EXHIBIT 10.1
$200,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 28, 2000
among
▇▇▇▇▇▇'▇ SEAFOOD RESTAURANTS, INC.,
BANK OF AMERICA, N.A.
as Administrative Agent,
Letter of Credit Issuing Lender, and Lender,
and
The Other Financial Institutions Party Hereto,
as Lenders,
Banc of America Securities LLC,
as Sole Lead Arranger and Sole Book Manager,
The Bank of Nova Scotia,
as Syndication Agent,
Fleet National Bank,
as Documentation Agent, and
Guaranty Federal Bank, F.S.B.,
as Co-Agent
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[LOGO OF BANK OF AMERICA APPEARS HERE]
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Defined Terms................................................. 1
1.02. Use of Certain Terms.......................................... 22
1.03. Accounting Terms.............................................. 23
1.04. Rounding ..................................................... 23
1.05. Exhibits and Schedules........................................ 23
1.06. References to Agreements, Exhibits and Laws................... 23
ARTICLE II
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01. Committed Loans............................................... 23
2.02. Borrowings, Conversions and Continuations of Committed Loans.. 24
2.03. Swing Loans................................................... 25
2.04. Letters of Credit............................................. 26
2.05. Prepayments................................................... 31
2.06. Reduction or Termination of Commitments....................... 31
2.07. Principal and Interest........................................ 32
2.08. Settlement.................................................... 32
2.09. Fees.......................................................... 33
2.10. Computation of Interest and Fees.............................. 33
2.11. Making Payments............................................... 34
2.12. Funding Sources............................................... 35
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01. Taxes......................................................... 36
3.02. Illegality.................................................... 36
3.03. Inability to Determine Rates.................................. 37
3.04. Increased Cost and Reduced Return; Capital Adequacy........... 37
3.05. Breakfunding Costs............................................ 38
3.06. Matters Applicable to all Requests for Compensation........... 38
3.07. Survival...................................................... 39
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ARTICLE IV
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01. Conditions of Effectiveness; Initial Extension of Credit................ 39
4.02. Conditions to all Extensions of Credit.................................. 41
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Existence and Qualification; Power; Compliance with Laws................ 42
5.02. Power; Authorization; Enforceable Obligations........................... 43
5.03. No Legal Bar............................................................ 43
5.04. Financial Statements; No Material Adverse Effect........................ 43
5.05. Litigation.............................................................. 44
5.06. No Default.............................................................. 44
5.07. Ownership of Property; Liens............................................ 44
5.08. Taxes................................................................... 44
5.09. Margin Regulations; Investment Company Act; Public Utility Holding
Company Act............................................................ 44
5.10. ERISA Compliance........................................................ 45
5.11. Intangible Assets....................................................... 45
5.12. Compliance With Laws.................................................... 46
5.13. Environmental Compliance................................................ 46
5.14. Insurance............................................................... 46
5.15. Year 2000............................................................... 46
5.16. Disclosure.............................................................. 46
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01. Financial Statements.................................................... 47
6.02. Certificates, Notices and Other Information............................. 47
6.03. Payment of Taxes........................................................ 49
6.04. Preservation of Existence............................................... 49
6.05. Maintenance of Properties............................................... 49
6.06. Maintenance of Insurance................................................ 49
6.07. Compliance With Laws.................................................... 49
6.08. Inspection Rights....................................................... 49
6.09. Keeping of Records and Books of Account................................. 50
6.10. Compliance with ERISA................................................... 50
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6.11. Compliance With Agreements........................................ 50
6.12. Use of Proceeds................................................... 50
6.13. New Subsidiaries.................................................. 50
6.14. Further Assurances................................................ 50
ARTICLE VII
NEGATIVE COVENANTS
7.01. Indebtedness...................................................... 51
7.02. Liens and Negative Pledges........................................ 52
7.03. Fundamental Changes............................................... 53
7.04. Dispositions...................................................... 54
7.05. Investments....................................................... 54
7.06. Lease Obligations................................................. 55
7.07. Restricted Payments............................................... 55
7.08. ERISA............................................................. 55
7.09. Change in Nature of Business...................................... 55
7.10. Transactions with Affiliates...................................... 55
7.11. Acquisitions...................................................... 56
7.12. Capital Expenditures.............................................. 56
7.13. Limitations on Upstreaming........................................ 56
7.14. Financial Covenants............................................... 56
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01. Events of Default................................................. 57
8.02. Remedies Upon Event of Default.................................... 59
ARTICLE IX
ADMINISTRATIVE AGENT
9.01. Appointment and Authorization of Administrative Agent............. 60
9.02. Delegation of Duties.............................................. 61
9.03. Liability of Administrative Agent................................. 61
9.04. Reliance by Administrative Agent.................................. 61
9.05. Notice of Default................................................. 62
9.06. Credit Decision; Disclosure of Information by Administrative
Agent............................................................ 62
9.07. Indemnification of Administrative Agent........................... 63
9.08. Administrative Agent in Individual Capacity....................... 63
9.09. Successor Administrative Agent.................................... 64
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ARTICLE X
MISCELLANEOUS
10.01. Amendments; Consents......................................... 64
10.02. Transmission and Effectiveness of Notices and Signatures..... 65
10.03. Attorney Costs, Expenses and Taxes........................... 66
10.04. Binding Effect; Assignment................................... 67
10.05. Set-off...................................................... 68
10.06. Sharing of Payments.......................................... 69
10.07. No Waiver; Cumulative Remedies............................... 69
10.08. Usury........................................................ 70
10.09. Counterparts................................................. 70
10.10. Integration.................................................. 70
10.11. Nature of Lenders' Obligations............................... 71
10.12. Survival of Representations and Warranties................... 71
10.13. Indemnity by Borrower........................................ 71
10.14. Nonliability of Lenders...................................... 71
10.15. No Third Parties Benefited................................... 72
10.16. Severability................................................. 72
10.17. Further Assurances........................................... 73
10.18. Headings..................................................... 73
10.19. Time of the Essence.......................................... 73
10.20. Foreign Lenders and Participants............................. 73
10.21. Removal and/or Replacement of Lenders........................ 73
10.22. Governing Law................................................ 74
10.23. Waiver of Right to Trial by Jury............................. 75
10.24. Entire Agreement............................................. 75
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EXHIBITS
FORM OF
A Request for Extension of Credit
B Compliance Certificate
C Committed Loan Note
D Notice of Assignment and Acceptance
E Opinion of Counsel
F Notice of Swing Loan Request or Prepayment
G Swing Note
SCHEDULES
2.01 Commitments and Pro Rata Shares
7.01 Existing Indebtedness, Liens and Negative Pledges
7.05 Existing Investments
10.02 Offshore and Domestic Lending Offices, Addresses for Notices
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
into as of June 28, 2000 by and among ▇▇▇▇▇▇'▇ Seafood Restaurants, Inc., a
Delaware corporation ("Borrower"), each lender from time to time party hereto
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(collectively, the "Lenders" and, each individually, a "Lender"), Bank of
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America, N.A., as Administrative Agent and Issuing Lender, Banc of America
Securities LLC, as Sole Lead Arranger and Sole Book Manager, The Bank of Nova
Scotia, as Syndication Agent, Fleet National Bank, as Documentation Agent, and
Guaranty Federal Bank, F.S.B., as Co-Agent.
INTRODUCTION
A. The Borrower, certain of the Lenders, and the Agent are parties to the
Credit Agreement dated as of June 19, 1997, as amended by the First Amendment to
Credit Agreement dated as of August 14, 1998, the Second Amendment to Credit
Agreement dated as of June 30, 1999, and the Third Amendment to Credit Agreement
dated as of April 20, 2000 (as so amended, the "Existing Credit Agreement").
B. The parties to the Existing Credit Agreement desire to amend and
restate the Existing Credit Agreement as herein set forth.
C. To evidence the credit facility requested hereunder, the Borrower, the
Administrative Agent and the Lenders have agreed that this Agreement is an
amendment and restatement of the Existing Credit Agreement, not a new or
substitute credit agreement or novation of the Existing Credit Agreement.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Defined Terms. As used in this Agreement, the following terms shall
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have the meanings set forth below:
"Acquisition" means any transaction or series of related transactions for
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the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, or equity of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any other
combination with another person
(other than a Person that is a Subsidiary) provided that the Borrower or the
Subsidiary is the surviving entity.
"Administrative Agent" means Bank of America, in its capacity as
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administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means Administrative Agent's address and,
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as appropriate, account as set forth on Schedule 10.02, or such other address or
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account as Administrative Agent hereafter may designate by written notice to
Borrower and Lenders.
"Administrative Agent-Related Persons" means Administrative Agent
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(including any successor agent), together with its Affiliates (including, in the
case of Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Affiliate" means any Person directly or indirectly controlling, controlled
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by, or under direct or indirect common control with, Borrower. A Person shall
be deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power (a) to vote 10% or more of the securities (on a
fully diluted basis) having ordinary voting power for the election of directors
or managing general partners; or (b) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Agreement" means this First Amended and Restated Credit Agreement, as
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amended, restated, extended, supplemented or otherwise modified in writing from
time to time.
"Applicable Amount" means the following amounts per annum, based upon the
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Leverage Ratio as set forth in the most recent Compliance Certificate received
by Administrative Agent pursuant to Section 6.02(b); provided, however, that,
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until Administrative Agent receives the Compliance Certificate which relates to
the fiscal quarter ending September 30, 2000, such amounts shall be no less than
those indicated for pricing level 2 set forth below:
Applicable Amount
Pricing Level Leverage Ratio Commitment fee Offshore Rate + Base Rate +
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1 *1.0:1 0.50% 2.00% 0.25%
2 **1.0:1 but 0.50% 2.25% 0.50%
*1.5:1
3 **1.5:1 0.50% 2.50% 0.75%
* less than or equal to
** greater than
The Applicable Amount shall be in effect from the date the most recent
Compliance Certificate is received by Administrative Agent to but excluding the
date the next Compliance Certificate is received; provided, however, that if
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Borrower fails to timely deliver the next
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Compliance Certificate, the Applicable Amount from the date such Compliance
Certificate was due to but excluding the date such Compliance Certificate is
received by Administrative Agent shall be the highest pricing level set forth
above, and, thereafter, the pricing level indicated by such Compliance
Certificate when received.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
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arranger and sole book manager.
"Attorney Costs" means and includes all reasonable fees and disbursements
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of any law firm or other external counsel and the allocated cost of internal
legal services and all disbursements of internal counsel.
"Audited Financial Statements" means the consolidated balance sheet of
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Borrower and its Subsidiaries for any fiscal year, and the related consolidated
statements of income and cash flows for such fiscal year of Borrower, audited by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or any other independent public accountants of recognized
national standing and prepared in conformity with GAAP.
"Bank of America" means Bank of America, N.A.
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"Base Rate" means a fluctuating rate per annum equal to the higher of (a)
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the Federal Funds Rate plus 2 of 1% and (b) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
"prime rate." The prime rate is a rate set by Bank of America based upon
various factors including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate.
Any change in the prime rate announced by Bank of America shall take effect at
the opening of business on the day specific in the public announcement of such
change.
"Base Rate Loan" means a Loan which bears interest based on the Base Rate.
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"Borrower" has the meaning set forth in the introductory paragraph hereto.
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"Borrower Party" means Borrower or any Person other than Lenders and any
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Affiliates of Lenders, Administrative Agent, and Issuing Lender from time to
time party to a Loan Document.
"Borrowing" and "Borrow" each mean a borrowing hereunder consisting of
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Loans of the same type made on the same day and, other than in the case of Base
Rate Loans, having the same Interest Period.
"Borrowing Date" means the date that a Loan is made, which shall be a
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Business Day.
"Business Day" means any day other than a Saturday, Sunday, or other day on
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which commercial banks are authorized to close under the Laws of, or are in fact
closed in, Houston, Texas,
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Dallas, Texas, Chicago, Illinois, New York City, New York, or San Francisco,
California and, if such day relates to any Offshore Rate Loan, means any such
day on which dealings in Dollar deposits are conducted by and between banks in
the offshore Dollar interbank market.
"Change of Control" means that the ownership of more than 30% of the
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capital stock or other ownership rights in Borrower becomes vested in or is
otherwise controlled by any person, entity, or affiliated group of persons or
entities other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or the estate of or one or more entities
controlled by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or within a period of 12 consecutive calendar
months, the members of the incumbent board of directors cease for any reason to
constitute at least a majority of the board of directors of Borrower without the
prior written consent of the Requisite Lenders.
"Closing Date" means the date all the conditions precedent in Section 4.01
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are satisfied or waived in accordance with Section 4.01, which date shall not be
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later than July 31, 2000.
"Code" means the Internal Revenue Code of 1986, as amended from time to
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time.
"Commercial Letter of Credit" means a commercial Letter of Credit issued
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for the purpose of providing a payment mechanism in connection with the conduct
of Borrower's or any of its Subsidiary's ordinary course of business.
"Commitment" means, for each Lender, the obligation of such Lender to make
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Extensions of Credit in an aggregate principal amount not exceeding the amount
set forth opposite such Lender's name on Schedule 2.01 at any one time
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outstanding, as such amount may be reduced or adjusted from time to time in
accordance with this Agreement (collectively, the "combined Commitments").
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"Committed Loan" means a Loan of any type made to Borrower by Lenders in
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accordance with its Pro Rata Share pursuant to Section 2.01, except as otherwise
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provided herein.
"Committed Loan Note" means a promissory note made by Borrower in favor of
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a Lender evidencing Committed Loans made by such Lender, substantially in the
form of Exhibit C (collectively, the "Committed Loan Notes").
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"Compliance Certificate" means a certificate in the form of Exhibit B,
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properly completed and signed by a Responsible Officer of Borrower.
"Consolidated EBITDA" means, for any period, an amount equal to the sum of
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(a) Consolidated Net Income for such period, (b) Consolidated Interest Charges
for such period, (c) the amount of taxes, based on or measured by income, used
or included in the determination of such Consolidated Net Income for such
period, and (d) the amount of depreciation and amortization expense deducted in
determining such Consolidated Net Income for such period. Charges of Borrower
that (i) are directly related to Acquisitions permitted under this Agreement and
which pursuant to GAAP would be classified as "noncash" charges or expenses
shall be excluded from the calculation of this definition, provided such charges
are taken by Borrower within six months of such
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Acquisition and (ii) in the fiscal quarter ending June 30, 2000, the lesser of
(A) $2,000,000 and (B) to the extent deducted from Consolidated Net Income, the
amount of special charges related to the Rainforest Cafe, Inc. acquisition
incurred in such quarter shall be excluded from the calculation of this
definition. The historical Consolidated EBITDA for the relevant measurement
period of entities that are acquired by Borrower after the Closing Date will be
included in the calculation of this definition provided that the Administrative
Agent and the Lenders are furnished with audited financial statements of such
entities (or if the Acquisition is of a division or branch of a larger business
or a group of businesses, the audited financial statements of such larger
business or group of businesses, so long as the individual activities of the
acquired entity are clearly reflected in such financial statements, together
with a certificate certifying that Borrower has reviewed the historical
financial statements of the division or branch and that they reflect proper
divisional accounting in relation to the large business or group of businesses),
reasonably satisfactory to Administrative Agent and the Requisite Lenders in all
respects, confirming such historical results.
"Consolidated Funded Indebtedness" means, as of any date of determination,
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for Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations and liabilities, whether current
or long-term, for borrowed money (including Extensions of Credit hereunder), (b)
that portion of obligations with respect to capital leases that are capitalized
in the consolidated balance sheet of Borrower and its Subsidiaries and (c)
without duplication, all Guaranty Obligations with respect to Indebtedness of
the type specified in subsections (a) and (b) above of Persons other than
Borrower or any of its Subsidiaries.
"Consolidated Interest Charges" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, fees, charges and related expenses payable by Borrower and its
Subsidiaries in connection with borrowed money (including capitalized interest
but excluding amortization of deferred loan costs) or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP for such period and (b) the portion of rent
payable by Borrower and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP for such
period.
"Consolidated Net Income" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries, including extraordinary items but excluding gains and losses from
Dispositions of assets for such period.
"Consolidated Tangible Net Worth" means, as of any date of determination,
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for Borrower and its Subsidiaries on a consolidated basis, Shareholders' Equity
on that date minus the Intangible Assets of Borrower and its Subsidiaries on
that date.
"Continuation" and "Continue" mean, with respect to any Offshore Rate Loan,
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the continuation of such Offshore Rate Loan as an Offshore Rate Loan on the last
day of the Interest Period for such Loan.
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"Contractual Obligation" means, as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Conversion" and "Convert" mean, with respect to any Loan, the conversion
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of such Loan from or into another type of Loan.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
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America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"Default" means any event that, with the giving of any notice, the passage
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of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus the
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Applicable Amount, if any, applicable to Base Rate Loans plus 2% per annum, to
----
the fullest extent permitted by applicable Laws; provided, however, that with
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respect to an Offshore Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Amount) otherwise
applicable to such Loan plus 2% per annum.
"Defaulting Lender" means any Lender that fails to make any Loan that it is
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required to make hereunder and that has not cured such failure by making such
Loan within one Business Day after written demand upon it by Administrative
Agent to do so.
"Defaulting Lenders Rate" means the Federal Funds Rate for the first three
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days from and after the date the relevant payment is due and, thereafter, at the
interest rate then applicable to the relevant Loan.
"Designated Deposit Account" means a deposit account to be maintained by
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Borrower with Bank of America, as from time to time designated by Borrower by
written notification to Administrative Agent.
"Disposition" or "Dispose" means the sale, transfer, license or other
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disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal with or
without recourse of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" means lawful money of the United States of America.
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"Eligible Assignee" means (a) a financial institution organized under the
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laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b)
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a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided that such bank is acting through a
branch or agency located in the United States; (c) a Person that is primarily
engaged in the business of commercial banking and that is (i) a Subsidiary of a
Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary, or
(iii) a Person of which a Lender is a Subsidiary; and (d) another Lender.
