[EXECUTION COPY]
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$30,000,000
REVOLVING CREDIT AGREEMENT,
dated as of December 17, 2001,
among
FRIENDLY ICE CREAM CORPORATION,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LISTED ON SCHEDULE I HERETO,
as the Lenders,
FLEET NATIONAL BANK,
as Administrative Agent and Documentation Agent for the Lenders,
BANK OF AMERICA, N.A.,
as Syndication Agent for the Lenders,
and
BANC OF AMERICA SECURITIES LLC and FLEET SECURITIES, INC.,
as Co-Lead Arrangers and Joint Book Runners.
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION............................................................1
1.1. DEFINITIONS..................................................................................1
1.2. RULES OF INTERPRETATION.....................................................................26
2. THE REVOLVING CREDIT FACILITY.....................................................................27
2.1. COMMITMENT TO LEND..........................................................................27
2.2. COMMITMENT FEE..............................................................................28
2.3. REDUCTION OF TOTAL COMMITMENT...............................................................28
2.4. THE REVOLVING CREDIT NOTES..................................................................28
2.5. INTEREST ON REVOLVING CREDIT LOANS..........................................................29
2.6. REQUESTS FOR REVOLVING CREDIT LOANS.........................................................29
2.7. CONVERSION OPTIONS..........................................................................30
2.8. FUNDS FOR REVOLVING CREDIT LOAN.............................................................31
2.9. SETTLEMENTS.................................................................................32
2.10. REPAYMENTS OF REVOLVING CREDIT LOANS FROM FLEET CONCENTRATION ACCOUNT
AFTER EVENT OF DEFAULT......................................................................33
3. REPAYMENT OF THE REVOLVING CREDIT LOANS...........................................................33
3.1. MATURITY....................................................................................33
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS..............................................33
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS...............................................35
3.4. APPLICATION OF PAYMENTS.....................................................................36
4. LETTERS OF CREDIT.................................................................................36
4.1. LETTER OF CREDIT COMMITMENTS................................................................36
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWER....................................................37
4.3. LETTER OF CREDIT PAYMENTS...................................................................38
4.4. OBLIGATIONS ABSOLUTE........................................................................39
4.5. RELIANCE BY ADMINISTRATIVE AGENT............................................................39
4.6. LETTER OF CREDIT FEES.......................................................................39
5. CERTAIN GENERAL PROVISIONS........................................................................40
5.1. CLOSING FEES................................................................................40
5.2. ADMINISTRATIVE AGENT'S FEE..................................................................40
5.3. FUNDS FOR PAYMENTS..........................................................................40
5.4. COMPUTATIONS................................................................................42
5.5. INABILITY TO DETERMINE EURODOLLAR RATE......................................................42
5.6. ILLEGALITY..................................................................................43
5.7. ADDITIONAL COSTS, ETC.......................................................................43
5.8. CAPITAL ADEQUACY............................................................................44
5.9. CERTIFICATE.................................................................................45
5.10. INDEMNITY...................................................................................45
5.11. INTEREST AFTER DEFAULT......................................................................45
5.12. REPLACEMENT OF LENDERS......................................................................46
5.13. MITIGATION..................................................................................46
6. COLLATERAL SECURITY AND GUARANTIES................................................................47
6.1. SECURITY OF BORROWER........................................................................47
6.2. GUARANTIES AND SECURITY OF RESTRICTED SUBSIDIARIES..........................................47
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7. REPRESENTATIONS AND WARRANTIES....................................................................47
7.1. CORPORATE AUTHORITY.........................................................................47
7.2. GOVERNMENTAL APPROVALS......................................................................48
7.3. TITLE TO PROPERTIES; LEASES.................................................................48
7.4. FINANCIAL STATEMENTS AND PROJECTIONS........................................................48
7.5. NO MATERIAL ADVERSE CHANGES, ETC............................................................49
7.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC........................................................49
7.7. LITIGATION..................................................................................49
7.8. NO MATERIALLY ADVERSE CONTRACTS, ETC........................................................49
7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC................................................50
7.10. TAX STATUS..................................................................................50
7.11. NO EVENT OF DEFAULT.........................................................................50
7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS.................................................50
7.13. ABSENCE OF FINANCING STATEMENTS, ETC........................................................50
7.14. PERFECTION OF SECURITY INTEREST.............................................................50
7.15. CERTAIN TRANSACTIONS........................................................................51
7.16. EMPLOYEE BENEFIT PLANS......................................................................51
7.17. USE OF PROCEEDS.............................................................................52
7.18. ENVIRONMENTAL COMPLIANCE....................................................................52
7.19. SUBSIDIARIES, ETC...........................................................................54
7.20. DISCLOSURE..................................................................................54
7.21. BANK ACCOUNTS...............................................................................54
8. AFFIRMATIVE COVENANTS.............................................................................54
8.1. PUNCTUAL PAYMENT............................................................................54
8.2. MAINTENANCE OF OFFICE.......................................................................55
8.3. RECORDS AND ACCOUNTS........................................................................55
8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION..........................................55
8.5. NOTICES.....................................................................................57
8.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES..................................................58
8.7. INSURANCE...................................................................................58
8.8. TAXES.......................................................................................59
8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.....................................................59
8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS......................................60
8.11. EMPLOYEE BENEFIT PLANS......................................................................60
8.12. USE OF PROCEEDS.............................................................................61
8.13. FUTURE GUARANTORS; MORTGAGED PROPERTY.......................................................61
8.14. BANK ACCOUNTS...............................................................................62
8.15. EXISTING LETTERS OF CREDIT..................................................................63
8.16. TITLE INSURANCE.............................................................................63
8.17. ENVIRONMENTAL INSURANCE.....................................................................63
8.18. SURVEYS.....................................................................................63
8.19. ADDITIONAL MORTGAGES........................................................................63
8.20. FLEET CONCENTRATION ACCOUNT AGREEMENT.......................................................63
8.21. FURTHER ASSURANCES..........................................................................63
9. CERTAIN NEGATIVE COVENANTS........................................................................64
9.1. RESTRICTIONS ON INDEBTEDNESS................................................................64
9.2. RESTRICTIONS ON LIENS.......................................................................65
9.3. RESTRICTIONS ON INVESTMENTS.................................................................69
9.4. RESTRICTED PAYMENTS.........................................................................70
9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.............................................70
9.6. SALE AND LEASEBACK..........................................................................72
9.7. COMPLIANCE WITH ENVIRONMENTAL LAWS..........................................................72
9.8. PREPAYMENTS; MODIFICATION OF CERTAIN DOCUMENTS..............................................72
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9.9. EMPLOYEE BENEFIT PLANS......................................................................73
9.10. BUSINESS ACTIVITIES.........................................................................73
9.11. FISCAL YEAR.................................................................................73
9.12. TRANSACTIONS WITH AFFILIATES................................................................73
9.13. BANK ACCOUNTS...............................................................................74
10. FINANCIAL COVENANTS...............................................................................74
10.1. INTEREST COVERAGE...........................................................................74
10.2. CAPITAL EXPENDITURES........................................................................75
10.3. MINIMUM EBITDA..............................................................................75
10.4. LEVERAGE RATIO..............................................................................76
10.5. CONSOLIDATED TANGIBLE NET WORTH.............................................................77
10.6. FIXED CHARGE COVERAGE RATIO.................................................................77
11. CLOSING CONDITIONS................................................................................77
11.1. LOAN DOCUMENTS, ETC.........................................................................77
11.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS.....................................................78
11.3. CORPORATE OR OTHER ACTION; CORPORATE STRUCTURE..............................................78
11.4. INCUMBENCY CERTIFICATE......................................................................78
11.5. VALIDITY OF LIENS...........................................................................78
11.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS..............................................79
11.7. LANDLORD CONSENTS...........................................................................79
11.8. CERTIFICATES OF INSURANCE...................................................................79
11.9. SOLVENCY CERTIFICATE........................................................................79
11.10. OPINION OF COUNSEL..........................................................................79
11.11. PAYMENT OF FEES.............................................................................79
11.12. PAYOFF LETTER...............................................................................79
11.13. MORTGAGES...................................................................................80
11.14. FEE LETTERS.................................................................................80
11.15. SECURITY INTEREST SUBORDINATION AGREEMENT...................................................80
11.16. POST-CLOSING LETTER.........................................................................80
11.17. MISCELLANEOUS...............................................................................80
12. CONDITIONS TO ALL BORROWINGS......................................................................80
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT...................................................80
12.2. NO LEGAL IMPEDIMENT.........................................................................81
12.3. PROCEEDINGS AND DOCUMENTS...................................................................81
13. EVENTS OF DEFAULT; ACCELERATION; ETC..............................................................81
13.1. EVENTS OF DEFAULT AND ACCELERATION..........................................................81
13.2. TERMINATION OF COMMITMENTS..................................................................84
13.3. REMEDIES....................................................................................84
13.4. DISTRIBUTION OF COLLATERAL PROCEEDS.........................................................84
14. THE ADMINISTRATIVE AGENT..........................................................................85
14.1. AUTHORIZATION...............................................................................85
14.2. EMPLOYEES AND ADMINISTRATIVE AGENTS.........................................................86
14.3. NO LIABILITY................................................................................86
14.4. NO REPRESENTATIONS..........................................................................86
14.5. PAYMENTS....................................................................................87
14.6. HOLDERS OF REVOLVING CREDIT NOTES...........................................................88
14.7. INDEMNITY...................................................................................88
14.8. ADMINISTRATIVE AGENT AS LENDER..............................................................88
14.9. RESIGNATION.................................................................................89
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14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT..............................................89
14.11. DUTIES IN THE CASE OF ENFORCEMENT...........................................................89
14.12. RELEASE OF COLLATERAL.......................................................................90
15. ASSIGNMENT AND PARTICIPATION......................................................................90
15.1. CONDITIONS TO ASSIGNMENT BY LENDERS.........................................................90
15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS..............................91
15.3. REGISTER....................................................................................92
15.4. NEW REVOLVING CREDIT NOTES..................................................................92
15.5. PARTICIPATIONS..............................................................................93
15.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER........................................93
15.7. MISCELLANEOUS ASSIGNMENT PROVISIONS.........................................................94
15.8. ASSIGNMENT BY BORROWER......................................................................94
16. PROVISIONS OF GENERAL APPLICATIONS................................................................94
16.1. SETOFF......................................................................................94
16.2. EXPENSES....................................................................................95
16.3. INDEMNIFICATION.............................................................................96
16.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION...............................................97
16.5. SURVIVAL OF COVENANTS, ETC..................................................................98
16.6. NOTICES.....................................................................................98
16.7. GOVERNING LAW...............................................................................99
16.8. HEADINGS....................................................................................99
16.9. COUNTERPARTS................................................................................99
16.10. ENTIRE AGREEMENT, ETC.......................................................................99
16.11. WAIVER OF JURY TRIAL.......................................................................100
16.12. CONSENTS, AMENDMENTS, WAIVERS, ETC.........................................................100
16.13. SEVERABILITY...............................................................................101
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EXHIBITS
EXHIBIT A Form of Copyright Mortgage
EXHIBIT B Form of Guaranty
EXHIBIT C Form of Mortgage
EXHIBIT D Form of Security Agreement
EXHIBIT E Form of Stock Pledge Agreement
EXHIBIT F Form of Revolving Credit Note
EXHIBIT G Form of Loan and Letter of Credit Request
EXHIBIT H Form of Assignment and Acceptance
EXHIBIT I Form of Solvency Certificate
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SCHEDULES
SCHEDULE 1(a) Lenders and Commitments
SCHEDULE 1(b) Core Mortgaged Properties
SCHEDULE 1(c) Encumbered Properties
SCHEDULE 1(d) Excess Properties
SCHEDULE 1(e) Non-Encumbered Properties
SCHEDULE 1(f) Permitted Units
SCHEDULE 1(g) Units
SCHEDULE 1(h) Existing Letters of Credit
SCHEDULE 7.3 Title to Properties; Leases
SCHEDULE 7.7 Litigation
SCHEDULE 7.14 Perfection of Security Interest
SCHEDULE 7.18 Environmental Compliance
SCHEDULE 7.19 Subsidiaries Etc.
SCHEDULE 7.21 Bank Accounts
SCHEDULE 8.19 Non-Core Mortgaged Properties
SCHEDULE 9.1 Existing Indebtedness
SCHEDULE 9.2 Existing Liens
SCHEDULE 9.2.2 Restrictions on Negative Pledges
SCHEDULE 9.3 Existing Investments
SCHEDULE 11.13 Mortgages on Core Mortgaged Properties
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REVOLVING CREDIT
AGREEMENT
This
REVOLVING CREDIT AGREEMENT, dated as of December 17,
2001, is among
FRIENDLY ICE CREAM CORPORATION, a Massachusetts corporation (the
"BORROWER"), the various financial institutions and other Persons from time to
time parties hereto listed on Schedule 1(a) attached hereto (the "LENDERS"),
FLEET NATIONAL BANK, as administrative agent for the Lenders (in such capacity,
the "ADMINISTRATIVE AGENT") and documentation agent for the Lenders (in such
capacity, the "DOCUMENTATION AGENT"), BANC OF AMERICA SECURITIES LLC and FLEET
SECURITIES, INC., as co-lead arrangers and joint book runners (collectively in
such capacities, the "CO-LEAD ARRANGERS"), and BANK OF AMERICA, N.A., as
syndication agent for the Lenders (in such capacity, the "SYNDICATION AGENT").
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth
in this Section 1 or elsewhere in the provisions of this Credit Agreement
referred to below:
ADJUSTMENT DATE. The first day of the month immediately following the
month in which a Compliance Certificate is to be delivered by the Borrower
pursuant to Section 8.4(d).
ADMINISTRATIVE AGENT. Fleet National Bank, acting as administrative
agent for the Lenders; and each other Person appointed as the successor
Administrative Agent in accordance with Section 14.9.
ADMINISTRATIVE AGENT'S FEE. See Section 5.2.
ADMINISTRATIVE AGENT'S FEE LETTER. The fee letter, dated as of the
Closing Date, between the Borrower and the Administrative Agent.
ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent's office
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other location as
the Administrative Agent may designate from time to time.
ADMINISTRATIVE AGENT'S SPECIAL COUNSEL. ▇▇▇▇▇▇▇ ▇▇▇▇ LLP or such other
counsel as may be approved by the Administrative Agent.
AFFILIATE. As to any Person, another Person which, directly or
indirectly, controls, is controlled by or is under common control with such
first Person. "Control" of the Borrower means the power, directly or indirectly,
(a) to vote ten percent (10%) or more of the Capital Stock (on a fully diluted
basis) of the Borrower having ordinary voting power for the election of
directors, managing members or general partners (as applicable); or (b) to
direct or cause the direction of the management and policies of the Borrower
(whether by contract or otherwise).
AGENCY ACCOUNT AGREEMENT. See Section 8.14.
APPLICABLE MARGIN. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "RATE
ADJUSTMENT PERIOD"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Leverage Ratio, as determined for the Reference
Period of the Borrower and its Subsidiaries ending on the fiscal quarter ended
immediately prior to the applicable Rate Adjustment Period.
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Base Rate Eurodollar Letter of
Level Leverage Ratio Loans Rate Loans Credit Fees Commitment Fee
-------------------------------------------------------------------------------------------------------------
I Greater than or equal 2.50% 4.50% 4.50% 0.50%
to 4.00:1.00
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II Less than 4.00:1.00 but 2.00% 4.00% 4.00% 0.50%
greater than or equal
to 3.50:1.00
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III Less than 3.50:1.00 1.50% 3.50% 3.50% 0.50%
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Notwithstanding the foregoing, (a) for the Loans outstanding and the
Letter of Credit Fees and the Commitment Fee payable during the period
commencing on the Closing Date through the date immediately preceding the first
Adjustment Date to occur after the fiscal quarter ending June 30, 2002, the
Applicable Margin shall be the Applicable Margin set forth in Level I above, and
(b) if the Borrower fails to deliver any Compliance Certificate pursuant to
Section 8.4(d) hereof then, for the period commencing on the next Adjustment
Date to occur subsequent to such failure through the date immediately following
the date on which such Compliance Certificate is delivered, the Applicable
Margin shall be the highest Applicable Margin set forth above.
APPLICABLE PENSION LEGISLATION. At any time, any pension or retirement
benefits legislation (be it national, federal, provincial, territorial or
otherwise) then applicable to the Borrower or any of its Subsidiaries.
APPRAISED VALUE. The valuation of any Mortgaged Property or Units
delivered to the Administrative Agent by an appraiser selected by the
Administrative Agent and using such methodology as is satisfactory to the
Administrative Agent.
ASSET SALE. Any one or series of related transactions in which the
Borrower or any of its Restricted Subsidiaries conveys, sells, leases, licenses
or otherwise disposes of (other than to the Borrower or any Restricted
Subsidiary of the Borrower), directly or indirectly, any of its properties,
businesses or assets (including the sale or issuance of capital stock of any
Restricted Subsidiary other than to the Borrower or any Restricted Subsidiary of
the Borrower) whether owned on the Closing Date or thereafter acquired.
ASSIGNMENT AND ACCEPTANCE. An assignment and acceptance substantially
in the form of EXHIBIT H hereto.
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BALANCE SHEET DATE. December 31, 2000.
BASE RATE. The higher of (a) the variable annual rate of interest so
designated from time to time by Fleet as its "PRIME RATE", such rate being a
reference rate and not necessarily representing the lowest or best rate being
charged to any customer, and (b) 0.5% above the Federal Funds Effective Rate.
For the purposes of this definition, "FEDERAL FUNDS EFFECTIVE RATE" shall mean
for any day, the rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the 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 the Administrative Agent. Changes in the Base
Rate resulting from any changes in Fleet's "PRIME RATE" shall take place
immediately without notice or demand of any kind.
BASE RATE LOANS. Revolving Credit Loans bearing interest calculated by
reference to the Base Rate.
BORROWER. As defined in the preamble hereto.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
CAPITAL ASSETS. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); PROVIDED that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.
CAPITAL EXPENDITURES. Amounts paid or Indebtedness incurred by the
Borrower or any of its Subsidiaries (excluding expenditures made in
connection with the replacement, substitution or restoration of assets to the
extent financed from insurance proceeds (or other similar recoveries) paid on
account of the loss of or damage to the assets being replaced or restored or
with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced) in connection with (a) the
purchase or lease by the Borrower or any of its Subsidiaries of Capital
Assets that would be required to be capitalized and shown on the balance
sheet of such Person in accordance with GAAP (other than Growth Capital
Expenditures paid for with the proceeds of Indebtedness permitted pursuant to
Section 9.1(c)(ii)), or (b) the lease of any assets by the Borrower or any of
its Subsidiaries as lessee under any Synthetic Lease to the extent that such
assets would have been Capital Assets had the Synthetic Lease been treated
for accounting purposes as a Capitalized Lease.
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CAPITAL STOCK. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
CAPITALIZED LEASES. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
CASH EQUIVALENTS. As to the Borrower and its Subsidiaries, (a)
securities issued or directly and fully guaranteed or insured by the United
States of America and having a maturity of not more than one (1) year from the
date of acquisition; (b) certificates of deposit, time deposits and eurodollar
time deposits with maturities of one (1) year or less from the date of
acquisition, bankers' acceptances with maturities not exceeding one (1) year and
overnight bank deposits, in each case, (i) with any Lenders or (ii) with any
domestic commercial bank organized under the laws of the United States of
America or any state thereof or a foreign subsidiary of such bank, in each case
having a rating of not less than A or its equivalent by S&P or any successor and
having capital and surplus in excess of $500,000,000; (c) repurchase obligations
with a term of not more than thirty (30) days for underlying securities of the
types described in clauses (a) and (b) above which (i) are secured by a fully
perfected security interest in any obligation of the type described in clause
(a) hereof, and (ii) have a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation of such
commercial banking institution thereunder; (d) any commercial paper or finance
company paper issued by (i) any Lender or any holding company controlling any
Lender or (ii) any other Person that is rated not less than "P-1" or "A-1" or
their equivalents by ▇▇▇▇▇'▇ or S&P or their successors; or (e) mutual funds
registered under Rule 2a-7 of the Investment Company Act of 1940 investing only
in assets described in clauses (a) through (d) of this definition.
CASUALTY EVENT. With respect to any property (including any interest in
property) of the Borrower or any of its Restricted Subsidiaries, any loss of,
damage to, or condemnation or other taking of, such property for which the
Borrower or such Restricted Subsidiary receives insurance proceeds, proceeds of
a condemnation award or other compensation.
CERCLA. See Section 7.18(a).
CHANGE OF CONTROL. (a) An event or series of events by which any person
or group of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act), directly OR indirectly, of 30% or more of the outstanding
shares of the Voting Stock of the Borrower on a fully diluted basis; or (b)
during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of the Borrower (together with
any new directors whose election to such Board of Directors or whose
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nomination for election by the stockholders of the Borrower was approved by a
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office.
CLOSING DATE. The first date on which the conditions set forth in
Section 11 have been satisfied and any Revolving Credit Loans are to be made or
any Letter of Credit is to be issued hereunder.
CLOSING FEE. See Section 5.1.
CO-LEAD ARRANGERS. Collectively, Banc of America Securities LLC and
Fleet Securities, Inc.
CODE. The Internal Revenue Code of 1986.
COLLATERAL. All of the property, rights and interests of the Borrower
and its Restricted Subsidiaries that are or are intended to be subject to the
Liens created by the Security Documents.
COMMITMENT. With respect to each Lender, the amount set forth on
SCHEDULE 1(a) hereto or in the applicable Assignment and Acceptance, in each
case as the amount of such Lender's commitment to make Revolving Credit Loans
to, and to participate in the issuance, extension and renewal of Letters of
Credit for the account of, the Borrower, as the same may be reduced from time to
time; or if such commitment is terminated pursuant to the provisions hereof,
zero.
COMMITMENT FEE. See Section 2.2.
COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1(a) hereto or in the applicable Assignment and Acceptance, in
each case as such Lender's percentage of the aggregate Commitments of all of the
Lenders.
COMPLIANCE CERTIFICATE. A certificate certified by the principal
financial or accounting officer of the Borrower and setting forth in reasonable
detail computations evidencing compliance with the covenants contained in
Section 10 and (if applicable) reconciliations to reflect changes in GAAP since
the Balance Sheet Date, in form and substance reasonably acceptable to the
Administrative Agent.
CONSOLIDATED OR CONSOLIDATED. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.
CONSOLIDATED CURRENT ASSETS. For any fiscal year of the Borrower, the
consolidated current assets of the Borrower and its consolidated Subsidiaries
determined in accordance with GAAP, MINUS, all cash and Cash Equivalents.
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CONSOLIDATED CURRENT LIABILITIES. For any fiscal year of the Borrower,
(a) the consolidated current liabilities of the Borrower and its consolidated
Subsidiaries, PLUS, (b) the current liabilities of any Person (other than the
Borrower or a consolidated Subsidiary) which are guaranteed by the Borrower or a
consolidated Subsidiary, all determined for such fiscal year in accordance with
GAAP, MINUS, the currently maturing portion of all Indebtedness.
CONSOLIDATED EBITDA. With respect to any fiscal period, an amount equal
to the sum of (a) Consolidated Net Income of the Borrower and its Subsidiaries
for such fiscal period, PLUS (b) in each case to the extent deducted in the
calculation of such Person's Consolidated Net Income and without duplication,
(i) depreciation and amortization for such period, PLUS (ii) income tax expense
for such period, PLUS (iii) Consolidated Total Interest Expense paid or accrued
during such period, PLUS (iv) other noncash charges for such period which do not
result in cash payments for any subsequent period, all as determined in
accordance with GAAP, after eliminating therefrom all extraordinary noncash
nonrecurring items of expense.
CONSOLIDATED EBITDAR. With respect to any fiscal period, an amount
equal to the sum of (a) Consolidated EBITDA of the Borrower and its Subsidiaries
for such fiscal period, PLUS, (b) Rental Expense.
CONSOLIDATED NET INCOME (OR DEFICIT). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries, after deduction of all expenses,
taxes, and other proper charges, after eliminating therefrom all extraordinary
nonrecurring items of income, each as determined in accordance with GAAP.
CONSOLIDATED TANGIBLE NET WORTH. The excess of Consolidated Total
Assets over Consolidated Total Liabilities, and less the sum of:
(a) the total book value of all assets of the Borrower properly
classified as intangible assets under GAAP, including such items as good
will, the purchase price of acquired assets in excess of the fair market
value thereof, trademarks, trade names, service marks, brand names,
copyrights, patents and licenses, and rights with respect to the foregoing;
PLUS
(b) all amounts representing any write-up in the book value of any
assets of the Borrower resulting from a revaluation thereof subsequent to
the Balance Sheet Date.
CONSOLIDATED TOTAL ASSETS. The sum of (a) all assets
("CONSOLIDATED BALANCE SHEET ASSETS") of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP, PLUS (b) without
duplication, the net value, determined in accordance with GAAP, of all assets
leased by the Borrower or any Subsidiary as lessee under any Synthetic Lease to
the extent that such assets would have been consolidated balance sheet assets
had the Synthetic Lease been treated for accounting purposes as a Capitalized
Lease.
6
CONSOLIDATED TOTAL FUNDED DEBT. With respect to the Borrower and its
Subsidiaries, the sum, without duplication, of (a) the aggregate amount of
Indebtedness of the Borrower and its Subsidiaries, on a consolidated basis,
relating to (i) the borrowing of money or the obtaining of credit, including the
issuance of Revolving Credit Notes or bonds, (ii) the deferred purchase price of
assets (other than trade payables incurred in the ordinary course of business),
(iii) in respect of any Synthetic Leases or any Capitalized Leases, and (iv) the
maximum drawing amount of all letters of credit outstanding and bankers
acceptances (excluding Letters of Credit constituting documentary letters of
credit in an aggregate stated amount not to exceed $250,000), PLUS, (b)
Indebtedness of the type referred to in clause (a) of another Person guaranteed
by the Borrower or any of its Subsidiaries, MINUS, (c) cash and Cash Equivalents
in excess of $10,000,000.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate
amount of interest required to be paid or accrued by the Borrower and its
Subsidiaries during such period on all Indebtedness of the Borrower and its
Subsidiaries outstanding during all or any part of such period, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of any
Capitalized Lease or any Synthetic Lease, and including Commitment Fees, agency
fees, facility fees, balance deficiency fees and similar fees or expenses in
connection with the borrowing of money.
CONSOLIDATED TOTAL LIABILITIES. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP and
classified as such on the consolidated balance sheet of the Borrower and its
Subsidiaries and all other Indebtedness of the Borrower and its Subsidiaries,
whether or not so classified.
CONSOLIDATED WORKING CAPITAL. For any fiscal year of the Borrower, the
amount by which Consolidated Current Assets exceeds Consolidated Current
Liabilities on the last day of such fiscal year.
CONVERSION REQUEST. A notice given by the Borrower to the
Administrative Agent of the Borrower's election to convert or continue a Loan in
accordance with Section 2.7.
COPYRIGHT MORTGAGES. The several Memorandums of Grants of Security
Interest in Copyrights made by the Borrower and its Restricted Subsidiaries in
favor of the Administrative Agent, substantially in the form of EXHIBIT A hereto
and in form and substance reasonably satisfactory to the Administrative Agent.
CORE MORTGAGED PROPERTIES. Any Real Estate listed on SCHEDULE 1(b)
hereto and any additional Real Estate pledged as "Core Mortgaged Properties"
pursuant to Section 8.13.3.
CREDIT AGREEMENT. This
Revolving Credit Agreement, including the
Schedules and Exhibits hereto.
DEBT ISSUANCE. The sale or issuance by the Borrower or any of its
Restricted Subsidiaries of any Indebtedness permitted by this Credit Agreement.
7
DEFAULT. Any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
DELINQUENT LENDER. See Section 14.5.3.
