EXHIBIT 10.1
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$720,000,000
CREDIT AGREEMENT
Dated as of July 25, 2005
among
ARBY'S RESTAURANT GROUP, INC.
as Borrower
ARBY'S RESTAURANT HOLDINGS, LLC
as Co-Borrower
TRIARC RESTAURANT HOLDINGS, LLC
as Parent
and
THE LENDERS AND ISSUERS PARTY HERETO
and
CITICORP NORTH AMERICA, INC.
as Administrative Agent and Collateral Agent
and
BANK OF AMERICA, N.A.
and
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
as Co-Syndication Agents
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
SUNTRUST BANK
and
GE CAPITAL FRANCHISE FINANCE CORPORATION
as Co-Documentation Agents
CITIGROUP GLOBAL MARKETS INC.,
BANC OF AMERICA SECURITIES LLC
and
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
as Joint Lead Arrangers and Joint Book-Running Managers
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
Section 1.1 Defined Terms..................................................2
Section 1.2 Computation of Time Periods...................................46
Section 1.3 Accounting Terms and Principles...............................46
Section 1.4 Resolution of Drafting Ambiguities............................46
Section 1.5 Certain Terms.................................................46
ARTICLE II
THE FACILITIES
Section 2.1 The Commitments...............................................47
Section 2.2 Borrowing Procedures..........................................48
Section 2.3 Swing Loans...................................................49
Section 2.4 Letters of Credit.............................................52
Section 2.5 Termination of the Commitments................................57
Section 2.6 Repayment of Loans............................................58
Section 2.7 Evidence of Debt..............................................58
Section 2.8 Optional Prepayments..........................................59
Section 2.9 Mandatory Prepayments.........................................60
Section 2.10 Interest......................................................62
Section 2.11 Conversion/Continuation Option................................63
Section 2.12 Fees..........................................................64
Section 2.13 Payments and Computations.....................................65
Section 2.14 Special Provisions Governing Eurodollar Rate Loans............67
Section 2.15 Capital Adequacy..............................................68
Section 2.16 Increased Costs...............................................69
Section 2.17 Taxes.........................................................69
Section 2.18 Substitution of Lenders.......................................71
Section 2.19 Facilities Increase...........................................73
Section 2.20 Escrow Account................................................75
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit...75
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit........81
Section 3.3 Determinations of Initial Borrowing Conditions................81
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Corporate Existence; Compliance with Law......................82
Section 4.2 Corporate Power; Authorization; Enforceable Obligations.......83
Section 4.3 Ownership of Co-Borrower; Subsidiaries........................84
Section 4.4 Financial Statements..........................................84
Section 4.5 Material Adverse Change.......................................85
Section 4.6 Solvency......................................................85
Section 4.7 Litigation....................................................86
Section 4.8 Taxes.........................................................86
Section 4.9 Full Disclosure...............................................86
Section 4.10 Margin Regulations............................................87
Section 4.11 No Burdensome Restrictions; No Defaults.......................87
Section 4.12 Investment Company Act; Public Utility Holding Company Act....87
Section 4.13 Use of Proceeds...............................................88
Section 4.14 Insurance.....................................................88
Section 4.15 Labor Matters.................................................88
Section 4.16 ERISA.........................................................88
Section 4.17 Environmental Matters.........................................89
Section 4.18 Intellectual Property.........................................90
Section 4.19 Title; Real Property..........................................90
Section 4.20 Closing Date Related Documents................................91
Section 4.21 Collateral Documents..........................................92
ARTICLE V
FINANCIAL COVENANTS
Section 5.1 Maximum Leverage Ratio........................................93
Section 5.2 Maximum Lease Adjusted Leverage Ratio.........................94
Section 5.3 Minimum Interest Coverage Ratio...............................95
Section 5.4 Maximum Capital Expenditures..................................95
ARTICLE VI
REPORTING COVENANTS
Section 6.1 Financial Statements..........................................97
Section 6.2 Default Notices...............................................99
Section 6.3 Litigation....................................................99
Section 6.4 Asset Sales...................................................99
Section 6.5 Notices Under Closing Date Related Documents..................99
Section 6.6 SEC Filings; Press Releases...................................99
Section 6.7 Labor Relations..............................................100
Section 6.8 Insurance....................................................100
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Section 6.9 ERISA Matters................................................100
Section 6.10 Environmental Matters........................................101
Section 6.11 Property Loss Event..........................................102
Section 6.12 Other Information............................................102
ARTICLE VII
AFFIRMATIVE COVENANTS
Section 7.1 Preservation of Corporate Existence, Etc.....................102
Section 7.2 Compliance with Laws, Etc....................................102
Section 7.3 Conduct of Business..........................................102
Section 7.4 Payment of Taxes, Etc........................................103
Section 7.5 Maintenance of Insurance.....................................103
Section 7.6 Access.......................................................103
Section 7.7 Keeping of Books.............................................104
Section 7.8 Maintenance of Properties, Etc...............................104
Section 7.9 Application of Proceeds......................................104
Section 7.10 Environmental................................................104
Section 7.11 Additional Collateral and Guaranties.........................104
Section 7.12 Control Accounts; Approved Deposit Accounts..................106
Section 7.13 Real Property................................................106
Section 7.14 Interest Rate Contracts......................................107
Section 7.15 Post-Closing Deliveries......................................107
Section 7.16 Further Assurances...........................................107
Section 7.17 Maintenance of Ratings.......................................108
Section 7.18 Refinancing..................................................108
Section 7.19 Unrestricted Subsidiaries' Financial Statements..............108
ARTICLE VIII
NEGATIVE COVENANTS
Section 8.1 Indebtedness.................................................108
Section 8.2 Liens, Etc...................................................111
Section 8.3 Investments..................................................112
Section 8.4 Sale of Assets...............................................114
Section 8.5 Restricted Payments..........................................116
Section 8.6 Prepayment and Cancellation of Indebtedness..................116
Section 8.7 Restriction on Fundamental Changes; Permitted Acquisitions...117
Section 8.8 Change in Nature of Business.................................117
Section 8.9 Transactions with Affiliates.................................118
Section 8.10 Limitations on Restrictions on Subsidiary Distributions;
No New Negative Pledge.......................................120
Section 8.11 Modification of Constituent Documents........................120
Section 8.12 Modification of Closing Date Related Documents...............121
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PAGE
Section 8.13 Modification of Subordinated Debt Documents and
Management Agreement.........................................121
Section 8.14 Accounting Changes; Fiscal Year..............................122
Section 8.15 Margin Regulations...........................................122
Section 8.16 No Speculative Transactions..................................122
Section 8.17 Compliance with ERISA........................................122
Section 8.18 Limitation on Issuance of Stock..............................122
Section 8.19 Maintenance of Corporate Separation..........................123
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default............................................123
Section 9.2 Remedies.....................................................125
Section 9.3 Actions in Respect of Letters of Credit......................126
Section 9.4 Rescission...................................................126
ARTICLE X
THE AGENTS
Section 10.1 Authorization and Action.....................................127
Section 10.2 Agents' Reliance, Etc........................................128
Section 10.3 Posting of Approved Electronic Communications................128
Section 10.4 Each Agent Individually......................................129
Section 10.5 Lender Credit Decision.......................................129
Section 10.6 Indemnification..............................................130
Section 10.7 Successor Administrative Agent and Collateral Agent..........130
Section 10.8 Concerning the Collateral and the Collateral Documents.......131
Section 10.9 Collateral Matters Relating to Related Obligations...........131
ARTICLE XI
MISCELLANEOUS
Section 11.1 Amendments, Waivers, Etc.....................................132
Section 11.2 Successors and Assigns.......................................135
Section 11.3 Costs and Expenses...........................................138
Section 11.4 Indemnities..................................................140
Section 11.5 Limitation of Liability......................................141
Section 11.6 Right of Setoff..............................................142
Section 11.7 Sharing of Payments, Etc.....................................142
Section 11.8 Notices, Etc.................................................143
Section 11.9 No Waiver; Remedies..........................................145
Section 11.10 Binding Effect...............................................145
Section 11.11 Governing Law................................................145
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Section 11.12 Submission to Jurisdiction; Service of Process...............145
Section 11.13 Waiver of Jury Trial.........................................146
Section 11.14 Marshaling; Payments Set Aside...............................146
Section 11.15 Section Titles...............................................146
Section 11.16 Execution in Counterparts....................................146
Section 11.17 Entire Agreement.............................................146
Section 11.18 Confidentiality..............................................147
Section 11.19 USA PATRIOT Act Notice.......................................147
Section 11.20 Joint and Several Liability..................................147
Section 11.21 Interest Rate Limitation.....................................148
SCHEDULES
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule 1.1(a) - Restricted Entities
Schedule 1.1(b) - Excepted Guarantors
Schedule 2.4 - Existing Letters of Credit
Schedule 3.1(d)(ii) - Payoff Letters, Part I
Schedule 3.1(d)(iii) - Payoff Letters, Part II
Schedule 3.1(j) - Sources and Uses
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Loan Parties
Schedule 4.4 - Financial Statements
Schedule 4.7 - Litigation
Schedule 4.15 - Labor Matters
Schedule 4.16 - List of Plans
Schedule 4.18 - Intellectual Property
Schedule 4.19 - Real Property
Schedule 4.19(d) - Condemnation Notices
Schedule 4.21 - Filing Offices
Schedule 7.11(a) - Indebtedness to Be Repaid
Schedule 7.15 - Post-Closing Deliveries
Schedule 8.1(b) - Second Closing Date Debt
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Schedule 8.9(l) - Transactions with Affiliates
EXHIBITS
Exhibit A - Form of Assignment and Assumption
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 - Form of Term Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Swing Loan Request
Exhibit E - Form of Letter of Credit Request
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Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G - Form of Opinion of Counsel for the Loan Parties
Exhibit H - Form of Guaranty
Exhibit I - Form of Pledge and Security Agreement
Exhibit J - Form of Escrow Agreement
Exhibit K - Form of Compliance Certificate
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CREDIT AGREEMENT, dated as of July 25, 2005, among ARBY'S RESTAURANT
GROUP, INC., a Delaware corporation ("BORROWER"), ARBY'S RESTAURANT HOLDINGS,
LLC, a Delaware limited liability company ("CO-BORROWER" and, together with
Borrower, "BORROWERS"), TRIARC RESTAURANT HOLDINGS, LLC, a Delaware limited
liability company ("PARENT"), the Lenders (as defined below), the Issuers (as
defined below), CITICORP NORTH AMERICA, INC. ("Citicorp"), as administrative
agent for the Lenders and the Issuers (in such capacity, the "ADMINISTRATIVE
Agent") and as collateral agent for the Secured Parties (in such capacity, the
"COLLATERAL AGENT"), BANK OF AMERICA, N.A. ("BOFA") and CREDIT SUISSE, CAYMAN
ISLANDS BRANCH ("CS"), as co-syndication agents for the Lenders and the Issuers
(in such capacities, the "SYNDICATION AGENTS"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, SUNTRUST BANK AND GE CAPITAL FRANCHISE FINANCE CORPORATION, as
co-documentation agents for the Lenders and the Issuers (in such capacities, the
"DOCUMENTATION AGENTS").
W I T N E S S E T H:
WHEREAS, Borrower will acquire (collectively, the "RTM ACQUISITIONS"),
directly or indirectly, (i) all of the outstanding equity interests of RTM
Restaurant Group, Inc. ("RTMRG"), a Georgia corporation, from the shareholders
thereof pursuant to a merger of Arby's Acquisition Co., a Georgia corporation
and a direct wholly-owned subsidiary of Triarc Companies, Inc. ("SPONSOR"), with
and into RTMRG, followed immediately thereafter by a merger of RTMRG with and
into Arby's Restaurant, LLC, a Delaware limited liability company and a direct
wholly-owned subsidiary of Sponsor ("MERGER SUB"), upon the consummation of
which Sponsor will indirectly contribute the outstanding membership interests of
Merger Sub to Borrower, (ii) through RTMMC Acquisition Sub, LLC, a Delaware
limited liability company and a direct wholly-owned subsidiary of Sponsor
("ACQUISITION SUB"), substantially all of the assets of RTM Management Company,
L.L.C. ("RTMMC"), a Georgia limited liability company, pursuant to an agreement
with such limited liability company and the members thereof, upon the
consummation of which Sponsor will indirectly contribute the outstanding
ownership interests in Acquisition Sub to Borrower, and (iii) through Sponsor or
its assignee, all of the outstanding membership interests in RTM Acquisition
Company, L.L.C. ("RTMAC"), a Georgia limited liability company, from the members
of such limited liability company, upon the consummation of which Sponsor will
contribute, directly or indirectly, such outstanding membership interests to
Borrower;
WHEREAS, Sponsor will, directly or indirectly, pay $129.7 million (the
"CASH INVESTMENT") in cash to the Sellers, which cash will be used to fund a
portion of the purchase price of the RTM Acquisitions;
WHEREAS, the RTM Refinancing and the ARG Refinancing will be
consummated simultaneously herewith, other than as provided in the definitions
thereof;
WHEREAS, Borrowers have requested that the Lenders extend credit in the
form of Term Loans on the Initial Closing Date and the Second Closing Date, in
an aggregate principal amount not in excess of $620,000,000;
WHEREAS, Borrower has requested that the Lenders extend credit in the
form of Revolving Loans at any time and from time to time prior to the Revolving
Credit Termination Date, in an aggregate principal amount at any time
outstanding not in excess of $100,000,000, of which none may be drawn on the
Initial Closing Date;
WHEREAS, Borrower has requested the Issuers to issue Letters of Credit,
in an aggregate face amount at any time outstanding not in excess of
$30,000,000, to support payment obligations incurred in the ordinary course of
business by Borrower and its Subsidiaries; and
WHEREAS, the proceeds of the Loans are to be used as set forth on
SCHEDULE 3.1(J);
NOW, THEREFORE, the Lenders are willing to extend such credit to
Borrowers and the Issuers are willing to issue letters of credit for the account
of Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
Section 1.1 DEFINED TERMS
As used in this Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"ACQUIRED BUSINESSES" means RTMRG, RTMAC, RTMMC and the respective
Subsidiaries of RTMRG and RTMAC.
"ACQUISITION SUB" has the meaning specified in the recitals to this
Agreement.
"ADMINISTRATIVE AGENT" has the meaning specified in the preamble to
this Agreement.
"AFFECTED LENDER" has the meaning specified in SECTION 2.18(A).
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to a Lender, an
administrative questionnaire completed by such Lender and provided to (and in a
form reasonably satisfactory to) the Administrative Agent.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly Controlling or that is Controlled by or is under common
Control with such Person, and each Person that is the beneficial owner of 10% or
more of any class of Voting Stock (or Stock Equivalent of any such class of
Voting Stock) of such Person. Each Unrestricted Subsidiary shall be deemed an
Affiliate of Co-Borrower and its Subsidiaries.
"AGENT" means each of the Administrative Agent, each Syndication Agent,
the Collateral Agent and each Documentation Agent.
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"AGENT AFFILIATE" has the meaning specified in SECTION 10.3(C).
"AGREEMENT" means this Credit Agreement, as amended, modified or
supplemented in accordance herewith.
"ANTI-TERRORISM LAW" has the meaning specified in SECTION 4.1(B).
"ANTI-TERRORISM ORDER" has the meaning specified in SECTION 4.1(B).
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, its
Domestic Lending Office, in the case of a Base Rate Loan, and its Eurodollar
Lending Office, in the case of a Eurodollar Rate Loan.
"APPLICABLE MARGIN" means the following:
(a) (i) during the period from the Initial Closing Date through the
Trigger Date, with respect to (A) Term Loans maintained as Base Rate Loans,
a rate equal to 1.25% per annum and (B) Term Loans maintained as Eurodollar
Rate Loans, a rate equal to 2.25% per annum and (ii) thereafter, as of any
date of determination, a per annum rate equal to the rate set forth below
opposite the applicable type of Term Loan and then applicable Leverage
Ratio (determined on the last day of the most recent Fiscal Quarter for
which Financial Statements have been delivered pursuant to SECTION 6.1(A)
or (B)) set forth below:
BASE RATE EURODOLLAR
LEVERAGE RATIO LOANS RATE LOANS
------------------------------------------ --------- ----------
Greater than or equal to 3.5 to 1......... 1.25% 2.25%
Less than 3.5 to 1........................ 1.00% 2.00%
(b) (i) during the period from the Initial Closing Date through the
Trigger Date, with respect to (A) Revolving Loans maintained as Base Rate
Loans and Swing Loans, a rate equal to 1.00% per annum and (B) Revolving
Loans maintained as Eurodollar Rate Loans, a rate equal to 2.00% per annum
and (ii) thereafter, as of any date of determination, a per annum rate
equal to the rate set forth below opposite the applicable type of Revolving
Loan and then applicable Leverage Ratio (determined on the last day of the
most recent Fiscal Quarter for which Financial Statements have been
delivered pursuant to SECTION 6.1(A) or (B)) set forth below:
BASE RATE EURODOLLAR
LEVERAGE RATIO LOANS RATE LOANS
------------------------------------------ --------- ----------
Greater than or equal to 3.5 to 1......... 1.00% 2.00%
Less than 3.5 to 1 and equal to or greater
than 3.0 to 1.......................... 0.75% 1.75%
Less than 3.0 to 1........................ 0.50% 1.50%
Changes in the Applicable Margin resulting from a change in the Leverage Ratio
on the last day of any subsequent Fiscal Quarter shall become effective as to
all Loans upon delivery by Bor-
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rower to the Administrative Agent of new Financial Statements pursuant to
SECTION 6.1(A) or (B), as applicable. Notwithstanding anything to the contrary
set forth in this Agreement (including the then effective Leverage Ratio), if
Borrower shall fail to deliver such Financial Statements within any of the time
periods specified in SECTION 6.1(A) or (B), the Applicable Margin from and
including the 61st day after the end of such Fiscal Quarter or the 121st day
after the end of such Fiscal Year, as the case may be, to but not including the
date Borrower delivers to the Administrative Agent such Financial Statements
shall equal the highest possible Applicable Margin provided for by this
definition.
"APPLICABLE UNUSED COMMITMENT FEE RATE" means (a) during the period
from the Initial Closing Date to the Trigger Date, 0.50% and (b) thereafter, as
of any date of determination, a per annum rate equal to the rate set forth below
opposite the then applicable Leverage Ratio (determined on the last day of the
most recent Fiscal Quarter for which Financial Statements have been delivered
pursuant to SECTION 6.1(A) or (B)) set forth below:
LEVERAGE RATIO RATE
------------------------------------------------ ---------
Greater than or equal to 3.0 to 1............... 0.50%
Less than 3.0 to 1.............................. 0.375%
Changes in the Applicable Unused Commitment Fee Rate resulting from a change in
the Leverage Ratio on the last day of any subsequent Fiscal Quarter shall become
effective upon delivery by Borrower to the Administrative Agent of new Financial
Statements pursuant to SECTION 6.1(A) or (B), as applicable. Notwithstanding
anything to the contrary set forth in this Agreement (including the then
effective Leverage Ratio), if Borrower shall fail to deliver such Financial
Statements within any of the time periods specified in SECTION 6.1(A) or (B),
the Applicable Unused Commitment Fee Rate from and including the 61st day after
the end of such Fiscal Quarter or the 121st day after the end of such Fiscal
Year, as the case may be, to but not including the date Borrower delivers to the
Administrative Agent such Financial Statements shall equal the highest possible
Applicable Unused Commitment Fee Rate provided for by this definition.
"APPROVED DEPOSIT ACCOUNT" means a Deposit Account that is the subject
of an effective Deposit Account Control Agreement or that is maintained by any
Loan Party with a Deposit Account Bank. "Approved Deposit Account" includes all
monies on deposit in a Deposit Account and all certificates and instruments, if
any, representing or evidencing such Deposit Account.
"APPROVED ELECTRONIC COMMUNICATIONS" means each notice, demand,
communication, information, document and other material that any Loan Party is
obligated to, or otherwise chooses to, provide to any Agent pursuant to any Loan
Document or the transactions contemplated therein, including (a) any supplement
to the Guaranty, any joinder to the Pledge and Security Agreement and any other
written Contractual Obligation delivered or required to be delivered in respect
of any Loan Document or the transactions contemplated therein and (b) any
Financial Statement, financial and other report, notice, request, certificate
and other information material; PROVIDED, HOWEVER, that "Approved Electronic
Communications" shall exclude (i) any Notice of Borrowing, Letter of Credit
Request, Swing Loan Request, Facilities Increase Notice or Notice of Conversion
or Continuation, and any other notice, demand, communication, information,
document and other material relating to a request for a new, or a conversion of
an exist-
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ing, Borrowing, (ii) any notice pursuant to SECTION 2.8 and SECTION 2.9 and any
other notice relating to the payment of any principal or other amount due under
any Loan Document prior to the scheduled date therefor, (iii) all notices of any
Default or Event of Default and (iv) any notice, demand, communication,
information, document and other material required to be delivered to satisfy any
of the conditions set forth in ARTICLE III or SECTION 2.4(A) or any other
condition to any Borrowing or other extension of credit hereunder or any
condition precedent to the effectiveness of this Agreement.
"APPROVED ELECTRONIC PLATFORM" has the meaning specified in SECTION
10.3(A).
"APPROVED FUND" means, with respect to any Person, any Fund that is
administered, advised or managed by such Person, an Affiliate of such Person or
by any other entity that also administers, advises or manages such Person or
Affiliate.
"APPROVED SECURITIES INTERMEDIARY" means a "securities intermediary" or
a "commodity intermediary" (as such terms are defined in the UCC) that is either
an Agent or a Revolving Credit Lender party to this Agreement on the date hereof
or prior to the Syndication Completion Date (and each Affiliate thereof) or that
is approved by the Collateral Agent, which approval shall not be unreasonably
withheld.
"ARG REFINANCING" means (a) the satisfaction and discharge of the
indenture relating to the Securitization Notes on or prior to the Initial
Closing Date and (b) the repayment in full of all Indebtedness of Borrower and
its Subsidiaries (other than the Acquired Businesses) (i) not listed on SCHEDULE
7.11(A), no later than the Second Closing Date and (ii) listed on SCHEDULE
7.11(A), no later than the end of the Refinancing Grace Period (subject to
Permitted Non-Compliant Debt remaining outstanding).
"ARRANGER" means each of CGMI, Banc of America Securities LLC and CS,
in its capacity as joint lead arranger and joint book-running manager.
"ASSET SALE" has the meaning specified in SECTION 8.4.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent, substantially in the form of EXHIBIT A.
"AVAILABLE AMOUNT" means, at any time, (a) the sum of (i) if positive,
50% of Consolidated Net Income of Borrower for the period from the Initial
Closing Date (or, if Borrower is not capable of measuring Consolidated Net
Income from the Initial Closing Date, the first day thereafter from which
Borrower is capable of providing an accurate measurement of Consolidated Net
Income (which shall be a date no later than the first day of the first Fiscal
Quarter beginning on or after the Initial Closing Date)) through the last day of
the most recently ended Fiscal Quarter or Fiscal Year for which Financial
Statements have been delivered pursuant to SECTION 6.1(A) or (B) and (ii) the
amount of Designated Net Cash Proceeds received from all Equity Issuances after
the Initial Closing Date, MINUS (b) 100% of the deficit, if any, reflected in
Consolidated Net Income of Borrower for the period referred to in clause (a)(i)
above, MINUS (c) all dividends and distributions made pursuant to SECTION
8.5(D)(II) and Investments outstanding pursuant to SECTION 8.3(K)(II).
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"AVAILABLE CREDIT" means, at any date, (a) the then effective Revolving
Credit Commitments minus (b) the aggregate Revolving Credit Outstandings on such
date, after giving effect to any substantially contemporaneous repayment of any
Loan or Reimbursement Obligation on such date.
"BASE RATE" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the higher of the following:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) the Federal Funds Rate PLUS 0.50% per annum.
"BASE RATE LOAN" means any Swing Loan or any other Loan during any
period in which it bears interest based on the Base Rate.
"BOARD OF DIRECTORS" means, with respect to any Person, (i) in the case
of any corporation, the board of directors of such Person, (ii) in the case of
any limited liability company, the board of managers of such Person, (iii) in
the case of any partnership, the Board of Directors of the general partner of
such Person and (iv) in any other case, the functional equivalent of the
foregoing.
"BOFA" has the meaning specified in the preamble to this Agreement.
"BORROWER" has the meaning specified in the preamble to this Agreement.
"BORROWERS" has the meaning specified in the preamble to this
Agreement.
"BORROWER'S ACCOUNTANTS" means Deloitte & Touche LLP or other
independent nationally recognized public accountants acceptable to the
Administrative Agent, which acceptance shall not be unreasonably withheld.
"BORROWING" means a Revolving Credit Borrowing or a Term Loan
Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to notices, determinations, fundings and payments in connection with the
Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in Dollar
deposits are also carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period, the
aggregate of amounts that would be reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person and its Subsidiaries
(other than Unrestricted Subsidiaries), excluding (i) any portion of such
additions attributable solely to Permitted Acquisitions, (ii) expenditures to
the extent financed
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with Designated Net Cash Proceeds of Equity Issuances, (iii) any such additions
constituting Permitted Reinvestments and (iv) expenditures to the extent
financed with Capital Leases and, without duplication, any portion of such
additions attributable solely to Capital Leases.
"CAPITAL LEASE" means, with respect to any Person, any lease of, or
other arrangement conveying the right to use, property by such Person as lessee
that would be accounted for as capitalized liability on a balance sheet of such
Person prepared in accordance with GAAP, including, without limitation,
financing obligations that are capitalized.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
capitalized amount of all Consolidated obligations of such Person or any of its
Subsidiaries (other than Unrestricted Subsidiaries) under Capital Leases
determined in accordance with GAAP.
"CASH COLLATERAL ACCOUNT" means any Deposit Account or Securities
Account that is (a) established by the Collateral Agent from time to time in its
sole reasonable discretion to receive cash and Cash Equivalents (or purchase
cash or Cash Equivalents with funds received) from the Loan Parties or Persons
acting on their behalf pursuant to the Loan Documents, (b) with such
depositaries and securities intermediaries as the Collateral Agent may determine
in its sole discretion, (c) in the name of the Collateral Agent (although such
account may also have words referring to any Loan Party and the account's
purpose), (d) under the control of the Collateral Agent and (e) in the case of a
Securities Account, with respect to which the Collateral Agent shall be the
Entitlement Holder and the only Person authorized to give Entitlement Orders
with respect thereto.
"CASH EQUIVALENTS" means each of the following:
(a) securities issued or fully guaranteed or insured by the United
States federal government or any agency thereof;
(b) certificates of deposit, overnight bank deposits and bankers'
acceptances of any commercial bank organized under the laws of the United
States, any state thereof or the District of Columbia that, at the time of
acquisition, are rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇;
(c) repurchase obligations with a term of not more than seven days
with respect to securities of the types described in clause (a) or (b)
above and with a Lender or any Affiliate or Approved Fund thereof or a
financial institution having total assets exceeding $5,000,000,000;
(d) commercial paper of an issuer incorporated in a state of the
United States rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇;
(e) marketable direct obligations issued by any state of the
United States or any political subdivision thereof or any public
instrumentality thereof that, at the time of acquisition, has one of the
two highest ratings obtainable from either ▇▇▇▇▇'▇ or S&P ;
(f) to the extent invested in by Subsidiaries of Borrower that are
not Domestic Subsidiaries, certificates of deposit, overnight bank deposits
and bankers' acceptances (or similar instruments) of commercial banks
organized under the laws of the same country
-7-
as such Subsidiary and having combined capital and surplus of not less than
$500,000,000 (or the equivalent thereof in other currencies); and
(g) shares of any money market fund that (A) has at least 95% of
its assets invested continuously in the types of investments referred to in
clauses (a) through (e) (or in the case of investments by Subsidiaries of
Borrower that are not Domestic Subsidiaries, (a) through (f)) above, (B)
has net assets exceeding $500,000,000 and (C) is rated at least "A-1" by
S&P or "P-1" by ▇▇▇▇▇'▇;
PROVIDED, HOWEVER, that (x) the maturities of all obligations of the type
specified in clauses (a) through (e) above shall not exceed the lesser of the
time specified in such clauses and 360 days and (y) "Cash Equivalents" shall not
include Securities of Sponsor, Co-Borrower, Parent, Borrower, their respective
Subsidiaries and any Affiliate or Approved Fund of any of the foregoing.
"CASH INTEREST EXPENSE" means, with respect to any Person for any
period, the Interest Expense of such Person for such period LESS the sum of,
without duplication and in each case determined on a Consolidated basis for such
Person and its Subsidiaries (other than Unrestricted Subsidiaries) and included
in such sum only to the extent included in the calculation of Interest Expense,
(a) the Non-Cash Interest Expense of such Person for such period, (b) any fees
(including underwriting fees) and expenses paid by such Person or its
Consolidated Subsidiaries (other than Unrestricted Subsidiaries) during such
period in connection with the consummation of the RTM Acquisitions, (c) any
upfront fees and other cash payments made during such period by Borrower and/or
Co-Borrower as a condition to the execution of any Interest Rate Contract
Borrower and/or Co-Borrower are required to enter into pursuant to SECTION 7.14
to other parties to such Interest Rate Contract as consideration required by
such other parties to enter into such Interest Rate Contract, (d) any fees paid
during such period by or on behalf of Borrower or Co-Borrower to any Agent
pursuant to any Fee Letter, (e) any Consolidated net cash gain of such Person
and its Subsidiaries (other than Unrestricted Subsidiaries) under Interest Rate
Contracts for such period, (f) any Consolidated interest income of such Person
and its Subsidiaries (other than Unrestricted Subsidiaries) for such period, (g)
any fees (including underwriting fees) and expenses paid by such Person or its
Consolidated Subsidiaries (other than Unrestricted Subsidiaries) during such
period in connection with the consummation of any Permitted Acquisition or Sale
of Business, (h) interest expense in respect of Loans to the extent and for so
long as the proceeds thereof are held in the Escrow Account and (i) interest
expense in respect of the Securitization Notes.
Notwithstanding anything in the foregoing to the contrary, it is agreed
that Cash Interest Expense of Borrower shall be (a) with respect to the four
Fiscal Quarter period ending on October 2, 2005, Cash Interest Expense of
Borrower for the Fiscal Quarter ending on such date, MULTIPLIED by four, (b)
with respect to the four Fiscal Quarter period ending on January 1, 2006, Cash
Interest Expense of Borrower for the Fiscal Quarter ending on such date and the
immediately preceding Fiscal Quarter MULTIPLIED by two and (c) with respect to
the four Fiscal Quarter period ending April 2, 2006, Cash Interest Expense of
Borrower for the Fiscal Quarter ending on such date and the immediately
preceding two Fiscal Quarters MULTIPLIED by one and one-third; PROVIDED that
each such amount shall be determined on a Pro Forma Basis.
"CASH INVESTMENT" has the meaning specified in the recitals to this
Agreement.
-8-
"CASH INVESTMENT DOCUMENT" means each agreement, document, power of
attorney and certificate executed in connection with the Cash Investment.
"CASH MANAGEMENT OBLIGATION" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person in respect
of cash management services (including treasury, depository, overdraft, credit
or debit card, electronic funds transfer and other cash management arrangements)
provided by any Lender or any Affiliate thereof in connection with this
Agreement or any Loan Document, including obligations for the payment of fees,
interest, charges, expenses, attorneys' fees and disbursements in connection
therewith.
"CERCLA" means the U.S. Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CGMI" means Citigroup Global Markets Inc.
"CHANGE OF CONTROL" means the occurrence of any event, transaction or
occurrence as a result of which any of the following occurs:
(a) prior to the completion of any initial public offering of the
Stock of Co-Borrower, Sponsor and Related Persons, shall cease to, directly
or indirectly, beneficially own and control in the aggregate (i) more than
50% of the Voting Stock of Co-Borrower, on a fully diluted basis, or (ii)
at least a percentage of the outstanding Voting Stock of Co-Borrower
necessary to elect at any time a majority of the Board of Directors (or
similar governing body) of Co-Borrower;
(b) on and after completion of any such initial public offering,
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act, including any group acting for the purpose of
acquiring, holding, voting or disposing of Securities within the meaning of
Rule 13d-5(b)(1) under the Exchange Act) other than Sponsor or any Related
Person shall become the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act, except that each Person will be deemed to
have "beneficial ownership" of all Stock and Stock Equivalents that such
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
more than the greater of (x) 30% of the then outstanding Voting Stock of
Co-Borrower and (y) the Voting Stock of Co-Borrower owned, directly or
indirectly, by Sponsor and Related Persons in the aggregate;
(c) during any period of 12 consecutive calendar months,
individuals who, at the beginning of such period, constituted the Board of
Directors of Co-Borrower (together with any new directors nominated by
Co-Borrower and directors whose election by the Board of Directors of
Co-Borrower or whose nomination for election by the members of Co-Borrower
was approved by a vote of at least a majority of the Board of Directors
then still in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason other than death or disability to constitute
a majority of the Board of Directors then in office;
-9-
(d) Co-Borrower shall cease to own and control, directly or
through one or more Wholly-Owned Subsidiaries, all of the economic and
voting rights associated with all of the outstanding Stock of Parent or
Borrower; or
(e) any "Change of Control" under and as defined in, or any term
of similar import under, any Subordinated Debt Document relating to
Indebtedness in an aggregate principal amount in excess of $25,000,000.
"CHANGE OF LAW" has the meaning specified in SECTION 2.16.
"CHARGES" has the meaning specified in SECTION 11.21.
"CITIBANK" means Citibank, N.A., a national banking association.
"CITICORP" has the meaning specified in the preamble to this Agreement.
"CLOSING DATE COLLATERAL" means the Collateral other than any
Collateral in which, pursuant to the terms of the Pledge and Security Agreement,
a security interest in favor of the Collateral Agent is not granted or meant to
be granted on or prior to the Initial Closing Date.
"CLOSING DATE RELATED DOCUMENT" means each RTM Acquisition Agreement
and each other document executed pursuant thereto and each Cash Investment
Document.
"CO-BORROWER" has the meaning specified in the preamble to this
Agreement.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by any Loan Party in or upon which a
Lien is granted under any Collateral Document.
"COLLATERAL AGENT" has the meaning specified in the preamble to this
Agreement.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement, the
Escrow Agreement, the Deposit Account Control Agreements, the Securities Account
Control Agreements and any other document executed and delivered by a Loan Party
granting a Lien on any of its property to secure payment of the Secured
Obligations.
"COMMITMENT" means, with respect to any Lender, such Lender's Revolving
Credit Commitment and Term Loan Commitment, if any, and "COMMITMENTS" means the
aggregate Revolving Credit Commitments and Term Loan Commitments of all Lenders.
"COMMODITY ACCOUNT" has the meaning given to such term in the UCC.
"COMPLIANCE CERTIFICATE" has the meaning specified in SECTION 6.1(C).
-10-
"CONSOLIDATED" means, with respect to any Person, the consolidation of
accounts of such Person and its Subsidiaries (other than Unrestricted
Subsidiaries) in accordance with GAAP.
"CONSOLIDATED CURRENT ASSETS" means, with respect to any Person at any
date, the total Consolidated current assets (other than cash and Cash
Equivalents) of such Person and its Subsidiaries (other than Unrestricted
Subsidiaries) at such date.
"CONSOLIDATED CURRENT LIABILITIES" means, with respect to any Person at
any date, all liabilities of such Person and its Subsidiaries (other than
Unrestricted Subsidiaries) at such date that should be classified as current
liabilities on a Consolidated balance sheet of such Person and its Subsidiaries
(other than Unrestricted Subsidiaries).
"CONSOLIDATED EBITDAR" means, with respect to any Person for any
period, the sum of (a) the Consolidated EBITDA of such Person, PLUS (b)
Consolidated Rental Expense of such Person for such period, all as determined in
accordance with GAAP. Notwithstanding anything in the foregoing to the contrary,
it is agreed that the Consolidated EBITDAR for Borrower for the Fiscal Quarters
ended January 2, 2005, April 3, 2005, and July 3, 2005 is $60,267,000,
$58,015,000 and $64,893,000, respectively.
"CONSOLIDATED NET INCOME" means, for any Person for any period, the
Consolidated net income (or loss) of such Person and its Subsidiaries (other
than Unrestricted Subsidiaries other than to the extent the net income of such
Unrestricted Subsidiary is received by a Restricted Subsidiary in cash as a
dividend or distribution) for such period determined in accordance with GAAP;
PROVIDED, HOWEVER, that (a) the net income of any other Person in which such
Person or one of its Subsidiaries has a joint interest with a third party (which
interest does not cause the net income of such other Person to be Consolidated
into the net income of such Person) shall be included only to the extent of the
amount of dividends or distributions actually paid to such Person or Subsidiary,
(b) the net income of any Subsidiary of such Person that is subject to any
restriction or limitation on the payment of dividends or the making of other
distributions shall be excluded to the extent of such restriction or limitation,
(c) extraordinary gains and losses and any increase or decrease to net income
that is required to be recorded because of the adoption of new accounting
policies, practices or standards required by GAAP shall be excluded and (d)
gains and losses from businesses reflected on the Financial Statements of such
Person as discontinued operations shall be excluded.
"CONSOLIDATED NET TANGIBLE ASSETS" means, with respect to any Person,
such Person's net assets MINUS goodwill and other intangible assets, all as
determined in accordance with GAAP on a Consolidated basis.
"CONSOLIDATED RENTAL EXPENSE" means, with respect to any Person for any
period, (a) all rental expense of such Person and its Subsidiaries (other than
Unrestricted Subsidiaries) during such period (determined on a Consolidated
basis in accordance with GAAP) incurred under any rental agreements or leases of
real property, including space leases and ground leases, other than obligations
in respect of any Capital Leases and Synthetic Lease Obligations, MINUS (b)
rental income received by such Person and its Subsidiaries (other than
Unrestricted Subsidiaries) during such period (determined on a Consolidated
basis in accordance with GAAP) from
-11-
franchisees or third parties pursuant to (i) subleases to such franchisees or
third parties and (ii) leases that have been assigned to such franchisees or
third parties in which such Person or any of its Subsidiaries (other than
Unrestricted Subsidiaries) remains liable for the payment of rent.
"CONSTITUENT DOCUMENTS" means, with respect to any Person, (a) the
articles of incorporation, certificate of incorporation, constitution or
certificate of formation (or the equivalent organizational documents) of such
Person, (b) the by-laws, operating agreement (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election and obligations of the directors or managing members of such Person (if
any) and the designation, amount or relative rights, limitations and preferences
of any class or series of such Person's Stock.
"CONTAMINANT" means any material, substance or waste, including,
without limitation, any petroleum or petroleum-derived substance or waste,
asbestos, asbestos-containing materials, PCB, PCB-containing materials or
equipment, urea formaldehyde, mold and radon, that can give rise to liability,
or is regulated, pursuant to Environmental Laws.
"CONTRACTUAL OBLIGATION" of any Person means any obligation, agreement,
undertaking or similar provision of any Security issued by such Person or of any
agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or
other instrument (excluding a Loan Document) to which such Person is a party or
by which it or any of its property is bound or to which any of its property is
subject.
"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 ownership of voting securities, by contract or otherwise, and the
terms "CONTROLLING" and "CONTROLLED" shall have meanings correlative thereto.
"CONTROL ACCOUNT" means a Securities Account or Commodity Account that
is the subject of an effective Securities Account Control Agreement and that is
maintained by any Loan Party with an Approved Securities Intermediary. "Control
Account" includes all Financial Assets held in a Securities Account or a
Commodity Account and all certificates and instruments, if any, representing or
evidencing the Financial Assets contained therein.
"CORPORATE CHART" means a corporate organizational chart, list or other
similar document in each case in form reasonably acceptable to the
Administrative Agent and setting forth, for each Person that is a Loan Party,
that is subject to SECTION 7.11 or that is a Subsidiary of any of them, (a) the
full legal name of such Person, (b) the jurisdiction of organization, the
organizational number (if any) and, in the case of Persons that are Loan Parties
or direct Subsidiaries of Loan Parties only, the tax identification number (if
any) of such Person, (c) in the case of entities that are Loan Parties or direct
Subsidiaries of Loan Parties only, the location of such Person's chief executive
office (or sole place of business) and (d) in the case of entities that are Loan
Parties or direct Subsidiaries of Loan Parties only, the number of shares of
each class of such Person's Stock authorized (if applicable), the number
outstanding as of the date of delivery and the number and percentage of such
outstanding shares for each such class owned (directly or indirectly) by any
Loan Party or any Subsidiary of any Loan Party.
-12-
"CS" has the meaning specified in the preamble to this Agreement.
"CUSTOMARY PERMITTED LIENS" means, with respect to any Person, any of
the following Liens, in each case as long as no such Lien secures any
Indebtedness for borrowed money:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in each case that are not overdue by more than 30 days
or that can be paid without penalty or that are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to the extent
required by GAAP;
(b) (i) Liens of landlords arising by statute or otherwise, and
(ii) liens of suppliers, mechanics, carriers, materialmen, warehousemen or
workmen and other liens imposed by law (including, as applicable, under
Article 2 of the Uniform Commercial Code of any state of the United States
or the District of Columbia and similar laws), created in the ordinary
course of business for amounts not overdue by more than 30 days or that are
being contested in good faith by appropriate proceedings, if any, and with
respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(c) pledges and cash deposits made in the ordinary course of
business in connection with workers' compensation, unemployment or other
insurance obligations or other types of social security benefits or similar
legal obligations or to secure the performance of bids, statutory
obligations, public obligations to any Governmental Authority, tenders,
sales, contracts (other than for the repayment of borrowed money) and
surety, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, building codes, land-use restrictions, reservations,
covenants, rights-of-way, utility easements, building restrictions and
other similar encumbrances on the use of real property, and encroachments
and other survey defects and imperfections in title, not materially
detracting from the value of such real property (as then used or proposed
to be used) or not materially interfering with the ordinary conduct of the
business conducted and proposed to be conducted at such real property;
(e) Liens arising under, or consisting of, leases or subleases of
real property permitted under this Agreement;
(f) Liens, pledges and cash deposits to secure any appeal bond
with respect to any judgment or order (or similar process) or Liens
otherwise granted as part of such judgment or order (or similar process),
in each case to the extent no Event of Default exists as a result of such
Lien, judgment or order;
(h) rights of setoff, banker's liens and similar rights in favor
of a banking institution that arise as a matter of law, encumber deposits
and are within the general parameters customary in the banking industry;
-13-
(i) Liens that might be deemed to exist on the assets subject to a
repurchase agreement constituting a Cash Equivalent permitted hereunder, if
such Liens are deemed to exist solely because of the existence of such
repurchase agreement;
(j) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into in
the ordinary course of business in accordance with the past practices;
(k) the filing of UCC financing statements solely as a
precautionary measure in connection with operating leases or consignment of
goods; and
(l) in the case of leased Real Property, Liens to which the fee
interest (or any superior interest) in such Real Property is subject.
"DEBT ISSUANCE" means the incurrence of Indebtedness of the type
specified in clause (a) or (b) of the definition of Indebtedness by Co-Borrower
or any Restricted Subsidiary.
"DEFAULT" means any event that, with the passing of applicable grace
periods or the giving of notice or both, would become an Event of Default if not
cured or waived.
"DEPOSIT ACCOUNT" has the meaning given to such term in the UCC.
"DEPOSIT ACCOUNT BANK" means (a) each Agent and each Revolving Credit
Lender party to this Agreement on the date hereof or prior to the Syndication
Completion Date (and each Affiliate thereof) and (b) each other financial
institution approved by the Collateral Agent, which approval shall not be
unreasonably withheld.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" has the meaning specified in the
Pledge and Security Agreement.
"DESIGNATED NET CASH PROCEEDS" means (a) for purposes of the definition
of Available Amount, the portion of the Net Cash Proceeds of an Equity Issuance
that Borrower designates as being applied to the Available Amount (and not being
applied to Capital Expenditures) and (b) for purposes of the definition of
Capital Expenditures, the portion of the Net Cash Proceeds of an Equity Issuance
that Borrower designates as being applied to Capital Expenditures (and not being
applied to the Available Amount); PROVIDED that in each case such designation
shall be evidenced by a certificate of a Responsible Officer of Borrower
delivered no later than five days after the time of such Equity Issuance.
"DISCLOSURE DOCUMENTS" means, collectively, the confidential
information memoranda and related materials prepared in connection with the
syndication of the Facilities.
"DISQUALIFIED STOCK" means any Stock of any Person that, by its terms
(or by the terms of any Security into which it is convertible or for which it is
exchangeable, in either case at the option of the holder thereof) or otherwise,
(a) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (b) is or may become redeemable or repurchasable at the option of
the holder thereof, in whole or in part, or (c) is Indebtedness or is
convertible or exchangeable at the option of the holder thereof for Indebtedness
or Disqualified Stock, in each
-14-
of clauses (a), (b) and (c) coming due sooner than 180 days after the Term Loan
Maturity Date; PROVIDED that only the portion of Stock which so matures or is so
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at
the option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; PROVIDED, FURTHER, that any Stock that would constitute
"Disqualified Stock" solely because the holders thereof have the right to
require the issuer thereof (or any of its Subsidiaries) to repurchase such Stock
upon the occurrence of a change of control or asset sale shall not constitute
Disqualified Stock if the terms of such Stock (and all such Securities into
which it is convertible or for which it is exchangeable) provide that none of
Parent or its Subsidiaries may repurchase or redeem any such Stock (or any such
Securities into which it is convertible or for which it is exchangeable)
pursuant to such provision prior to the payment in full of the Secured
Obligations.
"DOCUMENTARY LETTER OF CREDIT" means any Letter of Credit that is
drawable upon presentation of documents evidencing the sale or shipment of goods
purchased by Borrower or any of its Subsidiaries in the ordinary course of its
business.
"DOCUMENTATION AGENTS" has the meaning specified in the preamble to
this Agreement.
"DOLLAR," "DOLLARS" and "$" each mean the lawful money of the United
States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name on
SCHEDULE II or on the Assignment and Assumption by which it became a Lender or
such other office of such Lender as such Lender may from time to time specify to
Borrower and the Administrative Agent.
"DOMESTIC PERSON" means any "United States person" under and as defined
in Section 7701(a)(30) of the Code.
"DOMESTIC SUBSIDIARY" means any Subsidiary of Co-Borrower (other than
Parent or Borrower) organized under the laws of any state of the United States
of America or the District of Columbia.
"EBITDA" means, with respect to any Person and its Subsidiaries (other
than Unrestricted Subsidiaries) for any period,
(a) Consolidated Net Income of such Person for such period, PLUS
(b) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income as a reduction thereof but
without duplication, the following:
(i) any provision for federal, state, local and foreign
income tax, franchise taxes and state single business unitary and
similar taxes imposed in lieu of income tax;
(ii) Interest Expense;
-15-
(iii) depreciation and amortization expenses;
(iv) cash expenses made during such period in connection
with any RTM Acquisition or Permitted Acquisition for which such Person
or its Consolidated Subsidiaries (other than Unrestricted Subsidiaries)
have been reimbursed during such period by third parties that are not
Affiliates of such Person or any of its Consolidated Subsidiaries;
(v) fees (including underwriting fees) and expenses paid
by such Person or its Consolidated Subsidiaries (other than
Unrestricted Subsidiaries) during such period in connection with the
consummation of the Transactions, including without limitation one time
cash costs and expenses incurred in connection with any RTM Acquisition
during such period (including without limitation costs and expenses
relating to severance, relocation and consulting services);
(vi) all other non-cash charges and non-cash losses for
such period, including the amount of any compensation deduction as the
result of any grant of Stock or Stock Equivalents to employees,
officers, directors or consultants (excluding any non-cash charge that
results in an accrual of a reserve for cash charges in any future
period);
(vii) any portion of the Management Fee paid by or on
behalf of, or accrued by, such Person or any of its Consolidated
Subsidiaries (other than Unrestricted Subsidiaries) during such period;
and
(viii) synergies in connection with the RTM Acquisitions in
the amounts of $2,340,000, $1,570,000 and $355,000 for the Fiscal
Quarters ending October 2, 2005, January 1, 2006, and April 2, 2006,
respectively; and MINUS
(c) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income as an increase thereto but
without duplication, each of the following:
(i) any credit for income tax;
(ii) Consolidated net gains of such Person and its
Subsidiaries (other than Unrestricted Subsidiaries) under Interest Rate
Contracts for such period;
(iii) any Consolidated interest income of such Person and
its Subsidiaries (other than Unrestricted Subsidiaries) for such
period;
(iv) any aggregate net gain in such period (but not any
aggregate net loss) from the sale, exchange or other disposition of
capital assets by such Person or any of its Consolidated Subsidiaries
(other than Unrestricted Subsidiaries) (other than dispositions of
inventory in the ordinary course of business);
(v) any cash refund of any payment in such period of any
item described in clause (b) above which payment or item was added to
Consolidated Net
-16-
Income in the calculation of EBITDA by reason of such clause either in
such period or in any prior period; and
(vi) any other non-cash gains or other items that have
been added in determining Consolidated Net Income of such Person for
such period, including any reversal of a charge referred to in clause
(b)(vi) above by reason of a decrease in the value of any Stock or
Stock Equivalent.
