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$140,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of September 21, 2005,
Amended and Restated as of May 3, 2006,
by and among
THE RESTAURANT COMPANY,
as Borrower,
THE RESTAURANT HOLDING CORPORATION,
as Holdings
the Lenders referred to herein,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender and Issuing Lender
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Lead Arranger and Sole Book Manager
BNP PARIBAS,
as Syndication Agent
▇▇▇▇▇ FARGO FOOTHILL, INC.,
as Documentation Agent
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions...............................................................................2
SECTION 1.2. Other Definitions and Provisions.........................................................30
SECTION 1.3. Accounting Terms.........................................................................30
SECTION 1.4. UCC Terms................................................................................31
SECTION 1.5. Rounding.................................................................................31
SECTION 1.6. References to Laws.......................................................................31
SECTION 1.7. Times of Day.............................................................................31
SECTION 1.8. Letter of Credit Amounts.................................................................31
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1. Revolving Credit Loans...................................................................31
SECTION 2.2. Swingline Loans..........................................................................32
SECTION 2.3. Procedure for Advances of Revolving Credit Loans and Swingline Loans.....................33
SECTION 2.4. Repayment and Prepayment of Revolving Credit and Swingline Loans.........................34
SECTION 2.5. Permanent Reduction of the Revolving Credit Commitment...................................35
SECTION 2.6. Termination of Revolving Credit Facility.................................................35
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1. L/C Commitment...........................................................................35
SECTION 3.2. Procedure for Issuance of Letters of Credit..............................................36
SECTION 3.3. Commissions and Other Charges............................................................36
SECTION 3.4. L/C Participations.......................................................................37
SECTION 3.5. Reimbursement Obligation of the Borrower.................................................38
SECTION 3.6. Obligations Absolute.....................................................................39
SECTION 3.7. Effect of Letter of Credit Application...................................................39
ARTICLE IV
TERM LOAN FACILITY
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SECTION 4.1. Term Loan................................................................................39
SECTION 4.2. Procedure for Advance of Term Loan.......................................................39
SECTION 4.3. Repayment of Term Loan...................................................................40
SECTION 4.4. Prepayments of Term Loan.................................................................40
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1. Interest.................................................................................43
SECTION 5.2. Notice and Manner of Conversion or Continuation of Loans.................................44
SECTION 5.3. Fees.....................................................................................45
SECTION 5.4. Manner of Payment........................................................................45
SECTION 5.5. Evidence of Indebtedness.................................................................46
SECTION 5.6. Adjustments..............................................................................46
SECTION 5.7. Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the
Administrative Agent................................................................47
SECTION 5.8. Changed Circumstances....................................................................48
SECTION 5.9. Indemnity................................................................................48
SECTION 5.10. Increased Costs..........................................................................49
SECTION 5.11. Taxes....................................................................................50
SECTION 5.12. Mitigation Obligations; Replacement of Lenders...........................................52
SECTION 5.13. Security.................................................................................53
ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1. Closing..................................................................................53
SECTION 6.2A Closing Date.............................................................................53
SECTION 6.2B Conditions on Effective Date.............................................................53
SECTION 6.3 Conditions to All Extensions of Credit...................................................58
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 7.1. Representations and Warranties...........................................................59
SECTION 7.2. Survival of Representations and Warranties, etc..........................................68
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
SECTION 8.1. Financial Statements and Projections.....................................................68
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SECTION 8.2. Officer's Compliance Certificate.........................................................69
SECTION 8.3. Accountants' Certificate.................................................................69
SECTION 8.4. Other Reports............................................................................69
SECTION 8.5. Notice of Litigation and Other Matters...................................................70
SECTION 8.6. Accuracy of Information..................................................................71
ARTICLE IX
AFFIRMATIVE COVENANTS
SECTION 9.1. Preservation of Corporate Existence and Related Matters..................................71
SECTION 9.2. Maintenance of Property..................................................................71
SECTION 9.3. Insurance................................................................................71
SECTION 9.4. Accounting Methods and Financial Records.................................................71
SECTION 9.5. Payment and Performance of Obligations...................................................72
SECTION 9.6. Compliance With Laws and Approvals.......................................................72
SECTION 9.7. Environmental Laws.......................................................................72
SECTION 9.8. Compliance with ERISA....................................................................72
SECTION 9.9. Compliance With Agreements...............................................................72
SECTION 9.10. Visits and Inspections...................................................................72
SECTION 9.11. Additional Subsidiaries..................................................................72
SECTION 9.12. Use of Proceeds..........................................................................73
SECTION 9.13. Further Assurances.......................................................................74
SECTION 9.14. Designation as Senior Debt...............................................................74
SECTION 9.15. Post Closing Covenants...................................................................74
ARTICLE X
FINANCIAL COVENANTS
SECTION 10.1. Leverage Ratio...........................................................................78
SECTION 10.2. Fixed Charge Coverage Ratio..............................................................78
SECTION 10.3. Maximum Capital Expenditures.............................................................78
ARTICLE XI
NEGATIVE COVENANTS
SECTION 11.1. Limitations on Indebtedness..............................................................79
SECTION 11.2. Limitations on Liens.....................................................................81
SECTION 11.3. Limitations on Loans, Advances, Investments and Acquisitions.............................83
SECTION 11.4. Limitations on Mergers and Liquidation...................................................85
SECTION 11.5. Limitations on Asset Dispositions........................................................86
SECTION 11.6. Limitations on Dividends and Distributions...............................................87
SECTION 11.7. Limitations on Exchange and Issuance of Capital Stock....................................89
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SECTION 11.8. Transactions with Affiliates.............................................................89
SECTION 11.9. Certain Accounting Changes; Organizational Documents.....................................90
SECTION 11.10. Amendment of Material Documents..........................................................90
SECTION 11.11. Prepayments of Subordinated Indebtedness.................................................90
SECTION 11.12. Restrictive Agreements...................................................................90
SECTION 11.13. Nature of Business.......................................................................92
SECTION 11.14. Impairment of Security Interests.........................................................92
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1. Events of Default........................................................................92
SECTION 12.2. Remedies.................................................................................94
SECTION 12.3. Rights and Remedies Cumulative; Non-Waiver; etc..........................................95
SECTION 12.4. Crediting of Payments and Proceeds.......................................................96
SECTION 12.5. Administrative Agent May File Proofs of Claim............................................96
ARTICLE XIII
THE ADMINISTRATIVE AGENT
SECTION 13.1. Appointment and Authority................................................................97
SECTION 13.2. Rights as a Lender.......................................................................97
SECTION 13.3. Exculpatory Provisions...................................................................97
SECTION 13.4. Reliance by the Administrative Agent.....................................................98
SECTION 13.5. Delegation of Duties.....................................................................99
SECTION 13.6. Resignation of Administrative Agent......................................................99
SECTION 13.7. Non-Reliance on Administrative Agent and Other Lenders..................................100
SECTION 13.8. No Other Duties, etc....................................................................100
SECTION 13.9. Collateral and Guaranty Matters.........................................................100
SECTION 13.10. No Fiduciary Duty.......................................................................101
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Notices.................................................................................101
SECTION 14.2. Amendments, Waivers and Consents........................................................103
SECTION 14.3. Expenses; Indemnity.....................................................................104
SECTION 14.4. Right of Set-off........................................................................106
SECTION 14.5. Governing Law...........................................................................107
SECTION 14.6. Waiver of Jury Trial....................................................................107
SECTION 14.7. Reversal of Payments....................................................................108
SECTION 14.8. Injunctive Relief; Punitive Damages.....................................................108
SECTION 14.9. Accounting Matters......................................................................108
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SECTION 14.10. Successors and Assigns; Participations..................................................109
SECTION 14.11. Confidentiality.........................................................................111
SECTION 14.12. Performance of Duties...................................................................112
SECTION 14.13. All Powers Coupled with Interest........................................................112
SECTION 14.14. Survival of Indemnities.................................................................112
SECTION 14.15. Titles and Captions.....................................................................112
SECTION 14.16. Severability of Provisions..............................................................112
SECTION 14.17. Counterparts............................................................................113
SECTION 14.18. Integration.............................................................................113
SECTION 14.19. Term of Agreement.......................................................................113
SECTION 14.20. Advice of Counsel, No Strict Construction...............................................113
SECTION 14.21. USA Patriot Act.........................................................................113
SECTION 14.22. Inconsistencies with Other Documents; Independent Effect of Covenants...................113
SECTION 14.23. Amendment and Restatement; No Novation..................................................113
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit A-3 - Form of Term Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Assumption
Exhibit H - Form of Guaranty Agreement
Exhibit I - Form of Collateral Agreement
Exhibit J - Form of Joinder Agreement
Exhibit K - Form of Mortgage
SCHEDULES
Schedule 1.1 - Lenders and Commitments
Schedule 1.1(a) - Subsidiary Guarantors
Schedule 1.1(b) - Adjustments
Schedule 7.1(a) - Jurisdictions of Organization and Qualification
Schedule 7.1(b) - Subsidiaries and Capitalization
Schedule 7.1(h) - Environmental Matters
Schedule 7.1(i) - ERISA Plans
Schedule 7.1(l) - Material Contracts
Schedule 7.1(r) - Casualty Events
Schedule 7.1(t) - Indebtedness and Guaranty Obligations
Schedule 7.1(z) - Acquisition Documents
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Schedule 9.15 - Mortgaged Property
Schedule 11.2 - Existing Liens
Schedule 11.3 - Existing Loans, Advances and Investments
Schedule 11.8 - Transactions with Affiliates
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 21, 2005,
amended and restated as of May 3, 2006, by and among THE RESTAURANT COMPANY, a
Delaware corporation (the "BORROWER"), THE RESTAURANT HOLDING CORPORATION, a
Delaware corporation ("HOLDINGS"), the lenders who are or may become a party to
this Agreement (collectively, the "LENDERS"), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as Administrative Agent for the
Lenders, BNP PARIBAS, as Syndication Agent, and ▇▇▇▇▇ FARGO FOOTHILL, INC., as
Documentation Agent.