DISTRIBUTION. The declaration or payment of any dividend on or in
respect of any shares of any class of Capital Stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, defeasance, retirement or other acquisition of any shares
of any class of Capital Stock of the Borrower, directly or indirectly through a
Subsidiary of the Borrower or otherwise (including the setting apart of assets
for a sinking or other analogous fund to be used for such purpose); the return
of capital by the Borrower to its shareholders as such; or any other
distribution on or in respect of any shares of any class of Capital Stock of the
Borrower.
DOCUMENTATION AGENT. Fleet National Bank, acting as documentation agent
for the Lenders.
DOLLARS or $. Dollars in lawful currency of the United States of
America.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender
designated as such in SCHEDULE 1(a) hereto; thereafter, such other office of
such Lender, if any, located within the United States that will be making or
maintaining Base Rate Loans.
DRAWDOWN DATE. The date on which any Revolving Credit Loan is made or
is to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with Section 2.7.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
ENCUMBERED PROPERTIES. Any Real Estate listed on SCHEDULE 1(c) hereto
which is subject to any Lien granted in connection with the Sale-Leaseback
Transaction and the FFCA Mortgage Financing.
ENVIRONMENTAL LAWS. See Section 7.18(a).
EPA. See Section 7.18(b).
EQUITY ISSUANCE. The sale or issuance by the Borrower or any of its
Restricted Subsidiaries of any of its Capital Stock (other than (x) the sale or
issuance of any Capital Stock by (i) the Borrower to any Restricted Subsidiary
or (ii) any Restricted Subsidiary to the Borrower or another Restricted
Subsidiary or (y) the sale or issuance of any Capital Stock by the Borrower or
any of its Restricted Subsidiaries to any officers, directors or employees in
connection with any benefit or compensation plan).
ERISA. The Employee Retirement Income Security Act of 1974.
8
ERISA AFFILIATE. Any Person which is treated as a single employer with
the Borrower under Section 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any bank subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "EUROCURRENCY
LIABILITIES" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Lender
designated as such in SCHEDULE 1(A) hereto; thereafter, such other office of
such Lender, if any, that shall be making or maintaining Eurodollar Rate Loans.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the arithmetic average of the rates
per annum for the Reference Lender (rounded upwards to the nearest 1/16 of one
percent) of the rate at which the Reference Lender's Eurodollar Lending Office
is offered Dollar deposits two Eurodollar Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations of such Eurodollar Lending Office
are customarily conducted, for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to the
amount of the Eurodollar Rate Loan of the Reference Lender to which such
Interest Period applies, divided by (b) a number equal to 1.00 minus the
Eurocurrency Reserve Rate, if applicable.
EURODOLLAR RATE LOANS. Revolving Credit Loans bearing interest
calculated by reference to the Eurodollar Rate.
EVENT OF DEFAULT. See Section 13.1.
EXCESS CASH FLOW. For each of the 2002 and 2003 fiscal year of the
Borrower, the excess (if any), of (a) Consolidated EBITDA for such fiscal year,
OVER, (b) the sum (for such fiscal year) of (i) Consolidated Total Interest
Expense actually paid in cash by the Borrower and its Subsidiaries, (ii) actual
and accrued scheduled principal repayments, (iii) all income taxes actually paid
in cash by the Borrower and its Subsidiaries, (iv) (A) Capital Expenditures
(excluding Capital Expenditures made in
9
connection with (x) Excess Cash Flow permitted to be used to make Permitted
Excess Cash Flow Prepayments and not used to make such Permitted Excess Cash
Flow Prepayments, (y) unused proceeds in respect of any Excess Properties Sales
or (z) unused proceeds in respect of any Permitted Unit Sales) and (B) Growth
Capital Expenditures made in connection with any Permitted Acquisition
(excluding Growth Capital Expenditures in an amount equal to such portion of
such Permitted Acquisition paid for with the proceeds of Indebtedness permitted
pursuant to Section 9.1(c)(ii)), in each case actually made by the Borrower and
its Subsidiaries in such fiscal year, and (v) any net increase (or, MINUS, any
net decrease) in Consolidated Working Capital from the end of the prior fiscal
year.
EXCESS CASH FLOW ADJUSTMENT DATE. The first day of the month
immediately following the month in which a Compliance Certificate in respect of
annual financial statements is to be delivered by the Borrower pursuant to
Section 8.4(d).
EXCESS CASH FLOW PERIOD. For each of the 2002 and 2003 fiscal year of
the Borrower, the period commencing on the first Excess Cash Flow Adjustment
Date following such fiscal year through the date immediately preceeding the next
Excess Cash Flow Adjustment Date.
EXCESS PROPERTIES. Any Real Estate listed on SCHEDULE 1(d).
EXCESS PROPERTIES SALE. The sale or other disposition of any Excess
Properties by the Borrower or any Restricted Subsidiary to any Person or
business; PROVIDED, that immediately before and after giving effect to such
sale, no Event of Default shall have occurred and be continuing or would result
therefrom.
EXCLUDED PROPERTIES. Any Real Estate constituting (i) Encumbered
Properties, (ii) Excess Properties, (iii) Permitted Units and (iv) any other
Real Estate (other than Core Mortgaged Properties) to the extent the granting of
a valid and enforceable first priority Mortgage on such Real Estate would result
in the incurrence of mortgage taxes or would require the consent by the
applicable landlord prior to the granting of such Mortgage.
EXISTING CREDIT AGREEMENT. The Credit Agreement, dated as of November
17, 1997, by and among the Borrower, Societe Generale, New York Branch, as
administrative agent for the lenders and the other parties thereto, as the same
has been amended, supplemented, amended and restated or otherwise modified prior
to the Closing Date.
EXISTING LENDER. Societe Generale, New York Branch, as administrative
agent for the lenders party to the Existing Credit Agreement.
EXISTING LETTERS OF CREDIT. The letters of credit issued by Societe
Generale, New York Branch and listed on SCHEDULE 1(h).
FEE LETTERS. The Administrative Agent's Fee Letter and the Lenders' Fee
Letter.
10
FEES. Collectively, the Commitment Fee, the Letter of Credit Fees, the
Administrative Agent's Fee and the Closing Fee.
FFCA AMENDED AND RESTATED MASTER LEASE. The Amended and Restated Master
Lease, dated as of the Closing Date, by and between GECC and the Borrower.
FFCA LOAN AGREEMENTS. The loan agreements, each dated as of the Closing
Date, by and among GECC, as lender, and the SPVs, as borrowers.
FFCA MASTER LEASES. The Master Leases executed in connection with the
FFCA Mortgage Financing, each dated as of the Closing Date, by and among the
SPVs, as lessors, and the Borrower, as lessee.
FFCA MORTGAGE FINANCING. The mortgage financing transaction described
in the FFCA Loan Agreements.
FFCA MORTGAGE FINANCING DOCUMENTS. Any and all documents and
instruments delivered or executed in connection with the FFCA Mortgage Financing
(including the FFCA Amended and Restated Master Lease), as the same may be
amended, supplemented or amended and restated or otherwise modified from time to
time in accordance with Section 9.8.
FINANCIAL AFFILIATE. A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary is engaging in any of the activities
permitted by Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
Section 1843).
FIXED CHARGE COVERAGE RATIO. As of any date of determination, the ratio
of (a) Consolidated EBITDAR, MINUS, the sum of (b)(i) Capital Expenditures
(excluding Capital Expenditures made in connection with (A) Excess Cash Flow
permitted to be used to make Permitted Excess Cash Flow Prepayments and not used
to make such Permitted Excess Cash Flow Prepayments, (B) unused proceeds in
respect of any Excess Properties Sales or (C) unused proceeds in respect of any
Permitted Unit Sales), and (ii) cash income tax expense, TO, the sum of (x)
Consolidated Total Interest Expense payable in cash, (y) actual and accrued
scheduled principal repayments of Indebtedness made or accrued during such
period, and (z) Rental Expense.
FLEET. Fleet National Bank, a national banking association, in its
individual capacity.
FLEET CONCENTRATION ACCOUNT. See Section 8.14.
FLEET CONCENTRATION ACCOUNT AGREEMENT. See Section 8.14.
FOREIGN SUBSIDIARIES. Each Subsidiary of the Borrower organized under
the laws of any jurisdiction other than the United States or any state thereof.
GAAP OR GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (a) When used in
Section 10, whether directly or indirectly through reference to a capitalized
term used therein, means
11
(i) principles that are consistent with the principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors, in effect for the
fiscal year ended on the Balance Sheet Date, and (ii) to the extent consistent
with such principles, the accounting practice of the Borrower reflected in its
financial statements for the year ended on the Balance Sheet Date, and (b) when
used in general, other than as provided above, means principles that are (i)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time,
and (ii) consistently applied with past financial statements of the Borrower
adopting the same principles, PROVIDED that in each case referred to in this
definition of "GAAP" a certified public accountant would, insofar as the use of
such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes in GAAP) as to
financial statements in which such principles have been properly applied.
GECC. GE Capital Franchise Finance Corporation, a Delaware corporation.
GOVERNING DOCUMENTS. With respect to any Person, its certificate or
articles of incorporation, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its Capital Stock.
GOVERNMENTAL AUTHORITY. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
GROWTH CAPITAL EXPENDITURES. Amounts paid or Indebtedness incurred by
the Borrower or any of its Subsidiaries in connection with the purchase or lease
by the Borrower or any of its Subsidiaries of any restaurant locations other
than the Units set forth on SCHEDULE 1(g) on the Closing Date.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTY. The Guaranty made by each Restricted Subsidiary of the
Borrower in favor of the Lenders and the Administrative Agent, pursuant to which
each Restricted Subsidiary of the Borrower guaranties to the Lenders and the
Administrative Agent the payment and performance of the Obligations,
substantially in the form of EXHIBIT B hereto and in form and substance
satisfactory to the Administrative Agent.
HAZARDOUS SUBSTANCES. See Section 7.18(b).
INDEBTEDNESS. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed;
12
(b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses;
(c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person;
(d) every obligation of such Person issued or assumed as
the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable
or accrued liabilities arising in the ordinary course of business which
are not overdue or which are being contested in good faith);
(e) every obligation of such Person under any Capitalized
Lease;
(f) every obligation of such Person under any Synthetic
Lease;
(g) all sales by such Person of (i) accounts or general
intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively "RECEIVABLES"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating
thereto or a disposition of defaulted receivables for collection and
not as a financing arrangement, and together with any obligation of
such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith;
(h) every obligation of such Person (an "EQUITY RELATED
PURCHASE OBLIGATION") to purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock issued by such Person or any
rights measured by the value of such Capital Stock;
(i) every net obligation of such Person under any forward
contract, futures contract, swap, option or other financing agreement
or arrangement (including, without limitation, caps, floors, collars
and similar agreements), the value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices (a
"DERIVATIVE CONTRACT");
(j) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor and such terms are
enforceable under applicable law; and
(k) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or
otherwise acting as
13
surety for, any obligation of a type described in any of clauses (a)
through (j) (the "PRIMARY OBLIGATION") of another Person (the "PRIMARY
OBLIGOR"), in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase of) any
security for the payment of such primary obligation, (ii) to purchase
property, securities or services for the purpose of assuring the
payment of such primary obligation, or (iii) to maintain working
capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to
pay such primary obligation.
The "AMOUNT" or "PRINCIPAL AMOUNT" of any Indebtedness at any time of
determination represented by (t) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (u) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (v) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrower or any of its wholly-owned Subsidiaries)
thereof, excluding amounts representative of yield or interest earned on such
investment, (w) any Synthetic Lease shall be the stipulated loss value,
termination value or other equivalent amount, (x) any derivative contract
referred to in clause (i) shall be the maximum amount (after giving effect to
netting) of any termination or loss payment required to be paid by such Person
if such derivative contract were, at the time of determination, to be terminated
by reason of any event of default or early termination event thereunder, whether
or not such event of default or early termination event has in fact occurred,
(y) any equity related purchase obligation shall be the maximum fixed redemption
or purchase price thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price and (z) any guaranty or other
contingent liability referred to in clause (k) shall be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
guaranty or other contingent obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith, in each case subject to any limitation contained in such
guaranty or other contingent liability.
INELIGIBLE SECURITIES. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
INTEREST COVERAGE RATIO. As of any date of determination, the ratio of
(a) Consolidated EBITDA, TO, (b) Consolidated Total Interest Expense. --
INTEREST PAYMENT DATE. (a) As to any Base Rate Loan, the last day of
the calendar quarter with respect to interest accrued during such quarter,
including, without limitation, the quarter which includes the Drawdown Date of
such Base Rate Loan; and (b) as to any Eurodollar Rate Loan in respect of which
the Interest Period is (i) 3 months or less, the last day of such Interest
Period and (ii) more than 3 months, the date that is 3
14
months from the first day of such Interest Period and, in addition, the last day
of such Interest Period.
INTEREST PERIOD. With respect to each Revolving Credit Loan, (a)
initially, the period commencing on the Drawdown Date of such Loan and ending on
the last day of one of the periods set forth below, as selected by the Borrower
in a Loan and Letter of Credit Request or as otherwise required by the terms of
this Credit Agreement (i) for any Base Rate Loan, the last day of the calendar
quarter; and (ii) for any Eurodollar Rate Loan, 1, 2, 3 or 6 months; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Revolving Credit Loan and ending on the last
day of one of the periods set forth above, as selected by the Borrower in a
Conversion Request; PROVIDED that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(a) if any Interest Period with respect to a Eurodollar
Rate Loan would otherwise end on a day that is not a Eurodollar
Business Day, that Interest Period shall be extended to the next
succeeding Eurodollar Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding
Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided
in Section 2.7, the Borrower shall be deemed to have requested a
conversion of the affected Eurodollar Rate Loan to a Base Rate Loan and
the continuance of all Base Rate Loans as Base Rate Loans on the last
day of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar 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 Eurodollar Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond
the Revolving Credit Loan Maturity Date shall end on the Revolving
Credit Loan Maturity Date.
INTEREST RATE AGREEMENT. Any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, interest rate futures
contract, interest rate option agreement or other similar agreement or
arrangement to which the Borrower and any Lender is a party, designed to protect
the Borrower against fluctuations in interest rates.
INTERIM CONCENTRATION ACCOUNT. See Section 8.14.
15
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property (other than
in the ordinary course of business) to, or in respect of any guaranties (or
other commitments as described under Indebtedness), or obligations of, any other
Person. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a guaranty
(subject to any limitation contained in such guaranty) shall be taken at not
less than the principal amount of the obligations guaranteed and still
outstanding; (b) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (c)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise; and
(d) there shall not be deducted from the aggregate amount of Investments any
decrease in the value thereof.
LENDER AFFILIATE. (a) With respect to any Lender, (i) an Affiliate of
such Lender or (ii) any entity (whether a corporation, partnership, limited
liability company, trust or legal entity) that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of credit in
the ordinary course of its business and is administered or managed by such
Lender or an Affiliate of such Lender and (b) with respect to any Lender that is
a fund which invests in bank loans and similar extensions of credit, any other
entity (whether a corporation, partnership, limited liability company, trust or
other legal entity) that is a fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
LENDERS' FEE LETTER. The fee letter, dated as of the Closing Date,
among Fleet, Bank of America, N.A., First Massachusetts Bank, N.A. and the
Borrower.
LENDERS. Fleet and the other lending institutions listed on SCHEDULE
1(a) hereto and any other Person who becomes an assignee of any rights and
obligations of a Lender pursuant to Section 15.
LETTER OF CREDIT. See Section 4.1.1.
LETTER OF CREDIT APPLICATION. See Section 4.1.1.
LETTER OF CREDIT FEE. The fees set forth in Section 4.6.
LETTER OF CREDIT PARTICIPATION. See Section 4.1.4.
LEVERAGE RATIO. As at any date of determination, the ratio of (a)
Consolidated Total Funded Debt outstanding on such date, TO, (b) Consolidated
EBITDA for the Reference Period ending on such date.
LIEN. Any mortgage, deed of trust, security interest, pledge,
hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien
(statutory, judgment or otherwise), or other security agreement or preferential
16
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Capitalized Lease, any Synthetic Lease, any
financing lease involving substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC or comparable
law of any jurisdiction).
LOAN DOCUMENTS. This Credit Agreement, the Revolving Credit Notes, the
Letter of Credit Applications, the Compliance Certificate, the Letters of
Credit, the Mortgages, the Copyright Mortgage, the Trademark Assignments, the
Fee Letters, each agreement pursuant to which the Administrative Agent is
granted a Lien to secure Obligations (including, without limitation, the
Security Documents) and each other agreement, certificate, document or
instrument delivered in connection with any Loan Document, whether or not
specifically mentioned herein or therein, in each case as amended, supplemented,
amended and restated or otherwise modified from time to time.
LOAN AND LETTER OF CREDIT REQUEST. A written notice of each Revolving
Credit Loan and Letter of Credit requested pursuant to this Credit Agreement,
substantially in the form of EXHIBIT G hereto.
LOANS. Collectively, the Revolving Credit Loans and the Swing Line
Loans.
LOCAL ACCOUNT. See Section 8.14.
MATERIAL ADVERSE EFFECT. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
(a) a material adverse effect on the business, assets,
liabilities (actual or contingent), condition (financial or otherwise),
operations or prospects of the Borrower and its Subsidiaries, taken as
a whole;
(b) a material adverse effect on the ability of the Borrower
or any of its Subsidiaries taken as a whole, to perform any of their
respective Obligations under any of the Loan Documents to which it is
a party; or
(c) any material impairment of the validity, binding effect
or enforceability of this Credit Agreement or any of the other Loan
Documents, any material impairment of the rights, remedies or benefits
available to the Administrative Agent or any Lender under any Loan
Document or any material impairment of the attachment, perfection or
priority of any Lien of the Administrative Agent under the Security
Documents.
MAXIMUM DRAWING AMOUNT. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
MINIMUM AGGREGATE APPRAISAL AMOUNT. At any time of determination, the
Total Commitment, MUTIPLIED BY, 2.25.
17
▇▇▇▇▇'▇. ▇▇▇▇▇'▇ Investors Services, Inc.
MORTGAGED PROPERTY. Any Real Estate which is subject to any Mortgage.
MORTGAGES. The several mortgages and deeds of trust from the Borrower
and its Restricted Subsidiaries to the Administrative Agent with respect to the
fee and leasehold interests of the Borrower and its Restricted Subsidiaries in
the Real Estate, substantially in the form of EXHIBIT C hereto and in form and
substance reasonably satisfactory to the Administrative Agent.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
NET CASH DEBT ISSUANCE PROCEEDS. With respect to any Debt Issuance of
any Person, the excess of the gross cash proceeds received by such Person for
such Debt Issuance after deduction of all reasonable and customary transaction
expenses (including, without limitation, underwriting discounts and commissions)
actually incurred in connection with such a sale or other issuance.
NET CASH EQUITY ISSUANCE PROCEEDS. With respect to any Equity Issuance
of any Person, the excess of the gross cash proceeds received by such Person for
such Equity Issuance after deduction of all reasonable and customary transaction
expenses (including, without limitation, underwriting discounts and commissions)
actually incurred in connection with such a sale or other issuance.
NET CASH SALE PROCEEDS. The net cash proceeds received by a Person in
respect of any Asset Sale, less the sum of (a) all reasonable out-of-pocket
fees, commissions and other reasonable and customary direct expenses actually
incurred in connection with such Asset Sale, including the amount of any taxes
required to be paid by such Person in connection with such Asset Sale, (b) the
aggregate amount of cash so received by such Person which is required to be used
to retire (in whole or in part) any Indebtedness (other than under the Loan
Documents) of such Person permitted by this Credit Agreement that was secured by
a lien or security interest permitted by this Credit Agreement having priority
over the liens and security interests (if any) of the Administrative Agent (for
the benefit of the Administrative Agent and the Lenders) with respect to such
assets transferred and which is required to be repaid in whole or in part (which
repayment, in the case of any other revolving credit arrangement or multiple
advance arrangement, reduces the commitment thereunder) in connection with such
Asset Sale, and (c) amounts to be provided by the Borrower or any Subsidiary, as
the case may be, as a reserve against any liabilities associated with the assets
sold or disposed of in such Asset Sale and retained by the Borrower or such
Subsidiary, as the case may be, after such Asset Sale, including pension and
other post-employment benefit liabilities and liabilities related to
environmental matters and liabilities under any indemnification obligation
associated with the assets sold or disposed of in such Asset Sale; PROVIDED,
that (x) the Borrower shall notify the Administrative Agent on or prior to the
date of such Asset Sale of the amount of such reserve, and (y) the amount of
such reserve shall be reasonably acceptable to the Administrative Agent.
18
NET CASUALTY PROCEEDS. With respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by the Borrower or any
of its Restricted Subsidiaries in connection with such Casualty Event,
individually or in the aggregate over the course of a fiscal year (net of all
reasonable and customary collection expenses thereof).
NON-ENCUMBERED PROPERTIES. Any Real Estate listed on SCHEDULE 1(E) (as
such Schedule may be amended from time prior to 60 days after the Closing Date)
hereto which is not subject to any Mortgage and is not otherwise subject to any
Lien granted in connection with the Sale-Leaseback Transaction, the FFCA
Mortgage Financing or otherwise existing thereon.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of
the Borrower and its Subsidiaries to any of the Lenders and the Administrative
Agent, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement, any of the other Loan Documents (including
any fees or any interest accruing during, or which would have accrued but for,
the pendency of any proceeding of the type described in Section 13.1(h)), any
Interest Rate Agreement, any cash management services provided by any Lender or
in respect of any of the Loans made or Reimbursement Obligations incurred or any
of the Revolving Credit Notes, the Letter of Credit Applications, the Letters of
Credit, or other instruments at any time evidencing any thereof.
OPERATING ACCOUNT. See Section 2.6.2.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
PERFECTION CERTIFICATES. The Perfection Certificates as defined in the
Security Agreements.
PERMITTED ACQUISITIONS. Any purchase or lease by the Borrower or any of
its Restricted Subsidiaries of not more than five (5) restaurant locations in
the aggregate at any time prior to the Revolving Credit Loan Maturity Date in
which the following conditions are satisfied:
(a) immediately before and after giving effect to such
purchase or lease, no Default shall have occurred and be continuing or
would result therefrom;
(b) the Borrower shall have delivered to the Administrative
Agent a Compliance Certificate for the period of four full fiscal
quarters immediately preceding such acquisition (prepared in good
faith and in a manner and using such methodology which is consistent
with the most recent financial statements
19
delivered pursuant to Section 8.4) giving PRO FORMA effect to the
consummation of such purchase or lease and evidencing compliance with
the covenants set forth in Section 10;
(c) the Permitted Acquisitions shall not exceed $7,000,000 in
the aggregate; and
(d) no less than 70% of any Permitted Acquisition shall be
paid with the proceeds of Indebtedness permitted pursuant to Section
9.1(c)(ii).
PERMITTED EXCESS CASH FLOW PREPAYMENTS. For any Excess Cash Flow
Period, the prepayment, redemption or repurchase of any of the Indebtedness
outstanding under the Senior Note Indenture by the Borrower with the proceeds of
Excess Cash Flow pursuant to Section 9.8(a)(ii) in which the following
conditions are satisfied:
(a) immediately before and after giving effect to such
prepayment, redemption or repurchase, no Default shall have occurred
and be continuing or would result therefrom (including pursuant to
Section 8.4);
(b) the Borrower shall have delivered to the Administrative
Agent a Compliance Certificate for the period of four full fiscal
quarters immediately preceding such prepayment, redemption or
repurchase (prepared in good faith and in a manner and using such
methodology which is consistent with the most recent financial
statements delivered pursuant to Section 8.4) giving PRO FORMA effect
to the consummation of such prepayment, redemption or repurchase and
evidencing compliance with the covenants set forth in Section 10;
(c) immediately after such prepayment, redemption or
repurchase, the Borrower shall have available to it cash and Cash
Equivalents in an aggregate amount not less than $11,000,000 (it being
understood that any Loans made pursuant to the Credit Agreement shall
be deemed excluded for purposes of the limitation contained in this
clause (c));
(d) immediately before and after giving effect to such
prepayment, redemption or repurchase, the Fixed Charge Coverage Ratio
shall be greater or equal to 1.20:1.00;
(e) for a period of ninety days prior to such prepayment,
redemption or repurchase, the average daily amount of outstanding Loans
for such period shall not exceed an amount equal to $5,000,000;
(f) the amount of all Permitted Excess Cash Flow Prepayments
for any Excess Cash Flow Period shall not exceed 50% of Excess Cash
Flow in the aggregate (PROVIDED, that any Excess Cash Flow permitted
to be carried forward pursuant to Section 9.8(a) shall not be included
for purposes of this clause (f)); and
(g) the prepayment, redemption or repurchase of any of the
Indebtedness outstanding under the Senior Note Indenture by the
Borrower shall be at or below par.
20
PERMITTED LIENS. Liens permitted by Section 9.2.
PERMITTED INTERCOMPANY SALES. The sale or other disposition of assets
(a) by the Borrower to any Restricted Subsidiary or (b) by any Restricted
Subsidiary to the Borrower or any other Restricted Subsidiary, in each case in
which the following conditions are satisfied:
(a) immediately before and after giving effect to such sale,
no Default shall have occurred and be continuing or would result
therefrom; and
(b) the Permitted Intercompany Sales shall not exceed
$5,000,000 in the aggregate.
PERMITTED UNITS. The restaurant or other locations listed on SCHEDULE
1(f) owned or leased by the Borrower or any of its Subsidiaries as of the
Closing Date (as such Schedule may be amended by the Borrower from time to
time).
PERMITTED UNIT SALES. The sale or other disposition of a Permitted Unit
by the Borrower or any Restricted Subsidiary to any Person or business in which
the following conditions are satisfied:
(a) immediately before and after giving effect to such sale,
no Default shall have occurred and be continuing or would result
therefrom;
(b) the Permitted Unit Sales shall not exceed $3,500,000 in
the aggregate; and
(c) each Permitted Unit Sale is for fair market value and the
consideration received consists of no less than 80% in cash.
PERSON. Any individual, corporation, limited liability company,
partnership, limited liability partnership, trust, other unincorporated
association, business, or other legal entity, and any Governmental Authority.
RCRA. See Section 7.18(a).
REAL ESTATE. All real property (including any attendant fixtures) at
any time owned or leased (as lessee or sublessee) by the Borrower or any of its
Restricted Subsidiaries.
RECORD. The grid attached to a Revolving Credit Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by any Lender with respect to any Loan referred to in such
Revolving Credit Note.
REFERENCE LENDER. Fleet.
21
REFERENCE PERIOD. With respect to any fiscal quarter, the period
comprising such fiscal quarter and the three immediately preceding fiscal
quarters treated as a single accounting period.
REGISTER. See Section 15.3.
REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the
Administrative Agent and the Lenders on account of any drawing under any Letter
of Credit as provided in Section 4.2.
RENTAL EXPENSE. All payments made or required to be made by the
Borrower or any of its Subsidiaries, as lessee or sublessee under any operating
lease of real or personal property as rental payments and contingent rentals, in
each case, as calculated in accordance with GAAP, MINUS, rental income of the
Borrower and its Subsidiaries paid in cash from any operating sublease of real
property.
REQUIRED LENDERS. As of any date, the Lenders holding at least 66.7% of
the outstanding principal amount of the Revolving Credit Notes and if no such
principal is outstanding, the Lenders whose aggregate Commitments constitute at
least 66.7% of the Total Commitment.