"Environmental Laws" means all foreign, federal, state or local laws,
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statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case relating to environmental, health, safety and land use matters
applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of 1974 and any
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regulations issued pursuant thereto, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
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under common control with Borrower within the meaning of Sections 414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
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(b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or
any ERISA Affiliate.
"Event of Default" means any of the events specified in Section 8.
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"Existing Credit Agreement" has the meaning set forth in the introduction
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to this Agreement.
"Extension of Credit" means (a) the Borrowing of Loans, (b) the Conversion
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or Continuation of any Loans, or (c) any Letter of Credit Action which has the
effect of increasing the amount of any Letter of Credit, extending the maturity
of any Letter of Credit or making any material modification
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to any Letter of Credit or the reimbursement of drawings thereunder
(collectively, the "Extensions of Credit").
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"Federal Funds Rate" means, for any day, the rate per annum (rounded
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upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
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for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by Administrative Agent.
"Fee Letter" is defined in Section 2.09(c).
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"Fixed Charge Coverage Ratio" means, as of any date of determination, the
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ratio of:
(a) (i) Consolidated EBITDA for the four-fiscal quarter period ending
on such date, plus (ii) lease and rental expense of Borrower and its
Subsidiaries on a consolidated basis for such period (excluding up to
$3,000,000 of lease and rental expense related to equipment), minus (iii)
cash taxes paid during such period, minus (iv) Maintenance Capital
Expenditures during such period, to
(b) (i) Consolidated Interest Charges during such period, plus (ii)
scheduled principal payments of principal on Indebtedness during such
period, plus (iii) lease and rental expense of Borrower and its
Subsidiaries on a consolidated basis for such period (excluding up to
$3,000,000 of lease and rental expense related to equipment), plus (iv)
Restricted Payments made during such period, excluding purchases of the
Borrower's capital stock.
"GAAP" means generally accepted accounting principles and practices at any
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date of determination in respect of a business conducting a business the same as
or similar to that of Borrower, including, without limitation, those set forth
in applicable bulletins, opinions, pronouncements, statements and
interpretations issued by the Accounting Principles Board, the American
Institute of Certified Public Accountants and the Financial Accounting Standard
Board, consistently applied.
"Governing State" means the State of Texas.
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"Governmental Authority" means (a) any international, foreign, federal,
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state, county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality, central bank or public body, or (c) any court,
administrative tribunal or public utility.
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"Guaranties" means the guaranty executed by all direct and indirect
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domestic Subsidiaries of Borrower and guaranteeing the payment of the
Obligations, and any guaranty executed pursuant to Section 6.13.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by that
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Person of Indebtedness of, or other obligation payable or performable by, any
other Person or (b) assurance, agreement, letter of responsibility, letter of
awareness, undertaking or arrangement given by that Person to an obligee of any
other Person with respect to the payment or performance of an obligation by, or
the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide funds
(by means of loans, capital contributions or otherwise) to such other Person,
any agreement to support the solvency or level of any balance sheet item of such
other Person or any "keep-well" or other arrangement of whatever nature given
for the purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that the term
-------- -------
Guaranty Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, covered by such
Guaranty Obligation or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the Person in good
faith.
"Indebtedness" means as to any Person at a particular time, without
------------
duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) any direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), banker's acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net obligations under any Swap Agreement in an amount equal to (i)
if such Swap Agreement has been closed out, the termination value thereof,
or (ii) if such Swap Agreement has not been closed out, the ▇▇▇▇-to-market
value thereof determined on the basis of readily available quotations
provided by any recognized dealer in such Swap Agreement;
(d) all obligations of such Person to pay the deferred purchase price
of property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(e) lease payment obligations under capital leases; and
-9-
(f) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, to the extent of such Person's
personal liability for such Indebtedness, unless such Person is a Non-Recourse
Subsidiary.
"Indemnified Liabilities" has the meaning set forth in Section 10.13.
----------------------- -------------
"Intangible Assets" means, on any date of its determination for Borrower
-----------------
and its Subsidiaries on a consolidated basis, assets that are considered to be
intangible assets under GAAP, including customer lists, goodwill, computer
software, copyrights, trade names, trade marks, patents, unamortized deferred
charges, unamortized debt discount and capitalized research and development
costs.
"Interest Payment Date" means, (a) as to any Base Rate Loan, the last
---------------------
Business Day of each calendar quarter; (b) as to any Offshore Rate Loan, the
last day of the relevant Interest Period and any date that such Loan is prepaid
in whole or in part; provided, however, that if any Interest Period for an
-------- -------
Offshore Rate Loan exceeds three months, interest shall also be paid on the date
which falls every three months after the beginning of such Interest Period; and
(c) as to all Loans, the Maturity Date; provided, further, that interest
-------- -------
accruing at the Default Rate shall be payable from time to time at any time upon
demand of Administrative Agent.
"Interest Period" means, for each Offshore Rate Loan, (a) initially, the
---------------
period commencing on the date such Offshore Rate Loan is disbursed, Continued
as, or Converted into, an Offshore Rate Loan and (b) thereafter, the period
commencing on the last day of the preceding Interest Period, and ending, in each
case, on the earlier of (x) the Maturity Date, or (y) one, two, three, or six,
or twelve (if available, in Administrative Agent's sole discretion) months
thereafter, as requested by Borrower; provided that:
--------
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest Period which begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) unless Administrative Agent otherwise consents, there may
not be more than ten Interest Periods in effect at any time.
-10-
"Investment" means, as to any Person, any acquisition or any investment by
----------
such Person, whether by means of the purchase or other acquisition of stock or
other securities of any other Person or by means of a loan, creating a debt,
capital contribution, guaranty or other debt or equity participation or interest
in any other Person, including any partnership and joint venture interests in
such other Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IRS" means the Internal Revenue Service.
---
"Issuing Lender" means Bank of America, or any successor issuing lender
--------------
hereunder.
"Laws" or "Law" means, collectively, all international, foreign, federal,
---- ---
state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including
without limitation the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Lender" means each lender from time to time party hereto and Issuing
------
Lender.
"Lending Office" means, as to any Lender, the office or offices of such
--------------
Lender described as such on Schedule 10.02, or such other office or offices as
--------------
such Lender may from time to time notify Borrower and Administrative Agent.
"Letter of Credit" means any letter of credit issued or outstanding
----------------
hereunder.
"Letter of Credit Action" means the issuance, supplement, amendment,
-----------------------
renewal, extension, modification or other action relating to a Letter of Credit.
"Letter of Credit Application" means an application for a Letter of Credit
----------------------------
Action as shall at any time be in use by Issuing Lender.
"Letter of Credit Cash Collateral Account" means a blocked deposit account
----------------------------------------
at Bank of America with respect to which Borrower hereby grants a security
interest in such account to Administrative Agent for and on behalf of Lenders as
security for Letter of Credit Usage and with respect to which Borrower agrees to
execute and deliver from time to time such documentation as Administrative Agent
may reasonably request to further assure and confirm such security interest.
"Letter of Credit Commitment" means an amount equal to the lesser of (a)
---------------------------
the combined Commitments minus the Outstanding Obligations and (b) $10,000,000.
"Letter of Credit Expiration Date" means the date which is 30 days prior to
--------------------------------
the Maturity Date.
-11-
"Letter of Credit Usage" means, as at any date of determination, the
----------------------
aggregate undrawn face amount of outstanding Letters of Credit plus the
----
aggregate amount of all drawings under the Letters of Credit honored by Issuing
Lender and not reimbursed to Issuing Lender by Borrower or converted into
Committed Loans.
"Leverage Ratio" means, as of any date of determination, the ratio of (a)
--------------
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the period of the four fiscal quarters most recently ended.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement (in the nature of compensating balances, cash collateral accounts or
security interests), encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction), including the interest of a purchaser of accounts
receivable.
"Lines of Business" means the hospitality, restaurant, food service,
-----------------
entertainment, attractions, marina, or amusements industries, or similar or
related industries, including providing management and related services to the
foregoing industries.
"Liquid Investments" means:
------------------
(a) securities issued or directly and fully guaranteed or insured by the
United States;
(b) bankers acceptances or time deposits and certificates of deposit with
maturities of not more than 180 days from the date of acquisition thereof and
demand deposits ("bank debt securities"), which are either issued by (i) any
Lender or (ii) any other bank or trust company which has a combined capital
surplus and undivided profit of not less than $500,000,000.00 or the dollar
equivalent thereof, if at the time of deposit or purchase, such bank debt
securities are rated not less than "A" (or the then equivalent) by S&P or
▇▇▇▇▇'▇;
(c) commercial paper with maturities of not more than 180 days from the
date of acquisition thereof issued by (i) any Lender or (ii) any other Person if
at the time of purchase such commercial paper is rated not less than "A-2" (or
the then equivalent) by S&P or not less than "P-2" (or the then equivalent) by
▇▇▇▇▇'▇;
(d) repurchase or reverse purchase agreements relating to investments
described in clauses (a), (b) and (c) above with a market value at least equal
to the consideration paid in connection therewith, with any Person who regularly
engages in the business of entering into repurchase agreements and has a
combined capital surplus and undivided profit of not less than $500,000,000.00
or the dollar equivalent thereof, if at the time of entering into such agreement
the
-12-
debt securities of such Person are rated not less than "A" (or the then
equivalent) by S&P or of ▇▇▇▇▇'▇;
(e) investments in any money market fund which holds investments
substantially of the type described in the foregoing clauses (a) through (d);
and
(f) such other instruments (within the meaning of Article 9 of the Texas
Business and Commerce Code) as Borrower may request and the Administrative Agent
may approve in writing, which approval will not be unreasonably withheld.
All the Liquid Investments described in clauses (a) through (f) above shall have
maturities of not more than 360 days from the date of issue.
"Loan" means any advance made by any Lender to Borrower as provided in
----
Section 2 (collectively, the "Loans").
--------- -----
"Loan Documents" means this Agreement, any Note, the Swing Note, the
--------------
Guaranties, the Pledge Agreements, the Swap Agreements, certificates, fee
letters, and other instruments, documents, or agreements from time to time
delivered in connection with this Agreement.
"Maintenance Capital Expenditures" means $65,000 multiplied by the number
--------------------------------
of restaurants in operation by Borrower at the time of measurement.
"Material Adverse Effect" means (a) material adverse change in, or a set of
-----------------------
circumstances or events that has a material adverse effect upon, the operations,
business, properties, or financial condition of Borrower or Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of
Borrower or any Subsidiary to perform under any Loan Document and to avoid any
Event of Default; (c) a set of circumstances or events that has a material
adverse effect upon the legality, validity, or binding effect of any Loan
Document; or (d) a set of circumstances or events that impairs materially the
ability of the Agent and the Administrative Agent and the Lenders to enforce
their legal remedies pursuant to the Loan Documents.
"Maturity Date" means June 28, 2003, as it may be earlier terminated or
-------------
extended in accordance with the terms hereof.
"Minimum Amount" means, with respect to each of the following actions, the
--------------
minimum amount and any multiples in excess thereof set forth opposite such
action:
Minimum Multiples in
Type of Action Amount excess thereof
--------------------------------------------------------------------------------
Borrowing of, prepayment of, or Conversion $1,000,000 $1,000,000
into, Base Rate Loans
Borrowing of, prepayment of, $3,000,000 $1,000,000
-13-
Continuation of, or Conversion into,
Offshore Rate Loans
Reduction in Commitments $3,000,000 $3,000,000
Assignments $5,000,000 $1,000,000
"Multiemployer Plan" means any employee benefit plan of the type described
------------------
in Section 4001(a)(3) of ERISA.
"Negative Pledge" means a Contractual Obligation that restricts Liens on
---------------
property.
"Non-Recourse Subsidiary" means any wholly owned Subsidiary of which the
-----------------------
Administrative Agent has been notified and which (a) has only acquired any
assets from Borrower or any of its Subsidiaries in compliance with this
Agreement, (b) is not a Subsidiary as of the Closing Date, (c) owns only
Property acquired by it after the Closing Date, and (d) does not own any capital
stock, or any warrants, options, or other rights to acquire capital stock, of
any Subsidiary.
"Notes" means, collectively, the Committed Loan Notes and the Swing Note.
-----
"Notice of Assignment and Acceptance" means a Notice of Assignment and
-----------------------------------
Acceptance substantially in the form of Exhibit D.
---------
"Obligations" means all advances to, and debts, liabilities, obligations,
-----------
covenants and duties of, any Borrower Party arising under any Loan Document,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest that accrues after the commencement of any proceeding under
any Debtor Relief Laws by or against any Borrower Party or any Subsidiary or
Affiliate of any Borrower Party.
"Offshore Base Rate" has the meaning set forth in the definition of
------------------
Offshore Rate.
"Offshore Rate" means for any Interest Period with respect to any Offshore
-------------
Rate Loan, a rate per annum determined by Administrative Agent pursuant to the
following formula:
Offshore Base Rate = Offshore Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
-14-
Where,
"Offshore Rate" means, for such Interest Period:
-------------
(a) the rate per annum (carried out to the fifth decimal place) equal
to the rate determined by Administrative Agent to be the offered rate that
appears on the page of the Telerate Screen that displays an average British
Bankers Association Interest Settlement Rate (such page currently being
page number 3750) for deposits in dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease
to be available, the rate per annum (carried to the fifth decimal place)
equal to the rate determined by Administrative Agent to be the offered rate
on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in dollars (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by
Administrative Agent as the rate of interest at which dollar deposits (for
delivery on the first day of such Interest Period) in same day funds in the
approximate amount of the applicable Offshore Rate Loan and with a term
equivalent to such Interest Period would be offered by its London Branch to
major banks in the offshore dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
-----------------------------
Period, the reserve percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the Board of Governors of
the Federal Reserve System for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each outstanding Offshore Rate Loan shall
be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Committed Loan bearing interest based on the
------------------
Offshore Rate.
"Ordinary Course Dispositions" means:
----------------------------
-15-
(a) Dispositions in the ordinary course of business of obsolete,
surplus, or worn out property, or property that is no longer useful in the
reasonable business judgment of the Borrower of the conduct of the
Borrower's or any Subsidiary's business, whether now owned or hereafter
acquired;
(b) Dispositions in the ordinary course of business of cash, cash
equivalents, inventory, general intangibles, including without limitation
licenses or sublicenses of intellectual property, and other property;
(c) Dispositions of property to the extent that such property is
exchanged for credit against the purchase price of similar replacement
property, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement property or where Borrower or its
Subsidiary determine in good faith that the failure to replace such
equipment will not be detrimental to the business of Borrower or such
Subsidiary; and
(d) Dispositions of assets or property by any Subsidiary of Borrower
to Borrower or another wholly-owned Subsidiary of Borrower (other than a
Non-Recourse Subsidiary);
provided, however, that no such Disposition shall be for less than the fair
-------- -------
market value of the property being disposed of.
"Ordinary Course Indebtedness" means:
----------------------------
(a) Indebtedness under the Loan Documents;
(b) intercompany Guaranty Obligations of Borrower or any of its
Subsidiaries guarantying Indebtedness otherwise permitted hereunder of
Borrower or any wholly-owned Subsidiary of Borrower; and
(c) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds or from the endorsement of
negotiable instruments in the ordinary course of business.
"Ordinary Course Investments" means:
---------------------------
(a) Investments consisting of cash and Liquid Investments;
(b) Investments consisting of advances to officers, directors and
employees of Borrower and its Subsidiaries for travel, entertainment,
relocation and analogous ordinary business purposes;
-16-
(c) Investments of Borrower in any of its wholly owned Subsidiaries
(other than a Non-Recourse Subsidiary) and Investments of any Subsidiary of
Borrower in Borrower or in a wholly owned Subsidiary (other than a Non-
Recourse Subsidiary) of Borrower;
(d) Investments consisting of or evidencing the extension of credit
to customers or suppliers of Borrower and its Subsidiaries in the ordinary
course of business and any Investments received in satisfaction or partial
satisfaction thereof;
(e) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the ordinary course of business; and
(f) Investments consisting of Guaranty Obligations permitted by
Section 7.01.
------------
"Ordinary Course Liens" means:
---------------------
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance
with GAAP;
(c) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(d) pledges or deposits in connection with worker's compensation,
unemployment insurance and other social security legislation;
(e) deposits 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 a like nature
incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of any Person; and
(g) attachment, judgment or other similar Liens arising in connection
with litigation or other legal proceedings (and not otherwise a Default
hereunder) in the ordinary course of business that is currently being
contested in good faith by appropriate proceedings,
-17-
adequate reserves have been set aside and no substantial portion or part of
the applicable Person's Property is subject to a material risk of loss or
forfeiture and the claims in respect of such Liens are fully covered by
insurance (subject to ordinary and customary deductibles).
"Organization Documents" means, (a) with respect to any corporation, the
----------------------
certificate or articles of incorporation and the bylaws; (b) with respect to any
limited liability company, the articles of formation and operating agreement;
and (c) with respect to any partnership, joint venture or other form of business
entity, the partnership agreement and any agreement, filing or notice with
respect thereto filed with the secretary of state of the state of its formation,
in each case as amended from time to time.
"Outstanding Obligations" means, as of any date, and giving effect to
-----------------------
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, the sum of (a) the aggregate
outstanding principal amount of all Loans, (b) all Letter of Credit Usage, and
(c) the Swing Usage.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
thereto established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term is
------------
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliates or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
"Person" means any individual, trustee, corporation, general partnership,
------
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture,
Governmental Authority, or otherwise.
"Plan" means any employee benefit plan maintained or contributed to by a
----
Borrower Party or by any trade or business (whether or not incorporated) under
common control with a Borrower Party as defined in Section 4001(b) of ERISA and
insured by the Pension Benefit Guaranty Corporation under Title IV of ERISA.
"Pledge Agreements" means the pledge agreements executed by the
-----------------
shareholders or other equity holders of all direct and indirect Subsidiaries and
ventures of Borrower, pledging, in the case of domestic Subsidiaries and
ventures, 100% and, in the case of foreign Subsidiaries and ventures, 65% of the
shares or other equity interests of such Subsidiaries or ventures and any pledge
agreements executed pursuant to Section 6.13.