Notwithstanding anything in the foregoing to the contrary, it is agreed
that EBITDA of Borrower for the Fiscal Quarters ending January 2, 2005, April 3,
2005, and July 3, 2005, is $45,176,000, $42,925,000 and $49,803,000,
respectively.
"ELIGIBLE ASSIGNEE" means (a) any Federal Reserve Bank, (b) a Lender or
an Affiliate or Approved Fund of any Lender or (c) any other Person (other than
a natural Person) approved by the Administrative Agent but excluding any
Restricted Entity; PROVIDED that the consent of the applicable Borrower to any
allocation, transfer or assignment of any Commitment or Loan hereunder shall be
deemed definitive evidence that the allocatee, transferee or assignee thereof
(as the case may be) was not, at the time of such allocation, transfer or
assignment, a Restricted Entity. Notwithstanding the foregoing, the consent of
the Administrative Agent shall not be required in connection with any assignment
to Sponsor, Parent, Co-Borrower, Borrower or any of their respective Affiliates
or Subsidiaries.
"ENTITLEMENT HOLDER" has the meaning given to such term in the UCC.
"ENTITLEMENT ORDER" has the meaning given to such term in the UCC.
"ENVIRONMENT" means ambient air, indoor air, surface water and
groundwater (including potable water and navigable water), the land surface or
subsurface strata and natural resources.
"ENVIRONMENTAL LAWS" means all applicable laws (including common law),
rules, regulations, codes, ordinances, and binding orders, decrees, judgments,
injunctions, agreements or treaties issued, promulgated or entered into by any
Governmental Authority relating in any way to the Environment, preservation,
restoration or reclamation of natural resources, the management, Release or
threatened Release of, or exposure to, any Contaminant or occupational health or
safety.
"ENVIRONMENTAL LIABILITIES AND COSTS" means, with respect to any
Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, penalties, fines, damages, punitive damages, consequential damages,
treble damages, costs and expenses (including all fees, disbursements and
expenses of counsel, experts and consultants and costs of investigation and
feasibility studies), fines, penalties, sanctions and interest incurred as a
result of any claim or demand by any other Person, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute
and whether arising under any Environmental Law, Permit, order or agreement with
any Governmental Authority or other Person, in each case relating to any
environmental, or occupational health or safety condition or requirement or to
any Release or threatened Release.
-17-
"ENVIRONMENTAL LIEN" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"EQUIPMENT" has the meaning given to such term in the UCC.
"EQUITY ISSUANCE" means any capital contribution to Co-Borrower from
any of its holders of Stock or Stock Equivalents or any issue or sale of any
Stock or Stock Equivalent of Co-Borrower by Co-Borrower to any Person other than
any issuance of common Stock of Co-Borrower occurring in the ordinary course of
business to any director, member of management or employee of Co-Borrower or any
Subsidiary.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974,
as amended.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with
Co-Borrower or any of its Subsidiaries within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"ERISA EVENT" means (a) a reportable event described in Section 4043(c)
of ERISA or the regulations thereunder with respect to a Title IV Plan (other
than an event for which the 30 day notice period is waived by regulation), (b)
the withdrawal of Co-Borrower, any of its Subsidiaries or any ERISA Affiliate
from a Title IV 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,
(c) the complete or partial withdrawal of Co-Borrower, any Subsidiary of
Co-Borrower or any ERISA Affiliate from any Multiemployer Plan, (d) receipt of
notice of reorganization or insolvency of a Multiemployer Plan, (e) the filing
of a notice of intent to terminate a Title IV Plan or the treatment of a plan
amendment to a Title IV Plan as a termination under Section 4041 of ERISA, (f)
the institution of proceedings to terminate a Title IV Plan or Multiemployer
Plan by the PBGC, (g) the failure of Co-Borrower, any Subsidiary of Co-Borrower
or any ERISA Affiliate to make any contribution required by the Code, ERISA or
the terms of a Title IV Plan or Multiemployer Plan to such Plan, (h) the
imposition of a lien under Section 412 of the Code or Section 302 of ERISA on
Co-Borrower or any Subsidiary of Co-Borrower or any ERISA Affiliate, (i) the
substantial cessation of operations as described in Section 4062(e) of ERISA
with respect to a Title IV Plan, (j) the adoption of an amendment to a Title IV
Plan that would require the provision of security pursuant to Section 401(a)(29)
of the Code or Section 307 of ERISA, (k) any other event or condition that might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Title IV Plan
or Multiemployer Plan or the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, or (l) the aggregate unfunded vested benefits (as determined under
Section 4006(a)(3)(E)(iii) of ERISA) of all Title IV Plans (disregarding Title
IV Plans with no unfunded vested benefits) exceed $50,000,000 and the funded
vested benefit percentage of such Title IV Plans is less than 90 percent.
"ESCROW ACCOUNT" has the meaning given to such term in the Escrow
Agreement.
-18-
"ESCROW AGENT" means the Collateral Agent in its capacity as escrow
agent pursuant to the Escrow Agreement.
"ESCROW AGREEMENT" means the Escrow Agreement, substantially in the
form of EXHIBIT J, dated as of the date hereof, among Borrower, Co-Borrower, the
Administrative Agent and the Escrow Agent.
"ESCROW BALANCE" means, at any time, the amount of cash or Cash
Equivalents in the Escrow Account.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board.
"EURODOLLAR BASE RATE" means, with respect to any Interest Period for
any Eurodollar Rate Loan, the rate determined by the Administrative Agent to be
the offered rate for deposits in Dollars for the applicable Interest Period
appearing on the Dow ▇▇▇▇▇ Markets Telerate Page 3750 as of 11:00 a.m., London
time, on the second full Business Day next preceding the first day of each
Interest Period. In the event that such rate does not appear on the Dow ▇▇▇▇▇
Markets Telerate Page 3750 (or otherwise on the Dow ▇▇▇▇▇ Markets screen), the
Eurodollar Base Rate for the purposes of this definition shall be determined by
reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on SCHEDULE II or on the Assignment and Assumption by which it became a
Lender (or, if no such office is specified, its Domestic Lending Office) or such
other office of such Lender as such Lender may from time to time specify to
Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, with respect to any Interest Period for any
Eurodollar Rate Loan, an interest rate per annum obtained by dividing (a) the
Eurodollar Base Rate by (b) (i) a percentage equal to 100% MINUS (ii) the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the Eurodollar Rate is determined) having a term equal to such Interest Period.
"EURODOLLAR RATE LOAN" means any Loan that, for an Interest Period,
bears interest based on the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 9.1.
"EXCEPTED GUARANTORS" means the Persons listed on SCHEDULE 1.1(B).
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"EXCESS CASH FLOW" means, for any period, each calculated on a
Consolidated basis, (a) EBITDA of Borrower for such period PLUS (b) the sum of,
without duplication, (i) the excess, if any, of the Working Capital of Borrower
at the beginning of such period over the Working Capital of Borrower at the end
of such period and (ii) any cash refund of any payment or expense set forth in
clause (c) below for which credit was given pursuant to such clause in prior
periods MINUS (c) the sum (without duplication, including duplications that may
occur because of the inclusion of any of the following in the calculation of any
defined term used below) of all of the following:
(i) scheduled cash principal payments on the Loans during
such period and optional cash principal payments on the Loans during
such period (but only, in the case of payment in respect of Revolving
Loans, to the extent that the Revolving Credit Commitments are
permanently reduced by the amount of such payments);
(ii) cash principal payments made by Borrower or any
Restricted Subsidiary during such period on other Indebtedness to the
extent such other Indebtedness and payments are permitted by this
Agreement;
(iii) scheduled cash payments made by Borrower or any
Restricted Subsidiary on Capital Lease Obligations during such period
to the extent such Capital Lease Obligations and payments are permitted
by this Agreement;
(iv) Unfinanced Capital Expenditures made by Borrower or
any Restricted Subsidiary during such period to the extent permitted by
this Agreement;
(v) cash payments of federal, state, local and foreign
income tax, franchise taxes and state single business unitary and
similar taxes imposed in lieu of income tax made during such period by
Borrower or any Restricted Subsidiary;
(vi) cash Restricted Payments permitted to be made in
reliance upon SECTION 8.5(C);
(vii) cash Investments made in reliance on SECTION 8.3;
(viii) cash payments (other than in respect of taxes, which
are governed by clause (v) above) made during such period for any liability
which accrual in a prior period did not reduce EBITDA and therefore increased
Excess Cash Flow in such prior period (PROVIDED there was no other reduction to
EBITDA or Excess Cash Flow related to such payment);
(ix) Cash Interest Expense made during such period (PLUS,
but only to the extent subtracted from Interest Expense in the
calculation of Cash Interest Expense, any fees and expenses described
in clauses (b), (c), (d) and (g) of the definition of Cash Interest
Expense);
(x) all cash expenses made during such period, to the
extent such cash expenses were added back to Consolidated Net Income in
the calculation of EBITDA pursuant to clauses (b)(iv), (v) and (vi) of
the definition of EBITDA;
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(xi) any portion of the Management Fee paid in cash during
such period and permitted by this Agreement;
(xii) the excess, if any, of the Working Capital of
Borrower at the end of such period over the Working Capital of Borrower
at the beginning of such period; and
(xiii) amounts included in EBITDA during such period
pursuant to clause (b)(viii) of the definition thereof.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"EXCLUDED TAXES" means, in the case of each Lender, each Issuer and
each Agent, (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),
and back-up withholding taxes in respect of the foregoing, by a jurisdiction (or
any political sub-division thereof) as a result of a present or former
connection between such Lender, Issuer or Agent and the jurisdiction (or any
political subdivision thereof) of the Governmental Authority imposing such tax
(other than a connection that arises from such Lender, Issuer or Agent becoming
party to, or having executed, delivered, performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document), (b) any
branch profits taxes described in Section 884 of the Code or any similar tax
imposed by a jurisdiction described in clause (a) above, and (c) in the case of
a Non-U.S. Lender, any U.S. federal withholding tax that (i) is imposed on
amounts payable to such Lender at the time such Lender becomes a party hereto
(or designates a new lending office), except to the extent that such 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 Borrower with respect
to such withholding tax pursuant to SECTION 2.17(A) or (ii) is attributable to
such Lender's failure to comply with SECTION 2.17(F).
"FACILITIES" means (a) the Term Loan Facility and (b) the Revolving
Credit Facility.
"FACILITIES INCREASE" has the meaning specified in SECTION 2.19(A).
"FACILITIES INCREASE DATE" has the meaning specified in SECTION
2.19(A).
"FACILITIES INCREASE NOTICE" means a notice from Borrower or
Co-Borrower to the Administrative Agent requesting a Facilities Increase, which
may include any proposed term and condition for such proposed Facilities
Increase but shall include in any event the amount of such proposed Facilities
Increase.
"FAIR MARKET VALUE" means (a) with respect to any asset or group of
assets (other than cash, Cash Equivalents and marketable Securities) of any Loan
Party at any date that is the object of a transaction or series of transactions,
the value of the consideration obtainable in a sale of such asset at such date
or on the date of such transaction or series of transactions assuming a sale by
a willing seller to a willing purchaser, neither of which is under pressure or
compulsion to complete the transaction and both of which are dealing at arm's
length, having regard to the nature and characteristics of such asset, as
reasonably determined by the Board of Directors of such Loan Party (unless such
consideration is equal to or less than $10,000,000, as determined
-21-
by a Responsible Officer of such Loan Party) or, if such asset shall have been
the subject of a relatively contemporaneous appraisal by an independent third
party appraiser, the basic assumptions underlying which have not materially
changed since its date, the value set forth in such appraisal, (b) with respect
to any marketable Security (including Cash Equivalents that constitute
marketable Securities) at any date, the closing sale price of such Security on
the Business Day next preceding such date, as appearing in any published list of
any national securities exchange or the NASDAQ Stock Market or, if there is no
such closing sale price of such Security, the final price for the purchase of
such Security at face value quoted on such Business Day by a financial
institution of recognized standing regularly dealing in Securities of such type
and reasonably selected by the Administrative Agent and (c) with respect to cash
or Cash Equivalents not constituting marketable Securities, the stated value
thereof.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FEDERAL RESERVE BOARD" means the Board of Governors of the United
States Federal Reserve System, or any successor thereto.
"FEE LETTER" means each of (a) the fee letter dated as of May 27, 2005,
among Borrower, Co-Borrower, Citicorp, CGMI, BofA, Banc of America Securities
LLC and CS, with respect to certain fees to be paid from time to time to the
Administrative Agent and the Arrangers, and (b) any additional fee letter
entered into as part of a Facilities Increase and executed by, among others, the
Administrative Agent.
"FINAL MATURITY DATE" shall mean the later of the Term Loan Maturity
Date and the maturity date applicable to existing Incremental Term Loans, as of
any date of determination.
"FINANCIAL ASSET" has the meaning given to such term in the UCC.
"FINANCIAL COVENANT DEBT" of any Person means Indebtedness of such
Person and its Subsidiaries (other than Unrestricted Subsidiaries) of the type
specified in clauses (a), (b), (d), (e), (f), (g) and (h) of the definition of
Indebtedness and non-contingent obligations of the type specified in clause (c)
of such definition, in each case to the extent each such item would be
classified as "indebtedness" on a Consolidated balance sheet of such Person.
"FINANCIAL STATEMENTS" means the financial statements of Borrower
delivered in accordance with SECTION 4.4 and SECTION 6.1.
"FISCAL QUARTER" means each quarterly accounting period of Borrower.
"FISCAL YEAR" means either (a) the 52 or 53 week period, as the case
may be, ending on the Sunday closest to December 31 of the corresponding
calendar year and beginning on
-22-
the day following the last day of the previous Fiscal Year or (b) such other
fiscal year as may be selected by Borrower pursuant to Section 8.14.
"FOREIGN NON-GUARANTOR" means any Non-Guarantor that is not organized
under the laws of any state of the United States of America or the District of
Columbia.
"FRONTING FEE RATE" means 0.125%.
"FUND" shall mean any 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 of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation, sovereign or government, any
state or other political subdivision thereof and any entity or authority
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any central bank or stock
exchange.
"GUARANTOR" means Parent and each Subsidiary Guarantor and, with
respect to the Revolving Credit Facility only, Co-Borrower.
"GUARANTY" means the guaranty, in substantially the form of EXHIBIT H,
executed by the Guarantors.
"GUARANTY OBLIGATION" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness will be paid or discharged, that any
agreement relating thereto will be complied with, or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof, including (a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of Indebtedness
of another Person and (b) any liability of such Person for Indebtedness of
another Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such Indebtedness or any security therefor or to
provide funds for the payment or discharge of such Indebtedness (whether in the
form of a loan, advance, stock purchase, capital contribution or otherwise),
(ii) to maintain the solvency or any balance sheet item, level of income or
financial condition of another Person, (iii) to make take-or-pay or similar
payments, (iv) to purchase, sell or lease (as lessor or lessee) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of such Indebtedness
against loss or (v) to supply funds to, or in any other manner invest in, such
other Person (including to pay for property or services irrespective of whether
such property is re-
-23-
ceived or such services are rendered), if in the case of any agreement described
under clause (b)(i), (ii), (iii), (iv) or (v) above the primary purpose or
intent thereof is to provide assurance that Indebtedness of another Person will
be paid or discharged, that any agreement relating thereto will be complied with
or that any holder of such Indebtedness will be protected (in whole or in part)
against loss in respect thereof. The amount of any Guaranty Obligation shall be
equal to the amount of the Indebtedness so guaranteed or otherwise supported.
"HEDGING CONTRACTS" means all Interest Rate Contracts, foreign exchange
contracts, currency swap or option agreements, forward contracts, commodity
swap, purchase or option agreements, other commodity price hedging arrangements
and all other similar agreements or arrangements designed to alter the risks of
any Person arising from fluctuations in interest rates, currency values or
commodity prices.
"HEDGING CONTRACT OBLIGATIONS" means each liability, amount,
obligation, covenant and duty owing by any Loan Party, of every type and
description, present or future, arising under each Hedging Contract with any
Person that was a Lender or an Affiliate of any such Lender at the time such
Person entered into such Hedging Contract, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty or other instrument or for the payment of money, including
obligations for the payment of fees, interest, charges, expenses, attorneys'
fees and disbursements and other sums chargeable to any Loan Party in connection
therewith.
"INCREASE JOINDER" has the meaning given to such term in SECTION
2.19(C).
"INCREMENTAL TERM LOAN COMMITMENT" has the meaning given to such term
in SECTION 2.19(A).
"INCREMENTAL TERM LOANS" has the meaning given to such term in SECTION
2.19(C).
"INDEBTEDNESS" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or that bear
interest, (c) all reimbursement and other obligations with respect to letters of
credit, bankers' acceptances, surety bonds and performance bonds, whether or not
matured, (d) all indebtedness for the deferred purchase price of property or
services, other than trade payables incurred in the ordinary course of business
that are not overdue by more than 90 days, (e) all indebtedness of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (f) all Capital Lease
Obligations of such Person, (g) all Guaranty Obligations of such Person, (h) all
Disqualified Stock of such Person, (i) all payments that such Person would have
to make in the event of an early termination on the date Indebtedness of such
Person is being determined in respect of Hedging Contracts of such Person, (j)
all Synthetic Lease Obligations of such Person and (k) all Indebtedness of the
type referred to above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
or in property (including ac-
-24-
counts and general intangibles) owned by such Person, even though such Person
has not assumed and is not otherwise liable for the payment of such
Indebtedness; PROVIDED, HOWEVER, that Indebtedness shall not include accretion
or amortization of original issue discount and accretion of interest paid in
kind. The value for purposes of this Agreement of any Indebtedness qualifying as
such under clause (k) above (regardless of whether such Indebtedness qualifies
as such under any other clause hereof) shall be deemed to be equal to the lesser
of (x) the amount of such Indebtedness and (y) the Fair Market Value of the
property subject to a Lien securing any of such Indebtedness.
"INDEMNIFIED MATTER" has the meaning specified in SECTION 11.4(A).
"INDEMNIFIED TAXES" means all Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning specified in SECTION 11.4(A).
"INITIAL CLOSING DATE" means the first date on which any Loan is made
or any Letter of Credit is Issued or deemed Issued pursuant to SECTION 2.4(K).
"INITIAL ESCROW AMOUNT" has the meaning specified in SECTION 2.20(A).
"INTELLECTUAL PROPERTY" has the meaning specified in the Pledge and
Security Agreement.
"INTEREST COVERAGE RATIO" means, with respect to any Person for any
period, the ratio of (a) Consolidated EBITDA of such Person for such period to
(b) Cash Interest Expense of such Person for such period.
"INTEREST EXPENSE" means, for any Person for any period, Consolidated
total interest expense of such Person and its Subsidiaries (other than
Unrestricted Subsidiaries) for such period and including, in any event, interest
capitalized during such period and net costs under Interest Rate Contracts for
such period, and excluding one-time costs associated with the termination or
settlement of any Interest Rate Contract.
"INTEREST PERIOD" means, in the case of any Eurodollar Rate Loan, (a)
initially, the period commencing on the date such Eurodollar Rate Loan is made
or on the date of conversion of a Base Rate Loan to such Eurodollar Rate Loan
and ending one, two, three or six months thereafter (or with the consent of all
applicable Lenders, ending nine or twelve months thereafter), as selected by
Borrower or Co-Borrower, as applicable, in its Notice of Borrowing or Notice of
Conversion or Continuation given to the Administrative Agent pursuant to SECTION
2.2 or 2.11, and (b) thereafter, if such Loan is continued, in whole or in part,
as a Eurodollar Rate Loan pursuant to SECTION 2.11, a period commencing on the
last day of the immediately preceding Interest Period therefor and ending one,
two, three or six months thereafter (or with the consent of all Lenders, ending
nine or twelve months thereafter), as selected by Borrower or Co-Borrower, as
applicable, in its Notice of Conversion or Continuation given to the
Administrative Agent pursuant to SECTION 2.11; PROVIDED, HOWEVER, that all of
the foregoing provisions relating to Interest Periods in respect of Eurodollar
Rate Loans are subject to the following:
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(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension would be to
extend such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(iii) Borrower or Co-Borrower, as the case may be, may not select
any Interest Period that ends after the date of a scheduled principal
payment on the Loans as set forth in ARTICLE II unless, after giving effect
to such selection, the aggregate unpaid principal amount of the Loans for
which Interest Periods end after such scheduled principal payment shall be
equal to or less than the principal amount to which the Loans are required
to be reduced after such scheduled principal payment is made; and
(iv) there shall be outstanding at any one time no more than ten
Interest Periods in the aggregate.
"INTEREST RATE CONTRACTS" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
"INVESTMENT" means, with respect to any Person, (a) any purchase or
other acquisition by such Person of (i) any Security issued by, (ii) a
beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any loan, advance (other than
deposits with financial institutions available for withdrawal on demand, prepaid
expenses, accounts receivable and similar items made or incurred in the ordinary
course of business as presently conducted) or capital contribution by such
Person to any other Person, including all Indebtedness of any other Person to
such Person arising from a sale of property by such Person other than in the
ordinary course of its business, and (c) any Guaranty Obligation incurred by
such Person in respect of Indebtedness of any other Person. For purposes of
ARTICLE VIII, the outstanding amount of any Investment made by any Person at any
time shall be calculated as the excess of the initial amount of such Investment
made by such Person (including the Fair Market Value of all property transferred
by such Person as part of such Investment) over the sum of, without duplication,
(x) all returns of principal or capital thereof received on or prior to such
time by such Person (including all cash dividends, cash distributions and cash
repayments of Indebtedness received by such Person) and (y) all liabilities of
such Person expressly transferred, prior to such time, in connection with the
sale or disposition of such Investment, but only to the extent such Person is
fully released from such liabilities by such transfer.
"IRS" means the Internal Revenue Service of the United States or any
successor thereto.
"ISSUE" means, with respect to any Letter of Credit, to issue
(including any deemed issuance pursuant to SECTION 2.4(K)), extend the expiry
of, renew or increase the maxi-
-26-
mum face amount (including by deleting or reducing any scheduled decrease in
such maximum face amount) of such Letter of Credit. The terms "ISSUED" and
"ISSUANCE" shall have a corresponding meaning.
"ISSUER" means, as the context may require, (a) Citibank, N.A., (b)
Wachovia Bank, N.A., (c) Bank of America, N.A., (d) each Lender or Affiliate of
a Lender that hereafter becomes an Issuer with the approval of the
Administrative Agent and Borrower by agreeing pursuant to an agreement with and
in form and substance satisfactory to the Administrative Agent and Borrower to
be bound by the terms hereof applicable to Issuers or (e) collectively, all of
the foregoing.
"LAND" of any Person means all of those plots, pieces or parcels of
land now owned, leased or hereafter acquired or leased (including, in respect of
the Loan Parties, as reflected in the most recent Financial Statements) by such
Person.
"LEASE ADJUSTED LEVERAGE RATIO" means, with respect to any Person as of
any date, the ratio of (a) the sum of (i) Consolidated Financial Covenant Debt
(net of the Escrow Balance) of such Person and its Subsidiaries (other than
Unrestricted Subsidiaries) outstanding as of such date PLUS (ii) Consolidated
Rental Expense for such Person for the last four Fiscal Quarter period ending on
or before such date MULTIPLIED by eight to (b) Consolidated EBITDAR for such
Person and its Subsidiaries (other than Unrestricted Subsidiaries) for the last
four Fiscal Quarter period ending on or before such date.
"LEASES" means, with respect to any Person, all leases or other
instruments creating leasehold estates in real property of such Person, as
lessee, as such may be amended, supplemented or otherwise modified from time to
time.
"LENDER" means the Swing Loan Lender and each other financial
institution or other entity that (a) is listed on the signature pages hereof as
a "Lender," (b) from time to time becomes a party hereto by execution of an
Assignment and Assumption or (c) becomes a party hereto in connection with a
Facilities Increase by execution of an assumption agreement in connection with
such Facilities Increase.
"LETTER OF CREDIT" means any letter of credit Issued pursuant to
SECTION 2.4.
"LETTER OF CREDIT OBLIGATIONS" means, at any time, the aggregate of all
liabilities at such time of Borrower to all Issuers with respect to Letters of
Credit, whether or not any such liability is contingent, including, without
duplication, the sum of (a) the Reimbursement Obligations at such time and (b)
the Letter of Credit Undrawn Amounts at such time.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" has the meaning specified in
SECTION 2.4(A)(V).
"LETTER OF CREDIT REQUEST" has the meaning specified in SECTION 2.4(C).
"LETTER OF CREDIT SUBLIMIT" means $30,000,000.
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"LETTER OF CREDIT UNDRAWN AMOUNTS" means, at any time, the aggregate
undrawn face amount of all Letters of Credit outstanding at such time.
"LEVERAGE RATIO" means, with respect to any Person as of any date, the
ratio of (a) Consolidated Financial Covenant Debt (net of the Escrow Balance) of
such Person and its Subsidiaries (other than Unrestricted Subsidiaries)
outstanding as of such date to (b) Consolidated EBITDA for such Person and its
Subsidiaries (other than Unrestricted Subsidiaries) for the last four Fiscal
Quarter period ending on or before such date.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
collateral assignment, charge, deposit arrangement, encumbrance, lien (statutory
or other), security interest or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or the performance of any other obligation,
including any conditional sale or other title retention agreement and the
interest of a lessor under a Capital Lease and any financing lease having
substantially the same economic effect as any of the foregoing.
"LOAN" means any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes (if
any), the Guaranty, each Fee Letter, each Letter of Credit Reimbursement
Agreement, the Collateral Documents and each certificate, agreement or document
executed by a Loan Party and delivered to the Collateral Agent or any Lender in
connection with or pursuant to any of the foregoing.
"LOAN PARTY" means each of Borrower, Co-Borrower and each Guarantor.
"MANAGEMENT AGREEMENT" means the Corporate Services Agreement, dated as
of the date hereof, between Borrower and Sponsor as in effect on the Initial
Closing Date and as thereafter amended in compliance with this Agreement.
"MANAGEMENT FEE" means (a) the management fee and other expenses
payable by Borrower to Sponsor when due pursuant to the Management Agreement, if
in effect, or (b) if the Management Agreement has been terminated, the amount of
the expenses of Sponsor (or its successor or assignee) attributable to Borrower
and its Subsidiaries consistent with the terms of the Management Agreement if it
were in effect.
"MATERIAL ADVERSE CHANGE" means a material adverse change in any of (a)
the business, assets, operations, properties or condition (financial or
otherwise) of Co-Borrower and its Subsidiaries taken as a whole, (b) the
legality, validity or enforceability of any Loan Document or any material right
of an Agent or Lender therein or (c) the ability of any Loan Party to perform
its respective obligations under the Loan Documents.
"MATERIAL ADVERSE EFFECT" means an effect that results in or causes, or
could reasonably be expected to result in or cause, a Material Adverse Change.
"MAXIMUM RATE" has the meaning specified in SECTION 11.21.
"MERGER SUB" has the meaning specified in the recitals to this
Agreement.
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"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which Co-Borrower, any of its Subsidiaries or any ERISA
Affiliate has any obligation or liability, contingent or otherwise.
"NET CASH PROCEEDS" means proceeds received by Co-Borrower or any
Restricted Subsidiary after the Initial Closing Date in cash or Cash Equivalents
from any (a) Asset Sale other than an Asset Sale permitted under clauses (a)
through (i) and (m) of SECTION 8.4, net of (i) the reasonable cash costs of
sale, assignment or other disposition (including fees, commission, costs and
other expenses), (ii) taxes paid or reasonably estimated to be payable as a
result thereof, (iii) any amount required to be paid or prepaid on Indebtedness
(other than the Obligations) secured by the assets subject to such Asset Sale,
as long as evidence of each of clauses (i), (ii) and (iii) above is provided to
the Administrative Agent to its reasonable satisfaction, and (iv) appropriate
amounts provided by the seller as a reserve (but only to the extent such amounts
remain set aside as a reserve; PROVIDED that in the event that cash or Cash
Equivalents are used to satisfy any liabilities associated with any such
reserve, the aggregate amount of such cash or Cash Equivalents shall not reduce
the amount of such reserve for purposes of this clause (a)(iv)), in accordance
with GAAP, against all liabilities associated with the property disposed of in
such Asset Sale and retained by Co-Borrower or any Restricted Subsidiary after
such Asset Sale, including pension and other post-employment benefit
liabilities, liabilities relating to environmental matters and liabilities under
indemnification provisions associated with such Asset Sale, (b) Property Loss
Event, net of costs and expenses incurred in connection with the collection of
such proceeds and not including proceeds of business interruption or similar
insurance or (c) Debt Issuance other than as permitted under SECTION 8.1, in
each case net of taxes, fees, commissions, indemnities, discounts, placement
fees, brokers', consultants', investment banking, legal, accounting and other
advisors' fees, expenses and other costs incurred in connection with such
transaction as long as evidence of such fees and costs is provided to the
Administrative Agent. For the avoidance of doubt, Net Cash Proceeds shall not
include any proceeds received in connection with the RTM Acquisitions.
"NOMINAL SHARES" means (a) for any Subsidiary of Borrower that is not a
Domestic Subsidiary, nominal issuances of Stock in an aggregate amount not to
exceed 1.0% of the Stock and Stock Equivalents of such Subsidiary on a fully
diluted basis and (b) in any case, directors' qualifying shares, in each case to
the extent such issuances are required by applicable law.
"NON-CASH INTEREST EXPENSE" means, with respect to any Person and its
Subsidiaries (other than Unrestricted Subsidiaries) for any period, the sum of
the following amounts to the extent included in the calculation of Interest
Expense of such Person, in each case determined on a Consolidated basis for such
Person and its Subsidiaries (other than Unrestricted Subsidiaries), (a) the
amount of debt discount and debt issuance costs amortized, (b) charges relating
to write-ups or write-downs in the book or carrying value of existing Financial
Covenant Debt of such Person, (c) interest payable in evidences of Indebtedness
or by addition to the principal of the related Indebtedness and (d) other
non-cash interest.
"NON-CONSENTING LENDER" has the meaning specified in SECTION 11.1(C).
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"NON-FUNDING LENDER" has the meaning specified in SECTION 2.2(D).
"NON-GUARANTOR" means any Subsidiary of any Loan Party that is not a
Subsidiary Guarantor, and any Subsidiary thereof.
"NON-GUARANTOR INVESTMENT AMOUNT" means, at any time, the amount by
which
(a) the sum, without duplication, of (i) all Investments (valued
as of the date such Investment is made) in all Non-Guarantors made by any
Loan Party (including any capital contribution to any Non-Guarantor, all
advances made to any Non-Guarantor by any Loan Party, all Guaranty
Obligations of any Loan Party of Indebtedness of any Non-Guarantor and all
Permitted Acquisitions by Loan Parties of Stock or Stock Equivalents of
Non-Guarantors or involving assets located outside the United States to the
extent, after giving effect to such Permitted Acquisition, such assets are
owned by Non-Guarantors) and (ii) the Fair Market Value, at the time of
such transfer, of all property (including cash and Cash Equivalents
received by any Non-Guarantor as consideration for Asset Sales by such
Non-Guarantor to any Loan Party) transferred to any Non-Guarantor by any
Loan Party on or after the Initial Closing Date other than as part of the
Transactions, EXCEEDS
(b) the sum of, without duplication, (i) any return on capital or
loan repayment (in the form of cash or Cash Equivalents) with respect to,
or net cash proceeds of the sale or other disposition of, such Investment
received by any Loan Party from any Non-Guarantor and (ii) the Fair Market
Value, at the time of such transfer, of all property (including cash and
Cash Equivalents received by any Loan Party as consideration for Asset
Sales by any Loan Party to any Non-Guarantor) transferred to any Loan Party
by any Non-Guarantor on or after the Initial Closing Date, other than as
part of the Transactions.
"NON-TRADITIONAL QSR" has the meaning specified in SECTION 5.4(B).
"NON-U.S. LENDER" means each Lender, Issuer or Agent that is a Non-U.S.
Person.
"NON-U.S. PERSON" means any Person that is not a Domestic Person.
"NOTE" means any Revolving Credit Note or Term Loan Note.
"NOTICE OF BORROWING" has the meaning specified in SECTION 2.2(A).
"NOTICE OF CONVERSION OR CONTINUATION" has the meaning specified in
SECTION 2.11(A).
"OBLIGATIONS" means the Loans, the Letter of Credit Obligations and all
other amounts, obligations, covenants and duties owing by Borrower or
Co-Borrower (or any amount paid by any Loan Party for the account of Borrower or
Co-Borrower) to the Administrative Agent, any Lender, any Issuer, any Affiliate
of any of them or any Indemnitee, of every type and description (whether by
reason of an extension of credit, opening or amendment of a letter of
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credit or payment of any draft drawn or other payment thereunder, loan,
guaranty, indemnification or otherwise), present or future, arising under this
Agreement or any other Loan Document, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty or other instrument or for the payment of money, including
all letter of credit, cash management and other fees, interest (including,
without limitation, any interest that accrues after the commencement of any
case, proceeding or other action relating to bankruptcy, insolvency,
reorganization or similar proceeding of any Loan Party, whether or not a claim
for such post-petition interest is allowed in any such proceeding), charges,
expenses, attorneys' fees and disbursements and other sums chargeable to
Borrower or Co-Borrower under this Agreement, or any other Loan Document and all
obligations of Borrower under any Loan Document to provide cash collateral for
any Letter of Credit Obligation.
"OTHER TAXES" has the meaning specified in SECTION 2.17(B).
"PAID IN FULL" and "PAYMENT IN FULL" mean, with respect to any Secured
Obligation, the occurrence of all of the following: (a) with respect to such
Secured Obligations other than (i) contingent indemnification obligations,
Hedging Contract Obligations and Cash Management Obligations not then due and
payable and (ii) to the extent covered by clause (b) below, obligations with
respect to undrawn Letters of Credit, payment in full thereof in cash (or
otherwise to the written satisfaction of the Secured Parties owed such Secured
Obligations), (b) with respect to any undrawn Letter of Credit, the obligations
under which are included in such Secured Obligations, (i) the cancellation
thereof and payment in full of all resulting Secured Obligations pursuant to
clause (a) above or (ii) the receipt of cash collateral (or a backstop letter of
credit in respect thereof on terms acceptable to the applicable Issuer of the
Letters of Credit and the Administrative Agent) in an amount at least equal to
102% of the Letter of Credit Obligations for such Letter of Credit and (c) if
such Secured Obligations consist of all the Secured Obligations under one or
more Facilities, termination of all Commitments and all other obligations of the
Secured Parties in respect of such Facilities under the Loan Documents.
"PARENT" has the meaning specified in the preamble to this Agreement.
"PARTICIPANT" has the meaning specified in SECTION 11.2(D).
"PATRIOT ACT" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act
of 2001.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PCB" has the meaning specified in SECTION 4.17(E).
"PERMIT" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Requirement of Law.
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"PERMITTED ACQUISITION" means any Proposed Acquisition subject to the
satisfaction of each of the following conditions:
(a) the Administrative Agent shall receive at least five Business
Days' (or such other period as may be agreed to by the Administrative Agent
in its sole discretion) prior written notice of such Proposed Acquisition,
which notice shall include, without limitation, a reasonably detailed
description of such Proposed Acquisition and a reasonable estimate of the
amount (if any) of any Net Cash Proceeds of any Equity Issuance and/or Debt
Issuance proposed to be used to pay for such Permitted Acquisition;
(b) such Proposed Acquisition shall only involve assets (which may
include Stock) comprising a business, or any assets of a business, of the
type engaged in by Borrower and its Subsidiaries as of the Initial Closing
Date or any other business that is reasonably related, complementary or
ancillary thereto (or a reasonable extension or expansion thereof) or
otherwise part of the quick service restaurant business;
(c) such Proposed Acquisition shall be consensual and shall have
been approved, if required by applicable Requirements of Law or Contractual
Obligations, by the Proposed Acquisition Target's Board of Directors;
(d) no additional Indebtedness shall be incurred, assumed or
otherwise be reflected on a Consolidated balance sheet of Co-Borrower and
the Proposed Acquisition Target after giving effect to such Proposed
Acquisition, except (i) Loans made hereunder, (ii) ordinary course trade
payables and accrued expenses and (iii) Indebtedness permitted under
SECTION 8.1;
(e) within 30 days after (or such later date as may be agreed to
by the Administrative Agent, in its sole discretion) the date of the
consummation of such Proposed Acquisition, each applicable Loan Party and
any Person that is a Proposed Acquisition Target and its Subsidiaries shall
have executed such documents and taken such actions as may be required
under SECTION 7.11;
(f) Borrower shall have delivered to the Administrative Agent, at
least five Business Days prior to such Proposed Acquisition, such existing
financial information, financial analysis, documentation or other existing
information relating to such Proposed Acquisition as the Administrative
Agent or any Lender shall reasonably request;
(g) on or prior to the date of the consummation of such Proposed
Acquisition, the Administrative Agent shall have received copies of the
acquisition agreement and, promptly thereafter (but in any event not later
than 15 days after the consummation of such Proposed Acquisition or such
later date as may be agreed to by the Administrative Agent in its sole
discretion), all related Contractual Obligations, instruments and all
opinions, certificates, lien search results and other documents reasonably
requested by the Administrative Agent;
(h) on the date of the consummation of such Proposed Acquisition
and after giving effect thereto, (i) no Default or Event of Default shall
have occurred and be con-
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tinuing and (ii) all representations and warranties contained in ARTICLE IV
and in the other Loan Documents shall be true and correct in all material
respects;
(i) on the date of the consummation of such Proposed Acquisition
and after giving effect thereto, the Leverage Ratio of Borrower shall be
less than the maximum ratio permitted by SECTION 5.1 by at least 0.25 to
1.0 on a Pro Forma Basis after giving effect to such Proposed Acquisition
and any other transactions to be consummated substantially
contemporaneously therewith (with the Leverage Ratio recomputed as of the
last day of the most recently ended Fiscal Quarter for which Financial
Statements have been delivered pursuant to SECTION 6.1(A) or (B)); and
(j) on the date of the consummation of such Proposed Acquisition
and after giving effect thereto, Borrower shall be in compliance with the
covenants in SECTION 5.2 and SECTION 5.3 on a Pro Forma Basis (with such
covenants recomputed as of the last day of the most recently ended Fiscal
Quarter for which Financial Statements have been delivered pursuant to
Section 6.1(a) or (b));
PROVIDED that in respect of Proposed Acquisitions that are both (x) for
consideration not in excess of $5,000,000 individually and (y) for consideration
not in excess of $10,000,000 in the aggregate in any Fiscal Year, clauses (a),
(f), (g), (h) and (i) above shall not apply, so long as no Event of Default has
occurred and is continuing (or will occur and be continuing after giving effect
to such Proposed Acquisition) and Borrower is in compliance with SECTION 5.1 on
a Pro Forma Basis on the date of the consummation of such Proposed Acquisition
and after giving effect thereto and to any other transactions to be consummated
substantially contemporaneously therewith (with the Leverage Ratio recomputed as
of the last day of the most recently ended Fiscal Quarter for which Financial
Statements have been delivered pursuant to SECTION 6.1(A) or (B)).
"PERMITTED DEBT" means Indebtedness permitted by SECTION 8.1.
"PERMITTED NON-COMPLIANT DEBT" means Indebtedness listed on SCHEDULE
7.11(A) in an aggregate principal amount not to exceed $7,500,000; PROVIDED that
such Indebtedness shall constitute Permitted Non-Compliant Debt only if (i) the
total Fair Market Value of all Prohibited Assets in respect of such Indebtedness
does not exceed $7,500,000 and (ii) to the extent such Indebtedness is owed to
General Electric Capital Corporation, General Motors Acceptance Corporation, The
Bank of New York or any of their respective Affiliates, no default or event of
default has occurred and is continuing under such Indebtedness.
"PERMITTED PARENT NOTES" means unsecured notes issued by Parent that
(a) have a maturity not earlier than the date that is six months after the Term
Loan Maturity Date, (b) do not require any repayments of principal earlier than
the date that is six months after the Term Loan Maturity Date, (c) allow for the
mandatory prepayments provided hereunder, (d) are on terms and conditions, taken
as a whole, customary for high yield notes at the time of issuance and do not
contain any financial maintenance covenants and (e) are not guaranteed by any
Subsidiaries of Co-Borrower, Parent or Borrower.
"PERMITTED REINVESTMENT" means, with respect to any Reinvestment Event,
(a) (i) the making of a Permitted Acquisition or the acquisition of (or making
of Capital Expendi-
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tures to finance the acquisition or improvement of), to the extent otherwise
permitted hereunder, assets useful in the business of Borrower or any Restricted
Subsidiary or (ii) any action of the type described in clause (i) above that
occurred after the Initial Closing Date and not more than 270 days prior to such
Reinvestment Event, if such action is identified as a Permitted Reinvestment in
a Reinvestment Notice or (b) if such Reinvestment Event is a Property Loss Event
that is a loss or damage, the repair or replacement of such loss or damage;
PROVIDED that no Permitted Reinvestment may be identified in more than one
Reinvestment Notice.
"PERMITTED SUBORDINATED DEBT" means unsecured Indebtedness of Borrower
that (a) is expressly subordinated in right of payment to the Secured
Obligations on market terms reasonably deemed customary by the Administrative
Agent at the time of incurrence, (b) is on terms and conditions that, taken as a
whole, are not significantly less favorable to any Loan Party than those
prevailing in the marketplace at the time of issuance, (c) has a maturity not
earlier than the date that is six months after the Term Loan Maturity Date, (d)
does not require any repayments of principal earlier than the date that is six
months after the Term Loan Maturity Date, (e) allows for the mandatory
prepayments provided hereunder, (f) is not guaranteed by any Person that is not
a Subsidiary Guarantor and is guaranteed only on a basis expressly subordinated
(on market terms reasonably deemed customary by the Administrative Agent at the
time of incurrence) in right of payment to the Secured Obligations and (g) is
otherwise on terms and conditions that are reasonably satisfactory to the
Administrative Agent.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity or a Governmental
Authority.
"PLEDGE AND SECURITY AGREEMENT" means an agreement, in substantially
the form of EXHIBIT I, executed by Borrower, Co-Borrower and each Guarantor.
"PLEDGED DEBT INSTRUMENTS" has the meaning specified in the Pledge and
Security Agreement.
"PLEDGED STOCK" has the meaning specified in the Pledge and Security
Agreement.
"POST-INCREASE REVOLVING LENDERS" has the meaning given to such term in
SECTION 2.19(D).
"PRE-INCREASE REVOLVING LENDERS" has the meaning given to such term in
SECTION 2.19(D).
"PRO FORMA BALANCE SHEET" has the meaning given to such term in SECTION
3.1(A).
"PRO FORMA BASIS" means, with respect to any determination for any
period, that such determination shall be made giving PRO FORMA effect to (i)
each Permitted Acquisition for consideration in excess of $3.0 million (and any
related incurrence of Indebtedness) consummated after the first day of such
period (and the RTM Acquisitions), (ii) each Sale of Business for gross proceeds
in excess of $3.0 million (and any related repayment of Indebtedness)
con-
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summated after the first day of such period, (iii) each quick service restaurant
location that commenced operations after the first day of such period, in each
case together with all transactions relating thereto consummated during such
period (including any incurrence, assumption, refinancing or repayment of
Indebtedness) and (iv) to the extent not covered by clauses (i), (ii) and (iii),
solely for purposes of determining compliance with SECTION 8.1(D), (H) or (I),
each incurrence and repayment of Indebtedness consummated after the first day of
such period under any such Section, as if such acquisition, Sale of Business,
commencement of operations, incurrence and related transactions had been
consummated on the first day of such period, in each case based on historical
results accounted for in accordance with GAAP and, to the extent applicable,
reasonable assumptions that are specified in detail in the relevant Compliance
Certificate, Financial Statements or other document provided to the
Administrative Agent or any Lender in connection herewith in accordance with
Regulation S-X under the Securities Act, and other cost savings and PRO FORMA
adjustments reasonably acceptable to the Administrative Agent. For purposes of
the foregoing determination, to the extent historical results for a quick
service restaurant location described in clause (iii) above are available for
less than a full fiscal year but are available for at least a full fiscal
quarter, such results shall be annualized based on the results for the fiscal
quarters available (it being understood that if historical results for such
location are not available for at least one full fiscal quarter, such results
shall not be part of any PRO FORMA calculation).
"PRO FORMA TRANSACTIONS" has the meaning given to such term in SECTION
3.1(A).
"PRODUCTS AGREEMENT" means the Letter, dated as of May 16, 2003,
between Sponsor and Sybra, Inc.
"PROHIBITED ASSETS" are, with respect to any Indebtedness, without
duplication (a) the total assets of the Loan Parties and their respective
Subsidiaries that are prohibited or restricted by the terms of such Indebtedness
from being pledged as security for the Secured Obligations and (b) the total
assets of any Loan Parties and any Subsidiaries of any Loan Parties that are
prohibited or restricted by the terms of such Indebtedness from becoming party
to the Guaranty.
"PROJECTIONS" means those financial projections dated June 28, 2005
covering Fiscal Years 2005 through 2010 inclusive, delivered to the Lenders by
Co-Borrower and prepared on a quarterly basis through the end of Fiscal Year
2005.
"PROPERTY LOSS EVENT" means (a) any loss of or damage to property of
Co-Borrower or any Restricted Subsidiary that results in the receipt by
Co-Borrower or such Subsidiary of proceeds of insurance exceeding $15,000,000
(individually or in the aggregate) or (b) any taking of property of Co-Borrower
or any Restricted Subsidiary that results in the receipt by such Person of a
compensation payment in respect thereof exceeding $15,000,000 (individually or
in the aggregate).
"PROPOSED ACQUISITION" means the (a) proposed acquisition by Borrower
or any Restricted Subsidiary of (i) all or substantially all of the assets (or
any operating division, ingredient, formula, product line or brand) or Stock of
any Person (including rights to a product line) or (ii) one or more existing
Arby's locations, or (b) the merger of any Person with or into Bor-
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rower or any Restricted Subsidiary (and, in the case of a merger with Borrower,
with Borrower being the surviving corporation).
"PROPOSED ACQUISITION TARGET" means any Person or any assets subject to
a Proposed Acquisition.
"PURCHASING LENDER" has the meaning specified in SECTION 11.7(A).