RESTRICTED PAYMENT. In relation to the Borrower and its Subsidiaries,
any (a) Distribution, (b) payment or prepayment in respect of Capital Stock by
the Borrower or its Subsidiaries to the Borrower's or any Subsidiary's
shareholders (or other equity holders), in each case, other than (i) to the
Borrower, or to any Affiliate of the Borrower or any Subsidiary or any Affiliate
of the Borrower's or such Subsidiary's shareholders (or other equity holders),
in each case, other than to the Borrower or (ii) made in connection with the
Senior Note Tender Offer, or (c) derivatives or other transactions with any
financial institution, commodities or stock exchange or clearinghouse (a
"DERIVATIVES COUNTERPARTY") obligating the Borrower or any Restricted Subsidiary
to make payments to such Derivatives Counterparty as a result of any change in
market value of any Capital Stock of the Borrower or such Subsidiary.
RESTRICTED SUBSIDIARY. Each Subsidiary that is not an Unrestricted
Subsidiary.
REVOLVING CREDIT LOAN MATURITY DATE. December 17, 2004.
REVOLVING CREDIT LOANS. Revolving credit loans made or to be made by
the Lenders to the Borrower pursuant to Section 2.
REVOLVING CREDIT NOTE RECORD. A Record with respect to a Revolving
Credit Note.
REVOLVING CREDIT NOTES. The revolving promissory notes of the Borrower
in substantially the form of EXHIBIT F attached hereto.
22
SALE-LEASEBACK TRANSACTION. The sale-leaseback transaction as evidenced
and otherwise described in the Purchase Agreement and Escrow Instructions, dated
as of the Closing Date, by and among Realty Income Corporation, as buyer, and
the Borrower, as seller.
SALE-LEASEBACK TRANSACTION DOCUMENTS. Any and all documents and
instruments delivered or executed in connection with the Sale Leaseback
Transaction, as the same may be amended, supplemented or amended and restated or
otherwise modified from time to time in accordance with Section 9.8.
SECURITY INTEREST SUBORDINATION AGREEMENTS. Each of (a) the Security
Interest Subordination Agreements, dated as of the Closing Date, among the SPVs,
the Borrower and the Administrative Agent, and (b) the Security Interest
Subordination Agreement, dated as of the Closing Date, among GECC, the Borrower
and the Administrative Agent.
S&P. Standard & Poor's Ratings Group.
▇▇▇▇. See Section 7.18(a).
SEC. The Securities and Exchange Commission.
SECURITY AGREEMENTS. The several Security Agreements between the
Borrower and its Restricted Subsidiaries and the Administrative Agent,
substantially in the form of EXHIBIT D hereto and in form and substance
reasonably satisfactory to the Administrative Agent.
SECURITY DOCUMENTS. The Guaranty, the Security Agreements, the
Mortgages, the Trademark Assignments, the Copyright Mortgages, the Stock Pledge
Agreement and all other instruments and documents, including without limitation
Uniform Commercial Code financing statements, required to be executed or
delivered pursuant to any Security Document.
SENIOR NOTE INDENTURE. The Senior Note Indenture, dated as of November
17, 1997, by and among the Borrower, The Bank of New York, as trustee for the
holders, and the other parties thereto.
SENIOR NOTE TENDER OFFER. The tender offer commenced by the Borrower in
an amount not to exceed more than $21,273,000 of the aggregate amount
outstanding under the senior notes issued pursuant to the Senior Note Indenture.
SETTLEMENT. The making or receiving of payments, in immediately
available funds, by the Lenders, to the extent necessary to cause each Lender's
actual share of the outstanding amount of Revolving Credit Loans (after giving
effect to any Loan and Letter of Credit Request) to be equal to such Lender's
Commitment Percentage of the outstanding amount of such Revolving Credit Loans
(after giving effect to any Loan and Letter of Credit Request), in any case
where, prior to such event or action, the actual share is not so equal.
23
SETTLEMENT AMOUNT. See Section 2.9.1.
SETTLEMENT DATE. (a) The Drawdown Date relating to any Loan and Letter
of Credit Request, (b) Friday of each week, or if a Friday is not a Business
Day, the Business Day immediately following such Friday, (c) at the option of
the Administrative Agent, on any Business Day following a day on which the
account officers of the Administrative Agent active upon the Borrower's account
become aware of the existence of an Event of Default, (d) any Business Day on
which the amount of Revolving Credit Loans outstanding from Fleet PLUS Fleet's
Commitment Percentage of the sum of the Maximum Drawing Amount and any Unpaid
Reimbursement Obligations is equal to or greater than Fleet's Commitment
Percentage of the Total Commitment, (e) any day on which any conversion of a
Base Rate Loan to a Eurodollar Rate Loan occurs, and (f) any Business Day on
which (i) the amount of outstanding Revolving Credit Loans decreases and (ii)
the amount of the Administrative Agent's Revolving Credit Loans outstanding
equals zero Dollars ($0).
SETTLING LENDER. See Section 2.9.1.
SOLVENCY CERTIFICATE. A solvency certificate substantially in the form
of EXHIBIT I hereto.
SPV. Collectively, Friendly's Realty I, LLC, a Delaware limited
liability company, Friendly's Realty II, LLC, a Delaware limited liability
company, and Friendly's Realty III, LLC, a Delaware limited liability company,
or one or more successor special purpose vehicles which hold title to any of the
assets held by the SPVs existing on the Closing Date.
STOCK PLEDGE AGREEMENT. The Stock Pledge Agreement between the Borrower
and its Restricted Subsidiaries, if applicable, and the Administrative Agent,
substantially in the form of EXHIBIT E hereto and in form and substance
reasonably satisfactory to the Administrative Agent.
SUBSIDIARY. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
SURVEY. In relation to the manufacturing plant and headquarters located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, an instrument survey for
such property dated as of a date subsequent to the Closing Date, which shall
show the location of all buildings, structures, easements and utility lines on
such property, shall be sufficient to remove the survey exception from the Title
Policy, shall show that all buildings and structures are within the lot lines of
such property, shall not show any encroachments by others, shall show the zoning
district or districts in which such property is located, shall show any flood
hazard district as established by the Federal Emergency Management Agency or any
successor agency or equivalent of any other Governmental Authority and shall
show whether such property is located in any flood
24
plain, flood hazard or wetland protection district established by any
Governmental Authority.
SURVEYOR CERTIFICATE. In relation to each Mortgaged Property for which
a Survey has been conducted, a certificate executed by the surveyor who prepared
such Survey dated as of a recent date and containing such information relating
to such Mortgaged Property as the Administrative Agent or the Title Insurance
Company may require, such certificate to be satisfactory to the Administrative
Agent in form and substance.
SWING LINE LOANS. See Section 2.6.2.
SYNDICATION AGENT. Bank of America, N.A.
SYNTHETIC LEASE. Any lease of goods or other property, whether real or
personal, which is treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.
TITLE INSURANCE COMPANY. Commonwealth Title Insurance Company or
Lawyers Title Insurance Company, each a wholly-owned subsidiary of Landamerica
Title Insurance Company.
TITLE POLICY. In relation to each Core Mortgaged Property, an ALTA
standard form title insurance policy issued by the Title Insurance Company (with
such reinsurance or co-insurance as the Administrative Agent may require, any
such reinsurance to be with direct access endorsements) in such amount as may be
determined by the Administrative Agent insuring the priority of the Mortgage of
such Core Mortgaged Property and that the Borrower or one of its Restricted
Subsidiaries holds marketable fee simple or leasehold title, as the case may be,
to such Core Mortgaged Property, subject only to the encumbrances permitted by
such Mortgage and which shall not contain exceptions for mechanics liens,
persons in occupancy (except Borrower) or, in respect of the manufacturing plant
and headquarters located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
matters which would be shown by a survey (except as may be permitted by such
Mortgage), shall not insure over any matter except to the extent that any such
affirmative insurance is reasonably acceptable to the Administrative Agent in
its reasonable discretion, and shall contain such endorsements and affirmative
insurance as the Administrative Agent in its reasonable discretion may require,
but only to the extent available, including but not limited to (a) comprehensive
endorsement, (b) variable rate of interest endorsement, (c) usury endorsement,
(d) revolving credit endorsement and (e) doing business endorsement.
TOTAL COMMITMENT. The sum of the Commitments of the Lenders, as in
effect from time to time, and which shall be in an aggregate principal amount
not to exceed $30,000,000.
TRADEMARK ASSIGNMENTS. The several Trademark Assignments made by the
Borrower and its Restricted Subsidiaries in favor of the Administrative Agent
and the
25
Assignments of Trademarks and Service Marks executed in connection therewith in
form and substance reasonably satisfactory to the Administrative Agent.
TYPE. As to any Revolving Credit Loan, its nature as a Base Rate Loan
or a Eurodollar Rate Loan.
UNITS. The restaurant locations listed on SCHEDULE 1(g) constituting
all restaurant locations owned or leased by the Borrower or any of its
Subsidiaries as of the Closing Date.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which
the Borrower does not reimburse the Administrative Agent and the Lenders on the
date specified in, and in accordance with, Section 4.2.
UNRESTRICTED SUBSIDIARY. Restaurant Insurance Corporation, the SPVs,
any Foreign Subsidiary or any other Subsidiary designated as an Unrestricted
Subsidiary and formed in compliance with Section Section 9.3(i) and 9.5.
VOTING STOCK. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by GAAP applied on a consistent basis by the
accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by GAAP,
which terms are defined in the Uniform Commercial Code as in effect in the
Commonwealth
26
of Massachusetts, have the meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of the Uniform Commercial
Code.
(h) Reference to a particular "Section " refers to that
section of this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation
of periods of time from a specified date to a later specified date, the
word "from" means "from and including," the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may
use several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements are,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are
the result of negotiation among, and have been reviewed by counsel to,
among others, the Administrative Agent and the Borrower and are the product
of discussions and negotiations among all parties. Accordingly, this Credit
Agreement and the other Loan Documents are not intended to be construed
against the Administrative Agent or any of the Lenders merely on account of
the Administrative Agent's or any Lender's involvement in the preparation
of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Lenders severally agrees to lend to the
Borrower, and the Borrower may borrow, repay, and reborrow from time to time
from the Closing Date up to but not including the Revolving Credit Loan Maturity
Date upon notice by the Borrower to the Administrative Agent given in accordance
with Section 2.6, such sums as are requested by the Borrower up to a maximum
aggregate amount outstanding (after giving effect to all amounts requested) at
any one time equal to such Lender's Commitment MINUS such Lender's Commitment
Percentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations, PROVIDED that the sum of the outstanding amount of the Revolving
Credit Loans (after giving effect to all amounts requested) PLUS the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not at any time
exceed the Total Commitment at such time. The Revolving Credit Loans shall be
made PRO RATA in accordance with each Lender's Commitment Percentage. Each
request for a Revolving Credit Loan hereunder shall constitute a representation
and warranty by the Borrower that the conditions set forth in Section 11 and
Section 12, in the case of the initial Revolving Credit Loans to be made on the
Closing
27
Date, and Section 12, in the case of all other Revolving Credit Loans, have been
satisfied on the date of such request.
2.2. COMMITMENT FEE. The Borrower agrees to pay to the Administrative
Agent for the accounts of the Lenders in accordance with their respective
Commitment Percentages a commitment fee (the "COMMITMENT FEE") calculated at the
rate per annum of the Applicable Margin with respect to the Commitment Fee as in
effect from time to time on the average daily amount during each calendar
quarter or portion thereof from the date hereof, Closing Date or other
applicable date to the Revolving Credit Loan Maturity Date by which the Total
Commitment minus the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the outstanding amount of Revolving Credit
Loans during such calendar quarter. The Commitment Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Revolving Credit Loan
Maturity Date or any earlier date on which the Commitments shall terminate.
2.3. REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the right
at any time and from time to time upon five (5) Business Days' prior written
notice to the Administrative Agent to reduce by $1,000,000 or an integral
multiple thereof or to terminate entirely the Total Commitment whereupon the
Commitments of the Lenders shall be reduced PRO RATA in accordance with their
respective Commitment Percentages of the amount specified in such notice or, as
the case may be, terminated. Promptly after receiving any notice of the Borrower
delivered pursuant to this Section 2.3, the Administrative Agent will notify the
Lenders of the substance thereof. Upon the effective date of any such reduction
or termination, the Borrower shall pay to the Administrative Agent for the
respective accounts of the Lenders the full amount of any Commitment Fee then
accrued on the amount of the reduction. No reduction or termination of the
Commitments may be reinstated.
2.4. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate Revolving Credit Notes, dated as of the Closing Date (or
such other date on which a Lender may become a party hereto in accordance with
Section 15 hereof) and completed with appropriate insertions. One Revolving
Credit Note shall be payable to the order of each Lender in a principal amount
equal to such Lender's Commitment or, if less, the outstanding amount of all
Revolving Credit Loans made by such Lender, plus interest accrued thereon, as
set forth below. The Borrower irrevocably authorizes each Lender to make or
cause to be made, at or about the time of the Drawdown Date of any Revolving
Credit Loan or at the time of receipt of any payment of principal on such
Lender's Revolving Credit Note, an appropriate notation on such Lender's
Revolving Credit Note Record reflecting the making of such Revolving Credit Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Revolving Credit Loans set forth on such Lender's Revolving Credit Note
Record shall be PRIMA FACIE evidence of the principal amount thereof owing and
unpaid to such Lender absent manifest error, but the failure to record, or any
error in so recording, any such amount on such Lender's Revolving Credit Note
Record shall not limit or otherwise affect the
28
obligations of the Borrower hereunder or under any Revolving Credit Note to make
payments of principal of or interest on any Revolving Credit Note when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided
in Section 5.11:
(a) Each Revolving Credit Loan which is a Base Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the Base Rate PLUS the Applicable Margin with
respect to Base Rate Loans as in effect from time to time.
(b) Each Revolving Credit Loan which is a Eurodollar Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the Eurodollar Rate determined for such Interest
Period PLUS the Applicable Margin with respect to Eurodollar Rate Loans as
in effect from time to time.
The Borrower promises to pay interest on each Revolving Credit Loan in arrears
on each Interest Payment Date with respect thereto.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS.
2.6.1. GENERAL. The Borrower shall give to the Administrative
Agent a Loan and Letter of Credit Request no less than (a) one (1) Business Day
prior to the proposed Drawdown Date of any Base Rate Loan and (b) three (3)
Eurodollar Business Days prior to the proposed Drawdown Date of any Eurodollar
Rate Loan. Each such notice shall specify (i) the principal amount of the
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Revolving Credit Loan, (iii) the Interest Period for such Revolving Credit Loan
and (iv) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Administrative Agent shall notify each of the Lenders thereof.
Each Loan and Letter of Credit Request shall be irrevocable and binding on the
Borrower and shall obligate the Borrower to accept the Revolving Credit Loan
requested from the Lenders on the proposed Drawdown Date. Each Loan shall be in
a minimum aggregate amount of $250,000 or an integral multiple thereof.
2.6.2. SWING LINE. Notwithstanding the notice and minimum amount
requirements set forth in Section 2.6.1 but otherwise in accordance with the
terms and conditions of this Credit Agreement, the Administrative Agent may, in
its sole discretion and without conferring with the Lenders, make Revolving
Credit Loans to the Borrower (a) by entry of credits to the Borrower's operating
account, as such operating account number is delivered to the Administrative
Agent from time to time (the "OPERATING ACCOUNT") with the Administrative Agent
to cover checks or other charges which the Borrower has drawn or made against
such account or (b) in an amount as otherwise requested by the Borrower. The
Borrower hereby requests and authorizes the Administrative Agent to make from
time to time such Revolving Credit Loans by means
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of appropriate entries of such credits sufficient to cover checks and other
charges then presented for payment from the Operating Account or as otherwise so
requested in an amount not to exceed $2,000,000. The Borrower acknowledges and
agrees that the making of such Revolving Credit Loans shall, in each case, be
subject in all respects to the provisions of this Credit Agreement as if they
were Revolving Credit Loans covered by a Loan and Letter of Credit Request
including, without limitation, the limitations set forth in Section 2.1 and the
requirements that the applicable provisions of Section 11 (in the case of
Revolving Credit Loans made on the Closing Date) and Section 12 be satisfied.
All actions taken by the Administrative Agent pursuant to the provisions of this
Section 2.6.2 shall be conclusive and binding on the Borrower and the Lenders
absent the Administrative Agent's gross negligence or willful misconduct.
Revolving Credit Loans made pursuant to this Section 2.6.2 shall be Base Rate
Loans until converted in accordance with the provisions of the Credit Agreement
and, prior to a Settlement, such interest shall be for the account of the
Administrative Agent.
2.7. CONVERSION OPTIONS.
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
Borrower may elect from time to time to convert any outstanding Revolving Credit
Loan to a Revolving Credit Loan of the other Type, PROVIDED that (a) with
respect to any such conversion of a Eurodollar Rate Loan to a Base Rate Loan,
the Borrower shall give the Administrative Agent at least one (1) Business Day's
prior written notice of such election; (b) with respect to any such conversion
of a Base Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the
Administrative Agent at least three (3) Eurodollar Business Days' prior written
notice of such election; and (c) no Revolving Credit Loan may be converted into
a Eurodollar Rate Loan when any Default or Event of Default has occurred and is
continuing. On the date on which such conversion is being made each Lender shall
take such action as is necessary to transfer its Commitment Percentage of such
Revolving Credit Loans to its Domestic Lending Office or its Eurodollar Lending
Office, as the case may be. All or any part of outstanding Revolving Credit
Loans of any Type may be converted into a Revolving Credit Loan of the other
Type as provided herein, PROVIDED that any partial conversion shall be in an
aggregate principal amount of $250,000 or a whole multiple thereof. Each
Conversion Request relating to the conversion of a Revolving Credit Loan to a
Eurodollar Rate Loan shall be irrevocable by the Borrower.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any
Revolving Credit Loan of any Type may be continued as a Revolving Credit Loan of
the same Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions contained in Section
2.7.1; PROVIDED that no Eurodollar Rate Loan may be continued as such when any
Default or Event of Default has occurred and is continuing, but shall be
automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of any Default or
Event of Default of which officers of the Administrative Agent active upon the
Borrower's account have actual knowledge. In the event that the Borrower fails
to provide any such notice with respect to the continuation of any Eurodollar
Rate Loan as such, then such Eurodollar Rate Loan shall be automatically
converted to a Base Rate
30
Loan on the last day of the first Interest Period relating thereto. The
Administrative Agent shall notify the Lenders promptly when any such automatic
conversion contemplated by this Section 2.7 is scheduled to occur.
2.7.3. EURODOLLAR RATE LOANS. Any conversion to or from Eurodollar
Rate Loans shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be less than
$250,000 or a whole multiple of $100,000 in excess thereof. No more than six (6)
Eurodollar Rate Loans having different Interest Periods may be outstanding at
any time.
2.8. FUNDS FOR REVOLVING CREDIT LOAN.
2.8.1. FUNDING PROCEDURES. Not later than 11:00 a.m. (Boston time)
on the proposed Drawdown Date of any Revolving Credit Loans (other than
Revolving Credit Loans made pursuant to Section 2.6.2), each of the Lenders will
make available to the Administrative Agent, at the Administrative Agent's
Office, in immediately available funds, the amount of such Lender's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon receipt
from each Lender of such amount, and upon receipt of the documents required by
Section Section 11 and 12 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Administrative Agent will make available
to the Borrower the aggregate amount of such Revolving Credit Loans made
available to the Administrative Agent by the Lenders. The failure or refusal of
any Lender to make available to the Administrative Agent at the aforesaid time
and place on any Drawdown Date the amount of its Commitment Percentage of the
requested Revolving Credit Loans (a) shall not relieve any other Lender from its
several obligation hereunder to make available to the Administrative Agent the
amount of such other Lender's Commitment Percentage of any requested Revolving
Credit Loans, or (b) shall not impose upon any other Lender any liability with
respect to such failure or refusal or otherwise increase the Commitment of such
other Lender.
2.8.2. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative Agent
may, unless notified to the contrary by any Lender prior to a Drawdown Date,
assume that such Lender has made available to the Administrative Agent on such
Drawdown Date the amount of such Lender's Commitment Percentage of the Revolving
Credit Loans to be made on such Drawdown Date, and the Administrative Agent may
(but it shall not be required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If any Lender makes available
to the Administrative Agent such amount on a date after such Drawdown Date, such
Lender shall pay to the Administrative Agent on demand an amount equal to the
product of (a) the average computed for the period referred to in clause (c)
below, of the weighted average interest rate paid by the Administrative Agent
for federal funds acquired by the Administrative Agent during each day included
in such period, TIMES (b) the amount of such Lender's Commitment Percentage of
such Revolving Credit Loans, TIMES (c) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the date on
which the amount of such Lender's Commitment Percentage of such Revolving Credit
Loans shall become immediately available to the Administrative Agent,
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and the denominator of which is 360. A statement of the Administrative Agent
submitted to such Lender with respect to any amounts owing under this paragraph
shall be PRIMA FACIE evidence of the amount due and owing to the Administrative
Agent by such Lender. If the amount of such Lender's Commitment Percentage of
such Revolving Credit Loans is not made available to the Administrative Agent by
such Lender within three (3) Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from the Borrower
on demand, with interest thereon at the rate per annum applicable to the
Revolving Credit Loans made on such Drawdown Date.
2.9. SETTLEMENTS.
2.9.1. GENERAL. On each Settlement Date, the Administrative Agent
shall, not later than 11:00 a.m. (Boston time), give telephonic or facsimile
notice (a) to the Lenders and the Borrower of the respective outstanding amount
of Revolving Credit Loans made by the Administrative Agent on behalf of the
Lenders from the immediately preceding Settlement Date through the close of
business on the prior day and the amount of any Eurodollar Rate Loans to be made
(following the giving of notice pursuant to Section 2.6.1(b)) on such date
pursuant to a Loan and Letter of Credit Request and (b) to the Lenders of the
amount (a "SETTLEMENT AMOUNT") that each Lender (a "SETTLING LENDER") shall pay
to effect a Settlement of any Revolving Credit Loan. A statement of the
Administrative Agent submitted to the Lenders and the Borrower or to the Lenders
with respect to any amounts owing under this Section 2.9 shall be PRIMA FACIE
evidence of the amount due and owing. Each Settling Lender shall, not later than
3:00 p.m. (Boston time) on such Settlement Date, effect a wire transfer of
immediately available funds to the Administrative Agent in the amount of the
Settlement Amount for such Settling Lender. All funds advanced by any Lender as
a Settling Lender pursuant to this Section 2.9 shall for all purposes be treated
as a Revolving Credit Loan made by such Settling Lender to the Borrower and all
funds received by any Lender pursuant to this Section 2.9 shall for all purposes
be treated as repayment of amounts owed with respect to Revolving Credit Loans
made by such Lender. In the event that any bankruptcy, reorganization,
liquidation, receivership or similar cases or proceedings in which the Borrower
is a debtor prevent a Settling Lender from making any Revolving Credit Loan to
effect a Settlement as contemplated hereby, such Settling Lender will make such
dispositions and arrangements with the other Lenders with respect to such
Revolving Credit Loans, either by way of purchase of participations,
distribution, PRO TANTO assignment of claims, subrogation or otherwise as shall
result in each Lender's share of the outstanding Revolving Credit Loans being
equal, as nearly as may be, to such Lender's Commitment Percentage of the
outstanding amount of the Revolving Credit Loans.
2.9.2. FAILURE TO MAKE FUNDS AVAILABLE. The Administrative Agent
may, unless notified to the contrary by any Settling Lender prior to a
Settlement Date, assume that such Settling Lender has made or will make
available to the Administrative Agent on such Settlement Date the amount of such
Settling Lender's Settlement Amount, and the Administrative Agent may (but it
shall not be required to), in reliance upon such assumption, make available to
the Borrower a corresponding amount. If any Settling Lender makes available to
the Administrative Agent such amount on a
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date after such Settlement Date, such Settling Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (a) the average
computed for the period referred to in clause (c) below, of the weighted average
interest rate paid by the Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such period, TIMES (b) the
amount of such Settlement Amount, TIMES (c) a fraction, the numerator of which
is the number of days that elapse from and including such Settlement Date to the
date on which the amount of such Settlement Amount shall become immediately
available to the Administrative Agent, and the denominator of which is 360. A
statement of the Administrative Agent submitted to such Settling Lender with
respect to any amounts owing under this Section 2.9.2 shall be prima facie
evidence of the amount due and owing to the Administrative Agent by such
Settling Lender. If such Settling Lender's Settlement Amount is not made
available to the Administrative Agent by such Settling Lender within three (3)
Business Days following such Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower on demand, with interest
thereon at the rate per annum applicable to the Revolving Credit Loans as of
such Settlement Date.
2.9.3. NO EFFECT ON OTHER LENDERS. The failure or refusal of any
Settling Lender to make available to the Administrative Agent at the aforesaid
time and place on any Settlement Date the amount of such Settling Lender's
Settlement Amount shall not (a) relieve any other Settling Lender from its
several obligations hereunder to make available to the Administrative Agent the
amount of such other Settling Lender's Settlement Amount, or (b) impose upon any
Lender, other than the Settling Lender so failing or refusing, any liability
with respect to such failure or refusal or otherwise increase the Commitment of
such other Lender.
2.10. REPAYMENTS OF REVOLVING CREDIT LOANS FROM FLEET
CONCENTRATION ACCOUNT AFTER EVENT OF DEFAULT. Following the occurrence and
during the continuance of an Event of Default of which the account officers of
the Administrative Agent active on the Borrower's account have actual knowledge,
all funds transferred to the Fleet Concentration Account and for which the
Borrower has received credits shall be applied to the Obligations in accordance
with Section 13.4.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. MATURITY. The Borrower promises to pay on the Revolving
Credit Loan Maturity Date, and there shall become absolutely due and payable on
the Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon, any unpaid Fees and any Unpaid Reimbursement Obligations.
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS.
(a) If at any time the sum of the outstanding amount of the
Revolving Credit Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total Commitment at such time,
then the Borrower shall immediately pay the amount of such excess to
the Administrative Agent for the
33
respective accounts of the Lenders for application: first, to any
Unpaid Reimbursement Obligations; second, to the Revolving Credit
Loans; and third, to provide to the Administrative Agent cash
collateral for Reimbursement Obligations as contemplated by Section
4.2(b) and (c). Each payment of any Unpaid Reimbursement Obligations
or prepayment of Revolving Credit Loans shall be allocated among the
Lenders, in proportion, as nearly as practicable, to each
Reimbursement Obligation or (as the case may be) the respective unpaid
principal amount of each Lender's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments
or repayments not exactly in proportion.