-18-
"Pro Rata Share" means, with respect to each Lender, the percentage of the
--------------
combined Commitments set forth opposite the name of that Lender on Schedule
--------
2.01, as such share may be adjusted pursuant to Section 10.21.
---- -------------
"Quarterly Payment Date" means the last Business Day of each March, June,
----------------------
September and December and the Maturity Date.
"Reportable Event" means any of the events set forth in Section 4043(b) of
----------------
ERISA or the regulations thereunder, a withdrawal from a Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4062(e)
of ERISA.
"Request for Extension of Credit" means a written request substantially in
-------------------------------
the form of Exhibit A duly completed and signed by a Responsible Officer, or a
---------
telephonic request followed by such a written request, in each case delivered to
Administrative Agent by Requisite Notice. In the case of a request for a new or
amended Letter of Credit, the written Letter of Credit Application shall be
deemed to be the Request for Extension of Credit.
"Requisite Lenders" means (a) as of any date of determination if the
-----------------
Commitments are then in effect, Lenders having in the aggregate 66-2/3% or more
of the combined Commitments then in effect and (b) as of any date of
determination if the Commitments have then been terminated and there are Loans
and/or Letter of Credit Usage outstanding, Lenders holding Loans and Letter of
Credit Usage aggregating 66-2/3% or more of the aggregate outstanding principal
amount of the Loans and Letter of Credit Usage.
"Requisite Notice" means, unless otherwise provided herein, (a) irrevocable
----------------
written notice to the intended recipient or (b) except with respect to Letter of
Credit actions (which must be in writing), irrevocable telephonic notice to the
intended recipient, promptly followed by a written notice to such recipient.
Such notices shall be (i) delivered to such recipient at the address or
telephone number specified on Schedule 10.02 or as otherwise designated by such
--------------
recipient by Requisite Notice to each other party hereto, and (ii) if made by
any Borrower Party, given or made by a Responsible Officer of such Borrower
Party. Any written notice delivered in connection with any Loan Document shall
be in the form, if any, prescribed in the applicable section hereof or thereof
and may be delivered as provided in Section 10.02. Any notice sent by other
-------------
than hardcopy shall be promptly confirmed by a telephone call to the recipient
and, if requested by Administrative Agent, by a manually signed hardcopy
thereof.
"Requisite Time" means, with respect to any of the actions listed below,
--------------
the time and date set forth below opposite such action (all times are local time
(standard or daylight) as observed in the Governing State):
Type of Action Time Date of Action
--------------------------------------------------------------------------------
Delivery of Request for Extension of
-19-
Credit for, or notice for:
Borrowing of, prepayment of, or Conversion 11:00 a.m. Same date as such Borrowing,
into, Base Rate Loans prepayment or Conversion
Borrowing of, prepayment of, Continuation of, 11:00 a.m. 3 Business Days prior to such
or Conversion into, Offshore Rate Loans Borrowing, prepayment or Conversion
Letter of Credit action 11:00 a.m. 5 Business Days prior to such action
Voluntary reduction in or termination of 11:00 a.m. 2 Business Days prior to such
Commitments reduction or termination
Payments by Lenders or Borrower to 2:00 p.m. On date payment is due
Administrative Agent
"Responsible Officer" means the chief executive officer, president, chief
-------------------
financial officer, treasurer or assistant treasurer, or any other officer having
substantially the same authority and responsibility of a Borrower Party. Any
document or certificate hereunder that is signed by a Responsible Officer of a
Borrower Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such
Borrower Party and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Borrower Party.
"Restricted Payment" means:
------------------
(a) the declaration or payment of any dividend or distribution by
Borrower or any of its Subsidiaries, either in cash or property, on any
shares of the capital stock of any class of Borrower or any of its
Subsidiaries (except dividends or other distributions payable solely in
shares of capital stock of Borrower or any of its Subsidiaries or payable
by a Subsidiary to Borrower or another wholly-owned Subsidiary of
Borrower);
(b) the purchase, redemption or retirement by Borrower or any of its
Subsidiaries of any shares of its capital stock of any class or any
warrants, rights or options to purchase or acquire any shares of its
capital stock, whether directly or indirectly;
(c) any other payment or distribution by Borrower or any of its
Subsidiaries in respect of its capital stock, either directly or
indirectly;
(d) any Investment other than an Investment otherwise permitted under
any Loan Document; and
(e) the prepayment, repayment, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, of any Indebtedness
not otherwise permitted under any Loan Document to be so paid.
"Sale-Leaseback" is defined in Section 7.04(d).
--------------
-20-
"Shareholders' Equity" means, as of any date of determination for Borrower
--------------------
and its Subsidiaries on a consolidated basis, shareholders' equity as of that
date determined in accordance with GAAP.
"Standby Letter of Credit" means any standby letter of credit covering the
------------------------
potential default of a financial contractual obligation or bid, performance,
advance, and retention obligations, and includes without limitation (a) all
letters of credit required to be classified as such by the Board of Governors of
Federal Reserve Board or by the Office of the Comptroller of the Currency and
(b) letters of credit issued in favor of sureties who in connection therewith
cover bid, performance, and retention obligations.
"Subsidiary" means a corporation, partnership, joint venture, limited
----------
liability company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by
Borrower.
"Swap Agreement" means (a) any and all rate swap transactions, basis swaps,
--------------
forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond
index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, or
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., or any other master agreement (any such master agreement, together with
any related schedules, as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, a "Master Agreement"), including but not
----------------
limited to any such obligations or liabilities under any Master Agreement.
"Swing Commitment" means an amount equal to the lesser of (a) the combined
----------------
Commitments minus the Outstanding Obligations and (b) $5,000,000.
"Swing Loan" has the meaning set forth in Section 2.02.
----------
"Swing Note" means a promissory note of Borrower payable to the order of
----------
Administrative Agent in substantially the form of the attached Exhibit G,
evidencing indebtedness of the Borrower to Administrative Agent from Swing Loans
owing to Administrative Agent.
-21-
"Swing Usage" means, as at any date of determination, the aggregate
-----------
outstanding principal amount of the Swing Loans.
"to the best knowledge of" means, when modifying a representation, warranty
------------------------
or other statement of any Person, that the fact or situation described therein
is known by such Person (or, in the case of a Person other than a natural
Person, known by any officer of such Person) making the representation, warranty
or other statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable Person in
similar circumstances would have done) would have been known by such Person (or,
in the case of a Person other than a natural Person, would have been known by an
officer of such Person).
"type", when used with respect to any Loan, means the designation of
----
whether such Loan is a Base Rate Loan or an Offshore Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
--------------------------
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"Year 2000 Compliant" means the Borrower Parties' material computer
-------------------
applications will, and the Borrower has taken all reasonable steps to obtain
assurances from its key vendors and suppliers that their material computer
applications will, adequately address the Year 2000 Problem.
"Year 2000 Problem" means the risk that computer applications used by the
-----------------
Borrower Parties (or suppliers, vendors, or customers) may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999.
1.02. Use of Certain Terms.
--------------------
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include
one another.
(c) The words "herein" and "hereunder" and words of similar import
------ ---------
when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. The word "including"
---------
when used herein is not intended to be exclusive and means "including,
without limitation." References herein to a Section, subsection or clause
shall refer to the appropriate Section, subsection or clause in this
Agreement.
-22-
(d) The term "or" is disjunctive; the term "and" is conjunctive. The
term "shall" is mandatory; the term "may" is permissive. Masculine terms
also apply to females; feminine terms also apply to males. The term
"including" is by way of example and not limitation.
1.03. Accounting Terms. All accounting terms not specifically or
----------------
completely defined in this Agreement shall be construed in conformity with, and
all financial data required to be submitted by this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect on the date
hereof, except as otherwise specifically prescribed herein.
------
1.04. Rounding. Any financial ratios required to be maintained by Borrower
--------
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed in this Agreement and rounding
the result up or down to the nearest number (with a round-up if there is no
nearest number) to the number of places by which such ratio is expressed in this
Agreement.
1.05. Exhibits and Schedules. All exhibits and schedules to this
----------------------
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06. References to Agreements, Exhibits and Laws. Unless otherwise
-------------------------------------------
expressly provided herein, (a) references to agreements (including the Loan
Documents) and other contractual instruments shall include all amendments and
other modifications thereto (unless prohibited by any Loan Document), and (b)
references to any statute or regulation shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
ARTICLE II
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01. Committed Loans.
---------------
(a) Subject to the terms and conditions set forth in this
Agreement, each Lender severally agrees to make, Convert, and Continue
Committed Loans until the Maturity Date as Borrower may from time to time
request; provided, however, that the Outstanding Obligations owed to each
-------- -------
Lender shall not exceed such Lender's Commitment, and the Outstanding
Obligations owed to all Lenders shall not exceed the combined Commitments
at any time. Subject to the foregoing and the other terms and conditions
hereof, Borrower may borrow, Convert, Continue, prepay and reborrow
Committed Loans as set forth herein without premium or penalty.
-23-
(b) Loans made by each Lender shall be evidenced by one or more
loan accounts or records maintained by such Lender in the ordinary course
of business. Upon the request of any Lender made through Administrative
Agent, such Lender's Loans may be evidenced by one or more Notes, instead
of or in addition to loan accounts. Each such Lender may attach schedules
to its Note(s) and endorse thereon the date, amount and maturity of its
Committed Loans and payments with respect thereto. Such loan accounts,
records or Notes shall be conclusive absent manifest error of the amount of
such Loans and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of
Borrower to pay any amount owing with respect to the Loans.
2.02. Borrowings, Conversions and Continuations of Committed Loans.
------------------------------------------------------------
(a) Borrower may irrevocably request a Borrowing, Conversion or
Continuation of Committed Loans in a Minimum Amount therefor, and may
request that such Committed Loans be Offshore Rate Loans or Base Rate
Loans, by delivering a Request for Extension of Credit therefor by
Requisite Notice to Administrative Agent not later than the Requisite Time
therefor. All Borrowings, Conversions and Continuations shall constitute
Base Rate Loans unless properly and timely otherwise designated as set
forth in the preceding sentence.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Lender of its Pro Rata
Share thereof by Requisite Notice. In the case of a Borrowing of Loans,
each Lender shall make the funds for its Loan available to Administrative
Agent at Administrative Agent's Office not later than the Requisite Time
therefor on the Business Day specified in such Request for Extension of
Credit. Upon satisfaction of the applicable conditions set forth in
Section 4, all funds so received shall be made available to Borrower in
---------
like funds received.
(c) Administrative Agent shall promptly notify Borrower and Lenders
of the interest rate applicable to any Loan other than a Base Rate Loan
upon determination of same.
(d) Except as otherwise provided herein, an Offshore Rate Loan may
be Continued or Converted only on the last day of the Interest Period for
such Offshore Rate Loan. No Loans may be requested as, Converted into or
Continued as Offshore Rate Loans during the existence of a Default or Event
of Default.
(e) If a Loan is to be made on the same date that another Loan is
due and payable, Borrower or Lenders, as the case may be, shall make
available to Administrative Agent the net amount of funds giving effect to
both such Loans and the effect for purposes of this Agreement shall be the
same as if separate transfers of funds had been made with respect to each
such Loan.
-24-
(f) The failure of any Lender to make any Loan on any date shall
not relieve any other Lender of any obligation to make a Loan on such date,
but no Lender shall be responsible for the failure of any other Lender to
so make its Loan.
2.03. Swing Loans.
-----------
(a) On the terms and conditions set forth in this Agreement,
Administrative Agent may, in its discretion from time to time on any
Business Day during the period from the date of this Agreement until the
Maturity Date, make loans ("Swing Loans") under the Swing Note to the
Borrower in an aggregate principal amount not to exceed $5,000,000.00
outstanding at any time; provided that the Outstanding Obligations of all
--------
Lenders shall not exceed the combined Commitments at any time. Subject to
the other provisions of this Agreement, Borrower may from time to time
borrow, prepay (in whole or in part and without premium or penalty), and
reborrow Swing Loans. Except as provided in the following clause (b), each
Swing Loan and optional prepayment of a Swing Loan shall be made pursuant
to telephone notice to Administrative Agent given no later that 1:00 p.m.
(Houston, Texas time) on the date of the proposed Swing Loan or prepayment,
promptly confirmed by a completed and executed Notice of Swing Loan Request
or Prepayment in the form of the attached Exhibit F telecopied to
Administrative Agent. Administrative Agent will make the Swing Loan
available to Borrower, and Borrower will make the prepayment available to
Administrative Agent, at Borrower's account with Administrative Agent. Each
Swing Loan shall be a Base Rate Loan.
(b) Borrower shall repay the outstanding principal amount of and
all accrued and unpaid interest on each Swing Loan on the earlier of (i)
the date 30 days after such Swing Loan is made and (ii) the Maturity Date.
Borrower and the Lenders agree that Administrative Agent may request each
Lender to pay, and upon such a request made in accordance with the
following sentence each Lender shall pay, to Administrative Agent such
Lender's Pro Rata Share of all outstanding Swing Loans as a Base Rate Loan
under such Lender's Commitment (A) on each Wednesday, or if such Wednesday
is not a Business Day on the next Business Day after such Wednesday, on
which the aggregate outstanding principal balance of all Swing Loans, after
giving effect to all Swing Loans to be made on such day and notices of
prepayments of Swing Loans given for such day, is greater than or equal to
$2,000,000.00, (B) on any Business Day on which a Swing Loan has been
outstanding for 14 or more days, and (C) upon written request from
Administrative Agent. In connection with any Loan to be made as
contemplated by the foregoing sentence, Administrative Agent shall give
each Lender a notice by 1:00 p.m. (Houston, Texas time) on the date the
proposed Loan is to be made, to make a Base Rate Loan in the amount of its
Pro Rata Share of the outstanding Swing Loans. All Loans made pursuant to
each request made by Administrative Agent pursuant to the foregoing
sentence shall be considered to be Borrowings, and Borrower hereby
irrevocably instructs Administrative Agent to apply the proceeds of such
Loans to the prepayment of the outstanding Swing Loans. Each Lender
(including Administrative Agent) shall make its Pro Rata Share of each such
Borrowing available to Administrative Agent in
-25-
immediately available funds by 3:00 p.m. (Houston, Texas time) on the date
requested, irrespective of the occurrence of a Default or an Event of
Default.
(c) Upon the acceleration of the Maturity Date pursuant to this
Agreement, each Lender shall pay to Administrative Agent such Lender's Pro
Rata Share of all outstanding Swing Loans as a Base Rate Loan under such
Lender's Commitment, but in no event shall any Lender be obligated to fund
more than its Commitment. Upon the date of such payment all accrued but
unpaid interest on the Swing Note to such date shall be due and payable by
Borrower to Administrative Agent.
(d) The indebtedness of Borrower to Administrative Agent resulting
from Swing Loans owing to Administrative Agent shall be evidenced by the
Swing Note of Borrower payable to the order of Administrative Agent.
2.04. Letters of Credit.
-----------------
(a) The Letter of Credit Commitment. Subject to the terms and
-------------------------------
conditions hereof, at any time and from time to time from the Closing Date
through the Letter of Credit Expiration Date, Issuing Lender shall take
such Letter of Credit Actions under the Commitments as Borrower may
request; provided, however, that (i) the Outstanding Obligations of each
-------- -------
Lender shall not exceed such Lender's Commitment and the Outstanding
Obligations of all Lenders shall not exceed the combined Commitments at any
time, and (ii) the aggregate outstanding Letter of Credit Usage shall not
exceed the Letter of Credit Commitment at any time. Each Letter of Credit
Action shall be in a form reasonably acceptable to Issuing Lender and shall
not violate any policies of Issuing Lender. No Letter of Credit shall
expire after the Letter of Credit Expiration Date. If any Letter of Credit
Usage remains outstanding after the Letter of Credit Expiration Date,
Borrower shall, not later than the Letter of Credit Expiration Date,
deposit cash in an amount equal to such Letter of Credit Usage in a Letter
of Credit Cash Collateral Account.
(b) Requesting Letter of Credit Actions. Borrower may irrevocably
-----------------------------------
request a Letter of Credit Action by delivering a Letter of Credit
Application therefor to Issuing Lender, with a copy to Administrative Agent
(who shall notify Lenders), by Requisite Notice not later than the
Requisite Time therefor. Unless Administrative Agent notifies Issuing
Lender that such Letter of Credit Action is not permitted hereunder or
Issuing Lender determines that such Letter of Credit Action is contrary to
any Laws or policies of Issuing Lender or does not otherwise conform to the
requirements of this Agreement, Issuing Lender shall effect such Letter of
Credit Action. This Agreement shall control in the event of any conflict
with any Letter of Credit Application. Upon the issuance of a Letter of
Credit, each Lender shall be deemed to have purchased a pro rata
participation in such Letter of Credit from Issuing Lender in an amount
equal to that Lender's Pro Rata Share.
-26-
(c) Reimbursement of Payments Under Letters of Credit. Borrower
-------------------------------------------------
shall reimburse Issuing Lender through Administrative Agent for any payment
that Issuing Lender makes under a Letter of Credit on or before the date of
such payment; provided, however, that if the conditions precedent set forth
-------- -------
in Section 4 can be satisfied, Borrower may request a Borrowing of
---------
Committed Loans to reimburse Issuing Lender for such payment on or before
the date thereof by complying with Section 2.02, or Borrower may allow a
------------
deemed Borrowing of Committed Loans which are Base Rate Loans to take place
on such payment date pursuant to subsection (e) below.
(d) Funding by Lenders When Issuing Lender Not Reimbursed. If
-----------------------------------------------------
Borrower fails to timely make the payment required pursuant to subsection
(c) above, Issuing Lender shall notify Administrative Agent of such fact
and the amount of such unreimbursed payment. Administrative Agent shall
promptly notify each Lender of its Pro Rata Share of such amount by
Requisite Notice. Each Lender shall make funds in an amount equal its Pro
Rata Share of such amount available to Administrative Agent at
Administrative Agent's Office not later than the Requisite Time on the
Business Day specified by Administrative Agent. The obligation of each
Lender to so reimburse Issuing Lender shall be absolute and unconditional
and shall not be affected by the occurrence of an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of Borrower to reimburse Issuing Lender for
the amount of any payment made by Issuing Lender under any Letter of
Credit, together with interest as provided herein.