"RATABLE PORTION" or (other than in the expression "equally and
ratably") "RATABLY" means, with respect to any Lender, (a) with respect to the
Revolving Credit Facility, the percentage obtained by dividing (i) the Revolving
Credit Commitment of such Lender by (ii) the aggregate Revolving Credit
Commitments of all Lenders (or, at any time after the Revolving Credit
Termination Date, the percentage obtained by dividing the aggregate outstanding
principal balance of the Revolving Credit Outstandings owing to such Lender by
the aggregate outstanding principal balance of the Revolving Credit Outstandings
owing to all Lenders) and (b) with respect to the Term Loan Facility, the
percentage obtained by dividing (i) the Term Loan Commitment of, and Term Loans
made by, such Lender by (ii) the aggregate Term Loan Commitments of, and Term
Loans made by, all Lenders (or, at any time after the Second Closing Date, the
percentage obtained by dividing the outstanding principal amount of such
Lender's Term Loans by the aggregate outstanding principal amount of the Term
Loans of all Lenders).
"REAL PROPERTY" of any Person means the Land of such Person, together
with the right, title and interest of such Person, if any, in and to the
streets, the Land lying in the bed of any streets, roads or avenues, opened or
proposed, the air space and development rights pertaining to the Land and the
right to use such air space and development rights, all rights of way,
privileges, liberties, tenements, hereditaments and appurtenances belonging or
in any way appertaining thereto, all fixtures, all easements now or hereafter
benefiting the Land and all royalties and rights appertaining to the use and
enjoyment of the Land, including all alley, vault, drainage, mineral, water, oil
and gas rights, together with all of the buildings and other improvements now or
hereafter erected on the Land and any fixtures appurtenant thereto.
"REFINANCING GRACE PERIOD" has the meaning specified in SECTION 9.1(E).
"REGISTER" has the meaning specified in SECTION 2.7(B).
"REIMBURSEMENT DATE" has the meaning specified in SECTION 2.4(H).
"REIMBURSEMENT OBLIGATIONS" means, as and when matured, the obligation
of Borrower to pay, on the date payment is made or scheduled to be made to the
beneficiary under each Letter of Credit (or at such other date as may be
specified in the applicable Letter of Credit Reimbursement Agreement), all
amounts of each draft and other requests for payment drawn under Letters of
Credit and all other matured reimbursement or repayment obligations of Borrower
to any Issuer with respect to amounts drawn under Letters of Credit.
"REINVESTMENT DEFERRED PREPAYMENT" means, with respect to any Net Cash
Proceeds of any Reinvestment Event, the portion of such Net Cash Proceeds that
are subject to a Reinvestment Notice and the receipt of which would otherwise
trigger a mandatory prepayment of the Loans, reduction of the Commitments or
posting of cash collateral hereunder.
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"REINVESTMENT EVENT" has the meaning specified in SECTION 2.9(E).
"REINVESTMENT NOTICE" means a written notice executed by a Responsible
Officer of Borrower with respect to a Reinvestment Event stating that no Event
of Default has occurred and is continuing and that Co-Borrower (directly or
indirectly through one of its Restricted Subsidiaries) intends and expects to
make Permitted Reinvestments (or identifying previously made Permitted
Reinvestments as contemplated by clause (a)(ii) of the definition thereof) in an
amount not to exceed the Net Cash Proceeds of such Reinvestment Event.
"REINVESTMENT PREPAYMENT AMOUNT" means, on any Reinvestment Prepayment
Date for any portion of any Reinvestment Deferred Prepayment, such portion of
such Reinvestment Deferred Prepayment LESS any amount expended or required to be
expended pursuant to a Contractual Obligation entered into prior to such
Reinvestment Prepayment Date to make Permitted Reinvestments using such Net Cash
Proceeds.
"REINVESTMENT PREPAYMENT DATE" means, with respect to a portion of the
Reinvestment Deferred Prepayment of any Net Cash Proceeds of a Reinvestment
Event, the earliest of (a) the date occurring 360 days after such Reinvestment
Event, (b) the date that is five Business Days after the date on which Borrower
shall have notified the Administrative Agent of Borrower's determination not to
make Permitted Reinvestments with such portion of such Reinvestment Deferred
Prepayment and (c) the first date after such Reinvestment Event upon which an
Event of Default shall have occurred and is continuing.
"RELATED OBLIGATIONS" has the meaning specified in SECTION 10.9.
"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 PERSON" means (a) ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇, (b) any member
of the immediate family (as defined in Item 404 of Regulation S-K under the
Securities Act) of an individual referenced in clause (a), (c) any trust solely
for the benefit of one or more of the individuals referenced in clause (a) or
(b), (d) the estate of any individual referenced in clause (a) or (b), and (e)
any entity Controlling, Controlled by or under common Control with any of the
Persons referenced in clause (a), (b), (c) or (d).
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration, in
each case, of any Contaminant into the indoor or outdoor Environment, including
the movement of Contaminants through or in the air, soil, surface water,
groundwater or property.
"REMEDIAL ACTION" means all actions implemented to (a) clean up,
remove, treat or in any other way address any Contaminant in the indoor or
outdoor Environment, (b) prevent the Release or threat of Release or minimize
the further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
Environment or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
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"REQUIREMENT OF LAW" means, with respect to any Person, the common law
and all federal, state, local and foreign laws, treaties, rules and regulations,
orders, judgments, decrees and other determinations, concessions, grants,
franchises and licenses of or from any Governmental Authority or arbitrator,
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"REQUISITE LENDERS" means, collectively, Revolving Credit Lenders and
Term Loan Lenders having (a) before the Revolving Credit Termination Date, more
than fifty percent (50%) of the sum of the aggregate Revolving Credit
Commitments then outstanding, aggregate Term Loan Commitments then outstanding
and aggregate principal amount of Term Loans then outstanding and (b) after the
Revolving Credit Termination Date, more than fifty percent (50%) of the sum of
the aggregate Revolving Credit Outstandings and the aggregate principal amount
of all Term Loan Commitments and Term Loans then outstanding. Neither (i) any
Non-Funding Lender, nor (ii) Sponsor, Co-Borrower, Parent, Borrower or any of
their respective Affiliates or Subsidiaries, shall be included in the
calculation of "Requisite Lenders."
"REQUISITE LIEN" means a valid and perfected first-priority security
interest in favor of the Collateral Agent for the benefit of the Secured Parties
and securing the Secured Obligations.
"REQUISITE REVOLVING CREDIT LENDERS" means, collectively, Revolving
Credit Lenders having more than fifty percent (50%) of the aggregate outstanding
amount of the Revolving Credit Commitments or, after the Revolving Credit
Termination Date, more than fifty percent (50%) of the aggregate Revolving
Credit Outstandings. A Non-Funding Lender shall not be included in the
calculation of "Requisite Revolving Credit Lenders."
"REQUISITE TERM LOAN LENDERS" means, collectively, Term Loan Lenders
having more than 50% of the aggregate outstanding amount of the Term Loan
Commitments and Term Loans then outstanding. A Non-Funding Lender shall not be
included in the calculation of "Requisite Term Loan Lenders."
"RESPONSIBLE OFFICER" means, with respect to any Person, any of the
principal executive officers, managing members or general partners of such
Person but, in any event, with respect to financial matters, the chief financial
officer of such Person.
"RESTAURANT BUILD-OUT CAPITAL EXPENDITURE" means Capital Expenditures
consisting of (a) the acquisition of Real Property that (i) when acquired is
vacant or contains any property other than any Arby's restaurant and (ii)
Borrower (directly or through its Subsidiaries) intends to use to build and
operate a quick service restaurant thereon and (b) improvements upon any such
location prior to the commencement of quick service restaurant operations
thereon.
"RESTRICTED ENTITIES" means (i) those entities listed on SCHEDULE
1.1(A), (ii) any chain restaurant company with franchised and/or company-owned
outlets, and (iii) Affiliates of the entities referred to in clauses (i) and
(ii) above; PROVIDED that for purposes of this definition only, the reference to
"10% or more" in the definition of "Affiliate" shall be replaced by "greater
than 20%" in determining the Affiliates of the entities referred to in clause
(i) above.
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"RESTRICTED PAYMENT" means (a) any dividend, distribution or other
payment, whether direct or indirect, on account of any Stock or Stock Equivalent
of Co-Borrower or any Restricted Subsidiary now or hereafter outstanding and (b)
any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any Stock or Stock Equivalent of
Co-Borrower or any Restricted Subsidiary now or hereafter outstanding. For the
avoidance of doubt, payments made on the Initial Closing Date in connection with
the Transactions shall be deemed not to be Restricted Payments.
"RESTRICTED SUBSIDIARY" means each Subsidiary of Co-Borrower that is
not an Unrestricted Subsidiary.
"REVOLVING CREDIT BORROWING" means a Borrowing consisting of Revolving
Loans made on the same day by the Revolving Credit Lenders ratably according to
their respective Revolving Credit Commitments.
"REVOLVING CREDIT COMMITMENT" means, with respect to each Revolving
Credit Lender, the commitment of such Revolving Credit Lender to make Revolving
Loans and acquire interests in other Revolving Credit Outstandings in an
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Revolving Credit Lender's name on SCHEDULE I under the caption
"Revolving Credit Commitment" (as amended to reflect each Assignment and
Assumption executed by such Revolving Credit Lender), as such amount may be
reduced pursuant to this Agreement, and each additional commitment by such
Revolving Credit Lender under the Revolving Credit Facility that is included as
part of any Facilities Increase, as such amount may be reduced pursuant to this
Agreement.
"REVOLVING CREDIT FACILITY" means the Revolving Credit Commitments and
the provisions herein related to the Revolving Loans, Swing Loans and Letters of
Credit.
"REVOLVING CREDIT LENDER" means each Lender that (a) has a Revolving
Credit Commitment, (b) holds a Revolving Loan or (c) participates in any Letter
of Credit.
"REVOLVING CREDIT NOTE" means a promissory note of Borrower payable to
the order of any Revolving Credit Lender in a principal amount equal to the
amount of such Revolving Credit Lender's Revolving Credit Commitment evidencing
the aggregate Indebtedness of Borrower to such Revolving Credit Lender resulting
from the Revolving Loans owing to such Revolving Credit Lender.
"REVOLVING CREDIT OUTSTANDINGS" means, at any particular time, the sum
of (a) the principal amount of the Revolving Loans outstanding at such time, (b)
the Letter of Credit Obligations outstanding at such time and (c) the principal
amount of the Swing Loans outstanding at such time.
"REVOLVING CREDIT TERMINATION DATE" means the earliest of (a) the
Scheduled RC Maturity Date, (b) the date of termination of all of the Revolving
Credit Commitments pursuant to SECTION 2.5 and (c) the date on which the
Obligations become due and payable pursuant to SECTION 9.2.
"REVOLVING LOAN" has the meaning specified in SECTION 2.1(A).
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"RTM ACQUISITION AGREEMENT" means each of (i) the Agreement and Plan of
Merger dated as of May 27, 2005 among Sponsor, Borrower, Merger Sub, Arby's
Acquisition Co., RTMRG and the RTM Representatives named therein, (ii) the
Membership Interest Purchase Agreement dated as of May 27, 2005 among Sponsor,
Borrower, all the members of RTMAC and the RTM Representatives named therein and
(iii) the Asset Purchase Agreement dated as of May 27, 2005 among Sponsor,
Borrower, Acquisition Sub, RTMMC, all the members of RTMMC and the RTM
Representatives named therein.
"RTM ACQUISITIONS" has the meaning specified in the recitals to this
Agreement.
"RTM REFINANCING" means the repayment in full of all Indebtedness of
the Acquired Businesses (i) not listed on SCHEDULE 7.11(A), no later than the
Second Closing Date and (ii) listed on SCHEDULE 7.11(A), no later than the end
of the Refinancing Grace Period (subject to Permitted Non-Compliant Debt
remaining outstanding).
"RTMAC" has the meaning specified in the recitals to this Agreement.
"RTMMC" has the meaning specified in the recitals to this Agreement.
"RTMOC" means RTM Operating Company, a Delaware corporation.
"RTMRG" has the meaning specified in the recitals to this Agreement.
"S&P" means Standard & Poor's Ratings Group.
"SALE OF BUSINESS" means the sale of all or substantially all of the
Stock of, or all or substantially all of the assets of, any Person or the sale
of any division, line of business or quick service restaurant location.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT" means the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended.
"SCHEDULED RC MATURITY DATE" means July 25, 2011, the sixth anniversary
of the Initial Closing Date.
"SECOND CLOSING DATE" means the first Business Day after the Initial
Closing Date.
"SECURED OBLIGATIONS" means the Obligations, the Cash Management
Obligations and Hedging Contract Obligations of the Loan Parties and the
obligations of the Loan Parties under the Guaranty and the other Loan Documents.
"SECURED PARTIES" means the Lenders, the Issuers, the Collateral Agent
and each other holder of any Secured Obligation.
"SECURITIES ACCOUNT" has the meaning given to such term in the UCC.
"SECURITIES ACCOUNT CONTROL AGREEMENT" has the meaning specified in the
Pledge and Security Agreement.
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"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SECURITIZATION NOTES" mean the 7.44% fixed rate insured notes due
December 20, 2020 issued by Arby's Franchise Trust in an original principal
amount of $290,000,000 pursuant to an Indenture dated November 21, 2000, among
Arby's Franchise Trust, as Issuer, BNY Midwest Trust Company, a Bank of New York
Company, as Indenture Trustee, and Ambac Assurance Corporation, as Insurer.
"SECURITY" means any Stock, Stock Equivalent, voting trust certificate,
bond, debenture, note or other evidence of Indebtedness, whether secured,
unsecured, convertible or subordinated, or any certificate of interest, share or
participation in, any temporary or interim certificate for the purchase or
acquisition of, or any right to subscribe for, purchase or acquire, any of the
foregoing, but shall not include any evidence of the Obligations.
"SELLERS" means the shareholders and/or members of RTMRG, RTMAC and
RTMMC, as the context requires.
"SELLING LENDER" has the meaning specified in SECTION 11.7(A).
"SOLVENT" means, with respect to any Person as of any date of
determination, that, as of such date, (a) the value of the assets of such Person
(both at fair value and present fair saleable value) is greater than the total
amount of liabilities (including contingent and unliquidated liabilities) of
such Person, (b) such Person is able to pay all liabilities of such Person as
such liabilities mature and (c) such Person does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities shall be computed at the amount that, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability (in each
case as interpreted in accordance with fraudulent conveyance, bankruptcy,
insolvency and similar laws and other applicable Requirements of Law).
"SPONSOR" has the meaning specified in the recitals to this Agreement.
"SPONSOR CONVERTIBLE NOTES" means Sponsor's 5% convertible notes due
2023 as in effect on the date hereof and in a principal amount not exceeding the
principal amount outstanding on the date hereof.
"SPONSOR REFINANCING INDEBTEDNESS" means any Indebtedness incurred by
Sponsor to refinance the Sponsor Convertible Notes.
"STANDBY LETTER OF CREDIT" means any Letter of Credit that is not a
Documentary Letter of Credit.
"STOCK" means shares of capital stock (whether denominated as common
stock or preferred stock), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity,
whether voting or non-voting.
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"STOCK EQUIVALENTS" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not currently convertible, exchangeable or
exercisable.
"SUBORDINATED DEBT" means, in each case to the extent permitted to be
incurred by such Loan Party hereunder, (a) Permitted Subordinated Debt of
Borrower and (b) any other Indebtedness of any Loan Party that is expressly
subordinated in right of payment to any of the Secured Obligations and is
scheduled to mature not earlier than the date that is six months after the Term
Loan Maturity Date.
"SUBORDINATED DEBT DOCUMENT" means any note, indenture or credit
agreement related to any Subordinated Debt, and any other agreement,
certificate, power of attorney or document related to any of the foregoing.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company or other business entity of which an
aggregate of more than 50% of the outstanding Voting Stock is, at the time,
directly or indirectly, owned or controlled by such Person or one or more
Subsidiaries of such Person.
"SUBSIDIARY GUARANTOR" means each Subsidiary of Co-Borrower that is
party to or that becomes party to the Guaranty.
"SUBSTITUTE INSTITUTION" has the meaning specified in SECTION 2.18(A).
"SUBSTITUTION NOTICE" has the meaning specified in SECTION 2.18(A).
"SWING LOAN" has the meaning specified in SECTION 2.3(A).
"SWING LOAN LENDER" means Citicorp or any other Revolving Credit Lender
that becomes the Administrative Agent or agrees, with the approval of the
Administrative Agent and Borrower, to act as the Swing Loan Lender hereunder, in
each case in its capacity as the Swing Loan Lender hereunder.
"SWING LOAN REQUEST" has the meaning specified in SECTION 2.3(B).
"SWING LOAN SUBLIMIT" means $20,000,000.
"SYNDICATION AGENTS" has the meaning specified in the preamble hereto.
"SYNDICATION COMPLETION DATE" means the earlier to occur of (a) the
60th day following the Initial Closing Date and (b) the date upon which the
Arrangers reasonably determine that the primary syndication of the Loans and
Revolving Credit Commitments has been completed (it being agreed that the
Arrangers shall promptly provide written notice thereof to the Administrative
Agent and Borrower).
"SYNTHETIC LEASE OBLIGATION" means, with respect to any Person, the
monetary obligation of such 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, in each case,
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do not appear on the balance sheet of such Person but that, upon the insolvency
or bankruptcy of such Person, would be characterized as Indebtedness of such
Person (without regard to accounting treatment).
"TAX AFFILIATE" means, with respect to any Person, (a) any Subsidiary
of such Person and (b) any Affiliate of such Person with which such Person files
or is eligible to file consolidated, combined or unitary tax returns.
"TAX RETURN" has the meaning specified in SECTION 4.8(A).
"TAXES" means (i) 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, and (ii) all transferee, successor, joint and several,
contractual or other liability (including, without limitation, liability
pursuant to Treas. Reg. Section 1.1502-6 or any similar state, local or foreign
provision) in respect of any item described in clause (i), whether disputed or
not.
"TERM LOAN" means any loan made to either Borrower pursuant to SECTION
2.1(B) or an Incremental Term Loan Commitment.
"TERM LOAN BORROWING" means a borrowing consisting of Term Loans made
on the same day by the Term Loan Lenders to the same Borrower.
"TERM LOAN COMMITMENT" means, with respect to each Term Loan Lender,
(a) the commitment of such Lender to make Term Loans to Borrower or Co-Borrower
on the Initial Closing Date or the Second Closing Date in an aggregate principal
amount outstanding not to exceed the amount set forth opposite such Lender's
name on SCHEDULE I under the caption "Term Loan Commitment" (as amended to
reflect each Assignment and Assumption executed by such Lender), as such amount
may be reduced pursuant to this Agreement (including, without limitation, by
SECTION 2.2(F)), and (b) any commitment by such Lender that is included as part
of a Facilities Increase to make Term Loans on any Facilities Increase Date, as
such amount may be reduced pursuant to this Agreement.
"TERM LOAN COMMITMENT TERMINATION DATE" means, with respect to any term
commitment of any Lender or prospective Lender, (a) if such commitment is
entered into as part of a Facilities Increase, the earliest of the date agreed
by Borrower and the Administrative Agent to be the date of termination of the
commitments for such Facilities Increase, any termination date expressly set
forth in the commitment letter for such commitment and the Facilities Increase
Date for such Facilities Increase after the incurrence of any Term Loan on such
date and (b) in the case of any other commitment (including any Term Loan
Commitment existing on the Initial Closing Date), the Second Closing Date.
"TERM LOAN FACILITY" means the Term Loan Commitments and the provisions
herein related to the Term Loans.
"TERM LOAN LENDER" means each Lender that has a Term Loan Commitment or
that holds a Term Loan.
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"TERM LOAN MATURITY DATE" means July 25, 2012, the seventh anniversary
of the Initial Closing Date.
"TERM LOAN NOTE" means a promissory note of Borrower payable to the
order of any Term Loan Lender in a principal amount equal to the amount of the
Term Loan owing to such Lender.
"TITLE IV PLAN" means a pension plan, other than a Multiemployer Plan,
covered by Title IV of ERISA and to which Co-Borrower, any of its Subsidiaries
or any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"TRADITIONAL QSR" has the meaning specified in SECTION 5.4(B).
"TRANCHE" means, with respect to Term Loans, any Loans subject to
identical terms with respect to Applicable Margins and having identical fees,
maturity and scheduled repayment and prepayment requirements. All Term Loans
made on the Initial Closing Date and the Second Closing Date shall be of a
single Tranche.
"TRANSACTIONS" means the transactions contemplated in connection with
the RTM Acquisitions, the Cash Investment, the closing of the Facilities and the
Borrowings made on the Initial Closing Date and the Second Closing Date, the RTM
Refinancing, the ARG Refinancing and the consummation of the other transactions
contemplated by the Closing Date Related Documents.
"TRIGGER DATE" means the first date on which Borrower delivers
Financial Statements pursuant to SECTION 6.1(A) or (B) in respect of a fiscal
period ended not less than six months after the Initial Closing Date.
"UCC" has the meaning specified in the Pledge and Security Agreement.
"UNFINANCED CAPITAL EXPENDITURES" means, with respect to any Person for
any period, the Capital Expenditures of such Person in such period other than
the portion of such Capital Expenditures financed with the Net Cash Proceeds of
(a) Capital Leases or other Indebtedness (other than Revolving Loans) of
Co-Borrower or any Restricted Subsidiary, (b) Equity Issuances or (c)
Reinvestment Events; PROVIDED, HOWEVER, that (x) in the case of Capital Leases,
Indebtedness and Equity Issuances, the incurrence thereof is permitted under
this Agreement and the receipt of such Net Cash Proceeds does not cause a
mandatory prepayment of the Obligations pursuant to SECTION 2.9 and (y) in the
case of Reinvestment Events, the financing of Capital Expenditures with the Net
Cash Proceeds thereof is a Permitted Reinvestment of such Net Cash Proceeds
permitted pursuant to SECTION 2.9(E).
"UNRESTRICTED SUBSIDIARY" means any direct or indirect Subsidiary of
Borrower that, at the time of determination, shall be an Unrestricted Subsidiary
(as designated by the Board of Directors of Borrower, as provided below). The
Board of Directors of Borrower may designate any Subsidiary of Borrower
(including any newly acquired or newly formed Subsidiary at or prior to the time
it is so formed or acquired) to be an Unrestricted Subsidiary if (a) no Default
or Event of Default has occurred and is continuing or will occur as a
consequence thereof, (b) such Subsidiary does not own any Stock (or Stock
Equivalents) of, or own or hold any Lien on any
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property of, Co-Borrower, Parent, Borrower or any of their respective
Subsidiaries (other than Unrestricted Subsidiaries), (c) such Subsidiary and
each of its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become directly
or indirectly liable with respect to any Indebtedness pursuant to which the
lender has recourse to any property of Co-Borrower, Parent, Borrower or any of
their respective Subsidiaries (other than Unrestricted Subsidiaries) and (d)
either (A) at the time of such designation such Subsidiary shall not have more
than DE MINIMIS assets or (B) Borrower shall be permitted to make an Investment
in such Subsidiary in an amount equal to the fair market value of the Stock and
Stock Equivalents of such Subsidiary held by Borrower and its Subsidiaries
pursuant to SECTION 8.3. Any Subsidiary of an Unrestricted Subsidiary shall be
an Unrestricted Subsidiary for purposes of this Agreement and the other Loan
Documents. The Board of Directors of Borrower may redesignate an Unrestricted
Subsidiary to be a Restricted Subsidiary if (a) no Default or Event of Default
has occurred and is continuing or will occur as a consequence thereof, (b) such
Subsidiary is a Wholly-Owned Subsidiary and becomes a party to the Guaranty and
the Pledge and Security Agreement, (c) after giving effect to such redesignation
and the incurrence of any Indebtedness incurred by such Subsidiary since the
last day of the most recently ended Fiscal Quarter for which Financial
Statements have been delivered pursuant to SECTION 6.1(A) or (B), on a Pro Forma
Basis, Borrower would be in compliance with SECTIONS 5.1, 5.2 and 5.3, and (d)
all Indebtedness, Liens and Investments of such Subsidiary outstanding
immediately after such designation would, if incurred at such time, have been
permitted to be incurred (and shall be deemed to have been incurred) for all
purposes of this Agreement. Each such designation shall be evidenced by filing
with the Administrative Agent a certified copy of the resolution giving effect
to such designation and a certification from a Responsible Officer of Borrower
stating that such designation complied with the foregoing conditions.
"U.S. LENDER" means each Lender, Issuer or Agent that is a Domestic
Person.
"VOTING STOCK" means Stock of any Person having ordinary power to vote
in the election of members of the Board of Directors of such Person
(irrespective of whether, at the time, Stock of any other class or classes of
such entity shall have or might have voting power by reason of the happening of
any contingency).
"WHOLLY-OWNED SUBSIDIARY" of any Person means any Subsidiary of such
Person, all of the Stock of which (other than Nominal Shares) is owned by such
Person, either directly or indirectly through one or more Wholly-Owned
Subsidiaries of such Person.
"WITHDRAWAL LIABILITY" means, with respect to Co-Borrower or any of its
Subsidiaries at any time, the aggregate liability incurred (whether or not
assessed) with respect to all Multiemployer Plans pursuant to Section 4201 of
ERISA or for increases in contributions required to be made pursuant to Section
4243 of ERISA.
"WORKING CAPITAL" means, for any Person at any date, the amount, if
any, by which the Consolidated Current Assets of such Person at such date exceed
the Consolidated Current Liabilities of such Person at such date.
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Section 1.2 COMPUTATION OF TIME PERIODS
In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
Section 1.3 ACCOUNTING TERMS AND PRINCIPLES
(a) Except as set forth below, all accounting terms not
specifically defined herein shall be construed in accordance with GAAP and all
accounting determinations required to be made pursuant hereto (including for
purpose of measuring compliance with ARTICLE V) shall, unless expressly
otherwise provided herein, be made in accordance with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in SECTION 6.1
is hereafter required or permitted by the rules, regulations, pronouncements and
opinions of the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or any successors thereto) and such change is
adopted by Co-Borrower or any of its Subsidiaries with the agreement of
Borrower's Accountants and results in a change in any of the calculations
required by ARTICLE V or VIII that would not have resulted had such accounting
change not occurred, the parties hereto agree to enter into negotiations in good
faith in order to amend such provisions so as to equitably reflect such change
such that the criteria for evaluating compliance with such covenants shall be
the same after such change as if such change had not been made; PROVIDED,
HOWEVER, that no change in GAAP that would affect a calculation that measures
compliance with any covenant contained in ARTICLE V or VIII shall be given
effect until such provisions are amended to reflect such changes in GAAP.
(c) For purposes of making all financial calculations to determine
compliance with ARTICLE V, all components of such calculations (other than
Capital Expenditures) shall be determined on a Pro Forma Basis.
Section 1.4 RESOLUTION OF DRAFTING AMBIGUITIES
Each Loan Party acknowledges and agrees that it was represented by
counsel in connection with the execution and delivery of the Loan Documents to
which it is a party, that it and its counsel reviewed and participated in the
preparation and negotiation hereof and thereof and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation hereof or thereof.
Section 1.5 CERTAIN TERMS
(a) The terms "herein," "hereof," "hereto" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause of this Agreement.
(b) Unless otherwise expressly indicated herein, (i) references in
this Agreement to an Exhibit, Schedule, Article, Section, clause or subclause
refer to the appropriate Exhibit or Schedule to, or Article, Section, clause or
subclause of this Agreement and (ii) the words
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"above" and "below," when following a reference to a clause or a subclause of
any Loan Document, refer to a clause or subclause within, respectively, the same
Section or clause. (c) Each agreement defined in this ARTICLE I shall include
all appendices, exhibits and schedules thereto. Unless the prior written consent
of the Requisite Lenders or any Agent is required hereunder for an amendment,
restatement, supplement or other modification to any such agreement and such
consent is not obtained, or unless otherwise provided, references in this
Agreement to such agreement shall be to such agreement as so amended, restated,
supplemented or modified from time to time.
(d) References in this Agreement to any Requirement of Law shall
be to such Requirement of Law as amended or modified from time to time and to
any successor legislation thereto, in each case as in effect at the time any
such reference is operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender," "Revolving Credit Lender," "Term Loan
Lender," "Issuer," "Agent," "Collateral Agent," "Administrative Agent,"
"Syndication Agents" and "Documentation Agents" include, without limitation,
their respective successors.
(g) Upon the appointment of any successor Administrative Agent
pursuant to SECTION 10.7, references to Citicorp in SECTION 10.4 and to Citibank
in the definitions of Base Rate and Eurodollar Rate shall be deemed to refer to
the financial institution then acting as the Administrative Agent or one of its
Affiliates if it so designates.
(h) 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.
ARTICLE II
THE FACILITIES
Section 2.1 THE COMMITMENTS
(a) REVOLVING CREDIT COMMITMENTS. On the terms and subject to the
conditions contained in this Agreement, each Revolving Credit Lender severally
agrees to make loans in Dollars (each a "REVOLVING LOAN") to Borrower from time
to time on any Business Day during the period from the Second Closing Date until
the Revolving Credit Termination Date in an aggregate principal amount at any
time outstanding for all such loans by such Revolving Credit Lender not to
exceed such Revolving Credit Lender's Revolving Credit Commitment; PROVIDED,
HOWEVER, that at no time shall any Revolving Credit Lender be obligated to make
a Revolving Loan in excess of such Revolving Credit Lender's Ratable Portion of
the Available Credit. Within the limits of the Revolving Credit Commitment of
each Revolving Credit Lender, amounts of Revolving Loans repaid may be
reborrowed under this SECTION 2.1.
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(b) TERM LOAN COMMITMENTS. (i) On the terms and subject to the
conditions contained in this Agreement, each Term Loan Lender severally agrees
to make loans in Dollars to Borrower and/or Co-Borrower on the Initial Closing
Date and on the Second Closing Date in aggregate amounts not to exceed such
Lender's Term Loan Commitment on such dates.
(ii) Each Lender (or Affiliate or Approved Fund thereof) or
Eligible Assignee that has, in its sole discretion, committed to a Facilities
Increase shall agree as part of such commitment that, on the Facilities Increase
Date for such Facilities Increase of the Term Loan Facility, on the terms and
subject to the conditions set forth in its commitment therefor or otherwise
agreed to as part of such commitment or set forth in this Agreement as amended
in connection with such Facilities Increase, such Lender, Affiliate, Approved
Fund or Eligible Assignee shall make a loan in Dollars to Borrower and/or
Co-Borrower, as the case may be, in an amount not to exceed such commitment to
such Facilities Increase.
(iii) Amounts of Term Loans prepaid may not be reborrowed.
Section 2.2 BORROWING PROCEDURES
(a) Each Borrowing shall be made on notice given by Borrower or
Co-Borrower, as the case may be, to the Administrative Agent not later than
12:00 p.m. (New York time) (i) on the date of the proposed Borrowing, which
shall be a Business Day, in the case of a Borrowing of Base Rate Loans, and (ii)
three Business Days, in the case of a Borrowing of Eurodollar Rate Loans, prior
to the date of the proposed Borrowing. Each such notice shall be in
substantially the form of EXHIBIT C (a "NOTICE OF BORROWING"), specifying (A)
the date of such proposed Borrowing (which, in the case of a Term Loan Borrowing
that is not made as part of a Facilities Increase, shall be the Initial Closing
Date or the Second Closing Date and, in the case of any Term Loan Borrowing that
is made as part of a Facilities Increase, shall be the Facilities Increase Date
for such Facilities Increase), (B) the aggregate amount of such proposed
Borrowing, (C) whether any portion of the proposed Borrowing will be of Base
Rate Loans or Eurodollar Rate Loans, (D) for each Eurodollar Rate Loan, the
initial Interest Period or Periods thereof and (E) in the case of Borrowings on
the Initial Closing Date or the Second Closing Date, the amount of such
Borrowings to be funded directly into the Escrow Account in accordance with
SECTION 2.20. Loans shall be made as Base Rate Loans unless, subject to SECTION
2.14, the Notice of Borrowing specifies that all or a portion thereof shall be
Eurodollar Rate Loans. Notwithstanding anything to the contrary contained in
SECTION 2.3(A), if any Notice of Borrowing requests a Revolving Credit Borrowing
of Base Rate Loans, the Administrative Agent may make a Swing Loan available to
Borrower in an aggregate amount not to exceed such proposed Revolving Credit
Borrowing, and the aggregate amount of the corresponding proposed Revolving
Credit Borrowing shall be reduced accordingly by the principal amount of such
Swing Loan. Each Borrowing shall be in an aggregate amount of not less than
$1,000,000 or an integral multiple of $500,000 in excess thereof.
(b) The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent's receipt of a Notice of Borrowing and, if
Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the
applicable interest rate determined pursuant to SECTION 2.14(A). Each Lender
shall, before 2:00 p.m. (New York time) on the date of the proposed Borrowing,
make available to the Administrative Agent at its address referred to in SEC-
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TION 11.8(A), in immediately available funds, such Lender's Ratable Portion of
such proposed Borrowing. Upon fulfillment (or due waiver in accordance with
SECTION 11.1) (i) on the Initial Closing Date and Second Closing Date, of the
applicable conditions set forth in SECTION 3.1 and (ii) at any time (including
the Initial Closing Date), of the applicable conditions set forth in SECTION
3.2, and after the Administrative Agent's receipt of such funds, the
Administrative Agent shall make such funds available to Borrower and/or
Co-Borrower, as the case may be, subject to SECTION 2.20.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any proposed Borrowing that such Lender will
not make available to the Administrative Agent such Lender's Ratable Portion of
such Borrowing (or any portion thereof), the Administrative Agent may assume
that such Lender has made such Ratable Portion available to the Administrative
Agent on the date of such Borrowing in accordance with this SECTION 2.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrower or Co-Borrower, as the case may be, on such date a corresponding
amount, subject to SECTION 2.20. If and to the extent that such Lender shall not
have so made such Ratable Portion available to the Administrative Agent, such
Lender and Borrower or Co-Borrower, as the case may be, severally agree to repay
to the Administrative Agent forthwith on demand (and, in the case of Borrower or
Co-Borrower, within three Business Days after receipt of such demand) such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to Borrower until the date such amount is repaid
to the Administrative Agent, at (i) in the case of Borrower or Co-Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate for the first Business
Day and thereafter at the interest rate applicable at the time to the Loans
comprising such Borrowing. If such Lender shall repay to the Administrative
Agent such corresponding amount, such corresponding amount so repaid shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement. If Borrower or Co-Borrower shall repay to the Administrative Agent
such corresponding amount, such payment shall not relieve such Lender of any
obligation it may have hereunder to Borrower or Co-Borrower, as the case may be.
(d) The failure of any Lender to make on the date specified any
Loan or any payment required by it (such Lender being a "NON-FUNDING LENDER"),
including any payment in respect of its participation in Swing Loans and Letter
of Credit Obligations, shall not relieve any other Lender of its obligations to
make such Loan or payment on such date but no such other Lender shall be
responsible for the failure of any Non-Funding Lender to make a Loan or payment
required under this Agreement.
(e) Each Loan made on the Initial Closing Date and the Second
Closing Date shall initially be a Base Rate Loan.
(f) Upon the making of a Term Loan by a Term Loan Lender, such
Lender's Term Loan Commitment shall be reduced by an amount equal to the amount
of such Term Loan.
Section 2.3 SWING LOANS
(a) On the terms and subject to the conditions contained in this
Agreement, the Swing Loan Lender shall make, in Dollars, loans (each a "SWING
LOAN") otherwise available
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to Borrower under the Revolving Credit Facility from time to time on any
Business Day during the period from the date hereof until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding
(together with the aggregate outstanding principal amount of any other Loan made
by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan
Lender) not to exceed the Swing Loan Sublimit; PROVIDED, HOWEVER, that at no
time shall the Swing Loan Lender make any Swing Loan in excess of the Available
Credit. Each Swing Loan shall be a Base Rate Loan and must be paid in full upon
any Revolving Credit Borrowing hereunder and shall in any event mature no later
than the Revolving Credit Termination Date. Within the limits set forth in the
first sentence of this clause (a), amounts of Swing Loans repaid may be
reborrowed under this clause (a).
(b) In order to request a Swing Loan, Borrower shall telecopy (or
forward by electronic mail or similar means) to the Administrative Agent a duly
completed request in substantially the form of EXHIBIT D, setting forth the
requested amount and date of such Swing Loan (a "SWING LOAN REQUEST"), to be
received by the Administrative Agent not later than 1:00 p.m. (New York time) on
the day of the proposed borrowing. The Administrative Agent shall promptly
notify the Swing Loan Lender of the details of the requested Swing Loan. Subject
to the terms of this Agreement, the Swing Loan Lender shall make a Swing Loan
available to the Administrative Agent and, in turn, the Administrative Agent
shall make such amounts available to Borrower on the date of the relevant Swing
Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period
commencing on the first Business Day after it receives written notice from the
Administrative Agent or any Revolving Credit Lender that one or more of the
conditions precedent contained in SECTION 3.2 shall not on such date be
satisfied, and ending when such conditions are satisfied. The Swing Loan Lender
shall not otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in SECTION 3.2 have been satisfied in connection
with the making of any Swing Loan.
(c) The Swing Loan Lender shall notify the Administrative Agent in
writing (which writing may be a telecopy or electronic mail) weekly, by no later
than 10:00 a.m. (New York time) on the first Business Day of each week, of the
aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each
Revolving Credit Lender pay to the Administrative Agent, for the account of the
Swing Loan Lender, in the manner provided in clause (e) below, such Revolving
Credit Lender's Ratable Portion of all or a portion of the outstanding Swing
Loans, which demand shall be made through the Administrative Agent, shall be in
writing and shall specify the outstanding principal amount of Swing Loans
demanded to be paid.
(e) (i) The Administrative Agent shall forward each notice
referred to in clause (c) above and each demand referred to in clause (d) above
to each Revolving Credit Lender on the day such notice or such demand is
received by the Administrative Agent (except that any such notice or demand
received by the Administrative Agent after 2:00 p.m. (New York time) on any
Business Day or any such demand received on a day that is not a Business Day
shall not be required to be forwarded to the Revolving Credit Lenders by the
Administrative Agent until the next succeeding Business Day), together with a
statement prepared by the Administrative Agent specifying the amount of each
Revolving Credit Lender's Ratable Portion of
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the aggregate principal amount of the Swing Loans stated to be outstanding in
such notice or demanded to be paid pursuant to such demand, and, notwithstanding
whether or not the conditions precedent set forth in SECTION 3.2 and SECTION
2.1(A) shall have been satisfied (which conditions precedent the Revolving
Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall,
before 11:00 a.m. (New York time) on the Business Day next succeeding the date
of such Revolving Credit Lender's receipt of such notice or demand, make
available to the Administrative Agent, in immediately available funds, for the
account of the Swing Loan Lender, the amount specified in such statement. Upon
such payment by a Revolving Credit Lender, such Revolving Credit Lender shall,
except as provided in clause (f) below, be deemed to have made a Revolving Loan
to Borrower. The Administrative Agent shall use such funds to repay the Swing
Loans to the Swing Loan Lender. To the extent that any Revolving Credit Lender
fails to make such payment available to the Administrative Agent for the account
of the Swing Loan Lender, Borrower shall repay such Swing Loan within two
Business Days after receipt of any demand by the Administrative Agent for such
repayment.
(ii) If any Swing Loan shall remain outstanding at 12:00 p.m. (New
York time) on the fifth Business Day following the date on which such Swing Loan
is made and if by such time on such fifth Business Day the Administrative Agent
shall have received neither (x) a notice of borrowing delivered by Borrower
pursuant to SECTION 2.2(A) requesting that Revolving Loans be made pursuant to
SECTION 2.1(A) on the immediately succeeding Business Day in an amount at least
equal to the aggregate principal amount of such Swing Loan, nor (y) any other
notice reasonably satisfactory to the Administrative Agent indicating Borrower's
intent to repay such Swing Loan on the immediately succeeding Business Day with
funds obtained from other sources, the Administrative Agent shall be deemed to
have received a demand from the Swing Loan Lender pursuant to clause (d) above
with respect to the entire outstanding amount of such Swing Loan, and the
procedures set forth in clause (e)(i) above shall be followed.
(f) Upon the occurrence of a Default under SECTION 9.1(F), each
Revolving Credit Lender shall acquire, without recourse or warranty, an
undivided participation in each Swing Loan otherwise required to be repaid by
such Revolving Credit Lender pursuant to clause (e) above, which participation
shall be in a principal amount equal to such Revolving Credit Lender's Ratable
Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on
which such Revolving Credit Lender would otherwise have been required to make a
payment in respect of such Swing Loan pursuant to clause (e) above, in
immediately available funds, an amount equal to such Revolving Credit Lender's
Ratable Portion of such Swing Loan. If all or part of such amount is not in fact
made available by such Revolving Credit Lender to the Swing Loan Lender on such
date, the Swing Loan Lender shall be entitled to recover any such unpaid amount
on demand from such Revolving Credit Lender together with interest accrued from
such date at the Federal Funds Rate for the first Business Day after such
payment was due and thereafter at the rate of interest then applicable to Base
Rate Loans.
(g) From and after the date on which any Revolving Credit Lender
(i) is deemed to have made a Revolving Loan pursuant to clause (e) above with
respect to any Swing Loan or (ii) purchases an undivided participation interest
in a Swing Loan pursuant to clause (f) above, the Swing Loan Lender shall
promptly distribute to such Revolving Credit Lender such Revolving Credit
Lender's Ratable Portion of all payments of principal of and interest received
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by the Swing Loan Lender on account of such Swing Loan other than those received
from a Revolving Credit Lender pursuant to clause (e) or (f) above.
Section 2.4 LETTERS OF CREDIT
(a) On the terms and subject to the conditions contained in this
Agreement, each Issuer agrees to Issue at the request of Borrower and for the
account of Borrower one or more Letters of Credit from time to time on any
Business Day during the period commencing on the Initial Closing Date and ending
on the earlier of the Revolving Credit Termination Date and five Business Days
prior to the Scheduled RC Maturity Date; PROVIDED, HOWEVER, that no Issuer shall
be under any obligation to Issue (and, upon the occurrence of any of the events
described in clauses (ii), (iii), (iv) and (v)(A) below, shall not Issue) any
Letter of Credit upon the occurrence of any of the following:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuer
from Issuing such Letter of Credit or any Requirement of Law applicable to
such Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over such Issuer
shall prohibit, or request that such Issuer refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Issuer with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuer is not
otherwise compensated) not in effect on the date of this Agreement or
result in any unreimbursed loss, cost or expense that was not applicable,
in effect or known to such Issuer as of the date of this Agreement and that
such Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) such Issuer shall have received any written notice of the type
described in clause (d) below;
(iii) after giving effect to the Issuance of such Letter of Credit,
the aggregate Revolving Credit Outstandings would exceed the aggregate
Revolving Credit Commitments in effect at such time;
(iv) after giving effect to the Issuance of such Letter of Credit,
the sum of (i) the Letter of Credit Undrawn Amounts at such time and (ii)
the Reimbursement Obligations at such time would exceed the Letter of
Credit Sublimit; or
(v) (A) any fees due in connection with a requested Issuance have
not been paid, (B) such Letter of Credit is requested to be Issued in a
form that is not acceptable to such Issuer or (C) the Issuer for such
Letter of Credit shall not have received, in form and substance reasonably
acceptable to it and, if applicable, duly executed by Borrower,
applications, agreements and other documentation (collectively, a "LETTER
OF CREDIT REIMBURSEMENT AGREEMENT") such Issuer generally employs in the
ordinary course of its business for the Issuance of letters of credit of
the type of such Letter of Credit.
None of the Revolving Credit Lenders (other than the Issuers in their capacity
as such) shall have any obligation to Issue any Letter of Credit.
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(b) In no event shall the expiration date of any Letter of Credit
(i) be more than one year after the date of Issuance thereof or (ii) be less
than five Business Days prior to the Scheduled RC Maturity Date; PROVIDED,
HOWEVER, that any Letter of Credit with a term less than or equal to one year
may provide for the renewal thereof for additional periods less than or equal to
one year, as long as (x) on or before the expiration of each such term and each
such period, Borrower and the Issuer of such Letter of Credit shall have the
option to prevent such renewal and (y) Borrower shall not permit any such
renewal to extend the expiration date of any Letter of Credit beyond the date
set forth in clause (ii) above.
(c) In connection with the Issuance of each Letter of Credit or
any amendment thereto or renewal or extension thereof, Borrower shall give the
relevant Issuer and the Administrative Agent at least two Business Days' prior
written notice, (i) in the case of a new Issuance, in substantially the form of
EXHIBIT E (or in such other written or electronic form as is acceptable to the
Issuer) or (ii) in the case of an amendment, extension or renewal, in such
written or electronic form as is reasonably acceptable to the Issuer, of the
requested amendment, extension or renewal of such Letter of Credit (a "LETTER OF
CREDIT REQUEST"). Such notice shall be irrevocable and shall specify (v) the
Issuer of such Letter of Credit, (w) in the case of an amendment, extension or
renewal, the Letter of Credit to be so amended, extended or renewed, (x) the
face amount of the Letter of Credit, which shall be in Dollars and shall not be
less than $25,000 (as amended, if applicable), (y) the date of the requested
Issuance, amendment, renewal or extension, and the date on which such Letter of
Credit is to expire (as amended, renewed or extended, if applicable), which date
shall be a Business Day, and (z) in the case of an Issuance, the Person for
whose benefit the requested Letter of Credit is to be issued and such Person's
primary business address. Such notice, to be effective, must be received by the
relevant Issuer and the Administrative Agent not later than 12:00 p.m. (New York
time) on the second Business Day prior to the requested Issuance of such Letter
of Credit.
(d) Subject to the satisfaction of the conditions set forth in
this SECTION 2.4, the relevant Issuer shall, on the requested date, Issue a
Letter of Credit on behalf of Borrower in accordance with such Issuer's usual
and customary business practices. No Issuer shall Issue any Letter of Credit in
the period commencing on the first Business Day after it receives written notice
from any Revolving Credit Lender that one or more of the conditions precedent
contained in SECTION 3.2 or clause (a) above (other than those conditions set
forth in clauses (a)(i), (a)(v)(B) and (C) above and, to the extent such clause
relates to fees owing to the Issuer of such Letter of Credit and its Affiliates,
clause (a)(v)(A) above) are not on such date satisfied or duly waived and ending
when such conditions are satisfied or duly waived. No Issuer shall otherwise be
required to determine that, or take notice whether, the conditions precedent set
forth in SECTION 3.2 have been satisfied in connection with the Issuance of any
Letter of Credit.
(e) Borrower agrees that, if requested by the Issuer of any Letter
of Credit, it shall execute a Letter of Credit Reimbursement Agreement in
respect of any Letter of Credit Issued hereunder. In the event of any conflict
between the terms of any Letter of Credit Reimbursement Agreement and this
Agreement, the terms of this Agreement shall govern.
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(f) Each Issuer shall:
(i) give the Administrative Agent written notice (or telephonic
notice confirmed promptly thereafter in writing), which writing may be a
telecopy or electronic mail, of the Issuance of any Letter of Credit Issued
by it, of all drawings under any Letter of Credit Issued by it and of the
payment (or the failure to pay when due) by or on behalf of Borrower of any
Reimbursement Obligation when due (which notice the Administrative Agent
shall promptly transmit by telecopy, electronic mail or similar
transmission to each Revolving Credit Lender);
(ii) upon the request of any Revolving Credit Lender, furnish to
such Revolving Credit Lender copies of any Letter of Credit Reimbursement
Agreement to which such Issuer is a party and such other documentation as
may reasonably be requested by such Revolving Credit Lender; and
(iii) no later than 10 Business Days following the last day of each
calendar month, provide to the Administrative Agent (and the Administrative
Agent shall provide a copy to each Revolving Credit Lender requesting the
same) and Borrower separate schedules for Documentary Letters of Credit and
Standby Letters of Credit issued by it, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the aggregate
Letter of Credit Obligations, in each case outstanding at the end of each
month and any information requested by Borrower or the Administrative Agent
relating thereto.