(b) Concurrently with the receipt by the Borrower or any
Restricted Subsidiary of:
(i) Net Cash Sale Proceeds from Asset Sales (other than (A)
the sale, lease, license or other disposition of assets in the
ordinary course of business consistent with past practices, (B)
Asset Sales made in connection with the Sale-Leaseback
Transaction and the FFCA Mortgage Financing, (C) Excess
Properties Sales, or (D) Permitted Unit Sales), the Borrower
shall pay to the Administrative Agent for the respective accounts
of the Lenders an amount equal to one hundred percent (100%) of
such Net Cash Sale Proceeds; PROVIDED, HOWEVER, that the Borrower
may, at its option (as elected by the Borrower in writing to the
Administrative Agent on or prior to the event giving rise to such
Net Cash Sale Proceeds), so long as the aggregate amount of Net
Cash Sale Proceeds reinvested by the Borrower at any time after
the Closing Date pursuant to this clause (i) shall not exceed
$10,000,000 and so long as no Default shall have occurred and be
continuing, reinvest (or commit to reinvest as evidenced by a
binding written contract upon terms reasonably acceptable to the
Administrative Agent) such Net Cash Sale Proceeds in assets to be
used in the business of the Borrower and its Restricted
Subsidiaries within 180 days of receipt thereof; PROVIDED,
FURTHER, HOWEVER, that any Net Cash Sale Proceeds not so
reinvested (or committed to be reinvested upon terms reasonably
acceptable to the Administrative Agent) within 180 days of
receipt thereof shall be immediately applied to the prepayment of
the Loans as set forth in Section 3.4;
(ii) Net Cash Equity Issuance Proceeds of the Borrower or
any of its Restricted Subsidiaries, the Borrower shall pay to the
Administrative Agent for the respective accounts of the Lenders
an amount equal to seventy-five percent (75%) of such Net Cash
Equity Issuance Proceeds;
(iii) Net Cash Debt Issuance Proceeds of the Borrower or any
of its Restricted Subsidiaries (other than any Net Cash Debt
Issuance Proceeds of Indebtedness permitted pursuant to Section
9.1), the Borrower shall pay to the Administrative Agent for the
respective accounts of the Lenders
34
an amount equal to one hundred percent (100%) of such Net Cash
Debt Issuance Proceeds; or
(iv) Net Casualty Proceeds in excess of $500,000 in the
aggregate of the Borrower or any of its Restricted Subsidiaries,
the Borrower shall pay to the Administrative Agent for the
respective accounts of the Lenders an amount equal to one hundred
percent (100%) of such Net Casualty Proceeds; PROVIDED, HOWEVER,
the Borrower may, at its option (as elected by the Borrower in
writing to the Administrative Agent within 90 days from the event
giving rise to such Net Casualty Proceeds) commit (as evidenced
by a binding written contract) such Net Casualty Proceeds within
180 days of receipt of such proceeds to the repair or replacement
of the property so damaged, destroyed or taken, and, if so
committed, such repair or replacement of the property so damaged,
destroyed or taken shall have been commenced within 270 days of
receipt of such proceeds pursuant to such binding written
contract; PROVIDED, FURTHER, HOWEVER, that any Net Casualty
Proceeds not so reinvested, or committed to be so reinvested, as
the case may be, shall be immediately applied to the prepayment
of the Loans as set forth in Section 3.4;
(c) The Borrower shall repay in full to the Revolving Credit Lenders
all principal, interest and other amounts outstanding under the Revolving
Credit Loans on or before September 30 of each calendar year during the
term hereof, commencing with the 2002 calendar year, such that as of
September 30 of each such calendar year (or the next Business Day, if, in
any year, September 30 is not a Business Day) and for a period of not less
than 30 consecutive days immediately following the date of such repayment,
the amount of all outstanding Revolving Credit Loans and all Unpaid
Reimbursement Obligations shall be zero. Such payments shall not be made
from the proceeds of the Loans or any other Indebtedness unless such
Indebtedness is permitted pursuant to Section 9.1.
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower shall
have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium to be applied in the manner provided for in Section 3.4. The Borrower
shall give the Administrative Agent, no later than 10:00 a.m., Boston time, at
least one (1) Business Day's prior written notice of any proposed prepayment
pursuant to this Section 3.3 of Base Rate Loans, and three (3) Eurodollar
Business Days' notice of any proposed prepayment pursuant to this Section 3.3 of
Eurodollar Rate Loans, in each case specifying the proposed date of prepayment
of Revolving Credit Loans and the principal amount to be prepaid. Each such
partial prepayment of the Revolving Credit Loans shall be in an integral
multiple of $250,000, shall be accompanied by the payment of accrued interest on
the principal prepaid to the date of prepayment and shall be applied, in the
absence of instruction by the Borrower, first to the principal of Base Rate
Loans and then to the principal of Eurodollar Rate Loans. Each partial
prepayment shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each
35
Lender's Revolving Credit Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
3.4. APPLICATION OF PAYMENTS. All payments made pursuant to Section
3.2(b) shall be applied to reduce the outstanding amount of the Revolving Credit
Loans and to permanently reduce the Total Commitment by such amount; PROVIDED,
that any payments made pursuant to Section 3.2(b) shall not reduce the Total
Commitment if on the date such payment is made (x) no Default has occurred and
is continuing and (y) no Revolving Credit Loans are outstanding; PROVIDED,
FURTHER, that if (x) a Default has occurred and is continuing and (y) no
Revolving Credit Loans are outstanding, the Total Commitment shall be reduced by
the amount of payments made pursuant to Section 3.2(b). Such mandatory
prepayments shall be allocated among the Lenders in proportion, as nearly as
practicable, to the respective outstanding amounts of each Lender's Revolving
Credit Notes, with adjustments to the extent practicable to equalize any prior
prepayments not exactly in proportion. Subject to the first PROVISO in this
Section 3.4, no amounts repaid pursuant to this Section 3.4 may be reborrowed.
4. LETTERS OF CREDIT.
4.1. LETTER OF CREDIT COMMITMENTS.
4.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the terms
and conditions hereof and the execution and delivery by the Borrower of a letter
of credit application on the Administrative Agent's customary form (a "LETTER OF
CREDIT APPLICATION"), the Administrative Agent on behalf of the Lenders and in
reliance upon the agreement of the Lenders set forth in Section 4.1.4 and upon
the representations and warranties of the Borrower contained herein, agrees, in
its individual capacity, to issue, extend and renew for the account of the
Borrower one or more standby or documentary letters of credit (individually, a
"LETTER OF CREDIT"), in such form as may be requested from time to time by the
Borrower and agreed to by the Administrative Agent; PROVIDED, HOWEVER, that,
after giving effect to such request, (a) the sum of the aggregate Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not exceed
$20,000,000 at any one time and (b) the sum of (i) the Maximum Drawing Amount on
all Letters of Credit, (ii) all Unpaid Reimbursement Obligations, and (iii) the
amount of all Revolving Credit Loans outstanding shall not exceed the Total
Commitment at such time.
4.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Administrative Agent.
In the event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the provisions of
this Credit Agreement shall, to the extent of any such inconsistency, govern.
4.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (a) provide for the
payment of sight drafts for honor thereunder when presented in accordance with
the terms thereof and when accompanied by the documents described therein, and
(b) have an expiry date no later than the earlier of (i) one year from the date
of issuance of such Letter of Credit
36
(it being understood that any Letters of Credit may be renewed for additional
one-year periods with the consent of the Administrative Agent), or (ii) the date
which is fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons, forty-five
(45) days) prior to the Revolving Credit Loan Maturity Date. Each Letter of
Credit so issued, extended or renewed shall be subject to the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Administrative Agent in the ordinary course of its business as a letter of
credit issuer and in effect at the time of issuance of such Letter of Credit or,
in the case of a standby Letter of Credit, either the Uniform Customs or the
International Standby Practices (ISP98), International Chamber of Commerce
Publication No. 590, or any successor code of standby letter of credit practices
among banks of general application adopted by the Administrative Agent in the
ordinary course of its business as a standby letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
4.1.4. REIMBURSEMENT OBLIGATIONS OF LENDERS. Each Lender severally
agrees that it shall be absolutely liable, without regard to the occurrence of
any Default or Event of Default or any other condition precedent whatsoever, to
the extent of such Lender's Commitment Percentage, to reimburse the
Administrative Agent on demand for the amount of each draft paid by the
Administrative Agent under each Letter of Credit to the extent that such amount
is not reimbursed by the Borrower pursuant to Section 4.2 (such agreement for a
Lender being called herein the "LETTER OF CREDIT PARTICIPATION" of such Lender).
4.1.5. PARTICIPATIONS OF LENDERS. Each such payment made by a Lender
shall be treated as the purchase by such Lender of a participating interest in
the Borrower's Reimbursement Obligation under Section 4.2 in an amount equal to
such payment. Each Lender shall share in accordance with its participating
interest in any interest which accrues pursuant to Section 4.2.
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the
Administrative Agent to issue, extend and renew each Letter of Credit and the
Lenders to participate therein, the Borrower hereby agrees to reimburse or pay
to the Administrative Agent, for the account of the Administrative Agent or (as
the case may be) the Lenders, with respect to each Letter of Credit issued,
extended or renewed by the Administrative Agent hereunder:
(a) except as otherwise expressly provided in Section 4.2(b) and (c),
on each date that any draft presented under such Letter of Credit is
honored by the Administrative Agent, or the Administrative Agent otherwise
makes a payment with respect thereto, (i) the amount paid by the
Administrative Agent in respect of any draft honored under such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs and
expenses whatsoever incurred by the Administrative Agent or any Lender in
connection with any payment made by the Administrative Agent or any Lender
under, or with respect to, such Letter of Credit;
37
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Administrative Agent for the
benefit of the Lenders and the Administrative Agent as cash collateral for
all Reimbursement Obligations; and
(c) upon the termination of the Total Commitment, or the acceleration
of the Reimbursement Obligations with respect to all Letters of Credit in
accordance with Section 13, an amount equal to 105% of the then Maximum
Drawing Amount on all Letters of Credit, which amount shall be held by the
Administrative Agent for the benefit of the Lenders and the Administrative
Agent as cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrower under this Section 4.2 at any
time from the date such amounts become due and payable (whether as stated in
this Section 4.2, by acceleration or otherwise) until payment in full (whether
before or after judgment) shall be payable to the Administrative Agent on demand
at the rate specified in Section 5.11 for overdue principal on the Revolving
Credit Loans.
4.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the
Administrative Agent shall notify the Borrower of the date and amount of the
draft presented or demand for payment and of the date and time when it expects
to pay such draft or honor such demand for payment. If the Borrower fails to
reimburse the Administrative Agent as provided in Section 4.2 on or before the
date that such draft is paid or other payment is made by the Administrative
Agent, the Administrative Agent may at any time thereafter notify the Lenders of
the amount of any such Unpaid Reimbursement Obligation. No later than 3:00 p.m.
(Boston time) on the Business Day next following the receipt of such notice,
each Lender shall make available to the Administrative Agent, at the
Administrative Agent's Office, in immediately available funds, such Lender's
Commitment Percentage of such Unpaid Reimbursement Obligation, together with an
amount equal to the product of (a) the average, computed for the period referred
to in clause (c) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, TIMES (b) the amount equal to such
Lender's Commitment Percentage of such Unpaid Reimbursement Obligation, TIMES
(c) a fraction, the numerator of which is the number of days that elapse from
and including the date the Administrative Agent paid the draft presented for
honor or otherwise made payment to the date on which such Lender's Commitment
Percentage of such Unpaid Reimbursement Obligation shall become immediately
available to the Administrative Agent, and the denominator of which is 360. The
responsibility of the Administrative Agent to the Borrower and the Lenders shall
be only to determine that the documents (including each draft) delivered under
each Letter of Credit in connection with such presentment shall be in conformity
in all material respects with such Letter of Credit.
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4.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Section 4 shall be absolute and unconditional under any and all circumstances
and irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Administrative Agent, any
Lender or any beneficiary of a Letter of Credit. The Borrower further agrees
with the Administrative Agent and the Lenders that the Administrative Agent and
the Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 4.2 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even if
such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the Borrower against the beneficiary of any Letter of Credit or
any such transferee. The Administrative Agent and the Lenders shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit. In furtherance and not in limitation or derogation of any
of the foregoing, any action taken or omitted to be taken in good faith (and not
constituting gross negligence or willful misconduct) in accordance with the
standards of care imposed by law or any applicable code of documentary or
standby letter of credit practices applicable to any Letter of Credit by the
Administrative Agent or any Lender under or in connection with each Letter of
Credit and the related drafts and documents shall be binding upon the Borrower
and shall not result in any liability on the part of the Administrative Agent or
any Lender to the Borrower.
4.5. RELIANCE BY ADMINISTRATIVE AGENT. To the extent not inconsistent
with Section 4.4, the Administrative Agent shall be entitled to rely, and shall
be fully protected in relying upon, any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Credit Agreement unless it
shall first have received such advice or concurrence of the Required Lenders as
it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Credit Agreement in accordance
with a request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Lenders and all future
holders of the Revolving Credit Notes or of a Letter of Credit Participation.
4.6. LETTER OF CREDIT FEES.
4.6.1. ISSUANCE FEE. The Borrower agrees to pay to the
Administrative Agent for the account of the Lenders pro rata according to their
respective
39
Commitment Percentages a letter of credit fee for each Letter of Credit in an
amount equal to the Applicable Margin per annum in effect from time to time of
the undrawn amount of such Letter of Credit. Such letter of credit fee shall be
payable in arrears on the last Business Day of each calendar quarter and on the
Revolving Credit Loan Maturity Date (and, if any Letter of Credit remains
outstanding on the Revolving Credit Loan Maturity Date, thereafter on demand)
for the period from the date of the issuance of each Letter of Credit to the
date such payment is due or, if earlier, the date on which such Letter of Credit
expired or was terminated.
4.6.2. FRONTING FEE. The Borrower agrees to pay the Administrative
Agent a fronting fee for its own account for each Letter of Credit issued by the
Administrative Agent in the amount agreed to between the Borrower and the
Administrative Agent in the Administrative Agent's Fee Letter.
4.6.3. OTHER FEES. In addition, with respect to each Letter of
Credit, the Borrower agrees to pay to the Administrative Agent, for its own
account, at such other time or times as such charges are customarily made by the
Administrative Agent, the Administrative Agent's customary issuance, amendment,
negotiation or document examination and other administrative fees as in effect
from time to time.
5. CERTAIN GENERAL PROVISIONS.
5.1. CLOSING FEES. The Borrower agrees to pay to the Lenders on the
Closing Date a closing fee (the "CLOSING FEE") in the amount set forth in the
Lenders' Fee Letter.
5.2. ADMINISTRATIVE AGENT'S FEE. The Borrower shall pay to the
Administrative Agent annually in advance, for the Administrative Agent's own
account, on the Closing Date and on each anniversary of the Closing Date, an
Administrative Agent's fee (the "ADMINISTRATIVE AGENT'S FEE") in the amount and
on the dates set forth in the Administrative Agent's Fee Letter.
5.3. FUNDS FOR PAYMENTS.
5.3.1. PAYMENTS TO ADMINISTRATIVE AGENT. All payments of principal,
interest, Reimbursement Obligations, Fees and any other amounts due hereunder or
under any of the other Loan Documents shall be made on the due date thereof to
the Administrative Agent in Dollars, for the respective accounts of the Lenders
and the Administrative Agent, at the Administrative Agent's Office or at such
other place that the Administrative Agent may from time to time designate, in
each case on or prior to 11:00 a.m. (Boston time or other local time at the
place of payment) and in immediately available funds.
5.3.2. NO OFFSET, ETC. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without recoupment, setoff
or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts,
40
duties, charges, fees, deductions, withholdings, compulsory loans, restrictions
or conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other authority
therein (excluding franchise taxes and taxes imposed on or measured by the net
income, profits or receipts of the Administrative Agent or any Lender, all such
non-excludable items being called "TAXES") unless the Borrower is compelled by
law to make such deduction or withholding. If any such obligation is imposed
upon the Borrower in respect of any Taxes with respect to any amount payable by
it hereunder or under any of the other Loan Documents, the Borrower will pay to
the Administrative Agent, for the account of the Lenders or (as the case may be)
the Administrative Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Lenders or the Administrative Agent to
receive the same net amount which the Lenders or the Administrative Agent would
have received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Administrative Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.
5.3.3. NON-U.S. LENDERS. Each Lender and the Administrative Agent
that is not a U.S. Person as defined in Section 7701(a)(30) of the Code for
federal income tax purposes (a "NON-U.S. LENDER") hereby agrees that, if and to
the extent it is legally able to do so, it shall, prior to the date of the first
payment by the Borrower hereunder to be made to such Lender or the
Administrative Agent or for such Lender's or the Administrative Agent's account,
deliver to the Borrower and the Administrative Agent, as applicable, such
certificates, documents or other evidence, as and when required by the Code or
Treasury Regulations issued pursuant thereto, including (a) in the case of a
Non-U.S. Lender that is a "bank" for purposes of Section 881(c)(3)(A) of the
Code, two (2) duly completed copies of Internal Revenue Service Form W-8BEN or
Form W-8ECI and any other certificate or statement of exemption required by
Treasury Regulations, or any subsequent versions thereof or successors thereto,
properly completed and duly executed by such Lender or the Administrative Agent
establishing that with respect to payments of principal, interest or fees
hereunder it is (i) not subject to United States federal withholding tax under
the Code because such payment is effectively connected with the conduct by such
Lender or Administrative Agent of a trade or business in the United States or
(ii) totally exempt or partially exempt from United States federal withholding
tax under a provision of an applicable tax treaty and (b) in the case of a
Non-U.S. Lender that is not a "bank" for purposes of Section 881(c)(3)(A) of the
Code, a certificate in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower and to the effect that such Non-U.S.
Lender (i) is not a "bank" for purposes of Section 881(c)(3)(A) of the Code, is
not subject to regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any governmental authority,
any application made to a rating agency or qualification for any exemption from
any tax, securities law or other legal requirements, (ii) is not a ten (10)
percent shareholder of the Borrower for purposes of Section 881(c)(3)(B) of the
Code and (iii) is not a controlled foreign corporation receiving interest from a
related person for purposes of Section 881(c)(3)(C) of the Code, together with a
properly completed
41
Internal Revenue Service Form W-8 BEN or W-9, as applicable (or successor
forms). Each Lender or the Administrative Agent agrees that it shall, promptly
upon a change of its lending office or the selection of any additional lending
office, to the extent the forms previously delivered by it pursuant to this
section are no longer effective, and promptly upon the Borrower's or the
Administrative Agent's reasonable request after the occurrence of any other
event (including the passage of time) requiring the delivery of a Form W-8BEN,
Form W-8ECI or W-9 in addition to or in replacement of the forms previously
delivered, deliver to the Borrower and the Administrative Agent, as applicable,
if and to the extent it is properly entitled to do so, a properly completed and
executed Form W-8BEN, Form W-8ECI or W-9, as applicable (or any successor forms
thereto). The Borrower shall not be required to pay any additional amounts to
any Non-U.S. Lender in respect of United States federal withholding tax pursuant
to Section 5.3.2 above to the extent that the obligation to pay such additional
amounts would not have arisen but for a failure by such Non-U.S. Lender to
comply with the provisions of this Section 5.3.3; PROVIDED, HOWEVER, that the
foregoing shall not relieve the Borrower of its obligation to pay additional
amounts pursuant to Section 5.3.2 in the event that, as a result of any change
in any applicable law, treaty or governmental rule, regulation or order, or any
change in interpretation, administration or application thereof, a Non-US Lender
that was previously entitled to receive all payments under this Credit Agreement
and the Revolving Credit Notes without deduction or withholding of any United
States federal income taxes is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the fact that
such Lender is not subject to withholding.
5.4. COMPUTATIONS. All computations of interest on the Loans and of Fees
shall, unless otherwise expressly provided herein, be based on a 360-day year
and paid for the actual number of days elapsed (or, in the case of interest on
Base Rate Loans, a 365-day year or, if appropriate, a 366-day year). Except as
otherwise provided in the definition of the term "INTEREST PERIOD" with respect
to Eurodollar Rate Loans, whenever a payment of principal on any Revolving
Credit Note becomes due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding Business Day, and interest
shall accrue during such extension.
5.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Administrative Agent shall determine in good faith or be notified by the
Required Lenders that they have determined in good faith that (a) by reason of
circumstances affecting the interbank eurodollar market, adequate and reasonable
methods do not exist for ascertaining the Eurodollar Rate that would otherwise
determine the rate of interest to be applicable to any Eurodollar Rate Loan
during such Interest Period or (b) the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the
cost to the Lenders of making or maintaining their Eurodollar Rate Loans during
such period, the Administrative Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Lenders) to the Borrower and the Lenders. In such event and for so long as such
circumstances shall continue (i) any Loan and Letter of Credit Request or
Conversion Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (ii) each
Eurodollar Rate Loan will
42
automatically, on the last day of the then current Interest Period relating
thereto, become a Base Rate Loan, and (iii) the obligations of the Lenders to
make Eurodollar Rate Loans shall be suspended until the Administrative Agent
determines that the circumstances giving rise to such suspension no longer
exist, whereupon the Administrative Agent shall so notify the Borrower and the
Lenders.
5.6. ILLEGALITY. Notwithstanding any other provisions herein, if any
future law (or any change in any present law), regulation, treaty or directive
or the interpretation or application of such law, regulation, treaty or
directive by any governmental or regulatory body charged with the administration
thereof shall make it unlawful for any Lender to make or maintain Eurodollar
Rate Loans, such Lender shall forthwith give notice of such circumstances to the
Borrower and the other Lenders and thereupon, so long as such circumstances
shall continue, (a) the commitment of such Lender to make Eurodollar Rate Loans
or convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be suspended
(but such Lender shall make Base Rate Loans concurrently with the making of, or
conversion into, Eurodollar Rate Loans by the Lender not so affected, in each
case in an amount equal to the amount of Eurodollar Loans that would have been
made or converted into by such Lender at such time in the absence of such
circumstances), and (b) such Lender's Revolving Credit Loans then outstanding as
Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate
Loans on the last day of each Interest Period applicable to such Eurodollar Rate
Loans or within such earlier period as may be required by law. The Borrower
hereby agrees promptly to pay (without duplication of any payments required by
Section 5.10) to the Administrative Agent for the account of such Lender, upon
demand by such Lender, any additional amounts necessary to compensate such
Lender for any costs incurred by such Lender in making any conversion in
accordance with this Section 5.6, including any interest or fees payable by such
Lender to lenders of funds obtained by it in order to make or maintain its
Eurodollar Rate Loans hereunder.
5.7. ADDITIONAL COSTS, ETC. If any future applicable law (or any change
in any present law), which expression, as used herein, includes statutes, rules
and regulations thereunder and interpretations thereof by any competent court or
by any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender or the Administrative Agent by any central bank
or other fiscal, monetary or other authority (whether or not having the force of
law), shall:
(a) subject any Lender or the Administrative Agent to any Tax with
respect to this Credit Agreement, the other Loan Documents, any Letters
of Credit, such Lender's Commitment or the Loans; or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Lender of the principal of
or the interest on any Loans or any other amounts payable to any Lender
or the Administrative Agent under this Credit Agreement or any of the
other Loan Documents; or
43
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of an office of any
Lender; or
(d) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of Credit, the Loans, such Lender's
Commitment, or any class of loans, letters of credit or commitments of
which any of the Loans or such Lender's Commitment forms a part, and the
result of any of the foregoing is:
(i) to increase the actual cost to any Lender of making,
funding, issuing, renewing, extending or maintaining any of the
Loans or such Lender's Commitment or any Letter of Credit; or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender or
the Administrative Agent hereunder on account of such Lender's
Commitment, any Letter of Credit or any of the Loans; or
(iii) to require such Lender or the Administrative Agent to
make any payment or to forego any interest or Reimbursement
Obligation or other sum payable hereunder, the amount of which
payment or foregone interest or Reimbursement Obligation or other
sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender or the Administrative
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, within five (5) days of
demand made by such Lender or (as the case may be) the Administrative
Agent at any time and from time to time and as often as the occasion
therefor may arise, pay to such Lender or the Administrative Agent such
additional amounts as will be sufficient to compensate such Lender or
the Administrative Agent for such additional cost, reduction, payment
or foregone interest or Reimbursement Obligation or other sum.
5.8. CAPITAL ADEQUACY. If after the date hereof any Lender or the
Administrative Agent determines in good faith that (a) the adoption of or change
in any law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) regarding capital requirements for
banks or bank holding companies or any change in the interpretation or
application thereof by a Governmental Authority with appropriate jurisdiction,
or (b) compliance by such Lender or the Administrative Agent or any corporation
controlling such Lender or the Administrative Agent with any law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) of any such entity regarding capital adequacy, has the effect of
reducing the return on such Lender's or the Administrative Agent's commitment
with respect to any
44
Loans to a level below that which such Lender or the Administrative Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or the Administrative Agent's then existing policies
with respect to capital adequacy) by any amount deemed by such Lender or (as the
case may be) the Administrative Agent, in each case determined in good faith, to
be material, then such Lender or the Administrative Agent may notify the
Borrower of such fact. To the extent that the amount of such reduction in the
return on capital is not reflected in the interest payable hereunder, the
Borrower and such Lender shall thereafter attempt to negotiate in good faith,
within thirty (30) days of the day on which the Borrower receives such notice,
an adjustment payable hereunder that will adequately compensate such Lender in
light of these circumstances. If the Borrower and such Lender are unable to
agree to such adjustment within thirty (30) days of the date on which the
Borrower receives such notice, then commencing on the date of such notice (but
not earlier than the effective date of any such increased capital requirement),
the fees payable hereunder shall increase by an amount that will, in such
Lender's reasonable determination, provide adequate compensation. Each Lender
shall allocate such cost increases among its customers in good faith and on an
equitable basis.
5.9. CERTIFICATE. Any Lender or the Administrative Agent claiming
reimbursement or compensation under Section Section 5.7 or 5.8 shall deliver to
the Borrower a certificate setting forth (a) any additional amounts payable
pursuant to Section Section 5.7 or 5.8, and (b) the basis for such claim and a
calculation of the amount payable to such Lender or the Administrative Agent in
connection therewith in reasonable detail. Any such certificate submitted by any
Lender or the Administrative Agent to the Borrower, shall be conclusive, absent
manifest error, that such amounts are due and owing.
5.10. INDEMNITY. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from and against any loss, cost or expense (excluding the
loss of anticipated profits) that such Lender may sustain or incur as a
consequence of (a) default by the Borrower in payment of the principal amount of
or any interest on any Eurodollar Rate Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by such
Lender to banks of funds obtained by it in order to maintain its Eurodollar Rate
Loans, (b) default by the Borrower in making a borrowing or conversion after the
Borrower has given (or is deemed to have given) a Loan and Letter of Credit
Request or a Conversion Request relating thereto in accordance with Section
Section 2.6 or 2.7, or (c) the making of any payment of a Eurodollar Rate Loan
or the making of any conversion of any such Loan to a Base Rate Loan on a day
that is not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by such Lender to lenders of funds obtained
by it in order to maintain any such Loans.
5.11. INTEREST AFTER DEFAULT. During the continuance of an Event of
Default, all principal and interest on the Loans and all other amounts payable
hereunder or under any of the other Loan Documents shall bear interest at a rate
per annum equal to 2% PLUS the rate of interest then applicable thereto (or, if
no rate of interest is then applicable thereto, the Base Rate).
45
5.12. REPLACEMENT OF LENDERS. If any Lender (an "AFFECTED LENDER") (a)
makes demand upon the Borrower for (or if the Borrower is otherwise required to
pay) amounts pursuant to Section Section 5.3.2, 5.7 or 5.8, (b) is unable to
make or maintain Eurodollar Rate Loans as a result of a condition described in
Section 5.6 or (c) defaults in its obligation to make Loans in accordance with
the terms of this Credit Agreement or purchase any Letter of Credit
Participation, the Borrower may, so long as no Default or Event of Default has
occurred and is then continuing by notice in writing to the Administrative Agent
and such Affected Lender, (i) request the Affected Lender to cooperate with the
Borrower in obtaining a replacement Lender reasonably satisfactory to the
Administrative Agent and the Borrower (the "REPLACEMENT LENDER"); (ii) request
the non-Affected Lenders to acquire and assume all of the Affected Lender's
Loans and Commitment as provided herein, but none of such Lenders shall be under
an obligation to do so; or (iii) designate a Replacement Lender approved by the
Administrative Agent, such approval not to be unreasonably withheld or delayed.
If any satisfactory Replacement Lender shall be obtained, and/or if any one or
more of the non-Affected Lenders shall agree to acquire and assume all of the
Affected Lender's Loans and Commitment, then such Affected Lender shall assign,
in accordance with Section 15, all of its Commitment, Loans, Letter of Credit
Participations, Revolving Credit Notes and other rights and obligations under
this Credit Agreement and all other Loan Documents to such Replacement Lender or
non-Affected Lenders, as the case may be, in exchange for payment of the
principal amount so assigned and all interest and fees accrued on the amount so
assigned, PLUS all other Obligations then due and payable to the Affected
Lender; PROVIDED, HOWEVER, that (A) such assignment shall be without recourse,
representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Affected Lender and such Replacement Lender and/or
non-Affected Lenders, as the case may be, and (B) prior to any such assignment,
the Borrower shall have paid to such Affected Lender all amounts properly
demanded and unreimbursed under Section Section 5.7 and 5.8. Upon the effective
date of such assignment, the Borrower shall issue replacement Revolving Credit
Notes to such Replacement Lender and/or non-Affected Lenders, as the case may
be, and such institution shall become a "Lender" for all purposes under this
Credit Agreement and the other Loan Documents.