(e) Nature of Lenders' Funding. If the conditions precedent set
--------------------------
forth in Section 4 can be satisfied (except for the giving of a Request for
---------
Extension of Credit) on the date Borrower is obligated to make, but fails
to make, a reimbursement of a payment under a Letter of Credit, the funding
by Lenders pursuant to subsection (d) above shall be deemed to be part of a
Borrowing of Committed Loans which are Base Rate Loans (without regard to
the Minimum Amount therefor) requested by Borrower. If the conditions
precedent set forth in Section 4 cannot be satisfied on the date Borrower
---------
is obligated to make, but fails to make, a reimbursement of a payment under
a Letter of Credit, the funding by Lenders pursuant to subsection (d) above
shall be deemed to be a funding by each Lender of its participation in such
Letter of Credit, and such funds shall be payable by Borrower upon demand
and shall bear interest at the Default Rate, and each Lender making such
funding shall thereupon acquire a pro rata participation, to the extent of
such reimbursement, in the claim of Issuing Lender against Borrower in
respect of such payment and shall share, in accordance with that pro rata
participation, in any payment made by Borrower with respect to such claim.
(f) Special Provisions Relating to Evergreen Letters of Credit.
----------------------------------------------------------
Borrower may request Letters of Credit that have automatic extension or
renewal provisions ("evergreen" Letters of Credit) so long as Issuing
Lender has the right to not permit any such extension or renewal at least
annually within a notice period to be agreed upon at the time each such
Letter of Credit is issued. Once an evergreen Letter of Credit is issued,
unless
-27-
Administrative Agent has notified Issuing Lender that all Lenders have
elected not to permit such extension or renewal, the Borrower Parties,
Administrative Agent and Lenders authorize (but may not require) Issuing
Lender to, in its sole discretion, permit the renewal of such evergreen
Letter of Credit at any time to a date not later than the Letter of Credit
Expiration Date, and, unless directed by Issuing Lender, Borrower shall not
be required to request such extension or renewal. Notwithstanding the
foregoing, Issuing Lender may, in its sole discretion elect not to permit
an evergreen Letter of Credit to be extended or renewed at any time.
(g) Obligations Absolute. The obligation of Borrower to pay to
--------------------
Issuing Lender the amount of any payment made by Issuing Lender under any
Letter of Credit shall be absolute, unconditional, and irrevocable. Without
limiting the foregoing, Borrower's obligation shall not be affected by any
of the following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against Issuing Lender,
Administrative Agent or any Lender, any beneficiary of the Letter of
Credit (or any persons or entities for whom any such beneficiary may
be acting) or any other Person, whether in connection with the Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid,
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect whatsoever so long as any such document
appeared to comply with the terms of the Letter of Credit;
(v) payment by Issuing Lender in good faith under the Letter
of Credit against presentation of a draft or any accompanying document
which does not strictly comply with the terms of the Letter of Credit;
or any payment made by Issuing Lender under any Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-
possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or
any transferee of any Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Laws;
-28-
(vi) the existence, character, quality, quantity, condition,
packing, value or delivery of any Property purported to be represented
by documents presented in connection with any Letter of Credit or for
any difference between any such Property and the character, quality,
quantity, condition, or value of such Property as described in such
documents;
(vii) the time, place, manner, order or contents of shipments or
deliveries of Property as described in documents presented in
connection with any Letter of Credit or the existence, nature and
extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or arrival of
any Property;
(x) any error in the transmission of any message relating to a
Letter of Credit not caused by Issuing Lender, or any delay or
interruption in any such message;
(xi) any error, neglect or default of any correspondent of
Issuing Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Issuing Lender;
(xiii) so long as Issuing Lender in good faith determines that
the document appears to comply with the terms of the Letter of Credit,
the form, accuracy, genuineness or legal effect of any contract or
document referred to in any document submitted to Issuing Lender in
connection with a Letter of Credit; and
(xiv) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, Borrower or a Guarantor, except for errors and omissions caused by
Issuing Lender's gross negligence or willful misconduct.
In addition, Borrower will promptly examine a copy of each Letter of Credit
and amendments thereto delivered to it and, in the event of any claim of
noncompliance with Borrower's instructions or other irregularity, Borrower will
immediately notify Issuing Lender in writing. Borrower shall be conclusively
deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
-29-
(h) Role of Issuing Lender. Each Lender and Borrower Party agree
----------------------
that, in paying any drawing under a Letter of Credit, Issuing Lender shall
not have any responsibility to obtain any document (other than any sight
draft and certificates expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. No
Administrative Agent-Related Person nor any of the respective
correspondents, participants or assignees of Issuing Lender shall be liable
to any Lender for any action taken or omitted in connection herewith at the
request or with the approval of Lenders or the Requisite Lenders, as
applicable; any action taken or omitted in the absence of gross negligence
or willful misconduct; or the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of
Credit. Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
-------- -------
preclude Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.
No Administrative Agent-Related Person, nor any of the respective
correspondents, participants or assignees of Issuing Lender, shall be
liable or responsible for any of the matters described in subsection (g)
above. In furtherance and not in limitation of the foregoing, Issuing
Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice
or information to the contrary, and Issuing Lender shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.
(i) Applicability of International Standby Practices 1998. Unless
-----------------------------------------------------
otherwise expressly agreed by Issuing Lender and Borrower when a Letter of
Credit is issued, the rules of the "International Standby Practices 1998"
or such later revision as may be published by the Institute of
International Banking Law and Practice, subject to applicable Laws, shall
be deemed a part of this Section and shall apply to such Letter of Credit.
(j) Issuance Fee and Documentary and Processing Charges Payable to
--------------------------------------------------------------
Issuing Lender. Borrower agrees to pay (i) to Administrative Agent for the
--------------
pro rata benefit of the Lenders, a fee per annum for each Letter of Credit
equal to the Applicable Amount for Offshore Rate Loans, (ii) to the Issuing
Bank, a fee for each Standby Letter of Credit of .125% per annum of the
face amount of such Standby Letter of Credit, (iii) to the Issuing Bank, a
fee for each Documentary Letter of Credit of .125% per 90 days of the face
amount of such Documentary Letter of Credit, payable on issuance, and (iv)
to the Issuing Bank, all its customary documentary and processing charges
for issuing letters of credit. Each such fee shall be based on the maximum
amount available to be drawn under such Letter of Credit from the date of
issuance of the Letter of Credit until its Letter of Credit Expiration
Date, shall be payable quarterly in arrears on the last day of each March,
June, September, and December, and shall be nonrefundable.
-30-
2.05. Prepayments.
-----------
(a) Upon Requisite Notice to Administrative Agent not later than the
Requisite Time therefor, Borrower may at any time and from time to time
voluntarily prepay Committed Loans in part in the Minimum Amount therefor
or in full without premium or penalty. Administrative Agent will promptly
notify each Lender thereof and of such Lender's Pro Rata Share of such
prepayment. Any prepayment of an Offshore Rate Loan shall be accompanied by
all accrued interest thereon, together with the costs set forth in
Section 3.05.
------------
(b) If for any reason the Outstanding Obligations exceed the
combined Commitments as in effect or as reduced or because of any
limitation set forth in this Agreement or otherwise, Borrower shall
immediately prepay Loans and/or deposit Cash in a Letter of Credit Cash
Collateral Account in an aggregate amount equal to such excess.
2.06. Reduction or Termination of Commitments.
---------------------------------------
(a) Upon Requisite Notice to Administrative Agent not later than the
Requisite Time therefor, Borrower may at any time and from time to time,
without premium or penalty, permanently and irrevocably reduce the
Commitments in a Minimum Amount therefor to an amount not less than the
Outstanding Obligations at such time or terminate the Commitments, and
(b) the Commitments shall be reduced automatically by an amount
equal to 100% of the net cash proceeds of sales of assets (including stock
of its Subsidiaries but excluding Sale-Leasebacks) outside the ordinary
course of business by the Borrower or any of its Subsidiaries (net of
selling expenses and taxes to the extent such taxes are paid), to the
extent such net cash proceeds are greater than $10,000,000 in any calendar
year, and to the extent such net cash proceeds in excess of $10,000,000 are
not used within 180 days after the Borrower's or any of its Subsidiaries'
receipt thereof to purchase (or contractually commit to purchase) assets to
be used in the Borrower's and its Subsidiaries' business. Such reduction
shall occur on the later of (i) the 180th day after the date of receipt of
such net cash proceeds in excess of $10,000,000 and (ii) the expiration or
termination of the commitment to purchase assets.
Any such reduction or termination shall be accompanied by payment of all accrued
and unpaid commitment fees with respect to the portion of the Commitments being
reduced or terminated. Administrative Agent shall promptly notify Lenders of any
such request for reduction or termination of the Commitments. Each Lender's
Commitment shall be reduced by an amount equal to such Lender's Pro Rata Share
times the amount of such reduction.
-----
-31-
2.07. Principal and Interest.
----------------------
(a) If not sooner paid, Borrower agrees to pay the outstanding
principal amount of each Committed Loan and each Swing Loan on the Maturity
Date.
(b) Subject to subsection (c) below, Borrower shall pay interest
on the unpaid principal amount of each Loans (before and after default,
before and after maturity, before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Laws) from the
date borrowed until paid in full (whether by acceleration or otherwise) on
each applicable Interest Payment Date at a rate per annum equal to the
interest rate determined in accordance with the definition of such type of
Loan, plus, to the extent applicable in each case and without duplication,
the Applicable Amount.
(c) If any amount payable by any Borrower Party under any Loan
Document is not paid when due (without regard to any applicable grace
periods), it shall thereafter bear interest (after as well as before entry
of judgment thereon to the extent permitted by law) at a fluctuating
interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Law. Accrued and unpaid interest on
past due amounts (including, without limitation, interest on past due
interest) shall be payable upon demand.
2.08. Settlement. Administrative Agent shall request settlement
----------
("Settlement") with the Lenders on a weekly basis, or on a more frequent basis
if so determined by Administrative Agent, (a) on behalf of itself, with respect
to each outstanding Swing Loan, and (b) with respect to payments received, as to
each by notifying the Lenders by telecopy, telephone, or other similar form of
transmission, of such requested Settlement, no later than 2:00 p.m. (Houston,
Texas time) on the Business Day immediately prior to the date of such requested
Settlement (the date of such requested Settlement being the "Settlement Date").
Such notice of a Settlement Date shall include a summary statement of the amount
of outstanding Committed Loans and Swing Loans for the period since the prior
Settlement Date, the amount of repayments received in such period, and the
amounts allocated to each Lender of the interest, fees, and other charges for
such period. Subject to the terms and conditions contained herein: (i) if a
Lender's balance of the Committed Loans and the Swing Loans exceeds such
Lender's Pro Rata Share of the Committed Loans and Swing Loans as of a
Settlement Date, then Administrative Agent shall by no later than 12:00 p.m.
(Houston, Texas time) on the Settlement Date transfer in immediately available
funds to the account of such Lender as such Lender may designate, an amount such
that each such Lender shall, upon receipt of such amount, have as of the
Settlement Date, its Pro Rata Share of the Committed Loans and Swing Loans; and
(ii) if a Lender's balance of the Committed Loans and Swing Loans is less than
such Lender's Pro Rata Share of the Committed Loans and Swing Loans as of a
Settlement Date, such Lender shall no later than 12:00 p.m. (Houston, Texas
time) on the Settlement Date transfer in immediately available funds to such
account of Administrative Agent as Administrative Agent may designate, an amount
such that each such Lender shall, upon transfer of such amount, have as of the
Settlement Date, its Pro Rata Share of the Committed Loans and Swing Loans. Such
amounts made available to Administrative Agent under clause (ii) of the
immediately preceding sentence shall be applied
-32-
against the amounts of the applicable Committed Loan and Swing Loan and,
together with the portion of such Committed Loan and Swing Loan representing
Administrative Agent's Pro Rata Share thereof, shall constitute Loans of such
Lenders. If any such amount is not made available to Administrative Agent by any
Lender on the Settlement Date applicable thereto to the extent required by the
terms hereof, Administrative Agent shall be entitled to recover for its account
such amount on demand from such Lender together with interest thereon at the
Defaulting Lenders Rate.
2.09. Fees.
----
(a) Commitment Fee. Borrower shall pay to Administrative Agent for
--------------
the account of each Lender pro rata according to its Pro Rata Share, a
commitment fee equal to the Applicable Amount times the actual daily amount
-----
by which the combined Commitments exceed the Outstanding Obligations less
the Swing Usage. The commitment fee shall accrue at all times from the
Closing Date until the Maturity Date and shall be payable quarterly in
arrears on each Quarterly Payment Date and on the Maturity Date. The
commitment fee shall be calculated quarterly in arrears, and if there is
any change in the Applicable Amount during any quarter, the average daily
amount shall be computed and multiplied by the Applicable Amount separately
for each period during such quarter that such Applicable Amount was in
effect.
(b) Lenders' Upfront Fee. On the Closing Date, Borrower shall pay
--------------------
to Administrative Agent, for the respective accounts of Lenders, the
upfront fees agreed in writing to be paid by Borrower. Such upfront fees
are for the credit facilities committed by each Lender under this Agreement
and are fully earned on the date paid. The upfront fee paid to each Lender
is solely for its own account and is nonrefundable.
(c) Other Fees. Borrower shall pay to Administrative Agent or
----------
Arranger, as appropriate, the fees agreed upon in the letter agreement
dated May 9, 2000 ("Fee Letter") among the Administrative Agent, the
----------
Arranger, and Borrower, at such times and upon such terms as are specified
in the Fee Letter. Such fees are fully earned on the date paid and are
nonrefundable.
2.10. Computation of Interest and Fees. Computation of interest on
--------------------------------
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be calculated on the basis of a year of 365 or 366 days, as the case
may be, and the actual number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed. Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided that
--------
any Loan that is repaid on the same day on which it is made shall bear interest
for one day.
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2.11. Making Payments.
---------------
(a) Except as otherwise provided herein, all payments by Borrower or
any Lender shall be made to Administrative Agent at Administrative Agent's
Office not later than the Requisite Time for such type of payment. All
payments received after such Requisite Time shall be deemed received on the
next succeeding Business Day. All payments shall be made in immediately
available funds in lawful money of the United States of America. All
payments by Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff.
(b) Except as otherwise provided with respect to Defaulting Lenders,
upon satisfaction of any applicable terms and conditions set forth herein,
Administrative Agent shall promptly make any amounts received in accordance
with the prior subsection available in like funds received as follows: (i)
if payable to Borrower, by crediting the Designated Deposit Account, and
(ii) if payable to any Lender, by wire transfer to such Lender at the
address specified in Schedule 10.02.
--------------
(c) Subject to the definition of "Interest Period," if any payment
to be made by any Borrower Party shall come due on a day other than a
Business Day, payment shall instead be considered due on the next
succeeding Business Day, and such extension of time shall be reflected in
computing interest and fees.
(d) Except as otherwise provided in Section 2.03(c) with respect to
---------------
Borrower reimbursing drawings under Letters of Credit, unless Borrower or
any Lender has notified Administrative Agent prior to the date any payment
to be made by the date it is due, that it does not intend to remit such
payment, Administrative Agent may, in its discretion, assume that Borrower
or Lender, as the case may be, has timely remitted such payment and may, in
its discretion and in reliance thereon, make available such payment to the
Person entitled thereto. If such payment was not in fact remitted to
Administrative Agent in immediately available funds, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to Administrative Agent the amount of such
assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including the date such amount
was made available by Administrative Agent to such Lender to the date
such amount is repaid to Administrative Agent at the Federal Funds
Rate;
(ii) if any Lender failed to make such payment, Administrative
Agent shall be entitled to recover such corresponding amount on demand
from such Lender. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent promptly shall notify Borrower, and Borrower
shall pay such corresponding amount to Administrative
-34-
Agent. Administrative Agent also shall be entitled to recover from
such Lender interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by
Administrative Agent to Borrower to the date such corresponding
amount is recovered by Administrative Agent, at a rate per annum
equal to the daily Federal Funds Rate. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Commitment
or to prejudice any rights which Administrative Agent or Borrower may
have against any Lender as a result of any default by such Lender
hereunder;
(iii) A notice submitted by Administrative Agent to any Lender
with respect to amounts owing under this subsection shall be
conclusive, absent manifest error. If such amount is so made
available, such payment to Administrative Agent shall constitute such
Lender's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to Administrative
Agent on the Business Day following the Funding Date, Administrative
Agent will notify Borrower of such failure to fund and, upon demand
by Administrative Agent, Borrower shall pay such amount to
Administrative Agent for Administrative Agent's account, together
with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable
at the time to the Loans composing such Borrowing; and
(iv) Administrative Agent shall not be obligated to transfer to
a Defaulting Lender any payments made by Borrower to Administrative
Agent for the Defaulting Lender's benefit; nor shall a Defaulting
Lender be entitled to the sharing of any payments hereunder. Amounts
payable to a Defaulting Lender shall instead be paid to or retained
by Administrative Agent. Administrative Agent may hold and, in its
discretion, re-lend to Borrower the amount of all such payments
received or retained by it for the account of such Defaulting Lender.
Solely for the purposes of voting or consenting to matters with
respect to the Loan Documents and determining Pro Rata Shares, such
Defaulting Lender shall be deemed not to be a "Lender" and such
Lender's Commitment shall be deemed to be zero (-0-). This section
shall remain effective with respect to such Lender until (x) the
Obligations under this Agreement shall have been declared or shall
have become immediately due and payable or (y) the requisite non-
Defaulting Lenders and Administrative Agent shall have waived such
Lender's default in writing. The operation of this section shall not
be construed to increase or otherwise affect the Commitment of any
Lender, or relieve or excuse the performance by Borrower of its
duties and obligations hereunder.