(g) Immediately upon the issuance by an Issuer of a Letter of
Credit in accordance with the terms and conditions of this Agreement, such
Issuer shall be deemed to have sold and transferred to each Revolving Credit
Lender, and each Revolving Credit Lender shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such Revolving Credit Lender's Ratable Portion of the Revolving Credit
Commitments, in such Letter of Credit and the obligations of Borrower with
respect thereto (including all Letter of Credit Obligations with respect
thereto) and any security therefor and guaranty pertaining thereto.
(h) Borrower agrees to pay to the Issuer of any Letter of Credit
the amount of all Reimbursement Obligations owing to such Issuer under any
Letter of Credit issued for its account no later than the date that is two
Business Days after Borrower receives written notice from such Issuer that
payment has been made under such Letter of Credit (the "REIMBURSEMENT DATE"),
irrespective of any claim, setoff, defense or other right that Borrower may have
at any time against such Issuer or any other Person. In the event that any
Issuer makes any payment under any Letter of Credit and Borrower shall not have
repaid such amount to such Issuer pursuant to this clause (h) or any such
payment by Borrower is rescinded or set aside for any reason, such Reimbursement
Obligation shall be payable on demand with interest thereon computed (i) from
the date on which such Reimbursement Obligation arose to the Reimbursement Date,
at the rate of interest applicable during such period to Revolving Loans that
are Base Rate Loans and (ii) from the Reimbursement Date until the date of
payment in full, at the rate of interest applicable during such period to past
due Revolving Loans that are Base Rate Loans, and such Issuer shall promptly
notify the Administrative Agent, which shall promptly notify each Revolving
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Credit Lender of such failure, and each Revolving Credit Lender shall promptly
and unconditionally pay to the Administrative Agent for the account of such
Issuer the amount of such Revolving Credit Lender's Ratable Portion of such
payment in immediately available Dollars. If the Administrative Agent so
notifies such Revolving Credit Lender prior to 11:00 a.m. (New York time) on any
Business Day, such Revolving Credit Lender shall make available to the
Administrative Agent for the account of such Issuer its Ratable Portion of the
amount of such payment on such Business Day in immediately available funds. Upon
such payment by a Revolving Credit Lender, such Revolving Credit Lender shall,
except during the continuance of a Default or Event of Default under SECTION
9.1(F) and notwithstanding whether or not the conditions precedent set forth in
SECTION 3.2 shall have been satisfied (which conditions precedent the Revolving
Credit Lenders hereby irrevocably waive), be deemed to have made a Revolving
Loan to Borrower in the principal amount of such payment. Whenever any Issuer
receives from Borrower a payment of a Reimbursement Obligation as to which the
Administrative Agent has received for the account of such Issuer any payment
from a Revolving Credit Lender pursuant to this clause (h), such Issuer shall
pay over to the Administrative Agent any amount received in excess of such
Reimbursement Obligation and, upon receipt of such amount, the Administrative
Agent shall promptly pay over to each Revolving Credit Lender, in immediately
available funds, an amount equal to such Revolving Credit Lender's Ratable
Portion of the amount of such payment, adjusted, if necessary, to reflect the
respective amounts the Revolving Credit Lenders have paid in respect of such
Reimbursement Obligation.
(i) If and to the extent such Revolving Credit Lender shall not
have so made its Ratable Portion of the amount of the payment required by clause
(h) above available to the Administrative Agent for the account of such Issuer,
such Revolving Credit Lender agrees to pay to the Administrative Agent for the
account of such Issuer forthwith on demand any such unpaid amount together with
interest thereon, for the first Business Day after payment was first due at the
Federal Funds Rate and, thereafter, until such amount is repaid to the
Administrative Agent for the account of such Issuer, at a rate per annum equal
to the rate applicable to Base Rate Loans under the Revolving Credit Facility.
(j) Borrower's obligation to pay each Reimbursement Obligation and
the obligations of the Revolving Credit Lenders to make payments to the
Administrative Agent for the account of the Issuers with respect to Letters of
Credit shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of this Agreement, under any and all
circumstances whatsoever, including the occurrence of any Default or Event of
Default, and irrespective of any of the following:
(i) any lack of validity or enforceability of any Letter of Credit
or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right
that Borrower, any other party guaranteeing, or otherwise obligated with,
Borrower, any Subsidiary or other Affiliate thereof or any other Person may
at any time have against the beneficiary under any Letter of Credit, any
Issuer, the Administrative Agent or any Lender or any
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other Person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuer under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuer, the Lenders, the Administrative Agent or any other Person or any
other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this SECTION 2.4,
constitute a legal or equitable discharge of Borrower's obligations
hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not result in any liability of
such Issuer to Borrower or any Lender. In determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof, the
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, in making any payment under any Letter of
Credit, the Issuer may rely exclusively on the documents presented to it under
such Letter of Credit as to any and all matters set forth therein, including
reliance on the amount of any draft presented under such Letter of Credit,
whether or not the amount due to the beneficiary thereunder equals the amount of
such draft and whether or not any document presented pursuant to such Letter of
Credit proves to be insufficient in any respect, if such document on its face
appears to be in order, and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute willful misconduct or gross negligence of
the Issuer.
(k) SCHEDULE 2.4 contains a schedule of certain letters of credit
issued prior to the Initial Closing Date by Bank of America, N.A. and Wachovia
Bank, N.A., and Borrower hereby assumes and undertakes to repay all
reimbursement and other obligations owing to Bank of America, N.A. and Wachovia
Bank, N.A., respectively, in respect of such letters of credit. On the Initial
Closing Date (i) such letters of credit, to the extent outstanding, shall be
automatically and without further action by the parties thereto converted to
Letters of Credit issued pursuant to this SECTION 2.4 for the account of
Borrower and subject to the provisions hereof, and for this purpose the fees
specified in SECTION 2.12(B) shall be payable (in substitution for any fees set
forth in the applicable letter of credit reimbursement agreements or
applications relating to such letters of credit) as if such letters of credit
had been issued on the Initial Closing Date, (ii) the issuers of such Letters of
Credit shall be deemed to be "Issuers" hereunder for the purpose of maintaining
such letters of credit, for purposes of SECTION 2.17(F) relating to the
obligation to provide the appropriate forms, certificates and statements to
Borrower and the Administrative
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Agent and updated as required by SECTION 2.17(F) and for purposes of SECTION
2.7(B), relating to the entries to be made in the Register, (iii) the face
amount of such letters of credit shall be included in the calculation of Letter
of Credit Obligations and (iv) all liabilities of Borrower with respect to such
letters of credit shall constitute Obligations. No letter of credit converted in
accordance with this clause (k) shall be amended, extended or renewed without
the prior written consent of the Administrative Agent.
(l) REPLACEMENT OF ISSUER. An Issuer may be replaced at any time
by written agreement among Borrower, the Administrative Agent, the replaced
Issuer and the successor Issuer. The Administrative Agent shall notify the
Lenders of any such replacement of an Issuer. At the time any such replacement
shall become effective, Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuer pursuant to SECTION 2.12(B). From and after the
effective date of any such replacement, (i) the successor Issuer shall have all
the rights and obligations of the replaced Issuer under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references herein
to the term "Issuer" shall be deemed to refer to such successor and any other
previous and/or current Issuers, as the context shall require. After the
replacement of an Issuer hereunder, the replaced Issuer shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuer
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.
Section 2.5 TERMINATION OF THE COMMITMENTS
(a) Borrower may, upon at least three Business Days' prior notice
to the Administrative Agent, terminate in whole or reduce in part ratably the
unused portions of the respective Revolving Credit Commitments of the Revolving
Credit Lenders or, prior to the Term Loan Commitment Termination Date for the
Term Loan Commitments in any Tranche, the unused portions of such Term Loan
Commitments of the Term Loan Lenders in such Tranche; PROVIDED, HOWEVER, that
each partial reduction shall be in an aggregate amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and need not
be ratable among the Facilities.
(b) Then current Revolving Credit Commitments shall be reduced on
each date on which a prepayment of Revolving Loans or Swing Loans is made (or
would be required to be made had the outstanding Revolving Loans and Swing Loans
equaled the Revolving Credit Commitments then in effect) pursuant to SECTION
2.9(A)(I) from the proceeds of any Asset Sale or Property Loss Event, in each
case in the amount of such prepayment (or of the prepayment that would have been
required) (and the Revolving Credit Commitment of each Revolving Credit Lender
shall be reduced by its Ratable Portion of such amount).
(c) Any unused Term Loan Commitment shall terminate on the Term
Loan Commitment Termination Date for such Term Loan Commitment.
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Section 2.6 REPAYMENT OF LOANS
(a) Borrower promises to repay the entire unpaid principal amount
of the Revolving Loans and the Swing Loans on the Scheduled RC Maturity Date or
earlier, if otherwise required by the terms hereof.
(b) Borrower and Co-Borrower promise to repay (i) $1,550,000 in
principal amount of the Term Loans on March 31, June 30, September 30 and
December 31 of each calendar year, commencing on September 30, 2005, and ending
with June 30, 2011, and (ii) $145,700,000 in principal amount of the Term Loans
on each of September 30, 2011, December 31, 2011, March 31, 2012 and the Term
Loan Maturity Date (or, in each case, in advance of such dates through the
application of optional or mandatory prepayments to the extent provided
hereunder pursuant to SECTION 2.8 or SECTION 2.9); PROVIDED that if any such
date is not a Business Day, such repayment shall be made on the next succeeding
Business Day. The amortization for any Incremental Term Loans shall be as set
forth on the relevant Facilities Increase Notice, subject to the provisions of
SECTION 2.19(C).
Section 2.7 EVIDENCE OF DEBT
(a) Each Lender shall maintain in accordance with its usual
practice accounts evidencing Indebtedness of Borrower and Co-Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(b) (i) The Administrative Agent, acting as agent of Borrower and
Co-Borrower solely for this purpose and for tax purposes, shall establish and
maintain at its address referred to in SECTION 11.8(A) a record of ownership
(the "REGISTER") in which the Administrative Agent agrees to register by book
entry the Administrative Agent's, each Lender's and each Issuer's interest in
each Loan, each Letter of Credit and each Reimbursement Obligation, and in the
right to receive any payments hereunder and any assignment of any such interest
or rights. In addition, the Administrative Agent, acting as agent of Borrower
and Co-Borrower solely for this purpose and for tax purposes, shall establish
and maintain accounts in the Register in accordance with its usual practice in
which it shall record (i) the names and addresses of the Lenders and the
Issuers, (ii) the Commitments of each Lender from time to time, (iii) the amount
and Borrower of each Loan made and, if a Eurodollar Rate Loan, the Interest
Period applicable thereto, (iv) the amount of any principal or interest due and
payable, and paid, by Borrower or Co-Borrower to, or for the account of, each
Lender hereunder, (v) the amount that is due and payable, and paid, by or on
behalf of Borrower to, or for the account of, each Issuer, including the amount
of Letter Credit Obligations (specifying the amount of any Reimbursement
Obligations) due and payable to an Issuer, and (vi) the amount of any sum
received by the Administrative Agent hereunder or under any Loan Document from
any Loan Party, whether such sum constitutes principal or interest (and the type
of Loan to which it applies), fees, expenses or other amounts due under the Loan
Documents and each Lender's and Issuer's, as the case may be, share thereof, if
applicable.
(ii) Notwithstanding anything to the contrary contained in this
Agreement, the Loans (including the Notes evidencing such Loans) and the
Reimbursement Obligations are registered obligations and the right, title and
interest of the Lenders and the Issuers and their assign-
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ees in and to such Loans or Reimbursement Obligations, as the case may be, shall
be transferable only upon notation of such transfer in the Register. A Note
shall only evidence the Lender's or a registered assignee's right, title and
interest in and to the related Loan, and in no event is any such Note to be
considered a bearer instrument or obligation. This SECTION 2.7(B) and SECTION
11.2(C) shall be construed so that the Loans and Reimbursement Obligations are
at all times maintained in "registered form" within the meaning of Sections
163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (or any
successor provisions of the Code or such regulations).
(c) The entries made in the Register and in the accounts therein
maintained pursuant to clauses (a) and (b) above shall, to the extent permitted
by applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations recorded therein, absent manifest error; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of Borrower or
Co-Borrower to repay the Loans in accordance with their terms. In addition, the
Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat
each Person whose name is recorded in the Register as a Lender or as an Issuer,
as applicable, for all purposes of this Agreement. Information contained in the
Register with respect to any Lender or Issuer shall be available for inspection
by Borrower or Co-Borrower, the Administrative Agent, such Lender or such Issuer
at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding any other provision of this Agreement, in the
event that any Lender requests that Borrower or Co-Borrower execute and deliver
a promissory note or notes payable to such Lender in order to evidence the
Indebtedness owing to such Lender by Borrower or Co-Borrower (as the case may
be) hereunder, Borrower or Co-Borrower (as the case may be) shall promptly
execute and deliver a Note or Notes to such Lender evidencing any Revolving
Loans and Term Loans of any Tranche, as the case may be, of such Lender,
substantially in the forms of EXHIBIT B-1 and EXHIBIT B-2, respectively.
(e) In each case where a Revolving Credit Lender purchases an
undivided participation interest in a Swing Loan pursuant to SECTION 2.3(F), the
Swing Loan Lender shall (i) keep a register meeting the requirements of Treas.
Reg. Section 5f.103-1(c) of each Revolving Credit Lender's entitlement to
payments of principal and interest with respect to each such Swing Loan and (ii)
collect, prior to the time such Revolving Credit Lender receives payment with
respect to such Swing Loan, from each such Revolving Credit Lender the
appropriate forms, certificates, and statements described in SECTION 2.17 (and
updated as required by such SECTION 2.17).
Section 2.8 OPTIONAL PREPAYMENTS
(a) REVOLVING LOANS. Borrower may prepay, without premium or
penalty (subject to Section 2.14(d)), the outstanding principal amount of the
Revolving Loans and Swing Loans in whole or in part at any time; PROVIDED,
HOWEVER, that if any prepayment of any Eurodollar Rate Loan is made by or on
behalf of Borrower other than on the last day of an Interest Period for such
Loan, Borrower shall also pay any amount owing pursuant to SECTION 2.14(d).
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(b) TERM LOANS. Borrower and Co-Borrower may, without premium or
penalty (subject to Section 2.14(d)), upon at least two Business Days' prior
notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, prepay the outstanding principal amount of
the Term Loans of any Tranche, in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
PROVIDED, HOWEVER, that (i) if any such prepayment is a prepayment of any
Eurodollar Rate Loan made by or on behalf of Borrower other than on the last day
of an Interest Period for such Loan, Borrower shall also pay any amounts owing
pursuant to SECTION 2.14(D), (ii) each such prepayment that is a partial
prepayment shall be in an aggregate amount that is an integral multiple of
$1,000,000 and (iii) any such partial prepayment that is a prepayment of the
Term Loans of any Tranche shall be applied PRO RATA to the remaining
installments of the outstanding principal amount of the Term Loans of such
Tranche. Upon the giving of such notice of prepayment, the principal amount of
the Term Loans specified to be prepaid shall become due and payable on the date
specified for such prepayment.
(c) Borrower and Co-Borrower shall have no right to prepay the
principal amount of any Revolving Loan or any Term Loan other than as provided
in this SECTION 2.8.
Section 2.9 MANDATORY PREPAYMENTS
(a) Within three Business Days after receipt by any Loan Party or
any Restricted Subsidiary of any Loan Party of Net Cash Proceeds, the following
shall occur:
(i) to the extent such Net Cash Proceeds arise from an Asset Sale
or Property Loss Event, Borrower (or, at Borrower's option, any other Loan
Party for the benefit of Borrower and Co-Borrower) shall immediately,
subject to SECTION 2.9(E), prepay the Loans (or provide cash collateral in
respect of Letters of Credit) in an amount equal to 100% of such Net Cash
Proceeds; PROVIDED, HOWEVER, that no such prepayment caused by the receipt
of Net Cash Proceeds arising from an Asset Sale or Property Loss Event
shall be required to the extent that the sum of such Net Cash Proceeds and
all other Net Cash Proceeds from Asset Sales and Property Loss Events
received by Co-Borrower or any of its Subsidiaries (x) does not exceed
$10,000,000 in the Fiscal Year of Borrower in which such Asset Sale occurs
and (y) does not exceed $50,000,000 since the Initial Closing Date (it
being understood that a prepayment shall only be required to the extent of
the greater of (i) the excess over $10,000,000 pursuant to clause (x) above
and (ii) the excess over $50,000,000 pursuant to clause (y) above); and
(ii) to the extent such proceeds arise from a Debt Issuance other
than an issuance or incurrence of Permitted Debt, Borrower (or, at
Borrower's option, any other Loan Party for the benefit of Borrower and
Co-Borrower) shall immediately prepay the Loans in an amount equal to (A)
if Borrower's Leverage Ratio as at the end of the last period for which
Borrower has delivered Financial Statements pursuant to SECTION 6.1(A) or
(B) calculated on a Pro Forma Basis giving effect to such Debt Issuance is
3.25 to 1.0 or greater, 75% of such Net Cash Proceeds or (B) otherwise, 50%
of such Net Cash Proceeds.
Any such mandatory prepayment shall be applied in accordance with clause (c)
below.
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(b) Borrower (or, at Borrower's option, any other Loan Party for
the benefit of Borrower and Co-Borrower) shall prepay the Loans within 135 days
after the last day of each Fiscal Year beginning with Fiscal Year 2006, in an
amount equal to (i) if Borrower's Leverage Ratio as at the end of such Fiscal
Year is 3.5 to 1.0 or greater, 50% of the Excess Cash Flow for such Fiscal Year
or (ii) if Borrower's Leverage Ratio as at the end of such Fiscal Year is less
than 3.5 to 1.0 and greater than or equal to 3.0 to 1.0, 25% of the Excess Cash
Flow for such Fiscal Year. Any such mandatory prepayment shall be applied in
accordance with clause (c) below. If Borrower's Leverage Ratio as at the end of
such Fiscal Year is less than 3.0 to 1.0, no prepayment shall be required
pursuant to this clause (b).
(c) Subject to the provisions of SECTION 2.13(G) and clause (e)
below, any prepayments required to be applied in accordance with this clause (c)
shall be applied as follows: FIRST, to repay the outstanding principal balance
of the Term Loans (PRO RATA among the Tranches of Term Loans) until all Term
Loans shall have been paid in full; SECOND, to repay the outstanding principal
balance of the Swing Loans until all Swing Loans shall have been paid in full;
THIRD, to repay the outstanding principal balance of the Revolving Loans until
all Revolving Loans shall have been paid in full; and FOURTH, to provide cash
collateral for any Letter of Credit Obligations in an amount equal to 102% of
all Letter of Credit Obligations in the manner set forth in SECTION 9.3 until
all such Letter of Credit Obligations have been fully cash collateralized in the
manner set forth therein. All prepayments of the Term Loans of any Tranche made
pursuant to this clause (c) shall be applied PRO RATA to prepay the remaining
installments of the Term Loans of such Tranche. All repayments of Revolving
Loans and Swing Loans required to be made pursuant to this clause (c) because of
Asset Sales or Property Loss Events (but not repayments required to be made
because of Debt Issuances or Excess Cash Flow) shall result in a permanent
reduction of the Revolving Credit Commitments to the extent provided in SECTION
2.5(B).
(d) If at any time, the aggregate principal amount of Revolving
Credit Outstandings exceeds the aggregate Revolving Credit Commitments at such
time, Borrower (or, at Borrower's option, any other Loan Party) shall forthwith
prepay the Swing Loans first and then the Revolving Loans then outstanding in an
amount equal to such excess. If any such excess remains after payment in full of
the aggregate outstanding Swing Loans and Revolving Loans, Borrower (or, at
Borrower's option, any other Loan Party) shall provide cash collateral for the
Letter of Credit Obligations in the manner set forth in SECTION 9.3 in an amount
equal to 102% of such excess.
(e) Notwithstanding the foregoing clauses in this SECTION 2.9,
upon the occurrence of any Asset Sale or Property Loss Event in respect of which
a Responsible Officer of Borrower has delivered a Reinvestment Notice (a
"REINVESTMENT EVENT"), all of the following shall occur:
(i) Upon receipt of the Net Cash Proceeds subject to such
Reinvestment Notice (as long as no Event of Default shall have occurred and
be continuing), Borrower shall be permitted to make Permitted Reinvestments
in an amount not to exceed the amount of such Net Cash Proceeds, as set
forth in the Reinvestment Notice for such Net Cash Proceeds, and shall not
be required to prepay the Loans as provided in clause (a) above.
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(ii) On each Reinvestment Prepayment Date for such Reinvestment
Event:
(A) Borrower shall prepay the Term Loans (PRO RATA among
the Tranches of Term Loans) in an amount equal to the Reinvestment
Prepayment Amount applicable to such Reinvestment Prepayment Date; and
(B) to the extent all Term Loans have been paid in full,
(x) Borrower shall apply any remaining portion of such Reinvestment
Prepayment Amount, FIRST, to repay the outstanding principal balance of
the Swing Loans until all Swing Loans shall have been paid in full,
SECOND, to repay the outstanding principal balance of the Revolving
Loans until all Revolving Loans shall have been paid in full, and
THIRD, to provide cash collateral for any Letter of Credit Obligations
in an amount equal to 102% of all Letter of Credit Obligations in the
manner set forth in SECTION 9.3 until all such Letter of Credit
Obligations have been fully cash collateralized in the manner set forth
therein, and (y) all repayments of Revolving Loans and Swing Loans
required to be made pursuant to clause (x) above shall result in a
permanent reduction of the Revolving Credit Commitments to the extent
provided in SECTION 2.5(B).
In addition, Borrower shall make any payment required pursuant to clause (d)
above as a result of any such reduction in the Revolving Credit Commitments. All
prepayments of the Term Loans of any Tranche made pursuant to this clause (e)
shall be applied to the remaining installments thereof in the manner set forth
in clause (c) above.
(f) On the first Business Day after each of the Refinancing Grace
Period and the date that is six months after the Initial Closing Date (or, if
either such date is not a Business Day, the next succeeding Business Day), the
Escrow Agent, on behalf of Co-Borrower and Borrower, shall deliver a portion of
the Escrow Balance to the Administrative Agent as provided in the Escrow
Agreement, and the Administrative Agent shall, on behalf of Co-Borrower and
Borrower, apply such portion (if any) of the Escrow Balance to prepay the Loans
in accordance with clause (c) above.
Section 2.10 INTEREST
(a) RATE OF INTEREST. All Loans and the outstanding amount of all
other Obligations shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from the date such Loans are made and, in the case of
such other Obligations, from the date such other Obligations are due and payable
until, in all cases, paid in full, except as otherwise provided in clause (c)
below, as follows:
(i) if a Base Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (A) the Base Rate as in effect from time to time
PLUS (B) the Applicable Margin; and
(ii) if a Eurodollar Rate Loan, at a rate per annum equal to the
sum of (A) the Eurodollar Rate determined for the applicable Interest
Period PLUS (B) the Applicable Margin in effect from time to time during
such Interest Period.
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(b) INTEREST PAYMENTS. (i) Interest accrued on each Base Rate Loan
(other than Swing Loans) shall be payable in arrears (A) on the last Business
Day of each calendar quarter, commencing on the first such day following the
making of such Base Rate Loan, (B) in the case of Base Rate Loans that are Term
Loans, upon the payment or prepayment thereof in full or in part and (C) if not
previously paid in full, at maturity (whether by acceleration or otherwise) of
such Base Rate Loan, (ii) interest accrued on Swing Loans shall be payable in
arrears on the last Business Day of the immediately succeeding calendar quarter,
(iii) interest accrued on each Eurodollar Rate Loan shall be payable in arrears
(A) on the last day of each Interest Period applicable to such Loan and, if such
Interest Period has a duration of more than three months, on each date during
such Interest Period occurring every three months from the first day of such
Interest Period, (B) upon the payment or prepayment thereof in full or in part
and (C) if not previously paid in full, at maturity (whether by acceleration or
otherwise) of such Eurodollar Rate Loan and (iv) interest accrued on the amount
of all other Obligations shall be payable on demand from and after the time each
such Obligation becomes due and payable (whether by acceleration or otherwise).
(c) DEFAULT INTEREST. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere herein, effective immediately upon
the occurrence of an Event of Default and for as long thereafter as such Event
of Default shall be continuing, the principal balance of all Loans and the
amount of all other Obligations then due and payable shall bear interest at a
rate that is two percent per annum in excess of the rate of interest applicable
to such Loans or other Obligations from time to time. Such interest shall be
payable on the date that would otherwise be applicable to such interest pursuant
to clause (b) above or otherwise on demand.
Section 2.11 CONVERSION/CONTINUATION OPTION
(a) Borrowers may elect (i) at any time on any Business Day to
convert Base Rate Loans (other than Swing Loans) or any portion thereof into
Eurodollar Rate Loans and (ii) at the end of any applicable Interest Period, to
convert Eurodollar Rate Loans or any portion thereof into Base Rate Loans or to
continue such Eurodollar Rate Loans or any portion thereof for an additional
Interest Period (subject to the limitations in the definition thereof);
PROVIDED, HOWEVER, that the aggregate amount of the Eurodollar Rate Loans for
each Interest Period must be at least $1,000,000 and an integral multiple of
$100,000. Each conversion or continuation shall be allocated among the Loans of
each Lender in accordance with such Lender's Ratable Portion. Each such election
shall be in substantially the form of EXHIBIT F (a "NOTICE OF CONVERSION OR
CONTINUATION") and shall be made by giving the Administrative Agent at least
three Business Days' prior written notice specifying (A) the amount and type of
Loan being converted or continued, (B) in the case of a conversion to or a
continuation of Eurodollar Rate Loans, the applicable Interest Period and (C) in
the case of a conversion, the date of such conversion.
(b) The Administrative Agent shall promptly notify each Lender of
its receipt of a Notice of Conversion or Continuation and of the options
selected therein. Notwithstanding the foregoing, no conversion in whole or in
part of Base Rate Loans to Eurodollar Rate Loans and no continuation in whole or
in part of Eurodollar Rate Loans upon the expiration of any applicable Interest
Period shall be permitted at any time at which (i) an Event of Default shall
have occurred and be continuing or (ii) the continuation of, or conversion into,
a Eurodollar Rate Loan would violate any provision of SECTION 2.14. If, within
the time period required under the terms
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of this SECTION 2.11, the Administrative Agent does not receive a Notice of
Conversion or Continuation from Borrower containing a permitted election to
continue any Eurodollar Rate Loans for an additional Interest Period or to
convert any such Loans, then, upon the expiration of the applicable Interest
Period, such Loans shall be automatically converted to Base Rate Loans. Each
Notice of Conversion or Continuation shall be irrevocable.
Section 2.12 FEES
(a) UNUSED COMMITMENT FEE. Borrower agrees to pay in immediately
available Dollars a commitment fee to each Revolving Credit Lender on the actual
daily amount by which the Revolving Credit Commitment of such Revolving Credit
Lender exceeds such Lender's Ratable Portion of the sum of (i) the aggregate
outstanding principal amount of Revolving Loans and (ii) the outstanding amount
of the aggregate Letter of Credit Obligations, from the date hereof through the
Revolving Credit Termination Date at the Applicable Unused Commitment Fee Rate,
payable in arrears (A) on the last Business Day of each calendar quarter,
commencing on the first such Business Day following the Initial Closing Date,
and (B) on the Revolving Credit Termination Date.
(b) LETTER OF CREDIT FEES. Borrower agrees to pay the following
amounts with respect to Letters of Credit issued by any Issuer:
(i) to the Administrative Agent for the account of each Issuer of
a Letter of Credit, with respect to each Letter of Credit issued by such
Issuer, an issuance fee equal to the Fronting Fee Rate on the average daily
maximum undrawn face amount of such Letter of Credit, payable in arrears
(A) on the last Business Day of each calendar quarter, commencing on the
first such Business Day following the issuance of such Letter of Credit,
and (B) on the Revolving Credit Termination Date;
(ii) to the Administrative Agent for the ratable benefit of the
Revolving Credit Lenders, with respect to each Letter of Credit, a fee
accruing in Dollars at a rate per annum equal to the Applicable Margin for
Revolving Loans that are Eurodollar Rate Loans MINUS the Fronting Fee Rate,
on the average daily maximum undrawn face amount of such Letter of Credit,
payable in arrears (A) on the last Business Day of each calendar quarter,
commencing on the first such Business Day following the issuance of such
Letter of Credit, and (B) on the Revolving Credit Termination Date;
PROVIDED, HOWEVER, that effective immediately upon the occurrence of an
Event of Default and for as long thereafter as such Event of Default shall
be continuing, such fee shall be increased by two percent per annum
(instead of, and not in addition to, any increase pursuant to SECTION
2.10(C)) and shall be payable on demand; and
(iii) to the Issuer of any Letter of Credit, with respect to the
Issuance, amendment or transfer of each Letter of Credit and each drawing
made thereunder, documentary and processing charges in accordance with such
Issuer's standard schedule for such charges in effect at the time of
Issuance, amendment, transfer or drawing, as the case may be.
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(c) ADDITIONAL FEES. Borrower and Co-Borrower have agreed to pay
to the Administrative Agent, the Syndication Agents and the Arrangers additional
fees, the amount and dates of payment of which are embodied in the Fee Letters.
Section 2.13 PAYMENTS AND COMPUTATIONS
(a) Each payment made by or on behalf of Borrower or Co-Borrower
(including fees and expenses) shall be made in Dollars not later than 1:00 p.m.
(New York time) on the day when due to the Administrative Agent at its address
referred to in SECTION 11.8(A) in immediately available funds without setoff or
counterclaim. The Administrative Agent shall promptly thereafter cause to be
distributed immediately available funds relating to the payment of principal,
interest or fees to the Lenders, in accordance with the application of payments
set forth in clause (f) or (g) below, as applicable, for the account of their
respective Applicable Lending Offices; PROVIDED, HOWEVER, that amounts payable
pursuant to SECTION 2.14(D), SECTION 2.15, SECTION 2.16 or SECTION 2.17 shall be
paid only to the affected Lender or Lenders and amounts payable with respect to
Swing Loans shall be paid only to the Swing Loan Lender. Payments received by
the Administrative Agent after 1:00 p.m. (New York time) shall be deemed to be
received on the next Business Day.
(b) All computations of interest on Base Rate Loans (except where
the Base Rate is calculated using clause (b) of the definition thereof) shall be
made by the Administrative Agent on the basis of a year of 365 or, as
applicable, 366 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest and fees
are payable. All other computations of interest and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest and fees are payable. Each
determination by the Administrative Agent of a rate of interest hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(c) Each payment by or on behalf of Co-Borrower and/or Borrower of
any Loan or Reimbursement Obligation (including interest or fees in respect
thereof) and each reimbursement of various costs, expenses or other Obligation
shall be made in Dollars.
(d) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, the due date for such payment shall be extended
to the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fees, as the case
may be; PROVIDED, HOWEVER, that if such extension would cause payment of
interest on or principal of any Eurodollar Rate Loan to be made in the next
calendar month, such payment shall be made on the immediately preceding Business
Day. All repayments of any Revolving Loans or any Tranche of Term Loans shall be
applied as follows: FIRST, to repay such Loans outstanding as Base Rate Loans
and THEN, to repay such Loans outstanding as Eurodollar Rate Loans, with those
Eurodollar Rate Loans having earlier expiring Interest Periods being repaid
prior to those having later expiring Interest Periods.
(e) Unless the Administrative Agent shall have received notice
from Borrower or Co-Borrower to the Lenders prior to the date on which any
payment is due hereunder that Borrower or Co-Borrower, as the case may be, will
not make such payment in full (and the
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Administrative Agent has not received any notice that such payment shall be made
in full by another Loan Party on behalf of Borrower or Co-Borrower), the
Administrative Agent may assume that Borrower or Co-Borrower, as the case may
be, has made such payment in full to the Administrative Agent on such date and
the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that Borrower or Co-Borrower, as the case
may be, shall not have made (and no Loan Party shall have made on behalf of
Borrower or Co-Borrower) such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon (at the Federal Funds
Rate for the first Business Day and, thereafter, at the rate applicable to Base
Rate Loans for the applicable Facility) for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount to
the Administrative Agent.
(f) Except for payments and other amounts received by the
Administrative Agent and applied in accordance with the provisions of clause (g)
below (or required to be applied in accordance with clause (c) or (e) of SECTION
2.9), all payments and any other amounts received by the Administrative Agent
from or for the benefit of Borrower or Co-Borrower shall be applied as follows:
FIRST, to pay principal of, and interest on, any portion of the Loans the
Administrative Agent may have advanced pursuant to the express provisions of
this Agreement on behalf of any Lender, for which the Administrative Agent has
not then been reimbursed by such Lender or Borrower or Co-Borrower (or any Loan
Party on behalf of Borrower or Co-Borrower), SECOND, to pay all other
Obligations then due and payable; and THIRD, as Borrower or Co-Borrower so
designates. Payments in respect of Swing Loans received by the Administrative
Agent shall be distributed to the Swing Loan Lender; payments in respect of
Revolving Loans received by the Administrative Agent shall be distributed to
each Revolving Credit Lender in accordance with such Lender's Ratable Portion of
the Revolving Credit Commitments; payments in respect of any Tranche of Term
Loans received by the Administrative Agent shall be distributed to each Term
Loan Lender in such Tranche in accordance with such Lender's Ratable Portion of
such Tranche; and all payments of fees and all other payments in respect of any
other Obligation shall be allocated among such of the Lenders and Issuers as are
entitled thereto and, for such payments allocated to the Lenders, in proportion
to their respective Ratable Portions in the Facility with respect to which such
payment is made.
(g) Borrower and Co-Borrower hereby irrevocably waive the right to
direct the application of any and all payments in respect of the Obligations and
any proceeds of Collateral after the occurrence and during the continuance of an
Event of Default and agree that, notwithstanding the provisions of clause (c) or
(e) of SECTION 2.9 and clause (f) above, the Administrative Agent and/or
Collateral Agent may, and, upon either (A) the written direction of the
Requisite Lenders or (B) the acceleration of the Obligations pursuant to SECTION
9.2, shall, deliver a blockage notice to each Deposit Account Bank for each
Approved Deposit Account and apply all payments in respect of any Obligations
and all funds on deposit in any Cash Collateral Account and all other proceeds
of Collateral in the order set forth in the Pledge and Security Agreement.
(h) The Administrative Agent hereby agrees to deliver to each
other Agent, promptly upon receipt thereof by the Administrative Agent, all
notices and information furnished
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to the Administrative Agent in connection with any Permitted Acquisition
pursuant to the definition of Permitted Acquisition.
Section 2.14 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS
(a) DETERMINATION OF INTEREST RATE. The Eurodollar Rate for each
Interest Period for Eurodollar Rate Loans shall be determined by the
Administrative Agent pursuant to the procedures set forth in the definition of
Eurodollar Rate. The Administrative Agent's determination shall be presumed to
be correct absent manifest error and shall be binding on Borrower and
Co-Borrower.
(b) INTEREST RATE UNASCERTAINABLE, INADEQUATE OR UNFAIR. In the
event that (i) the Administrative Agent determines that adequate and fair means
do not exist for ascertaining the applicable interest rates by reference to
which the Eurodollar Rate then being determined is to be fixed or (ii) the
Requisite Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period will not adequately reflect the cost to the Lenders of
making or maintaining such Loans for such Interest Period, the Administrative
Agent shall forthwith so notify Borrower and the Lenders, whereupon each
Eurodollar Rate Loan shall automatically, on the last day of the current
Interest Period for such Loan, convert into a Base Rate Loan and the obligations
of the Lenders to make Eurodollar Rate Loans or to convert Base Rate Loans into
Eurodollar Rate Loans shall be suspended until the Administrative Agent shall
notify Borrower that the Requisite Lenders have determined that the
circumstances causing such suspension no longer exist.
(c) ILLEGALITY. Notwithstanding any other provision of this
Agreement, if any Lender determines that the introduction of, or any change in
or in the interpretation of, any law, treaty or governmental rule, regulation or
order after the date of this Agreement shall make it unlawful, or any central
bank or other Governmental Authority shall assert that it is unlawful, for any
Lender or its Eurodollar Lending Office to make Eurodollar Rate Loans or to
continue to fund or maintain Eurodollar Rate Loans, then, on notice thereof and
demand therefor by such Lender to Borrower through the Administrative Agent, (i)
the obligation of such Lender to make or to continue Eurodollar Rate Loans and
to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended, and
each such Lender shall make a Base Rate Loan as part of any requested Borrowing
of Eurodollar Rate Loans and (ii) if the affected Eurodollar Rate Loans are then
outstanding, Borrower and/or Co-Borrower, as applicable, shall immediately
convert each such Loan into a Base Rate Loan. If, at any time after a Lender
gives notice under this clause (c), such Lender determines that it may lawfully
make Eurodollar Rate Loans, such Lender shall promptly give notice of that
determination to Borrower and the Administrative Agent, and the Administrative
Agent shall promptly transmit the notice to each other Lender. Borrower's and
Co-Borrower's rights to request, and such Lender's obligation, if any, to make,
continue or convert into Eurodollar Rate Loans shall thereupon be restored. Any
Lender converting a Eurodollar Rate Loan to a Base Rate Loan pursuant to this
SECTION 2.14(C) shall use its reasonable efforts (consistent with Requirements
of Law) to change the jurisdiction of its Eurodollar Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts that would be payable or may thereafter accrue and would
not, in the sole determination of such Lender, result in any reimbursed costs
to, or otherwise be disadvantageous to, such Lender.
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(d) BREAKAGE COSTS. In addition to all amounts required to be paid
by or on behalf of Borrower or Co-Borrower pursuant to SECTION 2.10, Borrower
and Co-Borrower shall compensate each Lender, upon demand, for all losses,
expenses and liabilities (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund or maintain such Lender's Eurodollar Rate Loans to Borrower or
Co-Borrower but excluding any loss of the Applicable Margin on the relevant
Loans) that such Lender may sustain (i) if for any reason (other than solely by
reason of such Lender being a Non-Funding Lender) a proposed Borrowing,
conversion into or continuation of Eurodollar Rate Loans does not occur on a
date specified therefor in a Notice of Borrowing or a Notice of Conversion or
Continuation given by Borrower and/or Co-Borrower, as applicable (or in a
telephonic request), for borrowing or conversion or continuation or a successive
Interest Period does not commence after notice therefor is given pursuant to
SECTION 2.11, (ii) if for any reason any Eurodollar Rate Loan is prepaid
(including mandatorily pursuant to SECTION 2.9) on a date that is not the last
day of the applicable Interest Period, (iii) as a consequence of a required
conversion of a Eurodollar Rate Loan to a Base Rate Loan on a date that is not
the last day of an Interest Period as a result of any of the events indicated in
clause (c) above or (iv) as a consequence of any failure by Borrower or
Co-Borrower to repay Eurodollar Rate Loans on the date specified in any notice
delivered pursuant hereto. The Lender making demand for such compensation shall
deliver to Borrower and/or Co-Borrower, as applicable, concurrently with such
demand a written statement as to such losses, expenses and liabilities, and this
statement shall be conclusive as to the amount of compensation due to such
Lender, absent manifest error. Determination of amounts payable under this
SECTION 2.14(D) in connection with a Eurodollar Rate Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not.
Section 2.15 CAPITAL ADEQUACY
If at any time any Lender determines that (a) the adoption of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order after the date of this Agreement regarding capital adequacy,
(b) compliance with any such law, treaty, rule, regulation or order or (c)
compliance with any guideline or request or directive from any central bank or
other Governmental Authority (whether or not having the force of law) shall have
the effect of reducing the rate of return on such Lender's (or any corporation
controlling such Lender's) capital as a consequence of its obligations hereunder
or under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change,
compliance or interpretation, then, upon demand from time to time by such Lender
(with a copy of such demand to the Administrative Agent), Borrower or
Co-Borrower, as applicable, shall pay to the Administrative Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender for such reduction. A
certificate as to such amounts submitted to Borrower or Co-Borrower, as
applicable, and the Administrative Agent by such Lender shall be reasonably
detailed and shall be conclusive and binding for all purposes absent manifest
error; PROVIDED, HOWEVER, that notwithstanding the foregoing, Borrower and
Co-Borrower shall not be required to compensate any Lender for any such amount
incurred more than 180 days prior to the delivery of such certificate (such
period to be extended in the case of a reduction caused by any event described
in clause (a), (b) or (c) above and having retroactive effect to include the
period of such retroactive effect).
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Section 2.16 INCREASED COSTS
If at any time any Lender determines that the introduction of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order (other than any change by way of imposition or increase of
reserve requirements included in determining the Eurodollar Rate) or the
compliance by such Lender with any guideline, request or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) (collectively, a "CHANGE OF LAW") shall (i) have the effect of increasing
the cost to such Lender of agreeing to make or making, funding or maintaining
any Eurodollar Rate Loans or (ii) subject any Lender 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 Loan made by it, or change the basis
of taxation of payments to such Lender in respect thereof (except for
Indemnified Taxes or Other Taxes indemnifiable pursuant to SECTION 2.17 or the
imposition of, or any change in the rate of, any Excluded Tax), then Borrower
and/or Co-Borrower, as applicable, shall from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to Borrower and/or Co-Borrower,
as applicable, and the Administrative Agent by such Lender, shall be reasonably
detailed and shall be conclusive and binding for all purposes, absent manifest
error; PROVIDED, HOWEVER, that notwithstanding the foregoing, Borrower and
Co-Borrower shall not be required to compensate any Lender for any increased
cost incurred more than 180 days prior to the delivery of such certificate (such
period to be extended in the case of increased costs caused by a Change of Law
with retroactive effect to include the period of retroactive effect of such
Change of Law). Any Lender claiming any additional amounts payable pursuant to
this SECTION 2.16 shall use its reasonable efforts (consistent with Requirements
of Law) to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts that would be payable or may thereafter accrue and would
not, in the sole determination of such Lender, result in any unreimbursed costs
to, or otherwise be disadvantageous to, such Lender.
Section 2.17 TAXES
(a) Except as otherwise provided in this SECTION 2.17, any and all
payments by any Loan Party under each Loan Document shall be made free and clear
of and without deduction for any Indemnified Taxes. If any Indemnified Taxes
shall be required by law to be deducted from or in respect of any sum payable
under any Loan Document to any Lender, Issuer or Agent, (w) the sum payable
shall be increased as may be necessary so that, after making all required
deductions (including deductions applicable to additional sums payable under
this SECTION 2.17) such Lender, Issuer or Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(x) the relevant Loan Party shall make such deductions, (y) the relevant Loan
Party shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with applicable law and (z) the relevant Loan
Party shall deliver to the Administrative Agent evidence of such payment.
(b) In addition, each Loan Party agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies of the United States or any political subdivision thereof or
any applicable foreign jurisdiction, and all liabilities
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with respect thereto, in each case arising from any payment made under any Loan
Document or from the execution, delivery, enforcement, recording or registration
of, or otherwise with respect to, any Loan Document (collectively, "OTHER
TAXES").
(c) Each Loan Party shall, jointly and severally, indemnify each
Lender, Issuer and Agent for the full amount of Indemnified Taxes and Other
Taxes (including any Indemnified Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this SECTION 2.17) payable by such Lender,
Issuer or Agent (as the case may be) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Lender, Issuer or Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Indemnified
Taxes or Other Taxes by any Loan Party, Borrower shall furnish to the
Administrative Agent, at its address referred to in SECTION 11.8, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of
any Loan Party hereunder or under the Guaranty, the agreements and obligations
of the Loan Parties contained in this SECTION 2.17 shall survive the payment in
full of the Obligations.
(f) (i) To the extent it is legally able to do so, each Non-U.S.
Lender shall (v) on or prior to the Initial Closing Date if such Non-U.S. Lender
is a signatory hereto, (w) otherwise, on or prior to the date on which such
Non-U.S. Lender becomes a Lender, Issuer or Agent hereunder, (x) on or prior to
the date on which any such form or certification expires or becomes obsolete,
(y) after the occurrence of any event requiring a change in the most recent form
or certification previously delivered by it to Borrower and the Administrative
Agent, and (z) from time to time if requested by Borrower or the Administrative
Agent, provide the Administrative Agent and Borrower with two completed
originals of the following, as applicable:
(A) Form W-8ECI (claiming exemption from U.S. withholding tax
because the income is effectively connected with a U.S. trade or business)
or any successor form;
(B) Form W-8BEN (claiming exemption from, or a reduction of, U.S.
withholding tax under an income tax treaty) or any successor form;
(C) in the case of a Non-U.S. Lender claiming exemption under
Section 871(h) or 881(c) of the Code, a Form W-8BEN (claiming exemption
from U.S. withholding tax under the portfolio interest exemption) or any
successor form; or
(D) any other applicable form, certificate or document prescribed
by the IRS certifying as to such Non-U.S. Lender's entitlement to such
exemption from United States withholding tax or reduced rate with respect
to all payments to be made to such Non-U.S. Lender under the Loan
Documents.
(ii) To the extent it is legally able to do so, each U.S. Lender
shall (v) on or prior to the Initial Closing Date if such U.S. Lender is a
signatory hereto, (w) otherwise, on or
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prior to the date on which such U.S. Lender becomes a Lender, an Issuer or an
Agent hereunder, (x) at the request of Borrower or the Administrative Agent, on
or prior to the date on which any such form or certification expires or becomes
obsolete, (y) after the occurrence of any event requiring a change in the most
recent form or certification previously delivered by it to Borrower and the
Administrative Agent, and (z) from time to time if requested by Borrower or the
Administrative Agent, provide the Administrative Agent and Borrower with two
completed originals of Form W-9 (certifying that such U.S. Lender is entitled to
an exemption from U.S. backup withholding tax) or any successor form. Solely for
purposes of this SECTION 2.17(F)(II), a "U.S. Lender" shall not include a
Lender, an Issuer or an Agent that may be treated as an exempt recipient based
on the indicators described in Treas. Reg. Section 1.6049-4(c)(1)(ii).
(iii) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax with respect to payments under this Agreement shall
deliver to Borrower (with a copy to the Administrative Agent), if reasonably
requested by Borrower, 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; PROVIDED that the foregoing requirement shall
not apply if the completion and execution of such documentation will subject
such Lender to any material unreimbursed cost or otherwise be adverse to such
Lender.
(g) Any Lender claiming any additional amounts payable pursuant to
this SECTION 2.17 shall use its reasonable efforts (consistent with Requirements
of Law) to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts that would be payable or may thereafter accrue and would
not, in the sole determination of such Lender, result in any unreimbursed costs
to, or otherwise be disadvantageous to, such Lender.
(h) If a Lender or Agent determines in its sole discretion that it
has received a refund in respect of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by Borrower or with respect to which Borrower has
paid additional amounts pursuant to this SECTION 2.17, it shall reimburse the
portion of such refund to Borrower that it determines, in its sole discretion,
will leave it in no better or worse after-tax financial position (taking into
account all out-of-pocket expenses of such Agent or Lender, as the case may be)
than if the tax giving rise to the payment had not been imposed in the first
instance; PROVIDED that Borrower, upon the request of such Lender or Agent,
agrees to repay the amount paid over to Borrower (plus penalties, interest and
other reasonable charges) to such Lender or Agent in the event such Lender or
Agent is required to repay such refund to such taxation authority.