5.13. MITIGATION. Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has actual knowledge which will
result in, and will use reasonable commercial efforts available to it (and not
otherwise disadvantageous to such Lender) to mitigate or avoid, any obligation
by the Borrower to pay any amount pursuant to, or the occurrence of any
circumstances described in Section Section 5.3.2, 5.6, 5.7 or 5.8 (and, if any
Lender has given any such notice and thereafter such event ceases to exist, such
Lender shall promptly so notify the Borrower and the Administrative Agent).
Without limiting the foregoing, each Lender will designate a different funding
office (if available) if such designation will avoid (or reduce the cost to the
Borrower of) any event described in the preceding sentence and such designation
will not be otherwise disadvantageous to such Lender.
46
6. COLLATERAL SECURITY AND GUARANTIES.
6.1. SECURITY OF BORROWER. The Obligations shall be secured by a
perfected first priority security interest (subject only to Permitted Liens
entitled to priority under applicable law) in all of the assets of the Borrower
(other than the Encumbered Properties or as provided in the Security Agreement
and the Stock Pledge Agreement), whether now owned or hereafter acquired,
pursuant to the terms of the Security Documents to which the Borrower is a party
(PROVIDED that (x) the Borrower shall not be required to deliver a Mortgage in
respect of any Excluded Properties, and (y) the pledge of the Capital Stock of a
Foreign Subsidiary shall be limited to 65% of the outstanding Capital Stock of
such Subsidiary).
6.2. GUARANTIES AND SECURITY OF RESTRICTED SUBSIDIARIES. The Obligations
shall also be guaranteed pursuant to the terms of the Guaranty. The obligations
of the Borrower's Restricted Subsidiaries under the Guaranty shall be in turn
secured by a perfected first priority security interest (subject only to
Permitted Liens entitled to priority under applicable law) in all of the assets
of each such Restricted Subsidiary (other than the Encumbered Properties or as
provided in the Security Agreement and the Stock Pledge Agreement), whether now
owned or hereafter acquired, pursuant to the terms of the Security Documents to
which such Restricted Subsidiary is a party (PROVIDED that (x) such Restricted
Subsidiary shall not be required to deliver a Mortgage in respect of any
Excluded Properties, and (y) the pledge of the Capital Stock of a Foreign
Subsidiary shall be limited to 65% of the outstanding Capital Stock of such
Subsidiary).
7. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders and the
Administrative Agent as follows:
7.1. CORPORATE AUTHORITY.
7.1.1. INCORPORATION; GOOD STANDING. Each of the Borrower and its
Subsidiaries (a) is a corporation (or similar business entity) duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or formation, (b) has all requisite corporate (or the equivalent
company) power to own its property and conduct its business as now conducted and
as presently contemplated, and (c) is in good standing as a foreign corporation
(or similar business entity) and is duly authorized to do business in each
jurisdiction where such qualification is necessary except where a failure to be
so qualified would not have a Material Adverse Effect.
7.1.2. AUTHORIZATION. The execution, delivery and performance of
this Credit Agreement, the other Loan Documents, the Sale-Leaseback Transaction
Documents and the FFCA Mortgage Financing Documents to which the Borrower or any
of its Subsidiaries is or is to become a party and the transactions contemplated
hereby and thereby (a) are within the corporate (or the equivalent company)
authority of such Person, (b) have been duly authorized by all necessary
corporate (or the equivalent company)
47
proceedings, (c) do not and will not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which the
Borrower or any of its Subsidiaries is subject or any judgment, order, writ,
injunction, license or permit applicable to the Borrower or any of its
Subsidiaries, and (d) do not conflict with any provision of the Governing
Documents of, or any agreement or other instrument binding upon, the Borrower or
any of its Subsidiaries.
7.1.3. ENFORCEABILITY. The execution and delivery of this Credit
Agreement, the other Loan Documents, the Sale-Leaseback Transaction Documents
and the FFCA Mortgage Financing Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally binding
obligations of such Person enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
general principles of equity and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
7.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrower and any of its Subsidiaries of this Credit Agreement, the other
Loan Documents, the Sale-Leaseback Transaction Documents and the FFCA Mortgage
Financing Documents to which the Borrower or any of its Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority, or any other third party, other than those already obtained, filings
to perfect Liens and filings to transfer Real Estate to purchasers thereof.
7.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 7.3
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
subject to no Liens, except Permitted Liens.
7.4. FINANCIAL STATEMENTS AND PROJECTIONS.
7.4.1. FISCAL YEAR. The Borrower and each of its Subsidiaries
maintains a 52-week fiscal year which ends on the last Sunday of each calendar
year, PROVIDED, that in any calendar year in which the last Sunday is prior to
December 27, the Borrower and each of its Subsidiaries maintains a 53-week
fiscal year which ends on the first Sunday in the month of January of the
following calendar year.
7.4.2. FINANCIAL STATEMENTS. There has been furnished to each of the
Lenders a consolidated balance sheet of the Borrower and its Subsidiaries as of
the Balance Sheet Date, and a consolidated statement of income and cash flow
statement of the Borrower and its Subsidiaries for the fiscal year ended
December 31, 2000, January 2, 2000 and December 27, 1998, certified by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP. Such balance sheet and
48
statement of income have been prepared in accordance with GAAP and fairly
present the financial condition of the Borrower as at the close of business on
the date thereof and the results of operations for the fiscal year then ended.
There are no contingent liabilities of the Borrower or any of its Subsidiaries
as of such date involving material amounts, known to the officers of the
Borrower, which were not disclosed in such balance sheet and the notes related
thereto.
7.4.3. PROJECTIONS. The projections of the annual operating budgets
of the Borrower and its Subsidiaries on a consolidated basis, balance sheets and
cash flow statements for the 2001 to 2004 fiscal years copies of which have been
delivered to each Lender, disclose all assumptions made with respect to general
economic, financial and market conditions used in formulating such projections.
To the knowledge of the Borrower or any of its Subsidiaries, no facts exist that
(individually or in the aggregate) would result in any material change in any of
such projections. The projections are based upon reasonable estimates and
assumptions, have been prepared on the basis of the assumptions stated therein
and reflect the reasonable estimates of the Borrower and its Subsidiaries of the
results of operations and other information projected therein (it being
understood that projections are inherently subject to uncertainties and
contingencies, many of which may be beyond the Borrower's control, and no
assurance can be given that projections will be realized).
7.5. NO MATERIAL ADVERSE CHANGES, ETC. Since the Balance Sheet Date,
there has been no event or occurrence which has had a Material Adverse Effect.
Since the Balance Sheet Date, the Borrower has not made any Restricted Payment.
7.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Except as set forth in
Schedule 7.6 hereto, the Borrower and each of its Restricted Subsidiaries
possesses, or is licensed to use, all franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of its business substantially as now
conducted without known conflict with any rights of others, except where such
failure to possess, or be licensed to use, could not reasonably be expected to
have a Material Adverse Effect.
7.7. LITIGATION. Except as set forth in SCHEDULE 7.7 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or, to the
best of the Borrower's knowledge, threatened against the Borrower or any of its
Subsidiaries before any Governmental Authority that (a) either in any case or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
or (b) which questions or otherwise affects the validity of the transactions
contemplated by the Credit Agreement, any of the other Loan Documents, the
Sale-Leaseback Transaction Documents or the FFCA Mortgage Financing Documents,
or any action taken or to be taken pursuant hereto or thereto.
7.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor any
of its Subsidiaries is subject to any Governing Document or other legal
restriction, or any judgment, decree, order, law, statute, rule or regulation
that has or could reasonably be expected in the future to have a Material
Adverse Effect. Neither the Borrower nor
49
any of its Subsidiaries is a party to any contract or agreement that has or
could reasonably be expected, in the judgment of the Borrower's officers, to
have a Material Adverse Effect.
7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Borrower
nor any of its Subsidiaries is in violation of any provision of its Governing
Documents, or any agreement or instrument to which it may be subject or by which
it or any of its properties may be bound or any decree, order, judgment,
statute, license, rule or regulation, in any of the foregoing cases in a manner
that could reasonably be expected to, result in the imposition of substantial
penalties, or have a Material Adverse Effect.
7.10. TAX STATUS. The Borrower and its Subsidiaries (a) have filed all
federal and all other material tax returns, reports and declarations required by
law to have been filed by each of them, (b) have paid all taxes and other
governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings and (c) have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and none of the officers of the Borrower know of any basis for
any such claim.
7.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Borrower
nor any of its Subsidiaries is a "HOLDING COMPANY", or a "SUBSIDIARY COMPANY" of
a "HOLDING COMPANY", or an "AFFILIATE" of a "HOLDING COMPANY", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"INVESTMENT COMPANY", or an "AFFILIATED COMPANY" or a "PRINCIPAL UNDERWRITER" of
an "INVESTMENT COMPANY", as such terms are defined in the Investment Company Act
of 1940.
7.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future Lien on any assets or property
of the Borrower or any of its Subsidiaries or any rights relating thereto.
7.14. PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary under applicable law to establish and perfect
the Administrative Agent's security interest in the Collateral. Except as set
forth on SCHEDULE 7.14, the Collateral and the Administrative Agent's rights
with respect to the Collateral are not subject to any setoff, claims,
withholdings or other defenses (other than Permitted Liens). The Borrower or a
Restricted Subsidiary of the Borrower party to one of the Security Agreements is
the owner of the Collateral free from any Lien, except for Permitted Liens.
50
7.15. CERTAIN TRANSACTIONS. Except for arm's length transactions pursuant
to which the Borrower or any of its Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than the Borrower or such
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of the Borrower or any of its Subsidiaries is presently a party to any
transaction with the Borrower or any of its Subsidiaries (other than the FFCA
Mortgage Financing, the Sale-Leaseback Transaction or in respect of services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
7.16. EMPLOYEE BENEFIT PLANS.
7.16.1. IN GENERAL. Each Employee Benefit Plan and each Guaranteed
Pension Plan has been maintained and operated in compliance in all material
respects with the provisions of ERISA and all Applicable Pension Legislation
and, to the extent applicable, the Code. The Borrower has heretofore delivered
to the Administrative Agent the most recently completed annual report, Form
5500, with all required attachments, and actuarial statement required to be
submitted under Section 103(d) of ERISA, with respect to each Guaranteed Pension
Plan.
7.16.2. GUARANTEED PENSION PLANS. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid the
incurrence of an accumulated funding deficiency, the notice or lien provisions
of Section 302(f) of ERISA, or otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods has been
received with respect to any Guaranteed Pension Plan, and neither the Borrower
nor any ERISA Affiliate is obligated to or has posted security in connection
with an amendment to a Guaranteed Pension Plan pursuant to Section 307 of ERISA
or Section 401(a)(29) of the Code. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by the
Borrower or any ERISA Affiliate with respect to any Guaranteed Pension Plan and
since January 1, 1996, there has not been any ERISA Reportable Event (other than
an ERISA Reportable Event as to which the requirement of 30 days notice has been
waived), or any other event or condition which presents a material risk of
termination of any Guaranteed Pension Plan by the PBGC. Based on the latest
valuation of each Guaranteed Pension Plan (which in each case occurred within
twelve months of the date of this representation), and on the actuarial methods
and assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of Section 4001 of ERISA
did not exceed the aggregate value of the assets of all such Guaranteed Pension
Plans, disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities, by more
than $100,000.
51
7.16.3. MULTIEMPLOYER PLANS. Neither the Borrower nor any ERISA
Affiliate has, since January 1, 1996, incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan under Section 4201 of ERISA or
as a result of a sale of assets described in Section 4204 of ERISA. Neither the
Borrower nor any ERISA Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the meaning of Section 4241
or Section 4245 of ERISA or is at risk of entering reorganization or becoming
insolvent, or that any Multiemployer Plan intends to terminate or has been
terminated under Section 4041A of ERISA.
7.17. USE OF PROCEEDS.
7.17.1. GENERAL. The proceeds of the Loans shall be used for working
capital, capital expenditures (to the extent permitted in Section 10.2 of this
Credit Agreement) and general corporate purposes. For the avoidance of doubt,
proceeds of the Loans shall not be used for the repurchase of any of the senior
notes issued and outstanding pursuant to the Senior Note Indenture.
7.17.2. REGULATIONS U AND X. No portion of any Loan is to be used,
and no portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "MARGIN SECURITY" or "MARGIN STOCK" as such terms are
used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
7.17.3. INELIGIBLE SECURITIES. No portion of the proceeds of any
Loans is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of knowingly purchasing, or providing credit support for the
purchase of, during the underwriting or placement period or within thirty (30)
days thereafter, any Ineligible Securities underwritten or privately placed by a
Financial Affiliate.
7.18. ENVIRONMENTAL COMPLIANCE.
(a) To the best of the knowledge of the Borrower, none of the
Borrower, its Subsidiaries or any operator of the Real Estate or any
operations thereon is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under
the Resource Conservation and Recovery Act ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as amended
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("▇▇▇▇"), the Federal Clean Water Act, the Federal Clean Air Act, the
Toxic Substances Control Act, or any state, local or foreign law,
statute, regulation, ordinance, order or decree relating to health,
safety or the environment (hereinafter "ENVIRONMENTAL LAWS"), which
violation would have a Material Adverse Effect;
(b) neither the Borrower nor any of its Subsidiaries has received
written notice from any third party including, without limitation, any
Governmental
52
Authority, (i) that any one of them has been identified by the United
States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any
hazardous waste, as defined by 42 U.S.C. Section 6903(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) and any toxic
substances, petroleum constituents, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("HAZARDOUS
SUBSTANCES") which any one of them has generated, transported or disposed
of has been found at any site at which a Governmental Authority has
conducted or has ordered that any Borrower or any of its Subsidiaries
conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a
named party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising
out of any third party's incurrence of costs, expenses, losses or damages
of any kind whatsoever in connection with the release of Hazardous
Substances;
(c) except as set forth on SCHEDULE 7.18 attached hereto: (i) no
portion of the Real Estate currently owned, occupied or operated by the
Borrower or any of its Restricted Subsidiaries, and to the best of the
knowledge of the Borrower, previously owned and occupied or operated by
the Borrower or any Restricted Subsidiaries, has been used for the
handling, processing, storage or disposal of Hazardous Substances except
in material compliance with applicable Environmental Laws; and no
underground tank or other underground storage receptacle for Hazardous
Substances is located on any portion of the Real Estate currently owned,
occupied or operated by the Borrower or any of its Restricted
Subsidiaries, and to the best of the knowledge of the Borrower,
previously owned, occupied or operated by the Borrower or any of its
Subsidiaries; (ii) in the course of any activities conducted by the
Borrower, its Subsidiaries or their operators, no Hazardous Substances
have been generated or are being used on the Real Estate except in
material compliance with applicable Environmental Laws; (iii) there have
been no releases (i.e. any past or present releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping) or threatened releases of Hazardous Substances on,
upon, into or from the Real Estate currently owned, occupied or operated
by the Borrower or any of its Restricted Subsidiaries, and to the best of
the knowledge of the Borrower, previously owned and occupied or operated
by the Borrower or any Restricted Subsidiaries, which releases would have
a Material Adverse Effect; (iv) to the best of the Borrower's knowledge,
there have been no releases on, upon, from or into any real property in
the vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on, and which would have a
Material Adverse Effect; and (v) in addition, any Hazardous Substances
that have been generated by the Borrower, its Subsidiaries or their
operators on any of the Real Estate have been transported in compliance
with applicable Environmental Laws; and
53
(d) none of the Borrower and its Subsidiaries, any Mortgaged
Property or any of the other Real Estate is subject to any applicable
Environmental Law requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous Substances, or
the giving of notice to any Governmental Authority or the recording or
delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and contemplated
hereby, or as a condition to the recording of any Mortgage or to the
effectiveness of any other transactions contemplated hereby the failure
of which would have a Material Adverse Effect.
7.19. SUBSIDIARIES, ETC. The Borrower has (a) no Restricted Subsidiaries
other than those listed on SCHEDULE 7.19(a) hereto (as such Schedule shall be
amended for each subsequently acquired or organized Restricted Subsidiary), and
(b) no Unrestricted Subsidiaries other than those listed on SCHEDULE 7.19(b)
hereto (as such Schedule shall be amended for each subsequently acquired or
organized Unrestricted Subsidiary). Except as set forth on SCHEDULE 7.19(c)
hereto, neither the Borrower nor any Subsidiary of the Borrower is engaged in
any joint venture or partnership with any other Person hereto (as such Schedule
shall be amended for each subsequently existing joint venture or partnership).
The jurisdiction of incorporation/formation and principal place of each
Subsidiary of the Borrower is listed on SCHEDULE 7.19(d) hereto.
7.20. DISCLOSURE. None of the factual information heretofore or
contemporaneously furnished in writing to the Administrative Agent or any Lender
by or on behalf of the Borrower or any Subsidiary in connection with any Loan
Document or any transaction contemplated hereby contains any untrue statement of
a material fact or omits to state a material fact (known to the Borrower or any
of its Subsidiaries in the case of any document or information not furnished by
it or any of its Subsidiaries) necessary in order to make the statements herein
or therein, taken as a whole, not misleading.
7.21. BANK ACCOUNTS. As of the Closing Date, SCHEDULE 7.21 sets forth the
account numbers and location of all material bank accounts of the Borrower or
any of its Restricted Subsidiaries (as reasonably determined by the Borrower).
8. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Revolving Credit Note is
outstanding or any Lender has any obligation to make any Loans or the
Administrative Agent has any obligation to issue, extend or renew any Letters of
Credit:
8.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Commitment Fees, the Administrative
Agent's fee and all other amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Restricted Subsidiaries
is a party, all in accordance with the terms of this Credit Agreement and such
other Loan Documents.
54
8.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place in the United States of America as the Borrower shall designate upon
written notice to the Administrative Agent, where notices, presentations and
demands to or upon the Borrower in respect of the Loan Documents to which the
Borrower is a party may be given or made.
8.3. RECORDS AND ACCOUNTS. The Borrower will (a) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with GAAP, (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation, obsolescence and amortization of its properties and the properties
of its Subsidiaries, contingencies, and other reserves, and (c) at all times
engage ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent certified public accountants
satisfactory to the Administrative Agent as the independent certified public
accountants of the Borrower and its Subsidiaries and will not permit more than
thirty (30) days to elapse between the cessation of such firm's (or any
successor firm's) engagement as the independent certified public accountants of
the Borrower and its Subsidiaries and the appointment in such capacity of a
successor firm as shall be satisfactory to the Administrative Agent.
8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrower
will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such year, and the related consolidated statement of income and
consolidated statement of cash flows for such year, each setting forth in
comparative form the figures for the previous fiscal year and all such
consolidated statements to be in reasonable detail, prepared in
accordance with GAAP, and certified, without qualification and without an
expression of uncertainty as to the ability of the Borrower or any of its
Subsidiaries to continue as going concerns, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or by
other independent certified public accountants satisfactory to the
Administrative Agent, together with a written statement from such
accountants to the effect that they have read a copy of this Credit
Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event of
Default, or, if such accountants shall have obtained knowledge of any
then existing Default or Event of Default they shall disclose in such
statement any such Default or Event of Default; PROVIDED that such
accountants shall not be liable to the Lenders for failure to obtain
knowledge of any Default or Event of Default. Notwithstanding any of the
foregoing, the Borrower may satisfy its obligation to deliver the
foregoing financial information by delivering copies of the Borrower's
annual report on Form 10-K in respect of such fiscal year, together with
the financial statements required to be attached thereto; PROVIDED, that
(x) the Borrower is required to file such annual report on Form 10-K with
the SEC, (y) such filing is actually made and (z) such annual report and
financial statements
55
are delivered within ninety (90) days after the end of each fiscal year
of the Borrower and are otherwise in compliance with this Section 8.4(a);
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal
quarters in any fiscal year of the Borrower, copies of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such quarter, and the related consolidated statement of income and
consolidated statement of cash flows for the portion of the Borrower's
fiscal year then elapsed, all in reasonable detail and prepared in
accordance with GAAP, together with a certification by the principal
financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial
position of the Borrower and its Subsidiaries on the date thereof
(subject to year-end adjustments). Notwithstanding any of the foregoing,
the Borrower may satisfy its obligation to deliver the foregoing
financial information by delivering copies of the Borrower's quarterly
report on Form 10-Q in respect of such fiscal year, together with the
financial statements required to be attached thereto; PROVIDED, that (x)
the Borrower is required to file such quarterly report on Form 10-Q with
the SEC, (y) such filing is actually made and (z) such quarterly report
and financial statements are delivered within forty-five (45) days after
the end of each of the first three fiscal quarters in any fiscal year of
the Borrower and are otherwise in compliance with this Section 8.4(b);
(c) as soon as practicable, but in any event within thirty (30)
days after the end of each month in each fiscal year of the Borrower,
unaudited monthly consolidated financial statements of the Borrower and
its Subsidiaries for such month setting forth in comparative form the
figures from the actual historical figures for the previous year and a
comparison setting forth the corresponding figures from the projected
figures set forth in the projections described in Section 8.4(g) for such
period, prepared in accordance with GAAP, together with a certification
by the principal financial or accounting officer of the Borrower that the
information contained in such financial statements fairly presents the
financial condition of the Borrower and its Subsidiaries on the date
thereof (subject to quarter-end and year-end adjustments);
(d) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, the Compliance Certificate;
(e) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature filed with the Securities and
Exchange Commission or sent to the stockholders of the Borrower
generally;
(f) projections of the Borrower and its Subsidiaries updating
those projections delivered to the Lenders and referred to in Section
7.4.3 and if applicable, updating any later such projections delivered in
response to a request pursuant to this Section 8.4(f);
56
(g) a twelve-month forecast, including the consolidated balance
sheet of the Borrower and its Subsidiaries and related consolidated
statements of income and cash flow, to be delivered to the Lenders prior
to January 15 of each fiscal year of the Borrower;
(h) not less than once during any twelve-month period, account
numbers and location of all material bank accounts of the Borrower or any
of its Restricted Subsidiaries (as reasonably determined by the Borrower)
not otherwise listed on SCHEDULE 7.21; and
(i) concurrently with the financial statements delivered pursuant
to clause (c) hereof, account receivable agings reports;
(j) from time to time such other financial data and information
(including accountants, management letters) as the Administrative Agent
or any Lender may reasonably request.
8.5. NOTICES.
8.5.1. DEFAULTS. The Borrower will promptly notify the
Administrative Agent and each of the Lenders in writing of the occurrence of any
Default or Event of Default, together with a reasonably detailed description
thereof, and the actions, if any, the Borrower proposes to take with respect
thereto. If any Person shall give any notice or take any other action in respect
of a claimed default (whether or not constituting an Event of Default) under
this Credit Agreement, the Senior Note Indenture, the FFCA Mortgage Financing
Documents, or the Sale-Leaseback Transaction Documents or a material default
under any other note, evidence of indebtedness, indenture or other obligation to
which or with respect to which the Borrower or any of its Subsidiaries is a
party or obligor, whether as principal, guarantor, surety or otherwise, the
Borrower shall forthwith give written notice thereof to the Administrative Agent
and each of the Lenders, describing the notice or action and the nature of the
claimed default.
8.5.2. ENVIRONMENTAL EVENTS. The Borrower will give notice to the
Administrative Agent and each of the Lenders (a) of any material violation of
any Environmental Law that the Borrower or any of its Subsidiaries reports in
writing or is reportable by such Person in writing (or for which any written
report supplemental to any oral report is made) to any Governmental Authority no
later than fifteen (15) days after such material violation is reported or
reportable, and (b) within fifteen (15) days of becoming aware thereof, of any
inquiry, proceeding, investigation, or other action, including a notice from any
Governmental Authority of potential environmental liability, of any Governmental
Authority that would have a Material Adverse Effect.
8.5.3. NOTIFICATION OF CLAIM AGAINST COLLATERAL. The Borrower will,
within fifteen (15) days of becoming aware thereof, notify the Administrative
Agent and each of the Lenders in writing of any material setoff, claims
(including, with respect to the Real Estate, environmental claims), withholdings
or other defenses to which any of
57
the Collateral, or the Administrative Agent's rights with respect to the
Collateral, are subject.
8.5.4. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower will, and
will cause each of its Subsidiaries to, give notice to the Administrative Agent
and each of the Lenders in writing within fifteen (15) days of becoming aware of
any litigation or proceedings threatened in writing or any pending litigation
and proceedings affecting the Borrower or any of its Subsidiaries or to which
the Borrower or any of its Subsidiaries is or becomes a party involving an
uninsured claim against the Borrower or any of its Subsidiaries that would have
a Material Adverse Effect on the Borrower and its Subsidiaries, taken as a
whole, and stating the nature and status of such litigation or proceedings. The
Borrower will, and will cause each of its Subsidiaries to, give notice to the
Administrative Agent and each of the Lenders, in writing, in form and detail
satisfactory to the Administrative Agent, within ten (10) days of any judgment
not covered by insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $1,000,000.
8.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES.
8.6.1. LEGAL EXISTENCE. The Borrower will do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence, rights and franchises and those of its Subsidiaries (other than (x)
Restricted Subsidiaries which are either merged into the Borrower or other
Restricted Subsidiaries as permitted by Section 9.5.1 or (y) the dissolution of
Restaurant Insurance Corporation).
8.6.2. MAINTENANCE OF PROPERTIES. The Borrower (a) will cause all of
its properties and those of its Subsidiaries useful and necessary (as determined
by the Borrower in a commercially reasonable manner) in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment, and (b) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times.
8.7. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent and in accordance with the terms of the Security
Agreements (it being understood that the Borrower and its Subsidiaries are
self-insured through Restaurant Insurance Corparation with respect to various
insurable risks and will maintain such self-insurance in amounts not to exceed
those in effect on the Closing Date until such time as Restaurant Insurance
Corporation is dissolved). The Borrower will, and will cause each of its
Restricted Subsidiaries to, maintain insurance on the Mortgaged Properties in
accordance with the terms of the Mortgages.
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8.8. TAXES. The Borrower will, and will cause each of its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its Real Estate, sales and activities, or any part thereof,
or upon the income or profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become a Lien or charge upon
any of its property; provided that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided further that the Borrower and each Subsidiary of the
Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any Lien that may
have attached as security therefor.
8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
8.9.1. GENERAL. The Borrower shall permit the Lenders, through the
Administrative Agent or any of the Lenders' other designated representatives, to
visit and inspect any of the properties of the Borrower or any of its Restricted
Subsidiaries, to examine the books of account of the Borrower and its Restricted
Subsidiaries (and to make copies thereof and extracts therefrom), and to discuss
the affairs, finances and accounts of the Borrower and its Restricted
Subsidiaries with, and to be advised as to the same by, its and their officers,
all at such reasonable times and during normal business hours as the
Administrative Agent or any Lender may reasonably request upon reasonable prior
notice. Notwithstanding anything contained in this Credit Agreement, the
Administrative Agent shall be permitted to conduct commercial finance exams
(whether conducted by the Administrative Agent or an outside examiner), all at
such reasonable times and during normal business hours as the Administrative
Agent may reasonably request upon reasonable prior notice; PROVIDED, that the
Borrower shall (x) prior to the occurrence of a Default, pay the expenses for up
to one such commercial finance exam exams during any fiscal year of the Borrower
and (y) after the occurrence of a Default, pay the expenses for all such
commercial finance exams.