2.12. Funding Sources. Nothing in this Agreement shall be deemed to
---------------
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
-35-
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01. Taxes.
-----
(a) Any and all payments by Borrower to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of
---------
Administrative Agent and any Lender, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the Laws of which
Administrative Agent or such Lender is organized or maintains a lending
office or any political subdivision thereof (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as "Taxes"). If Borrower shall be required
-----
by any Laws to deduct any Taxes from or in respect of any sum payable under
any Loan Document to Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section), Administrative Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) Borrower shall make such deductions, (iii) Borrower shall pay
the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) Borrower shall
furnish to Administrative Agent (who shall forward the same to such Lender)
the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution or delivery of, or otherwise with respect
to, any Loan Document (hereinafter referred to as "Other Taxes").
-----------
(c) Borrower agrees to indemnify Administrative Agent and each
Lender for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by Administrative
Agent and such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto.
3.02. Illegality. If any Lender determines that any Laws have made it
----------
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Offshore Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the Offshore
Rate, then, on notice thereof by Lender to Borrower through Administrative
Agent, any obligation of that Lender to make Offshore
-36-
Rate Loans shall be suspended until Lender notifies Administrative Agent and
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, Borrower shall, upon demand from such Lender
(with a copy to Administrative Agent), prepay or Convert all Offshore Rate Loans
of that Lender, either on the last day of the Interest Period thereof, if Lender
may lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if Lender may not lawfully continue to maintain such Offshore Rate
Loans. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03. Inability to Determine Rates. If, in connection with any
----------------------------
Extension of Credit involving any Offshore Rate Loan, Administrative Agent
determines that (a) Dollar deposits are not being offered to banks in the
applicable offshore dollar market for the applicable amount and Interest Period
of the requested Offshore Rate Loan, (b) adequate and reasonable means do not
exist for determining the underlying interest rate for such Offshore Rate Loan,
or (c) such underlying interest rate does not adequately and fairly reflect the
cost to Lender of funding such Offshore Rate Loan, Administrative Agent will
promptly notify Borrower and all Lenders. Thereafter, the obligation of all
Lenders to make or maintain such Offshore Rate Loan shall be suspended until
Administrative Agent revokes such notice. Upon receipt of such notice, Borrower
may revoke any pending request for a Borrowing of Offshore Rate Loans or,
failing that, be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04. Increased Cost and Reduced Return; Capital Adequacy.
---------------------------------------------------
(a) If any Lender determines that any Laws:
(i) subject such Lender to any Tax, duty, or other charge
with respect to any Offshore Rate Loans or its obligation to make
Offshore Rate Loans, or change the basis on which taxes are imposed on
any amounts payable to such Lender under this Agreement in respect of
any Offshore Rate Loans;
(ii) shall impose or modify any reserve, special deposit, or
similar requirement (other than the reserve requirement utilized in
the determination of the Offshore Rate) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities
or commitments of, such Lender (including its Commitment); or
(iii) shall impose on such Lender or on the offshore Dollar
interbank market any other condition affecting this Agreement or any
of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Offshore Rate Loans or
to reduce any sum received or
-37-
receivable by such Lender under this Agreement with respect to any Offshore Rate
Loans, then from time to time upon demand of Lender (with a copy of such demand
to Administrative Agent), Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that any change in or the interpretation
of any Laws have the effect of reducing the rate of return on the capital
of such Lender or compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect
to capital adequacy and such Lender's desired return on capital), then from
time to time upon demand of such Lender (with a copy to Administrative
Agent), Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
3.05. Breakfunding Costs. Upon demand of any Lender (with a copy to
------------------
Administrative Agent) from time to time, Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any Continuation, Conversion, payment or prepayment of any
Offshore Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, Continue or Convert any
Offshore Rate Loan on the date or in the amount notified by Borrower;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Offshore Rate Loan or from fees payable to
terminate the deposits from which such funds were obtained. Borrower shall also
pay any customary administrative fees charged by such Lender in connection with
the foregoing.
3.06. Matters Applicable to all Requests for Compensation.
---------------------------------------------------
(a) A certificate of Administrative Agent claiming compensation
under this Section 3 and setting forth the additional amount or amounts to
---------
be paid to it hereunder shall be conclusive in the absence of clearly
demonstrable error. In determining such amount, Administrative Agent may
use any reasonable averaging and attribution methods. For purposes of this
Section 3, a Lender shall be deemed to have funded each Offshore Rate Loan
---------
at the Offshore Base Rate used in determining the Offshore Rate for such
Loan by a matching deposit or other borrowing in the offshore Dollar
interbank market, whether or not such Offshore Rate Loan was in fact so
funded.
-38-
(b) Borrower shall not be obligated to pay any such amount which
arose prior to the date which is 180 days preceding the date of such demand
or is attributable to periods prior to the date which is 180 days preceding
the date of such demand.
(c) Upon any Lender making a claim for compensation under Sections
--------
3.01 or 3.04, Borrower may remove and replace such Lender in accordance
---- ----
with Section 10.21.
-------------
3.07. Survival. All of Borrower's obligations under this Section 3
-------- ---------
shall survive termination of the Commitments, payment in full of all
Obligations, and the assignment by any Lender of its Commitments and Extensions
of Credit to the extent arising during and relating to a period prior to the
date of such assignment.
ARTICLE IV
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01. Conditions of Effectiveness; Initial Extension of Credit. This
--------------------------------------------------------
Agreement shall become effective and the Existing Credit Agreement shall be
amended and restated as provided in this Agreement on the date the following
conditions precedent are met, and the obligation of each Lender to make the
initial Extension of Credit is subject to satisfaction of the following
conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with
respect to immaterial matters, or items specified in subsections (iv) or
(v) below, that Borrower has given assurances satisfactory to
Administrative Agent that they will be delivered promptly following the
Closing Date), Administrative Agent's receipt of the following, each of
which shall be originals unless otherwise specified, each properly executed
by a Responsible Officer, each dated on or about the Closing Date and each
in form and substance satisfactory to Administrative Agent and its legal
counsel:
(i) executed counterparts of this Agreement, sufficient in
number for distribution to Administrative Agent, Lenders, and
Borrower;
(ii) Committed Loan Notes executed by Borrower in favor of each
Lender requesting a Committed Loan Note, each in a principal amount
equal to that Lender's Pro Rata Share;
(iii) a Swing Note executed by Borrower in favor of
Administrative Agent, in the principal amount of $5,000,000;
(iv) a Guaranty by all direct and indirect, domestic
Subsidiaries of Borrower, in favor of the Lenders, Issuing Lender, and
Administrative Agent;
-39-
(v) Pledge Agreements by each equity holder in a direct or
indirect Subsidiary of Borrower, in favor of Administrative Agent, for
the benefit of the Lenders, Issuing Lender, and Administrative Agent,
together with stock certificates, stock powers in blank, and financing
statements relating thereto;
(vi) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Borrower Party as Administrative Agent may require to
establish the identities of and verify the authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible
Officer thereof;
(vii) such evidence as Administrative Agent may reasonably
require to verify that each Borrower Party is duly organized or
formed, validly existing, in good standing and qualified to engage in
business in each jurisdiction in which it is required to be qualified
to engage in business, including, without limitation, certified copies
---------
of each Borrower Party's Organization Documents, certificates of good
standing and/or qualification to engage in business, tax clearance
certificates, and the like;
(viii) a certificate signed by a Responsible Officer of Borrower
certifying that (A) the conditions specified in Sections 4.01(c) and
----------------
4.01(d) have been satisfied and (B) there has been no event or
-------
circumstances since the date of the Audited Financial Statements for
Borrower's fiscal year 1999 which has a Material Adverse Effect;
(ix) an opinion of counsel to Borrower in form and substance
reasonably satisfactory to Administrative Agent; and
(x) such other assurances, certificates, documents, consents
or opinions as Administrative Agent, Issuing Lender, or the Requisite
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall
have been paid.
(c) (i) The representations and warranties which contain any
qualification as to materiality or as to a Material Adverse Effect made by
Borrower herein, or which are contained in any certificate, document or
financial or other statement furnished at any time under or in connection
herewith or therewith, shall be correct and (ii) the representations and
warranties which contain no qualification as to materiality or as to a
Material Adverse Effect made by the Borrower herein, or which are contained
in any certificate, document or financial or other statement furnished at
any time under or in connection hereunder or therewith, shall be correct in
all material respects, in each case on and as of the Closing Date.
-40-
(d) Each Borrower Party shall be in compliance with all the terms
and provisions of the Loan Documents to which it is a party, and no Default
or Event of Default shall have occurred and be continuing.
(e) Unless waived by Administrative Agent, Borrower shall have paid
all Attorney Costs of Administrative Agent to the extent invoiced prior to
or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of Attorney Costs incurred or to
be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude final settling of accounts between
Borrower and Administrative Agent).
(f) Borrower's and Subsidiaries' corporate capital and ownership
structures, Organization Documents, shareholder agreements, and management
shall be reasonably satisfactory to Administrative Agent.
(g) Borrower shall have provided the following to, and the
following shall be reasonably acceptable to, Administrative Agent:
information regarding litigation, tax, accounting, labor, insurance,
pension liabilities (actual or contingent), real estate leases,
environmental matters, material contracts, debt agreements, property
ownership, contingent liabilities, and management of Borrower and its
Subsidiaries and, if requested by Administrative Agent, reports of
environmental consultants acceptable to Administrative Agent with respect
to all of real property owned or leased by Borrower and its Subsidiaries.
(h) Borrower shall have provided to Administrative Agent (i) its
Audited Financial Statements for Borrower's fiscal years 1997, 1998, and
1999, (ii) its interim financial statements, and (iii) a pro forma balance
sheet of Borrower and its Subsidiaries as of the date hereof, each prepared
in conformity with GAAP, and Administrative Agent shall have approved each
of the foregoing.
(i) There shall have occurred no Material Adverse Effect since
December 31, 1999.
4.02. Conditions to all Extensions of Credit. In addition to any
--------------------------------------
applicable conditions precedent set forth elsewhere in this Article IV or in
Article II, the obligation of each Lender to make any Extension of Credit is
subject to the following conditions precedent:
(a) the representations and warranties of Borrower which contain
any qualification as to materiality or as to a Material Adverse Effect
contained in Article V, or which are contained in any certificate, document
or financial or other statement furnished at any time under or in
connection herewith or therewith, shall be correct and the representations
and warranties of the Borrower which contain no qualification as to
materiality or as to a Material Adverse Effect contained in Article V or
which are contained in any certificate, document or financial or other
statement furnished at any time under or in
-41-
connection herewith or therewith, shall be correct in all material
respects, in each case on and as of the date of such Extension of Credit,
except to the extent that such representations and warranties specifically
refer to any earlier date; provided, however, that for purposes of this
Section 4.02, in each representation and warranty in Article V that makes a
reference to a Schedule, the representation under this Section that each
representation and warranty in Article V is true on and as of the date of
the making of such Extension of Credit shall take into account (i) any
subsequent amendments to any Schedule referred to therein, (ii) any
exception contained in a written notice received by the Administrative
Agent that makes specific reference to the applicable Schedule, or (iii)
any written disclosure made by the Borrower or any of its Subsidiaries
prior to the date as of which such representation or warranty is made,
provided that the Requisite Lenders shall have consented to such amendment,
exception, or disclosure.
(b) no Default or Event of Default exists, or would result from
such proposed Extension of Credit.
(c) Administrative Agent shall have timely received a Request for
Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as Administrative Agent or Requisite
Lenders reasonably may require.
Each request for an Extension of Credit by Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
----------------
and 4.02(b) have been satisfied and on and as of the date of such Extension of
-------
Credit.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and Lenders that:
5.01. Existence and Qualification; Power; Compliance with Laws. Each
--------------------------------------------------------
Borrower Party is a corporation, partnership, or limited liability company duly
organized or formed, validly existing and in good standing under the Laws of the
state of its incorporation or organization, has the power and authority and the
legal right to own and operate its properties, to lease the properties it
operates and to conduct its business, is duly qualified and in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification and where
such failure could reasonably be expected to have a Material Adverse Effect, and
is in compliance with all Laws except to the extent that noncompliance does not
have a Material Adverse Effect.
-42-
5.02. Power; Authorization; Enforceable Obligations. Each Borrower Party
---------------------------------------------
has the power and authority and the legal right to make, deliver and perform
each Loan Document to which it is a party and Borrower has power and authority
to borrow hereunder and has taken all necessary action to authorize the
borrowings on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party. No consent or authorization of, filing with,
or other act by or in respect of any Governmental Authority or any other third
party, is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the other Loan Documents. The Loan Documents have been duly executed
and delivered by each Borrower Party, and constitute a legal, valid and binding
obligation of each Borrower Party, enforceable against each Borrower Party in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
5.03. No Legal Bar. The execution, delivery, and performance by each
------------
Borrower Party of the Loan Documents to which it is a party and compliance with
the provisions thereof have been duly authorized by all requisite action on the
part of such Borrower Party and do not and will not (a) violate or conflict
with, or result in a breach of, or require any consent under (i) any
Organization Documents of such Borrower Party or any of its Subsidiaries, (ii)
any applicable Laws, rules, or regulations or any order, writ, injunction, or
decree of any Governmental Authority or arbitrator, except where such conflict
could not reasonably be expected to have a Material Adverse Effect, or (iii) any
Contractual Obligation of such Borrower Party or any of its Subsidiaries or by
which any of them or any of their property is bound or subject, except where
such conflict could not reasonably be expected to have a Material Adverse
Effect, (b) constitute a default under (i) any such agreement or instrument
which is not an indenture, loan agreement, or other agreement for the borrowing
of money, except where such default could not reasonably be expected to have a
Material Adverse Effect, and (ii) any such agreement or instrument which is an
indenture, loan agreement, or other agreement for the borrowing of money, or (c)
result in, or require, the creation or imposition of any Lien on any of the
properties of such Borrower Party or any of its Subsidiaries.
5.04. Financial Statements; No Material Adverse Effect.
------------------------------------------------
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present
the financial condition of Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of
Borrower and its Subsidiaries as of the date thereof, including liabilities
for taxes, material commitments and Indebtedness in accordance with GAAP
consistently applied throughout the period covered thereby.
-43-
(b) Since the date of the Audited Financial Statements for
Borrower's fiscal year 1999, there has been no event or circumstance which
has a Material Adverse Effect.
5.05. Litigation. No litigation, investigation or proceeding of or before
----------
an arbitrator or Governmental Authority is pending or, to the knowledge of
Borrower after due and diligent investigation, threatened by or against any
Borrower Party or any of its Subsidiaries or against any of their properties or
revenues which has not been disclosed in the Audited Financial Statements for
fiscal year 1999 or which, if determined adversely, could reasonably be expected
to have a Material Adverse Effect.
5.06. No Default. Neither any Borrower Party nor any of their respective
----------
Subsidiaries are in default under or with respect to any Contractual Obligation
which could have a Material Adverse Effect, and no Default or Event of Default
has occurred and is continuing or will result from the consummation of this
Agreement or any of the other Loan Documents, or the making of the Extensions of
Credit hereunder.
5.07. Ownership of Property; Liens. Each Borrower Party and its
----------------------------
Subsidiaries have valid fee or leasehold interests in all real property which
they use in their respective businesses, and each Borrower Party and their
respective Subsidiaries have good and marketable title to all their other
property, and none of such property is subject to any Lien, except as permitted
------
in Section 7.02.
------------
5.08. Taxes. Each Borrower Party and its Subsidiaries have filed all
-----
material tax returns which are required to be filed, and have paid, or made
provision for the payment of, all taxes with respect to the periods, property or
transactions covered by said returns, or pursuant to any assessment received by
such Borrower Party or its respective Subsidiaries, except (a) such taxes, if
------
any, as are being contested in good faith by appropriate proceedings and as to
which adequate reserves have been established and maintained in accordance with
GAAP, (b) immaterial taxes, and (c) taxes the failure to make payments on which
would not, by reason of the amount thereof or of remedies available to the
levying Governmental Authority, reasonably be expected to have a Material
Adverse Effect.
5.09. Margin Regulations; Investment Company Act; Public Utility Holding
------------------------------------------------------------------
Company Act.
-----------
(a) No Borrower Party is engaged and will not engage, principally
or as one of its important activities, in the business of extending credit
for the purpose of "purchasing" or "carrying" "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect. No part of the proceeds of any Extensions of
Credit hereunder will be used for "purchasing" or "carrying" "margin stock"
as so defined or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulations U or X of such Board of
Governors.
-44-
(b) No Borrower Party or any of its Subsidiaries (i) is a "holding
company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.10. ERISA Compliance.
----------------
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state Laws;
provided, however, that solely for purposes of this representation, any act
or omission of the ERISA Affiliate which would otherwise be deemed to be a
breach of this representation shall be considered a breach only if such act
or omission could result in liability to any Borrower Party. Each Plan that
is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a
letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of Borrower, nothing has occurred which would prevent,
or cause the loss of, such qualification. Borrower and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412 of
the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that has or could reasonably be
expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect
to any Plan that has or could reasonably be expected to have a Material
Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result
in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c)
of ERISA.
5.11. Intangible Assets. Each Borrower Party and its Subsidiaries own, or
-----------------
possess the right to use, all trademarks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intangible assets that are used in
the conduct of their respective businesses as now operated, and none of such
items, to the best knowledge of Borrower, conflicts with the valid trademark,
trade
-45-
name, copyright, patent, patent right or intangible asset of any other Person to
the extent that such conflict has a Material Adverse Effect.
5.12. Compliance With Laws. Each Borrower Party and its Subsidiaries are
--------------------
in compliance with all Laws that are applicable to it; provided that a failure
to comply with any Law shall not be deemed a violation of this Section 5.12 if
such failure would not result in fines, penalties, or similar liabilities or
injunctive relief which in the aggregate would have a Material Adverse Effect or
subject the Administrative Agent or the Lenders to civil or criminal fines or
penalties.
