluded West Sahara Restaurant, and (B) the
Space Leased Real Estate Support Documents with respect to the Excluded
West Sahara Restaurant;
(v) such Uniform Commercial Code financing statements or other
documents as are required to perfect the security interest of the Secured
Parties in the Excluded West Sahara Restaurant;
(vi) opinions of counsel to the applicable Loan Party dated as of the
date of delivery of such Mortgage or Assignment of Lease, and addressed to
the Administrative Agent and the Lenders, in form and substance reasonably
acceptable to the Administrative Agent;
(vii) a copy of each Lease with respect to the Excluded West Sahara
Restaurant;
(viii) a copy of each Franchise Agreement with respect to the Excluded
West Sahara Restaurant; and
(b) evidence satisfactory to the Administrative Agent that all taxes,
filing fees and recording fees and other related transaction costs have been
paid.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
72
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h); and
(i) Liens securing Indebtedness permitted under Section 7.03(e); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition.
7.02 Investments. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of
cash equivalents or short-term marketable debt securities or obligations of the
United States;
(b) advances to officers, directors and employees of the Borrower and
Subsidiaries in an aggregate amount not to exceed $50,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of the Borrower in any Guarantor and Investments of any
Guarantor in the Borrower or in another Guarantor;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss; and
(e) Guarantees permitted by Section 7.03.
7.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule
7.03 and any refinancings, refundings, renewals or extensions thereof; provided
that (i) the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
73
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in
any material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;
(c) Guarantees of the Borrower or any Guarantor in respect of Indebtedness
otherwise permitted hereunder of the Borrower or any other Guarantor;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations
and purchase money obligations for fixed or capital assets within the
limitations set forth in Section 7.01(i); provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall not exceed
$1,000,000;
(f) Indebtedness under the CNL Facility; and
(g) Indebtedness under Swap Contracts set forth on Schedule 7.03.
7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, provided that when any Guarantor is merging with another
Subsidiary, the Guarantor shall be the continuing or surviving Person; and
(b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor.
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7.05 Dispositions. Make any Disposition or enter into any agreement to make
any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition (A) are applied in
accordance with Section 2.05(c)(i) or (B) to the extent permitted by Section
2.05(c)(i), are reasonably promptly applied to the purchase price of such
replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; provided that if the transferor of such property is a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
and
(e) Dispositions permitted by Section 7.04;
provided, however, that any Disposition pursuant to clauses (a) through (e)
shall be for fair market value.
The foregoing notwithstanding, the Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly, dispose of any T.G.I. Friday's
Restaurant (other than six (6) restaurants in the aggregate, of which no more
than four (4) may be located in Kansas City, Kansas or Kansas City, Missouri and
no more than two (2) may be located outside Kansas City, Kansas and Kansas City,
Missouri) after the Closing Date.
7.06 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or issue or sell any Equity Interests, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or
would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower, the
Guarantors and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person;
(c) (subject to Section 2.05(c)(iii)) the Borrower and each Subsidiary may
purchase, redeem or otherwise acquire Equity Interests issued by it with the
proceeds received from the substantially concurrent issue of new shares of its
common stock or other common Equity Interests;
75
(d) the Borrower may issue and sell shares of its common stock, so long as
the Net Cash Proceeds thereof are applied to the prepayment of the Loans
pursuant to Section 2.05(c)(iii);
(e) Permitted Equity Issuances; and
(f) the Borrower may issue additional shares of its common stock to the
holders of Permitted Stock Rights pursuant to the exercise of such rights by
such holders, or, in lieu of issuing such additional shares, the Borrower may
repurchase such Permitted Stock Rights from such holders in accordance with the
terms of such rights.
7.07 Change in Nature of Business. (a) Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto; or (b) own, lease or operate any Restaurant other
than (i) the Restaurants existing on the Closing Date and identified on Schedule
1.01J, or (ii) any T.G.I. Friday's Restaurant constructed or acquired in
accordance with Section 6.12 or 6.13.
7.08 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among the Borrower and any Guarantor or between and
among any Guarantors.