8.9.2. APPRAISALS. The Borrower will (a) deliver to the
Administrative Agent any appraisal reports obtained by the Borrower in the
ordinary course of business, or (b) if an Event of Default shall have occurred
and be continuing, upon the request of the Administrative Agent, obtain and
deliver to the Administrative Agent appraisal reports in form and substance and
from appraisers satisfactory to the Administrative Agent, stating (i) the then
current fair market, orderly liquidation and forced liquidation values of all or
any portion of the equipment or real estate owned by the Borrower or any of its
Restricted Subsidiaries (excluding any Real Estate consisting of Excluded
Properties) and (ii) the then current business value of each of the Borrower and
its Restricted Subsidiaries. All such appraisals shall be conducted and made at
the expense of the Borrower.
8.9.3. ENVIRONMENTAL ASSESSMENTS. In the event (a) an Event of
Default shall have occurred and be continuing, or (b) the Administrative Agent
has a reasonable basis to believe that (i) there has been a release or threat of
release of
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Hazardous Substances in or under the Mortgaged Properties in material violation
of applicable Environmental Laws, or (ii) the use and operation of the Mortgaged
Properties is not in material compliance with Environmental Laws, the
Administrative Agent may, from time to time, in its discretion for the purpose
of assessing and ensuring the value of any Mortgaged Property, obtain one or
more environmental assessments or audits of such Mortgaged Property prepared by
a hydrogeologist, an independent engineer or other qualified consultant or
expert approved by the Administrative Agent to evaluate or confirm (a) whether
any Hazardous Materials are present in the soil or water at such Mortgaged
Property and (b) whether the use and operation of such Mortgaged Property
complies with all Environmental Laws. Environmental assessments may include
without limitation detailed visual inspections of such Mortgaged Property
including any and all storage areas, storage tanks, drains, dry ▇▇▇▇▇ and
leaching areas, and the taking of soil samples, surface water samples and ground
water samples, as well as such other investigations or analyses as the
Administrative Agent deems appropriate. All such environmental assessments shall
be conducted and made at the expense of the Borrower.
8.9.4. COMMUNICATIONS WITH ACCOUNTANTS. Upon the occurrence and
continuance of a Default, the Borrower authorizes the Administrative Agent and,
if accompanied by the Administrative Agent, the Lenders to communicate directly
with the Borrower's independent certified public accountants and authorizes such
accountants to disclose to the Administrative Agent and the Lenders any and all
financial statements and other supporting financial documents and schedules
including copies of any management letter with respect to the business,
financial condition and other affairs of the Borrower or any of its
Subsidiaries. At the request of the Administrative Agent, the Borrower shall
deliver a letter addressed to such accountants instructing them to comply with
the provisions of this Section 8.9.4.
8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower will, and will cause each of its Subsidiaries to, comply with (a) the
applicable laws and regulations wherever its business is conducted, including
all Environmental Laws, (b) the provisions of its Governing Documents, (c) all
agreements and instruments by which it or any of its properties may be bound and
(d) all applicable decrees, orders, and judgments, except, in each case, where
the failure to so comply could not reasonably be expected to result in a
Material Adverse Effect or material non-compliance with any applicable
Environmental Laws. If any authorization, consent, approval, permit or license
from any officer, agency or instrumentality of any government shall become
necessary or required in order that the Borrower or any of its Subsidiaries may
fulfill any of its obligations hereunder or any of the other Loan Documents to
which the Borrower or such Subsidiary is a party, the Borrower will, or (as the
case may be) will cause such Subsidiary to, immediately take or cause to be
taken all reasonable steps within the power of the Borrower or such Subsidiary
to obtain such authorization, consent, approval, permit or license and furnish
the Administrative Agent and the Lenders with evidence thereof.
8.11. EMPLOYEE BENEFIT PLANS. The Borrower will (a) promptly upon request
of the Administrative Agent, furnish to the Administrative Agent a copy of the
most recent actuarial statement required to be submitted under Section 103(d) of
ERISA and
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Annual Report, Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan, and (b) promptly upon receipt or dispatch, furnish to
the Administrative Agent any notice, report or demand sent or received in
respect of a Guaranteed Pension Plan under Section Section 302, 4041, 4042,
4043, 4063, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan, under
Section Section 4041A, 4202, 4219, 4242, or 4245 of ERISA.
8.12. USE OF PROCEEDS. The Borrower will use the proceeds of the Loans
and obtain Letters of Credit solely for the purposes set forth in Section
7.17.1.
8.13. FUTURE GUARANTORS; MORTGAGED PROPERTY.
8.13.1. FUTURE GUARANTORS, SECURITY, ETC. Subject to Section 8.13.3,
the Borrower will, and will cause each Restricted Subsidiary to, execute any
documents, agreements and instruments, and take all further action that may be
required under applicable law, or that the Administrative Agent may reasonably
request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and
first priority (subject to Permitted Liens) of the Liens created or intended to
be created by the Loan Documents. The Borrower will cause any subsequently
acquired or organized Restricted Subsidiary to execute a Guaranty (or a
supplement thereto) and each applicable Loan Document in favor of the
Administrative Agent. In addition, from time to time, the Borrower will, at its
cost and expense, promptly secure the Obligations by pledging or creating, or
causing to be pledged or created, perfected Liens with respect to such of its
and its Restricted Subsidiaries' assets and properties as the Administrative
Agent shall designate (excluding Excluded Properties, and subject to the
limitations set forth in Section 6.1 and Section 6.2, the Security Agreement and
the Pledge Agreement).
8.13.2. REAL ESTATE GENERAL. Any Real Estate (other than Excluded
Properties) at any time owned or leased by the Borrower or its Restricted
Subsidiaries and used as headquarters, manufacturing facilities or warehouse
facilities, shall in each case at all times be Mortgaged Properties. If, after
the Closing Date, the Borrower or any of its Restricted Subsidiaries acquires or
leases such Real Estate, the Borrower shall, or shall cause such Restricted
Subsidiary to, forthwith deliver to the Administrative Agent a fully executed
mortgage or deed of trust over such Real Estate, in form and substance
reasonably satisfactory to the Administrative Agent, together with, in the case
of Core Mortgaged Properties, Title Policies, surveys, evidences of insurance
with the Administrative Agent named as loss payee and additional insured, legal
opinions and other documents and certificates with respect to such Real Estate
as was required for Real Estate of the Borrower or such Restricted Subsidiary as
of the Closing Date. The Borrower further agrees that, following the taking of
such actions with respect to such Real Estate, the Administrative Agent shall
have for the benefit of the Lenders and the Administrative Agent a valid and
enforceable first priority mortgage or deed of trust over such Real Estate, free
and clear of all Liens except for Permitted Liens.
8.13.3. REDUCTION IN APPRAISAL VALUE. In the event the Appraised
Value of all Core Mortgaged Properties is less than the Minimum Aggregate
Appraisal Amount at any time an Event of Default shall have occurred and be
continuing, the
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Borrower shall, or shall cause such Restricted Subsidiaries to, forthwith
deliver to the Administrative Agent a fully-executed mortgage or deed of trust
over such additional Real Estate, as determined by the Administrative Agent in
its sole discretion, which, together with all other Core Mortgaged Properties,
has an Appraised Value of not less than the Minimum Aggregate Appraisal Amount,
and is in form and substance satisfactory to the Administrative Agent, together
with title insurance policies, surveys, evidences of insurance with the
Administrative Agent named as loss payee and additional insured, legal opinions
and other documents and certificates with respect to such Real Estate as was
required for Real Estate of the Borrower or such Restricted Subsidiary as of the
Closing Date. The Borrower further agrees that, following the taking of such
actions with respect to such Real Estate, the Administrative Agent shall have
for the benefit of the Lenders and the Administrative Agent a valid and
enforceable first priority mortgage or deed of trust over such Real Estate, free
and clear of all Liens except for Permitted Liens.
8.14. BANK ACCOUNTS. The Borrower will, and will cause each of its
Restricted Subsidiaries to (a) as provided in Section 8.20, establish a
depository account (the "FLEET CONCENTRATION ACCOUNT") under the control of the
Administrative Agent for the benefit of the Lenders and the Administrative
Agent, in the name of the Borrower, pursuant to an agreement in form and
substance reasonably satisfactory to the Administrative Agent (the "FLEET
CONCENTRATION ACCOUNT AGREEMENT"), (b) at any time an Event of Default shall
have occurred and be continuing (and following the delivery from the
Administrative Agent of a written request to the Borrower to do so in accordance
with Section 16.6), cause all cash proceeds of accounts receivable to be
deposited only in the local depository accounts ("LOCAL ACCOUNTS") or
concentration depository accounts ("INTERIM CONCENTRATION ACCOUNTS") with
financial institutions which have entered into agency account agreements and, if
applicable, lock box agreements (collectively, "AGENCY ACCOUNT AGREEMENTS") in
form and substance satisfactory to the Administrative Agent, or the Fleet
Concentration Account, (c) at any time an Event of Default shall have occurred
and be continuing (and following the delivery from the Administrative Agent of a
written request to the Borrower to do so in accordance with Section 16.6),
direct all depository institutions with Local Accounts to cause all funds held
in each such Local Account to be transferred no less frequently than once each
day to, and only to, an Interim Concentration Account or the Fleet Concentration
Account, (d) at any time an Event of Default shall have occurred and be
continuing (and following the delivery from the Administrative Agent of a
written request to the Borrower to do so in accordance with Section 16.6),
direct all depository institutions with Interim Concentration Accounts to cause
all funds of the Borrower and its Restricted Subsidiaries held in such Interim
Concentration Accounts to be transferred daily to, and only to, the Fleet
Concentration Account, and (e) at any time an Event of Default shall have
occurred and be continuing (and following the delivery from the Administrative
Agent of a written request to the Borrower to do so in accordance with Section
16.6), at all times ensure that immediately upon the Borrower's or any of its
Restricted Subsidiaries' receipt of any funds constituting or cash proceeds of
any Collateral, all such amounts shall have been deposited in a Local Account,
an Interim Concentration Account or the Fleet Concentration Account.
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8.15. EXISTING LETTERS OF CREDIT. The Borrower will not renew or
otherwise extend the Existing Letters of Credit and the Existing Letters of
Credit shall terminate or expire in accordance with their terms.
8.16. TITLE INSURANCE. The Borrower shall deliver to the Administrative
Agent within 90 days subsequent to the Closing Date, a Title Policy for each of
the Core Mortgaged Properties set forth on SCHEDULE 1(b), together with (x)
proof of payment of all fees and premiums for such policies from the Title
Insurance Company and in all amounts satisfactory to the Administrative Agent,
insuring the interest of the Administrative Agent and each of the Lenders as
mortgagee under each of the Core Mortgaged Properties, and (y) legal opinions in
form and substance satisfactory to the Administrative Agent.
8.17. ENVIRONMENTAL INSURANCE. The Borrower shall deliver to the
Administrative Agent within 90 days subsequent to the Closing Date,
environmental insurance with respect to the manufacturing plant and headquarters
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in form and
substance reasonably satisfactory to the Administrative Agent.
8.18. SURVEYS. The Borrower shall deliver to the Administrative Agent
within 90 days subsequent to the Closing Date, a Survey (together with a
Surveyor Certificate) in form and substance reasonably satisfactory to the
Administrative Agent.
8.19. ADDITIONAL MORTGAGES. The Borrower shall deliver to the
Administrative Agent within 60 days subsequent to the Closing Date, the
Mortgages with respect to the Real Estate (together with flood certifications)
listed on Schedule 8.19 (as such Schedule may be amended prior to 60 days after
the Closing Date), in each case in form and substance satisfactory to the
Administrative Agent.
8.20. FLEET CONCENTRATION ACCOUNT AGREEMENT. The Borrower shall have
established the Fleet Concentration Account within 10 days subsequent to the
Closing Date, and the Administrative Agent shall have received the Fleet
Concentration Account Agreement executed by the Borrower and the depository
institution for such Fleet Concentration Account.
8.21. FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Lenders and the Administrative Agent and
execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request to carry out to their reasonable
satisfaction the transactions contemplated by this Credit Agreement and the
other Loan Documents (including, but not limited to, any replacement Revolving
Credit Notes to replace any Revolving Credit Notes lost by any Lender in an
amount equal to such lost Revolving Credit Note).
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9. CERTAIN NEGATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Revolving Credit Note is
outstanding or any Lender has any obligation to make any Loans or the
Administrative Agent has any obligations to issue, extend or renew any Letters
of Credit:
9.1. RESTRICTIONS ON INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Lenders and the Administrative Agent
arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(c) Indebtedness incurred in connection with (i) the acquisition
after the date hereof of any real or personal property by the Borrower or
any Restricted Subsidiary or under any Capitalized Lease, PROVIDED, that
the aggregate principal amount of such Indebtedness of the Borrower and
its Restricted Subsidiaries shall not exceed the aggregate amount of
$6,000,000 at any one time, and (ii) a Permitted Acquisition, PROVIDED,
that the aggregate principal amount of such Indebtedness of the Borrower
and its Restricted Subsidiaries shall not exceed the aggregate amount of
$7,000,000 at any one time;
(d) Indebtedness in respect of Interest Rate Agreements or
derivative contracts, in each case entered into in the ordinary course of
business and not for speculative purposes or as an arbitrage of rates;
(e) Indebtedness existing on the date hereof and listed and
described on SCHEDULE 9.1 hereto, and any refinancing of such
Indebtedness; PROVIDED, that (x) the principal amount (as such amount may
have been reduced following the Closing Date) thereof is not increased,
(y) the maturity date thereof is not shortened, and (z) the material
terms thereof are not materially more onerous on the Borrower than the
terms contained in the Indebtedness being refinanced;
(f) Indebtedness of a Subsidiary of the Borrower existing on the
date hereof to the Borrower;
(g) unsecured Indebtedness of a Restricted Subsidiary of the
Borrower to the Borrower which Indebtedness (i) shall not be forgiven or
otherwise discharged for any consideration other than payment in full in
cash (PROVIDED, that only the amount repaid in part shall be discharged);
and (ii) shall be evidenced by one or more promissory notes which shall
be delivered in pledge to the Administrative Agent pursuant to a Loan
Document;
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(h) unsecured Indebtedness of (i) the Borrower to (A) any
Restricted Subsidiary in an aggregate principal amount not to exceed
$29,000,000, or (B) Restaurant Insurance Corporation in an aggregate
principal amount not to exceed $10,000,000, (ii) any Unrestricted
Subsidiary (other than Restaurant Insurance Corporation) to the Borrower
in an aggregate principal amount not exceed $5,000; and (iii) Restaurant
Insurance Corporation to the Borrower in an aggregate principal amount
not to exceed $10,000,000;
(i) unsecured Indebtedness in respect of guarantees made in the
ordinary course of business by the Borrower or any of its Restricted
Subsidiaries in respect of Indebtedness of any Restricted Subsidiary of
the Borrower permitted hereunder in an aggregate principal amount not to
exceed $250,000;
(j) unsecured Indebtedness in respect of guarantees made in the
ordinary course of business by the Borrower or any of its Restricted
Subsidiaries of Indebtedness of franchisees of the Borrower or any
Restricted Subsidiary in an aggregate principal amount not to exceed
$5,000,000;
(k) unsecured Indebtedness incurred by the Borrower or any of its
Restricted Subsidiaries to finance the payment of property, casualty and
specialty insurance premiums in the ordinary course of the Borrower's
business which is repaid within 18 months of its incurrence, PROVIDED
that such Indebtedness does not exceed $7,500,000 in the aggregate at any
one time outstanding;
(l) Indebtedness in respect of the Sale-Leaseback Transaction and
the FFCA Mortgage Financing;
(m) Indebtedness under the Existing Credit Agreement (PROVIDED,
that the same is paid in full in cash and the Existing Credit Agreement
is terminated (except for provisions thereof that expressly survive such
termination), in each case on the Closing Date); and
(n) other Indebtedness not described in CLAUSES (a) through (m) in
an aggregate amount not to exceed $250,000 at any time outstanding.
9.2. RESTRICTIONS ON LIENS.
9.2.1. PERMITTED LIENS. The Borrower will not, and will not permit
any of its Subsidiaries to,
(a) create or incur or suffer to be created or incurred or to
exist any Lien upon any of its property or assets of any character
whether now owned or hereafter acquired, or upon the income or profits
therefrom;
(b) transfer any of such property or assets or the income or
profits therefrom for the purpose of subjecting the same to the payment
of Indebtedness or performance of any other obligation in priority to
payment of its general creditors;
65
(c) acquire, or agree or have an option to acquire, any property
or assets upon conditional sale or other title retention or purchase
money security agreement, device or arrangement;
(d) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or
demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its
general creditors; and
(e) sell, assign, pledge or otherwise transfer any "RECEIVABLES"
as defined in clause (g) of the definition of the term "INDEBTEDNESS,"
with or without recourse;
PROVIDED that the Borrower or any of its Subsidiaries may create or incur
or suffer to be created or incurred or to exist:
(i) Liens in favor of the Borrower on all or part of the
assets of any Subsidiary of the Borrower securing Indebtedness
owing by such Subsidiary of the Borrower to the Borrower;
(ii) Liens to secure taxes, assessments and other
government charges in respect of obligations not overdue or Liens
on properties to secure claims for labor, material or supplies in
respect of obligations not overdue;
(iii) deposits or pledges made in connection with, or to
secure payment of, workmen's compensation, unemployment insurance,
old age pensions or other social security obligations;
(iv) Liens on properties in respect of judgments or awards
that have been in force for less than the applicable period for
taking an appeal so long as execution is not levied thereunder or
in respect of which the Borrower or any Subsidiary shall at the
time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been
obtained pending such appeal or review;
(v) Liens of carriers, warehousemen, mechanics and
materialmen, and other like Liens on properties in respect of
obligations not overdue by more than 30 days or which are being
contested in good faith and by appropriate proceedings; PROVIDED,
that none of such Liens (x) interferes materially with the use of
such property affected in the ordinary conduct of the business of
the Borrower and its Subsidiaries, and (y) individually or in the
aggregate have a Material Adverse Effect;
(vi) encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of
real property and defects and irregularities in the title thereto,
landlord's or lessor's liens and other minor Liens; PROVIDED, that
none of such Liens (x) interferes
66
materially with the use of such property affected in the ordinary
conduct of the business of the Borrower and its Subsidiaries, and
(y) individually or in the aggregate have a Material Adverse
Effect;
(vii) Liens (A) existing on the date hereof and listed on
SCHEDULE 9.2 hereto, or (B) securing any extension, renewal or
replacement of any obligations secured by any such Lien; PROVIDED,
that (x) in respect of Liens permitted pursuant to clause (A)
hereof, no such Lien shall encumber any additional property and
the amount of Indebtedness secured by such Lien is not increased
from that existing on the Closing Date (as such Indebtedness may
have been permanently reduced subsequent to the Closing Date), and
(y) in respect of Liens permitted pursuant to clause (B) hereof,
such Lien shall only cover the same assets which originally
secured the obligations being extended, renewed or replaced;
(viii) purchase money security interests in or purchase
money mortgages on real or personal property acquired after the
date hereof to secure purchase money Indebtedness of the type and
amount permitted by Section 9.1(c) or Liens arising in connection
with Capitalized Leases permitted by Section 9.1(c), in each case
incurred in connection with the acquisition of such property,
which security interests or mortgages cover only the real or
personal property so acquired;
(ix) Liens on each Mortgaged Property as and to the extent
permitted by the Mortgage applicable thereto;
(x) Liens in favor of the Administrative Agent for the
benefit of the Lenders and the Administrative Agent under the Loan
Documents;
(xi) any interest or title of a lessor in connection with a
Permitted Acquisition or any operating lease entered into by the
Borrower or any Restricted Subsidiary in the ordinary course of
its business and covering only the assets so leased;
(xii) Liens arising by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with a depository institution;
(xiii) Liens incurred or deposits made to secure the
performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of alike nature incurred
in the ordinary course of business securing obligations not
exceeding $2,500,000 in the aggregate;
67
(xiv) Liens arising in the ordinary course of business out
of consignment or similar arrangements for the sale of goods
securing obligations not exceeding $100,000 in the aggregate;
(xv) Liens securing Indebtedness described in Section
9.1(l);
(xvi) Liens securing Indebtedness under the Existing Credit
Agreement (PROVIDED, that the Indebtedness is paid in full in cash
and the Liens securing the Indebtedness under the Existing Credit
and the Existing Credit Agreement are terminated (except for
provisions thereof that expressly survive such termination), in
each case on the Closing Date);
(xvii) Liens consisting of the licensing of intellectual
property in the ordinary course of business and consistent with
past practices, including, without limitation, (i) that certain
License Agreement between Borrower and Friendly's Realty I, LLC, a
Delaware limited liability company, (ii) that certain License
Agreement between Borrower and Friendly's Realty II, LLC, a
Delaware limited liability company, (iii) that certain License
Agreement between Borrower and Friendly's Realty III, LLC, a
Delaware limited liability company, and (iv) that certain Security
and License Agreement between the Borrower and GE Capital
Franchise Finance Corporation; PROVIDED, that the use of such
licenses shall be limited to the Units subject to, and on which
Liens have been granted in connection with, the FFCA Mortgage
Financing;
(xviii) Liens (A) in favor of the SPVs granted by the
Borrower pursuant to the FFCA Master Leases and (B) in favor of
GECC granted by the Borrower pursuant to the FFCA Amended and
Restated Master Lease, and in each case at all times subject to
the Security Interest Subordination Agreements; and
(xix) Liens not otherwise permitted hereunder in an
aggregate amount not to exceed $10,000.
9.2.2. RESTRICTIONS ON NEGATIVE PLEDGES AND UPSTREAM LIMITATIONS.
Except as set forth on SCHEDULE 9.2.2, the Borrower will not, nor will it permit
any of its Restricted Subsidiaries to (a) enter into or permit to exist any
arrangement or agreement (excluding the Credit Agreement and the other Loan
Documents) which directly or indirectly prohibits the Borrower or any of its
Restricted Subsidiaries from creating, assuming or incurring any Lien granted
pursuant to this Credit Agreement or any other Loan Document to secure the
Obligations upon its properties, revenues or assets or those of any of its
Restricted Subsidiaries whether now owned or hereafter acquired, or (b) enter
into any agreement, contract or arrangement (excluding the Credit Agreement and
the other Loan Documents) restricting the ability of any Restricted Subsidiary
of the Borrower to pay or make dividends or distributions in cash or kind to the
Borrower, to make loans, advances or other payments of whatsoever nature to the
Borrower, or to make transfers or distributions of all or any part of its assets
68
to the Borrower; in each case other than (i) restrictions on specific assets
which assets are the subject of purchase money security interests or Capitalized
Leases to the extent permitted under Section 9.2.1, (ii) customary
anti-assignment provisions contained in leases and licensing agreements entered
into by the Borrower or such Restricted Subsidiary in the ordinary course of its
business, (iii) in the case of clause (b), any encumbrance or restriction (A)
that restricts in a customary manner the subletting, assignment or transfer of
any property or asset that is subject to a lease, license or similar contract,
(B) by virtue of any transfer of, agreement to transfer, option or right with
respect to, or Lien on, any property or assets of the Borrower or any Restricted
Subsidiary not otherwise prohibited by this Agreement or (C) contained in
security agreements securing Indebtedness of a Restricted Subsidiary permitted
hereunder to the extent such encumbrance or restrictions restrict the transfer
of the property subject to such security agreements, (iv) any encumbrance or
restriction arising under or by reason of applicable law, (v) any encumbrance or
restriction applicable to secured Indebtedness otherwise permitted to be
incurred under this Agreement that limits the right of the debtor to dispose of
the assets securing such Indebtedness, (vi) customary net worth provisions
contained in leases and other agreements entered into by the Borrower or a
Restricted Subsidiary in the ordinary course of business, (vii) any restrictions
with respect to a Restricted Subsidiary imposed pursuant to an agreement which
has been entered into in connection with the disposition of the common stock or
assets of such Restricted Subsidiary in a transaction permitted hereunder, or
(viii) any restrictions contained in the FFCA Mortgage Financing Documents and
the Sale-Leaseback Transaction Documents in respect of Encumbered Properties.
9.2.3. NEGATIVE PLEDGE. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to create, assume or incur any Lien (other
than Liens permitted pursuant to Section Section 9.2.1(ii), (iv), (v) and (vi))
upon any Non-Encumbered Properties.
9.3. RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except:
(a) Investments existing on the date hereof and listed on SCHEDULE
9.3 hereto;
(b) Investments with respect to Indebtedness permitted by Section
Section 9.1(d), (g), (h), (i), (j), (k) and (l);
(c) Investments consisting of the Guaranty or Investments by the
Borrower in Restricted Subsidiaries of the Borrower existing on the
Closing Date;
(d) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by Section 9.5.2 (b) and (d);
69
(e) Investments consisting of loans and advances to employees in
the ordinary course of business consistent with past practices not to
exceed $2,000,000 in the aggregate at any time outstanding;
(f) Investments consisting of extensions of trade credit in the
ordinary course of business consistent with past practices;
(g) Investments in Cash Equivalents;
(h) Investments in, and extensions of credit to (i) (A) any
Unrestricted Subsidiary (other than Restaurant Insurance Corporation) in
an aggregate principal amount not exceed $5,000 by the Borrower and (B)
Restaurant Insurance Corporation in an aggregate principal amount not to
exceed $10,000,000 by the Borrower, (ii) the Borrower in an aggregate
principal amount not to exceed $29,000,000 by any Restricted Subsidiary,
and (iii) the Borrower in an aggregate principal amount not to exceed
$10,000,000 by Restaurant Insurance Corporation;
(i) Investments in securities of account debtors received (A) in
settlement of obligations in the ordinary course of business or (B)
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such account debtors; PROVIDED, that any
Investments pursuant to clause (A) shall be limited to $1,000,000 in the
aggregate;
(j) Investments in respect of guarantees of the Borrower and its
Restricted Subsidiaries permitted by Section 9.1;
(k) Investments consisting of capital contributions to Friendly's
Restaurants Franchise, Inc. consistent with past practices; and
(l) Investments in franchisees of the Borrower in an aggregate
amount at any one time outstanding not to exceed $ 10,000,000.
Any Investment which when made complies with the requirements of the definition
of the term "CASH EQUIVALENT" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements.
9.4. RESTRICTED PAYMENTS. The Borrower will not, and will not permit any
of its Subsidiaries to, make any Restricted Payments other than (a) payments of
salary and compensation to employees and members of the Board of Directors of
the Borrower and its Subsidiaries in the ordinary course of business and
consistent with past practices, (b) payments of Fees and expenses payable
pursuant to this Credit Agreement, and (c) payments to suppliers and customers
in the ordinary course of business and consistent with past practices.
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9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
9.5.1. MERGERS AND ACQUISITIONS. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, become a party to any merger,
amalgamation or consolidation, or agree to or effect any asset acquisition or
stock acquisition (other than the acquisition of assets in the ordinary course
of business consistent with past practices, the formation of Restricted or
Unrestricted Subsidiaries in compliance with Section 8.13.1 and Section 9.3)
except:
(a) the merger or consolidation of one or more of the Restricted
Subsidiaries of the Borrower with and into the Borrower;
(b) the merger or consolidation of two or more Restricted
Subsidiaries of the Borrower;
(c) Permitted Acquisitions.