STATEMENT OF PURPOSE
WHEREAS, on September 21, 2005, the Borrower, Holdings, the lenders
party thereto (the "ORIGINAL LENDERS") and the Administrative Agent entered into
a credit agreement (the "ORIGINAL CREDIT AGREEMENT") pursuant to which the
Original Lenders committed to extend to Borrower a $25,000,000 revolving credit
facility;
WHEREAS, the Borrower has entered into a stock purchase agreement
dated as of May 3, 2006 (the "PURCHASE AGREEMENT") to acquire (the "WRG
ACQUISITION") all of the equity interests of Wilshire Restaurant Group, Inc., a
Delaware corporation ("TARGET"), and the parent company of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Pie
Shops, Inc., a California corporation;
WHEREAS, immediately after consummation of the WRG Acquisition, Target
and its subsidiaries will become direct and indirect wholly-owned Subsidiaries
of the Borrower;
WHEREAS, the parties hereto desire to amend and restate the Original
Credit Agreement in its entirety on the Effective Date to provide for the Term
Loans hereunder, to permit the consummation of the WRG Acquisition and the other
transactions contemplated thereby and to increase the Revolving Credit
Commitments, in each case on the terms and conditions of this Agreement;
WHEREAS, the parties hereto intend that (a) except as expressly stated
herein, all Obligations under the Original Credit Agreement of the parties shall
continue to exist under and be evidenced by this Agreement and the Loan
Documents and (b) except as expressly stated herein or amended hereby, the
Original Credit Agreement and the other Loan Documents are ratified and
confirmed as remaining unmodified and in full force and effect with respect to
all Obligations; and
WHEREAS, (a) this Agreement shall be deemed to amend, restate and
supersede the Original Credit Agreement, except that (1) the grants of security
interests, mortgages and Liens under and pursuant to the Loan Documents shall
continue unaltered, and each other Loan Document shall continue in full force
and effect in accordance with its terms, and the parties hereto hereby ratify
and confirm the terms thereof as being in full force and effect and unaltered by
this Agreement and (2) all schedules, appendices and exhibits to the Original
Credit Agreement shall be incorporated by reference herein, mutatis mutandis,
except for, and to the extent that any such schedules, appendices and exhibits
are expressly amended and restated in connection herewith; (b) all Obligations
(including all indemnities) under the Original Credit Agreement and the other
Loan Documents shall continue to be outstanding except as expressly modified
by this Agreement and shall be governed in all respects by this Agreement and
the other Loan Documents, it being agreed and understood that this Agreement
does not constitute a novation, satisfaction, payment or reborrowing of any
Obligation under the Original Credit Agreement or any other Loan Document except
as expressly modified by this Agreement, nor does it operate as a waiver of any
right, power or remedy of any Lender under any Loan Document (other than the
Original Credit Agreement); and (c) all references to the Original Credit
Agreement in any Loan Document or other document or instrument delivered in
connection therewith shall be deemed to refer to this Agreement and the
provisions hereof; and
The Borrower has requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrower on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree that the Original Credit Agreement is amended and restated as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"ACQUISITION" means the acquisition, in accordance with the
Acquisition Agreement, of the outstanding common stock of Holdings by TRC
Holding Corp. and the redemption of the outstanding preferred stock of Holdings.
"ACQUISITION AGREEMENT" means that certain Stock Purchase Agreement,
dated as of September 2, 2005, by and among, Holdings, the common stockholders
and optionholders of Holdings, the preferred stockholders of Holdings and TRC
Holding Corp.
"ACQUISITION DOCUMENTS" shall mean the collective reference to the
Acquisition Agreement and the other documents listed on Schedule 7.1(z).
"ACQUISITION TRANSACTION COSTS" means the fees and expenses incurred
by Holdings and its Subsidiaries in connection with the Transactions and the WRG
Acquisition.
"ADMINISTRATIVE AGENT" means Wachovia, in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 13.6.
"ADMINISTRATIVE AGENT'S OFFICE" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
14.1(c).
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, any other Person (other
than a Subsidiary of the Borrower) which directly or indirectly through one or
more intermediaries, controls,
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or is controlled by, or is under common control with, such first Person or any
of its Subsidiaries. As used in this definition, the term "control" means (a)
the power to vote ten percent (10%) or more of the securities or other equity
interests of a Person having ordinary voting power (excluding any securities or
equity interests having such power only upon the occurrence of a contingency
which has not yet occurred), or (b) the possession, directly or indirectly, of
any other power to direct or cause the direction of the management and policies
of a Person, whether through ownership of voting securities, by contract or
otherwise.
"AGGREGATE COMMITMENT" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or otherwise modified at
any time or from time to time pursuant to the terms hereof. On the Effective
Date, the Aggregate Commitment shall be one hundred forty million dollars
($140,000,000).
"AGREEMENT" means this Credit Agreement, dated as of September 21,
2005 and as amended and restated as of May 3, 2006.
"AMENDMENT TRANSACTIONS" means the execution, delivery and performance
by each of the parties thereto of this Agreement, any other Loan Document as the
Administrative Agent may reasonably specify and any related documents and the
borrowings hereunder.
"APPLICABLE LAW" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"APPLICABLE MARGIN" means (i) with respect to the Term Loans, (x)
2.75% for Libor Rate Loans when the Consolidated Leverage Ratio is greater than
4.25 and 2.50% otherwise and (y) 1.75% for Base Rate Loans when the Consolidated
Leverage Ratio is greater than 4.25 and 1.50% otherwise and (ii) with respect to
Revolving Credit Loans, the corresponding percentages per annum as set forth
below based on the Consolidated Leverage Ratio:
--------------- ----------------------------------- --------------- --------------- ---------------
LIBOR BASE
PRICING LEVEL CONSOLIDATED LEVERAGE RATIO COMMITMENT FEE SPREAD RATE SPREAD
--------------- ----------------------------------- --------------- --------------- ---------------
I Less than or equal to 4.0 0.50% 2.25% 1.25%
--------------- ----------------------------------- --------------- --------------- ---------------
II Greater than 4.0 to 1.00, but 0.50% 2.50% 1.50%
less than or equal to 4.5 to 1.00
--------------- ----------------------------------- --------------- --------------- ---------------
III Greater than 4.5 to 1.00 0.50% 2.75% 1.75%
--------------- ----------------------------------- --------------- --------------- ---------------
The Applicable Margin shall be determined and adjusted quarterly on
the date (each a "CALCULATION DATE") ten (10) Business Days after receipt by the
Administrative Agent of the Officer's Compliance Certificate pursuant to SECTION
8.2 for the most recently ended fiscal quarter of the Borrower; PROVIDED that
(a) the Applicable Margin shall be based on Pricing Level III until the first
Calculation Date occurring after the Effective Date and, thereafter the Pricing
Level shall be determined by reference to the Consolidated Leverage Ratio as of
the last day of the most recently ended fiscal quarter of the Borrower preceding
the applicable Calculation Date, and (b) if the Borrower fails to provide the
Officer's Compliance Certificate as required by Section 8.2 for the most
recently ended fiscal quarter of the Borrower preceding the applicable
Calculation Date, the Applicable Margin from such Calculation Date shall be
based on Pricing Level III until such time as an appropriate Officer's
Compliance Certificate is provided, at which time
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the Pricing Level shall be determined by reference to the Consolidated Leverage
Ratio as of the last day of the most recently ended fiscal quarter of the
Borrower preceding such Calculation Date. The Applicable Margin shall be
effective from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Margin shall be applicable to all Extensions of
Credit then existing or subsequently made or issued.
"APPROVED FUND" means any Person (other than a natural Person),
including, without limitation, any special purpose entity, that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business;
PROVIDED, that such Approved Fund must be administered, managed or underwritten
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
"ASSET DISPOSITION" means the disposition of any or all of the assets
(including, without limitation, the Capital Stock of a Subsidiary or any
ownership interest in a joint venture) of any Credit Party or any Subsidiary
thereof whether by sale, lease, transfer or otherwise, in a single transaction,
or in a series of related transactions in any Fiscal Year for gross proceeds in
the aggregate in excess of $2,000,000. The term "Asset Disposition" shall not
include any Equity Issuance.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 14.10), and accepted by the Administrative Agent,
in substantially the form of Exhibit G or any other form approved by the
Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease, the capitalized amount or principal
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a Capital Lease.
"BASE RATE" means, at any time, the higher of (a) the Prime Rate and
(b) the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall
take effect simultaneously with the corresponding change or changes in the Prime
Rate or the Federal Funds Rate.
"BASE RATE LOAN" means any Loan bearing interest at a rate based upon
the Base Rate as provided in SECTION 5.1(a).
"BORROWER" has the meaning assigned thereto in the introductory
paragraph hereto.
"BUSINESS DAY" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
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clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"CALCULATION DATE" has the meaning assigned thereto in the definition
of Applicable Margin.
"CAPITAL ASSET" means, with respect to the Borrower and its
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the Borrower
and its Subsidiaries.
"CAPITAL EXPENDITURES" means with respect to the Borrower and its
Subsidiaries for any period, the aggregate cost of all Capital Assets acquired
by the Borrower and its Subsidiaries during such period, as determined in
accordance with GAAP.