7.09 Burdensome Agreements. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i)
of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor
or to otherwise transfer property to the Borrower or any Guarantor, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of (A)
Indebtedness permitted by Section 7.03(b) that financed any Excluded Restaurant
or (B) Indebtedness permitted by Section 7.03(e) or (f), in each case of clause
(A) or (B), solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires the
grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.
7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
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7.11 Financial Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at
any time to be greater than 3.00 to 1.00.
(b) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio as
of the last day of any period of four fiscal quarters of the Borrower set forth
below to be less than the ratio set forth below opposite such period:
Minimum
Fixed Charge
Four Fiscal Quarters Ending Coverage Ratio
----------------------------------------------------------------- -------------------------------------
Closing Date through September 2006 Quarter End 1.15 to 1.00
Day after September 2006 Quarter End through September 2007
Quarter End 1.20 to 1.00
Day after September 2007 Quarter End and at all times thereafter
1.25 to 1.00
7.12 Capital Expenditures. (a) Make or become legally obligated to make any
expenditure in respect of the purchase or other acquisition of any fixed or
capital asset to be used for the development of new T.G.I. Friday's Unit
Locations or remodeling of existing Unit Locations (excluding normal
replacements and maintenance which are properly charged to current operations),
except for capital expenditures in the ordinary course of business not exceeding
$15,000,000 in the aggregate for the Borrower and its Subsidiaries during any
twelve-month period (of which amount not more than $3,000,000 may be used to
acquire or develop new Bamboo Club Restaurants in accordance with Section
7.17(b)); provided, however, that expenditures for the purchase or other
acquisition of any fixed or capital asset to be used for the development of new
T.G.I. Friday's Unit Locations permitted by this Section 7.12 shall be made by
the Borrower or any Subsidiary of the Borrower (other than Main St. California,
Inc., Main St. Midwest, Inc. and Cornerstone Productions, Inc.); provided that
in the event such Subsidiary is not otherwise a Loan Party, the Required Lenders
must agree pursuant to Section 7.15 and Section 10.01 to permit the Borrower or
Subsidiary to acquire or create such new Subsidiary, and such Subsidiary shall
have met the requirements set forth in Section 6.12 prior to any such
expenditure.
(b) Make or become legally obligated to make any expenditure in respect of
the purchase or other acquisition of any fixed or capital asset to be used in
the development of any new Unit Locations (other than T.G.I. Friday's Unit
Locations).
7.13 Management Agreements. No Loan Party shall enter into, amend, modify
or terminate any management agreement (other than the Material Management
Agreements), or incur any management fees, without the Administrative Agent's
consent. After the occurrence and during the continuance of an Event of Default,
the Loan Parties will enter into any and all management agreements (on the form
approved by the Administrative Agent) with the Franchisor as the Administrative
Agent shall request in its sole discretion.
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7.14 General Partner. No Loan Party shall become a general partner, either
directly or indirectly, in any partnership.
7.15 Acquisitions; New Subsidiaries. (a) Enter into any agreement,
contract, binding commitment or other arrangement providing for any Acquisition,
or take any action to solicit the tender of securities or proxies in respect
thereof in order to effect any Acquisition.
(b) Form, create or acquire any new Subsidiary.
7.16 Management of the Borrower. Permit, at any time, the Borrower to be
managed by any Person or Persons other than the Key Management Team and such
other management personnel as are approved the Administrative Agent.
7.17 New Unit Locations. Acquire or develop any new Unit Location other
than (a) T.G.I. Friday's Unit Locations or (b) Bamboo Club Unit Locations,
provided that (1) no purchase commitment or lease commitment for a new Bamboo
Club Unit Location may be entered into prior to January 1, 2007, (2) no more
than two Bamboo Club Unit Locations may be acquired or developed after the
Closing Date, and (3) no more than one Bamboo Club Unit Location may be acquired
or developed in any fiscal year of the Borrower.