Section 2.18 SUBSTITUTION OF LENDERS
(a) In the event that (i) (A) any Lender makes a claim under
SECTION 2.15 or 2.16, (B) it becomes illegal for any Lender to continue to fund
or make any Eurodollar Rate Loan and such Lender notifies Borrower pursuant to
SECTION 2.14(C), (C) any Loan Party is required to make any payment pursuant to
SECTION 2.17 that is attributable to a particular Lender that cannot be
mitigated pursuant to SECTION 2.17(G) or (D) any Lender becomes a Non-Funding
Lender, (ii) in the case of clause (i)(A) above, as a consequence of increased
costs in respect of which such claim is made, the effective rate of interest
payable to such Lender under this Agreement with respect to its Loans materially
exceeds the effective average annual rate of in-
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terest payable to the Requisite Lenders under this Agreement and (iii) in the
case of clauses (i)(A), (B) and (C) above, Revolving Credit Lenders holding at
least 75% of the Revolving Credit Commitments are not subject to such increased
costs or illegality, payment or proceedings (any such Lender, an "AFFECTED
LENDER"), Borrower may substitute any Lender and, if reasonably acceptable to
the Administrative Agent, any other Eligible Assignee (a "SUBSTITUTE
INSTITUTION") for such Affected Lender hereunder, after delivery of a written
notice (a "SUBSTITUTION NOTICE") by Borrower to the Administrative Agent and the
Affected Lender within a reasonable time (in any case not to exceed 90 days)
following the occurrence of any of the events described in clause (i) above that
Borrower intends to make such substitution; PROVIDED, HOWEVER, that, if more
than one Lender claims increased costs, illegality or right to payment arising
from the same act or condition and such claims are received by Borrower within
30 days of each other, then Borrower may substitute all, but not (except to the
extent Borrower has already substituted one of such Affected Lenders before
Borrower's receipt of the other Affected Lenders' claim) less than all, Lenders
making such claims.
(b) If the Substitution Notice was properly issued under this
SECTION 2.18, the Affected Lender shall sell, and the Substitute Institution
shall purchase, all rights and claims of such Affected Lender under the Loan
Documents and the Substitute Institution shall assume, and the Affected Lender
shall be relieved of, the Affected Lender's Revolving Credit Commitments and all
other prior unperformed obligations of the Affected Lender under the Loan
Documents (other than in respect of any damages (other than exemplary or
punitive damages, to the extent permitted by applicable law) in respect of any
such unperformed obligations). Such purchase and sale (and the corresponding
assignment of all rights and claims hereunder) shall be recorded in the Register
maintained by the Administrative Agent and shall be effective on (and not
earlier than) the latest of (i) the receipt by the Affected Lender of its
Ratable Portion of the Revolving Credit Outstandings and of each Tranche of Term
Loans, together with any other Obligations owing to it, (ii) the receipt by the
Administrative Agent of an agreement in form and substance satisfactory to it
and Borrower whereby the Substitute Institution shall agree to be bound by the
terms hereof and (iii) the payment in full to the Affected Lender in cash of all
fees, unreimbursed costs and expenses and indemnities accrued and unpaid through
such effective date. Upon the effectiveness of such sale, purchase and
assumption, the Substitute Institution shall become a "Lender" hereunder for all
purposes of this Agreement having a Commitment in the amount of such Affected
Lender's Commitment assumed by it and such Commitment of the Affected Lender
shall be terminated; PROVIDED, HOWEVER, that all indemnities and rights to
additional amounts under the Loan Documents shall continue in favor of such
Affected Lender.
(c) Each Lender agrees that, if it becomes an Affected Lender and
its rights and claims are assigned hereunder to a Substitute Institution
pursuant to this SECTION 2.18, it shall execute and deliver to the
Administrative Agent an Assignment and Assumption to evidence such assignment,
together with any Note (if such Loans are evidenced by a Note) evidencing the
Loans subject to such Assignment and Assumption; PROVIDED, HOWEVER, that the
failure of any Affected Lender to execute an Assignment and Assumption or
deliver such Note shall not render such assignment invalid.
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Section 2.19 FACILITIES INCREASE
(a) BORROWER REQUEST. Borrower and (with respect to Incremental
Term Loan Commitments (as defined below) only) Co-Borrower may, after the Second
Closing Date, by delivery of a Facilities Increase Notice to the Administrative
Agent elect to request (x) prior to the Revolving Credit Termination Date, one
or more increases to the existing Revolving Credit Commitments and/or (y) the
establishment of one or more new Term Loan Commitments (each, an "INCREMENTAL
TERM LOAN COMMITMENT"), by an amount not in excess of $150,000,000 in the
aggregate and not less than $20,000,000 in respect of any one increase request
(each such increase, a "FACILITIES INCREASE"). Each such Facilities Increase
Notice shall specify (i) the date (each, a "FACILITIES INCREASE DATE") on which
Borrower proposes that the increased or new Commitments shall be effective,
which shall be a date not less than 10 Business Days after the date on which
such Facilities Increase Notice is delivered to the Administrative Agent, and
(ii) the identity of each Eligible Assignee to which Borrower proposes any
portion of such increased or new Commitments be allocated and the amounts of
such allocations; PROVIDED that any existing Lender approached to provide all or
a portion of the increased or new Commitments may elect or decline, in its sole
discretion, to provide such increased or new Commitment; PROVIDED FURTHER that
the Commitment of any Eligible Assignee that is not a Lender prior to the
Facilities Increase shall be subject to the consent of the Administrative Agent,
which consent shall not be unreasonably withheld.
(b) CONDITIONS. The increased or new Commitments shall become
effective, as of such Facilities Increase Date; PROVIDED that:
(i) each of the conditions set forth in SECTION 3.2 shall be
satisfied;
(ii) no Default or Event of Default shall have occurred and be
continuing or would result from the Borrowings to be made on the Facilities
Increase Date;
(iii) on a Pro Forma Basis after giving PRO FORMA effect to the
borrowings to be made on the Facilities Increase Date and the use of
proceeds thereof (including any change in Consolidated EBITDA and any
increase in Indebtedness resulting from the consummation of any Permitted
Acquisition concurrently with such borrowings) as of the date of the most
recent Financial Statements delivered pursuant to Section 6.1(A) or (B),
Borrower shall be in compliance with each of the covenants set forth in
ARTICLE V;
(iv) Borrower shall make any payments required pursuant to SECTION
2.14(D) in connection with any adjustment of Revolving Loans pursuant to
clause (d) below;
(v) Borrower and Co-Borrower shall deliver or cause to be
delivered any legal opinions or other documents reasonably requested by the
Administrative Agent in connection with any such transaction, and the
Administrative Agent shall be reasonably satisfied with the terms and
documentation of the Facilities Increase; and
(vi) there shall have been paid to the Administrative Agent, for
the account of the Administrative Agent and the Lenders (including any
Person becoming a Lender as part of such Facilities Increase on such
Facilities Increase Date), as applicable, all reasonable and documented
fees and expenses (including reasonable and documented fees
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and expenses of counsel) due and payable on or before the Facilities
Increase Date (including all such fees described in the Fee Letters).
(c) TERMS OF NEW LOANS AND COMMITMENTS. The terms and provisions
of Loans made pursuant to any Facilities Increase shall be as follows:
(i) the terms and provisions of Loans made pursuant to Incremental
Term Loan Commitments ("INCREMENTAL TERM LOANS") shall be, except as
otherwise set forth herein or in the Increase Joinder, identical to the
Term Loans (it being understood that Incremental Term Loans may be part of
an existing Tranche of Term Loans or may form a new Tranche);
(ii) the terms and provisions of Revolving Loans made pursuant to
such Facilities Increase shall be identical to the Revolving Loans;
(iii) the weighted average life to maturity of all new Incremental
Term Loans shall be no shorter than the weighted average life to maturity
of the Revolving Loans and the existing Term Loans;
(iv) the maturity date of Incremental Term Loans shall not be
earlier than the Final Maturity Date; and
(v) Incremental Term Loans shall have a scheduled amortization of
not more than 1% PER ANNUM at all times other than those within one year of
the final maturity of such Loans and such amortization shall be on a
quarterly basis within each year and in equal amounts among quarters, and
with respect to mandatory prepayments and other payment rights shall be
treated no more favorably than ratably with existing Term Loans.
The increased or new Commitments shall be effected by a joinder
agreement (the "INCREASE JOINDER") executed by Borrower, Co-Borrower, the
Administrative Agent and each Lender making such increased or new Commitment, in
form and substance reasonably satisfactory to each of them. The Increase Joinder
shall, without the consent of any other Agents or Lenders, effect such
amendments to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent, to effect
the provisions of this SECTION 2.19. In addition, unless otherwise specifically
provided herein, all references in the Loan Documents to Revolving Loans or Term
Loans shall be deemed, unless the context otherwise requires, to include
references to Revolving Loans made pursuant to any Facilities Increase and
Incremental Term Loans, respectively, made pursuant to any Facilities Increase.
(d) ADJUSTMENT OF REVOLVING LOANS. To the extent the Commitments
being increased on the relevant Facilities Increase Date are Revolving Credit
Commitments, then each of the Revolving Credit Lenders having a Revolving Credit
Commitment prior to such Facilities Increase Date (the "PRE-INCREASE REVOLVING
LENDERS") shall assign to any Revolving Credit Lender that is acquiring a new or
additional Revolving Credit Commitment on the Facilities Increase Date (the
"POST-INCREASE REVOLVING LENDERS"), and such Post-Increase Revolving Lenders
shall purchase from each Pre-Increase Revolving Lender, at the principal amount
thereof, such interests and participations in the Revolving Credit Outstandings
as shall be necessary in
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order that, after giving effect to all such assignments and purchases, such
Revolving Credit Outstandings will be held by Pre-Increase Revolving Lenders and
Post-Increase Revolving Lenders in accordance with their Ratable Portions of the
Revolving Credit Commitments after giving effect to such Facilities Increase.
(e) MAKING OF NEW TERM LOANS. On any Facilities Increase Date on
which new Commitments for Term Loans are effective, subject to the satisfaction
of the foregoing terms and conditions, each Lender of such new Commitment shall
make a Term Loan to Borrower or Co-Borrower, as the case may be, in an amount
equal to its new Commitment.
(f) EQUAL AND RATABLE BENEFIT. The Loans and Commitments
established pursuant to this SECTION 2.19 shall constitute Loans and Commitments
under, and shall be entitled to all the benefits afforded by, this Agreement and
the other Loan Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Guaranty and security interests created by the
Collateral Documents. The Loan Parties, at their own expense, shall take any
actions reasonably required by the Administrative Agent to ensure and/or
demonstrate that the Lien and security interests granted by the Collateral
Documents continue to be perfected under the UCC or otherwise after giving
effect to the establishment of any new Tranche of Term Loans or any such new
Commitments or the making of Incremental Term Loans.
Section 2.20 ESCROW ACCOUNT
(a) The Notices of Borrowing delivered in connection with
Borrowings to be made on the Initial Closing Date and the Second Closing Date
shall specify portions of those Borrowings to be delivered by the Administrative
Agent into the Escrow Account (such amounts shall be referred to in the
aggregate as the "INITIAL ESCROW Amount"). The Initial Escrow Amount shall not
be less than the aggregate principal amount of all Indebtedness listed on
SCHEDULE 7.11(A).
(b) The Initial Escrow Amount shall be delivered by the
Administrative Agent to the Escrow Account on the Initial Closing Date and/or
the Second Closing Date (in accordance with the Notices of Borrowing) and shall
be made available to Borrower and/or Co-Borrower only in accordance with the
terms of the Escrow Agreement.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 3.1 CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS
OF CREDIT
The obligation of each Lender to make the Loans requested to be made by
it on the Initial Closing Date and the Second Closing Date and the obligation of
each Issuer to Issue Letters of Credit on the Initial Closing Date is subject to
the satisfaction or due waiver in accordance with SECTION 11.1 of each of the
following conditions precedent:
(a) CERTAIN DOCUMENTS. The Administrative Agent shall have
received on or prior to the Initial Closing Date each of the following, each
dated the Initial Closing Date unless otherwise indicated or agreed to by the
Administrative Agent and the Arrangers, in
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form and substance reasonably satisfactory to each of the Administrative Agent
and the Arrangers:
(i) this Agreement, duly executed and delivered by Co-Borrower,
Parent and Borrower, and, for the account of each Lender requesting the
same, a Note of Borrower conforming to the requirements set forth herein;
(ii) the Guaranty, duly executed by each Guarantor that is required
to be party thereto on the Initial Closing Date;
(iii) the Pledge and Security Agreement, duly executed by
Co-Borrower, Borrower and each Guarantor that is required to be party
thereto on the Initial Closing Date, together with each of the following:
(A) evidence reasonably satisfactory to each of the
Administrative Agent and the Arrangers that, upon the filing and
recording of instruments delivered on the Initial Closing Date, the
Collateral shall be subject to the Requisite Liens (subject to Liens
permitted hereunder), including (x) such documents duly executed by
each Loan Party as each of the Administrative Agent and the Collateral
Agent may reasonably request with respect to the perfection of the
Requisite Liens in the Collateral (including financing statements under
the UCC, short-form security agreements relating to patents, trademarks
and registered copyrights in the United States suitable for filing with
the United States Patent and Trademark Office or the United States
Copyright Office, as the case may be, and other applicable documents
under the laws of any jurisdiction with respect to the perfection of
Liens created by the Pledge and Security Agreement) and (y) copies of
UCC search reports as of a recent date listing all effective financing
statements and tax and judgment liens that name any Loan Party as
debtor, together with copies of such financing statements, none of
which shall cover the Collateral except for those that shall be
terminated on the Initial Closing Date or are otherwise permitted
hereunder;
(B) all certificates, instruments and other documents (if
any) representing all Pledged Stock being pledged pursuant to the
Pledge and Security Agreement and stock powers for such certificates,
instruments and other documents executed in blank; and
(C) all instruments representing Pledged Debt Instruments
being pledged pursuant to the Pledge and Security Agreement duly
endorsed in blank, including, without limitation, intercompany notes
from Loan Parties and their Subsidiaries in form and substance
reasonably satisfactory to the Administrative Agent and the Arrangers;
(iv) the Escrow Agreement, duly executed by Co-Borrower and
Borrower;
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(v) an opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, counsel to the Loan Parties, in substantially the form of EXHIBIT G
(which shall cover New York and Delaware law), and (B) counsel to the Loan
Parties in Alabama, Florida, Georgia, Indiana, Michigan, Minnesota and
Ohio, in each case addressed to the Collateral Agent and the Lenders and
addressing such other matters as any Lender through the Administrative
Agent or the Arrangers may reasonably request;
(vi) a copy of each Closing Date Related Document, in each case
certified as being complete and correct by a Responsible Officer of
Borrower;
(vii) a copy of the articles or certificate of incorporation (or
equivalent Constituent Document) of each Loan Party, certified as of a
recent date by the Secretary of State of the state of organization of such
Loan Party, together with certificates of such official attesting to the
good standing of each such Loan Party and certificates attesting to the
good standing of each such Loan Party in states where it is qualified as a
foreign entity;
(viii) a certificate of the Secretary of each Loan Party certifying
(A) the names and true signatures of each officer of such Loan Party that
has been authorized to execute and deliver any Loan Document or other
document required hereunder to be executed and delivered by or on behalf of
such Loan Party, (B) the by-laws (or equivalent Constituent Document) of
such Loan Party as in effect on the date of such certification, (C) the
resolutions of such Loan Party's Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement and
the other Loan Documents to which it is a party and (D) that there have
been no changes in the certificate of incorporation (or equivalent
Constituent Document) of such Loan Party from the certificate of
incorporation (or equivalent Constituent Document) delivered pursuant to
clause (vii) above;
(ix) a certificate of a Responsible Officer of Co-Borrower stating
that Co-Borrower and its Subsidiaries, taken as a whole, and Borrower and
its Subsidiaries, taken as a whole, are Solvent on a Consolidated basis
after giving effect to the Transactions, the initial Loans and Letters of
Credit, the application of the proceeds thereof in accordance with SECTION
7.9 and the payment of all estimated legal, accounting and other fees
related hereto and thereto;
(x) a certificate of a Responsible Officer of Borrower to the
effect that (A) the conditions set forth in SECTIONS 3.2(B) and (C) have
been satisfied, (B) no litigation not listed on SCHEDULE 4.7 shall have
been commenced against any Loan Party or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect and (C) certain
other conditions reasonably detailed by the Administrative Agent that are
otherwise required to be met have been met;
(xi) evidence satisfactory to each of the Administrative Agent and
the Arrangers that the insurance policies required by SECTION 7.5 and any
Collateral Document are in full force and effect, together with, unless
otherwise agreed by
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each of the Administrative Agent and the Arrangers, endorsements naming the
Collateral Agent, on behalf of the Secured Parties, as an additional
insured and/or loss payee, as appropriate, under all insurance policies to
be maintained with respect to the properties of Co-Borrower, Parent,
Borrower and each other Loan Party;
(xii) not later than 2 Business Days before the Initial Closing
Date, the Financial Statements listed on SCHEDULE 4.4. Such Financial
Statements (A) shall be prepared in accordance with, or reconciled to, GAAP
(other than the absence of footnotes to such unaudited financial
statements), (B) shall be prepared on a basis materially consistent with
the financial statements previously provided to the Lenders and (C) in the
case of the unaudited Financial Statements of the Acquired Businesses, such
Financial Statements shall have been reviewed by Ernst & Young LLP in
accordance with the procedures set forth in Statement on Standards for
Accounting and Review Services No. 1;
(xiii) a PRO FORMA consolidated balance sheet (the "PRO FORMA BALANCE
SHEET") of Borrower which combines Borrower's consolidated balance sheet as
of April 3, 2005 and the Acquired Businesses' consolidated balance sheet as
of March 6, 2005, after giving effect to the Transactions and all other
indebtedness for borrowed money incurred after such dates (collectively,
the "PRO FORMA TRANSACTIONS"), together with a certificate of the chief
financial officer of Borrower to the effect that such PRO FORMA balance
sheet was prepared in good faith based upon reasonable assumptions and that
such PRO FORMA balance sheet properly reflects in all material respects
adjustments (other than any adjustments related to allocating the purchase
price of the RTM Acquisitions) to Borrower's historical balance sheet
necessary to account for the Pro Forma Transactions, and a certificate of
the chief accounting officer of the Acquired Businesses to the effect that
such PRO FORMA balance sheet was prepared in good faith based upon
reasonable assumptions and that such PRO FORMA balance sheet properly
reflects in all material respects adjustments (other than any adjustments
related to allocating the purchase price of the RTM Acquisitions) to the
Acquired Businesses' historical balance sheet necessary to account for the
Pro Forma Transactions. The chief financial officer of Borrower and the
chief accounting officer of the Acquired Businesses shall certify that any
adjustments allocating the purchase price of the RTM Acquisitions or
related to the allocation thereof were prepared in good faith based upon
the best available information as of the Initial Closing Date, it being
understood that such adjustments are estimates, are subject to change and
could differ materially from the final purchase accounting adjustments
determined after an asset appraisal has been obtained. The Lenders shall be
reasonably satisfied that such balance sheets are not materially
inconsistent with the forecasts previously provided to the Lenders.
Borrower shall have delivered the Projections, which shall not be
materially inconsistent with the projections previously provided to the
Arrangers; and
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(xiv) such other certificates, documents, agreements and information
respecting any Loan Party as any Lender through the Administrative Agent or
the Arrangers may reasonably request.
(b) FEE AND EXPENSES PAID. There shall have been paid to the
Administrative Agent, for the account of the Agents, the Issuers and the
Lenders, as applicable, all reasonable and documented fees and expenses
(including reasonable and documented fees and expenses of counsel) due and
payable on or before the Initial Closing Date (including all such fees described
in the Fee Letter in existence on the date hereof).
(c) [RESERVED]
(d) REFINANCING. (i) The Securitization Notes shall have been
repaid or satisfied and discharged and the Administrative Agent and the
Arrangers shall have received evidence thereof satisfactory to them; (ii) with
respect to Indebtedness listed on SCHEDULE 3.1(D)(II), the Administrative Agent
and the Arrangers shall have received payoff letters (or evidence of repayment)
duly executed and delivered by the appropriate Loan Parties and counterparties
confirming that the relevant Indebtedness has been repaid or will be repaid
prior to the end of the Refinancing Grace Period; (iii) with respect to
Indebtedness listed on SCHEDULE 3.1(D)(III), the Administrative Agent and the
Arrangers shall have received payoff letters (or evidence of repayment) duly
executed and delivered by the appropriate Loan Parties and counterparties
confirming that the relevant Indebtedness has been repaid or will be repaid on
or prior to the Second Closing Date; (iv) all Indebtedness of any Loan Party
owed to or held by Sponsor or its Affiliates shall have been repaid or cancelled
and the Administrative Agent and the Arrangers shall have received evidence
thereof satisfactory to them; and (v) the Administrative Agent and the Arrangers
shall have received payoff letters duly executed and delivered by the
appropriate Loan Parties and counterparties confirming that all Indebtedness of
the Acquired Businesses owed to Orix Financial Services, Inc. and ▇▇▇▇▇
Franchise Capital Corporation has been repaid or will be repaid prior to the end
of the Refinancing Grace Period or shall receive satisfactory evidence that such
Indebtedness has been repaid or will be repaid on the Second Closing Date. With
respect to any Indebtedness to be repaid pursuant to SECTION 7.18 prior to the
end of the Refinancing Grace Period that pursuant to its terms could not be so
repaid unless revocable notice of repayment is given on or prior to the Initial
Closing Date, the Administrative Agent shall have received evidence that such
notice has been delivered.
(e) CONSUMMATION OF TRANSACTIONS AND CLOSING DATE RELATED
DOCUMENTS. Each of the Administrative Agent and the Arrangers shall be
reasonably satisfied (and may, but shall not be obligated to, rely on the
receipt of a certificate from any Loan Party or any Affiliate thereof for all or
part of such purpose) that (i) the terms and conditions of the RTM Acquisition
Agreements shall not have been amended, waived or modified without the approval
of each of the Administrative Agent and the Arrangers (other than non-material
amendments, waivers and modifications to such terms that do not, in the
aggregate, materially adversely affect the interests of the Administrative
Agent, the Collateral Agent, the Arrangers, the Lenders and the Issuers), (ii)
the RTM Acquisition Agreements and each of the other Closing Date Related
Documents shall have been ap-
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proved by all corporate (or equivalent) action of each Loan Party party thereto
and each of the other parties thereto, shall have been executed and delivered by
each such party, shall be in full force and effect and there shall not have
occurred and be continuing any material breach or default thereunder, (iii)
subject only to the funding of the initial Loans hereunder, the RTM Acquisitions
shall have been consummated in accordance with the RTM Acquisition Agreements
and all applicable Requirements of Law and all representations and warranties of
the Loan Parties contained in the RTM Acquisition Agreements and the other
Closing Date Related Documents shall be true and correct in all material
respects on the Initial Closing Date, (iv) subject only to the funding of the
initial Loans hereunder, all conditions precedent to the consummation of the RTM
Acquisitions shall have been satisfied or waived with, if such waiver is adverse
in any material respect to the Lenders (as reasonably determined by each
Arranger), the consent of each Arranger and (v) the Cash Investment shall have
been made on terms and conditions reasonably satisfactory to each of the
Administrative Agent and the Arrangers.
(f) CONSENTS, ETC. The Lenders shall be reasonably satisfied that
all requisite Governmental Authorities and third parties shall have approved or
consented to the Transactions, and there shall be no governmental or judicial
action, actual or to Borrower's knowledge threatened, that has or would have,
singly or in the aggregate, a reasonable likelihood of restraining, preventing
or imposing burdensome conditions on the Transactions or the other transactions
contemplated hereby.
(g) PERFECTION. The Lenders shall have a valid and perfected first
priority lien on and security interest in the Closing Date Collateral (subject
to Liens permitted under the Loan Documents); all filings, recordations and
searches necessary in connection with such liens and security interests shall
have been duly made; and all filings and recording fees and taxes shall have
been duly paid by the Loan Parties.
(h) CORPORATE STRUCTURE. The Lenders shall be reasonably satisfied
with the capitalization, the terms and conditions of any equity arrangements and
the corporate or other organizational structure of Co-Borrower and its
Subsidiaries (after giving effect to the Transactions) and any indemnities,
employment and other arrangements entered into in connection with the
Transactions.
(i) USA PATRIOT ACT. The Lenders shall have received, at least
five Business Days prior to the Initial Closing Date, all documentation and
other information required by bank regulatory authorities under applicable "know
your customer" and anti-money laundering rules and regulations (including
without limitation, the Patriot Act) including, without limitation, the
information described in SECTION 11.19.
(j) SOURCES AND USES. The sources and uses of the Loans shall be
as set forth on SCHEDULE 3.1(J).
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Section 3.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER
OF CREDIT
The obligation of each Lender on any date (including the Initial
Closing Date) to make any Loan and of each Issuer on any date (including the
Initial Closing Date) to Issue any Letter of Credit is subject to the
satisfaction of each of the following conditions precedent:
(a) REQUEST FOR BORROWING OR ISSUANCE OF LETTER OF CREDIT. With
respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing from Borrower or Co-Borrower, as applicable
(or, in the case of Swing Loans, a duly executed Swing Loan Request), and,
with respect to any Letter of Credit, the Administrative Agent and the
Issuer shall have received a duly executed Letter of Credit Request.
(b) REPRESENTATIONS AND WARRANTIES; NO DEFAULTS. The following
statements shall be true on the date of such Loan or Issuance, both before
and after giving effect thereto and, in the case of any Loan, to the
application of the proceeds thereof:
(i) the representations and warranties set forth in
ARTICLE IV and in the other Loan Documents shall be true and correct in
all material respects on and as of such date with the same effect as
though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date; PROVIDED that
representations and warranties which by their terms are qualified by
materiality or by reference to a Material Adverse Effect shall be true
and correct in all respects; and
(ii) no Default or Event of Default shall have occurred
and be continuing.
(c) NO LEGAL IMPEDIMENTS. The making of the Loans or the Issuance
of such Letter of Credit on such date does not violate any Requirement of
Law (including, without limitation, Regulations T, U and X of the Federal
Reserve Board) on the date of or immediately following such Loan or
Issuance of such Letter of Credit and is not enjoined, temporarily,
preliminarily or permanently.
Each submission by Borrower or Co-Borrower to the Administrative Agent of a
Notice of Borrowing or a Swing Loan Request and the acceptance by Borrower or
Co-Borrower of the proceeds of each Loan requested therein, and each submission
by Borrower to an Issuer of a Letter of Credit Request, and the Issuance of each
Letter of Credit requested therein, shall be deemed to constitute a
representation and warranty by Co-Borrower, Parent and Borrower as to the
matters specified in clause (b) above on the date of the making of such Loan or
the Issuance of such Letter of Credit.
Section 3.3 DETERMINATIONS OF INITIAL BORROWING CONDITIONS
For purposes of determining compliance with the conditions specified in
SECTION 3.1, each Lender shall be deemed to have consented to, approved,
accepted or be satisfied with each document or other matter required thereunder
to be consented to or approved by or accept-
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able or satisfactory to the Lenders unless an officer of the Administrative
Agent responsible for the transactions contemplated by the Loan Documents shall
have received notice from such Lender prior to the initial Borrowing, borrowing
of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection
thereto and such Lender shall not have made available to the Administrative
Agent such Lender's Ratable Portion of such Borrowing or Swing Loans.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Lenders, the Issuers and the Collateral Agent
to enter into this Agreement, each of Co-Borrower, Parent and Borrower
represents and warrants each of the following to the Agents, the Lenders, the
Issuers and the Collateral Agent, on and as of the Initial Closing Date and
after giving effect to the Transactions and the making of the Loans and the
other financial accommodations on the Initial Closing Date and on and as of each
date as required by SECTION 3.2(B)(I):
Section 4.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW
(a) Each of Co-Borrower and its Subsidiaries (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified to do business as a
foreign entity and in good standing under the laws of each jurisdiction where
such qualification is necessary, except where the failure to be so qualified or
in good standing would not, in the aggregate, have a Material Adverse Effect,
(iii) has all requisite power and authority and the legal right to own, pledge,
mortgage and operate its properties, to lease the property it operates under
lease and to conduct its business as now or currently proposed to be conducted,
(iv) is in compliance with its Constituent Documents, (v) is in compliance with
all applicable Requirements of Law except where the failure to be in compliance
would not, in the aggregate, have a Material Adverse Effect and (vi) has all
necessary Permits from or by, has made all necessary filings with, and has given
all necessary notices to, each Governmental Authority having jurisdiction, to
the extent required for such ownership, operation and conduct, except for
Permits, filings and notices the failure of which to obtain, make or give (as
applicable) would not, in the aggregate, have a Material Adverse Effect.
(b) None of Co-Borrower or any of its Subsidiaries is in violation
in any material respects of any United States Requirements of Law relating to
terrorism, sanctions or money laundering ("ANTI-TERRORISM LAWS"), including
United States Executive Order No. 13224 on Terrorist Financing (the
"ANTI-TERRORISM ORDER") and the Patriot Act.
(c) None of Co-Borrower or any of its Subsidiaries is any of the
following:
(i) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, the Anti-Terrorism Order;
(ii) a Person owned or controlled by, or acting for or on behalf
of, any person that is listed in the annex to, or is otherwise subject to
the provisions of, the Anti-Terrorism Order;
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(iii) a Person that commits, threatens or conspires to commit or
supports "terrorism" as defined in the Anti-Terrorism Order; or
(iv) a Person that is named as a "specially designated national and
blocked person" in the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control.
(d) None of Co-Borrower or any of its Subsidiaries, to its
knowledge, (i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any Person
described in clause (c) above, (ii) deals in, or otherwise engages in any
transactions relating to, any property or interests in property blocked pursuant
to the Anti-Terrorism Order or (iii) engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism
Law.
Section 4.2 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS
(a) The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party and the consummation of the
transactions contemplated thereby:
(i) are within such Loan Party's corporate, limited liability
company, partnership or other powers;
(ii) have been duly authorized by all necessary action, including
the consent of shareholders, partners and members where required;
(iii) do not and will not (A) contravene such Loan Party's or any of
its Subsidiaries' respective Constituent Documents, (B) violate any other
Requirement of Law applicable to such Loan Party (including, without
limitation, Regulations T, U and X of the Federal Reserve Board), or any
order or decree of any Governmental Authority or arbitrator applicable to
such Loan Party, (C) conflict with or result in the breach of, or
constitute a default under, or result in or permit the termination or
acceleration of, any Closing Date Related Document or any other material
Contractual Obligation of such Loan Party or any of its Subsidiaries, other
than Contractual Obligations in respect of Indebtedness listed on SCHEDULE
7.11(A) and SCHEDULE 8.1(B), or (D) result in the creation or imposition of
any Lien upon any property of such Loan Party or any of its Subsidiaries,
other than those in favor of the Secured Parties pursuant to the Collateral
Documents; and
(iv) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority or
any other Person, other than those listed on SCHEDULE 4.2 and that have
been or will be, prior to the Initial Closing Date, obtained or made,
copies of which have been or will be delivered to the Administrative Agent
pursuant to SECTION 3.1, and each of which on the Initial Closing Date will
be in full force and effect and, with respect to the Collateral, filings
required to perfect the Liens created by the Collateral Documents.
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(b) This Agreement has been, and each of the other Loan Documents
will have been upon delivery thereof pursuant to the terms of this Agreement,
duly executed and delivered by each Loan Party party thereto. This Agreement is,
and the other Loan Documents will be, when delivered hereunder, the legal, valid
and binding obligation of each Loan Party party thereto, enforceable against
such Loan Party in accordance with its terms, except as such enforceability may
be limited by general principles of equity and applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally.
Section 4.3 OWNERSHIP OF CO-BORROWER; SUBSIDIARIES
(a) Set forth on SCHEDULE 4.3 is a complete and accurate list
showing, as of the Initial Closing Date, Co-Borrower and all of its Subsidiaries
and, as to each such Person, the jurisdiction of its organization, the number of
shares of each class of Stock authorized (if applicable), the number outstanding
on the Initial Closing Date and the number and percentage of the outstanding
shares of each such class owned (directly or indirectly) by any Loan Party.
(b) As of the Initial Closing Date, no Stock of Co-Borrower or any
Subsidiary of Co-Borrower is subject to any outstanding option, warrant, right
of conversion or purchase of any similar right. All of the outstanding capital
stock of Parent and Borrower has been validly issued, is fully paid and
non-assessable (as applicable) and is owned beneficially and of record by
Co-Borrower and Parent, respectively, free and clear of all Liens other than the
Lien in favor of the Secured Parties created by the Pledge and Security
Agreement and Customary Permitted Liens. All of the outstanding Stock of each
Subsidiary of Co-Borrower owned (directly or indirectly) by Co-Borrower has been
validly issued, is fully paid and non-assessable (to the extent applicable) and
is owned by Co-Borrower or a Subsidiary of Co-Borrower, free and clear of all
Liens other than the Lien in favor of the Secured Parties created pursuant to
the Pledge and Security Agreement and Customary Permitted Liens. Neither
Co-Borrower nor any of its Subsidiaries is a party to (or, with respect to the
Stock of each Subsidiary of Co-Borrower, has knowledge of) (i) any agreement
restricting the transfer or hypothecation of any Stock of any such Subsidiary,
other than the Loan Documents or (ii) any agreement or understanding with
respect to the voting, sale or transfer of any shares of Stock of Co-Borrower or
any such Subsidiary, or any agreement restricting the transfer or hypothecation
of any such shares, other than (i) Contractual Obligations in respect of
Indebtedness listed on SCHEDULE 7.11(A) or SCHEDULE 8.1(B) and (ii) the RTM
Acquisition Agreements. Neither Co-Borrower nor any Subsidiary of Co-Borrower
owns or holds, directly or indirectly, any Stock of any Person other than such
Subsidiaries and Investments permitted by SECTION 8.3.
Section 4.4 FINANCIAL STATEMENTS
(a) The Financial Statements listed on SCHEDULE 4.4, copies of
each of which have been furnished to each Lender, fairly present in all material
respects, subject, in the case of such Financial Statements that are not audited
by independent financial accountants to the absence of footnote disclosure and
normal recurring year-end audit adjustments, the Consolidated financial
condition of Borrower, the Acquired Businesses and their respective
Subsidiaries, as applicable, as at the dates set forth on such SCHEDULE 4.4 for
such Financial Statements and the
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Consolidated results of the operations of Borrower, the Acquired Businesses and
their respective Subsidiaries, as applicable, for the period ended on such
dates, all in accordance with GAAP.
(b) As of the Initial Closing Date, none of Co-Borrower or any of
Co-Borrower's Subsidiaries has any material obligation, contingent liability or
liability for taxes, long-term leases or unusual forward or long-term commitment
that (i) is not reflected in the Financial Statements referred to in clause (a)
above or in the notes thereto and (ii) is required to be disclosed in such
Financial Statements.
(c) The Projections have been prepared by Co-Borrower in light of
the past operations of its business, and reflect projections for the period from
and including Fiscal Year 2005 through Fiscal Year 2010 on a quarter by quarter
basis through Fiscal Year 2005 and on a year by year basis thereafter. The
Projections are based upon estimates and assumptions stated therein, all of
which Co-Borrower believes to be reasonable and fair on the Initial Closing Date
in light of current conditions and current facts known to Co-Borrower and, as of
the Initial Closing Date, reflect Co-Borrower's good faith and reasonable
estimates of the future financial performance of Co-Borrower and its
Subsidiaries and of the other information projected therein for the periods set
forth therein. Notwithstanding the foregoing, it is understood that such
Projections are subject to significant uncertainties and contingencies, many of
which are beyond the control of Co-Borrower and its Subsidiaries and that no
assurance can be given that such Projections will be realized.
(d) The Pro Forma Balance Sheet reflects, as of the date thereof,
on a Pro Forma Basis, the Consolidated financial condition of Co-Borrower and
its Subsidiaries, and the assumptions expressed therein were reasonable based on
the information available to Co-Borrower at the time so furnished and on the
Initial Closing Date.
Section 4.5 MATERIAL ADVERSE CHANGE
Since January 2, 2005, with respect to Co-Borrower and its Subsidiaries
(other than the Acquired Businesses) and since May 30, 2004, with respect to the
Acquired Businesses, there has been no Material Adverse Change respecting
Co-Borrower and its Subsidiaries and there have been no events or developments
that, in the aggregate, have had a Material Adverse Effect with respect to such
entities taken as a whole.
Section 4.6 SOLVENCY
(a) On the Initial Closing Date, both before and after giving
effect to (a) the Loans and Letter of Credit Obligations to be made or extended
on the Initial Closing Date, (b) the disbursement of the proceeds of such Loans
pursuant to the instructions of Borrower or Co-Borrower, as the case may be, (c)
the RTM Acquisitions and the consummation of the other Transactions to take
place on the Initial Closing Date, (d) the payment and accrual of all
transaction costs in connection with the foregoing and (e) all contingent rights
of contribution and all intercompany loans, each Loan Party is Solvent.
(b) After the Initial Closing Date, after giving effect to (a) the
Loans and Letter of Credit Obligations to be made or extended on the Initial
Closing Date or such other date as Loans and Letter of Credit Obligations
requested hereunder are made or extended, (b) the dis-
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bursement of the proceeds of such Loans pursuant to the instructions of Borrower
or Co-Borrower, as the case may be, (c) the RTM Acquisitions and the
consummation of the other Transactions, (d) the payment and accrual of all
transaction costs in connection with the foregoing and (e) all contingent rights
of contribution and all intercompany loans, each of Borrower, Co-Borrower and
the Loan Parties on a Consolidated basis are Solvent.
Section 4.7 LITIGATION
Except as set forth on SCHEDULE 4.7, there are no pending or, to the
knowledge of Co-Borrower, Parent and Borrower, threatened actions,
investigations or proceedings affecting Co-Borrower or any of its Subsidiaries
before any court, Governmental Authority or arbitrator other than those that, in
the aggregate, would not have a Material Adverse Effect. The performance of any
action by any Loan Party required or contemplated by any Loan Document or any
Closing Date Related Document is not restrained or enjoined (either temporarily,
preliminarily or permanently).
Section 4.8 TAXES
(a) All federal and material state, local and foreign income and
franchise and other material tax returns, reports and statements (collectively,
the "TAX RETURNS") required to be filed by any Loan Party or any Tax Affiliates
of any Loan Party have been filed with the appropriate Governmental Authorities,
all such Tax Returns are true and correct in all material respects, and all
Taxes reflected in such Tax Returns and all federal and material state, local
and foreign income and franchise and other material Taxes otherwise due and
payable have been paid prior to the date on which any fine, penalty, interest,
late charge or loss may be added thereto for non-payment thereof except where
contested in good faith and by appropriate proceedings, but only if adequate
reserves therefor have been established on the books of the applicable Loan
Party or such Tax Affiliate in accordance with GAAP. Each Loan Party and each of
their respective Tax Affiliates have complied in all material respects with the
tax, social security and unemployment withholding provisions of applicable
Requirements of Law and such withholdings have been timely paid to the
respective Governmental Authorities. None of the Loan Parties nor any of their
respective Tax Affiliates has ever been a party to any understanding or
arrangement constituting a "tax shelter" within the meaning of Section
6662(d)(2)(C)(iii) of the Code or within the meaning of Section 6111(c) or
Section 6111(d) of the Code as in effect immediately prior to the enactment of
the American Jobs Creation Act of 2004, or has ever "participated" in a
"reportable transaction" within the meaning of Treasury Regulation Section
1.6011-4, except as could not be reasonably expected to, individually or in the
aggregate, result in a Material Adverse Effect.
(b) None of the Loan Parties nor any of their respective Tax
Affiliates has obligation under any tax sharing agreement other than any such
agreement permitted under SECTION 8.9(F).
Section 4.9 FULL DISCLOSURE
The written, factual information (other than projections, budgets,
other estimates and general market data) concerning any of Co-Borrower or its
Subsidiaries prepared or fur-
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nished by or on behalf Co-Borrower, Parent or Borrower to the Administrative
Agent or any Lender in connection with this Agreement or the Closing Date
Related Documents or the consummation of the transactions contemplated hereunder
and thereunder, including the information contained in the Disclosure Documents,
taken as a whole, did not and does not, as of the date furnished (or as of the
Initial Closing Date), contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements contained therein or
herein, taken as a whole, not misleading in light of the circumstances under
which such statements were and are made.
Section 4.10 MARGIN REGULATIONS
No Loan Party is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U of the Federal Reserve Board), and no proceeds of any Loan will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock in contravention of
Regulation T, U or X of the Federal Reserve Board.
Section 4.11 NO BURDENSOME RESTRICTIONS; NO DEFAULTS
(a) None of Co-Borrower or any of its Subsidiaries (i) is a party
to any Contractual Obligation the compliance with one or more of which would
have, in the aggregate, a Material Adverse Effect or (ii) is subject to one or
more Constituent Document restrictions that would, in the aggregate, have a
Material Adverse Effect.
(b) None of Co-Borrower or any of its Subsidiaries is in default
under or with respect to any Contractual Obligation owed by it and, to the
knowledge of Co-Borrower, Parent and Borrower, no other party is in default
under or with respect to any Contractual Obligation owed to any Loan Party or to
any Subsidiary of any Loan Party, other than, in either case, (i) those defaults
that, in the aggregate, would not have a Material Adverse Effect, (ii) during
the Refinancing Grace Period only, defaults under Indebtedness listed on
SCHEDULE 7.11(A) and (iii) until the Second Closing Date only, defaults under
Indebtedness listed on SCHEDULE 8.1(B).
(c) No Default or Event of Default has occurred and is continuing.
(d) To the knowledge of Co-Borrower, Parent and Borrower, there
are no Requirements of Law applicable to any Loan Party or any Subsidiary of any
Loan Party the compliance with which by such Loan Party or such Subsidiary, as
the case may be, would, in the aggregate, have a Material Adverse Effect.
Section 4.12 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT
None of Co-Borrower or any of its Subsidiaries is (a) an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the U.S. Investment
Company Act of 1940, as amended, or (b) a "holding company" or an "affiliate" of
a "holding company" or a "subsidiary company" of a "holding company," as each
such term is defined and used in the U.S. Public Utility Holding Company Act of
1935, as amended.
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Section 4.13 USE OF PROCEEDS
The proceeds of the Loans and (in the case of clause (d)) the Letters
of Credit are being used by Borrower and Co-Borrower (and, to the extent
distributed to them by Borrower or Co-Borrower, each other Loan Party) solely
(a) in the case of Term Loans, to consummate the RTM Refinancing and the ARG
Refinancing, (b) in the case of Term Loans, to finance the RTM Acquisitions and
for the payment of related transaction costs, fees and expenses, (c) for the
payment of transaction costs, fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, (d) in the case of Revolving
Loans and Letters of Credit, for working capital and general corporate purposes
(including to make Permitted Acquisitions) and (e) other than with respect to
Loans made on the Initial Closing Date, to maintain as cash on the Consolidated
balance sheet of Co-Borrower and its Subsidiaries.
Section 4.14 INSURANCE
All policies of insurance of any kind or nature of Co-Borrower or any
of its Subsidiaries, including policies of fire, theft, product liability,
public liability, property damage, other casualty, employee fidelity, workers'
compensation and employee health and welfare insurance, are in full force and
effect and are of a nature and provide such coverage as, in the reasonable
business judgment of a Responsible Officer of Co-Borrower, is sufficient,
appropriate and prudent for a business of the size and character of such Person.
Section 4.15 LABOR MATTERS
(a) There are no strikes, work stoppages, slowdowns or lockouts
pending or threatened against or involving Co-Borrower or any of its
Subsidiaries other than, after the Second Closing Date only, those that in the
aggregate would not have a Material Adverse Effect.
(b) There are no (i) unfair labor practices, grievances,
complaints or arbitrations pending or, to Co-Borrower's, Parent's and Borrower's
knowledge, threatened, against or involving Co-Borrower or any of its
Subsidiaries or (ii) any arbitrations or grievances threatened involving
Co-Borrower or any of its Subsidiaries, other than in the case of both clauses
(i) and (ii) those that, in the aggregate, would not have a Material Adverse
Effect.
(c) Except as set forth on SCHEDULE 4.15, as of the Initial
Closing Date, there is no collective bargaining agreement covering any employee
of Co-Borrower or its Subsidiaries.
Section 4.16 ERISA
(a) SCHEDULE 4.16 separately identifies as of the date hereof all
Title IV Plans and all Multiemployer Plans to which Co-Borrower or any of its
Subsidiaries has any obligation or liability, contingent or otherwise.
(b) Each employee benefit plan of Co-Borrower or any of its
Subsidiaries intended to qualify under Section 401 of the Code does so qualify,
and any trust created thereunder is exempt from tax under the provisions of
Section 501 of the Code, except where such failures, in the aggregate, would not
have a Material Adverse Effect.
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(c) Each Title IV Plan is in compliance in all material respects
with applicable provisions of ERISA, the Code and other Requirements of Law
except for non-compliances that, in the aggregate, would not have a Material
Adverse Effect.
(d) There has not been, nor is there reasonably expected to occur,
any ERISA Event other than those that, in the aggregate, would not have a
Material Adverse Effect.
(e) Except to the extent set forth on SCHEDULE 4.16, none of
Co-Borrower or any of its Subsidiaries or any ERISA Affiliate would have any
Withdrawal Liability as a result of a complete withdrawal as of the date hereof
from any Multiemployer Plan.
Section 4.17 ENVIRONMENTAL MATTERS
Except as would not, in the aggregate, result in Co-Borrower and its
Subsidiaries incurring Environmental Liabilities and Costs after the date hereof
that would have a Material Adverse Effect,
(a) the operations and Real Property of Co-Borrower and each of
its Subsidiaries have been and are in compliance with all and are not
subject to liabilities pursuant to Environmental Laws, including obtaining
and complying with all Permits required under Environmental Laws;
(b) none of Co-Borrower or any of its Subsidiaries or any Real
Property currently or, to the knowledge of Co-Borrower, Parent and
Borrower, previously owned, operated or leased by or for Co-Borrower or any
of its Subsidiaries or any of their respective predecessors in interest is
subject to any pending or, to the knowledge of Co-Borrower, Parent and
Borrower, threatened, claim, order, agreement, notice of violation or
notice of potential liability, or is the subject of any pending or
threatened proceeding or governmental investigation under or pursuant to
Environmental Laws;
(c) there are no underground storage tanks, active or abandoned,
or related piping, including, without limitation, petroleum storage tanks
or disposal areas, on or under any Real Property currently or formerly
owned, leased or operated by Co-Borrower or any of its Subsidiaries or any
of their respective predecessors in interest;
(d) no Real Property currently or formerly owned, leased or
operated by Co-Borrower or any of its Subsidiaries or any of their
respective predecessors in interest and no locations to which such entities
have arranged for disposal or treatment of any Contaminant are listed or
formally proposed for listing on the Natural Priorities List promulgated
pursuant to CERCLA, on the Comprehensive Environmental Response,
Compensation and Liability Information System promulgated pursuant to
CERCLA or on any similar list promulgated by a Governmental Authority or
are the subject of an enforcement action by any Governmental Authority or
of other Remedial Action;
(e) there are no polychlorinated biphenyls ("PCB"), PCB-containing
equipment, asbestos, asbestos-containing building materials or urea
formaldehyde present at any Real Property owned, leased or operated by
Co-Borrower or any of its Subsidiaries;
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(f) there are no facts, circumstances or conditions arising out of
or relating to the operations or ownership of Co-Borrower or its
Subsidiaries or any of their respective predecessors in interest or of Real
Property owned, operated, leased or used by Co-Borrower or any of its
Subsidiaries, or otherwise assumed by contract, agreement or operation of
law, that could result in Environmental Liabilities and Costs;
(g) as of the date hereof, no Environmental Lien has attached to
any property of Co-Borrower or any of its Subsidiaries and, to the
knowledge of Co-Borrower, Parent and Borrower, no facts, circumstances or
conditions exist that could reasonably be expected to result in any such
Lien attaching to any such property; and
(h) as of the Initial Closing Date, Co-Borrower and each of its
Subsidiaries have provided the Lenders with copies of all environmental or
health or safety audits, studies, assessments, inspections, investigations
or other environmental health and safety reports relating to the operations
of Co-Borrower or any of its Subsidiaries or any Real Property of any of
them and, in each case, any of their respective predecessors in interest
that are in the possession, custody or control of Co-Borrower or any of its
Subsidiaries.