"CAPITAL LEASE" means any lease of any property by the Borrower or any
of its Subsidiaries, as lessee, that should, in accordance with GAAP, be
classified and accounted for as a capital lease on a Consolidated balance sheet
of the Borrower and its Subsidiaries.
"CAPITAL STOCK" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person (other than Earnouts or similar consideration
payable in connection with a Permitted Acquisition).
"CASUALTY EVENT" shall mean any involuntary loss of title, any
involuntary loss of, damage to or any destruction of, or any condemnation or
other taking (including by any Governmental Authority) of, any property of
Holdings or any of its Subsidiaries. "Casualty Event" shall include but not be
limited to any taking of all or any part of any Real Property of any person or
any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any Applicable Law, or by reason of the temporary requisition of the
use or occupancy of all or any part of any Real Property of any person or any
part thereof by any Governmental Authority, civil or military, or any settlement
in lieu thereof.
"CHANGE IN CONTROL" means
(a) (i) prior to the consummation of an IPO, an event or series of
events by which any person or group of persons (within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended) other
than the Permitted Holders, shall obtain ownership or Control in one or
more series of transactions of more than fifty percent (50%) of the
aggregate voting power represented by the outstanding Capital Stock of
Holdings entitled to vote in the election of members of the board of
directors of Holdings or (ii) after the consummation of an IPO, any person
or group of persons (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended) other than the Permitted Holders, shall
obtain ownership or Control in one or more series of transactions of more
than 33% of the aggregate voting power represented by the outstanding
Capital Stock of Holdings and representing a greater percentage of such
aggregate voting
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power than that represented by the Capital Stock of Holdings owned or
Controlled directly or indirectly by the Permitted Holders;
(b) Holdings shall cease to own 100% of the Capital Stock of the
Borrower; or
(c) there shall have occurred under any indenture or other instrument
evidencing any Indebtedness in excess of $1,000,000 any "change in control"
or similar provision (as set forth in the indenture, agreement or other
evidence of such Indebtedness) obligating Holdings or the Borrower to
repurchase, redeem or repay all or any part of the Indebtedness or Capital
Stock provided for therein.
"CHANGE IN LAW" means the occurrence, after the Effective Date, of any
of the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any guideline or directive (whether
or not having the force of law) by any Governmental Authority.
"CLASS" means, with respect to any Lender, such Lender's status as a
Revolving Lender or a Term Loan Lender.
"CLOSING DATE" means September 25, 2005.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Collateral" means any and all of the property and assets constituting
the collateral securing the Obligations pledged or granted pursuant to the
Security Documents.
"COLLATERAL AGREEMENT" means the amended and restated collateral
agreement of even date executed by the Credit Parties in favor of the
Administrative Agent for the benefit of itself and the Secured Parties,
substantially in the form of Exhibit I.
"COMMITMENT" means, as to any Lender, such Lender's Revolving Credit
Commitment and Term Loan Commitment, as applicable.
"COMMITMENT PERCENTAGE" means, as to any Lender, such Lender's
Revolving Credit Commitment Percentage or Term Loan Commitment Percentage, as
applicable.
"CONFIDENTIAL INFORMATION MEMORANDUM": the Confidential Information
Memorandum dated April 2006 and furnished to prospective lenders in connection
with the syndication of the Credit Facility.
"CONSOLIDATED" means, when used with reference to financial statements
or financial statement items of any Person, such statements or items on a
consolidated basis in accordance with applicable principles of consolidation
under GAAP.
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"CONSOLIDATED EBITDA" means, for any period, the sum of the following
determined on a Consolidated basis, without duplication, for the Borrower and
its Subsidiaries in accordance with GAAP: (a) Consolidated Net Income for such
period PLUS (b) the sum of the following to the extent deducted in determining
Consolidated Net Income: (i) income and franchise taxes, (ii) Consolidated
Interest Expense, and (iii) amortization, depreciation and other non-cash
charges (except to the extent that such non-cash charges are reserved for cash
charges to be taken in the future), (iv) extraordinary, non-recurring or unusual
losses or charges, (v) Transaction Costs, (vi) Acquisition Transaction Costs in
an aggregate amount not to exceed $10,000,000, (vii) to the extent permitted to
be made under this Agreement, expenses incurred pursuant to the Management
Agreement in connection with the performance of management, consulting,
monitoring, financial advisory or other services in respect of the Credit
Parties, (viii) the GAAP rental expense associated with operating leases, (ix)
store closure expense for such period as set forth in the Borrower's financial
statements in accordance with GAAP and (x) Pre-Opening Costs incurred during
such period in an aggregate amount not to exceed $3.5 million in any period,
LESS (c) interest income, Consolidated Rental Expense (PROVIDED that, with
respect to closed stores, only the Borrower's reasonable projection of cash
rental expense for closed stores during the immediately succeeding four fiscal
quarters shall be deducted), and any extraordinary, non-recurring or unusual
gains (other than accruals of revenue in the ordinary course of business and
reversals in such periods of accruals of, or reserves for, a cash charge in a
prior period). Notwithstanding the foregoing, Consolidated EBITDA for the
historical fiscal periods set forth in SCHEDULE 1.1(B) shall be as set forth in
such schedule. For purposes of this Agreement, Consolidated EBITDA shall be
adjusted on a pro forma basis, in a manner reasonably acceptable to the
Administrative Agent, to include, as of the first day of any applicable period,
the Acquisition, the WRG Acquisition, the Amendment Transactions and any
Permitted Acquisition closed during such period, including, without limitation,
adjustments reflecting any non-recurring costs and any extraordinary expenses of
the Acquisition, the WRG Acquisition and any Permitted Acquisition closed during
such period and any Pro Forma Cost Savings attributable to the Acquisition, the
WRG Acquisition or such Permitted Acquisition, each calculated on a basis
consistent with GAAP or otherwise in accordance with this Agreement or as
approved by the Administrative Agent.
"CONSOLIDATED EBITDAR" means, for any period, the sum of (i) the
Consolidated EBITDA of the Borrower and its Subsidiaries for such period PLUS
(ii) Consolidated Rental Expense (PROVIDED that, with respect to closed stores,
only the Borrower's reasonable projection of cash rental expense for closed
stores during the immediately succeeding four fiscal quarters shall be included
in Consolidated Rental Expense).
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of the
following determined on a Consolidated basis for such period, without
duplication, for the Borrower and its Subsidiaries in accordance with GAAP: (a)
Consolidated Interest Expense LESS consolidated interest income, (b) scheduled
principal payments with respect to Indebtedness, (c) cash taxes, (d) cash
dividends and distributions and (e) Consolidated Rental Expense (PROVIDED that,
with respect to closed stores, only the Borrower's reasonable projection of cash
rental expense for closed stores during the immediately succeeding four fiscal
quarters shall be included in Consolidated Rental Expense). For purposes of this
Agreement, Consolidated Fixed Charges shall be adjusted on a pro forma basis, in
a manner reasonably acceptable to the Administrative Agent, to give effect to
any Indebtedness incurred, assumed or permanently repaid or extinguished during
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the applicable period in connection with the WRG Acquisition, the Amendment
Transactions and any Permitted Acquisition as if such incurrence, assumption,
repayment or extinguishing had been effected on the first day of such period.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to the Borrower
and its Subsidiaries for any period, the gross interest expense (including,
without limitation, interest expense attributable to Capital Leases, Synthetic
Leases and all net payment obligations pursuant to Hedging Agreements) of the
Borrower and its Subsidiaries, all determined for such period on a Consolidated
basis, without duplication, in accordance with GAAP. For purposes of this
Agreement, Consolidated Interest Expense shall be adjusted on a pro forma basis,
in a manner reasonably acceptable to the Administrative Agent, to give effect to
any Indebtedness incurred, assumed or permanently repaid or extinguished during
the applicable period in connection with the Acquisition, the WRG Acquisition,
the Amendment Transactions and any Permitted Acquisition or any disposition as
if such incurrence, assumption, repayment or extinguishing had been effected on
the first day of such period.
"CONSOLIDATED LEVERAGE RATIO" means, as of any date of determination,
the ratio of (a) Consolidated Total Indebtedness on such date, less the
aggregate amount of unrestricted cash and cash equivalents of the type referred
to in SECTION 11.3(B) of the Borrower and its Subsidiaries on such date to (b)
Consolidated EBITDA for the period of four (4) consecutive fiscal quarters
ending on or most recently prior to such date.
"CONSOLIDATED NET INCOME" means, with respect to the Borrower and its
Subsidiaries, for any period of determination, the net income (or loss) of the
Borrower and its Subsidiaries for such period, determined on a Consolidated
basis in accordance with GAAP; PROVIDED that there shall be excluded from
Consolidated Net Income (a) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Closing Date, (b) the
net income (or loss) of any Person that is not a Subsidiary, in which the
Borrower or any of its Subsidiaries has a joint interest with a third party,
except to the extent such net income is actually paid in cash to the Borrower or
any of its Subsidiaries by dividend or other distribution during such period and
(c) the net income (if positive) of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
to the Borrower or any of its Subsidiaries of such net income is not at the time
permitted by operation of the terms of its charter or any agreement or
instrument applicable to such Subsidiary or Applicable Law.
"CONSOLIDATED RENTAL EXPENSE" means, for any period, all cash rental
expense of the Borrower and its Subsidiaries during such period incurred under
any rental agreements or leases of real property, including space leases and
ground leases, in each case with respect to operating leases.