7.18 Prepayments, etc. of Indebtedness.
(a) Except as permitted under Section 4.01(a)(xxiii), prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination terms of,
any Indebtedness (including the CNL Facility) other than the Obligations
hereunder; or
(b) Amend, modify or change in any manner any term or condition of any
Indebtedness described in Section 7.03 (including the CNL Facility) or any lease
so that the terms and conditions thereof are less favorable to the Agent and the
Lenders than the terms of such Indebtedness or leases as of the Closing Date.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or
(iii) within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10,
6.11, or Article VII, or with any requirement to provide notice contained in
Section 6.12 or 6.13 or any Guarantor fails to perform or observe any term,
covenant or agreement contained in the Guaranty; or
78
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or (iii) the Borrower or any Subsidiary defaults in the
performance of any other Contractual Obligations which defaults described in
this clause (iii) have, or could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution
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or similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any Subsidiary (i)
a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document, at
any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral. The Administrative Agent (for the benefit of the Secured
Parties) fails to have an enforceable first priority, perfected Lien on or
security interest in any of the Collateral (subject only to Permitted Liens); or
any Loan Party claims that the Administrative Agent (for the benefit of the
Secured Parties) does not have an enforceable first priority, perfected Lien on
or security interest in any such Collateral (subject only to Permitted Liens);
or
(m) Franchise Agreements; Leases. There shall occur any default under any
Franchise Agreement or any Lease of any Unit Location and (i) such default
continues for 30 days or (ii) could reasonably be expected to result in the
termination of such Franchise Agreement or Lease.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
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(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of
Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuer
(including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) and amounts payable under Article III), ratably among
them in proportion to the respective amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and
other Obligations, ratably among the Lenders and the L/C Issuer in proportion to
the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
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Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Sixth, to payment of Obligations consisting of liabilities under any
Related Credit Arrangement with any Lender or any Affiliate of a Lender party to
a Related Credit Arrangement and as to which the Administrative Agent has
received notice of the amounts owed thereunder from the applicable Lender or any
Affiliate of a Lender party to a Related Credit Arrangement, such payments under
this clause Sixth to be allocated on a pro rata basis according to such amounts
owed as to which the Administrative Agent has received such notice; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
9.02 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
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(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
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notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other
Loan Document by or through any one or more subagents appointed by the
Administrative Agent. The Administrative Agent and any such subagent may perform
any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall
apply to any such subagent and to the Related Parties of the Administrative
Agent and any such subagent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of any Secured
Party under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
retiring Administrative Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall continue in
effect for the benefit of such retiring Administrative Agent, its subagents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
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Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer, (b) the retiring L/C Issuer
shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents, and (c) the successor L/C Issuer shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to the retiring
L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of the Book Managers or Arrangers listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise.
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii)
subject to Section 10.01, if approved, authorized or ratified in writing by the
Required Lenders;
(b) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by Section 7.01(i); and
(c) to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
9.10.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
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(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Revolving Credit Commitment or Term Loan
Commitment of any Lender (or reinstate any Revolving Credit Commitment or Term
Loan Commitment terminated pursuant to Section 8.02) without the written consent
of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Revolving Lenders (or any of them) or any scheduled or
mandatory reduction of the Aggregate Revolving Credit Commitments hereunder or
under any other Loan Document without the written consent of each Revolving
Lender directly affected thereby;
(d) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Term Loan Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Term Loan Lender
directly affected thereby;
(e) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iii) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document, or change the manner of computation of any financial ratio
(including any change in any applicable defined term) used in determining the
Applicable Rate that would result in a reduction of any interest rate on any
Loan or any fee payable hereunder without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of "Default Rate" or
to waive any obligation of the Borrower to pay interest or Letter of Credit Fees
at the Default Rate;
(f) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(g) change any provision of this Section or the definition of "Required
Lenders", "Required Revolving Lenders" or "Required Term Loan Lenders", or any
other provision hereof specifying the number or percentage of Lenders required
to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; or
(h) release (i) any Guarantor from the Guaranty or (ii) any Collateral, in
each case without the written consent of each Lender; provided, however, that
the Administrative Agent may release any Lien on any real or personal property
that is sold or transferred in accordance with Section 7.05 to a Person other
than the Borrower or any Subsidiary;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
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Loan Document; (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent or the L/C Issuer,
to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