5.13. Environmental Compliance. Each Borrower Party and its Subsidiaries
------------------------
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof Borrower has reasonably concluded that
such Environmental Laws and claims do not, individually or in the aggregate,
have a Material Adverse Effect.
5.14. Insurance. The properties of each Borrower Party and its
---------
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of Borrower, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where Borrower or such
Subsidiary operates.
5.15. Year 2000. Borrower has (a) completed a review and assessment of all
---------
areas within its and each of its Subsidiaries' business and operations
(including those affected by suppliers, vendors, and customers) that could be
adversely affected by the Year 2000 Problem and (b) developed, completed, and
implemented a plan for addressing the Year 2000 Problem. Based on the foregoing,
the Borrower believes that all computer applications (including those of its
suppliers, vendors, and customers) that are material to its or any of its
Subsidiaries' business and operations are Year 2000 Compliant, except to the
extent that a failure to be so could not reasonably be expected to result in a
Material Adverse Effect.
5.16. Disclosure. No statement, information, report, representation, or
----------
warranty made by any Borrower Party in any Loan Document or furnished to
Administrative Agent or any Lender in connection with any Loan Document contains
any untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they are made, not misleading as of the time when made
or delivered.
-46-
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Extension of Credit remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitments remains
outstanding, Borrower shall, and shall (except in the case of Borrower's
reporting covenants), cause each of its Subsidiaries, to:
6.01. Financial Statements. Deliver to Administrative Agent in form and
--------------------
detail satisfactory to Administrative Agent and the Requisite Lenders, with
sufficient copies for each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Borrower, a consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of income and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, audited and accompanied by
a report and opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or any other independent
certified public accountant of nationally recognized standing, which report
and opinion shall be prepared in accordance with GAAP and shall not be
subject to any qualifications or exceptions as to the scope of the audit
nor to any qualifications and exceptions (including possible errors
generated by financial reporting and related systems due to the Year 2000
Problem) not reasonably acceptable to the Requisite Lenders; and
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of
Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as
at the end of such fiscal quarter, and the related consolidated statements
of income and cash flows for such fiscal quarter and for the portion of
Borrower's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of
Borrower as fairly presenting the financial condition, results of
operations and cash flows of Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.
6.02. Certificates, Notices and Other Information. Deliver to
-------------------------------------------
Administrative Agent in form and detail satisfactory to the Administrative Agent
and the Requisite Lenders, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
---------------
public accountants certifying such financial statement and stating that in
making the examination necessary therefor no
-47-
knowledge was obtained of any Default or Event of Default hereunder or, if
any such Default or Event of Default shall exist, stating the nature and
status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
---------------- ---
Certificate signed by a Responsible Officer of Borrower;
(c) promptly after request by Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of Borrower by independent accountants in connection with the
accounts or books of Borrower or any of its Subsidiaries, or any audit of
any of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which Borrower may
file or be required to file with the Securities and Exchange Commission
under Sections 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to Administrative Agent pursuant hereto;
(e) promptly after the occurrence thereof, notice of any Default or
Event of Default;
(f) promptly after the commencement thereof, notice of any
litigation, investigation or proceeding affecting any Borrower Party, an
adverse determination of which could cause a Material Adverse Effect, or in
which injunctive relief or similar relief is sought, which relief, if
granted, would have a Material Adverse Effect;
(g) promptly after the occurrence thereof, notice of any Reportable
Event with respect to any Plan or the intent to terminate any Plan, or the
institution of proceedings or the taking or expected taking of any other
action to terminate any Plan or withdraw from any Plan;
(h) promptly after the occurrence thereof, notice of any Material
Adverse Effect;
(i) notice of any material change in accounting policies or
financial reporting practices by Borrower or any of its Subsidiaries;
(j) promptly, written notice in the event the Borrower discovers or
determines that any computer application (including those of its suppliers,
vendors, and customers) that is material to its or any of its Subsidiaries'
business and operations is not or will not be Year 2000 Compliant, except
to the extent that such failure could not reasonably be expected to result
in a Material Adverse Change; and
-48-
(k) promptly, such other data and information as from time to time
may be reasonably requested by Administrative Agent, or, through
Administrative Agent or any Lender.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of Borrower setting forth details of the occurrence
referred to therein and stating what action Borrower has taken and proposes to
take with respect thereto.
6.03. Payment of Taxes. Pay and discharge when due all taxes, assessments,
----------------
and governmental charges, Ordinary Course Liens or levies imposed on any
Borrower Party or its Subsidiaries or on its income or profits or any of its
property, except for any such tax, assessment, charge, or levy which is an
Ordinary Course Lien under subsection (b) of the definition of such term.
6.04. Preservation of Existence. Preserve and maintain its existence,
-------------------------
licenses, permits, rights, franchises and privileges necessary or desirable in
the normal conduct of its business, except (a) where failure to do so does not
have a Material Adverse Effect or (b) in connection with transactions permitted
in Section 7.03.
6.05. Maintenance of Properties. Maintain, preserve and protect all of its
-------------------------
properties and equipment necessary in the operation of its business in good
order and condition, subject to wear and tear in the ordinary course of
business, and not permit any waste of its properties, except where failure to do
so could not be reasonably expected to have a Material Adverse Effect.
6.06. Maintenance of Insurance. Maintain liability and casualty insurance
------------------------
with responsible insurance companies reasonably satisfactory to Administrative
Agent in such amounts and against such risks as is customary for similarly
situated businesses.
6.07. Compliance With Laws.
--------------------
(a) Comply with the requirements of all applicable Laws and orders
of any Governmental Authority, except for noncompliance which could not
reasonably be expected to have a Material Adverse Effect.
(b) Conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except to the extent that the
Borrower and such Subsidiary's potential liability for failure to so comply
could not reasonably be expected to have a Material Adverse Effect.
6.08. Inspection Rights. At any time during regular business hours and as
-----------------
often as reasonably requested, upon reasonable advance notice to the Borrower,
permit Administrative Agent or any Lender, or any employee, agent or
representative thereof, to examine, audit and make copies and abstracts from the
Borrower Parties' records and books of account and to visit and inspect their
properties and to discuss their affairs, finances and accounts with any of their
Responsible Officers
-49-
and key employees, and, upon request, furnish promptly to Administrative Agent
or any Lender true copies of all financial information and internal management
reports made available to their senior management.
6.09. Keeping of Records and Books of Account. Keep adequate records and
---------------------------------------
books of account reflecting all financial transactions in conformity with GAAP,
consistently applied, and in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
Borrower or any of its Subsidiaries.
6.10. Compliance with ERISA. Cause, and cause each of its ERISA Affiliates
---------------------
to: (a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code, so as not to give rise to any liability thereunder
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
6.11. Compliance With Agreements. Promptly and fully comply with all
--------------------------
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, except for any such
------
Contractual Obligations (a) the performance of which would cause a Default, (b)
then being contested by any of them in good faith by appropriate proceedings, or
(c) if the failure to comply therewith does not have a Material Adverse Effect.
6.12. Use of Proceeds. Use the proceeds of Extensions of Credit for the
---------------
refinancing of existing Indebtedness and other lawful general corporate purposes
not otherwise in contravention of this Agreement.
6.13. New Subsidiaries. Within 30 days after the creation of any new
----------------
Subsidiary or the investment in a venture permitted by this Agreement, Borrower
will cause (a) such Subsidiary, if it is a domestic Subsidiary to execute and
deliver to each Lender a Guaranty and such evidence of corporate authority to
enter into such Guaranty as Administrative Agent may reasonably request and (b)
the stockholder or other equity holder of such Subsidiary or such interest in
such venture to execute a Pledge Agreement pledging 100%, in the case of a
domestic Subsidiary or venture, or 65%, in the case of a foreign Subsidiary or
venture, of the Borrower's and its Subsidiaries' interests in the capital stock
or other equity interests of such new Subsidiary or venture and such evidence of
corporate authority to enter into such Pledge Agreement as Administrative Agent
may reasonably request, along with share certificates pledged thereby and
appropriately executed stock powers in blank.
6.14. Further Assurances. Execute and file all such further instruments,
------------------
and perform such other acts, as Administrative Agent or Required Lenders may
determine are reasonably necessary to effectuate the intent of the Loan
Documents.
-50-
ARTICLE VII
NEGATIVE COVENANTS
So long as any Extension of Credit remains unpaid, or any other Obligations
remain unpaid or unperformed, or any portion of the Commitments remains
outstanding, Borrower shall not, nor shall it permit any of its Subsidiaries to,
directly or indirectly:
7.01. Indebtedness. Create, incur, assume or suffer to exist any
------------
Indebtedness, except:
------
(a) Ordinary Course Indebtedness;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.01 and any refinancings, refundings, renewals or extensions
-------------
thereof, provided that the amount of such Indebtedness is not increased at
--------
the time of such refinancing, refunding, renewal or extension except by an
amount equal to the premium or other amount paid, and fees and expenses
incurred, in connection with such refinancing and by an amount equal to any
utilized commitments thereunder;
(c) Unsecured Indebtedness (i) which does not exceed $10,000,000 in
the aggregate at any time and (ii) which, when combined with Indebtedness
which is secured by Liens permitted under Section 7.02(d), does not exceed
$35,000,000;
(d) Indebtedness secured by Liens permitted under Section 7.02(d);
(e) Indebtedness in connection with leases permitted under Section
7.06;
(f) Indebtedness subordinated to the Obligations which is subject
to subordination provisions that are acceptable to Administrative Agent and
the Requisite Lenders;
(g) Indebtedness secured by Ordinary Course Liens;
(h) Indebtedness of any Subsidiary to the Borrower or another
Subsidiary from intercompany transfers of assets made in the ordinary
course of business or to the extent permitted under this Agreement; and
(i) Extensions, renewals, or replacements of Indebtedness permitted
under this Section 7.01 provided that no such extension, renewal, or
replacement shall (i) amend or modify any subordination provisions, if any,
contained in the original Indebtedness, (ii) shorten the fixed maturity or
increase the principal amount of, or increase the rate or shorten the time
of payment and interest on, or increase the amount or shorten the time of
payment of any principal or premium payable whether at maturity, at a date
fixed for prepayment, or
-51-
by acceleration or otherwise of the original Indebtedness, or increase the
amount of, or accelerate the time of payment of, any fees payable in
connection therewith, (iii) make any modification relating to the
affirmative or negative covenants, events of default, or remedies under the
documents or instruments evidencing the original Indebtedness, the effect
of which is to subject the Borrower or any of its Subsidiaries to any more
materially onerous or restrictive provisions, or (iv) materially adversely
affect the interest of the Lenders under this Agreement or any other Loan
Document in any respect.
7.02. Liens and Negative Pledges. Incur, assume or suffer to exist, any
--------------------------
Lien or Negative Pledge upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except:
------
(a) Liens and Negative Pledges existing on the date hereof and
listed on Schedule 7.01 and any renewals or extensions thereof; provided
------------- --------
obligations secured or benefited thereby or the property covered thereby
are not increased, except as permitted by Section 7.01(b);
---------------
(b) Ordinary Course Liens;
(c) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed and all
such Liens in the aggregate at any time outstanding for Borrower and its
Subsidiaries do not exceed $3,000,000;
(d) Purchase money security interests and Liens in respect of
capital leases and Sale-Leasebacks on any property acquired or held by
Borrower and its Subsidiaries in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any
part of the cost of acquiring such property; provided that (i) any such
Lien for a purchase money security interest or a capital lease attaches to
such property (A) concurrently with or within 20 days after the
acquisitions thereof in the case of personal property with a purchase price
of less than $100,000 or (B) within 18 months after the acquisition thereof
in the case of real property or personal property with a purchase price of
$100,000 or greater, (ii) such Lien attaches solely to the property so
acquired or financed in such transaction, (iii) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such
property, and (iv) the principal amount of the Indebtedness secured by any
and all such purchase money security interests, capital leases, and Sale-
Leasebacks shall not at any time exceed, in the aggregate, $35,000,000 less
the amount of Indebtedness outstanding pursuant to Section 7.01(c);
(e) Liens arising solely 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 credit
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions
against access by Borrower in excess of those set forth by regulations
promulgated by the
-52-
Federal Reserve Board, and (ii) such deposit account is not intended by
Borrower or any of its Subsidiaries to provide collateral to the depository
institution;
(f) Liens arising from precautionary UCC financing statement
filings with respect to operating leases or consignment arrangements
otherwise permitted hereunder entered into by Borrower or any of its
Subsidiaries in the ordinary course of business; and
(g) Licenses, leases, and subleases permitted under this Agreement
and granted to others that do not interfere in any material respect with
the business or operations of Borrower or any of its Subsidiaries.
7.03. Fundamental Changes. Merge or consolidate with or into any Person or
-------------------
liquidate, wind-up or dissolve itself, or permit or suffer any liquidation or
dissolution, except, that so long as no Default or Event of Default exists or
would result therefrom:
(a) any Subsidiary of Borrower may merge with (i) Borrower provided
that Borrower shall be the continuing or surviving corporation, (ii) with
any one or more Subsidiaries of Borrower, and (iii) with any joint
ventures, partnerships and other Persons, so long as such joint ventures,
partnerships and other Persons will, as a result of making such merger and
all other contemporaneous related transactions, become a Subsidiary of
Borrower; provided that when any wholly-owned Subsidiary of Borrower is
--------
merging into another Subsidiary of Borrower, the wholly-owned Subsidiary of
Borrower shall be the continuing or surviving Person;
(b) any Subsidiary of Borrower may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to Borrower or any of
its Subsidiaries; provided that when any wholly-owned Subsidiary of
--------
Borrower is selling all or substantially all of its assets to another
Subsidiary of Borrower, the Subsidiary acquiring such assets shall be a
wholly-owned Subsidiary of Borrower;
(c) Borrower or any Subsidiary may merge with any entity acquired
in accordance with the provisions of Subsection 7.05(e); and
(d) Any Subsidiary which owns no more than one restaurant may
dissolve or liquidate, provided that the dissolution or liquidation of such
Subsidiary is not disadvantageous to Lenders in any material respect and,
in the reasonable business judgment of Borrower, is in the best economical
interest of Borrower.
7.04. Dispositions. Make any Dispositions, except:
------------ ------
(a) Ordinary Course Dispositions;
(b) Dispositions permitted by Section 7.03 and 7.06(c);
------------ -------
-53-
(c) Transfers resulting from any casualty or condemnation or
property or assets; and
(d) Sale of Property of Borrower or any Subsidiary within one year
of (i) purchase in the case of equipment or (ii) completion of improvements
in the case of real property and the lease-back of such property by the
Borrower or one of its Subsidiaries which would be classified as a lease
pursuant to GAAP ("Sale-Leasebacks"); provided, however, that Borrower and
---------------
its Subsidiaries will not consummate Sale-Leasebacks except as permitted
under Section 7.02(d).
7.05. Investments. Make any Investments, except:
----------- ------
(a) Investments existing on the date hereof and extensions,
renewals, modifications, and restatements or replacements thereof, provided
that no such extension, renewal, modification, restatement, or replacement
shall increase of the amount of the original Investment;
(b) Ordinary Course Investments;
(c) Investments permitted by Sections 7.03 and 7.11;
----------------------
(d) Loans and advances by Borrower or its Subsidiaries to their
respective officers, directors, and employees in an aggregate principal
amount not to exceed $3,000,000 at any one time outstanding;
(e) Investments of Borrower or any wholly owned Subsidiary of
Borrower in any of Borrower's Non-Recourse Subsidiaries or non-wholly owned
Subsidiaries or Affiliates or in other Persons, in each case in
substantially the same Lines of Business as Borrower and its Subsidiaries
in an aggregate amount not to exceed $75,000,000 at any one time
outstanding, provided that up to $7,500,000 (less the aggregate amount of
Acquisitions, allowed under Section 7.11(b), of Persons or businesses not
in substantially the same Lines of Business as the Borrower and its
Subsidiaries) of the foregoing Investments may be in Affiliates or in other
Persons not substantially in the same Lines of Business as Borrower and its
Subsidiaries; and
(f) Promissory notes and other similar noncash consideration
received by the Borrower or its Subsidiaries in connection with the
Dispositions permitted by Sections 7.04(a), (b), and (c).
7.06. Lease Obligations. Create or suffer to exist any obligations for the
-----------------
payment of rent for any property under lease or agreement to lease, except:
------
(a) leases in existence on the date hereof and any renewal,
extension or refinancing thereof;
-54-
(b) leases (other than capital leases) entered into or assumed by
Borrower or any of its Subsidiaries after the date hereof in the ordinary
course of business; and
(c) capital leases (other than those permitted under clause (a) of
this Section) permitted under Section 7.02(d) and Sale-Leasebacks permitted
under Section 7.04 entered into by the Borrower or any Subsidiary after the
Closing Date to finance the acquisition of equipment or the completion of
improvements to real property.
7.07. Restricted Payments. Make any Restricted Payments, except that, so
-------------------
long as no Default or Event of Default would exist immediately after giving
effect to such proposed Restricted Payment,
(a) Borrower may repurchase shares of its own stock for an
aggregate purchase price not to exceed $36,000,000 after the Closing Date;
and
(b) Borrower may declare dividends on shares of its capital stock
in an aggregate amount not to exceed $5,000,000 in any fiscal year.
7.08. ERISA. At any time engage in a transaction which could be subject to
-----
Sections 4069 or 4212(c) of ERISA, or permit any Pension Plan to (a) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, has a Material Adverse
Effect.
7.09. Change in Nature of Business. Make any change in the nature of the
----------------------------
Lines of Business of any Borrower Party.
7.10. Transactions with Affiliates. Enter into any transaction of any kind
----------------------------
with any Affiliate of Borrower other than transactions with terms not less
advantageous for Borrower or such Subsidiary than arm's-length transactions with
Affiliates that are otherwise permitted hereunder. Notwithstanding the
foregoing, Borrower and its Subsidiaries may be entitled to make the following
payments or enter into the following transactions:
(a) the payment of reasonable and customary fees and reimbursement
of expenses payable to officers and directors of Borrower and its
Subsidiaries; and
(b) the employment arrangements with respect to the procurement of
services of directors, officers, and employees in the ordinary course of
business and the payment of reasonable amounts in connection therewith.