"CONSOLIDATED TOTAL INDEBTEDNESS" means, as of any date of
determination with respect to the Borrower and its Subsidiaries on a
Consolidated basis without duplication, the sum of all Indebtedness (other than
(i) Guaranty Obligations with respect to the Indebtedness of franchisees to the
extent incurred in accordance with this Agreement and (ii) Indebtedness of the
type referred to in clauses (f) (so long as undrawn) and (g) of the definition
of "Indebtedness") of the Borrower and its Subsidiaries.
-8-
"CONTESTED COLLATERAL LIEN CONDITIONS" shall mean the following
conditions:
(a) the Borrower shall cause any proceeding instituted
contesting such Lien to stay the sale or forfeiture of any portion of
the Collateral on account of such Lien; and
(b) at the option and at the request of the Administrative
Agent, to the extent such Lien is in an amount in excess of $100,000,
the appropriate Credit Party shall maintain cash reserves in an amount
sufficient to pay and discharge such Lien and the Administrative
Agent's reasonable estimate of all interest and penalties related
thereto; and
(c) such Lien shall in all respects be subject and subordinate
in priority to the Lien and security interest created and evidenced by
the Security Documents, except if and to the extent that the
Applicable Law creating, permitting or authorizing such Lien provides
that such Lien is or must be superior to the Lien and security
interest created and evidenced by the Security Documents.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CREDIT FACILITY" means, collectively, the Revolving Credit Facility,
the Term Loan Facility, the Swingline Facility and the L/C Facility.
"CREDIT PARTIES" means, collectively, the Borrower and the Guarantors.
"DEBT ISSUANCE" shall mean the issuance of any Indebtedness by
Holdings or any of its Subsidiaries, excluding any Equity Issuance.
"DEBT RATING" means, as of any date of determination, the ratings as
determined by either S&P or ▇▇▇▇▇'▇ of the Borrower's non-credit-enhanced,
senior secured and unsecured long-term debt.
"DEFAULT" means any of the events specified in Section 12.1 which with
the passage of time, the giving of notice or any other condition would
constitute an Event of Default.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Revolving Credit Loans, the Term Loans, participations in L/C
Obligations or participations in Swingline Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless such amount is the subject of a good
faith dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"DISPUTE" means any dispute, claim or controversy arising out of,
connected with or relating to this Agreement or any other Loan Document, between
or among parties hereto and to the other Loan Documents.
-9-
"DOLLARS" OR "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of
any political subdivision of the United States.
"EARNOUT" means (a) any initially contingent payment obligation
related to a Permitted Acquisition, including, without limitation, in the form
of earnout payments, purchase price adjustments, deferred purchase price
payments and bonuses and other forms of compensation to directors, officers,
employees or consultants, in each case so long as (i) such payment obligations
are contingent at the time such obligation is incurred or entered into, and
subject to adjustment based on the performance of the Person and/or assets so
acquired, (ii) such payment obligations are not subject, at the time such
obligation is entered into, to any minimum payment, in whole or in part by
Holdings or any of its Subsidiaries, and (iii) prior to becoming fixed or
matured, such payment obligations are not evidenced by a promissory note or
secured by a pledge of assets by Holdings or any of its Subsidiaries, or (b) the
portion of a payment obligation described in clause (a) which has become fixed
and matured.
"EFFECTIVE DATE" means the date of this Agreement or such later
Business Day upon which each condition described in SECTION 6.1(b) shall be
satisfied or waived in all respects in a manner reasonably acceptable to the
Administrative Agent and the Required Lenders.
"ELIGIBLE ASSIGNEE" means (a) a Lender, (b) an Affiliate of a Lender,
(c) an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent (such approval not to be unreasonably
withheld or delayed), (ii) in the case of any assignment of a Revolving Credit
Commitment, the Swingline Lender and the Issuing Lender, and (iii) unless a
Default or Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed); PROVIDED that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which any Credit Party or Subsidiary of any
Credit Party maintains, sponsors, participates in or has any liability with
respect to the employees or former employees of any Credit Party or any
Subsidiary of any Credit Party.
"ENVIRONMENTAL CLAIMS" means any and all actions, suits, written
demands, demand letters, claims, liens, allegations, notices of noncompliance or
violation, investigations (other than internal reports prepared by any Person in
the ordinary course of business and not in response to any third party action or
request of any kind) or proceedings relating in any way to any actual or alleged
violation of or liability under any Environmental Law or relating to any
Environmental Permit, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
-10-
"ENVIRONMENTAL LAWS" means any and all federal, foreign, state,
provincial and local laws, statutes, ordinances, codes, rules, standards and
regulations and the common law, and permits, licenses, approvals and orders of
courts or Governmental Authorities, relating to the protection of human health
or the environment, including, but not limited to, requirements pertaining to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or
remediation of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, license, approval,
registration, notification, consent or other authorization required under any
Environmental Law.
"EQUITY FINANCING" shall mean (i) the cash equity investment in TRC
Holding Corp. by the Equity Investors, a portion of which is further invested in
cash equity in Holdings on or prior to the Closing Date, in an amount not less
than $50,000,000, and (ii) rollover equity in an amount of up to $15,000,000;
PROVIDED that the total Equity Financing shall not be less than $65,000,000.
"EQUITY INVESTORS" shall mean the Permitted Holders and one or more
other investors reasonably satisfactory to the Administrative Agent.
"EQUITY ISSUANCE" means any issuance by Holdings or any of its
Subsidiaries to any Person which is not a Credit Party of (a) shares of its
Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants or (c) any shares of its Capital Stock pursuant to the
conversion of any debt securities to equity. The term "Equity Issuance" shall
not include (i) any Asset Disposition or (ii) any Debt Issuance.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA AFFILIATE" means any Person who together with any Credit Party
is treated as a single employer within the meaning of Section 414(b), (c), (m)
or (o) of the Code or Section 4001(b) of ERISA.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Board of
Governors of the Federal Reserve system (or any successor) for determining the
maximum reserve requirement (including, without limitation, any basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities or
any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.
"EVENT OF DEFAULT" means any of the events specified in Section 12.1;
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"EXCESS CASH FLOW" means, for any period of determination, the excess,
if any, of the following determined on a Consolidated basis, without
duplication, for the Borrower and its Subsidiaries in accordance with GAAP:
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(a) the sum, without duplication, of
(i) Consolidated Net Income,
(ii) GAAP rental expense,
(iii) the amount of all non-cash charges (including depreciation
and amortization) deducted in arriving at such Consolidated
Net Income,
(iv) the amount of any tax refunds to the extent not included in
Consolidated Net Income, (v) decreases in working capital,
and
(vi) to the extent received in cash, returns on investments
permitted pursuant to SECTION 11.3(a), (e), (f), (g), (i),
(L) OVER
(b) the sum, without duplication, of
(i) the amount of all non-cash credits, income and gains
included in arriving at Consolidated Net Income,
(ii) to the extent consisting of payments of cash during such
period, (A) Capital Expenditures, (B) investments permitted
pursuant to SECTION 11.3(a), (e), (f), (g), (i), (l), (c)
Permitted Acquisitions and (D) Restricted Payments
permitted pursuant to SECTION 11.6(c)-(j), in each case
except to the extent financed with the proceeds of other
Indebtedness of the Credit Parties,
(iii) the aggregate amount of all optional prepayments (together
with any prepayment fees accompanying such prepayments) and
regularly scheduled principal payments of the Term Loans
made during such period, except to the extent financed with
the proceeds of other Indebtedness of the Credit Parties,
(iv) the aggregate amount of all principal payments made in
respect of Indebtedness (other than the Loans) during such
period, but only to the extent that such payments or
prepayments by their terms cannot be reborrowed or redrawn
and do not occur in connection with a refinancing of all or
any portion of such Indebtedness;
(v) the aggregate amount of any permanent voluntary reduction
in the Revolving Credit Commitments to the extent than an
equal amount of the Revolving Credit Loans are
simultaneously repaid, except to the extent financed with
the proceeds of other Indebtedness of the Credit Parties,
(vi) increases in working capital,
(vii) Transaction Costs and Acquisition Transaction Costs
actually paid in cash and not deducted in arriving at
Consolidated Net Income, and
(viii) the sum of (A) Consolidated Rental Expense, (B) cash rent
associated with Capital Leases (to the extent not included
in clause (iv)) and (C) cash rent paid during such period
with respect to closed stores.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation
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of the Borrower hereunder, (a) taxes imposed on or measured by its net income
(however denominated), franchise taxes imposed on it (in lieu of net income
taxes) and branch profits taxes imposed on it, by a jurisdiction (or any
political subdivision thereof) as a result of the recipient being organized or
having its principal office or having any other present or former connection
with such jurisdiction (other than a connection resulting from any transaction
contemplated by this Agreement) or, in the case of any Lender, its applicable
lending office in such jurisdiction and (b) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under SECTION
5.12(b)), any U.S. federal withholding tax that (i) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto or designates a new Lending Office, except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, immediately prior to the
time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to SECTION 5.11(a) or (ii) is attributable to such Foreign Lender's
failure to comply with SECTION 5.11(e).
"EXTENSIONS OF CREDIT" means, as to any Lender at any time, (a) an
amount equal to the sum of (i) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (ii) such Lender's Revolving
Credit Commitment Percentage of the L/C Obligations then outstanding, (iii) such
Lender's Revolving Credit Commitment Percentage of the Swingline Loans then
outstanding and (iv) the aggregate principal amount of Term Loans made by such
Lender then outstanding, or (b) the making of any Loan or participation in any
Letter of Credit by such Lender, as the context requires.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"FEDERAL FUNDS RATE" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent and reasonably
acceptable to the Borrower. If, for any reason, such rate is not available, then
"Federal Funds Rate" shall mean a daily rate which is determined, in the opinion
of the Administrative Agent, to be the rate at which federal funds are being
offered for sale in the national federal funds market at 9:00 a.m. Rates for
weekends or holidays shall be the same as the rate for the most immediately
preceding Business Day.