Section 4.18 INTELLECTUAL PROPERTY
Except as disclosed on SCHEDULE 4.18, (a) Co-Borrower and its
Subsidiaries own or license or otherwise have the right to use all patents,
patent applications, trademarks (and the goodwill appurtenant thereto),
trademark applications (and the goodwill appurtenant thereto), service marks,
trade names, copyrights, Internet domain names and other intellectual property
rights (including all Intellectual Property) that are necessary for the
operations of their respective businesses, including all trade names associated
with any private label brands of Co-Borrower or any of its Subsidiaries and (b)
to Borrower's and Co-Borrower's knowledge, patent, patent application,
trademark, trademark application, service ▇▇▇▇, trade name, copyright, copyright
application, Internet domain name, franchise, authorization, other intellectual
property right (including all Intellectual Property), slogan or other
advertising device, product, process, method, substance, part or component, or
other material now employed, or now contemplated to be employed, by Co-Borrower
or any of its Subsidiaries infringes upon or conflicts in any material respect
with any rights owned by any other Person, and no claim or litigation regarding
any of the foregoing is pending against Co-Borrower or any of its Subsidiaries
or, to the knowledge of Co-Borrower and its Subsidiaries, is threatened, which
in either case is reasonably likely to result in a material liability to any
Loan Party.
Section 4.19 TITLE; REAL PROPERTY
(a) Each of Co-Borrower and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all Real Property and good
title to all personal property, in each case that is purported to be owned or
leased by it, including those reflected on the most recent Financial Statements
delivered by Borrower, and none of such properties and assets is subject to any
Lien, except Liens permitted under SECTION 8.2. Co-Borrower and its Subsidiaries
have received all deeds, assignments, waivers, consents, non-disturbance and
recognition or similar agreements, bills of sale and other documents in respect
of, and have duly effected all recordings, filings and other actions necessary
to establish, protect and perfect, Co-Borrower's and its Sub-
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sidiaries' right, title and interest in and to all such property, other than
those that the failure to receive or effect, in the aggregate, would not have a
Material Adverse Effect.
(b) Set forth on SCHEDULE 4.19 is a complete and accurate list of
all Real Property of each Loan Party and its Subsidiaries and showing, as of the
Initial Closing Date, the current street address (including, where applicable,
county, state and other relevant jurisdictions), record owner (where Co-Borrower
or its Subsidiaries own such Real Property) or (where Co-Borrower or its
Subsidiaries lease such Real Property) lessee thereof.
(c) All Permits required to have been issued or appropriate to
enable all Real Property of Co-Borrower or any of its Subsidiaries to be
lawfully occupied and used for all of the purposes for which they are currently
occupied and used have been lawfully issued and are in full force and effect,
other than those that, in the aggregate, would not have a Material Adverse
Effect.
(d) Except as set forth on SCHEDULE 4.19(D), none of Co-Borrower
or any of its Subsidiaries has received any notice, or has any knowledge, of any
pending, threatened or contemplated condemnation proceeding affecting any Real
Property of Co-Borrower or any of its Subsidiaries or any part thereof, except
those that, in the aggregate, would not have a Material Adverse Effect.
Section 4.20 CLOSING DATE RELATED DOCUMENTS
(a) As of the Initial Closing Date, the execution, delivery and
performance by each Loan Party of the Closing Date Related Documents to which it
is a party and the consummation of the transactions contemplated thereby by such
Loan Party:
(i) are within such Loan Party's respective corporate, limited
liability company, partnership or other powers;
(ii) have been duly authorized by all necessary corporate or other
action, including the consent of stockholders where required;
(iii) do not and will not (A) contravene or violate any Loan Party's
or any of its Subsidiaries' respective Constituent Documents, (B) violate
any other Requirement of Law applicable to any Loan Party, (C) conflict
with or result in the breach of, constitute a default under, or result in
or permit the termination or acceleration of, any Contractual Obligation of
any Loan Party or any of its Subsidiaries, except for those that, in the
aggregate, would not have a Material Adverse Effect (it being understood
that certain Indebtedness of the Acquired Businesses will be repaid on the
Second Closing Date) or (D) result in the creation or imposition of any
Lien upon any property of any Loan Party or any of its Subsidiaries other
than a Lien permitted under SECTION 8.2; and
(iv) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority or
any other Person, other than those that (A) will have been obtained at the
Initial Closing Date, each of which will be in full force and effect on the
Initial Closing Date and none of which will on the Initial Closing Date
impose materially adverse conditions upon the exercise of control by (1)
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Co-Borrower over Parent, (2) Parent over Borrower or (3) Borrower over any
of its Subsidiaries and (B) in the aggregate, if not obtained, would not
have a Material Adverse Effect.
(b) Each of the Closing Date Related Documents has been duly
executed and delivered by each Loan Party party thereto and on the Initial
Closing Date will be the legal, valid and binding obligation of each Loan Party
party thereto, enforceable against such Loan Party in accordance with its terms,
except as such enforceability may be limited by general principles of equity and
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally.
(c) None of the Closing Date Related Documents has been amended or
modified in any respect and no provision therein has been waived, except in each
case to the extent permitted by SECTION 8.12.
(d) The Secured Obligations constitute "Senior Debt," "Designated
Senior Debt" or any terms of similar application (if applicable) defined in any
Subordinated Debt Document in respect of any Permitted Subordinated Debt (if
any). No other Indebtedness qualifies as "Designated Senior Debt" pursuant to
any Permitted Subordinated Debt.
Section 4.21 COLLATERAL DOCUMENTS
(a) PLEDGE AND SECURITY AGREEMENT. The Pledge and Security
Agreement is effective to create in favor of the Collateral Agent, for the
benefit of the Secured Parties, legal, valid and enforceable Liens on, and
security interests in, the Collateral and, (i) when financing statements and
other filings in appropriate form are filed in the offices specified on SCHEDULE
4.21 and (ii) upon the taking of possession or control by the Collateral Agent
of the Collateral with respect to which a security interest may be perfected
only by possession or control (which possession or control shall be given to the
Collateral Agent to the extent possession or control by the Collateral Agent is
required by the Pledge and Security Agreement), the Liens created by the Pledge
and Security Agreement shall constitute fully perfected Liens on, and security
interests in, all right, title and interest of the grantors in the Collateral
(other than such Collateral in which a security interest cannot be perfected
under the UCC as in effect at the relevant time in the relevant jurisdiction),
in each case subject to no Liens other than Customary Permitted Liens.
(b) COPYRIGHT OFFICE FILING. When the Pledge and Security
Agreement or a short form thereof is filed in the United States Copyright Office
and the state offices specified on SCHEDULE 4.21, the Liens created by the
Pledge and Security Agreement shall constitute fully perfected Liens on, and
security interests in, all right, title and interest of the grantors thereunder
in the Copyrights (each as defined in the Pledge and Security Agreement), in
each case subject to no Liens other than Customary Permitted Liens.
(c) VALID LIENS. Each Collateral Document delivered pursuant to
SECTIONS 7.11 and 7.16 will, upon execution and delivery thereof, be effective
to create in favor of the Collateral Agent, for the benefit of the Secured
Parties, legal, valid and enforceable Liens on, and security interests in, all
of the Loan Parties' right, title and interest in and to the Collateral
thereunder, and (i) when all appropriate filings or recordings are made in the
appropriate offices
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as may be required under applicable law and (ii) upon the taking of possession
or control by the Collateral Agent of such Collateral with respect to which a
security interest may be perfected only by possession or control (which such
possession or control shall be given to the Collateral Agent to the extent
required by any Collateral Document), such Collateral Document will constitute
fully perfected Liens on, and security interests in, all right, title and
interest of the Loan Parties in such Collateral, in each case subject to no
Liens other than Customary Permitted Liens or other Liens permitted hereunder.
ARTICLE V
FINANCIAL COVENANTS
Borrower agrees with the Lenders, the Issuers and the Collateral Agent
to each of the following, until all Secured Obligations are paid in full and, in
each case, unless the Requisite Lenders otherwise consent in writing:
Section 5.1 MAXIMUM LEVERAGE RATIO
Borrower agrees with the Administrative Agent and each Revolving Credit
Lender, Term Loan Lender, Swing Loan Lender and Issuer that it shall have, on
the last day of each Fiscal Quarter set forth below, a Leverage Ratio of not
more than the maximum ratio set forth below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING CLOSEST TO MAXIMUM LEVERAGE RATIO
-------------------------------- ----------------------
September 30, 2005........................... 4.75 to 1
January 1, 2006 ............................. 4.75 to 1
March 31, 2006............................... 4.75 to 1
June 30, 2006................................ 4.75 to 1
September 30, 2006........................... 4.50 to 1
December 31, 2006............................ 4.50 to 1
March 31, 2007............................... 4.25 to 1
June 30, 2007................................ 4.25 to 1
September 30, 2007........................... 4.00 to 1
December 30, 2007............................ 4.00 to 1
March 31, 2008............................... 3.75 to 1
June 30, 2008................................ 3.75 to 1
September 30, 2008........................... 3.50 to 1
December 28, 2008............................ 3.50 to 1
March 31, 2009............................... 3.50 to 1
June 30, 2009................................ 3.50 to 1
September 30, 2009........................... 3.25 to 1
January 3, 2010.............................. 3.25 to 1
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FISCAL QUARTER ENDING CLOSEST TO MAXIMUM LEVERAGE RATIO
-------------------------------- ----------------------
March 31, 2010............................... 3.25 to 1
June 30, 2010................................ 3.25 to 1
September 30, 2010........................... 3.25 to 1
January 2, 2011.............................. 3.25 to 1
March 31, 2011............................... 3.25 to 1
June 30, 2011................................ 3.25 to 1
September 30, 2011........................... 3.25 to 1
January 1, 2012.............................. 3.25 to 1
March 31, 2012............................... 3.25 to 1
June 30, 2012................................ 3.25 to 1
Section 5.2 MAXIMUM LEASE ADJUSTED LEVERAGE RATIO
Borrower agrees with the Administrative Agent and each Revolving Credit
Lender, Term Loan Lender, Swing Loan Lender and Issuer that it shall have, on
the last day of each Fiscal Quarter set forth below, a Lease Adjusted Leverage
Ratio of not more than the maximum ratio set forth below opposite such Fiscal
Quarter:
MAXIMUM LEASE ADJUSTED
FISCAL QUARTER ENDING CLOSEST TO LEVERAGE RATIO
-------------------------------- ----------------------
September 30, 2005........................... 5.75 to 1
January 1, 2006.............................. 5.75 to 1
March 31, 2006............................... 5.75 to 1
June 30, 2006................................ 5.75 to 1
September 30, 2006........................... 5.50 to 1
December 31, 2006............................ 5.50 to 1
March 31, 2007............................... 5.25 to 1
June 30, 2007................................ 5.25 to 1
September 30, 2007........................... 5.25 to 1
December 30, 2007............................ 5.25 to 1
March 31, 2008............................... 5.00 to 1
June 30, 2008................................ 5.00 to 1
September 30, 2008........................... 5.00 to 1
December 28, 2008............................ 5.00 to 1
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MAXIMUM LEASE ADJUSTED
FISCAL QUARTER ENDING CLOSEST TO LEVERAGE RATIO
-------------------------------- ----------------------
March 31, 2009............................... 4.75 to 1
June 30, 2009................................ 4.75 to 1
September 30, 2009........................... 4.75 to 1
January 3, 2010.............................. 4.75 to 1
March 31, 2010............................... 4.75 to 1
June 30, 2010................................ 4.75 to 1
September 30, 2010........................... 4.75 to 1
January 2, 2011.............................. 4.75 to 1
March 31, 2011............................... 4.75 to 1
June 30, 2011................................ 4.75 to 1
September 30, 2011........................... 4.75 to 1
January 1, 2012.............................. 4.75 to 1
March 31, 2012............................... 4.75 to 1
June 30, 2012................................ 4.75 to 1
Section 5.3 MINIMUM INTEREST COVERAGE RATIO
Borrower agrees with the Administrative Agent and each Revolving Credit
Lender, Term Loan Lender, Swing Loan Lender and Issuer that it shall have an
Interest Coverage Ratio, as determined as of the last day of each Fiscal Quarter
ending after the Initial Closing Date, for the four Fiscal Quarters ending on
such day, of at least 3.00 to 1.
Section 5.4 MAXIMUM CAPITAL EXPENDITURES
(a) Borrower shall not make or incur, and shall not permit any of
its Subsidiaries to make or incur, Capital Expenditures (other than Capital
Expenditures permitted pursuant to SECTION 5.4(B)) during each of the periods
set forth below, in the aggregate, in excess of the maximum amount set forth
below for such period:
PERIOD MAXIMUM CAPITAL EXPENDITURES
------ ----------------------------
January 1, 2005 through January 1, 2006............. $55,000,000
January 2, 2006 through December 31, 2006........... $40,000,000
January 1, 2007 through December 30, 2007........... $40,000,000
December 31, 2007 through December 28, 2008......... $40,000,000
December 29, 2008 through January 3, 2010........... $40,000,000
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January 4, 2010 through January 2, 2011............. $40,000,000
January 3, 2011 through January 1, 2012............. $40,000,000
January 2, 2012 through the Term Loan Maturity Date. $40,000,000
; PROVIDED, HOWEVER, that to the extent that actual Capital Expenditures for any
such period shall be less than the maximum amount set forth above for such
period (without giving effect to the carryover permitted by this proviso), the
difference between said stated maximum amount and such actual Capital
Expenditures shall, in addition, be available for Capital Expenditures in the
next succeeding period (but not any subsequent succeeding period).
(b) Notwithstanding SECTION 5.4(A), so long as no Event of Default
has occurred and is continuing, Borrower and its Restricted Subsidiaries shall
be permitted to make Restaurant Build-Out Capital Expenditures (i) in respect of
not more than 35 separate free-standing quick service restaurant locations
(each, a "TRADITIONAL QSR") during the period from the Initial Closing Date
through January 1, 2006 and in respect of not more than 60 Traditional QSRs in
each subsequent Fiscal Year and (ii) in respect of any quick service restaurant
location other than a Traditional QSR (each, a "NON-TRADITIONAL QSR") during the
periods set forth below, of not more than the number set forth below for each
such period:
Initial Closing Date through January 1, 2006.......................... 15
January 2, 2006 through December 31, 2006............................. 25
January 1, 2007 through December 30, 2007............................. 50
December 31, 2007 through December 28, 2008........................... 70
December 29, 2008 through January 3, 2010............................. 95
January 4, 2010 through January 2, 2011............................... 120
January 3, 2011 through January 1, 2012............................... 120
January 2, 2012 through the Term Loan Maturity Date................... 80
; PROVIDED, HOWEVER, to the extent that the actual number of Traditional QSRs or
Non-Traditional QSRs shall be less than the maximum number set forth above for
such period (without giving effect to the carryover permitted by this proviso)
the difference between said stated maximum number and such actual number shall,
in addition, be available for Restaurant Build-Out Capital Expenditures in the
next succeeding period (but not any subsequent succeeding period); and PROVIDED,
FURTHER, that for purposes of computing the maximum amounts set forth in this
SECTION 5.4(B), Borrower may at any time, in lieu of making Restaurant Build-Out
Capital Expenditures in respect of one Traditional QSR, make such expenditures
with respect to three Non-Traditional QSRs and, in lieu of making Restaurant
Build-Out Capital Expenditures in respect of three Non-Traditional QSRs, make
such expenditures with respect to one Traditional QSR.
(c) Co-Borrower and Parent shall not make any Capital
Expenditures.
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ARTICLE VI
REPORTING COVENANTS
Each of Co-Borrower, Parent and Borrower agrees with the Lenders, the
Issuers and the Collateral Agent to each of the following, until all Secured
Obligations are paid in full and, in each case, unless the Requisite Lenders
otherwise consent in writing:
Section 6.1 FINANCIAL STATEMENTS
Borrower shall furnish to the Administrative Agent and the Lenders each
of the following:
(a) QUARTERLY REPORTS. Within 60 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year (or within three Business
Days following such earlier date on which Co-Borrower, Parent or Borrower
is required to file a Form 10-Q under the Exchange Act), financial
information regarding Borrower and its Subsidiaries consisting of
Consolidated unaudited balance sheets of Borrower and its Subsidiaries as
of the close of such quarter and the related statements of income and cash
flow for such quarter and that portion of the Fiscal Year ending as of the
close of such quarter setting forth in comparative form the figures for the
corresponding period in the prior year (PROVIDED that Borrower shall not be
required to provide comparative figures for any such corresponding period
ended prior to September 30, 2005), a note with a consolidating balance
sheet and statements of income and cash flows separating out Co-Borrower,
Parent, Borrower and each Unrestricted Subsidiary (which shall be required
only if Borrower has, or during such Fiscal Quarter had, any Unrestricted
Subsidiaries), and budgeted amounts, in each case (other than budgeted
amounts) certified by a Responsible Officer of Borrower as fairly
presenting in all material respects the Consolidated financial position of
Borrower and its Subsidiaries as at the dates indicated and the results of
their operations and cash flow for the periods indicated in accordance with
GAAP (subject to the absence of footnote disclosure (other than the
consolidating footnote referenced above) and normal year-end audit
adjustments).
(b) ANNUAL REPORTS. Within 120 days after the end of each Fiscal
Year (or within three Business Days following such earlier date on which
Co-Borrower, Parent or Borrower is required to file a Form 10-K under the
Exchange Act), financial information regarding Borrower and its
Subsidiaries consisting of Consolidated balance sheets of Borrower and its
Subsidiaries as of the end of such year and related statements of income
and cash flows of Borrower and its Subsidiaries for such Fiscal Year, and
notes thereto (including a note with a consolidating balance sheet and
statements of income and cash flows separating out Co-Borrower, Parent,
Borrower and each Unrestricted Subsidiary if Borrower has, or during such
Fiscal Year had, any Unrestricted Subsidiares), all prepared in accordance
with GAAP and audited, without qualification, by Borrower's Accountants,
together with the report of such accounting firm stating that (i) such
Financial Statements fairly present in all material respects the
Consolidated financial position of Borrower and its Subsidiaries as at the
dates indicated and the results of their operations and cash flow for the
periods indicated in accordance with GAAP applied on a basis con-
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sistent with prior years (except for changes with which Borrower's
Accountants shall concur and that shall have been disclosed in the notes to
the Financial Statements) and (ii) the examination by Borrower's
Accountants in connection with such Consolidated Financial Statements has
been made in accordance with generally accepted auditing standards.
(c) COMPLIANCE CERTIFICATE. Together with each delivery of any
Financial Statement pursuant to clause (a) or (b) above, a certificate of a
Responsible Officer of Borrower substantially in the form of EXHIBIT K
(each, a "COMPLIANCE CERTIFICATE") (i) showing in reasonable detail the
calculations used in determining the Leverage Ratio (for purposes of
determining the Applicable Margin) and demonstrating compliance with each
of the financial covenants contained in ARTICLE V that is tested on a
quarterly basis, (ii) stating that no Default or Event of Default has
occurred and is continuing or, if a Default or an Event of Default has
occurred and is continuing, stating the nature thereof and the action that
Borrower proposes to take with respect thereto and (iii) with the delivery
of Financial Statements pursuant to SECTION 6.1(B) only, showing in
reasonable detail compliance with SECTION 5.4.
(d) CORPORATE CHART AND OTHER COLLATERAL UPDATES. Together with
each delivery of any Financial Statement pursuant to clause (a) or (b)
above, (i) a certificate of a Responsible Officer of Borrower certifying
that the Corporate Chart attached thereto (or the last Corporate Chart
delivered pursuant to this clause (d)) is true, correct, complete and
current as of the date of such Financial Statement and (ii) a certificate
of a Responsible Officer of Borrower in form and substance reasonably
satisfactory to the Administrative Agent that all certificates, statements,
updates and other documents (including updated schedules) required to be
delivered pursuant to the Pledge and Security Agreement by any Loan Party
in the preceding Fiscal Quarter have been delivered thereunder (or such
delivery requirement was otherwise duly waived or extended). The reporting
requirements set forth in this clause (d) are in addition to, and are not
intended to and shall not replace or otherwise modify, any obligation of
any Loan Party under any Loan Document (including other notice or reporting
requirements). Compliance with the reporting obligations in this clause (d)
shall only provide notice to the Administrative Agent and shall not, by
itself, modify any obligation of any Loan Party under any Loan Document,
update any Schedule to this Agreement or any schedule to any other Loan
Document or cure, or otherwise modify in any way, any failure to comply
with any covenant, or any breach of any representation or warranty,
contained in any Loan Document or any other Default or Event of Default.
(e) BUSINESS PLAN. Not later than 90 days after the end of each
Fiscal Year, and containing substantially the types of financial
information contained in the Projections, (i) the annual business plan of
Borrower and its Subsidiaries and, if different, of Borrower and its
Restricted Subsidiaries, for the Fiscal Year next succeeding such Fiscal
Year and (ii) forecasts prepared by management of Borrower for each of the
two Fiscal Years next succeeding such Fiscal Year (but in any event not
beyond the Fiscal Year in which the Term Loan Maturity Date is scheduled to
occur), including, in each instance described in clauses (ii) and (iii)
above, (x) a projected year-end Consolidated balance
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sheet and income statement and statement of cash flows and (y) a statement
of all of the material assumptions on which such forecasts are based.
(f) INTERCOMPANY LOAN BALANCES. Together with each delivery of any
Financial Statement pursuant to clause (b) above, a summary of the
outstanding balance of all intercompany Indebtedness as of the last day of
the fiscal month covered by such Financial Statement, certified by a
Responsible Officer of Borrower.
Section 6.2 DEFAULT NOTICES
As soon as practicable, and in any event within five Business Days
after a Responsible Officer of any Loan Party has actual knowledge of the
existence of any Default, Event of Default or other event having had a Material
Adverse Effect, Borrower shall give the Administrative Agent notice specifying
the nature of such Default or Event of Default or other event, which notice, if
given by telephone, shall be promptly confirmed in writing on the next Business
Day.
Section 6.3 LITIGATION
Promptly after the commencement thereof, Borrower shall give the
Administrative Agent written notice of the commencement of all actions, suits
and proceedings before any domestic or foreign Governmental Authority or
arbitrator affecting Co-Borrower or any of its Subsidiaries that, in the
reasonable judgment of Borrower, expose Co-Borrower or any of its Subsidiaries
to liability that would have a Material Adverse Effect.
Section 6.4 ASSET SALES
Prior to any Asset Sale whose Net Cash Proceeds are anticipated to
exceed $10,000,000, Borrower shall send the Administrative Agent a notice (a)
describing such Asset Sale or the nature and material terms and conditions of
such transaction and (b) stating the estimated Net Cash Proceeds anticipated to
be received by any Loan Party.
Section 6.5 NOTICES UNDER CLOSING DATE RELATED DOCUMENTS
Promptly after the sending or filing thereof, Co-Borrower, Parent or
Borrower, as the case may be, shall send the Administrative Agent copies of all
material notices or certificates delivered pursuant to, or in connection with,
any Closing Date Related Document.
Section 6.6 SEC FILINGS; PRESS RELEASES
Promptly after the sending or filing thereof, Borrower shall send the
Administrative Agent copies of (a) all reports that any Loan Party sends to its
security holders generally, (b) all reports and registration statements that
Co-Borrower or any Subsidiary of Co-Borrower files with the Securities and
Exchange Commission or any national or foreign securities exchange or the
National Association of Securities Dealers, Inc., (c) subject to confidentiality
requirements, all reports that any Loan Party provides to any of its lenders or
any holders of its debt securities (other than reports provided solely to
Sponsor or Related Persons) and (d) all
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other written statements concerning material changes or developments in the
business of such Loan Party made available by any Loan Party to the public or
any other creditor.
Section 6.7 LABOR RELATIONS
Promptly after becoming aware of the same, Borrower shall give the
Administrative Agent written notice of (a) any material labor dispute to which
Co-Borrower or any of its Subsidiaries is a party, including any strikes,
lockouts or other material disputes relating to any of such Person's plants and
other facilities, and (b) any Worker Adjustment and Retraining Notification Act
or related liability incurred with respect to the closing of any plant or other
facility of any such Person.
Section 6.8 INSURANCE
As soon as is practicable and in any event within 90 days after the end
of each Fiscal Year, Borrower shall furnish the Administrative Agent with (a) a
report in form and substance reasonably satisfactory to the Administrative Agent
outlining all material insurance coverage maintained as of the date of such
report by Co-Borrower or any of its Subsidiaries and the duration of such
coverage and (b) an insurance broker's statement that all premiums then due and
payable with respect to such coverage have been paid and confirming that, with
respect to all such insurance coverage constituting property, general liability,
excess liability or other similar insurance maintained by any Loan Party, the
Collateral Agent, on behalf of the Secured Parties, has been named as loss payee
and/or additional insured, as applicable. For the avoidance of doubt, the
foregoing shall not prevent third parties from being named loss payee or
additional insured in respect of insurance relating to specific property on
which such third party has a Lien that is permitted hereunder.
Section 6.9 ERISA MATTERS
Borrower shall furnish the Administrative Agent (with sufficient copies
for each of the Lenders) each of the following:
(a) promptly and in any event within 30 days after Co-Borrower,
any of its Subsidiaries or any ERISA Affiliate knows or has reason to know
that any ERISA Event has occurred, written notice describing such event;
(b) promptly and in any event within 10 days after Co-Borrower,
any of its Subsidiaries or any ERISA Affiliate knows or has reason to know
that a request for a minimum funding waiver under Section 412 of the Code
has been filed with respect to any Title IV Plan or Multiemployer Plan, a
written statement of a Responsible Officer of Borrower describing such
ERISA Event or waiver request and the action, if any, Co-Borrower, its
Subsidiaries and ERISA Affiliates propose to take with respect thereto and
a copy of any notice filed with the PBGC or the IRS pertaining thereto; and
(c) simultaneously with the date that Co-Borrower, any of its
Subsidiaries or any ERISA Affiliate files a notice of intent to terminate
any Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, a copy of each notice.
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Section 6.10 ENVIRONMENTAL MATTERS
Borrower shall provide the Administrative Agent promptly and in any
event within 10 days after Co-Borrower or any of its Subsidiaries learning of
any of the following, written notice of each of the following:
(a) that any Loan Party or any Subsidiary of any Loan Party is or
may be liable to any Person as a result of a Release or threatened Release
that could reasonably be expected to subject such Loan Party or such
Subsidiary to Environmental Liabilities and Costs that would have a
Material Adverse Effect;
(b) the receipt by any Loan Party or any Subsidiary of any Loan
Party of notification that any real or personal property of such Loan Party
or such Subsidiary is or is reasonably likely to be subject to any material
Environmental Lien;
(c) the receipt by any Loan Party or any Subsidiary of any Loan
Party of any notice of violation of or potential liability under, or
knowledge by such Loan Party or such Subsidiary that there exists a
condition that could reasonably be expected to result in a violation of or
liability under, any Environmental Law, except for violations and
liabilities the consequence of which, in the aggregate, would not be
reasonably likely to subject the Loan Parties and their Subsidiaries
collectively to Environmental Liabilities and Costs that would have a
Material Adverse Effect;
(d) the commencement of any judicial or administrative proceeding
or investigation alleging a violation of or liability under any
Environmental Law that, in the aggregate, if adversely determined, would
have a reasonable likelihood of subjecting the Loan Parties and their
Subsidiaries collectively to Environmental Liabilities and Costs that would
have a Material Adverse Effect;
(e) any proposed acquisition of stock, assets or real estate, any
proposed leasing of property or any other action by any Loan Party or any
of its Subsidiaries the consequences of which, in the aggregate, would have
reasonable likelihood of subjecting the Loan Parties and their Subsidiaries
collectively to Environmental Liabilities and Costs that would have a
Material Adverse Effect;
(f) any proposed actions by any Loan Party or any of its
Subsidiaries or any proposed change in Environmental Laws that, in the
aggregate, have a reasonable likelihood of requiring the Loan Parties or
their Subsidiaries to obtain additional environmental, health or safety
Permits or requiring the Loan Parties to make additional capital
improvements to obtain compliance with Environmental Laws or subjecting the
Loan Parties and their Subsidiaries to additional Environmental Liabilities
and Costs that, in the aggregate, would have a Material Adverse Effect; and
(g) upon written request by any Lender through the Administrative
Agent, a report providing an update of the status of any environmental,
health or safety compliance, hazard or liability issue identified in any
notice or report delivered pursuant to this Agreement.
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Section 6.11 PROPERTY LOSS EVENT
Promptly after the occurrence thereof (and in any case within 10
Business Days), Borrower shall provide notice to the Administrative Agent, in
reasonable detail, of any Property Loss Event.
It is understood and agreed that if a Reinvestment Notice has been
given in accordance with the terms of this Agreement with respect to a Property
Loss Event, or if insurance proceeds are received by the Collateral Agent as a
result of loss or damage that does not constitute a Property Loss Event and no
Event of Default has occurred and is continuing, the Collateral Agent shall turn
over any related Net Cash Proceeds received by it from the applicable insurance
policy to the applicable Loan Party for use in the restoration and repair of the
applicable property or as otherwise permitted by this Agreement.
Section 6.12 OTHER INFORMATION
Each of Co-Borrower, Parent and Borrower shall provide the
Administrative Agent or any Lender with such other information respecting the
business, properties, condition, financial or otherwise, or operations of
Co-Borrower or any Subsidiary of Co-Borrower as the Administrative Agent or such
Lender through the Administrative Agent may from time to time reasonably
request.
ARTICLE VII
AFFIRMATIVE COVENANTS
Each of Co-Borrower, Parent and Borrower agrees with the Lenders, the
Issuers and the Collateral Agent to each of the following, until all Secured
Obligations are paid in full and, in each case, unless the Requisite Lenders
otherwise consent in writing:
Section 7.1 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, preserve and maintain its legal existence, except as
permitted by SECTION 8.4 and SECTION 8.7.
Section 7.2 COMPLIANCE WITH LAWS, ETC.
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, comply with all applicable Requirements of Law, Contractual
Obligations and Permits, except where the failure so to comply would not, in the
aggregate, have a Material Adverse Effect.
Section 7.3 CONDUCT OF BUSINESS
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, (i) conduct its business in the ordinary course and (ii)
use its reasonable efforts, in the ordinary course, to preserve its business and
the goodwill and business of the customers, ad-
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vertisers, suppliers and others having business relations with Co-Borrower or
any of its Subsidiaries, except in each case where the failure to comply with
the covenants in each of clauses (i) and (ii) above would not, in the aggregate,
have a Material Adverse Effect.
Section 7.4 PAYMENT OF TAXES, ETC.
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, pay its Indebtedness and other obligations promptly and in
accordance with their terms and pay and discharge promptly when due all Taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, services,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
other than a Customary Permitted Lien upon such properties or any part thereof;
PROVIDED that such payment and discharge shall not be required with respect to
any such Tax, assessment, charge, levy or claim so long as (a) the validity or
amount thereof shall be contested in good faith by appropriate proceedings (if
any) and the applicable Person shall have set aside on its books adequate
reserves or other appropriate provisions with respect thereto in accordance with
GAAP, and (b) such proceedings (if any) operate to suspend collection of the
contested obligation, Tax, assessment or charge and enforcement of a Lien other
than a Customary Permitted Lien.
Section 7.5 MAINTENANCE OF INSURANCE
Each of Co-Borrower, Parent and Borrower shall (a) maintain for itself,
and each of Co-Borrower, Parent and Borrower shall cause to be maintained for
each of its Subsidiaries, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks that is, as
determined in the good faith judgment of a Responsible Officer of Borrower,
sufficient, appropriate and prudent in the conduct of the business of the kind
conducted by Co-Borrower and its Subsidiaries and, in any event, all insurance
required by any Collateral Documents, and (b) cause all such insurance
constituting property, general liability, excess liability or other similar
insurance relating to any Loan Party to name the Collateral Agent, on behalf of
the Secured Parties, as additional insured and loss payee, as appropriate, and
to provide that no cancellation or material change in coverage shall be
effective until after 10 days' written notice thereof to the Collateral Agent.
Section 7.6 ACCESS
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, from time to time (but, if no Event of Default shall have
occurred and be continuing, not more often than once per Fiscal Year at
Borrower's expense) permit the Administrative Agent, or any agents or
representatives thereof, within three Business Days after written notification
of the same (except that during the continuance of an Event of Default, no such
notice shall be required) to, during the normal business hours of Co-Borrower,
Parent, Borrower or such Subsidiary, as applicable, (a) examine and make copies
of and abstracts from the records and books of account of Co-Borrower and each
Subsidiary of Co-Borrower, (b) visit the properties of Co-Borrower and each of
its Subsidiaries, (c) discuss the affairs, finances and accounts of Co-Borrower
and each of its Subsidiaries with any of their respective officers or directors,
as long as Borrower is offered an opportunity to be present during such
discussions, and (d) communicate
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directly with any of its certified public accountants (including Borrower's
Accountants), as long as Borrower is offered an opportunity to be present during
such discussions and to receive copies of any written communication.
Section 7.7 KEEPING OF BOOKS
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, keep proper books of record and account in which full and
correct entries shall be made in a manner consistent with past practice and in
all material respects in accordance with GAAP of all financial transactions and
the assets and business of Co-Borrower, Parent, Borrower and each such
Subsidiary.
Section 7.8 MAINTENANCE OF PROPERTIES, ETC.
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, maintain and preserve (a) in good working order and
condition all of its material properties necessary in the conduct of its
business, (b) all rights, permits, licenses, approvals and privileges (including
all Permits) used or useful or necessary in the conduct of its business and (c)
all registered patents, trademarks, trade names, copyrights and service marks
with respect to its business, except where failure to so maintain and preserve
the items set forth in clauses (a), (b) and (c) above would not, in the
aggregate, have a Material Adverse Effect.
Section 7.9 APPLICATION OF PROCEEDS
Co-Borrower and Borrower (and, to the extent distributed to it by
Co-Borrower or Borrower, each Loan Party) shall use the entire amount of the
proceeds of the Loans as provided in SECTION 4.13.
Section 7.10 ENVIRONMENTAL
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries and each of their respective tenants, subtenants, contractors
and agents to, comply in all material respects with Environmental Laws and,
without limiting the foregoing, Borrower shall, at its sole cost and expense,
upon receipt of any notification or otherwise obtaining knowledge of any
Release, non-compliance, condition or other event that could result in
Co-Borrower or any of its Subsidiaries incurring Environmental Liabilities and
Costs that, in the aggregate, would have a Material Adverse Effect, (a) conduct,
or pay for consultants to conduct, tests or assessments of environmental
conditions at such operations or properties, including, without limitation, the
investigation and testing of subsurface conditions, (b) take such Remedial
Action and undertake such investigation or other action as required by
Environmental Laws or as any Governmental Authority requires to address the
Release condition or event and otherwise ensure compliance with Environmental
Laws and (c) keep the Administrative Agent informed of such actions.
Section 7.11 ADDITIONAL COLLATERAL AND GUARANTIES
To the extent not delivered to the Administrative Agent on or before
the Initial Closing Date (including in respect of after-acquired property and
Persons that become Subsidiaries of any Loan Party after the Initial Closing
Date, other than Unrestricted Subsidiaries), each of
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Co-Borrower, Parent and Borrower agrees promptly to do, or to cause each of its
Domestic Subsidiaries (other than Unrestricted Subsidiaries) to do, each of the
following:
(a) deliver to the Administrative Agent and the Collateral Agent
such duly executed supplements and amendments to the Guaranty, in each case
in form and substance reasonably satisfactory to the Administrative Agent
and as the Administrative Agent deems necessary or advisable in order to
ensure that each Domestic Subsidiary (other than Unrestricted Subsidiaries)
of each Loan Party guaranties, as primary obligor and not as surety, the
full and punctual payment when due of the Secured Obligations or any part
thereof; PROVIDED, HOWEVER, that the Excepted Guarantors shall not be
required to become party to the Guaranty prior to the earlier of (A) the
repayment in full of all Indebtedness of such Loan Party identified on
SCHEDULE 7.11(A) that restricts the ability of such Loan Party to become
party to the Guaranty and (B) the end of the Refinancing Grace Period;
(b) deliver to the Administrative Agent and the Collateral Agent
such duly executed joinder and amendments to the Pledge and Security
Agreement and, if applicable, other Collateral Documents, in each case in
form and substance reasonably satisfactory to the Collateral Agent and as
the Collateral Agent deems necessary or advisable in order to (i)
effectively grant the Requisite Liens on the Stock and Stock Equivalents
and other debt Securities owned by any Loan Party, (ii) effectively grant
the Requisite Liens on all property interests and other assets (other than
Real Property or any interest therein) of any Loan Party or any Subsidiary
of any Loan Party and (iii) effectively grant the Requisite Liens on the
Stock, Stock Equivalents and other debt Securities owned by, and all
property interests and other assets (other than Real Property or any
interest therein) of, each Person that becomes party to the Guaranty
pursuant to clause (i) or (ii) of the proviso to SECTION 7.11(A) at the
time each such Person becomes party to the Guaranty; PROVIDED, HOWEVER, in
no event shall any Loan Party or any of its Subsidiaries, individually or
collectively, be required to pledge any Stock of any Foreign Non-Guarantor
other than of 65% of the outstanding Voting Stock of any Foreign
Non-Guarantor that is a direct Subsidiary of a Loan Party and any Stock of
any such entity that is not Voting Stock;
(c) deliver to the Collateral Agent all certificates, instruments
and other documents representing all Pledged Stock, Pledged Debt
Instruments and all other Stock, Stock Equivalents and other debt
Securities being pledged pursuant to the joinders and amendments executed
pursuant to clause (b) above, together with (i) in the case of certificated
Pledged Stock and other certificated Stock and Stock Equivalents, undated
stock powers endorsed in blank and (ii) in the case of Pledged Debt
Instruments and other certificated debt Securities, instruments of transfer
endorsed in blank, in each case executed and delivered by a Responsible
Officer of such Loan Party or such Subsidiary thereof, as the case may be;
(d) take such other actions necessary or advisable to ensure the
validity or continuing validity of the guaranties required to be given
pursuant to clause (a) above or to create, maintain or perfect the security
interest required to be granted pursuant to clause (b) above, including the
filing of UCC financing statements in such jurisdictions as
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may be required by the Collateral Documents or by law or as may be
reasonably requested by the Administrative Agent or the Collateral Agent;
and
(e) if requested by the Administrative Agent or the Collateral
Agent, deliver to the Collateral Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Collateral Agent.
Section 7.12 CONTROL ACCOUNTS; APPROVED DEPOSIT ACCOUNTS
(a) Each of Co-Borrower, Parent and Borrower shall, and shall
cause each of its Domestic Subsidiaries (other than Unrestricted Subsidiaries)
to (i) deposit in an Approved Deposit Account all cash it receives (other than
proceeds of the Loans that are deposited into the Escrow Account), (ii) not
establish or maintain any Securities Account or Commodity Account that is not a
Control Account and (iii) not establish or maintain any Deposit Account other
than with a Deposit Account Bank; PROVIDED, HOWEVER, that each of Co-Borrower,
Parent and Borrower and each Restricted Subsidiary may (x) deposit cash in and
maintain payroll, withholding tax and other fiduciary accounts, in each case
that are not Approved Deposit Accounts, (y) deposit cash in and maintain
accounts relating to individual quick service restaurant locations that are not
Approved Deposit Accounts as long as (i) the aggregate balance in all such
accounts does not exceed $25,000,000 at any time and (ii) the balances in such
accounts are swept into Approved Deposit Accounts no less frequently than weekly
and (z) deposit cash in and maintain the accounts set forth on SCHEDULE 7.15
until 60 days after the date hereof (as the same may be extended (including
indefinitely) by the Administrative Agent in its sole discretion).
(b) The Collateral Agent may establish one or more Cash Collateral
Accounts with such depositaries and securities intermediaries as it in its sole
discretion shall determine. Without limiting the foregoing, funds on deposit in
any Cash Collateral Account may be invested (but the Collateral Agent shall be
under no obligation to make any such investment) in Cash Equivalents at the
direction of the Collateral Agent and, except during the continuance of an Event
of Default, the Collateral Agent agrees with Borrower to issue Entitlement
Orders for such investments in Cash Equivalents as requested by Borrower;
PROVIDED, HOWEVER, that the Collateral Agent shall not have any responsibility
for, or bear any risk of loss of, any such investment or income thereon. None of
Co-Borrower, Parent, Borrower, any of their respective Subsidiaries or any other
Loan Party or Person claiming on behalf of or through Co-Borrower, Parent,
Borrower, any of their respective Subsidiaries or any other Loan Party shall
have any right to demand payment of any funds held in any Cash Collateral
Account at any time prior to the termination of all outstanding Letters of
Credit and the payment in full (as defined in the Pledge and Security Agreement)
of all then outstanding and payable monetary Obligations.
Section 7.13 REAL PROPERTY
(a) To the extent, in the case of clauses (i), (ii) and (iii),
that failure to do so would, individually or in the aggregate, have a Material
Adverse Effect, each of Co-Borrower, Parent and Borrower shall, and shall cause
each of its Subsidiaries to, (i) comply in all respects with all of their
respective obligations under all of their respective material Leases now or
hereafter held respectively by them, including the Leases set forth on SCHEDULE
4.19, (ii) not modify,
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amend, cancel, extend or otherwise change in any adverse manner any term,
covenant or condition of any such Lease other than in the ordinary course of
business, (iii) not assign or sublet any other Lease and (iv) provide the
Administrative Agent with a copy of each notice of default under any Lease
received by Co-Borrower, Parent, Borrower or any of their respective
Subsidiaries promptly after receipt thereof and deliver to the Administrative
Agent a copy of each notice of default sent by Co-Borrower, Parent, Borrower or
any of their respective Subsidiaries under any Lease simultaneously with its
delivery of such notice under such Lease.
(b) At least 5 Business Days prior to any Loan Party acquiring any
material owned Real Property, each of Co-Borrower, Parent and Borrower shall, or
shall cause the relevant Loan Party to, provide the Administrative Agent written
notice thereof.
Section 7.14 INTEREST RATE CONTRACTS
Co-Borrower and/or Borrower shall, within 120 days after the Initial
Closing Date, enter into an Interest Rate Contract or Contracts, on terms
reasonably satisfactory to the Arrangers, to provide protection against interest
rate fluctuations on the outstanding principal amount of Term Loans for a period
of two years with respect to a notional amount of at least 33% of the aggregate
outstanding principal amount of Term Loans.
Section 7.15 POST-CLOSING DELIVERIES
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to, (a) deliver to the Administrative Agent each item set forth
on SCHEDULE 7.15 in form and substance reasonably satisfactory to the
Administrative Agent and (b) perform each action set forth in SCHEDULE 7.15 in a
manner reasonably satisfactory to the Administrative Agent, in each case (x)
within the periods set forth opposite each such item or action on such Schedule
and (y) unless otherwise agreed by the Administrative Agent in respect of any
such item or action.
Section 7.16 FURTHER ASSURANCES
Each of Co-Borrower, Parent and Borrower shall, and shall cause each of
its Subsidiaries to (a) promptly upon the reasonable request of the
Administrative Agent, the Collateral Agent or any Lender, at Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Collateral Documents or
otherwise deemed by the Administrative Agent or the Collateral Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
the Liens on the Collateral covered thereby subject to no other Liens except as
permitted by the applicable Collateral Document, or obtain any consents or
waivers as may be necessary or appropriate in connection therewith, (b) deliver
or cause to be delivered to the Administrative Agent and the Collateral Agent
from time to time such other documentation, consents, authorizations, approvals
and orders in form and substance reasonably satisfactory to the Administrative
Agent and the Collateral Agent as the Administrative Agent and the Collateral
Agent shall reasonably deem necessary to perfect or maintain the Liens on the
Collateral pursuant to the Collateral Documents and (c) upon the exercise by the
Administrative Agent, the Collateral Agent or any Lender of any power, right,
privilege or remedy pursuant to
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any Loan Document which requires any consent, approval, registration,
qualification or authorization of any Governmental Authority, execute and
deliver all applications, certifications, instruments and other documents and
papers that the Administrative Agent, the Collateral Agent or such Lender may
reasonably require.
Section 7.17 MAINTENANCE OF RATINGS
Borrower shall ensure, at its own expense, that each of ▇▇▇▇▇'▇ and S&P
maintains a monitored public rating for the Facilities at all times that such
entities are in the business of maintaining monitored public ratings.
Section 7.18 REFINANCING
(a) The Loan Parties shall cause the ARG Refinancing and the RTM
Refinancing to be completed no later than the end of the Refinancing Grace
Period or otherwise in accordance with the definition thereof.
(b) [RESERVED]
(c) Borrower shall not allow any Excepted Guarantor to create or
cause to suffer any Liens on any of its assets other than (i) Liens existing
prior to the Initial Closing Date and listed on SCHEDULE 8.2 and (ii) Customary
Permitted Liens.
(d) Borrowers shall repay the Indebtedness listed on SCHEDULE
8.1(B) on or prior to the Second Closing Date.
Section 7.19 UNRESTRICTED SUBSIDIARIES' FINANCIAL STATEMENTS
Each Loan Party shall ensure that all financial statements of each
Unrestricted Subsidiary distributed to any creditor of an Unrestricted
Subsidiary clearly states the separateness of such Unrestricted Subsidiary from
the Loan Parties.