9.5.2. DISPOSITION OF ASSETS. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, become a party to or agree to or
effect any disposition of assets, except:
(a) the sale of inventory in the ordinary course of business
consistent with past practices;
(b) Permitted Unit Sales;
(c) the licensing of intellectual property, including, without
limitation, (i) that certain License Agreement between Borrower and
Friendly's Realty I, LLC, a Delaware limited liability company, (ii) that
certain License Agreement between Borrower and Friendly's Realty II, LLC,
a Delaware limited liability company, (iii) that certain License
Agreement between Borrower and Friendly's Realty III, LLC, a Delaware
limited liability company, and (iv) that certain Security and License
Agreement between the Borrower and GE Capital Franchise Finance
Corporation (PROVIDED, that the use of such licenses shall be limited to
the Units subject to, and on which Liens have been granted in connection
with, the FFCA Mortgage Financing);
(d) the disposition of obsolete or worn-out assets in the ordinary
course of business consistent with past practices;
(e) the sale or other disposition of any Excess Properties;
(f) sales of assets permitted under the FFCA Mortgage Financing
Documents (other than the sale of the Capital Stock of the SPVs) and the
Sale-Leaseback Transaction Documents;
(g) Sale of Cash Equivalents in the ordinary course of business
and consistent with past practices; and
(h) Permitted Intercompany Sales.
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9.6. SALE AND LEASEBACK. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby the Borrower or any Restricted Subsidiary of the Borrower
shall sell or transfer any property owned by it in order then or thereafter to
lease such property or lease other property that the Borrower or any Restricted
Subsidiary of the Borrower intends to use for substantially the same purpose as
the property being sold or transferred other than (x) as permitted by Section
Section 9.1, 9.2 or 9.5.2, or (y) the Sale-Leaseback Transaction and (z) the
FFCA Mortgage Financing.
9.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will not, and will
not permit any of its Subsidiaries to, (a) use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real Estate, (d)
conduct any activity at any Real Estate or use any Real Estate in any manner so
as to cause a release (i.e. releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on, upon or into the Real
Estate or (e) otherwise conduct any activity at any Real Estate or use any Real
Estate in any manner that would violate any Environmental Law or bring such Real
Estate in violation of any Environmental Law, where, in the case of clauses (a)
through (e), it would have a Material Adverse Effect or result in material
non-compliance with applicable Environmental Laws.
9.8. PREPAYMENTS; MODIFICATION OF CERTAIN DOCUMENTS.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, prepay, redeem or repurchase any of the Indebtedness
outstanding under the Senior Note Indenture, other than the prepayment of
any amounts outstanding under the Senior Note Indenture (i) pursuant to
the Senior Note Tender Offer on the Closing Date, (ii) with funds
constituting Permitted Excess Cash Flow Prepayments and made during any
Excess Cash Flow Period; PROVIDED, that if the Fixed Charge Coverage
Ratio for each Reference Period during such Excess Cash Flow Period is
greater than or equal to 1.25:1.00, any remaining Excess Cash Flow from
the prior Excess Cash Flow Period may be carried forward to the
immediately succeeding Excess Cash Flow Period and utilized to make
Permitted Excess Cash Flow Prepayments in such succeeding Excess Cash
Flow Period; and (iii) with funds constituting proceeds received by the
Borrower from (A) any Excess Properties Sale or (B) any Permitted Unit
Sale.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, consent to or enter into any amendment, supplement or
other modification of any of the terms or provisions contained in, or
applicable to, (i) the Senior Note Indenture, other than any amendment,
supplement, waiver or modification for which no fee is payable to the
holders of the Indebtedness outstanding under the Senior Note Indenture
and which (A) extends the date or reduces the amount of any required
repayment, prepayment or redemption of the principal of such Senior
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Note Indenture, (B) reduces the rate or extends the date for payment of
the interest, premium (if any) or fees payable on such Senior Note
Indenture or (C) makes the covenants, events of default or remedies in
such Senior Note Indenture less restrictive on the Borrower, or (ii) any
Sale-Leaseback Transaction Documents or FFCA Mortgage Financing
Documents, in each case in any manner that is adverse in any respect to
the Lenders unless consented to in writing prior thereto by the Required
Lenders.
9.9. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA Affiliate
will:
(a) engage in any "PROHIBITED TRANSACTION" within the meaning of
Section 406 of ERISA or Section 4975 of the Code which could result in a
material liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "ACCUMULATED
FUNDING DEFICIENCY", as such term is defined in Section 302 of ERISA,
whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the
Borrower or any of its Subsidiaries pursuant to Section 302(f) or Section
4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring
the posting of security pursuant to Section 307 of ERISA or Section
401(a)(29) of the Code;
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities, by
more than the amount set forth in Section 7.16.3; or
(f) permit or take any action which would contravene any
Applicable Pension Legislation.
9.10. BUSINESS ACTIVITIES. The Borrower will not, and will not permit any
of its Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Closing Date and in related businesses.
9.11. FISCAL YEAR. The Borrower will not, and will not permit any of it
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in Section 7.4.1.
9.12. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any transaction with any Affiliate
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental
73
of real or personal property to or from, or otherwise requiring payments to or
from any such Affiliate or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any such Affiliate has a substantial
interest or is an officer, director, trustee or partner, on terms more favorable
to such Person than would have been obtainable on an arm's-length basis in the
ordinary course of business; PROVIDED, that nothing contained herein shall
prohibit the Sale-Leaseback Transaction or the FFCA Mortgage Financing.
9.13. BANK ACCOUNTS. The Borrower will not, and will not permit any of
its Restricted Subsidiaries to (a) if at any time an Event of Default shall have
occurred and be continuing, establish any bank accounts other than those Local
Accounts, Interim Concentration Accounts and other accounts, all listed on
SCHEDULE 7.21 (as such Schedule shall be updated pursuant to Section 8.4(i)),
without the Administrative Agent's prior written consent, (b) violate directly
or indirectly any Agency Account Agreement or other bank agency or lock box
agreement in favor of the Administrative Agent for the benefit of the Lenders
and the Administrative Agent with respect to such account, or (c) deposit into
any of the payroll accounts listed on SCHEDULE 7.21 any amounts in excess of
amounts necessary to pay current payroll obligations from such accounts.
10. FINANCIAL COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Revolving Credit Note is
outstanding or any Lender has any obligation to make any Loans or the
Administrative Agent has any obligation to issue, extend or renew any Letters of
Credit:
10.1. INTEREST COVERAGE. The Borrower will not permit the Interest
Coverage Ratio for any Reference Period to be less than the ratio set forth
opposite such period set forth in such table:
Period Ratio
------ -----
Fourth Fiscal Quarter of 2001 2.20:1.00
First Fiscal Quarter of 2002 2.15:1.00
Second Fiscal Quarter of 2002 2.00:1.00
Third Fiscal Quarter of 2002 1.85:1.00
Fourth Fiscal Quarter of 2002 through
Third Fiscal Quarter of 2003 1.95:1.00
Fourth Fiscal Quarter of 2003
and thereafter 2.00:1.00
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10.2. CAPITAL EXPENDITURES. The Borrower will not make, or permit any
Subsidiary of the Borrower to make (a) Growth Capital Expenditures that exceed,
in the aggregate, $7,000,000, or (b) Capital Expenditures in any fiscal year
that exceed, in the aggregate, the amount set forth below opposite such fiscal
year (PROVIDED, that (x) for any Excess Cash Flow Period, the aggregate amount
of any Excess Cash Flow not used by the Borrower to make Permitted Excess Cash
Flow Prepayments (together with any unused amount permitted to be carried
forward pursuant to Section 9.8(a)(ii) from the immediately preceding Excess
Cash Flow Period), and (y) for any fiscal year of the Borrower, the aggregate
amount of proceeds of Excess Properties Sales or Permitted Unit Sales not used
by the Borrower to prepay, redeem or repurchase any of the Indebtedness
outstanding under the Senior Note Indenture, and in each case used by the
Borrower to make Capital Expenditures shall in each case be excluded for
purposes of the limitations for Capital Expenditures set forth below):
Fiscal Year Capital Expenditures
----------- --------------------
2001 $14,000,000
2002 $16,500,000
2003 $17,500,000
2004 $18,000,000
10.3. MINIMUM EBITDA.
(a) The Borrower will not permit Consolidated EBITDA for any
Reference Period ending during any period described in the table below to
be less than the amount set forth opposite such period in such table:
Period Amount
------ ------
Fourth Fiscal Quarter of 2001 $60,000,000
First Fiscal Quarter of 2002 $56,200,000
Second Fiscal Quarter of 2002 $50,600,000
Third Fiscal Quarter of 2002 $47,100,000
Fourth Fiscal Quarter of 2002 through $48,900,000
First Fiscal Quarter of 2003
Second Fiscal Quarter of 2003 $48,800,000
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Third Fiscal Quarter of 2003 through $48,700,000
First Fiscal Quarter of 2004
Second Fiscal Quarter of 2004 and
thereafter $48,600,000
(b) The Borrower will not permit Consolidated EBITDA for any
fiscal quarter described in the table below to be less than the amount
set forth opposite such period in such table:
Period Amount
------ ------
First Fiscal Quarter of 2002, 2003 and 2004 $4,000,000
Second Fiscal Quarter of 2002, 2003 and 2004 $14,000,000
Third Fiscal Quarter of 2002, 2003 and 2004 $13,000,000
Fourth Fiscal Quarter of 2001, 2002, 2003 and 2004 $5,000,000
10.4. LEVERAGE RATIO. The Borrower will not permit the Leverage Ratio for
any Reference Period ending during any period described in the table set forth
below to exceed the ratio set forth opposite such period in such table:
Period Ratio
------ -----
Fourth Fiscal Quarter of 2001 4.25:1.00
First Fiscal Quarter of 2002 4.55:1.00
Second Fiscal Quarter of 2002 5.05:1.00
Third Fiscal Quarter of 2002 5.40:1.00
Fourth Fiscal Quarter of 2002 through 5.20:1.00
Fourth Fiscal Quarter of 2003
First Fiscal Quarter of 2004 and
thereafter
5.15:1.00
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10.5. CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not permit
Consolidated Tangible Net Worth to be less than the sum of (-)$120,000,000 PLUS,
on a cumulative basis, eighty-five percent (85%) of positive Consolidated Net
Income at the end of each fiscal year subsequent to the 2001 fiscal year, PLUS,
100% of any Equity Issuances, in each case determined for any fiscal year.
10.6. FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the Fixed
Charge Coverage Ratio for any Reference Period to be less than the ratio set
forth opposite such period in such table:
Period Ratio
------ -----
Fourth Fiscal Quarter of 2001 1.15:1.00
First Fiscal Quarter of 2002 1.15:1.00
Second Fiscal Quarter of 2002 1.10:1.00
Third Fiscal Quarter of 2002 1.00:1.00
Fourth Fiscal Quarter of 2002 1.05:1.00
First Fiscal Quarter of 2003 through 1.10:1.00
Second Fiscal Quarter of 2003
Third Fiscal Quarter of 2003 and 1:05:1.00
thereafter
11. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Revolving Credit Loans
and of the Administrative Agent to issue any initial Letters of Credit shall be
subject to the satisfaction of the following conditions precedent on or prior to
December 20, 2001:
11.1. LOAN DOCUMENTS, ETC.
11.1.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to each of the
Lenders.
11.1.2. SALE-LEASEBACK TRANSACTION DOCUMENTS. Each of the
Sale-Leaseback Transaction Documents shall have been duly executed and delivered
by the respective parties thereto, shall be in full force and effect and shall
be in form and substance satisfactory to each of the Lenders. The Administrative
Agent shall have received evidence satisfactory to it that all actions necessary
to consummate the Sale-Leaseback Transaction (other than the closing of the
transactions contemplated by this Credit Agreement) shall have been taken in
accordance with all applicable law and in
77
accordance with the terms of the Sale-Leaseback Transaction Documents, without
amendment or waiver of any material provision thereof by the parties thereto.
11.1.3. FFCA MORTGAGE FINANCING DOCUMENTS. Each of the FFCA Mortgage
Financing Documents shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and effect and shall be in
form and substance satisfactory to each of the Lenders. The Administrative Agent
shall have received evidence satisfactory to it that all actions necessary to
consummate the transactions contemplated by the FFCA Mortgage Financing
Documents (other than the closing of the transactions contemplated by this
Credit Agreement) shall have been taken in accordance with all applicable law
and in accordance with the terms of the FFCA Mortgage Financing Documents,
without amendment or waiver of any material provision thereof by the parties
thereto.
11.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS. Each of the Lenders shall
have received from the Borrower and each of its Subsidiaries a copy, certified
by a duly authorized officer of such Person to be true and complete on the
Closing Date, of each of its Governing Documents as in effect on such date of
certification.
11.3. CORPORATE OR OTHER ACTION; CORPORATE STRUCTURE. All corporate (or
other) action necessary for the valid execution, delivery and performance by the
Borrower and each of its Subsidiaries of this Credit Agreement, the other Loan
Documents, the Sale-Leaseback Transaction Documents and the FFCA Mortgage
Financing Documents to which it is or is to become a party shall have been duly
and effectively taken, and evidence thereof satisfactory to the Lenders shall
have been provided to each of the Lenders. The Administrative Agent shall be
reasonably satisfied with all aspects of the transactions contemplated by this
Credit Agreement, the other Loan Documents, the Sale-Leaseback Transaction
Documents and the FFCA Mortgage Financing Documents, including, the capital and
corporate structure of the Borrower and each of its Subsidiaries, the sources
and uses of the proceeds utilized to consummate such transactions, the terms and
provisions of each of the Sale-Leaseback Transaction Documents, the FFCA
Mortgage Financing Documents, the Governing Documents and any management
agreements entered into by the Borrower or any of its Subsidiaries.
11.4. INCUMBENCY CERTIFICATE. Each of the Lenders shall have received
from the Borrower and each of its Restricted Subsidiaries an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized officer
of the Borrower or such Restricted Subsidiary, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to sign, in
the name and on behalf of each of the Borrower or such Restricted Subsidiary,
each of the Loan Documents to which the Borrower or such Restricted Subsidiary
is or is to become a party; (b) in the case of the Borrower, to make Loan and
Letter of Credit Requests and Conversion Requests and to apply for Letters of
Credit; and (c) to give notices and to take other action on its behalf under the
Loan Documents.
11.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Administrative Agent a legal, valid and enforceable first
(except for
78
Permitted Liens entitled to priority under applicable law) security interest in
and Lien upon the Collateral. All filings, recordings, deliveries of instruments
and other actions necessary or desirable in the opinion of the Administrative
Agent to protect and preserve such security interests shall have been duly
effected. The Administrative Agent shall have received evidence thereof in form
and substance satisfactory to the Administrative Agent.
11.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The Administrative
Agent shall have received from each of the Borrower and its Restricted
Subsidiaries a completed and fully executed Perfection Certificate and the
results of UCC searches (and the equivalent thereof in all applicable foreign
jurisdictions) with respect to the Collateral, indicating no Liens other than
Permitted Liens and otherwise in form and substance satisfactory to the
Administrative Agent.
11.7. LANDLORD CONSENTS. The Administrative Agent shall have received
from the Borrower and its Restricted Subsidiaries all consents required for the
Administrative Agent to receive, as part of the Security Documents, a collateral
assignment of each material leasehold of personal property, and a mortgage of
each material leasehold of real property, together in each case with such
estoppel certificates as the Administrative Agent may request.
11.8. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received (a) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Security Agreements and (b)
certified copies of all policies evidencing such insurance (or certificates
therefor signed by the insurer or an agent authorized to bind the insurer).
11.9. SOLVENCY CERTIFICATE. Each of the Lenders shall have received a
Solvency Certificate dated as of the Closing Date.
11.10. OPINION OF COUNSEL. Each of the Lenders and the Administrative
Agent shall have received a favorable legal opinion addressed to the Lenders and
the Administrative Agent, dated as of the Closing Date, in form and substance
satisfactory to the Lenders and the Administrative Agent, from:
(a) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Borrower and its
Subsidiaries; and
(b) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel to the Borrower.
11.11. PAYMENT OF FEES. The Borrower shall have paid to the Lenders or
the Administrative Agent, as appropriate, the Fees pursuant to Section Section
4.6 (to the extent due and owing), 5.1 and 5.2.
11.12. PAYOFF LETTER. The Administrative Agent shall have received a
payoff letter from the Existing Lender, indicating the amount of the loan
obligations of
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the Borrower to the Existing Lender to be discharged on the Closing Date and an
acknowledgment by the Existing Lender that upon receipt of such funds it will
forthwith execute and deliver to the Administrative Agent for filing all
termination statements and take such other actions as may be necessary to
discharge or assign all mortgages, deeds of trust and security interests granted
by the Borrower or any of its Subsidiaries in favor of the Existing Lender.
11.13. MORTGAGES. The Administrative Agent shall have received Mortgages
with respect to the Core Mortgaged Properties (together with flood
certifications) listed on SCHEDULE 11.13, in each case in form and substance
satisfactory to the Administrative Agent.
11.14. FEE LETTERS. The Administrative Agent and the Lenders, as
applicable, shall have received the Fee Letters.
11.15. SECURITY INTEREST SUBORDINATION AGREEMENT. The Administrative
Agent shall have received the Security Interest Subordination Agreements in form
and substance satisfactory to the Administrative Agent.
11.16. POST-CLOSING LETTER. The Administrative Agent shall have received
a post-closing letter in form and substance satisfactory to the Administrative
Agent.
11.17. MISCELLANEOUS. The Administrative Agent shall have received such
other documents and instruments as shall be reasonably required by it in
connection with this Credit Agreement and the transactions contemplated thereby.
12. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan, including any Revolving
Credit Loan, and of the Administrative Agent to issue, extend or renew any
Letter of Credit, in each case whether on or after the Closing Date, shall also
be subject to the satisfaction of the following conditions precedent:
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement and the other Loan Documents shall be true in
all material respects as of the date as of which they were made and shall also
be true in all material respects at and as of the time of the making of such
Loan or the issuance, extension or renewal of such Letter of Credit, with the
same effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Credit Agreement
and the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly to an earlier
date) and no Default
80
or Event of Default shall have occurred and be continuing. The Administrative
Agent shall have received a certificate of the Borrower signed by an authorized
officer of the Borrower to such effect.
12.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew such Letter of Credit.
12.3. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Lenders and to the Administrative Agent and the Administrative
Agent's Special Counsel, and the Lenders, the Administrative Agent and such
counsel shall have received all information and such counterpart originals or
certified or other copies of such documents as the Administrative Agent may
reasonably request.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or
any Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay any
interest on the Loans, any Fees, or other sums due hereunder or under any
of the other Loan Documents, within three (3) days of such sum becoming
due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with any of its covenants
contained in Sections 8.5, 8.6.1, 8.12, 9 or 10;
(d) the Borrower or any of its Subsidiaries shall (i) fail to
comply with the covenants contained in Section 8.4 for five (5) days, or
(ii) fail to perform any term, covenant or agreement contained herein or
in any of the other Loan Documents (other than those specified elsewhere
in this Section 13.1 (including Section 13.1(a) and (b))) for twenty (20)
days after written notice of such failure has been given to the Borrower
by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents
or in any other document or instrument delivered pursuant to or in
connection with this
81
Credit Agreement shall prove to have been false in any material respect
upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries (other than the SPVs)
shall (i)(A) fail to pay at maturity, or within any applicable period of
grace, any obligation for borrowed money (including the obligations of
the Borrower and its Subsidiaries, as the case may be, under the Senior
Note Indenture or the Sale-Leaseback Transaction but excluding (subject
to clause (i)(B) hereof) the FFCA Mortgage Financing Documents), credit
received or in respect of any Capitalized Leases which obligation exceeds
$1,000,000, or (B) fail to observe or perform any material term, covenant
or agreement contained in the FFCA Master Leases or the FFCA Amended and
Restated Master Lease, or (ii) fail to observe or perform any material
term, covenant or agreement contained in any agreement by which it is
bound, evidencing or securing borrowed money (including the Senior Note
Indenture and the Sale-Leaseback Transaction Documents but excluding the
FFCA Mortgage Financing Documents) or credit received or in respect of
any Capitalized Leases which obligation exceeds $1,000,000 for such
period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof or to require the Borrower,
to prepay, redeem or repurchase such obligations in whole or in part or
offer to prepay, redeem or repurchase such obligations in whole or in
part;
(g) the Borrower or any of its Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee
or other custodian, liquidator or receiver of the Borrower or any of its
Subsidiaries or of any substantial part of the assets of the Borrower or
any of its Subsidiaries or shall commence any case or other proceeding
relating to the Borrower or any of its Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such petition or application
shall not have been dismissed within sixty (60) days following the filing
thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered
in respect of the Borrower or any Subsidiary of the Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter
constituted;
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(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days any final judgment against the
Borrower or any of its Subsidiaries that, with other outstanding final
judgments, undischarged, against the Borrower or any of its Subsidiaries
exceeds in the aggregate (exclusive of any amounts fully covered by
insurance (less any applicable deductible)) $1,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Administrative Agent's security interests,
mortgages or liens in a substantial portion of the Collateral shall cease
to be perfected, or shall cease to have the priority contemplated by the
Security Documents, in each case otherwise than in accordance with the
terms thereof or pursuant to any transaction permitted hereunder or with
the express prior written agreement, consent or approval of the Lenders,
or any action at law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by
or on behalf of the Borrower or any of its Subsidiaries party thereto or
any of their respective stockholders, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or
ruling to the effect that, any one or more of the Loan Documents is
illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any termination
liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV
of ERISA in an aggregate amount exceeding $1,000,000, or the Borrower or
any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV
of ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $100,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to
make a required installment or other payment (within the meaning of
Section 302(f)(1) of ERISA), PROVIDED that such event (A) could
reasonably be expected to result in liability of the Borrower or any of
its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $100,000 and (B) could reasonably be expected
to constitute grounds for the termination of such Guaranteed Pension Plan
by the PBGC, for the appointment by the appropriate United States
District Court of a trustee to administer such Guaranteed Pension Plan or
for the imposition of a lien in favor of such Guaranteed Pension Plan; or
(ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the
PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public
enemy, or other casualty, or any eviction of the Borrower from any Units,
which in any such case causes, for more than fifteen (15) consecutive
days, the cessation or substantial curtailment of revenue producing
activities of the Borrower or any of its Subsidiaries which would have a
Material Adverse Effect;
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(m) a Change of Control shall occur;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrower declare all amounts owing with respect to this
Credit Agreement, the Revolving Credit Notes and the other Loan Documents and
all Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrower; PROVIDED
that in the event of any Event of Default specified in Section Section 13.1(g)
or 13.1(h), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Administrative
Agent or any Lender.
13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in Section 13.1(g) or Section 13.1(h) shall occur, any unused
portion of the credit hereunder shall forthwith terminate and each of the
Lenders shall be relieved of all further obligations to make Loans to the
Borrower and the Administrative Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing, the Administrative Agent may and,
upon the request of the Required Lenders, shall, by notice to the Borrower,
terminate the unused portion of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall terminate immediately
and each of the Lenders shall be relieved of all further obligations to make
Loans and the Administrative Agent shall be relieved of all further obligations
to issue, extend or renew Letters of Credit. No termination of the credit
hereunder shall relieve the Borrower or any of its Subsidiaries of any of the
Obligations.
13.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to Section 13.1, each Lender, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may,
with the consent of the Required Lenders but not otherwise, proceed to protect
and enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Lender are evidenced,
including as permitted by applicable law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Administrative Agent or the holder of any Revolving Credit Note or
purchaser of any Letter of Credit Participation is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or any other provision of law.
13.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following
the occurrence or during the continuance of any Event of Default, the
Administrative
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Agent or any Lender, as the case may be, receives any monies in connection with
the enforcement of any the Security Documents, or otherwise with respect to the
realization upon any of the Collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have
been incurred or sustained by the Administrative Agent in connection with
the collection of such monies by the Administrative Agent, for the
exercise, protection or enforcement by the Administrative Agent of all or
any of the rights, remedies, powers and privileges of the Administrative
Agent under this Credit Agreement or any of the other Loan Documents or
in respect of the Collateral or in support of any provision of adequate
indemnity to the Administrative Agent against any taxes or liens which by
law shall have, or may have, priority over the rights of the
Administrative Agent to such monies;
(b) Second, to all other Obligations in such order or preference
as the Administrative Agent may reasonably determine in good faith;
PROVIDED, HOWEVER, that (i) distributions shall be made (A) PARI PASSU
among Obligations with respect to the Administrative Agent's Fee and all
other Obligations and (B) with respect to each type of Obligation owing
to the Lenders, such as interest, principal, fees and expenses, among the
Lenders PRO RATA, and (ii) the Administrative Agent may in its discretion
make proper allowance to take into account any Obligations not then due
and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Lenders and the
Administrative Agent of all of the Obligations, to the payment of any
obligations required to be paid pursuant to Section 9-608(a)(1)(C) or
9-615(a)(3) of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Borrower
or to such other Persons as are entitled thereto.
14. THE ADMINISTRATIVE AGENT.
14.1. AUTHORIZATION.
(a) The Administrative Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such
powers as are reasonably incident thereto, including the authority,
without the necessity of any notice to or further consent of the Lenders,
from time to time to take any action with respect to any Collateral or
the Security Documents which may be necessary to perfect, maintain
perfected or insure the priority of the security interest in and liens
upon the Collateral granted pursuant to the Security Documents, PROVIDED
that no duties or
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responsibilities not expressly assumed herein or therein shall be implied
to have been assumed by the Administrative Agent.
(b) The relationship between the Administrative Agent and each of
the Lenders is that of an independent contractor. The use of the term
"ADMINISTRATIVE AGENT" is for convenience only and is used to describe,
as a form of convention, the independent contractual relationship between
the Administrative Agent and each of the Lenders. Nothing contained in
this Credit Agreement nor the other Loan Documents shall be construed to
create an agency, trust or other fiduciary relationship between the
Administrative Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Administrative Agent is
nevertheless a "REPRESENTATIVE" of the Lenders, as that term is defined
in Article 1 of the Uniform Commercial Code, for purposes of actions for
the benefit of the Lenders and the Administrative Agent with respect to
all collateral security and guaranties contemplated by the Loan
Documents. Such actions include the designation of the Administrative
Agent as "SECURED PARTY", "MORTGAGEE" or the like on all financing
statements and other documents and instruments, whether recorded or
otherwise, relating to the attachment, perfection, priority or
enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any
of the Obligations, all for the benefit of the Lenders and the
Administrative Agent.
14.2. EMPLOYEES AND ADMINISTRATIVE AGENTS. The Administrative Agent may
exercise its powers and execute its duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Credit Agreement and the
other Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrower.
14.3. NO LIABILITY. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
14.4. NO REPRESENTATIONS.
14.4.1. GENERAL. The Administrative Agent shall not be responsible
for the execution or validity or enforceability of this Credit Agreement, the
Revolving Credit Notes, the Letters of Credit, any of the other Loan Documents
or any
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instrument at any time constituting, or intended to constitute, collateral
security for the Revolving Credit Notes, or for the value of any such collateral
security or for the validity, enforceability or collectability of any such
amounts owing with respect to the Revolving Credit Notes, or for any recitals or
statements, warranties or representations made herein or in any of the other
Loan Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrower or any of its Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security for the Revolving
Credit Notes or to inspect any of the properties, books or records of the
Borrower or any of its Subsidiaries. The Administrative Agent shall not be bound
to ascertain whether any notice, consent, waiver or request delivered to it by
the Borrower or any holder of any of the Revolving Credit Notes shall have been
duly authorized or is true, accurate and complete. The Administrative Agent has
not made nor does it now make any representations or warranties, express or
implied, nor does it assume any liability to the Lenders, with respect to the
credit worthiness or financial conditions of the Borrower or any of its
Subsidiaries. Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement.
14.4.2. CLOSING DOCUMENTATION, ETC. For purposes of determining
compliance with the conditions set forth in Section 11, each Lender that has
executed this Credit Agreement shall be deemed to have consented to, approved or
accepted, or to be satisfied with, each document and matter either sent, or made
available, by the Administrative Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.
14.5. PAYMENTS.
14.5.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by the Borrower
to the Administrative Agent hereunder or any of the other Loan Documents for the
account of any Lender shall constitute a payment to such Lender. The
Administrative Agent agrees promptly to distribute to each Lender such Lender's
PRO RATA share of payments received by the Administrative Agent for the account
of the Lenders except as otherwise expressly provided herein or in any of the
other Loan Documents.