"FEE LETTER" means the Fee Letter, dated April 13, 2006, between the
Borrower and the Administrative Agent.
"FISCAL YEAR" means the fiscal year of the Borrower and its
Subsidiaries ending on the last Sunday in December.
"FOREIGN LENDER" means any Lender that is not a U.S. Person within the
meaning of Section 7701(a) of the Code.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
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"GAAP" means generally accepted accounting principles, as recognized
by the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
(subject to SECTION 14.9) consistent with the prior financial practice of the
Borrower and its Subsidiaries.
"GOVERNMENTAL APPROVALS" means all authorizations, consents,
approvals, permits, licenses and exemptions of all Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"GUARANTORS" means, collectively, Holdings and each Subsidiary
Guarantor.
"GUARANTY AGREEMENT" means the amended and restated unconditional
guaranty agreement of even date executed by the Guarantors in favor of the
Administrative Agent for the ratable benefit of itself and the Lenders,
substantially in the form of EXHIBIT H.
"GUARANTY OBLIGATION" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Indebtedness of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
condition or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
PROVIDED, that the term Guaranty Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
"HAZARDOUS MATERIALS" means any substances, materials, wastes,
pollutants, contaminants, chemicals, compounds or constituents, including
without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam
insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude
oil, nuclear fuel, natural gas or synthetic gas, which are subject to
regulation, or can give rise to liability, under any Environmental Law.
"HEDGING AGREEMENT" means any agreement with respect to any Interest
Rate Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement, currency
option agreement or other agreement or arrangement designed to alter the risks
of any Person arising from fluctuations in interest rates, currency values or
commodity prices.
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"HEDGING OBLIGATIONS" means all existing or future payment and other
obligations owing by the Borrower under any Hedging Agreement (which such
Hedging Agreement is permitted hereunder).
"HEIRS" of any individual means such individual's estate, spouse,
lineal relatives (including adoptive descendants), administrator, committee or
other personal representative or other estate planning vehicle and any custodian
or trustee for the benefit of any spouse or lineal relatives (including adoptive
descendants) of such individual.
"HOLDINGS" has the meaning assigned thereto in the introductory
paragraph hereto.
"INDEBTEDNESS" means, with respect to Holdings and its Subsidiaries,
at any date and without duplication, the sum of the following calculated in
accordance with GAAP:
(a) all liabilities, obligations and indebtedness for borrowed money
including, but not limited to, obligations evidenced by bonds, debentures,
notes or other similar instruments of any such Person;
(b) all obligations to pay the deferred purchase price of property or
services of any such Person (including, without limitation, all obligations
under non-competition or similar agreements and all Earnouts that have not
been paid within 30 days of becoming fixed and matured, but excluding all
other Earnouts), except trade payables arising in the ordinary course of
business not more than one hundred twenty (120) days past due;
(c) the Attributable Indebtedness of such Person with respect to such
Person's obligations in respect of Capital Leases and Synthetic Leases (in
each case, regardless of whether accounted for as indebtedness under GAAP);
(d) all Indebtedness of any other Person secured by a Lien on any
asset 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) all Guaranty Obligations of any such Person;
(f) all obligations, contingent or otherwise, of any such Person
relative to the face amount of letters of credit, whether or not drawn,
including, without limitation, any Reimbursement Obligation, and banker's
acceptances issued for the account of any such Person; and
(g) all Net Hedging Obligations.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership in which such Person is a general partner
unless such Indebtedness is expressly made non-recourse to such Person.
"INDEMNIFIED TAXES" means all Taxes other than Excluded Taxes.
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"INSURANCE AND CONDEMNATION EVENT" means the receipt by Holdings or
any of its Subsidiaries of any cash insurance proceeds or condemnation award
payable by reason of theft, loss, physical destruction or damage, taking or
similar event with respect to any of their respective property or assets.
"INTEREST PERIOD" has the meaning assigned thereto in SECTION 5.1(b).
"INTEREST RATE CONTRACT" means any interest rate swap agreement,
interest rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement.
"IPO" means a bona fide underwritten initial public offering of voting
common Capital Stock in Holdings or a direct or indirect parent of Holdings.
"ISP98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"ISSUING LENDER" means Wachovia, in its capacity as issuer of any
Letter of Credit, or any successor thereto.
"JOINDER AGREEMENT" means each joinder agreement executed by a
Subsidiary of Holdings in favor of the Administrative Agent for the benefit of
itself and the Secured Parties, substantially in the form of Exhibit J.
"L/C COMMITMENT" means the lesser of (a) twenty-five million dollars
($25,000,000) and (b) the Revolving Credit Commitment.
"L/C FACILITY" means the letter of credit facility established
pursuant to Article III.
"L/C OBLIGATIONS" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C PARTICIPANTS" means the collective reference to all the Lenders
other than the Issuing Lender.
"LENDER" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender and the Swingline Lender
unless the context otherwise requires) set forth on the signature pages hereto
and each Person that hereafter becomes a party to this Agreement as a Lender
pursuant to Section 14.10.
"LENDING OFFICE" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Extensions of Credit.
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"LETTER OF CREDIT APPLICATION" means an application, in the form
specified by the Issuing Lender from time to time, requesting the Issuing Lender
to issue a Letter of Credit.
"LETTERS OF CREDIT" has the meaning assigned thereto in Section 3.1.
"LIBOR" means the rate of interest per annum determined on the basis
of the rate for deposits in Dollars in minimum amounts of at least $5,000,000
for a period equal to the applicable Interest Period which appears on the
Telerate Page 3750 at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period (rounded upward,
if necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does
not appear on Telerate Page 3750, then "LIBOR" shall be determined by the
Administrative Agent to be the arithmetic average of the rate per annum at which
deposits in Dollars in minimum amounts of at least $5,000,000 would be offered
by first class banks in the London interbank market to the Administrative Agent
at approximately 11:00 a.m. (London time) two (2) Business Days prior to the
first day of the applicable Interest Period for a period equal to such Interest
Period. Each calculation by the Administrative Agent of LIBOR shall be
conclusive and binding for all purposes, absent manifest error.
"LIBOR RATE" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined pursuant to the following formula:
--------------- ----------------------------------------------
LIBOR Rate = LIBOR
--------------- ----------------------------------------------
1.00 - Eurodollar Reserve Percentage
--------------- ----------------------------------------------
"LIBOR RATE LOAN" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in SECTION 5.1(a).
"LIEN" means, with respect to any asset, any mortgage, deed of trust,
leasehold mortgage, lien, pledge, charge, security interest, hypothecation or
encumbrance of any kind in respect of such asset. For the purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset.
"LOAN DOCUMENTS" means, collectively, this Agreement, each Note, the
Letter of Credit Applications, the Guaranty Agreement, the Security Documents,
and each other document, instrument, certificate and agreement executed and
delivered by the Borrower or any Subsidiary thereof in connection with this
Agreement or otherwise referred to herein or contemplated hereby (excluding any
Hedging Agreement).
"LOANS" means the collective reference to the Revolving Credit Loans,
the Term Loan and the Swingline Loans and "Loan" means any of such Loans.
"MAINTENANCE CAPITAL EXPENDITURES" means Capital Expenditures for the
maintenance, updating and remodeling of stores.
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"MANAGEMENT AGREEMENT" means the Management Agreement, dated as of
September 21, 2005, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., Holdings, the Borrower,
TRC Holding Corp., and TRC Holding LLC as in effect on the Closing Date.
"MATERIAL ADVERSE EFFECT" means (a) on the Effective Date, any
material adverse change in (i) the condition (financial or otherwise), business,
results of operations, properties, assets and liabilities (taken together) of
the Borrower and its Subsidiaries, taken as a whole, or Target and its
subsidiaries, taken as a whole, or (ii) the ability of the Borrower or Target to
consummate the transactions contemplated by the Purchase Agreement, but for the
purpose of (i) above, shall exclude any effect resulting from or related to
changes or developments involving (1) a prospective change arising out of any
proposed or adopted legislation, or any other proposal or enactment by any
governmental, regulatory or administrative authority, (2) general conditions
applicable to the economy of the United States, including changes in interest
rates or financial markets, (3) conditions or effects resulting from the
announcement of the existence or terms of the Purchase Agreement (including any
loss, diminution or disruption, whether actual or threatened, of existing or
prospective customer, distributor, supplier or employment relationships
resulting therefrom), (4) acts of war, terrorism or any escalation thereof, (5)
changes in accounting requirements or principles or (6) conditions generally
affecting the restaurant industry in the United States, but not
disproportionately affecting the Borrower, Target or any of their respective
subsidiaries and similarly situated restaurant businesses and (b) at any time
after the Effective Date, (i) any material adverse change in the business,
assets, operations, financial condition or liabilities (whether actual or
contingent) of (A) the Borrower and its Subsidiaries, taken as a whole, or (B)
Holdings and its Subsidiaries, taken as a whole or (ii) any event, condition or
state of facts that could reasonably be expected to (A) have such a material
adverse effect or (B) materially and adversely affect the ability of Holdings,
the Borrower or the Subsidiary Guarantors to perform their respective
obligations under or in connection with the Loan Documents.
"MATERIAL CONTRACT" means (a) any contract or other agreement, written
or oral, of the Borrower or any of its Subsidiaries involving aggregate
consideration payable to or by any such Person in an amount in excess of
$2,000,000 per annum or (b) any other contract or agreement, written or oral, of
the Borrower or any of its Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
"MORTGAGED PROPERTY" means each parcel of Real Property subject to a
Mortgage.