7.11. Acquisitions. Make an Acquisition without the prior written consent
------------
of the Requisite Lenders unless (a) after giving effect to such Acquisition the
------
aggregate purchase price (including cash, stock, and debt assumed) of all such
Acquisitions during any fiscal year does not exceed
-55-
$55,000,000, (b) (i) the Person is engaged in, or the business to be acquired is
in, substantially the same Lines of Business as the Borrower and its
Subsidiaries (a "Similar Business") or (ii) if the Person or business to be
acquired is not a Similar Business, then the sum of (A) such Acquisition and all
other Acquisitions of Persons or businesses which are not Similar Businesses and
(B) the aggregate amount of Investments, permitted under Section 7.04(e), in
Persons or businesses which are not Similar Businesses, shall not exceed
$7,500,000 in the aggregate at any time outstanding, and (c) such Acquisition is
not opposed by the board of directors or management of such Person to be
acquired.
7.12. Capital Expenditures. Make, or become legally obligated to make, any
--------------------
capital expenditure (excluding Acquisitions under Section 7.11), except capital
------
expenditures in any fiscal year of Borrower not exceeding the sum of (a) (i) in
fiscal year 2000, $80,000,000, (ii) in fiscal year 2001, $75,000,000, and (iii)
in fiscal years thereafter, $65,000,000 and (b) the amount, up to $10,000,000,
of unused capital expenditure allowance for the immediately preceding fiscal
year.
7.13. Limitations on Upstreaming. Agree to any restriction or limitation
--------------------------
on the making of Restricted Payments or transferring of assets from any
Subsidiary of Borrower to Borrower.
7.14. Financial Covenants.
-------------------
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible
-------------------------------
Net Worth at any time to be less than the sum of (i) $339,000,000, (ii) an
amount equal to 50% of the Consolidated Net Income earned in each fiscal
quarter ending after March 31, 2000 (with no deduction for a net loss in
any such fiscal quarter), and (iii) an amount equal to 75% of the aggregate
increases in Stockholders' Equity of Borrower and its Subsidiaries after
the date hereof by reason of the issuance and sale of capital stock of
Borrower (including upon any conversion of debt securities of Borrower into
such capital stock, but excluding upon any exercise of employee stock
options, to the extent the aggregate amount of such exercised employee
stock options is less than $5,000,000).
(b) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
---------------------------
Ratio as of the end of any fiscal quarter of Borrower to be less than 1.75
to 1.0.
(c) Leverage Ratio. Permit the Leverage Ratio at any time to be
--------------
greater than 2.25 to 1.0.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01. Events of Default. Any one or more of the following events shall
-----------------
constitute an Event of Default:
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(a) Borrower fails to pay any principal on any Extension of Credit
as and on the date when due; or
(b) Borrower fails to pay any interest on any Extension of Credit,
or any commitment fees due hereunder, or any other fees or amount payable
to Administrative Agent or any Lender under any Loan Document within five
days after the date when due; or
(c) Any default occurs in the observance or performance of any
agreement contained in Sections 6.08, 6.10, 6.13, or Section 7; or
------------- ---- ---- ---------
(d) Borrower or any of its Subsidiaries fails to perform or observe
any other term or covenant contained in this Agreement or any other Loan
Document, and such default shall continue unremedied for a period of 30
days (or 10 days in the case of the covenants set forth in Sections 6.01
-------------
and 6.02) after the earlier of (i) the date upon which a Responsible
----
Officer of the Borrower or any of its Subsidiaries knew or reasonably
should have known of such failure and (ii) the date upon which written
notice thereof was given to Borrower by Administrative Agent or any Lender;
or
(e) Any representation or warranty which contain any qualification
as to materiality or as to a Material Adverse Effect in any Loan Document
or in any certificate, agreement, instrument or other document made or
delivered by any Borrower Party pursuant to or in connection with any Loan
Document proves to have been incorrect or any representation or warranty
which contains no qualification as to materiality or as to a Material
Adverse Effect in any Loan Document or in any certificate, agreement,
instrument or other document made or delivered by any Borrower Party
pursuant to or in connection with any Loan Document proves to have been
incorrect in any material respect, in each case when made or deemed made;
or
(f) Any Borrower Party (i) defaults in any payment when due of
principal of or interest on any Indebtedness (other than Indebtedness
hereunder) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than
$5,000,000 and such default continues after the applicable grace or notice
period, if any, or (ii) defaults in the observance or performance of any
other agreement or condition relating to any such Indebtedness (other than
Indebtedness hereunder) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur,
the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness having an aggregate
principal amount in excess of $5,000,000 to be demanded or become due
(automatically or otherwise) prior to its stated maturity, or any Guaranty
Obligation in such amount to become payable, or any Borrower Party is
unable or admits in writing its inability to pay its debts as they mature;
or
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(g) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of all Lenders or satisfaction
in full of all the Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void, invalid
or unenforceable in any respect; or any Borrower Party denies that it has
any or further liability or obligation under any Loan Document, or purports
to revoke, terminate or rescind any Loan Document; or
(h) A final judgment against any Borrower Party is entered for the
payment of money in excess of $3,000,000, or any non-monetary final
judgment is entered against any Borrower Party which has a Material Adverse
Effect and, in each case if such judgment remains unsatisfied without
procurement of a stay of execution within 30 calendar days after the date
of entry of judgment or, if earlier, five days prior to the date of any
proposed sale, or any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the
Property of any such Person and is not released, vacated or fully bonded
within 30 calendar days after its issue or levy; or
(i) Any Borrower Party or any of its Subsidiaries institutes or
consents to the institution of any proceeding under Debtor Relief Laws, or
makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all
or any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for 90 calendar days; or any proceeding
under Debtor Relief Laws relating to any such Person or to all or any part
of its property is instituted without the consent of that Person and
continues undismissed or unstayed for 60 calendar days, or an order for
relief is entered in any such proceeding; or
(j) (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$3,000,000; (ii) the aggregate amount of Unfunded Pension Liability among
all Pension Plans at any time exceeds $3,000,000; or (iii) Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan
in an aggregate amount in excess of $3,000,000; or
(k) Any Change of Control shall occur.
8.02. Remedies Upon Event of Default. Without limiting any other rights or
------------------------------
remedies of Administrative Agent or Lenders provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
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(a) the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 8.01(i):
----- ---- ---------------
(i) the Requisite Lenders may request Administrative Agent
to, and Administrative Agent thereupon shall, terminate the
Commitments and/or declare all or any part of the unpaid principal of
all Loans, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be forthwith due and
payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by
Borrower; and
(ii) Issuing Lender may, with the approval of Administrative
Agent on behalf of the Requisite Lenders, demand immediate payment by
Borrower of an amount equal to the aggregate amount of all outstanding
Letters of Credit Usage to be held in a Letter of Credit Cash
Collateral Account.
(b) Upon the occurrence of any Event of Default described in
Section 8.01(i):
------- -------
(i) the Commitments and all other obligations of
Administrative Agent or Lenders shall automatically terminate without
notice to or demand upon Borrower, which are expressly waived by
Borrower;
(ii) the unpaid principal of all Loans, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower; and
(iii) an amount equal to the aggregate amount of all
outstanding Letters of Credit Usage shall be immediately due and
payable to Issuing Lender without notice to or demand upon Borrower,
which are expressly waived by Borrower, to be held in a Letter of
Credit Cash Collateral Account.
(c) Upon the occurrence of any Event of Default, Lenders and
Administrative Agent, or any of them, without notice to (except as
expressly provided for in any Loan Document) or demand upon Borrower, which
are expressly waived by Borrower (except as to notices expressly provided
for in any Loan Document), may proceed to (but only with the consent of the
Requisite Lenders) protect, exercise and enforce their rights and remedies
under the Loan Documents against any Borrower Party and such other rights
and remedies as are provided by Law or equity.
(d) Except as permitted by Section 10.05, no Lender may exercise any
-------------
rights or remedies with respect to the Obligations without the consent of
the Requisite Lenders in their sole discretion. The order and manner in
which Administrative Agent's and Lenders' rights
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and remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion. Regardless of how a Lender may treat
payments for the purpose of its own accounting, for the purpose of
computing the Obligations hereunder, payments shall be applied first, to
costs and expenses (including reasonable Attorney Costs) incurred by
Administrative Agent and each Lender, second, to the payment of accrued and
unpaid interest on the Loans to and including the date of such application,
third, to the payment of the unpaid principal of the Loans, and fourth, to
the payment of all other amounts (including fees) then owing to
Administrative Agent and Lenders under the Loan Documents, in each case
paid pro rata to each Lender in the same proportions that the aggregate
Obligations owed to each Lender under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all Lenders, without
priority or preference among Lenders. No application of payments will cure
any Event of Default, or prevent acceleration, or continued acceleration,
of amounts payable under the Loan Documents, or prevent the exercise, or
continued exercise, of rights or remedies of Administrative Agent and
Lenders hereunder or thereunder or at Law or in equity.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01. Appointment and Authorization of Administrative Agent.
-----------------------------------------------------
(a) Each Lender hereby irrevocably (subject to Section 9.09)
------------
appoints, designates and authorizes Administrative Agent to take such
action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth
herein, nor shall Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist
against Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with
reference to Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as Administrative Agent may agree at
the request of the Requisite Lenders to act for such Issuing Lender with
respect thereto; provided, however, that Issuing Lender shall have
-------- -------
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the benefits and immunities (i) provided to Administrative Agent in this
Section 9 with respect to any acts taken or omissions suffered by Issuing
---------
Lender in connection with Letters of Credit issued by it or proposed to be
issued by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Administrative
Agent" as used in this Section 9 included Issuing Lender with respect to
---------
such acts or omissions, and (ii) as additionally provided in this Agreement
with respect to Issuing Lender.
9.02. Delegation of Duties. Administrative Agent may execute any of its
--------------------
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or attorney-in-
fact that it selects with reasonable care.
9.03. Liability of Administrative Agent. None of Administrative Agent-
---------------------------------
Related Persons shall (a) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any other Loan
Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any of
Lenders for any recital, statement, representation or warranty made by Borrower
or any Subsidiary or Affiliate of Borrower, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Administrative Agent-Related Person shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of Borrower or any of Borrower's Subsidiaries or Affiliates.
9.04. Reliance by Administrative Agent.
--------------------------------
(a) Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it 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
(including counsel to Borrower), independent accountants and other experts
selected by Administrative Agent. Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or
any other Loan Document unless it shall first receive such advice or
concurrence of the Requisite Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by 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. Administrative
Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement
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or any other Loan Document in accordance with a request or consent of the
Requisite Lenders or all Lenders, if required hereunder, and such request
and any action taken or failure to act pursuant thereto shall be binding
upon all of Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has executed this Agreement
------------
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by 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.
9.05. Notice of Default. Administrative Agent shall not be deemed to
-----------------
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be requested by the Requisite Lenders in accordance with Section 8;
---------
provided, however, that unless and until Administrative Agent has received any
-------- -------
such request, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of Lenders.
9.06. Credit Decision; Disclosure of Information by Administrative Agent.
------------------------------------------------------------------
Each Lender acknowledges that none of Administrative Agent-Related Persons has
made any representation or warranty to it, and that no act by Administrative
Agent hereinafter taken, including any consent to and acceptance of any
assignment or review of the affairs of Borrower and its Subsidiaries, shall be
deemed to constitute any representation or warranty by any Administrative Agent-
Related Person to any Lender as to any matter, including without limitation,
whether Administrative Agent-Related Persons have disclosed material information
in their possession. Each Lender, including any Lender by assignment, represents
to Administrative Agent that it has, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon any administrative Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrower. Except for notices, reports
-62-
and other documents expressly herein required to be furnished to Lenders by
Administrative Agent herein, Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrower or any of its Subsidiaries which may
come into the possession of any of Administrative Agent-Related Persons.
9.07. Indemnification of Administrative Agent. Whether or not the
---------------------------------------
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Administrative Agent-Related Person (to the extent not reimbursed by
or on behalf of Borrower and without limiting the obligation of Borrower to do
so), pro rata, and hold harmless each Administrative Agent-Related Person from
and against any and all Indemnified Liabilities incurred by it; provided,
--------
however, that no Lender shall be liable for the payment to any Administrative
-------
Agent-Related Person of any portion of such Indemnified Liabilities resulting
from such Person's gross negligence or willful misconduct; provided, however,
-------- -------
that no action taken in accordance with the directions of the Requisite Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender
shall reimburse Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that
Administrative Agent is not reimbursed for such expenses by or on behalf of
Borrower. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of Administrative
Agent.
9.08. Administrative Agent in Individual Capacity. Bank of America and
-------------------------------------------
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
Borrower and its Subsidiaries and Affiliates as though Bank of America were not
Administrative Agent or Issuing Lender hereunder and without notice to or
consent of Lenders. Lenders acknowledge that, pursuant to such activities, Bank
of America or its Affiliates may receive information regarding Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of Borrower or such Affiliate) and acknowledge that
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Agent or Issuing Lender.
9.09. Successor Administrative Agent. Administrative Agent may, and at
------------------------------
the request of the Requisite Lenders shall, resign as Administrative Agent upon
30 days' notice to Lenders. If Administrative Agent resigns under this
Agreement, the Requisite Lenders shall appoint from among Lenders a successor
administrative agent for Lenders which successor administrative agent shall be
approved by Borrower. If no successor administrative agent is appointed prior to
the effective date
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of the resignation of Administrative Agent, Administrative Agent may appoint,
after consulting with Lenders and Borrower, a successor administrative agent
from among Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 9 and Sections 10.03 and 10.11 shall inure to its
--------- -------------- -----
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and Lenders shall perform all of the duties of Administrative Agent hereunder
until such time, if any, as the Requisite Lenders appoint a successor agent as
provided for above. Notwithstanding the foregoing, however, Bank of America may
not be removed as Administrative Agent at the request of the Requisite Lenders
unless Bank of America shall also simultaneously be replaced as "Issuing Lender"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to Bank of America.
ARTICLE X
MISCELLANEOUS
10.01. Amendments; Consents. No amendment, modification, supplement,
--------------------
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Borrower Party therefrom shall be effective unless in writing
signed by Requisite Lenders, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Except as otherwise expressly provided herein, without the approval in writing
of all Lenders, no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) To reduce the amount of principal, principal prepayments or the
rate of interest payable on, any Loan, or the amount of any fee or other
amount payable to any Lender under the Loan Documents (unless such
modification is consented to by each Lender entitled to receive such fee )
or to waive an Event of Default consisting of the failure of Borrower to
pay when due principal, interest or any commitment fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of, or any installment of interest on, any Loan or
any installment of any commitment fee, to extend the term of, or increase
the amount of, any Lender's Commitment (it being understood that a waiver
of an Event of Default shall not constitute an extension or increase in the
Commitment of any Lender) or modify the Pro Rata Share of any Lender;
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(c) To amend the provisions of the definition of "Requisite Lenders",
-----------------
Sections 4 or 9 or this Section 10.01;
---------- - -------------
(d) To release all or substantially all of the collateral securing the
Obligations;
(e) To release all or substantially all of the guarantors from their
Obligations under the Guaranties; or
(f) To amend any provision of this Agreement that expressly requires
the consent or approval of all Lenders.
provided, however, that (i) no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by Issuing Lender in addition to the Requisite Lenders or all
Lenders, as the case may be, affect the rights or duties of Issuing Lender under
any Loan Document relating to Letters of Credit and (ii) the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed by the
parties thereto. Any amendment, modification, supplement, termination, waiver
or consent pursuant to this Section shall apply equally to, and shall be binding
upon, all Lenders and Administrative Agent.
10.02. Transmission and Effectiveness of Notices and Signatures.
--------------------------------------------------------
(a) Modes of Delivery. Except as otherwise provided in any Loan
-----------------
Document, notices, requests, demands, directions, agreements and documents
delivered in connection with the Loan Documents (collectively,
"communications") shall be transmitted by Requisite Notice to the number
---------------
and address set forth on Schedule 10.02, may be delivered by the following
--------------
modes of delivery, and shall be effective as follows:
Mode of Delivery Effective on earlier of actual
receipt and
--------------------------------------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible
form complete
Mail Fourth Business Day after
deposit U.S. mail first class
postage pre-paid
Personal delivery When received
Electronic mail/digital transmission When received
Telephone When conversation completed
provided, however, that communications delivered to Administrative Agent
-------- -------
pursuant to Section 2 shall not be effective until actually received by
---------
Administrative Agent.
(b) Reliance by Administrative Agent and Lenders. Administrative
--------------------------------------------
Agent and Lenders shall be entitled to rely and act on any communications
purportedly given by or on
-65-
behalf of any Borrower Party even if such communications (i) were not made
in a manner specified herein, (ii) were incomplete, (iii) were not preceded
or followed by any other notice specified herein, or (iv) the terms
thereof, as understood by the recipient, varied from any subsequent related
communications provided for herein. Borrower shall indemnify Administrative
Agent and Lenders from any loss, cost, expense or liability as a result of
relying on any communications permitted herein, except for any loss, cost,
expense, or liability caused by Administrative Agent's or a Lender's own
gross negligence or willful misconduct.
(c) Effectiveness of Electronic and Facsimile Signatures. Signatures
----------------------------------------------------
on communications may be transmitted by facsimile, electronic mail or other
digital transmission only with the consent of Administrative Agent in its
sole discretion in each instance. The effectiveness of any such signatures
accepted by Administrative Agent shall, subject to applicable Law, have the
same force and effect as manual signatures and shall be binding on all
Borrower Parties and Administrative Agent and Lenders. Administrative Agent
may also require that any such signature be confirmed by a manually-signed
hardcopy thereof.