14.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the opinion of
the Administrative Agent the distribution of any amount received by it in such
capacity hereunder, under the Revolving Credit Notes or under any of the other
Loan Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been adjudicated by
a court of competent jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the Administrative Agent is
to be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Administrative Agent its proportionate share of
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the amount so adjudged to be repaid or shall pay over the same in such manner
and to such Persons as shall be determined by such court.
14.5.3. DELINQUENT LENDERS. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (a) to make available to the Administrative Agent its PRO RATA
share of any Loan or to purchase any Letter of Credit Participation or (b) to
comply with the provisions of Section 16.1 with respect to making dispositions
and arrangements with the other Lenders, where such Lender's share of any
payment received, whether by setoff or otherwise, is in excess of its PRO RATA
share of such payments due and payable to all of the Lenders, in each case as,
when and to the full extent required by the provisions of this Credit Agreement,
shall be deemed delinquent (a "DELINQUENT LENDER") and shall be deemed a
Delinquent Lender until such time as such delinquency is satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it from the
Borrower, whether on account of outstanding Loans, Unpaid Reimbursement
Obligations, interest, fees or otherwise, to the remaining nondelinquent Lenders
for application to, and reduction of, their respective PRO RATA shares of all
outstanding Loans and Unpaid Reimbursement Obligations. The Delinquent Lender
hereby authorizes the Administrative Agent to distribute such payments to the
nondelinquent Lenders in proportion to their respective PRO RATA shares of all
outstanding Loans and Unpaid Reimbursement Obligations. A Delinquent Lender
shall be deemed to have satisfied in full a delinquency when and if, as a result
of application of the assigned payments to all outstanding Loans and Unpaid
Reimbursement Obligations of the nondelinquent Lenders, the Lenders' respective
PRO RATA shares of all outstanding Loans and Unpaid Reimbursement Obligations
have returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency.
14.6. HOLDERS OF REVOLVING CREDIT NOTES. The Administrative Agent may
deem and treat the payee of any Revolving Credit Note or the purchaser of any
Letter of Credit Participation as the absolute owner or purchaser thereof for
all purposes hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder, assignee or transferee.
14.7. INDEMNITY. The Lenders ratably agree hereby to indemnify and hold
harmless the Administrative Agent and its affiliates from and against any and
all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Administrative
Agent or such affiliate has not been reimbursed by the Borrower as required by
Section 16.2), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Revolving Credit Notes, or any of the
other Loan Documents or the transactions contemplated or evidenced hereby or
thereby, or the Administrative Agent's actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the
Administrative Agent's willful misconduct or gross negligence.
14.8. ADMINISTRATIVE AGENT AS LENDER. In its individual capacity, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of any of
the Revolving
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Credit Notes and as the purchaser of any Letter of Credit Participations, as it
would have were it not also the Administrative Agent.
14.9. RESIGNATION. The Administrative Agent may resign at any time by
giving sixty (60) days' prior written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. Unless an Event of Default shall
have occurred and be continuing, such successor Administrative Agent shall be
reasonably acceptable to the Borrower. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent, which
shall be a financial institution having a rating of not less than A or its
equivalent by S&P. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation,
the provisions of this Credit Agreement and the other Loan Documents shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent. The Syndication
Agent shall be deemed to have no duties or responsibilities under this Credit
Agreement.
14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. The Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of a
Default unless the Administrative Agent has received a written notice from a
Lender or the Borrower specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Lenders. Each Lender hereby agrees that, upon
learning of the existence of a Default or an Event of Default, it shall promptly
notify the Administrative Agent thereof.
14.11. DUTIES IN THE CASE OF ENFORCEMENT. In case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Administrative Agent shall, if (a)
so requested by the Required Lenders and (b) the Lenders have provided to the
Administrative Agent such additional indemnities and assurances against expenses
and liabilities as the Administrative Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in respect
of such Collateral. The Required Lenders may direct the Administrative Agent in
writing as to the method and the extent of any such sale or other disposition,
the Lenders hereby agreeing to indemnify and hold the Administrative Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions; PROVIDED that the Administrative
Agent need not comply with any such direction to the extent that the
Administrative Agent reasonably believes
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the Administrative Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
14.12. RELEASE OF COLLATERAL. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Lien
granted to or held by the Administrative Agent upon any Collateral: (a) upon
termination of the Commitments and payment in full of all Loans and all other
obligations known to the Administrative Agent and payable under this Agreement
or any other Loan Document; (b) constituting property sold or to be sold or
disposed of as part of or in connection with any disposition permitted
hereunder; (c) constituting property in which the Borrower or any Restricted
Subsidiary owned no interest at the time the Lien was granted or at any time
thereafter; (d) constituting property leased to the Borrower or any Restricted
Subsidiary under a lease which has expired or been terminated in a transaction
permitted under this Agreement or is about to expire and which has not been, and
is not intended by the Borrower or such Restricted Subsidiary to be, renewed or
extended; (e) consisting of an instrument evidencing Indebtedness or other debt
instrument, if the indebtedness thereby has been paid in full in cash; or (f) if
approved, authorized or ratified in writing by the Required Lenders or, if
required by Section 16.12, all the Lenders. Upon request by the Administrative
Agent at anytime, the Lenders will confirm in writing the Administrative Agent's
authority to release particular types or items of Collateral pursuant to this
Section 14.12.
15. ASSIGNMENT AND PARTICIPATION.
15.1. CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided herein,
each Lender may assign to one or more commercial banks, other financial
institutions or other Persons, all or a portion of its interests, rights and
obligations under this Credit Agreement (including all or a portion of its
Commitment Percentage and Commitment and the same portion of the Loans at the
time owing to it, the Revolving Credit Notes held by it and its participating
interest in the risk relating to any Letters of Credit); PROVIDED that (a) each
of the Administrative Agent and, unless a Default or Event of Default shall have
occurred and be continuing, the Borrower shall have given its prior written
consent to such assignment, which consent, in the case of the Administrative
Agent and the Borrower, will not be unreasonably withheld; except that the
consent of the Borrower or the Administrative Agent shall not be required in
connection with any assignment by a Lender to (i) an existing Lender or (ii) a
Lender Affiliate of such Lender, (b) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Lender's rights and
obligations under this Credit Agreement, it being understood that non-pro rata
assignments of the Commitments and the Revolving Credit Loans are not permitted,
(c) each assignment (or, in the case of assignments by a Lender to its Lender
Affiliates, the aggregate holdings of such Lender and its Lender Affiliates
after giving effect to such assignments), shall be in an amount not less than
$2,500,000 and in whole multiple increments of $500,000 in excess thereof (or
such lesser amount as shall constitute the aggregate holdings of such Lender),
and (d) the parties to such assignment shall execute and deliver to the
Administrative Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, together with any Revolving Credit Notes subject to
such assignment. Upon such execution, delivery,
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acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, (y) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (z) the assigning
Lender shall, to the extent provided in such assignment and upon payment to the
Administrative Agent of the assignment fee referred to in Section 15.3, be
released from its obligations under this Credit Agreement.
15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or mortgage,
(b) the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in Section Section 7.4 and 8.4 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such assignee will, independently and without reliance upon
the assigning Lender, the Administrative 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 Credit Agreement;
(e) such assignee appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers
under this Credit Agreement and the other Loan Documents as are delegated
to the
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Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto;
(f) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Lender;
(g) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance;
(h) such assignee acknowledges that it has made arrangements with
the assigning Lender satisfactory to such assignee with respect to its
PRO RATA share of Letter of Credit Fees in respect of outstanding Letters
of Credit; and
(i) such assignee acknowledges that it has complied with the
provisions of Section 5.3.3 to the extent applicable;
PROVIDED, that no assignment and delegation may be made to any Person if,
at the time of such assignment and delegation, the Borrower would be
obligated to pay any greater amount under Section Section 5.3.2, 5.7 or
5.8 to the assignee than the Borrower is then obligated to pay to the
assigning Lender under such Sections (and if any assignment is made in
violation of the foregoing, the Borrower will not be required to pay the
incremental amounts).
15.3. REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitment Percentage of, and principal amount of the Revolving Credit Loans
owing to and Letter of Credit Participations purchased by, the Lenders from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower and the Lenders at any reasonable time and from time
to time upon reasonable prior notice. Upon each such recordation, the assigning
Lender agrees to pay to the Administrative Agent an assignment fee in the sum of
$3,500.
15.4. NEW REVOLVING CREDIT NOTES. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with each
Revolving Credit Note subject to such assignment, the Administrative Agent shall
(a) record the information contained therein in the Register, and (b) give
prompt notice thereof to the Borrower and the Lenders (other than the assigning
Lender). Within five (5) Business Days after receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent, in exchange for each surrendered Revolving Credit Note, a new Revolving
Credit Note to the order of such Assignee in an amount equal to the amount
assumed by such Assignee pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained some portion of its obligations hereunder, a new
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Revolving Credit Note to the order of the assigning Lender in an amount equal to
the amount retained by it hereunder. Such new Revolving Credit Notes shall
provide that they are replacements for the surrendered Revolving Credit Notes,
shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Revolving Credit Notes, shall be dated the effective
date of such Assignment and Acceptance, and shall otherwise be in substantially
the form of the assigned Revolving Credit Notes. The surrendered Revolving
Credit Notes shall be cancelled and returned to the Borrower.
15.5. PARTICIPATIONS. Each Lender may sell participations to one or more
Lenders or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (a) each such participation shall be in an amount of not less than
$2,500,000, (b) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrower, (c) the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under each Loan
Document; and (d) the only rights granted to the participant pursuant to such
participation arrangements with respect to waivers, amendments or modifications
of the Loan Documents shall be the rights to approve waivers, amendments or
modifications that would reduce the principal of or the interest rate on any
Loans, extend the term or increase the amount of the Commitment of such Lender
as it relates to such participant, reduce the amount of any Commitment Fee or
Letter of Credit Fees to which such participant is entitled, extend any
regularly scheduled payment date for principal or interest, release all or
substantially all of the Collateral or release all or substantially all of the
Guarantors from their guaranty obligations under the Guaranties.
15.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Lender is an Affiliate of the Borrower, then any such assignee Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to Section
13.1 or Section 13.2, and the determination of the Required Lenders shall for
all purposes of this Credit Agreement and the other Loan Documents be made
without regard to such assignee Lender's interest in any of the Loans or
Reimbursement Obligations. If any Lender sells a participating interest in any
of the Loans or Reimbursement Obligations to a participant, and such participant
is the Borrower or an Affiliate of the Borrower, then such transferor Lender
shall promptly notify the Administrative Agent of the sale of such
participation. A transferor Lender shall have no right to vote as a Lender
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to Section 13.1 or Section 13.2 to the extent that
such participation is beneficially owned by the Borrower or any Affiliate of the
Borrower, and the determination of the Required Lenders shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
the interest of such transferor Lender in the Loans or Reimbursement Obligations
to the extent of such participation.
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15.7. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Lender shall
retain its rights to be indemnified pursuant to Section 16.3 with respect to any
claims or actions arising prior to the date of such assignment. If the Reference
Lender transfers all of its interest, rights and obligations under this Credit
Agreement, the Administrative Agent shall, in consultation with the Borrower and
with the consent of the Borrower and the Required Lenders, appoint another
Lender to act as the Reference Lender hereunder. Anything contained in this
Section 15 to the contrary notwithstanding, any Lender may at any time pledge or
assign a security interest in all or any portion of its interest and rights
under this Credit Agreement (including all or any portion of its Revolving
Credit Notes) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to (a) any of the twelve Federal Reserve Banks
organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341 and
(b) with respect to any Lender that is a fund that invests in bank loans, to any
lender or any trustee for, or any other representative of, holders of
obligations owed or securities issued by such fund as security for such
obligations or securities or any institutional custodian for such fund or for
such lender. Any foreclosure or similar action by any Person in respect of such
pledge or assignment shall be subject to the other provisions of this Section
15. No such pledge or the enforcement thereof shall release the pledgor Lender
from its obligations hereunder or under any of the other Loan Documents, provide
any voting rights hereunder to the pledgee thereof, or affect any rights or
obligations of the Borrower or Administrative Agent hereunder.
15.8. ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Lenders.
16. PROVISIONS OF GENERAL APPLICATIONS.
16.1. SETOFF. The Borrower hereby grants to the Administrative Agent and
each of the Lenders a continuing lien, security interest and right of setoff as
security for all liabilities and obligations to the Administrative Agent and
each Lender, whether now existing or hereafter arising, upon and against all
deposits, credits, collateral and property, now or hereafter in the possession,
custody, safekeeping or control of the Administrative Agent or such Lender or
any Lender Affiliate and their successors and assigns or in transit to any of
them. Regardless of the adequacy of any collateral, if any of the Obligations
are due and payable and have not been paid or any Event of Default shall have
occurred, any deposits or other sums credited by or due from any of the Lenders
to the Borrower and any securities or other property of the Borrower in the
possession of such Lender may, after giving prior written notice thereof to the
Borrower, be applied to or set off by such Lender against the payment of
Obligations and any and all other liabilities, direct, or indirect, absolute or
contingent, due and owing, now existing or hereafter arising, of the Borrower to
such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. Each of the Lenders agree with each other Lender that (a) if
an amount to be set off is to
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be applied to Indebtedness of the Borrower to such Lender, other than
Indebtedness evidenced by the Revolving Credit Notes held by such Lender or
constituting Reimbursement Obligations owed to such Lender, such amount shall be
applied ratably to such other Indebtedness and to the Indebtedness evidenced by
all such Revolving Credit Notes held by such Lender or constituting
Reimbursement Obligations owed to such Lender, and (b) if such Lender shall
receive from the Borrower, whether by voluntary payment, exercise of the right
of setoff, counterclaim, cross action, enforcement of the claim evidenced by the
Revolving Credit Notes held by, or constituting Reimbursement Obligations owed
to, such Lender by proceedings against the Borrower at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and apply to the payment of
the Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement
Obligations owed to, such Lender any amount in excess of its ratable portion of
the payments received by all of the Lenders with respect to the Revolving Credit
Notes held by, and Reimbursement Obligations owed to, all of the Lenders, such
Lender will make such disposition and arrangements with the other Lenders with
respect to such excess, either by way of distribution, PRO TANTO assignment of
claims, subrogation or otherwise as shall result in each Lender receiving in
respect of the Revolving Credit Notes held by it or Reimbursement Obligations
owed it, its proportionate payment as contemplated by this Credit Agreement;
PROVIDED that if all or any part of such excess payment is thereafter recovered
from such Lender, such disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without interest.
16.2. EXPENSES. The Borrower agrees to pay (a) any taxes (including any
interest and penalties in respect thereto) payable by the Administrative Agent
or any of the Lenders (other than franchise taxes and taxes based upon the
Administrative Agent's or any Lender's net income, profits or receipts) on or
with respect to the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify the Administrative Agent and each Lender
with respect thereto), (b) the reasonable fees, expenses and disbursements of
the Administrative Agent's Special Counsel or any local counsel to the
Administrative Agent incurred in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the Obligations or pursuant
to any terms of such Loan Document for providing for such cancellation, (c) the
fees, expenses and disbursements of the Administrative Agent or any of its
affiliates incurred by the Administrative Agent or such affiliate in connection
with the preparation, syndication, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including all title insurance
premiums and surveyor, engineering, appraisal, environmental reports to the
extent required by this Credit Agreement (including Phase I environmental
assessments) and examination charges, (d) any fees, costs, expenses and bank
charges, including bank charges for returned checks, incurred by the
Administrative Agent in establishing, maintaining or handling agency accounts,
lock box accounts and other accounts for the collection of any of the
Collateral, (e) all reasonable out-of-pocket expenses (including without
limitation reasonable
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attorneys' fees and costs, which attorneys may be employees of any Lender
(PROVIDED, that there is no duplication of effort in respect of the expenses
which are charged to the Borrower) or the Administrative Agent, and reasonable
consulting, accounting, appraisal, investment bankruptcy and similar
professional fees and charges) incurred by any Lender or the Administrative
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrower or any of its Subsidiaries or the
administration thereof after a Default or an Event of Default has occurred and
is continuing (including the negotiation of any restructuring or "work-out" with
the Borrower, whether or not consummated) and (ii) any litigation, proceeding or
dispute whether arising hereunder or otherwise, in any way related to any
Lender's or the Administrative Agent's relationship with the Borrower or any of
its Subsidiaries and (f) all reasonable fees, expenses and disbursements of any
Lender or the Administrative Agent incurred in connection with UCC searches, UCC
filings, intellectual property searches, intellectual property filings or
mortgage recordings. The covenants contained in this Section 16.2 shall survive
payment or satisfaction in full of all other obligations. In respect of Section
16.2(e), prior to the occurrence and continuance of a Default, the
Administrative Agent will notify (telephonically or otherwise, as determined by
the Administrative Agent in its reasonable discretion) the Borrower prior to the
engagement of any outside business consulting or audit services.
16.3. INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless
the Administrative Agent, its affiliates and the Lenders (collectively, the
"INDEMNITEES") from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (a) any actual or proposed use by the
Borrower or any of its Subsidiaries of the proceeds of any of the Loans or
Letters of Credit, (b) the reversal or withdrawal of any provisional credits
granted by the Administrative Agent upon the transfer of funds from lock box,
bank agency, concentration accounts or otherwise under any cash management
arrangements with the Borrower or any Subsidiary or in connection with the
provisional honoring of funds transfers, checks or other items, (c) any actual
or alleged infringement of any patent, copyright, trademark, service ▇▇▇▇ or
similar right of the Borrower or any of its Subsidiaries comprised in the
Collateral, (d) the Borrower or any of its Subsidiaries entering into or
performing this Credit Agreement or any of the other Loan Documents or (e) with
respect to the Borrower and its Subsidiaries and their respective properties and
assets, the violation of any Environmental Law, the handling, disposal, escape,
seepage, leakage, spillage, discharge, emission, release or threatened release
of any Hazardous Substances or any action, suit, proceeding or investigation
brought or threatened with respect to any Hazardous Substances (including, but
not limited to, claims with respect to wrongful death, personal injury or damage
to property) (all of the foregoing, the "INDEMNIFIED LIABILITIES"), in each case
including, without limitation, the reasonable fees and disbursements of counsel
and, without duplication of effort, allocated costs of internal counsel incurred
in connection with any such investigation, litigation or other proceeding;
PROVIDED, that the Borrower shall have no obligation hereunder to any Indemnitee
with respect to any Indemnified Liabilities to the extent such Indemnitee's
liabilities result from the gross negligence or willful misconduct of such
Indemnitee as
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determined by a final non-appealable adjudication by a court of competent
jurisdiction. In litigation, or the preparation therefor, the Lenders and the
Administrative Agent and its affiliates shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrower under the first sentence of this Section
16.3 are unenforceable for any reason (other than due to the operation of the
PROVISO to such first sentence), the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The covenants contained in this Section 16.3
shall survive payment or satisfaction in full of all other Obligations.
16.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
16.4.1. CONFIDENTIALITY. Each of the Lenders and the Administrative
Agent agrees, on behalf of itself and each of its affiliates, directors,
officers, employees and representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by the
Borrower or any of its Subsidiaries pursuant to this Credit Agreement that is
identified by such Person as being confidential at the time the same is
delivered to the Lenders or the Administrative Agent, PROVIDED that nothing
herein shall limit the disclosure of any such information (a) after such
information shall have become public other than through a violation of this
Section 16.4, or becomes available to any of the Lenders or the Administrative
Agent on a nonconfidential basis from a source other than the Borrower, (b) to
the extent required by statute, rule, regulation or judicial process, (c) to
counsel for any of the Lenders or the Administrative Agent, (d) to bank
examiners or any other regulatory authority having jurisdiction over any Lender
or the Administrative Agent, or to auditors or accountants, (e) to the
Administrative Agent, any Lender or any Financial Affiliate, (f) in connection
with any litigation to which any one or more of the Lenders, the Administrative
Agent or any Financial Affiliate is a party, or in connection with the
enforcement of rights or remedies hereunder or under any other Loan Document,
(g) to a Lender Affiliate or a Subsidiary or affiliate of the Administrative
Agent, (h) to any actual or prospective assignee or participant or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under this
Credit Agreement or any other Loan Document so long as such assignee,
participant or counterparty, as the case may be, agrees to be bound by the
provisions of Section 16.4 or (i) with the consent of the Borrower. Moreover,
each of the Administrative Agent, the Lenders and any Financial Affiliate is
hereby expressly permitted by the Borrower to refer to any of the Borrower and
its Subsidiaries in connection with any advertising, promotion or marketing
undertaken by the Administrative Agent, such Lender or such Financial Affiliate
and, for such purpose, the Administrative Agent, such Lender or such Financial
Affiliate may utilize any trade name, trademark, logo or other distinctive
symbol associated with the Borrower or any of its Subsidiaries or any of their
businesses.
16.4.2. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the Administrative Agent
shall,
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prior to disclosure thereof, notify the Borrower of any request for disclosure
of any such non-public information by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) or pursuant to
legal process.
16.4.3. OTHER. In no event shall any Lender or the Administrative
Agent be obligated or required to return any materials furnished to it or any
Financial Affiliate by the Borrower or any of its Subsidiaries. The obligations
of each Lender under this Section 16.4 shall supersede and replace the
obligations of such Lender under any confidentiality letter in respect of this
financing signed and delivered by such Lender to the Borrower prior to the date
hereof and shall be binding upon any assignee of, or purchaser of any
participation in, any interest in any of the Loans or Reimbursement Obligations
from any Lender.
16.5. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Revolving Credit Notes, in
any of the other Loan Documents or in any documents or other papers delivered by
or on behalf of the Borrower or any of its Subsidiaries pursuant hereto shall be
deemed to have been relied upon by the Lenders and the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Lenders of any of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any amount due under this Credit Agreement or the Revolving Credit Notes or any
of the other Loan Documents remains outstanding or any Lender has any obligation
to make any Loans or the Administrative Agent has any obligation to issue,
extend or renew any Letter of Credit, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All statements contained
in any certificate or other paper delivered to any Lender or the Administrative
Agent at any time by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower or such Subsidiary
hereunder.
16.6. NOTICES. Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required to be given
pursuant to this Credit Agreement or the Revolving Credit Notes or any Letter of
Credit Applications shall be in writing and shall be delivered in hand, mailed
by United States registered or certified first class mail, postage prepaid, sent
by overnight courier, or sent by telegraph, telecopy or facsimile and confirmed
by delivery via courier or postal service, addressed as follows:
(a) if to the Borrower, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, with a mandatory copy to
▇▇▇▇▇ ▇▇▇▇▇▇ at the same address, or, in each case, at such other address
for notice as the Borrower shall last have furnished in writing to the
Person giving the notice;
(b) if to the Administrative Agent, at Mailstop: MADE10008H, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇, or
such
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other address for notice as the Administrative Agent shall last have
furnished in writing to the Person giving the notice; and
(c) if to any Lender, at such Lender's address set forth on
SCHEDULE 1 hereto, or such other address for notice as such Lender shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand, overnight courier or facsimile
to a responsible officer of the party to which it is directed, at the time of
the receipt thereof by such officer or the sending of such facsimile, and (ii)
if sent by registered or certified first-class mail, postage prepaid, on the
third Business Day following the mailing thereof.
16.7. GOVERNING LAW. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH
OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN Section 16.6.
THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
16.8. HEADINGS. The captions in this Credit Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
16.9. COUNTERPARTS. This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any amendment
or waiver hereto shall be as effective as an original executed counterpart
hereof or of such amendment or waiver and shall be considered a representation
that an original executed counterpart hereof or such amendment or waiver, as the
case may be, will be delivered.
16.10. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding
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of the parties with respect to the transactions contemplated hereby. Neither
this Credit Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in Section 16.12.
16.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE REVOLVING CREDIT NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE ADMINISTRATIVE AGENT
OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE
LOAN DOCUMENTS AND AGREES THAT IT WILL NOT SEEK TO CONSOLIDATE ANY SUCH ACTION
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
Except as prohibited by law, the Borrower hereby waives any right it may have to
claim or recover in any litigation referred to in the preceding sentence any
special, exemplary, punitive or consequential damages or any damages other than,
or in addition to, actual damages. The Borrower (a) certifies that no
representative, agent or attorney of any Lender or the Administrative Agent has
represented, expressly or otherwise, that such Lender or the Administrative
Agent would not, in the event of litigation, seek to enforce the foregoing
waivers and (b) acknowledges that the Administrative Agent and the Lenders have
been induced to enter into this Credit Agreement, the other Loan Documents to
which it is a party by, among other things, the waivers and certifications
contained herein.
16.12. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Credit Agreement to be given by the Lenders may be
given, and any term of this Credit Agreement, the other Loan Documents or any
other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower or any of its Subsidiaries of any
terms of this Credit Agreement, the other Loan Documents or such other
instrument or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Borrower and the
written consent of the Required Lenders; PROVIDED, that (x) the Borrower may
unilaterally amend SCHEDULE 7.19 as required by Section 7.19 or SCHEDULE 1(f)
and (y) the Borrower and the Administrative Agent may by mutual agreement amend
SCHEDULE 1(e) and SCHEDULE 8.19 prior to 60 days after the Closing Date.
Notwithstanding the foregoing, no amendment, modification or waiver shall:
(a) without the written consent of the Borrower and each Lender
directly affected thereby:
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(i) reduce or forgive the principal amount of any Loans or
Reimbursement Obligations, or reduce the rate of interest on the
Revolving Credit Notes or the amount of the Commitment Fee or
Letter of Credit Fees (other than (A) interest accruing pursuant
to Section 5.11 following the effective date of any waiver by the
Required Lenders of the Default or Event of Default relating
thereto or (B) as a result of a change in the definition of
Leverage Ratio or any of the components thereof or the method of
calculation thereto);
(ii) increase the amount of such Lender's Commitment or
extend the expiration date of such Lender's Commitment;
(iii) postpone or extend the Revolving Credit Loan Maturity
Date or any other regularly scheduled dates for payments of
principal of, or interest on, the Loans or Reimbursement
Obligations or any Fees or other amounts payable to such Lender
(it being understood that (A) a waiver of the application of the
default rate of interest pursuant to Section 5.11, and (B) any
vote to rescind any acceleration made pursuant to Section 13.1 of
amounts owing with respect to the Loans and other Obligations
shall require only the approval of the Required Lenders); and
(iv) other than pursuant to a transaction permitted by the
terms of this Credit Agreement, release all or substantially all
of the Collateral or release all or substantially all of the
Guarantors from their guaranty obligations under the Guaranties
(excluding, if the Borrower or any Subsidiary of a Borrower
becomes a debtor under the federal Bankruptcy Code, the release of
"cash collateral", as defined in Section 363(a) of the federal
Bankruptcy Code pursuant to a cash collateral stipulation with the
debtor approved by the Required Lenders);
(b) without the written consent of all of the Lenders, amend or
waive this Section 16.12 or the definition of Required Lenders;
(c) without the written consent of the Administrative Agent, amend
or waive Section 2.6.2, Section 14, the amount or time of payment of the
Administrative Agent's Fee or any Letter of Credit Fees payable for the
Administrative Agent's account or any other provision applicable to the
Administrative Agent.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
16.13. SEVERABILITY. The provisions of this Credit Agreement are
severable and if any one clause or provision hereof shall be held invalid or
unenforceable
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in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Credit Agreement as a sealed instrument as of the date first set forth above.
FRIENDLY ICE CREAM CORPORATION
By: ___________________________________
Name:
Title:
FLEET NATIONAL BANK,
individually and as Administrative
Agent and Documentation Agent
By: ___________________________________
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By: ______________________________
Name:
Title:
FIRST MASSACHUSETTS BANK, N.A.
By: ______________________________
Name:
Title:
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