"MORTGAGES" means the collective reference to each mortgage, deed of
trust or other real property security document, encumbering all Real Property
now or hereafter owned or leased by the Borrower or any Subsidiary and with
respect to which the Borrower or any Subsidiary is required to deliver such
mortgage, deed of trust or other document pursuant to SECTION 6.2B or 9.11(C),
in each case, in form and substance reasonably satisfactory to the
Administrative Agent and executed by the Borrower or any Subsidiary in favor of
the Administrative Agent, for the ratable benefit of itself and the Lenders.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
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"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making contributions, is accruing an obligation to make contributions or has any
liability with respect thereto.
"NET CASH PROCEEDS" means, as applicable, (a) with respect to any
Asset Disposition by any Credit Party, the gross cash proceeds received by
Holdings or any of its Subsidiaries from such sale (net of purchase price
adjustments reasonably expected to be payable in connection therewith; provided
that to the extent such purchase price adjustment is determined to be not
payable or is otherwise not paid within 270 days of such Asset Disposition
(other than as a result of a dispute with respect to such purchase price
adjustment which is subject to a resolution procedure set forth in the
applicable transaction documents), such proceeds shall constitute Net Cash
Proceeds), LESS the sum of (i) all income taxes and other taxes assessed by a
Governmental Authority as a result of such sale and any other fees, costs and
expenses incurred in connection therewith, (ii) the principal amount of,
premium, if any, and interest on any Indebtedness secured by a Lien on the asset
(or a portion thereof) sold, which Indebtedness is required to be repaid in
connection with such sale and (iii) the amount of any reserves established by
Holdings or any of its Subsidiaries to fund any contingent liabilities
reasonably expected to arise (as determined in good faith by Holdings or such
applicable Subsidiary (as applicable)) within one year of such transaction that
are directly attributable to such transaction, (b) with respect to any Equity
Issuance or issuance of Indebtedness, the gross cash proceeds received by
Holdings or any of its Subsidiaries therefrom LESS all legal, underwriting,
commissions and other fees and expenses incurred in connection therewith and (c)
with respect to any payment under an insurance policy or in connection with a
condemnation proceeding, the gross cash proceeds received by Holdings or its
Subsidiaries from an insurance company or Governmental Authority, as applicable,
less the sum of (i) all fees, costs and expenses in connection therewith and
(ii) the principal amount of, premium, if any, and interest on any Indebtedness
secured by a Lien on the asset (or a portion thereof) subject to such loss or
condemnation proceeding, which Indebtedness is required to be repaid in
connection with such loss or condemnation proceeding.
"NET HEDGING OBLIGATIONS" means, as of any date, with respect to a
Hedging Agreement, the Termination Value of such Hedging Agreement on such date.
"NON-CONSENTING LENDER" has the meaning assigned thereto in SECTION
14.2.
"NOTES" means the collective reference to the Revolving Credit Notes,
the Swingline Note and the Term Notes.
"NOTICE OF ACCOUNT DESIGNATION" has the meaning assigned thereto in
SECTION 2.3(b).
"NOTICE OF BORROWING" has the meaning assigned thereto in SECTION
2.3(a).
"NOTICE OF CONVERSION/CONTINUATION" has the meaning assigned thereto
in Section 5.2.
"NOTICE OF PREPAYMENT" has the meaning assigned thereto in Section
2.4(b).
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"OBLIGATIONS" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) solely for the purposes of the Security Documents, all
Hedging Obligations with any Person that is a Lender or an Affiliate of a Lender
at the time the related Hedging Agreement is executed and (d) all other fees and
commissions (including attorneys' fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent, in each case under any Loan Document with respect to any Loan or Letter
of Credit of every kind, nature and description, direct or indirect, absolute or
contingent, due or to become due, liquidated or unliquidated, and whether or not
evidenced by any note.
"OFAC" means the U.S. Department of the Treasury's Office of Foreign
Assets Control.
"OFFICER'S COMPLIANCE CERTIFICATE" means a certificate of the chief
financial officer or the treasurer of the Borrower substantially in the form of
Exhibit F.
"OPERATING LEASE" means, as to any Person as determined in accordance
with GAAP, any lease of property (whether real, personal or mixed) by such
Person as lessee which is not a Capital Lease.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any corporation,
its certificate or articles of incorporation or organization and its by-laws or,
as the case may be, its memorandum and articles, as amended, (ii) with respect
to any limited partnership, its certificate of limited partnership and its
partnership agreement, (iii) with respect to any general partnership, its
partnership agreement, (iv) with respect to any limited liability company, its
articles of organization and its operating agreement, and (v) with respect to
any other Person, comparable instruments and documents. In the event any term or
condition of this Agreement or any other Loan Document requires any
Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such "Organizational Document" shall
only be to a document of a type customarily certified by such governmental
official.
"ORIGINAL CREDIT AGREEMENT" has the meaning assigned thereto in the
Statement of Purpose.
"ORIGINAL LENDERS" has the meaning assigned thereto in the Statement
of Purpose.
"OTHER TAXES" means all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or under any other Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
"PARTICIPANT" has the meaning assigned thereto in SECTION 14.10(D).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
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"PENSION PLAN" means any pension plan within the meaning of Section
3(2) of ERISA, other than a Multiemployer Plan, which is subject to the
provisions of Title IV of ERISA or Section 412 of the Code and (a) which is
maintained for the employees of the Borrower or any ERISA Affiliates or (b) with
respect to which the Borrower or any ERISA Affiliate has any liability.
"PERMITTED ACQUISITION" means any acquisition after the Effective
Date, other than the acquisition of restaurants for conversion (whether by
purchase, merger, amalgamation, consolidation or otherwise), by Holdings, the
Borrower or any Subsidiary Guarantor in the form of acquisitions of all or
substantially all of the business or a line of business (whether by the
acquisition of capital stock, assets or any combination thereof) of any other
Person if each such other acquisition meets all of the following requirements:
(a) no less than fifteen (15) Business Days prior to the proposed
closing date of such acquisition, the Borrower shall have delivered written
notice of such acquisition to the Administrative Agent and the Lenders,
which notice shall include the proposed closing date of such acquisition;
(b) the Borrower shall have certified on or before the closing date
of such acquisition, in writing and in a form reasonably acceptable to the
Administrative Agent, that such acquisition has been approved by the board
of directors or equivalent governing body of the Person to be acquired;
(c) the Person or business to be acquired shall be in a substantially
similar line of business as the Borrower and its Subsidiaries pursuant to
SECTION 11.12;
(d) if such transaction is a merger or consolidation, no Change of
Control shall have been effected thereby and the transaction shall comply
with the requirements of SECTION 11.4;
(e) the Borrower shall have delivered to the Administrative Agent
such documents reasonably requested by the Administrative Agent or the
Required Lenders (through the Administrative Agent) pursuant to SECTION
9.11 to be delivered at the time required pursuant to SECTION 9.11;
(f) no later than five (5) Business Days prior to the proposed
closing date of such acquisition, the Borrower shall have delivered to the
Administrative Agent and the Lenders an Officer's Compliance Certificate
for the most recent fiscal quarter end preceding such acquisition
demonstrating, in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders, pro forma compliance (as of the date
of the acquisition and after giving effect thereto, to any Extensions of
Credit made or to be made in connection therewith, as if such acquisition
had occurred on the first day of the applicable four-quarter period) with
each covenant contained in Article X;
(g) no later than five (5) Business Days prior to the proposed
closing date of such acquisition the Borrower, to the extent requested by
the Administrative Agent, (A) shall have delivered to the Administrative
Agent promptly upon the finalization thereof copies of substantially final
Permitted Acquisition Documents, which shall be in
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form and substance reasonably satisfactory to the Administrative Agent and
(B) shall have delivered to, or made available for inspection by, the
Administrative Agent substantially complete Permitted Acquisition Diligence
Information;
(h) no Event of Default shall have occurred and be continuing both
before and after giving effect to such acquisition;
(i) the Borrower shall have obtained the prior written consent of the
Administrative Agent and the Required Lenders prior to the consummation of
such acquisition if the Permitted Acquisition Consideration for such
acquisition, together with all other acquisitions consummated during the
term of this Agreement exceeds $25,000,000 in the aggregate;
(j) the Borrower shall demonstrate, in form and substance reasonably
satisfactory to the Administrative Agent, that the entity to be acquired
had positive Consolidated EBITDA (all references to the Borrower and its
Subsidiaries in the definition of "Consolidated EBITDA" being deemed to
refer to the entity to be acquired and its Subsidiaries for the purpose of
this clause (j)) for the four (4) fiscal quarter period ended prior to the
proposed closing date of such acquisition;
(k) after giving effect to the acquisition, at least $10,000,000 in
unused Commitments shall exist under the Revolving Credit Facility; and
(l) the Borrower shall provide such other documents and other
information as may be reasonably requested by the Administrative Agent or
the Required Lenders (through the Administrative Agent) in connection with
the acquisition.
"PERMITTED ACQUISITION CONSIDERATION" means the aggregate amount of
the purchase price (including, but not limited to, any assumed debt, Earnouts
(valued at the maximum amount reasonably expected to be payable thereunder as
determined in good faith by the Borrower), deferred payments, or Capital Stock
of the Borrower, net of the applicable acquired company's cash and cash
equivalents (including investments of the type described in SECTION 11.3(b))
balance as shown on its most recent financial statements delivered in connection
with the applicable Permitted Acquisition) to be paid in connection with any
applicable Permitted Acquisition as set forth in the applicable Permitted
Acquisition Documents executed by the Borrower or any of its Subsidiaries in
order to consummate the applicable Permitted Acquisition. For the avoidance of
doubt, Permitted Acquisition Consideration shall not include any Restaurant
Remodeling Expenses.