ARTICLE VIII
NEGATIVE COVENANTS
Each of Co-Borrower, Parent and Borrower agrees with the Lenders, the
Issuers and the Administrative Agent to each of the following, until all Secured
Obligations are paid in full and, in each case, unless the Requisite Lenders
otherwise consent in writing:
Section 8.1 INDEBTEDNESS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness except for the following:
(a) the Secured Obligations and Guaranty Obligations in respect
thereto (including, without limitation, any Obligations incurred pursuant
to SECTION 2.19);
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(b) Indebtedness existing on the date of this Agreement and
disclosed on (i) SCHEDULE 3.1(D)(III), (ii) SCHEDULE 7.11(A) or (iii)
SCHEDULE 8.1(B); PROVIDED that (x) no Indebtedness shall be permitted to
remain outstanding pursuant to clause (ii) above after the end of the
Refinancing Grace Period and (y) no Indebtedness shall be permitted to
remain outstanding pursuant to clauses (i) and (iii) above after the Second
Closing Date;
(c) Guaranty Obligations incurred by any Loan Party (i) in respect
of Indebtedness of Borrower or any Subsidiary Guarantor that is otherwise
permitted by this SECTION 8.1 (other than clause (a) above and clause (h)
below) that is, in the case of Guaranty Obligations in respect of
Indebtedness that is subordinated to the Secured Obligations, subordinated
to the Secured Obligations to the same extent as such Indebtedness, or (ii)
in respect of Indebtedness of any Subsidiary of Borrower that is not a Loan
Party, to the extent such Guaranty Obligations, together with all other
such Guaranty Obligations and all other Investments permitted thereunder,
are permitted as an Investment pursuant to SECTION 8.3(G)(III);
(d) Capital Lease Obligations and purchase money Indebtedness
incurred by Borrower or any Restricted Subsidiary (or previously incurred
by a Person acquired by Borrower or any Restricted Subsidiary (and in such
cases the date of the consummation of such acquisition shall be deemed the
date of incurrence for purposes of this paragraph)) to finance the
acquisition or improvement (together with, in each case, related costs) of
fixed assets; PROVIDED, HOWEVER, that at the time such Indebtedness is
incurred and after giving effect to such incurrence on a Pro Forma Basis,
(i) no Default or Event of Default has occurred and is continuing and (ii)
Borrower is in compliance with the covenants in SECTIONS 5.1, 5.2, 5.3 and
5.4 as of the last day of the most recent Fiscal Quarter for which
Financial Statements have been delivered pursuant to SECTION 6.1(A) or (B);
(e) Indebtedness arising from intercompany loans (i) from Borrower
to any Subsidiary Guarantor, (ii) from any Subsidiary Guarantor to Borrower
or any Subsidiary Guarantor or (iii) from Borrower or any Subsidiary
Guarantor to any Subsidiary of Borrower that is a Non-Guarantor; PROVIDED,
HOWEVER, that, in the case of this clause (iii), the Investment by Borrower
or such Subsidiary Guarantor in such intercompany loan to such Subsidiary
is permitted under SECTION 8.3(G);
(f) Indebtedness arising under any performance or surety bond
entered into in the ordinary course of business;
(g) Obligations under Interest Rate Contracts mandated by SECTION
7.14 and other Hedging Contracts permitted under SECTION 8.16;
(h) Permitted Parent Notes in an aggregate outstanding principal
amount not exceeding $200,000,000 at any time; PROVIDED that at the time
such Indebtedness is incurred and after giving effect to such incurrence on
a Pro Forma Basis (i) no Default or Event of Default has occurred and is
continuously and (ii) Borrower is in compliance with the covenants in
SECTIONS 5.1, 5.2 and 5.3;
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(i) Permitted Subordinated Debt in an aggregate outstanding
principal amount that does not exceed $175,000,000 at any time; PROVIDED
that at the time such Indebtedness is incurred and after giving effect to
such incurrence on a Pro Forma Basis (i) no Default or Event of Default has
occurred and is continuing and (ii) Borrower is in compliance with the
covenants in SECTIONS 5.1, 5.2 and 5.3;
(j) Indebtedness (other than Capital Lease Obligations) of a
Restricted Subsidiary of Borrower assumed by such Subsidiary in connection
with any Permitted Acquisition (or, if such Restricted Subsidiary is
acquired as part of such Permitted Acquisition, existing prior thereto),
together with renewals, extensions, refinancings and refundings thereof, in
an aggregate outstanding principal amount which does not exceed
$200,000,000 at any time; PROVIDED, HOWEVER, that such Indebtedness (i)
exists at the time of such Permitted Acquisition at least in the amounts
assumed in connection therewith and (ii) is not drawn down, created or
increased in contemplation of or in connection with such Permitted
Acquisition or on or after the consummation thereof; and PROVIDED, FURTHER,
that any renewal, extension, refinancing or refunding thereof is (x) in an
aggregate principal amount not greater than the principal amount of, (y)
does not mature earlier than, and (z) is on terms taken as a whole not
materially less favorable to Co-Borrower, Parent, Borrower or any of their
respective Subsidiaries obligated thereunder than, the Indebtedness being
renewed, extended, refinanced or refunded;
(k) contingent indemnification obligations of Borrower and any
Restricted Subsidiary to financial institutions, in each case to the extent
in the ordinary course of business and on terms and conditions which are
within the general parameters customary in the banking industry, entered
into to obtain cash management services or deposit account overdraft
protection services (in amount similar to those offered for comparable
services in the financial industry) or other services in connection with
the management or opening of deposit accounts or incurred as a result of
endorsement of negotiable instruments for deposit or collection purposes
and other customary, contingent loss indemnification obligations of
Borrower and its Subsidiaries incurred in the ordinary course of business;
(l) contingent liabilities of Borrower or any Restricted
Subsidiary in respect of any purchase price adjustment, earn-out provision
or any non-competition or consulting agreement or deferred compensation
agreement, in each case owing to the seller in connection with the RTM
Acquisitions or any Permitted Acquisition;
(m) Indebtedness of Subsidiaries of Borrower that are
Non-Guarantors (not owing to any Loan Party or any Subsidiary of any Loan
Party) for working capital purposes in an aggregate outstanding principal
amount which does not exceed $15,000,000 at any time and Guarantee
Obligations of Subsidiaries of Borrower that are Non-Guarantors in respect
thereof;
(n) Indebtedness of Borrower or any Restricted Subsidiary not
otherwise permitted under this SECTION 8.1 having an aggregate outstanding
principal amount not exceeding $40,000,000 at any time; and
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(o) Indebtedness owing to the issuer of any insurance policy by
the Person purchasing such policy for the benefit of Co-Borrower and its
Subsidiaries for the purpose of financing the purchase of such policy by
Co-Borrower or any of its Subsidiaries, in an aggregate outstanding
principal amount not to exceed the premiums owed under such policy.
Section 8.2 LIENS, ETC.
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, create or suffer to exist any Lien upon or with
respect to any of their respective properties or assets, whether now owned or
hereafter acquired, or (other than as permitted by SECTION 8.4) assign, or
permit any Restricted Subsidiary to assign, any right to receive income, except
for the following:
(a) Liens created pursuant to the Loan Documents;
(b) (i) Liens existing on the date of this Agreement and disclosed
on SCHEDULE 8.2 and (ii) Liens securing Indebtedness permitted pursuant to
SECTION 8.1(B) and, during the Refinancing Grace Period only, SCHEDULE
7.11(A);
(c) Customary Permitted Liens on the assets of Co-Borrower or any
Restricted Subsidiary;
(d) purchase money Liens granted by Borrower or any Restricted
Subsidiary (including the interest of a lessor under a Capital Lease and
purchase money Liens to which any property is subject at the time, on or
after the date hereof, of such Subsidiary's acquisition thereof) securing
Indebtedness permitted under SECTION 8.1(D) and limited in each case to the
property purchased with the proceeds of such purchase money Indebtedness or
subject to such Capital Lease and the proceeds thereof (including insurance
proceeds) and the attachments thereto;
(e) any Lien granted by Borrower or any Restricted Subsidiary and
securing the renewal, extension, refinancing or refunding of any
Indebtedness secured by any Lien permitted by clause (b)(i) above or this
clause (e) without any change in the assets subject to such Lien;
(f) Liens in favor of lessors, sublessors, lessees or sublessees
securing operating leases or, to the extent such transactions create a Lien
hereunder, sale and leaseback transactions, to the extent such sale and
leaseback transactions are permitted hereunder;
(g) Liens securing in the aggregate not more than $100,000,000 in
aggregate principal amount of Indebtedness permitted pursuant to SECTION
8.1(J); PROVIDED, HOWEVER, that (i) such Lien exists at the time of the
Permitted Acquisition relating to such Indebtedness and is not created in
contemplation of or in connection with such Permitted Acquisition and (ii)
such Lien secures solely fixed or capital assets acquired (or fixed or
capital assets of Persons acquired) as part of such Permitted Acquisition,
and no assets constituting Collateral immediately prior to such Permitted
Acquisition are subject to such Lien;
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(h) Liens for the benefit of the seller deemed to attach solely
because of the existence of cash deposits and attaching solely to cash
deposits made in connection with any letter of intent or acquisition
agreement with respect to a Permitted Acquisition;
(i) Liens on any of the assets of a Subsidiary of Borrower that is
a Non-Guarantor to secure Indebtedness of such Subsidiary permitted
pursuant to SECTION 8.1(M);
(j) licenses and sublicenses of Intellectual Property in the
ordinary course of business;
(k) Liens granted by Borrower or any Restricted Subsidiary not
otherwise permitted by the foregoing clauses of this SECTION 8.2 securing
obligations or other liabilities of Borrower or any Subsidiary Guarantor;
PROVIDED, HOWEVER, that the aggregate outstanding amount of all such
obligations and liabilities shall not exceed $15,000,000 at any time;
(l) in the case of Subsidiaries organized as business trusts,
Liens on the assets of such Subsidiary in favor of the trustee of such
Subsidiary in order to secure such trustee's fees and expenses; and
(m) Liens on an insurance policy of Co-Borrower and its
Subsidiaries and the identifiable cash proceeds thereof in favor of the
issuer of such policy and securing Indebtedness incurred for the purpose of
financing such policy and permitted under SECTION 8.1(O).
Section 8.3 INVESTMENTS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, make or maintain, directly or indirectly, any
Investment except for the following:
(a) Investments existing on the date of this Agreement and
disclosed on SCHEDULE 8.3;
(b) Investments in cash (including cash held in bank deposit
accounts) and Cash Equivalents in the ordinary course of business;
(c) Investments by Borrower or any Restricted Subsidiary in
payment intangibles, chattel paper (each as defined in the UCC) and
accounts, notes receivable, prepaid accounts and similar items arising or
acquired in the ordinary course of business;
(d) cash deposits permitted pursuant to clause (c) or (f) of the
definition of Customary Permitted Liens or pursuant to SECTION 8.2(H) or
(K);
(e) Investments consisting of Securities of account debtors
received by Co-Borrower or any Restricted Subsidiary in any bankruptcy,
insolvency or reorganization proceedings of such account debtors;
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(f) Investments consisting of mergers, acquisitions, liquidations
and dissolutions permitted pursuant to clauses (x) or (y) in the proviso to
SECTION 8.7;
(g) Investments by (i) Co-Borrower, Borrower or any Subsidiary
Guarantor in Parent, Borrower or any Subsidiary Guarantor, (ii) any
Subsidiary of Co-Borrower that is a Non-Guarantor in any other Subsidiary
of Co-Borrower (PROVIDED that, if any such Investment is a loan or advance
to a Loan Party, such Investment is subordinated in right of payment to the
Secured Obligations) or (iii) Borrower or any Subsidiary Guarantor in any
Subsidiary of Borrower that is a Non-Guarantor; PROVIDED, HOWEVER, that
Investments (including any Guaranty Obligations permitted pursuant to
SECTION 8.1(C)(II) and loans permitted pursuant to SECTION 8.1(E)(III))
shall be permitted pursuant to this clause (iii) only to the extent that,
after giving effect to such Investment (and any Investment or Asset Sale to
be made to any Non-Guarantor on or prior to the date of such Investment),
the Non-Guarantor Investment Amount shall not exceed $15,000,000 at any
time;
(h) loans or advances to employees of Co-Borrower or any of its
Subsidiaries in the ordinary course of business as presently conducted
other than any loans or advances that would be in violation of Section 402
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; PROVIDED, HOWEVER, that the aggregate principal
amount of all loans and advances permitted pursuant to this clause (h)
shall not exceed $2,000,000 at any time;
(i) loans and advances to any existing director, officer or
employee of Co-Borrower or any Restricted Subsidiary (other than any loans
or advances that would be in violation of Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act) the proceeds of which shall be used for the sole purpose of
acquisition by such director, officer or employee of any of the Stock or
Stock Equivalents of Co-Borrower; PROVIDED, however, that the aggregate
principal amount of all loans and advances permitted pursuant to this
clause (i) shall not exceed $2,500,000 at any time;
(j) Guaranty Obligations permitted by SECTION 8.1(A) or (C);
(k) Investments of Borrower or any Restricted Subsidiary not
otherwise permitted hereby; PROVIDED, HOWEVER, that the aggregate
outstanding amount of all such Investments shall not exceed at any time (i)
$15,000,000 PLUS (ii) the Available Amount (it being understood that
Borrower shall determine whether any such Investment is made pursuant to
clause (i) or clause (ii) at the time of such Investment);
(l) Investments in Hedging Contracts otherwise permitted by this
Agreement;
(m) Permitted Acquisitions; and
(n) Investments consisting of interests in deposit or securities
accounts created in connection with the satisfaction and discharge of
Securitization Notes and other Indebtedness of Borrower and its
Subsidiaries as contemplated by (and in accordance with) the definitions of
ARG Refinancing and RTM Refinancing.
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Section 8.4 SALE OF ASSETS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, sell, convey, transfer, lease or otherwise dispose
of any of their respective assets or any interest therein (including the sale or
factoring at maturity or collection of any accounts) to any Person, or permit or
suffer any other Person to acquire any interest in any of their respective
assets, or, except in the case of Co-Borrower, issue or sell any shares of their
Stock or any Stock Equivalents (any such disposition being an "ASSET SALE"),
except for the following:
(a) the liquidation, sale or disposition of Cash Equivalents or
inventory, in each case in the ordinary course of business;
(b) the sale or disposition of Equipment that has become surplus,
worn out, obsolete, is replaced in the ordinary course of business or is no
longer used or useful in the business;
(c) the discount or write-off of accounts receivable overdue by
more than 90 days or the sale of any such accounts receivable for the
purpose of collection to any collection agency, in each case in the
ordinary course of business;
(d) licenses and sublicenses of Intellectual Property in the
ordinary course of business;
(e) the cancellation of any Indebtedness permitted to be cancelled
under SECTION 8.6(A);
(f) the issuance of Nominal Shares;
(g) a true lease or sublease of any property not constituting
Indebtedness and not constituting a sale and leaseback transaction;
(h) (i) any Asset Sale to Borrower or any Subsidiary Guarantor,
(ii) any Asset Sale to any Non-Guarantor to the extent, after giving effect
to such Asset Sale (and any other Asset Sale or Investment in
Non-Guarantors to be made on or prior to the date of such Asset Sale), the
Non-Guarantor Investment Amount does not exceed $15,000,000, (iii) any
Asset Sale by any Non-Guarantor to any Non-Guarantor and (iv) any Asset
Sale by any Non-Guarantor to any Loan Party (including through a
liquidation, disposition or winding up) as long as the consideration given
by the Loan Parties to such Non-Guarantor does not exceed the Fair Market
Value of the assets transferred to such Loan Parties;
(i) the liquidation or merger of any Subsidiary of Borrower, to
the extent such liquidation or merger is permitted pursuant to clause (x)
of SECTION 8.7;
(j) as long as no Event of Default is continuing or would result
therefrom, any Asset Sale for not less than Fair Market Value; PROVIDED,
HOWEVER, that with respect to any such Asset Sale pursuant to this clause
(j), (i) the assets comprised by all Asset Sales in any Fiscal Year
pursuant to this clause (j) shall not, in the aggregate, exceed 20% of
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the Consolidated Net Tangible Assets of Borrower as of the start of such
Fiscal Year, (ii) not less than 75% of the aggregate consideration received
in respect of such Asset Sale and all other Asset Sales previously
consummated in the same Fiscal Year pursuant to this clause (j) shall be
cash, and all such cash shall (in the case of previously consummated Asset
Sales) have been received or (in the case of the present Asset Sale) be
payable upon the consummation of such Asset Sale and (iii) an amount equal
to all Net Cash Proceeds of such Asset Sale is applied to the payment of
the Obligations as set forth in, and to the extent required by, SECTION
2.9;
(k) as long as no Event of Default is continuing or would result
therefrom, any Asset Sale the primary purpose of which is to exchange or
swap assets and for which 90% or more of the consideration consists of
assets other than cash or Cash Equivalents; PROVIDED, HOWEVER, that with
respect to any such Asset Sale pursuant to this clause (k), (i) the Fair
Market Value of the assets transferred by such Asset Sale and all other
Asset Sales in the same Fiscal Year pursuant to this clause (k) shall not,
in the aggregate, exceed $15,000,000, (ii) the Fair Market Value of the
consideration received shall be not less than the Fair Market Value of the
assets sold or transferred, and compliance with the foregoing requirement
shall be evidenced by (x) in the case of an Asset Sale or related series of
Asset Sales involving aggregate consideration (other than cash and Cash
Equivalents) with a Fair Market Value in excess of $1 million, a
certification by the chief financial officer of Borrower and (y) in the
case of an Asset Sale or related series of Asset Sales involving aggregate
consideration (other than cash and Cash Equivalents) with a Fair Market
Value in excess of $5 million, a resolution of the Board of Directors of
Borrower, in each case delivered to the Administrative Agent not less than
five Business Days prior to the consummation of such Asset Sale, and (iii)
an amount equal to all Net Cash Proceeds of such Asset Sale is applied to
the payment of the Obligations as set forth in, and to the extent required
by, SECTION 2.9;
(l) as long as no Event of Default is continuing or would result
therefrom, any other Asset Sale for not less than Fair Market Value;
PROVIDED that (i) the Fair Market Value of all assets sold, transferred or
otherwise disposed of pursuant to this clause (l) shall not, in the
aggregate, exceed $10,000,000 and (ii) an amount equal to all Net Cash
Proceeds of such Asset Sale is applied to the payment of the Obligations as
set forth in, and to the extent required by, SECTION 2.9; and
(m) Borrower and its Subsidiaries may sell or otherwise transfer
equipment in connection with sale and leaseback transactions; PROVIDED that
the aggregate value of the equipment sold or transferred under this
subsection shall not exceed $3,000,000 in any Fiscal Year.
To the extent the Requisite Lenders waive the provisions of this
SECTION 8.4 with respect to the sale of any Collateral, or any Collateral is
sold, transferred or otherwise disposed of as permitted by this SECTION 8.4,
such Collateral (unless sold, transferred or otherwise disposed of to
Co-Borrower or any of its Subsidiaries (other than a Non-Guarantor Subsidiary if
sold, transferred or disposed of pursuant to clause (h)(ii) above)) shall be
sold, transferred or otherwise disposed of free and clear of the Liens created
by the Collateral Documents, and the Agents shall take all actions they deem
appropriate in order to effect the foregoing.
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Section 8.5 RESTRICTED PAYMENTS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, directly or indirectly, declare, order, pay, make
or set apart any sum for any Restricted Payment except for the following:
(a) Restricted Payments by any Restricted Subsidiary to Borrower
or any Subsidiary Guarantor;
(b) Restricted Payments from Borrower to Co-Borrower and, in the
case of clause (iii), from Borrower or Co-Borrower to Parent (i) in amounts
sufficient to allow Co-Borrower to make interest payments when due on Loans
to Co-Borrower, (ii) in amounts sufficient to allow Co-Borrower to make
scheduled payments and prepayments on Loans to Co-Borrower in accordance
with the terms of this Agreement and (iii) in an aggregate amount in any
Fiscal Year not to exceed $500,000 to cover operating expenses of
Co-Borrower and Parent;
(c) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, dividends from Co-Borrower, Parent or
Borrower, directly or indirectly, to Sponsor in amounts required to make
regularly scheduled interest payments immediately due and payable on (x)
the Sponsor Convertible Notes or (y) any Sponsor Refinancing Indebtedness;
PROVIDED that in the case of clause (y) the amount of dividend payable
shall be no greater than the amount that would be payable under clause (x);
and
(d) dividends and distributions in an amount that when made do not
exceed (i) $25,000,000 PLUS (ii) the Available Amount (it being understood
that Borrower shall determine whether any such dividend or distribution is
being made pursuant to clause (i) or clause (ii) of this SECTION 8.5(D) at
the time such dividend or distribution is made).
Section 8.6 PREPAYMENT AND CANCELLATION OF INDEBTEDNESS
(a) CANCELLATION. None of Co-Borrower, Parent or Borrower shall,
nor shall they permit any Restricted Subsidiary to, cancel any Indebtedness owed
to any of them except (i) in the ordinary course of business, other than any
Indebtedness owed to a Loan Party by a Non-Guarantor, and (ii) intercompany
Indebtedness among Loan Parties.
(b) PREPAYMENT OF INDEBTEDNESS. None of Co-Borrower, Parent or
Borrower shall, nor shall they permit any Restricted Subsidiary to, 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; provided, HOWEVER, that each such party may (i)
prepay the Obligations in accordance with the terms of this Agreement, (ii)
except as would not be permitted by clause (v), make regularly scheduled or
otherwise required repayments or redemptions of Indebtedness, (iii) prepay any
Indebtedness payable to any Loan Party, (iv) except as would not be permitted by
clause (v), prepay any Indebtedness secured by a Lien permitted under this
Agreement, (v) so long as no Event of Default of the type described in SECTION
9.1(A), (B) or (F) has occurred and is continuing, take any actions contemplated
by the definitions of ARG Refinancing and RTM Refinancing within the periods set
forth therein and (vi) refinancings, extensions and renewals of Indebtedness
permitted by SECTION 8.1.
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Section 8.7 RESTRICTION ON FUNDAMENTAL CHANGES; PERMITTED
ACQUISITIONS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, do any of the following:
(a) except in connection with a Permitted Acquisition or other
Investments permitted pursuant to SECTION 8.3, (i) merge with any Person,
(ii) consolidate with any Person, (iii) acquire all or substantially all of
the Stock or Stock Equivalents of any Person or (iv) acquire all or
substantially all of the assets of any Person or all or substantially all
of the assets constituting the business of a division, branch or other unit
operation of any Person; or
(b) create any Subsidiary unless, after giving effect to such
creation, such Subsidiary is a Wholly-Owned Subsidiary of Borrower and the
Investment in such Subsidiary is permitted under SECTION 8.3(G);
PROVIDED, HOWEVER, that:
(x) (1) any Subsidiary of Borrower may be merged, liquidated or
dissolved into any Loan Party (other than Co-Borrower or Parent) as long as
such Loan Party is the surviving corporation and (2) any Non-Guarantor may
be merged, liquidated or dissolved into any other Non-Guarantor; and
(y) any Subsidiary of Borrower may be acquired by any Loan Party
(other than Co-Borrower or Parent) or, if such Subsidiary is a
Non-Guarantor, by any Non-Guarantor (in each case, as long as the resulting
Asset Sale and Investment are otherwise permitted hereunder).
Section 8.8 CHANGE IN NATURE OF BUSINESS
(a) Borrower shall not, and shall not permit any of its
Subsidiaries to, make any material change in the nature or conduct of its
business as carried on at the date hereof, whether in connection with a
Permitted Acquisition or otherwise, except for businesses reasonably related,
complementary or ancillary to the business as carried on at the date hereof (or
a reasonable extension or expansion thereof), or otherwise part of the quick
service restaurant business.
(b) Neither Co-Borrower nor Parent shall engage in any business or
activity other than (i) in the case of Co-Borrower, holding the Stock of Parent,
(ii) in the case of Parent, holding the Stock of Borrower, (iii) in the case of
Parent, issuing Permitted Parent Notes and taking action reasonably incidental
thereto, (iv) fulfilling its obligations hereunder and under any Loan Document,
(v) making Restricted Payments permitted hereunder, (vi) filing tax reports and
paying taxes and other expenses in the ordinary course, (vii) preparing reports
to Governmental Authorities and to its shareholders and (viii) holding directors
and shareholders meetings, preparing corporate records and other corporate
activities required to maintain its separate corporate structure or to comply
with applicable Requirements of Law.
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Section 8.9 TRANSACTIONS WITH AFFILIATES
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, directly or indirectly, conduct any business or
enter into or suffer to exist any transaction or series of transactions
(including any Investment, Asset Sale, incurrence of Indebtedness or any
transaction in respect thereof, the purchase, sale, transfer, assignment, lease,
conveyance or exchange of any property or the rendering of any service) with any
of their Affiliates (other than any Loan Party) except for each of the
following:
(a) Restricted Payments otherwise permitted hereunder;
(b) Investments in loans and advances to officers and directors
permitted pursuant to clause (h) or (i) of SECTION 8.3;
(c) Indebtedness of Non-Guarantors, Investments in or by
Non-Guarantors and Restricted Payments by Non-Guarantors to Loan Parties,
in each case as otherwise permitted hereunder;
(d) (i) so long as no Event of Default has occurred and is
continuing or would result therefrom, payment of the Management Fee by
Borrower to Sponsor (or an assignee of Sponsor) and (ii) if an Event of
Default has occurred and is continuing, payment by Borrower to Sponsor to
reimburse Sponsor for its documented costs and expenses attributable to
Borrower and its Subsidiaries not to exceed $4,000,000 in any Fiscal Year;
PROVIDED, in the case of clause (ii), that Borrower shall deliver to the
Administrative Agent a certificate of Responsible Officers of Sponsor and
Borrower setting forth in reasonable detail the amounts of such costs and
expenses, together with any further evidence thereof that the
Administrative Agent may reasonably request; PROVIDED, HOWEVER, that if
Borrower would have been able to make any payment pursuant to clause (i) of
any Management Fee in the absence of any Event of Default, Borrower shall
be permitted to make such payment (net of any payments made pursuant to
clause (ii)) as soon as no Event of Default shall be continuing;
(e) expense reimbursement, indemnities, salaries and other
director or employee compensation (including expense reimbursement and
indemnities) to officers or directors of Co-Borrower or any of its
Subsidiaries consistent with prior practice or approved by Co-Borrower's
Board of Directors;
(f) payments by Co-Borrower or its Subsidiaries to the direct or
indirect parent of Co-Borrower to pay federal, state or local income or
franchise taxes (including any interest, penalties or expenses related
thereto) attributable to the Co-Borrower or its Subsidiaries but not
payable directly by the Co-Borrower or its Subsidiaries either because (a)
the Co-Borrower or its Subsidiaries are members of a consolidated, combined
or similar income or franchise tax group of which a direct or indirect
parent of Co-Borrower is the common parent or (b) the Co-Borrower is a
disregarded entity for applicable income or franchise tax purposes, in an
amount not to exceed the taxes that would have been payable by the
Co-Borrower or its Subsidiaries on a stand-alone basis or as a stand-alone
group consisting of Co-Borrower and/or its Subsidiaries (as the case may
be), in each
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case as determined in the Co-Borrower's reasonable discretion, provided
that the Co-Borrower or its Subsidiaries, at the sole discretion of
Co-Borrower, may enter into any tax sharing agreement consistent with the
provisions of this SECTION 8.9(F) with any Person with which Co-Borrower or
its Subsidiaries are required or permitted to file a consolidated, combined
or similar tax return or with which Co-Borrower or its Subsidiaries are
part of a consolidated, combined or similar group for income or franchise
tax purposes;
(g) payments by Borrower to Sponsor when due and payable pursuant
to, and otherwise in accordance with, the terms of the Products Agreement;
(h) transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods and services, in each case in
the ordinary course of business and otherwise not prohibited by the Loan
Documents;
(i) purchase price adjustment payments pursuant to the RTM
Acquisition Agreements as amended, modified or otherwise supplemented in
accordance with SECTION 8.12;
(j) transactions on terms that are not materially less favorable
to Co-Borrower, Parent, Borrower and/or their respective Subsidiaries
(other than Unrestricted Subsidiaries), as the case may be, than those that
would have been obtained in a comparable transaction at such time and on an
arm's-length basis from a Person that is not an Affiliate of any Loan
Party; PROVIDED that (i) in the case of any such transaction or related
series of transactions involving aggregate consideration with a Fair Market
Value in excess of $5 million, such transaction (or series of transactions)
shall have been approved by a majority of the disinterested members of the
Board of Directors of Borrower (or, if the transacting party is Co-Borrower
or Parent, such party), and such approval is evidenced by a resolution of
such Board of Directors (a copy of which shall be delivered to the
Administrative Agent not less than five Business Days prior to the
consummation of any such transaction or transactions) stating that such
disinterested members have determined that such transaction (or series of
transactions) complies with the foregoing provisions, and (ii) in the case
of any such transaction or related series of transactions involving
aggregate consideration with a Fair Market Value in excess of $20 million,
Borrower shall have received a favorable opinion as to the financial
fairness of such transaction (or series of transactions) from an
independent accounting or appraisal firm or investment bank of national
reputation, and shall have delivered a copy of such opinion to the
Administrative Agent not less than five Business Days prior to the
consummation of any such transaction or transactions;
(k) reimbursement of documented out-of-pocket costs and expenses
incurred by Sponsor on behalf of Co-Borrower or any of its Subsidiaries in
connection with the Transactions (including without limitation the RTM
Acquisitions); and
(l) transactions listed on SCHEDULE 8.9(L).
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Section 8.10 LIMITATIONS ON RESTRICTIONS ON SUBSIDIARY
DISTRIBUTIONS; NO NEW NEGATIVE PLEDGE
Except pursuant to the Loan Documents or, in the case of (a) only, any
Permitted Subordinated Debt or Permitted Parent Notes (to the extent the terms
thereof related thereto are not more restrictive than those of the Loan
Documents), none of Co-Borrower, Parent nor Borrower shall, nor shall they
permit any Restricted Subsidiary to, (a) agree to enter into or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the
ability of such Subsidiary to (i) pay dividends or make any other distribution
with respect to its Stock or Stock Equivalents, (ii) transfer any of its
properties or assets or (iii) make loans or advances to or other Investments in,
or pay any Indebtedness owed to, Co-Borrower or any Restricted Subsidiary or (b)
enter into or suffer to exist or become effective any agreement prohibiting or
limiting the ability of Co-Borrower or any Restricted Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, to secure the Secured
Obligations, including any agreement requiring any other Indebtedness or
Contractual Obligation to be equally and ratably secured with the Secured
Obligations; PROVIDED, HOWEVER, that the foregoing shall not apply to (v) (i)
during the Refinancing Grace Period, restrictions imposed by Indebtedness listed
on SCHEDULE 7.11(A) and (ii) from the Initial Closing Date through the Second
Closing Date only, restrictions imposed by Indebtedness listed on SCHEDULE
8.1(B), in each case that existed prior to the Initial Closing Date, (w)
restrictions imposed by Permitted Non-Compliant Debt that existed prior to the
Initial Closing Date, (x) customary restrictions contained in any Hedging
Contract constituting a Secured Obligation, (y) encumbrances on assets acquired
by Borrower or any of its Subsidiaries, as long as such encumbrances are related
to the assets so acquired and were not created in connection with or in
anticipation of such acquisition and (z) encumbrances contained in any agreement
for the sale or other disposition of any Restricted Subsidiary in accordance
with the terms herewith that restricts distributions by such Restricted
Subsidiary pending such sale or other distribution; and PROVIDED, FURTHER, that
the foregoing clause (a)(ii) shall not apply to (A) restrictions in the
Indebtedness secured by a Lien permitted hereunder on any asset on the transfer
of such asset, (B) customary provisions entered into in the ordinary course of
business restricting assignment (including, in the case of leases, subletting,
and, in the case of licenses, sublicensing) of (or granting of Liens on) any
Contractual Obligation, (C) customary restrictions entered into in the ordinary
course of business in asset sale agreements, sale-leaseback agreements, stock
sale agreements and other similar agreements limiting the transfer of the assets
subject thereto pending the consummation of the sale provided therein or (D)
restrictions on cash or other deposit or net worth requirements imposed by
customers or contracts entered into in the ordinary course of business.
Section 8.11 MODIFICATION OF CONSTITUENT DOCUMENTS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, change its capital structure (including in the
terms of its outstanding Stock) or otherwise amend its Constituent Documents,
except for changes and amendments that do not materially affect the rights and
privileges of Co-Borrower, Parent, Borrower or any Restricted Subsidiary and do
not materially affect the interests of the Administrative Agent, the Collateral
Agent, the Syndication Agents, the Lenders and the Issuers under the Loan
Documents or in the Collateral.
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Section 8.12 MODIFICATION OF CLOSING DATE RELATED DOCUMENTS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, (a) alter, rescind, terminate, amend, supplement,
waive or otherwise modify any provision of any Closing Date Related Document,
except for modifications that (i) do not affect the rights and privileges of
Co-Borrower, Parent, Borrower or any Restricted Subsidiary under such Closing
Date Related Document in a materially adverse manner and (ii) in any case, do
not affect the interests of the Collateral Agent, the Syndication Agents or any
Lender, Issuer or other Secured Party under the Loan Documents or in the
Collateral in a materially adverse manner, or (b) permit any breach or default
to exist under any Closing Date Related Document or take or fail to take any
action thereunder, if to do so could reasonably be expected to have a Material
Adverse Effect.
Section 8.13 MODIFICATION OF SUBORDINATED DEBT DOCUMENTS AND
MANAGEMENT AGREEMENT
(a) Neither Co-Borrower nor Borrower shall, nor shall they permit
any Restricted Subsidiary to, change or amend the terms of any Permitted
Subordinated Debt (or any Subordinated Debt Document) if the effect of such
amendment is to (i) increase the cash pay portion of the interest rate (or
decrease the portion thereof that is not required to be paid in cash) on such
Permitted Subordinated Debt, (ii) change the dates upon which payments of
principal or interest are due on such Permitted Subordinated Debt other than to
extend such dates, (iii) change any default or event of default other than to
delete or make less restrictive any default provision therein, or change any
covenant with respect to such Permitted Subordinated Debt in any manner
materially adverse to Co-Borrower, Parent, Borrower, any Restricted Subsidiary
or any Agent, Lender, Issuer or other Secured Party, (iv) change the
subordination provisions of such Permitted Subordinated Debt, (v) change the
redemption or prepayment provisions of such Permitted Subordinated Debt other
than to extend the dates therefor or to reduce the premiums payable in
connection therewith or (vi) change or amend any other term if such change or
amendment would materially increase the obligations of the obligor or confer
additional material rights to the holder of such Permitted Subordinated Debt in
a manner adverse to Co-Borrower, Parent, Borrower, any Restricted Subsidiary or
the Administrative Agent, the Collateral Agent, the Syndication Agents or any
Lender, Issuer or other Secured Party.
(b) Each of Co-Borrower, Parent and Borrower shall, and shall
cause each Restricted Subsidiary to, ensure that the Obligations constitute
"Senior Debt" and "Designated Senior Debt" (or terms of similar import) as
customarily defined under any Subordinated Debt Document in respect of any
Permitted Subordinated Debt and that no other Indebtedness so qualifies under
any Subordinated Debt Document.
(c) None of Co-Borrower, Parent or Borrower shall, nor shall they
permit any Restricted Subsidiary to, change or amend the terms of the Management
Agreement if the effect of such amendment is to change or amend any term in a
manner materially adverse to Co-Borrower or any Restricted Subsidiary or any
Agent, Lender, Issuer or other Secured Party.
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Section 8.14 ACCOUNTING CHANGES; FISCAL YEAR
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary to, change its (a) accounting treatment and reporting
practices or tax reporting treatment, except as required by GAAP or any
Requirement of Law and disclosed to the Lenders and the Administrative Agent or
(b) fiscal year; PROVIDED that (i) the fiscal year of any of the Acquired
Businesses may be changed to conform to that of Borrower and (ii) Co-Borrower
and all of its Subsidiaries may change their fiscal year to conform to a
calendar year.
Section 8.15 MARGIN REGULATIONS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any of their respective Subsidiaries to, use all or any portion of the proceeds
of any credit extended hereunder to purchase or carry margin stock (within the
meaning of Regulation U of the Federal Reserve Board) in contravention of
Regulation U of the Federal Reserve Board.
Section 8.16 NO SPECULATIVE TRANSACTIONS
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any of their respective Subsidiaries to, engage in any speculative transaction
or in any transaction involving Hedging Contracts except as required by SECTION
7.14 or for the sole purpose of hedging in the normal course of business.
Section 8.17 COMPLIANCE WITH ERISA
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any Restricted Subsidiary or any ERISA Affiliate to, cause or permit to occur
(a) an event that would reasonably be expected to result in the imposition of a
Lien under Section 412 of the Code or Section 302 or 4068 of ERISA or (b) an
ERISA Event that would, in the aggregate, have a Material Adverse Effect.
Section 8.18 LIMITATION ON ISSUANCE OF STOCK
None of Co-Borrower, Parent or Borrower shall, nor shall they permit
any of their respective Subsidiaries to:
(a) with respect to Co-Borrower, issue any Disqualified Stock or
Stock Equivalent related to Disqualified Stock; and
(b) with respect to Parent or any Subsidiary of Parent, issue any
Stock (including by way of sales of treasury stock) or any Stock
Equivalent, except (i) for stock splits, stock dividends and additional
issuances of Stock which do not decrease the percentage ownership of Parent
or any Subsidiary of Parent in any class of the Stock of such Subsidiary;
(ii) Subsidiaries of Borrower formed after the Closing Date in accordance
with SECTION 8.7 may issue Stock to Borrower or a Subsidiary of Borrower
which is to own such Stock; and (iii) Borrower may issue common stock that
is not Disqualified Stock to Parent. All Stock issued in accordance with
this SECTION 8.18 shall, to the extent
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required by SECTIONS 7.11 and 7.16 or the Pledge and Security Agreement, be
delivered to the Collateral Agent for pledge pursuant to the Pledge and
Security Agreement.
Section 8.19 MAINTENANCE OF CORPORATE SEPARATION
The Loan Parties shall not permit any Unrestricted Subsidiary to (a)
fail to satisfy customary corporate formalities, including (i) the holding of
regular board of directors' and shareholders' meetings, (ii) the maintenance of
separate corporate records and (iii) the maintenance of separate bank accounts
in its own name; (b) fail to act solely in its own corporate name and through
its authorized officers and agents; (c) commingle any of its money or other
assets with any money or other assets of any Loan Party; or (d) take any action
or conduct its affairs in a manner which is reasonably likely to result in the
separate corporate existence of the Loan Parties from the Unrestricted
Subsidiaries to be ignored or the assets and liabilities of any Unrestricted
Subsidiary being substantively consolidated with those of any Loan Party in any
bankruptcy, insolvency proceeding; or permit any Loan Party to make any payment
to any creditor of any Unrestricted Subsidiary or provide any direct or indirect
guarantee or other credit support for any Indebtedness or other obligations of
any Unrestricted Subsidiary.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 EVENTS OF DEFAULT
Each of the following events shall be an "EVENT OF DEFAULT":
(a) Borrower or Co-Borrower shall fail to pay any principal of any
Loan made hereunder or any obligation owing by Borrower or Co-Borrower
under SECTION 2.2(C) (after giving effect to any grace period set forth
therein) or any Reimbursement Obligation when the same becomes due and
payable; or
(b) any Loan Party shall fail to pay any interest on any Loan, any
fee under any of the Loan Documents or any other Secured Obligation (other
than one referred to in clause (a) above) and such non-payment continues
for a period of five Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by any Loan
Party in any Loan Document or by any Loan Party (or any of its officers) in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any term,
covenant or agreement contained in SECTION 2.20(A), ARTICLE V, SECTION 6.2,
6.3, 7.1, 7.9 or 7.18 or ARTICLE VIII or (ii) any other term, covenant or
agreement contained in this Agreement or in any other Loan Document if such
failure under this clause (ii) shall remain unremedied for 30 days after
the earlier of (A) the date on which a Responsible Officer of Borrower
becomes aware of such failure and (B) the date on which written notice
thereof shall have been given to Borrower by the Administrative Agent or
any Lender; or
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(e) (i) Co-Borrower, Parent, Borrower or any of their respective
Subsidiaries shall fail to make (after giving effect to any applicable
grace period) any payment on any Indebtedness of Co-Borrower, Parent,
Borrower or any such Subsidiary (other than the Obligations) or any
Guaranty Obligation in respect of Indebtedness of any other Person, and, in
each case, such failure relates to Indebtedness having a principal amount
equal to or exceeding $25,000,000, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), (ii) any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Indebtedness, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or (iii) any such
Indebtedness shall become or be declared to be due and payable, or be
required to be prepaid or repurchased (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; PROVIDED that
(x) for the period from the Initial Closing Date to the date that is 60
days after the Initial Closing Date (the "REFINANCING GRACE PERIOD"), it
shall not be an Event of Default if an event of the type described in
clause (ii) or (iii) above shall occur with respect to Indebtedness listed
on SCHEDULE 7.11(A) and (y) on the Initial Closing Date and the Second
Closing Date, it shall not be an Event of Default if an event of the type
described in clause (ii) or (iii) above shall occur with respect to
Indebtedness listed on SCHEDULE 8.1(B); PROVIDED FURTHER that any such
event (whether occurring before, during or after (in the case of clause
(x)) the Refinancing Grace Period or (in the case of clause (y)) the Second
Closing Date) shall become an Event of Default after (in the case of clause
(x)) the expiration of the Refinancing Grace Period or (in the case of
clause (y)) the Second Closing Date unless such Indebtedness has been
repaid in full; or
(f) (i) Co-Borrower, Parent, Borrower or any of their respective
Subsidiaries shall generally not pay its debts as such debts become due,
shall admit in writing its inability to pay its debts generally or shall
make a general assignment for the benefit of creditors, (ii) any proceeding
shall be instituted by or against Co-Borrower, Parent, Borrower or any of
their respective Subsidiaries seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts, under any
Requirement of Law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a custodian, receiver, trustee or other similar official for
it or for any substantial part of its property; PROVIDED, HOWEVER, that in
the case of any such proceedings instituted against Co-Borrower, Parent,
Borrower or any of their respective Subsidiaries (but not instituted by
Co-Borrower, Parent, Borrower or any of their respective Subsidiaries),
either such proceedings shall remain undismissed or unstayed for a period
of 45 days or more or any action sought in such proceedings shall occur, or
(iii) Co-Borrower, Parent, Borrower or any of their respective Subsidiaries
shall take any corporate action to authorize any action set forth in
clauses (i) and (ii) above; or
(g) one or more judgments or orders (or other similar process)
involving, in the case of money judgments, an aggregate amount exceeding
$25,000,000, shall be rendered against one or more of the Loan Parties or
any Subsidiary thereof and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a
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stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(h) an ERISA Event shall occur and the amount of all liabilities
and deficiencies resulting therefrom, whether or not assessed, exceeds
$15,000,000 in the aggregate; or
(i) any provision of any Loan Document after delivery thereof
shall for any reason (other than through a termination executed by the
Collateral Agent or otherwise in accordance with its terms) fail or cease
to be valid and binding on, or enforceable against, any Loan Party party
thereto, or any Loan Party shall repudiate or deny (A) the validity or
enforceability of any Loan Document or (B) any portion of its liability or
obligation for the Obligations; or
(j) any Collateral Document shall for any reason fail or cease to
create valid and enforceable Liens on any Collateral purported to be
covered thereby or, except as permitted by the Loan Documents, such Liens
shall fail or cease to constitute the Requisite Liens subject to Liens
permitted hereby, or any Loan Party shall so state in writing and, if such
invalidity relates solely to Collateral which has an aggregate value not
exceeding $1,000,000 and such invalidity or unenforceability is such as to
be amenable to cure without materially adversely affecting the Agents and
the other Secured Parties under any Loan Document, such invalidity or
unenforceability shall not be cured within 30 days; or
(k) there shall occur any Change of Control; or
(l) the failure of Borrower to repay or satisfy any Indebtedness
within the time periods required by the definitions of ARG Refinancing and
RTM Refinancing; or
(m) any Loan Party that is required to become a Guarantor pursuant
to the proviso to SECTION 7.11(A) shall incur any Indebtedness, or cause or
suffer to exist any Liens on its assets (other than Customary Permitted
Liens and Liens existing on the date hereof), prior to becoming a
Guarantor; or
(n) Co-Borrower or Borrower shall breach any representation,
undertaking or covenant contained in any Payment Notice and Disbursement
Request (as defined in the Escrow Agreement).
Section 9.2 REMEDIES
During the continuance of any Event of Default, the Administrative
Agent (a) at the request of the Requisite Lenders, shall, by notice to Borrower,
declare that all or any portion of the Commitments be terminated, whereupon the
obligation of each Lender to make any Loan and each Issuer to Issue any Letter
of Credit shall immediately terminate and (b) at the request of the Requisite
Lenders, shall, by notice to Borrower, declare the Loans, all interest thereon
and all other amounts and Obligations payable under this Agreement to be
forthwith due and payable, whereupon the Loans, all such interest and all such
amounts and Obligations shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any
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kind, all of which are hereby expressly waived by Co-Borrower, Parent and
Borrower; PROVIDED, HOWEVER, that upon the occurrence of the Events of Default
specified in SECTION 9.1(F) in respect of Co-Borrower, Parent or Borrower, (x)
the Commitments of each Lender to make Loans and the commitments of each Lender
and Issuer to Issue or participate in Letters of Credit shall each automatically
be terminated and (y) the Loans, all such interest and all such amounts and
Obligations shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower and Co-Borrower. In addition to the remedies set
forth above, the Collateral Agent may exercise any remedies provided for by the
Collateral Documents in accordance with the terms thereof or any other remedies
provided by applicable law.
Section 9.3 ACTIONS IN RESPECT OF LETTERS OF CREDIT
At any time (a) upon the Revolving Credit Termination Date, (b) after
the Revolving Credit Termination Date when the aggregate funds on deposit in
Cash Collateral Accounts shall be less than 102% of the Letter of Credit
Obligations or (c) as may be required by SECTION 2.9(C) or (D), Borrower shall
pay to the Administrative Agent in immediately available funds at the
Administrative Agent's office referred to in SECTION 11.8(A), for deposit in a
Cash Collateral Account, (x) in the case of clauses (a) and (b) above, the
amount required so that, after such payment, the aggregate funds on deposit in
the Cash Collateral Accounts equal or exceed 102% of the sum of all outstanding
Letter of Credit Obligations and (y) in the case of clause (c) above, the amount
required by SECTION 2.9(C) or (D). The Administrative Agent may, from time to
time after funds are deposited in any Cash Collateral Account, apply funds then
held in such Cash Collateral Account to the payment of any amounts, in
accordance with SECTION 2.13(G), as shall have become or shall become due and
payable by Borrower to the Issuers or Lenders in respect of the Letter of Credit
Obligations. The Administrative Agent shall promptly give written notice of any
such application; PROVIDED, HOWEVER, that the failure to give such written
notice shall not invalidate any such application.
Section 9.4 RESCISSION
If at any time after termination of the Commitments or acceleration of
the maturity of the Loans, Borrower and/or Co-Borrower shall pay all arrears of
interest and all payments on account of principal of the Loans and Reimbursement
Obligations that shall have become due otherwise than by acceleration (with
interest on principal and, to the extent permitted by law, on overdue interest,
at the rates specified herein) and all Events of Default and Defaults (other
than non-payment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to SECTION 11.1, then upon the written consent of the Requisite Lenders and
written notice to Borrower, the termination of the Commitments or the
acceleration and their consequences may be rescinded and annulled; PROVIDED,
HOWEVER, that such action shall not affect any subsequent Event of Default or
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders and the Issuers to a
decision that may be made at the election of the Requisite Lenders, and such
provisions are not intended to benefit Borrower or Co-Borrower and do not give
Borrower or Co-Borrower the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.
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ARTICLE X
THE AGENTS
Section 10.1 AUTHORIZATION AND ACTION
(a) Each Lender and each Issuer hereby appoints hereunder (i)
Citicorp as the Administrative Agent and the Collateral Agent, (ii) BofA and CS
as the Syndication Agents and (iii) Wachovia Bank, N.A. and SunTrust Bank as the
Co-Documentation Agents, and each Lender and each Issuer authorizes each such
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to such Agent
under such agreements and to exercise such powers as are reasonably incidental
thereto. Without limiting the foregoing, each Lender and each Issuer hereby
authorizes the Collateral Agent to execute and deliver, and to perform its
obligations under, any of the Loan Documents to which the Collateral Agent is
party, to exercise all rights, powers and remedies that the Collateral Agent may
have under such Loan Documents and, in the case of the Collateral Documents, to
act as agent under such Collateral Documents for Secured Parties.
(b) As to any matters not expressly provided for by this Agreement
and the other Loan Documents (including enforcement or collection), (i) the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders, and such instructions shall be binding upon all Lenders
and each Issuer and (ii) the Collateral Agent shall not be required to take any
action that (x) the Collateral Agent in good faith believes exposes it to
personal liability unless it receives an indemnification satisfactory to it from
the Lenders and the Issuers with respect to such action or (y) is contrary to
any Loan Document or applicable law. The Collateral Agent agrees to give to each
other Agent, each Lender and each Issuer prompt notice of each notice given to
it by any Loan Party pursuant to the terms of this Agreement or the other Loan
Documents.
(c) In performing their respective functions and duties hereunder
and under the other Loan Documents, (i) the Administrative Agent is acting
solely on behalf of the Lenders and the Issuers except to the limited extent
provided in SECTION 2.7(B) and (ii) the Collateral Agent is acting solely on
behalf of the Secured Parties, and each of their respective duties are entirely
administrative in nature. The Collateral Agent does not assume, and shall not be
deemed to have assumed, any obligation other than as expressly set forth herein
and in the other Loan Documents or any other relationship as the agent,
fiduciary or trustee of or for any Lender, Issuer or holder of any other Secured
Obligation. The Collateral Agent may perform any of its duties under any of the
Loan Documents by or through its agents or employees.
(d) Notwithstanding anything else to the contrary in this
Agreement, none of the Arrangers, the Syndication Agents or the Documentation
Agents shall have any obligations or duties whatsoever in such capacity under
this Agreement or any other Loan Document, shall have any rights separate from
its rights as a Lender, except for consent rights expressly provided hereunder,
or shall incur any liability hereunder or thereunder in such capacity.
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Section 10.2 AGENTS' RELIANCE, ETC.