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posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent
and the L/C Issuer may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent and the L/C Issuer. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
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10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of the Administrative Agent, any
Lender or the L/C Issuer, in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit; provided that (in the case of clauses (i)
and (ii) above) certain fees of ▇▇▇▇▇ Mulliss & Wicker, PLLC, as counsel to the
Administrative Agent and Banc of America Securities LLC ("BAS"), will be subject
to a cap in accordance with (and subject to the assumptions and qualifications
set forth in) the Memorandum attached as Exhibit A to the letter agreement dated
July 27, 2005 among Bank of America, BAS and the Borrower.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any subagent thereof), each Lender and the L/C Issuer,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (including the
fees, charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby
or, in the case of the Administrative Agent (and any subagent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
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proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower or any other Loan Party against an Indemnitee for breach in bad faith
of such Indemnitee's obligations hereunder or under any other Loan Document, if
the Borrower or such Loan Party has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any subagent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
subagent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such subagent) or the L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting
for the Administrative Agent (or any such subagent) or L/C Issuer in connection
with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
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(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of
the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender,
or the Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment
and the Revolving Loans at the time owing to it, or all or a portion of its Term
Loan Commitment and its Pro Rata Term Share of the Term Loan at the time owing
to it) (such Lender's portion of Loans, Commitments and risk participations with
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respect to each of the Revolving Credit Facility and the Term Loan Facility
(each, an "Applicable Facility") being referred to in this Section 10.07 as its
"Applicable Share"); provided, that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Applicable Share of the Applicable
Facility at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Applicable Share (which for this
purpose includes Loans outstanding thereunder) with respect to the
Applicable Facility, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than (A) $5,000,000
with respect to the Revolving Credit Facility and (B) $1,000,000 with
respect to the Term Loan Facility, unless in either case each of the
Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that concurrent
assignments to members of an Assignee Group or to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group)
will be treated as a single assignment for purposes of determining whether
such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned;
(iii) any assignment of a Revolving Credit Commitment must be approved
by the Administrative Agent and the L/C Issuer unless the Person that is
the proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set forth
in Schedule 10.06, and the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
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rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving Credit
Commitment or Pro Rata Term Share of, and principal amounts of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each of the Borrower
and the L/C Issuer at any reasonable time and from time to time upon reasonable
prior notice. In addition, at any time that a request for a consent for a
material or substantive change to the Loan Documents is pending, any Lender may
request and receive from the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and/or the Loans (including such
Lender's participations in L/C Obligations) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
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participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as L/C Issuer after Assignment. Notwithstanding anything
to the contrary contained herein, if at any time Bank of America assigns all of
its Commitment and Loans pursuant to subsection (b) above, Bank of America may,
upon 30 days' notice to the Borrower and the Lenders, resign as L/C Issuer. In
the event of any such resignation as L/C Issuer, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer, as the case may be. If
Bank of America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Revolving Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). Upon the appointment of a
successor L/C Issuer, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring L/C Issuer, and
(b) the successor L/C Issuer shall issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such successor or make
other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.
10.07 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
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similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, after obtaining the
prior written consent of the Administrative Agent, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from
the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender, the L/C Issuer or their respective Affiliates may
have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
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10.09 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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10.13 Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(a) unless such fee is waived by the Administrative Agent, the Borrower
shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
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SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO AGREES THAT SERVICE OF PROCESS
MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH ACTION OR PROCEEDING OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MAIN STREET RESTAURANT GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and Assistant
Secretary
Main Street Restaurant Group, Inc.
Credit Agreement Signature Page
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Assitant Vice President
----------------------------------------
Main Street Restaurant Group, Inc.
Credit Agreement Signature Page
BANK OF AMERICA, N.A., as a Lender and L/C Issuer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------------------
Title: Managing Director
-------------------------------------------
Main Street Restaurant Group, Inc.
Credit Agreement Signature Page
GE CAPITAL FRANCHISE FINANCE CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Vice President
-----------------------------------------------
Main Street Restaurant Group, Inc.
Credit Agreement Signature Page
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Title: Managing Director
-----------------------------------------------
Main Street Restaurant Group, Inc.
Credit Agreement Signature Page