"PERMITTED ACQUISITION DILIGENCE INFORMATION" means with respect to
any acquisition proposed by Holdings, the Borrower or any Subsidiary Guarantor,
to the extent applicable, all material financial information, all material
contracts, and all other material information, in each case, reasonably
requested to be delivered to the Administrative Agent in connection with such
acquisition (except to the extent that any such information is (a) subject to
any confidentiality agreement, unless mutually agreeable arrangements can be
made to preserve such information as confidential, (b) classified or (c) subject
to any attorney-client privilege).
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"PERMITTED ACQUISITION DOCUMENTS" means with respect to any
acquisition proposed by Holdings, the Borrower or any Subsidiary Guarantor,
final copies (or substantially final drafts if not executed at the required time
of delivery) of the purchase agreement, sale agreement, merger agreement or
other agreement evidencing such acquisition, including, without limitation, all
legal opinions and each other document executed, delivered, contemplated by or
prepared in connection therewith and any amendment, modification or supplement
to any of the foregoing.
"PERMITTED HOLDERS" means (1) each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners III, L.P.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P. and any Person Controlling, Controlled by,
or under common Control with, and any account Controlled or managed by or under
common Control or management with ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners III, L.P. and ▇▇▇▇▇▇
▇▇▇▇▇▇ Partners IV, L.P. or (2) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and employees, management and
directors of (including any of their Heirs), and Persons owning accounts managed
or advised by or Controlled by, any of the foregoing and their respective
Affiliates.
"PERMITTED LIENS" means the Liens permitted pursuant to SECTION 11.2.
"PERSON" means any natural person, corporation, limited liability
company, limited liability partnership, trust, joint venture, association,
company, partnership, limited partnership, governmental authority or other
entity.
"PRE-OPENING COSTS" means "start-up costs" (such term used herein as
defined in SOP 98-5 published by the American Institute of Certified Public
Accountants) related to the acquisition, opening and organizing of new
restaurants, including, without limitation, the cost of feasibility studies,
staff-training, and recruiting and travel costs for employees engaged in such
start-up activities.
"PRIME RATE" means, at any time, the rate of interest per annum
publicly announced from time to time by Wachovia as its prime rate. Each change
in the Prime Rate shall be effective as of the opening of business on the day
such change in such prime rate occurs. The parties hereto acknowledge that the
rate announced publicly by Wachovia as its prime rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its customers or
other banks.
"PRO FORMA COST SAVINGS" means, with respect to any period, the
reduction in net costs and related adjustments that (i) were directly
attributable to an acquisition that occurred during the four-quarter period or
after the end of the four-quarter period and on or prior to the applicable
calculation date and calculated on a basis that is consistent with Regulation
S-X under the Securities Act of 1933 as in effect and applied as of the date of
this Agreement, (ii) were actually implemented by the business that was the
subject of any such acquisition within six months after the date of the
acquisition and prior to the applicable calculation date that are supportable
and quantifiable by the underlying accounting records of such business or (iii)
relate to the business that is the subject of any such acquisition and that the
Borrower reasonably determines are probable based upon specifically identifiable
actions to be taken within six months of the date of the acquisition and, in the
case of each of (i), (ii) and (iii), are described, as provided below, in an
officers' certificate, as if all such reductions in costs had been effected as
of the beginning of such period. Pro Forma Cost Savings described above shall be
set forth in a certificate
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delivered to the Administrative Agent from the Borrower's chief financial
officer that outlines the specific actions taken or to be taken, the net cost
savings achieved or to be achieved from each such action and that, in the case
of clause (iii) above, such savings have been determined to be probable.
"PURCHASE AGREEMENT" has the meaning assigned thereto in the Statement
of Purpose.
"REAL PROPERTY" shall mean, collectively, all right, title and
interest (including any leasehold, mineral or other estate) in and to any and
all parcels of or interests in real property owned, leased or operated by any
person, whether by lease, license or other means, together with, in each case,
all easements, hereditaments and appurtenances relating thereto, all
improvements and appurtenant fixtures and equipment, all general intangibles and
contract rights and other property and rights incidental to the ownership, lease
or operation thereof.
"REGISTER" has the meaning assigned thereto in SECTION 14.10(c).
"REIMBURSEMENT OBLIGATION" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to SECTION 3.5 for amounts drawn under
Letters of Credit.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"REQUIRED LENDERS" means, at any date, any combination of Lenders
whose Revolving Credit Commitments and Term Loans outstanding aggregate more
than 50 percent (50%) of the Aggregate Commitment and Term Loans outstanding or,
if the Credit Facilities have been terminated pursuant to SECTION 12.2, any
combination of Lenders holding more than fifty percent (50%) of the aggregate
Extensions of Credit; PROVIDED that the Commitment of, and the portion of the
Extensions of Credit, as applicable, held or deemed held by, any Defaulting
Lender shall be excluded from the Aggregate Commitment and aggregate Extensions
of Credit for purposes of making a determination of Required Lenders.
"REQUIRED REVOLVING LENDERS" means, at any date, any combination of
Lenders whose Revolving Credit Commitments aggregate more than 50 percent (50%)
of the Aggregate Commitment outstanding or, if the Revolving Credit Commitments
have been terminated pursuant to SECTION 12.2, any combination of Lenders
holding more than fifty percent (50%) of the aggregate Extensions of Credit
(without giving effect to outstanding Term Loans in the calculation of aggregate
Extensions of Credit); PROVIDED that the Commitment of, and the portion of the
Extensions of Credit, as applicable, held or deemed held by, any Defaulting
Lender shall be excluded from the Aggregate Commitment and aggregate Extensions
of Credit for purposes of making a determination of Required Revolving Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief financial officer, controller, treasurer or assistant treasurer of a
Credit Party or any other officer of a Credit Party reasonably acceptable to the
Administrative Agent. Any document delivered hereunder that is signed by a
Responsible Officer of a Credit Party shall be conclusively presumed to have
been authorized by all necessary corporate, partnership and/or other action on
the part of such
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Credit Party and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Credit Party.
"RESTAURANT PARTNERSHIP" means any Subsidiary of Holdings which
operates a restaurant and is not, directly or indirectly, wholly owned.
"RESTAURANT REMODELING EXPENSES" means expenses incurred by Holdings
or any of its Subsidiaries for purpose of remodeling any restaurant.
"REVOLVING CREDIT COMMITMENT" means (a) as to any Revolving Credit
Lender, the obligation of such Revolving Credit Lender to make Revolving Credit
Loans to the account of the Borrower hereunder in an aggregate principal amount
at any time outstanding not to exceed the amount set forth opposite such
Revolving Credit Lender's name on the Register, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Revolving Credit Lenders, the aggregate commitment of all Revolving
Credit Lenders to make Revolving Credit Loans, as such amount may be reduced at
any time or from time to time pursuant to the terms hereof. The Revolving Credit
Commitment of all Revolving Credit Lenders on the Effective Date shall be forty
million dollars ($40,000,000).
"REVOLVING CREDIT COMMITMENT PERCENTAGE" means, as to any Revolving
Lender at any time, the ratio of (a) the amount of the Revolving Credit
Commitment of such Revolving Credit Lender to (b) the Revolving Credit
Commitments of all Revolving Credit Lenders.
"REVOLVING CREDIT FACILITY" means the revolving credit facility
established pursuant to Article II.
"REVOLVING CREDIT LENDERS" means Lenders with a Revolving Credit
Commitment.
"REVOLVING CREDIT LOANS" means any revolving loan made to the Borrower
pursuant to Section 2.1, and all such revolving loans collectively as the
context requires.
"REVOLVING CREDIT MATURITY DATE" means the earliest to occur of (a)
May 3, 2011, (b) the date of termination by the Borrower pursuant to SECTION
2.5, or (c) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to SECTION 12.2(a).
"REVOLVING CREDIT NOTE" means a promissory note made by the Borrower
in favor of a Revolving Credit Loan Lender evidencing the Revolving Credit Loans
made by such Lender, substantially in the form of EXHIBIT A-1.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"SALE AND LEASEBACK TRANSACTION" means any arrangement pursuant to
which the Borrower or any of its Subsidiaries, directly or indirectly, becomes
liable as lessee, guarantor or other surety with respect to any lease, whether
an Operating Lease or a Capital Lease, of any property that the Borrower or any
of its Subsidiaries (a) has sold or transferred (or is to sell or transfer) to,
or arranged the purchase by, a Person and (b) intends to use for substantially
the
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same purpose as any other property that has been sold or is transferred (or is
to be sold or transferred) by the Borrower or any of its Subsidiaries (as
applicable) to a Person in connection with such lease.
"SANCTIONED ENTITY" shall mean (i) an agency of the government of,
(ii) an organization directly or indirectly controlled by, or (iii) a person
resident in a country that is subject to a sanctions program identified on the
list maintained by OFAC and available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇▇, or as
otherwise published by OFAC from time to time as such program may be applicable
to such agency, organization or person.
"SANCTIONED PERSON" shall mean a person named on the list of Specially
Designated Nationals or Blocked Persons maintained by OFAC available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇.▇▇▇▇, or as otherwise
published by OFAC from time to time.
"SEC" shall mean the Securities and Exchange Commission (or any
successor thereto).