No Agent, no Affiliate of any Agent and none of their respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it, him, her or them under or in connection with this
Agreement or the other Loan Documents, except for its, his, her or their own
gross negligence or willful misconduct. Without limiting the foregoing, the
Agents (a) may treat the payee of any Note as its holder until such Note has
been assigned in accordance with SECTION 11.2, (b) may rely on the Register to
the extent set forth in SECTION 2.7, (c) may consult with legal counsel
(including counsel to Co-Borrower, Parent, Borrower or any other Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts, (d) make no
warranty or representation to any Lender or Issuer and shall not be responsible
to any Lender or Issuer for any statements, warranties or representations made
by or on behalf of Co-Borrower, Parent, Borrower or any of their respective
Subsidiaries in or in connection with this Agreement or any other Loan Document,
(e) shall not have any duty to ascertain or to inquire either as to the
performance or observance of any term, covenant or condition of this Agreement
or any other Loan Document, as to the financial condition of any Loan Party or
as to the existence or possible existence of any Default or Event of Default,
(f) shall not be responsible to any Lender or Issuer for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be
created under or in connection with, this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto and (g)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which writing may be a telecopy or electronic mail) or any telephone
message believed by it to be genuine and signed or sent by the proper party or
parties.
Section 10.3 POSTING OF APPROVED ELECTRONIC COMMUNICATIONS
(a) Each of the Lenders, the Issuers, the Agents, Co-Borrower,
Parent and Borrower agree, and Borrower shall cause each Subsidiary Guarantor to
agree, that each Agent may, but shall not be obligated to, make the Approved
Electronic Communications available to the Lenders and Issuers by posting such
Approved Electronic Communications on IntraLinks(TM) or a substantially similar
electronic platform chosen by the Administrative Agent to be its electronic
transmission system (the "APPROVED ELECTRONIC PLATFORM").
(b) Although the Approved Electronic Platform and its primary web
portal are secured with generally applicable security procedures and policies
implemented or modified by the Administrative Agent from time to time
(including, as of the Initial Closing Date, a dual firewall and a User
ID/Password Authorization System) and the Approved Electronic Platform is
secured through a single-user-per-deal authorization method whereby each user
may access the Approved Electronic Platform only on a deal-by-deal basis, each
of the Lenders, the Issuers, Co-Borrower, Parent and Borrower acknowledges and
agrees, and Borrower shall cause each Subsidiary Guarantor to acknowledge and
agree, that the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks associated
with such distribution. In consideration for the convenience and other benefits
afforded by such distribution and for the other consideration provided
hereunder, the receipt and sufficiency
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of which is hereby acknowledged, each of the Lenders, the Issuers, Co-Borrower,
Parent and Borrower hereby approves, and Borrower shall cause each Subsidiary
Guarantor to approve, distribution of the Approved Electronic Communications
through the Approved Electronic Platform and understands and assumes, and
Borrower shall cause each Subsidiary Guarantor to understand and assume, the
risks of such distribution.
(c) The Approved Electronic Communications and the Approved
Electronic Platform are provided "as is" and "as available". None of the Agents
or any of their respective Affiliates or any of their respective officers,
directors, employees, agents, advisors or representatives (the "AGENT
AFFILIATES") warrant the accuracy, adequacy or completeness of the Approved
Electronic Communications and the Approved Electronic Platform and each
expressly disclaims liability for errors or omissions in the Approved Electronic
Communications and the Approved Electronic Platform. No warranty of any kind,
express, implied or statutory (including, without limitation, 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 the Agent
Affiliates in connection with the Approved Electronic Communications or the
Approved Electronic Platform.
(d) Each of the Lenders, the Issuers, Co-Borrower, Parent and
Borrower agrees, and Borrower shall cause each Subsidiary Guarantor to agree,
that each Agent may, but (except as may be required by applicable law) shall not
be obligated to, store the Approved Electronic Communications on the Approved
Electronic Platform in accordance with such Agent's generally applicable
document retention procedures and policies.
Section 10.4 EACH AGENT INDIVIDUALLY
With respect to its Ratable Portion, each of Citicorp, BofA and CS and
each other Agent shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms "Lenders," "Revolving
Credit Lenders," "Term Loan Lenders," "Requisite Lenders" and any similar term
shall, unless the context clearly otherwise indicates, include, without
limitation, each Agent in its individual capacity as a Lender, a Revolving
Credit Lender, Term Loan Lender or as one of the Requisite Lenders. Each Agent
and its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of banking, trust or other business with, any Loan Party as if such
Agent were not acting as Agent hereunder.
Section 10.5 LENDER CREDIT DECISION
Each Lender and each Issuer acknowledges that it shall, independently
and without reliance upon any Agent or any other Lender, conduct its own
independent investigation of the financial condition and affairs of Borrower,
Co-Borrower and each other Loan Party in connection with the making and
continuance of the Loans and with the issuance of the Letters of Credit. Each
Lender and each Issuer also acknowledges that it shall, independently and
without reliance upon any Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
other Loan Documents.
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Section 10.6 INDEMNIFICATION
Each Lender agrees to indemnify each Agent and each of its Affiliates,
and each of their respective directors, officers, employees, agents and advisors
(to the extent not reimbursed by Borrower, Co-Borrower or any other Loan Party),
from and against such Lender's aggregate Ratable Portion of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements (including fees, expenses and disbursements of
financial and legal advisors) of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against, such Agent or any of its
Affiliates, directors, officers, employees, agents and advisors in any way
relating to or arising out of this Agreement or the other Loan Documents or any
action taken or omitted by such Agent under this Agreement or the other Loan
Documents; PROVIDED, HOWEVER, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's or such
Affiliate's gross negligence, bad faith or willful misconduct. Without limiting
the foregoing, each Lender agrees to reimburse such Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including fees, expenses
and disbursements of financial and legal advisors) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of its rights or
responsibilities under, this Agreement or the other Loan Documents, to the
extent that such Agent is not reimbursed for such expenses by Borrower,
Co-Borrower or any other Loan Party. For purposes of this SECTION 10.6, the Loan
Documents shall be deemed not to include the Fee Letters.
Section 10.7 SUCCESSOR ADMINISTRATIVE AGENT AND COLLATERAL AGENT
Each of the Administrative Agent and the Collateral Agent may resign at
any time by giving written notice thereof to the Lenders and Borrower. Upon any
such resignation by the Administrative Agent or Collateral Agent, the Requisite
Lenders shall have the right to appoint a successor Administrative Agent or
Collateral Agent (as the case may be). If no successor Agent shall have been so
appointed, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent or Collateral
Agent (as the case may be), selected from among the Lenders. In either case,
such appointment shall be subject to the prior written approval of Borrower
(which approval may not be unreasonably withheld and shall not be required upon
the occurrence and during the continuance of an Event of Default). Upon the
acceptance of any appointment as Administrative Agent or Collateral Agent by a
successor Agent, such successor Agent shall succeed to, and become vested with,
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. Prior to any retiring Agent's
resignation hereunder as Administrative Agent or Collateral Agent, the retiring
Agent shall take such action as may be reasonably necessary to assign to the
successor Agent its rights as Administrative Agent or Collateral Agent (as the
case may be) under the Loan Documents. After such resignation, the retiring
Agent shall continue to have the benefit of this ARTICLE X as to any actions
taken or omitted to be taken by it while it was Administrative Agent or
Collateral Agent (as the case may be) under this Agreement and the other Loan
Documents.
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Section 10.8 CONCERNING THE COLLATERAL AND THE COLLATERAL
DOCUMENTS
Each Lender and each Issuer agrees that any action taken by the
Collateral Agent or the Requisite Lenders (or, where required by the express
terms of this Agreement, a greater proportion of the Lenders) in accordance with
the provisions of this Agreement or of the other Loan Documents, and the
exercise by the Collateral Agent or the Requisite Lenders (or, where so
required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders, Issuers and other Secured
Parties. Without limiting the generality of the foregoing, (i) the
Administrative Agent shall have the sole and exclusive right and authority to
act as the disbursing and collecting agent for the Lenders and the Issuers with
respect to all payments and collections arising in connection herewith and with
the Collateral Documents, (ii) the Collateral Agent shall have the sole
authority to (A) execute and deliver each Collateral Document and accept
delivery of each such agreement delivered by Co-Borrower, Parent, Borrower or
any of their respective Subsidiaries, (B) act as collateral agent for the
Lenders, the Issuers and the other Secured Parties for purposes of the
perfection of all security interests and Liens created by such agreements and
all other purposes stated therein; PROVIDED, HOWEVER, that the Collateral Agent
hereby appoints, authorizes and directs each Lender and Issuer to act as
collateral sub-agent for the Collateral Agent, the Lenders and the Issuers for
purposes of the perfection of all security interests and Liens with respect to
the Collateral, including any Deposit Accounts maintained by a Loan Party with,
and cash and Cash Equivalents held by, such Lender or such Issuer, (C) manage,
supervise and otherwise deal with the Collateral, (D) take such action as is
necessary or desirable to maintain the perfection and priority of the security
interests and Liens created or purported to be created by the Collateral
Documents and (E) except as may be otherwise specifically restricted by the
terms hereof or of any other Loan Document, exercise all remedies given to the
Collateral Agent, the Lenders, the Issuers and the other Secured Parties with
respect to the Collateral under the Loan Documents relating thereto, applicable
law or otherwise.
Section 10.9 COLLATERAL MATTERS RELATING TO RELATED OBLIGATIONS
The benefit of the Loan Documents and of the provisions of this
Agreement relating to the Collateral shall extend to and be available in respect
of any Secured Obligation arising under any Hedging Contract or Cash Management
Obligation or that is otherwise owed to Persons other than the Agents, the
Lenders and the Issuers (collectively, "RELATED OBLIGATIONS") solely on the
condition and understanding, as among the Collateral Agent and all Secured
Parties, that (a) the Related Obligations shall be entitled to the benefit of
the Loan Documents and the Collateral to the extent expressly set forth in this
Agreement and the other Loan Documents and to such extent the Collateral Agent
shall hold, and have the right and power to act with respect to, the Guaranty
and the Collateral on behalf of and as agent for the holders of the Related
Obligations, but the Collateral Agent is otherwise acting solely as agent for
the Lenders and the Issuers and shall have no fiduciary duty, duty of loyalty,
duty of care, duty of disclosure or other obligation whatsoever to any holder of
Related Obligations, (b) all matters, acts and omissions relating in any manner
to the Guaranty, the Collateral, or the omission, creation, perfection,
priority, abandonment or release of any Lien, shall be governed solely by the
provisions of this Agreement and the other Loan Documents and no separate Lien,
right, power or remedy shall arise or exist in favor of any Secured Party under
any separate instrument or agreement or in respect of any Related Obligation,
(c) each Secured Party shall be bound by all actions taken or
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omitted, in accordance with the provisions of this Agreement and the other Loan
Documents, by the Collateral Agent and the Requisite Lenders, each of whom shall
be entitled to act at its sole discretion and exclusively in its own interest
given its own Commitments and its own interest in the Loans, Letter of Credit
Obligations and other Obligations to it arising under this Agreement or the
other Loan Documents, without any duty or liability to any other Secured Party
or as to any Related Obligation and without regard to whether any Related
Obligation remains outstanding or is deprived of the benefit of the Collateral
or becomes unsecured or is otherwise affected or put in jeopardy thereby, (d) no
holder of Related Obligations and no other Secured Party (except the Agents, the
Lenders and the Issuers, to the extent set forth in this Agreement) shall have
any right to be notified of, or to direct, require or be heard with respect to,
any action taken or omitted in respect of the Collateral or under this Agreement
or the Loan Documents and (e) no holder of any Related Obligation shall exercise
any right of setoff, banker's lien or similar right except to the extent
provided in SECTION 11.6 and then only to the extent such right is exercised in
compliance with SECTION 11.7.
ARTICLE XI
MISCELLANEOUS
Section 11.1 AMENDMENTS, WAIVERS, ETC.
(a) No amendment or waiver of any provision of this Agreement or
any other Loan Document nor consent to any departure by any Loan Party therefrom
shall in any event be effective unless the same shall be in writing and (x) in
the case of any such waiver or consent, signed by the Requisite Lenders (or by
the Administrative Agent with the consent of the Requisite Lenders), (y) in the
case of any amendment necessary to implement the terms of a Facilities Increase
in accordance with the terms hereof, signed by Borrower, Co-Borrower and the
Administrative Agent, and (z) in the case of any other amendment, signed by the
Requisite Lenders (or by the Administrative Agent with the consent of the
Requisite Lenders) and Borrower and Co-Borrower, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that no amendment, waiver or consent
shall, unless in writing and signed by each Lender directly affected thereby, in
addition to the Requisite Lenders (or the Administrative Agent with the consent
thereof), do any of the following:
(i) increase the Commitment of such Lender (it being understood
that no amendment, modification, termination, waiver or consent with
respect to any condition precedent, covenant or Default shall constitute an
increase in the Commitment of any Lender);
(ii) extend the scheduled final maturity of any Loan owing to such
Lender, or waive or postpone any scheduled date fixed for the payment or
reduction of principal or payment of interest (other than with respect to
the increase in such rate of interest triggered by any Default or Event of
Default) of any such Loan or any fee owing to such Lender (it being
understood that SECTION 2.9 does not provide for scheduled dates fixed for
payment) or for the reduction of such Lender's Commitment;
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(iii) reduce, or release Borrower or Co-Borrower from their
respective obligations to repay, the principal amount of any Loan or
Reimbursement Obligation owing to such Lender (other than by the payment or
prepayment thereof);
(iv) reduce the rate of interest on any Loan or Reimbursement
Obligation outstanding and owing to such Lender or any fee payable
hereunder to such Lender;
(v) change the aggregate Ratable Portions of Lenders required for
any or all Lenders to take any action hereunder or change the definition of
Requisite Lenders or Ratable Portion, in each case other than as part of a
Facilities Increase;
(vi) (a) release all or substantially all of the Collateral except
as provided in SECTION 7.11 of the Pledge and Security Agreement or (b)
release any Guarantor from its obligations under the Guaranty except in
connection with the sale or other disposition of a Subsidiary Guarantor (or
all or substantially all of the assets thereof) or the dissolution or
liquidation of a Subsidiary Guarantor permitted by this Agreement (or
permitted pursuant to a waiver or consent of a transaction otherwise
prohibited by this Agreement);
(vii) amend SECTION 11.7 hereof or this SECTION 11.1 (it being
understood that a Facilities Increase shall not constitute such an
amendment); or
(viii) increase the maximum duration of any Interest Period or change
the currency of any Obligation;
and PROVIDED, FURTHER, that:
(ix) (i) any change to the definition of the term "Term Loan
Lenders" shall require the consent of the Requisite Term Loan Lenders and
(ii) any change to the definition of Requisite Revolving Credit Lenders
shall require the consent of the Requisite Revolving Credit Lenders, in
each case other than as part of a Facilities Increase;
(x) (i) any modification of the application of payments to the
Term Loans pursuant to SECTION 2.9 shall require the consent of the
Requisite Term Loan Lenders (it being understood that Term Loans pursuant
to a Facilities Increase may be included on a PRO RATA basis), (ii) any
modification of the application of payments to the Revolving Loans pursuant
to SECTION 2.9 or the reduction of the Revolving Credit Commitments
pursuant to SECTION 2.5(B) shall require the consent of the Requisite
Revolving Credit Lenders (it being understood that a Facilities Increase
may be included on a PRO RATA basis) and (iii) any expressed change or
waiver of any condition precedent in SECTION 3.2 to any Revolving Credit
Borrowing shall require the written consent of the Requisite Revolving
Credit Lenders;
(xi) no amendment, waiver or consent shall affect the rights or
duties of any Agent or Issuer under this Agreement or the other Loan
Documents unless in writing and signed by such Agent or Issuer in addition
to the Lenders required above to take such action;
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(xii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Loan Lender in addition to the Lenders required above
to take such action, affect the rights or duties of the Swing Loan Lender
under this Agreement or the other Loan Documents; and
(xiii) notwithstanding any of the foregoing, the Administrative Agent
may, solely with the consent of Borrower, amend, modify or supplement this
Agreement to cure any typographical error, defect or inconsistency, as long
as such amendment, modification or supplement does not adversely affect the
rights of any Lender or any Issuer in any material respect.
(b) The Administrative Agent may, but shall have no obligation to,
with the written concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on Borrower or Co-Borrower in any case
shall entitle Borrower or Co-Borrower to any other or further notice or demand
in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification,
waiver or termination requiring the consent of any Revolving Credit Lender or
Term Loan Lender of any Tranche in addition to the consent of the Requisite
Lenders, the consent of the Requisite Lenders is obtained but the consent of
such Revolving Credit Lender or Term Loan Lender whose consent is required is
not obtained (any such Lender whose consent is not obtained as described in this
SECTION 11.1 being referred to as a "NON-CONSENTING LENDER"), then, as long as
the Lender acting as the Administrative Agent is not a Non-Consenting Lender, at
Borrower's request, an Eligible Assignee acceptable to the Administrative Agent
shall have the right with the Administrative Agent's consent and in the
Administrative Agent's sole discretion (but shall have no obligation) to
purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees
that it shall, upon the Administrative Agent's request, sell and assign to the
Lender acting as the Administrative Agent or such Eligible Assignee, all of the
Revolving Credit Commitments and Revolving Credit Outstandings of such
Non-Consenting Lender if such Non-Consenting Lender is a Revolving Credit Lender
and all of the Term Loans of such Non-Consenting Lender of such Tranche if such
Non-Consenting Lender is a Term Loan Lender of any Tranche, in each case for an
amount equal to the principal balance of all such Revolving Loans or Term Loans,
as applicable, held by the Non-Consenting Lender and all accrued and unpaid
interest and fees with respect thereto through the date of sale; PROVIDED,
HOWEVER, that such purchase and sale shall be recorded in the Register
maintained by the Administrative Agent and not be effective until (x) the
Administrative Agent shall have received from such Eligible Assignee an
agreement in form and substance reasonably satisfactory to the Administrative
Agent and Borrower whereby such Eligible Assignee shall agree to be bound by the
terms hereof and (y) such Non-Consenting Lender shall have received payments of
all Revolving Loans or Term Loans of any Tranche, as applicable, held by it and
all accrued and unpaid interest and fees with respect thereto through the date
of the sale. Each Lender agrees that, if it becomes a Non-Consenting Lender, it
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance to evidence such sale and purchase and shall deliver to the
Administrative Agent any Note (if the assigning Lender's Loans are evidenced by
Notes) subject to such Assignment and Assumption; PROVIDED, HOWEVER, that the
failure of any Non-Consenting Lender to execute an Assignment and Assumption
shall not
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render such sale and purchase (and the corresponding assignment) invalid and
such assignment shall be recorded in the Register.
Section 11.2 SUCCESSORS AND ASSIGNS
(a) 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 none of Co-Borrower, Parent, 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 clause (b) of this SECTION 11.2, (ii) by way of
participation in accordance with the provisions of clause (d) of this SECTION
11.2 or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of clause (f) of this SECTION 11.2 (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, express 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 clause (d) of this
SECTION 11.2 and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) 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 Commitments and the Loans at the time owing
to it); PROVIDED that any such assignment shall be subject to the following
conditions:
(i) Minimum amounts:
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitments and the Loans at the time
owing to it or in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund of a Lender, no minimum amount need be
assigned; and
(B) in any case not described in paragraph (b)(i)(A) of
this Section, the aggregate amount of the Commitments (which for this
purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of
the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of such
"Trade Date") shall be in a multiple of $1,000,000 and shall not be
less than (x) $5,000,000, in the case of any assignment in respect of
the Revolving Credit Facility, or (y) $1,000,000, in the case of any
assignment in respect of the Term Loan Facility, unless each of the
Administrative Agent and, so long as no Default or Event of Default has
occurred and is continuing, the relevant Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed);
PROVIDED that for purposes of the foregoing, simultaneous assignments
by a Lender to an Eligible
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Assignee and one or more Approved Funds thereof shall be deemed a
single assignment.
(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 Loan or the Commitment assigned,
except that this clause (ii) shall not prohibit any Lender from assigning
all or a portion of its rights and obligations among the Revolving Credit
Facility and the Term Loan Facility, or among separate Tranches of the Term
Loan Facility, on a non-PRO RATA basis.
(iii) No consent shall be required for any assignment except to the
extent required by paragraph (b)(i)(B) of this SECTION 11.2 and, in
addition:
(A) the consent of the relevant Borrower (such consent
not to be unreasonably withheld or delayed) shall be required unless
(x) a Default or Event of Default has occurred and is continuing at the
time of such assignment or (y) such assignment is to a Federal Reserve
Bank, a Lender, an Affiliate of a Lender or an Approved Fund of a
Lender;
(B) the consent of the Administrative Agent (such consent
not to be unreasonably withheld or delayed) shall be required for
assignments in respect of (i) an unfunded Term Loan Commitment or a
Revolving Credit Commitment if such assignment is to a Person that is
not a Lender with a Commitment in respect of the relevant Facility, an
Affiliate of such a Lender or an Approved Fund of such a Lender or (ii)
a funded Term Loan to a Person who is not a Lender, an Affiliate of a
Lender or an Approved Fund of a Lender; and
(C) the consent of each Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment
that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then
outstanding) and Swing Loan Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of
the Revolving Credit Facility;
PROVIDED that, notwithstanding any other provision of this SECTION 11.2,
the consent of Borrower shall not be required in any manner with respect to
any assignment to an Eligible Assignee if such assignment relates to the
Term Loan Facility and is made prior to the Syndication Completion Date.
(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 of $3,500, and the assignee, if it is not a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire (in a form reasonably satisfactory to the Administrative
Agent); PROVIDED that no such fee shall be required in respect of
assignments (x) made pursuant to SECTION 2.18 or SECTION 11.1(C) or (y) by
or to CS or its Affiliates; PROVIDED that for purposes of the foregoing,
simultaneous assignments by a Lender to an ▇▇▇-
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gible Assignee and one or more Approved Funds thereof shall be deemed a
single assignment.
(v) Notwithstanding any other provision of this SECTION 11.2, the
consent of the Administrative Agent shall not be required in connection
with any assignment to Sponsor, Co-Borrower, Parent, Borrower or any of
their respective Affiliates or Subsidiaries.
(vi) No such assignment shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to SECTION 2.7(C), from and after the effective date specified in each
Assignment and Assumption, the 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 SECTION 2.14, SECTION 2.15, SECTION 2.16, SECTION 2.17, SECTION
11.3, SECTION 11.4 and SECTION 11.5 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph 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 clause (d) of this SECTION 11.2.
(c) Upon its receipt of an Assignment and Assumption executed by
an assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Assumption has been completed, (i) accept such Assignment and
Assumption, (ii) record or cause to be recorded the information contained
therein in the Register and (iii) give prompt notice thereof to Borrower. Within
5 Business Days after its receipt of such notice, Borrower and/or Co-Borrower
(as applicable), at their own expense, shall, if requested by such assignee,
execute and deliver to the Administrative Agent new Notes to the order of such
assignee in an amount equal to the Commitments and Loans assumed by it pursuant
to such Assignment and Assumption and, if the assigning Lender has surrendered
any Note for exchange in connection with the assignment and has retained
Commitments or Loans hereunder, new Notes to the order of the assigning Lender
in an amount equal to the Commitments and Loans retained by it hereunder. Such
new Notes shall be dated the same date as the surrendered Notes and be in
substantially the form of EXHIBIT B-1 or EXHIBIT B-2, as applicable.
(d) Any Lender may at any time, without the consent of, or notice
to, Co-Borrower, Parent, Borrower or the Administrative Agent, sell
participations to any Person (other than a Restricted Entity or a natural person
or Co-Borrower, Parent, Borrower or any of their respective 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 Commitment and/or the Loans 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) Borrower, the Administrative Agent, the
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Lenders, each Issuer and the Swing Loan Lender shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. If Borrower consents to any Participant, such
consent shall be definitive evidence that such Participant is not a Restricted
Entity.
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, modification or waiver described in clause (iii), (iv), (v) or
(viii)(a) of the proviso to SECTION 11.1(A) that affects such Participant.
Subject to paragraph (e) of this Section, Co-Borrower, Parent and Borrower agree
that each Participant shall be entitled to the benefits of SECTION 2.14, SECTION
2.15, SECTION 2.16 and SECTION 2.17 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of SECTION 11.6 as though it were a Lender, PROVIDED such
Participant agrees to be subject to SECTION 11.7 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under SECTION 2.14, SECTION 2.15, SECTION 2.16 or SECTION 2.17 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 Borrower's prior written consent or the right to a
greater payment arises from a change in Requirements of Law after such
Participant became a Participant. A Participant that would be a Non-U.S. Lender
if it were a Lender shall not be entitled to the benefits of SECTION 2.17 unless
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of Borrower, to comply with clause (f) of
such Section as though it were a Lender.
(f) Any Lender may, without the consent of Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement 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) The Administrative Agent shall not have any responsibility for
ensuring that an assignee of, or a participant in, a Loan or Commitment is not a
Restricted Entity, and shall not have any liability in the event that Loans or
Commitments, or a participation therein, are transferred to any Restricted
Entity.
Section 11.3 COSTS AND EXPENSES
(a) Borrower and Co-Borrower agree upon demand (but within 10 days
after delivery of notice for any such amounts arising after the Initial Closing
Date) to pay, or reimburse each Agent for, all of such Agents' reasonable and
documented audit, legal, appraisal, valuation, filing, document duplication and
reproduction and investigation expenses and for all other reasonable and
documented out-of-pocket costs and expenses of every type and nature (in-
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cluding the reasonable and documented fees, expenses and disbursements of the
Administrative Agent's counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, local legal
counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisors, and other consultants and agents) incurred by each such
Agent in connection with any of the following: (i) in the case of the Collateral
Agent, the Collateral Agent's audit and investigation of Co-Borrower and its
Subsidiaries in connection with the preparation, negotiation or execution of any
Loan Document or the Collateral Agent's periodic audits of Co-Borrower or any of
its Subsidiaries, as the case may be, (ii) the preparation, negotiation,
execution or interpretation of this Agreement (including, without limitation,
the satisfaction or attempted satisfaction of any condition set forth in ARTICLE
III), any Loan Document or any proposal letter or commitment letter issued in
connection therewith after the Initial Closing Date, or the making of the Loans
hereunder, (iii) the creation, perfection or protection of the Liens under any
Loan Document (including any reasonable and documented fees, disbursements and
expenses for local counsel in various jurisdictions), (iv) the ongoing
administration of this Agreement and the Loans, including consultation with
attorneys in connection therewith and with respect to each such Agent's rights
and responsibilities hereunder and under the other Loan Documents, (v) the
protection, collection or enforcement of any Obligation or the enforcement of
any Loan Document, (vi) the commencement, defense or intervention in any court
proceeding relating in any way to the Obligations, any Loan Party, any of
Co-Borrower's Subsidiaries, the Transactions, the Closing Date Related
Documents, this Agreement or any other Loan Document, (vii) the response to, and
preparation for, any subpoena or request for document production with which such
Agent is served or deposition or other proceeding in which such Agent is called
to testify, in each case, relating in any way to the Obligations, any Loan
Party, any of Co-Borrower's Subsidiaries, the Transactions, the Closing Date
Related Documents, this Agreement or any other Loan Document or (viii) any
amendment, consent, waiver, assignment, restatement, or supplement to any Loan
Document or the preparation, negotiation and execution of the same; PROVIDED,
HOWEVER, that (x) except in connection with clauses (v) through (vii) above, the
Agents may not be reimbursed hereunder for the expenses of more than one outside
counsel between them in addition to counsel to the Collateral Agent (to the
extent the Administrative Agent and Collateral Agent are different Persons) and,
in each case, any reasonably appropriate local and special counsels (but not
more than one counsel with respect to any jurisdiction or specialty) and (y)
Borrower and Co-Borrower shall not be required to pay for the fees and expenses
of any third party consultant, appraiser or auditor advising any Agent without
the consent of Borrower (which consent shall not be unreasonably withheld).
(b) Borrower and Co-Borrower further agree to pay or reimburse
each of the Agents, Lenders and Issuers upon demand for all reasonable and
documented out-of-pocket costs and expenses, including reasonable and documented
attorneys' fees, incurred by each such Agent, Lender or Issuer in connection
with any of the following: (i) in enforcing any Loan Document or Obligation or
any security therefor or exercising or enforcing any other right or remedy
available by reason of an Event of Default, (ii) in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or in any insolvency or bankruptcy proceeding, (iii)
in commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal proceeding
relating to the Obligations, any Loan Party or any of Co-Borrower's Subsidiaries
and related to or arising out of the transactions contemplated hereby (including
the Transactions) or by any other Loan Document or Closing Date Related Document
or (iv) in taking any other action in or
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with respect to any suit or proceeding (bankruptcy or otherwise) described in
clause (i), (ii) or (iii) above.
Section 11.4 INDEMNITIES
(a) Borrower and Co-Borrower agree to indemnify and hold harmless
each Agent, each Arranger, each Lender and each Issuer (including each Person
obligated on a Hedging Contract the obligations under which are Hedging Contract
Obligations if such Person was a Lender or Issuer at the time of it entered into
such Hedging Contract) and each of their respective Affiliates, and each of the
directors, officers, employees, agents, trustees, representatives, attorneys,
consultants and advisors of or to any of the foregoing (including those retained
in connection with the satisfaction or attempted satisfaction of any condition
set forth in ARTICLE III) (each such Person being an "INDEMNITEE") from and
against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits (including suits by Co-Borrower, Parent,
Borrower or any of their respective Subsidiaries or Affiliates), and reasonable
out-of-pocket costs, disbursements and expenses, joint or several, of any kind
or nature (including reasonable fees, disbursements and expenses of financial
and legal advisors to any such Indemnitee) that may be imposed on, incurred by
or asserted against any such Indemnitee in connection with or arising out of any
investigation, litigation or proceeding, whether or not such investigation,
litigation or proceeding is brought by any such Indemnitee or any of its
directors, security holders or creditors or any such Indemnitee, director,
security holder or creditor is a party thereto, whether direct, indirect, or
consequential and whether based on any federal, state or local law or other
statutory regulation, securities or commercial law or regulation, or under
common law or in equity, or on contract, tort or otherwise, in any manner
relating to or arising out of this Agreement, any other Loan Document, any
Obligation, any Letter of Credit, any Disclosure Document, any Closing Date
Related Document, the Transactions or any act, event or transaction related or
attendant to any thereof, or the use or intended use of the proceeds of the
Loans or Letters of Credit or in connection with any investigation of any
potential matter covered hereby (collectively, the "INDEMNIFIED Matters");
PROVIDED, HOWEVER, that Borrower and Co-Borrower shall not have any liability
under this SECTION 11.4 to an Indemnitee with respect to any Indemnified Matter
to the extent such Indemnified Matter has resulted from the gross negligence or
willful misconduct of that Indemnitee or its Affiliates, officers, directors,
employees, agents or representatives, as determined by a court of competent
jurisdiction in a final non-appealable judgment or order; and PROVIDED, FURTHER,
that Borrower and Co-Borrower shall not be required to reimburse any Agent,
Lender or Issuer (in each case together with their Affiliates, officers,
directors, employees, agents, attorneys and representatives) for the expenses of
more than one counsel for each of them (in addition to the expenses of
appropriate local and special counsel). Without limiting the foregoing,
"Indemnified Matters" includes (i) all Environmental Liabilities and Costs
arising from or connected with the past, present or future operations of
Co-Borrower or any of its Subsidiaries, or any of their respective predecessors
in interest, or damage to real or personal property or natural resources or harm
or injury alleged to have resulted from any Release of Contaminants on, upon or,
into or emanating from such property or any contiguous real estate, (ii) any
costs or liabilities incurred in connection with any Remedial Action associated
with the operations or property of Co-Borrower or any of its Subsidiaries or any
of their respective predecessors in interest, (iii) any costs or liabilities
incurred in connection with any Environmental Lien and (iv) any costs or
liabilities incurred in connection with any other matter under any Environmental
Law, including CERCLA and applicable state property transfer laws, except, with
re-
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spect to those matters referred to in clauses (i), (ii), (iii) and (iv) above,
to the extent (x) incurred following foreclosure by any Agent, any Lender or any
Issuer, or any Agent, any Lender or any Issuer having become the successor in
interest to Co-Borrower or any of its Subsidiaries and (y) attributable to gross
negligence or willful misconduct of such Agent, such Lender or such Issuer.
(b) Borrower and Co-Borrower shall indemnify each Agent, Lender
and Issuer for, and hold each Agent, Lender and Issuer harmless from and
against, any and all claims for brokerage commissions, fees and other
compensation made against the Agents, the Lenders and the Issuers for any
broker, finder or consultant with respect to any agreement, arrangement or
understanding made by or on behalf of any Loan Party or any of their respective
Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Each of Co-Borrower, Parent and Borrower, at the request of
any Indemnitee, shall have the obligation to defend, and to cause each of its
Subsidiaries to defend, against any investigation, litigation or proceeding or
requested Remedial Action, in each case contemplated in clause (a) above, and
Co-Borrower, Parent, Borrower and each such Subsidiary, in any event, may
participate in the defense thereof with legal counsel of Co-Borrower's,
Parent's, Borrower's or such Subsidiary's choice. In the event that such
Indemnitee requests Co-Borrower, Parent, Borrower or any such Subsidiary to
defend against such investigation, litigation or proceeding or requested
Remedial Action, Co-Borrower, Parent, Borrower or such Subsidiary shall promptly
do so and such Indemnitee shall have the right to have legal counsel of its
choice participate in such defense. No action taken by legal counsel chosen by
such Indemnitee in defending against any such investigation, litigation or
proceeding or requested Remedial Action shall vitiate or in any way impair
Borrower's and Co-Borrower's obligations and duties hereunder to indemnify and
hold harmless such Indemnitee.
(d) Each of Co-Borrower, Parent and Borrower agrees, and shall
cause each of its Subsidiaries to agree, that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including
pursuant to this SECTION 11.4) or any other Loan Document shall (i) survive
payment in full of the Obligations and (ii) inure to the benefit of any Person
that was at any time an Indemnitee under this Agreement or any other Loan
Document.
Section 11.5 LIMITATION OF LIABILITY
(a) Each of Co-Borrower, Parent and Borrower agrees that no
Indemnitee shall have any liability (whether in contract, tort or otherwise) to
any Loan Party or any Subsidiary of any Loan Party or any of their respective
equityholders or creditors for or in connection with the transactions
contemplated hereby (including the Transactions) or by any other Loan Document
or the Closing Date Related Documents, except to the extent such liability is
determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnitee's (or its Affiliates',
officers', directors', employees', agents' or representatives') gross negligence
or willful misconduct. In no event, however, shall any party hereto be liable on
any theory of liability for any special, consequential or punitive damages
(including, without limitation, any loss of profits, business or anticipated
savings). Each of the parties hereto hereby waives, releases and agrees (each
for itself and on behalf of its Subsidiaries) not to
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▇▇▇ upon any such claim for any special, consequential or punitive damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
(b) IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO
ANY LOAN PARTY, LENDER, ISSUER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND,
INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE), ARISING OUT OF
ANY LOAN PARTY'S OR ANY AGENT AFFILIATE'S TRANSMISSION OF APPROVED ELECTRONIC
COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE APPROVED ELECTRONIC
PLATFORM, EXCEPT TO THE EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN
A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FORM SUCH AGENT AFFILIATE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Section 11.6 RIGHT OF SETOFF
Upon the occurrence and during the continuance of any Event of Default
each Lender and each Affiliate of a Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other Indebtedness at any time owing by such Lender or its
Affiliates to or for the credit or the account of Co-Borrower, Parent or
Borrower against any and all of the Obligations now or hereafter existing
whether or not such Lender shall have made any demand under this Agreement or
any other Loan Document and even though such Obligations may be unmatured. Each
Lender agrees promptly to notify Borrower after any such setoff and application
made by such Lender or its Affiliates; PROVIDED, HOWEVER, that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Lender under this SECTION 11.6 are in addition to the other
rights and remedies (including other rights of setoff) that such Lender may
have.
Section 11.7 SHARING OF PAYMENTS, ETC.
(a) If any Lender (directly or through an Affiliate thereof)
obtains any payment (whether voluntary, involuntary or through the exercise of
any right of setoff (including pursuant to SECTION 11.6 or otherwise)) of the
Loans owing to it, any interest thereon, fees in respect thereof or amounts due
pursuant to SECTION 11.3 or 11.4 (other than payments pursuant to SECTION 2.14,
2.15, 2.16 or 2.17) or otherwise receives any Collateral or any "Proceeds" (as
defined in the Pledge and Security Agreement) of Collateral (other than payments
pursuant to SECTION 2.14, 2.15, 2.16 or 2.17 (in each case, whether voluntary,
involuntary, through the exercise of any right of setoff or otherwise (including
pursuant to SECTION 11.6)) in excess of its Ratable Portion of all payments of
such Obligations obtained by all the Lenders, such Lender (a "PURCHASING
LENDER") shall forthwith purchase from the other Lenders (each, a "SELLING
LENDER") such participations in their Loans or other Obligations as shall be
necessary to cause such Purchasing Lender to share the excess payment ratably
with each of them.
(b) If all or any portion of any payment received by a Purchasing
Lender is thereafter recovered from such Purchasing Lender, such purchase from
each Selling Lender shall
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be rescinded and such Selling Lender shall repay to the Purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Selling Lender's ratable share (according to the proportion of (i) the
amount of such Selling Lender's required repayment in relation to (ii) the total
amount so recovered from the Purchasing Lender) of any interest or other amount
paid or payable by the Purchasing Lender in respect of the total amount so
recovered.
(c) Co-Borrower, Parent and Borrower agree that any Purchasing
Lender so purchasing a participation from a Selling Lender pursuant to this
SECTION 11.7 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of Borrower
and/or Co-Borrower, as the case may be, in the amount of such participation.
Section 11.8 NOTICES, ETC.
(a) ADDRESSES FOR NOTICES. All notices, demands, requests,
consents and other communications provided for in this Agreement shall be given
in writing, or by any telecommunication device capable of creating a written
record (including electronic mail), and addressed to the party to be notified as
follows:
(i) if to Co-Borrower, Parent or Borrower:
c/o ARBY'S RESTAURANT GROUP, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
Telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
with copies to:
TRIARC COMPANIES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
and
ARBY'S RESTAURANT GROUP, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
Telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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(ii) if to any Lender, at its Domestic Lending Office specified
opposite its name on SCHEDULE II or on the signature page of any applicable
Assignment and Assumption or Increase Joinder (or related document);
(iii) if to any Issuer, at the address set forth under its name on
SCHEDULE II or on the signature page of any applicable Assignment and
Assumption or Increase Joinder (or related document);
(iv) if to the Swing Loan Lender, at the address set forth under
its name on SCHEDULE II or on the signature page of any applicable
Assignment and Assumption or Increase Joinder (or related document); and
(v) if to the Administrative Agent or the Collateral Agent:
CITICORP NORTH AMERICA, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Global Loan Portfolio Management
Telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
or at such other address as shall be notified in writing (x) in the case of
Co-Borrower, Parent, Borrower, the Administrative Agent, the Collateral Agent
and the Swing Loan Lender, to the other parties and (y) in the case of all other
parties, to Borrower and the Administrative Agent.
(b) EFFECTIVENESS OF NOTICES. All notices, demands, requests,
consents and other communications described in clause (a) above shall be
effective (i) if delivered by hand, including any overnight courier service,
upon personal delivery, (ii) if delivered by mail, when deposited in the mails,
(iii) if delivered by posting to an Approved Electronic Platform, an Internet
website or a similar telecommunication device requiring a user prior access to
such Approved Electronic Platform, website or other device, when such notice,
demand, request, consent and other communication shall have been made generally
available on such Approved Electronic Platform, Internet website or similar
device to the class of Person being notified (regardless of whether any such
Person must accomplish, and whether or not any such Person shall have
accomplished, any action prior to obtaining access to such items, including
registration, disclosure of contact information, compliance with a standard user
agreement or undertaking a duty of confidentiality) and (iv) if delivered by
electronic mail or any other telecommunications device, when transmitted to an
electronic mail address (or by another means of electronic delivery) as provided
in clause (a) above; PROVIDED, HOWEVER, that notices and communications to the
Administrative Agent and the Collateral Agent pursuant to ARTICLE II or ARTICLE
X shall not be effective until received by the Administrative Agent or the
Collateral Agent, as the case may be.
(c) USE OF ELECTRONIC PLATFORM. Notwithstanding clauses (a) and
(b) above (unless the Administrative Agent or the Collateral Agent, as the case
may be, requests that the provisions of clause (a) and (b) above be followed)
and any other provision in this Agreement or any other Loan Document providing
for the delivery of any Approved Electronic Communication by any other means,
the Loan Parties shall deliver all Approved Electronic Communications
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to the Administrative Agent and the Collateral Agent by properly transmitting
such Approved Electronic Communications electronically (in a format acceptable
to the Administrative Agent or the Collateral Agent, as the case may be) to
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ or such other electronic mail address (or similar
means of electronic delivery) as the Administrative Agent or the Collateral
Agent, as the case may be, may notify Borrower. Nothing in this clause (c) shall
prejudice the right of any Agent, Lender or Issuer to deliver any Approved
Electronic Communication to any Loan Party in any manner authorized in this
Agreement.
Section 11.9 NO WAIVER; REMEDIES
No failure on the part of any Lender, Issuer or any Agent to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 11.10 BINDING EFFECT
This Agreement shall become effective when it shall have been executed
by Co-Borrower, Parent, Borrower and each Agent and when the Administrative
Agent shall have been notified by each Lender and Issuer that such Lender or
Issuer has executed it and thereafter shall be binding upon and inure to the
benefit of Co-Borrower, Parent, Borrower, each Agent and each Lender and Issuer
and, in each case, their respective successors and assigns; PROVIDED, HOWEVER,
that none of Co-Borrower, Parent nor Borrower shall have the right to assign any
of its rights hereunder or any interest herein without the prior written consent
of the Lenders.
Section 11.11 GOVERNING LAW
This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
Section 11.12 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this Agreement
or any other Loan Document may be brought in the courts of the State of New York
located in the City of New York or of the United States of America for the
Southern District of New York and, by execution and delivery of this Agreement,
each of Co-Borrower, Parent and Borrower hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The parties hereto hereby irrevocably waive any objection,
including any objection to the laying of venue or based on the grounds of FORUM
NON CONVENIENS, that any of them may now or hereafter have to the bringing of
any such action or proceeding in such respective jurisdictions.
(b) Each party hereto irrevocably consents to service of process
in any action or proceeding arising out of or relating to any Loan Document in
the manner provided for notices (other than telecopier and electronic mail) in
SECTION 11.8. Nothing in this Agreement or any other Loan Document will affect
the right of any party hereto to serve process in any other manner permitted by
applicable Requirements of Law.
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(c) Nothing contained in this SECTION 11.12 shall affect the right
of the Administrative Agent or any Lender to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against
Co-Borrower, Parent, Borrower or any other Loan Party in any other jurisdiction.
Section 11.13 WAIVER OF JURY TRIAL
EACH OF THE AGENTS, THE LENDERS, THE ISSUERS, CO-BORROWER, PARENT AND
BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Section 11.14 MARSHALING; PAYMENTS SET ASIDE
None of the Agents, Lenders or Issuers shall be under any obligation to
marshal any assets in favor of Co-Borrower, Parent, Borrower or any other party
or against or in payment of any or all of the Obligations. To the extent that
Borrower or Co-Borrower makes a payment or payments to any Agent, Lender or
Issuer or any such Person receives payment from the proceeds of the Collateral
or exercises its rights of setoff, and such payment or payments or the proceeds
of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
Section 11.15 SECTION TITLES
The section titles contained in this Agreement are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
Section 11.16 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed signature page of
this Agreement by facsimile transmission or electronic mail, or by posting on
the Approved Electronic Platform, shall be as effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all parties shall be lodged with Borrower and the Administrative
Agent.
Section 11.17 ENTIRE AGREEMENT
This Agreement, together with all of the other Loan Documents
(including, to the extent set forth therein, the Commitment Letter, dated May
27, 2005, from Citicorp, CGMI, BofA, Banc of America Securities, LLC, and CS and
accepted by Borrower and Co-Borrower)
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and all certificates and documents delivered hereunder or thereunder, embodies
the entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. In the event of any
conflict between the terms of this Agreement and any other Loan Document, the
terms of this Agreement shall govern.
Section 11.18 CONFIDENTIALITY
Each Lender and each Agent agrees to keep information obtained by it
pursuant hereto and the other Loan Documents confidential in accordance with
such Lender's or such Agent's, as the case may be, customary practices and
agrees that it shall only use such information in connection with the
transactions contemplated by this Agreement and not disclose any such
information other than (a) to such Lender's or such Agent's, as the case may be,
employees, representatives and agents that are or are expected to be involved in
the evaluation of such information in connection with the transactions
contemplated by this Agreement and are advised of the confidential nature of
such information and agree to be bound by the provisions hereof, (b) to the
extent such information presently is or hereafter becomes available to such
Lender or such Agent, as the case may be, on a non-confidential basis from a
source other than Co-Borrower, Parent, Borrower or any other Loan Party and such
Lender or Agent does not reasonably suspect that such information is disclosed
in violation of a confidentiality agreement or is otherwise unauthorized, (c) to
the extent disclosure is required by law, regulation or judicial order or
requested or required by bank regulators or auditors, as long as, to the extent
permitted by Requirements of Law, notice thereof is given to Borrower by the
applicable Lender or Agent prior to (or, in the case of a judicial order,
promptly after) such disclosure and, to the extent reasonably practicable,
Borrower is given an opportunity to pursue a protective order (and the Lenders
and Agents agree not to object to any such pursuit), or (d) to a pledgee under
SECTION 11.2(F) or current or good faith prospective assignees and Participants,
contractual counterparties in any Hedging Contract permitted hereunder and to
their respective legal or financial advisors, in each case and to the extent
such assignees, participants, grantees or counterparties agree to be bound by,
and to cause their advisors to comply with, the provisions of this SECTION
11.18. Each Lender and Agent shall be responsible for any breach of, or
non-compliance with, this SECTION 11.18 by its employees, officers and
directors.
Section 11.19 USA PATRIOT ACT NOTICE
Each Lender that is subject to the Patriot Act and each Agent (for
itself and not on behalf of any Lender) hereby notifies Borrower and Co-Borrower
that pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies Borrower and Co-Borrower, which
information includes the name, address and tax identification number of each of
Borrower and Co-Borrower and other information regarding Borrower and
Co-Borrower that will allow such Lender or Agent, as applicable, to identify
Borrower and Co-Borrower in accordance with the Patriot Act. This notice is
given in accordance with the requirements of the Patriot Act and is effective as
to each Lender and Agent.
Section 11.20 JOINT AND SEVERAL LIABILITY
Co-Borrower and Borrower shall be joint and severally liable for the
Obligations; PROVIDED, HOWEVER, that Co-Borrower shall not be liable pursuant to
this SECTION 11.20 for any
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liabilities under the Revolving Credit Facility. Nothing in the foregoing
sentence shall limit the obligations or liabilities of any party pursuant to the
Guaranty.
Section 11.21 INTEREST RATE LIMITATION.
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable Requirements
of Law (collectively, the "CHARGES"), shall exceed the maximum lawful rate (the
"MAXIMUM RATE") which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable
Requirements of Law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Rate to the date of
repayment, shall have been received by such Lender.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ARBY'S RESTAURANT GROUP, INC.
as Co-Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Associate General Counsel
ARBY'S RESTAURANT HOLDINGS, LLC,
as Co-Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Associate General Counsel
TRIARC RESTAURANT HOLDINGS, LLC,
as Parent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Associate General Counsel
CITICORP NORTH AMERICA, INC.,
as Administrative Agent, Collateral
Agent, a Lender and Swing Loan Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CITIBANK, N.A.,
as an Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.,
as Co-Syndication Agent, an Issuer
and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Co-Syndication Agent and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agent, an Issuer
and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: S.V.P.
SUNTRUST BANK,
as Co-Documentation Agent and
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director