10.03. Attorney Costs, Expenses and Taxes. Borrower agrees (a) to pay or
----------------------------------
reimburse Administrative Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of the
Loan Documents, and the development, preparation, negotiation and execution of
any amendment, waiver, consent, supplement or modification to, any Loan
Documents, and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, all Attorney Costs, (b) to pay or
reimburse Administrative Agent and each Lender for all reasonable costs and
expenses incurred in connection with any refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and enforcement or
attempted enforcement, or preservation of any rights under any Loan Documents,
and any other documents prepared in connection herewith or therewith, or in
connection with any refinancing, or restructuring of any such documents in the
nature of a "workout" or of any insolvency or bankruptcy proceeding, including,
without limitation, Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by and
deemed reasonably necessary by Administrative Agent and the cost of independent
public accountants and other outside experts retained by Administrative Agent or
any Lender. Such costs and expenses shall also include reasonably
administrative costs of Administrative Agent reasonably attributable to the
administration of the Loan Documents. Any amount payable by Borrower under this
Section shall bear interest from the second Business Day following the date of
demand for payment at the Default Rate, unless waived by Administrative Agent.
The agreements in this Section shall survive repayment of all Obligations.
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10.04. Binding Effect; Assignment.
--------------------------
(a) This Agreement and the other Loan Documents to which Borrower
is a party will be binding upon and inure to the benefit of Borrower,
Administrative Agent, Lenders and their respective successors and assigns,
except that, Borrower may not assign its rights hereunder or thereunder or
any interest herein or therein without the prior written consent of all
Lenders and any such attempted assignment shall be void. Any Lender may at
any time pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to a Federal Reserve Lender, but no such pledge
shall release that Lender from its obligations hereunder or grant to such
Federal Reserve Lender the rights of a Lender hereunder absent foreclosure
of such pledge.
(b) From time to time following the Closing Date, each Lender may
assign to one or more Eligible Assignees all or any portion of its Pro Rata
Share of its Commitment and/or Extensions of Credit; provided that (i) such
--------
assignment, if not to a Lender or an Affiliate of the assigning Lender,
shall be consented to by Borrower at all times other than during the
existence of a Default or Event of Default and Administrative Agent and
Issuing Lender (which approval of Borrower shall not be unreasonably
withheld or delayed), (ii) a copy of a duly signed and completed Notice of
Assignment and Acceptance shall be delivered to Administrative Agent, (iii)
except in the case of an assignment to an Affiliate of the assigning
Lender, to another Lender or of the entire remaining Commitment of the
assigning Lender, the assignment shall not assign a Pro Rata Share
equivalent to less than the Minimum Amount therefor, and (iv) the effective
date of any such assignment shall be as specified in the Notice of
Assignment and Acceptance, but not earlier than the date which is five
Business Days after the date Administrative Agent has received the Notice
of Assignment and Acceptance. Upon acceptance by Administrative Agent of
such Notice Assignment and Acceptance and consent thereto by Administrative
Agent and Issuing Lender and payment of the requisite fee described below,
the Eligible Assignee named therein shall be a Lender for all purposes of
this Agreement, with the Pro Rata Share therein set forth and, to the
extent of such Pro Rata Share, the assigning Lender shall be released from
its further obligations under this Agreement. Borrower agrees that it
shall execute and deliver upon request (against delivery by the assigning
Lender to Borrower of any Note) to such assignee Lender, one or more Notes
evidencing that assignee Lender's Pro Rata Share, and to the assigning
Lender if requested, one or more Notes evidencing the remaining balance Pro
Rata Share retained by the assigning Lender. Administrative Agent's
consent to and acceptance of any assignment shall not be deemed to
constitute any representation or warranty by any Administrative Agent-
Related Person as to any matter.
(c) After receipt of a completed Notice of Assignment and
Acceptance, and receipt of an assignment fee of $3,500 from such Eligible
Assignee, Administrative Agent shall, promptly following the effective date
thereof, provide to Borrower and Lenders a revised Schedule 10.02 giving
--------------
effect thereto.
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(d) Each Lender may from time to time grant participations to one or
more banks or other financial institutions (including another Lender) all
or any portion of its Pro Rata Share of its Commitment and Extensions of
Credit; provided, however, that (i) such Lender's obligations under this
-------- -------
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose except, if the
participation agreement so provides, for the purposes of Section 3 (but
---------
only to the extent that the cost of such benefits to Borrower does not
exceed the cost which Borrower would have incurred in respect of such
Lender absent the participation) and subject to Sections 10.05 and 10.06,
------------------------
(iv) Borrower, Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (v) the participation shall
not restrict an increase in the Commitment or in granting Lender's Pro Rata
Share, so long as the amount of the participation interest is not affected
thereby, and (vi) the consent of the holder of such participation interest
shall not be required for amendments or waivers of provisions of the Loan
Documents; provided, however, that the assigning Lender may, in any
-------- -------
agreement with a participant, give such participant the right to consent to
any matter which (A) extends the Maturity Date as to such participant or
any other date upon which any payment of money is due to such participant,
(B) reduces the rate of interest owing to such participant, any fee or any
other monetary amount owing to such participant, or (C) reduces the amount
of any installment of principal owing to such participant.
10.05. Set-off. In addition to any rights and remedies of Administrative
-------
Agent and Lenders or any assignee or participant of Lenders or any Affiliates
thereof (each, a "Proceeding Party") provided by law, upon the occurrence and
----------------
during the continuance of any Event of Default, each Proceeding Party is
authorized at any time and from time to time, without prior notice to Borrower,
any such notice being waived by Borrower to the fullest extent permitted by law,
to proceed directly, by right of set-off, banker's lien, or otherwise, against
any assets of the Borrower Parties which may be in the hands of such Proceeding
Party (including all general or special, time or demand, provisional or other
deposits and other indebtedness owing by such Proceeding Party to or for the
credit or the account of Borrower but excluding accounts that are trust, payroll
tax, or fiduciary accounts containing only funds of Persons other than Borrower
and its Subsidiaries and which are identified as being a trust account, payroll
tax account, or fiduciary account) and apply such assets against the
Obligations, irrespective of whether such Proceeding Party shall have made any
demand therefor and although such Obligations may be unmatured. Each Lender
agrees promptly to notify Borrower and Administrative Agent after any such set-
off and application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application.
10.06. Sharing of Payments. Each Lender severally agrees that if it,
-------------------
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) Lender
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exercising the right of setoff, banker's lien or counterclaim or otherwise
receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Lender a participation in the
Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of Lenders share
any payment obtained in respect of the Obligations ratably in accordance with
each Lender's share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
--------
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrower or any Person claiming through or succeeding
to the rights of Borrower, the purchase of a participation shall be rescinded
and the purchase price thereof shall be restored to the extent of the recovery,
but without interest. Each Lender that purchases a participation in the
Obligations pursuant to this Section shall from and after the purchase have the
right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Borrower expressly consents to
the foregoing arrangements and agrees that any Lender holding a participation in
an Obligation so purchased may exercise any and all rights of setoff, banker's
lien or counterclaim with respect to the participation as fully as if Lender
were the original owner of the Obligation purchased.
10.07. No Waiver; Cumulative Remedies.
------------------------------
(a) No failure by any Lender or Administrative Agent to exercise,
and no delay by any Lender or Administrative Agent in exercising, any
right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege.
(b) The rights, remedies, powers and privileges herein or therein
provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by Law. Any decision by Administrative Agent or any
Lender not to require payment of any interest (including Default Interest),
fee, cost or other amount payable under any Loan Document or to calculate
any amount payable by a particular method on any occasion shall in no way
limit or be deemed a waiver of Administrative Agent's or such Lender's
right to require full payment thereof, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other
or subsequent occasion.
(c) The terms and conditions of Section 9 are inserted for the sole
---------
benefit of Administrative Agent and Lenders; the same may be waived in
whole or in part, with or without terms or conditions, in respect of any
Extension of Credit without prejudicing
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Administrative Agent's or Lenders' rights to assert them in whole or in
part in respect of any other Loan.
10.08. Usury. Notwithstanding anything to the contrary contained in any
-----
Loan Document, the interest and fees paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the "Maximum Rate"). If Administrative Agent or any Lender
------------
shall receive interest or a fee in an amount that exceeds the Maximum Rate, the
excessive interest or fee shall be applied to the principal of the Outstanding
Obligations or, if it exceeds the unpaid principal, refunded to Borrower. In
determining whether the interest or a fee contracted for, charged, or received
by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that is
not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.09. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10. Integration. This Agreement, together with the other Loan
-----------
Documents and any letter agreements referred to herein, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter hereof.
In the event of any conflict between the provisions of this Agreement and those
of any other Loan Document, the provisions of this Agreement shall control and
govern; provided that the inclusion of supplemental rights or remedies in favor
--------
of Administrative Agent or Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.11. Nature of Lenders' Obligations. The obligations of Lenders
------------------------------
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by Administrative
Agent or Lenders or any of them pursuant hereto or thereto may, or may be deemed
to, make Lenders a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Affiliate of Borrower. Each
Lender's obligation to make any Loan pursuant hereto is several and not joint or
joint and several, and in the case of the initial Loan only is conditioned upon
the performance by all other Lenders of their obligations to make initial Loans.
A default by any Lender will not increase the Pro Rata Share attributable to any
other Lender.
10.12. Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any Loan Document, certificate or statement
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery thereof but shall terminate the later
of (a) when the Commitments are terminated and (b) when no Obligations remain
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outstanding under any Loan Document. Such representations and warranties have
been or will be relied upon by Administrative Agent and each Lender,
notwithstanding any investigation made by Administrative Agent or any Lender or
on their behalf.
10.13. Indemnity by Borrower. Borrower agrees to indemnify, save and
---------------------
hold harmless Administrative Agent-Related Persons and each Lender and their
respective Affiliates, directors, officers, agents, attorneys and employees
(collectively the "Indemnitees") from and against: (a) any and all claims,
-----------
demands, actions or causes of action (except a claim, demand, action, or cause
of action for Lender Taxes) if the claim, demand, action or cause of action
arises out of or relates to any act or omission (or alleged act or omission) of
any Borrower Party, its Affiliates or any of their officers, directors or
stockholders relating to the Commitments, the use or contemplated use of
proceeds of any Loan, or the relationship of any Borrower Party and Lenders
under this Agreement; (b) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (a) above; and (c) any and all
liabilities, losses, costs or expenses (including Attorney Costs) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action thereto, including those liabilities
caused by an Indemnitee's own negligence (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that no Indemnitee shall be entitled to
------------------------- --------
indemnification for any loss caused by its own gross negligence or willful
misconduct or for any loss asserted against it by another Indemnitee.
10.14. Nonliability of Lenders.
-----------------------
Borrower acknowledges and agrees that:
(a) Any inspections of any property of Borrower made by or through
Administrative Agent or Lenders are for purposes of administration of the
Loan Documents only, and Borrower is not entitled to rely upon the same
(whether or not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to Administrative Agent or Lenders pursuant
to the Loan Documents, neither Administrative Agent nor Lenders shall be
deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not
constitute a warranty or representation to anyone with respect thereto by
Administrative Agent or Lenders;
(c) The relationship between Borrower and Administrative Agent and
Lenders is, and shall at all times remain, solely that of borrowers and
lenders; neither Administrative Agent nor Lenders shall under any
circumstance be construed to be partners or joint venturers of Borrower or
their Affiliates; neither Administrative Agent nor Lenders shall under any
circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or their Affiliates, or to owe any
fiduciary duty to Borrower or
-71-
their Affiliates; neither Administrative Agent nor Lenders undertake or
assume any responsibility or duty to Borrower or their Affiliates to
select, review, inspect, supervise, pass judgment upon or inform Borrower
or their Affiliates of any matter in connection with their Property or the
operations of Borrower or their Affiliates; Borrower and their Affiliates
shall rely entirely upon their own judgment with respect to such matters;
and any review, inspection, supervision, exercise of judgment or supply of
information undertaken or assumed by Administrative Agent or Lenders in
connection with such matters is solely for the protection of Administrative
Agent and Lenders and neither Borrower nor any other Person is entitled to
rely thereon; and
(d) Administrative Agent and Lenders shall not be responsible or
liable to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to Property caused by the
actions, inaction or negligence of Borrower and/or its Affiliates and
Borrower hereby indemnifies and holds Administrative Agent and Lenders
harmless from any such loss, damage, liability or claim.
10.15. No Third Parties Benefited. This Agreement is made for the
--------------------------
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, Administrative Agent and Lenders in connection with the Loans, and is
made for the sole benefit of Borrower, Administrative Agent and Lenders, and
Administrative Agent's and Lenders' successors and assigns. Except as provided
in Sections 10.04 and 10.13, no other Person shall have any rights of any nature
-------------- -----
hereunder or by reason hereof.
10.16. Severability. Any provision of the Loan Documents that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.17. Further Assurances. Borrower and its Subsidiaries shall, at their
------------------
expense and without expense to Lenders or Administrative Agent, do, execute and
deliver such further acts and documents as any Lender or Administrative Agent
from time to time reasonably requires for the assuring and confirming unto
Lenders or Administrative Agent of the rights hereby created or intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
10.18. Headings. Section headings in this Agreement and the other Loan
--------
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.19. Time of the Essence. Time is of the essence of the Loan Documents.
-------------------
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10.20. Foreign Lenders and Participants. Each Lender, and each holder of
--------------------------------
a participation interest herein, that is a "foreign corporation, partnership or
trust" within the meaning of the Code shall deliver to Administrative Agent,
within 20 days after the Closing Date (or after accepting an assignment or
receiving a participation interest herein) two duly signed completed copies of
either Form 1001 (relating to such Person and entitling it to a complete
exemption from withholding on all payments to be made to such Person by Borrower
pursuant to this Agreement) or Form 4224 (relating to all payments to be made to
such Person by Borrower pursuant to this Agreement) of the United States
Internal Revenue Service or such other evidence (including, if reasonably
necessary, Form W-9) satisfactory to Borrower and Administrative Agent that no
withholding under the federal income tax laws is required with respect to such
Person. Thereafter and from time to time, each such Person shall (a) promptly
submit to Administrative Agent such additional duly completed and signed copies
of one of such forms (or such successor forms as shall be adopted from time to
time by the relevant United States taxing authorities) as may then be available
under then current United States laws and regulations to avoid, or such evidence
as is satisfactory to Borrower and Administrative Agent of any available
exemption from, United States withholding taxes in respect of all payments to be
made to such Person by Borrower pursuant to this Agreement and (b) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-
designation of its Lending Office, if any) to avoid any requirement of
applicable Laws that Borrower make any deduction or withholding for taxes from
amounts payable to such Person. If such Persons fails to deliver the above
forms or other documentation, then Administrative Agent may withhold from any
interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction. If any Governmental Authority asserts that Administrative Agent did
not properly withhold any tax or other amount from payments made in respect of
such Person, such Person shall indemnify Administrative Agent therefor,
including all penalties and interest and costs and expenses (including Attorney
Costs) of Administrative Agent. The obligation of Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of Administrative Agent.
10.21. Removal and/or Replacement of Lenders.
-------------------------------------
(a) Under any circumstances set forth in this Agreement providing
that Borrower shall have the right to remove and/or replace a Lender as a
party to this Agreement, Borrower may, upon notice to such Lender and the
Administrative Agent, remove such Lender by (i) non ratably terminating
such Lender's Commitment and/or (ii) causing such Lender to assign its
Commitment to one or more other Lenders or Eligible Assignees acceptable to
Borrower, the Administrative Agent and the Issuing Bank. Any removed or
replaced Lender shall be entitled to (x) payment in full of all principal,
interest and fees owing to such Lender through the date of termination or
assignment (including any amounts payable pursuant to Section 3.05), (y)
------------
appropriate assurances and indemnities (which may include letters of
credit) as such Lender may reasonably require with respect to its
participation interest in any Letters of Credit then outstanding and (z) a
release of such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver a Notice of
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Assignment and Acceptance covering that Lender's Commitment. Administrative
Agent shall distribute an amended Schedule 2.01, which shall thereafter be
-------------
incorporated into this Agreement, to reflect adjustments to Lenders and
their Commitments.
(b) In order to make all Lender's interests in any outstanding
Extensions of Credit ratable in accordance with any revised Pro Rata Shares
after giving effect to the removal or replacement of a Lender, Borrower
shall pay or prepay, if necessary, on the effective date thereof, all
outstanding Extensions of Credit of all Lenders, together with any amounts
due under Section 3.05. Borrower may then request Extensions of Credit
------------
from Lenders in accordance with their revised Pro Rata Shares.
10.22. Governing Law.
-------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE GOVERNING STATE; PROVIDED THAT
ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF THE
GOVERNING STATE OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF THE
GOVERNING STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER PARTY, ADMINISTRATIVE EACH BORROWER PARTY, ADMINISTRATIVE AGENT
AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER PARTY,
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED HERETO. EACH BORROWER PARTY,
ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF THE GOVERNING STATE
10.23. Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
--------------------------------
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN ▇▇▇▇▇▇▇▇ ▇▇
-▇▇-
▇▇▇▇ ▇▇ OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.24. Entire Agreement. This Agreement and the other Loan Documents
----------------
represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties.
-75-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
▇▇▇▇▇▇'▇ SEAFOOD RESTAURANTS, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By:____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as
Issuing Lender and a Lender
By:____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
LENDERS:
THE BANK OF NOVA SCOTIA
By:___________________________________
Name:_________________________________
Title:________________________________
FLEET NATIONAL BANK
By:_________________________________
Name:_______________________________
Title:______________________________
GUARANTY FEDERAL BANK, F.S.B.
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK ONE, NA
By:______________________________________
Name:____________________________________
Title:___________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.
HOUSTON AGENCY
By:_______________________________________
Name:_____________________________________
Title:____________________________________
CHASE BANK OF TEXAS, N.A.
By:________________________________________
Name:______________________________________
Title:_____________________________________
FIRSTAR BANK N.A.
By:______________________________________
Name:____________________________________
Title:___________________________________
SOUTHWEST BANK OF TEXAS, N.A.
By:______________________________________
Name:____________________________________
Title:___________________________________
SOUTHTRUST BANK
By:________________________________________
Name:______________________________________
Title:_____________________________________
THE FUJI BANK, LIMITED
By:_______________________________________
Name:_____________________________________
Title:____________________________________