"SECURED PARTIES" shall mean, collectively, the Administrative Agent,
the Lenders and each party to a Hedging Agreement if at the date of entering
into such Hedging Agreement such person was a Lender or an Affiliate of a Lender
and such person executes and delivers to the Administrative Agent a letter
agreement in form and substance acceptable to the Administrative Agent pursuant
to which such person (i) appoints the Administrative Agent as its agent under
the applicable Loan Documents and (ii) agrees to be bound by the provisions of
Sections 14.2 and 14.3 and 14.5 as if it were a Lender.
"SECURITY DOCUMENTS" means the collective reference to the Collateral
Agreement, each Joinder Agreement, the Mortgages, and each other agreement or
writing pursuant to which any Credit Party purports to pledge or grant a
security interest in, or ▇▇▇▇▇ ▇ ▇▇▇▇ on, any property or assets securing the
Obligations.
"SENIOR NOTE AGREEMENT" shall mean any indenture, note purchase
agreement or other agreement pursuant to which the Senior Notes are issued as in
effect on the date hereof and thereafter amended from time to time subject to
the requirements of this Agreement.
"SENIOR NOTE DOCUMENTS" shall mean the Senior Notes, the Senior Note
Agreement, the Senior Note Guarantees and all other documents executed and
delivered with respect to the Senior Notes or the Senior Note Agreement.
"SENIOR NOTE GUARANTEES" shall mean the guarantees of the Subsidiary
Guarantors pursuant to the Senior Note Agreement.
"SENIOR NOTES" shall mean Borrower's 10% Senior Notes due 2013 issued
pursuant to the Senior Note Agreement and any registered notes issued by
Borrower in exchange for, and as contemplated by, such notes with terms no less
favorable to the Lenders than the notes issued pursuant to the Senior Note
Agreement.
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"SOLVENT" means, as to Holdings and its Subsidiaries taken as a whole
on a particular date, that such Persons (a) have capital sufficient to carry on
their business and transactions and all business and transactions in which they
are about to engage and are able to pay their debts as they mature, (b) have
assets having a value, both at fair valuation and at present fair saleable
value, greater than the amount required to pay their probable liabilities
(including contingencies), and (c) do not believe that they will incur debts or
liabilities beyond their ability to pay such debts or liabilities as they
mature.
"SUBORDINATED INDEBTEDNESS" means the collective reference to any
Indebtedness of the Borrower or any Subsidiary subordinated in right and time of
payment to the Obligations and containing such other terms and conditions, in
each case as are reasonably satisfactory to the Required Lenders.
"SUBSIDIARY" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding Capital Stock having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership, limited liability company or other entity is at the time owned by
or the management is otherwise Controlled by such Person (irrespective of
whether, at the time, Capital Stock of any other class or classes of such
corporation, partnership, limited liability company or other entity shall have
or might have voting power by reason of the happening of any contingency).
Unless otherwise qualified references to "Subsidiary" or "Subsidiaries" herein
shall refer to those of the Borrower.
"SUBSIDIARY GUARANTORS" means each direct or indirect Subsidiary of
the Borrower in existence on the Effective Date and listed on SCHEDULE 1.1(a)
hereto or which becomes a party to a Joinder Agreement pursuant to SECTION 9.11.
"SWINGLINE COMMITMENT" means the lesser of (a) five million dollars
($5,000,000) and (b) the Revolving Credit Commitment.
"SWINGLINE FACILITY" means the swingline facility established pursuant
to Section 2.2.
"SWINGLINE LENDER" means Wachovia in its capacity as swingline lender
hereunder, or any Lender that becomes the Swingline Lender upon Wachovia's
resignation as Administrative Agent.
"SWINGLINE LOAN" means any swingline loan made by the Swingline Lender
to the Borrower pursuant to Section 2.2, and all such swingline loans
collectively as the context requires.
"SWINGLINE NOTE" means a promissory note made by the Borrower in favor
of the Swingline Lender evidencing the Swingline Loans made by the Swingline
Lender, substantially in the form of Exhibit A-2.
"SWINGLINE TERMINATION DATE" means the Revolving Credit Maturity Date.
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"SYNTHETIC LEASE" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease in accordance with GAAP.
"TAXES" means (i) all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto and (ii) all transferee, successor, joint and
several, contractual or other liability (including, without limitation,
liability pursuant to Treas. Reg. ss.1.1502-6 (or any similar state, local or
foreign provision)) in respect of any items described in clause (i).
"TERM LOAN" means the term loans to be made to the Borrower by the
Lenders pursuant to Section 4.1.
"TERM LOAN COMMITMENT" means (a) as to any Lender, the obligation of
such Lender to make a Term Loan to the Borrower on the Effective Date in an
aggregate principal amount not to exceed the amount set forth opposite such
Lender's name on the Register, as such amount may be reduced or otherwise
modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Lenders, the aggregate commitment of all Lenders to make Term Loans
hereunder on the Effective Date. The Term Loan Commitment of all Lenders on the
Effective Date shall be one hundred million dollars ($100,000,000).
"TERM LOAN COMMITMENT PERCENTAGE" means, as to any Lender, (a) prior
to making the Term Loans, the ratio of (i) the Term Loan Commitment of such
Lender to (ii) the Term Loan Commitments of all Lenders and (b) after the Term
Loans are made, the ratio of (i) the outstanding principal balance of the Term
Loans held by such Lender to (ii) the aggregate outstanding principal balance of
the Term Loan held by all Lenders.
"TERM LOAN FACILITY" means the term loan facility established pursuant
to Article IV.
"TERM LOAN LENDERS" means Lenders with a Term Loan Commitment or Term
Loans outstanding.
"TERM LOAN MATURITY DATE" means the first to occur of (a) May 3, 2013,
or (b) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to Section 12.2(a).
"TERM NOTE" means a promissory note made by the Borrower in favor of a
Term Loan Lender evidencing the Term Loans made by such Lender, substantially in
the form of Exhibit A-3.
"TERMINATION EVENT" means except for any such event or condition that
could not reasonably be expected to have a Material Adverse Effect: (a) a
"Reportable Event" described in Section 4043 of ERISA for which the notice
requirement has not been waived by the PBGC, or (b) the withdrawal of the
Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which
it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(c)
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the termination of a Pension Plan, the filing of a notice of intent to terminate
a Pension Plan or the treatment of a Pension Plan amendment as a termination,
under Section 4041 of ERISA, if the plan assets are not sufficient to pay all
plan liabilities, or (d) the institution of proceedings to terminate, or the
appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e)
any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or (f) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (g) the partial or complete
withdrawal of the Borrower of any ERISA Affiliate from a Multiemployer Plan if
withdrawal liability is asserted by such plan, or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA, or (j) the "substantial cessation of operations" within
the meaning of Section 4062(e) of ERISA with respect to a Pension Plan, or (k)
the making of any amendment to any Pension Plan which could result in the
imposition of a lien or the posting of a bond or other security, or (l) the
occurrence of a nonexempt prohibited transaction (within the meaning of Section
4975 of the Code or Section 406 of ERISA).
"TERMINATION VALUE" means, in respect of any one or more Hedging
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or
after the date such Hedging Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s)
determined as the ▇▇▇▇-to-market value(s) for such Hedging Agreements, as
determined based upon three or more mid-market or other readily available
quotations provided by recognized dealers in such Hedging Agreements (one of
which may be a Lender or any Affiliate of a Lender).
"TRANSACTION AFFILIATE" has the meaning assigned thereto in SECTION
13.10.
"TRANSACTION COSTS" means all transaction fees, charges and other
amounts related to Permitted Acquisitions (including, without limitation, any
financing fees, merger and acquisition fees, legal fees and expenses, due
diligence fees or any other fees and expenses in connection therewith).
"TRANSACTION DOCUMENTS" shall mean the Acquisition Documents, the
Senior Note Documents, the Loan Documents and the Purchase Agreement.
"TRANSACTIONS" shall mean, collectively, the transactions to occur on
or prior to the Closing Date pursuant to the Transaction Documents (other than
the Purchase Agreement), including (a) the consummation of the Acquisition; (b)
the execution, delivery and performance of the Loan Documents; (c) the Equity
Financing; (d) the issuance of the Senior Notes; and (e) the payment of all fees
and expenses to be paid on or prior to the Closing Date and owing in connection
with the foregoing.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York, as amended or modified from time to time.
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"UNIFORM CUSTOMS" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January, 1994 International
Chamber of Commerce Publication No. 500.
"UNITED STATES" or "U.S." means the United States of America.
"WACHOVIA" means Wachovia Bank, National Association, a national
banking association, and its successors.
"WHOLLY-OWNED" means, with respect to a Subsidiary, that all of the
shares of Capital Stock of such Subsidiary are, directly or indirectly, owned or
Controlled by the Borrower and/or one or more of its Wholly-Owned Subsidiaries
(except for directors' qualifying shares or other shares required by Applicable
Law to be owned by a Person other than the Borrower).
SECTION 1.2. OTHER DEFINITIONS AND PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document: (a) the definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined, (b) whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms, (c) the words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation", (d) the word
"will" shall be construed to have the same meaning and effect as the word
"shall", (e) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (f) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (g) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (h) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement, (i) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (j) the term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form, (k) in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding"; and the word "through" means "to
and including," and (l) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
SECTION 1.3. ACCOUNTING TERMS. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with GAAP as in effect from time to time, applied in a manner
consistent with that used in preparing the audited financial statements required
by SECTION 7.1(b), except as otherwise specifically prescribed herein.
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SECTION 1.4. UCC TERMS. Terms defined in the UCC in effect on the
Closing Date and not otherwise defined herein shall, unless the context
otherwise indicates, have the meanings provided by those definitions. Subject to
the foregoing, the term "UCC" refers, as of any date of determination, to the
UCC then in effect.
SECTION 1.5. ROUNDING. Any financial ratios required to be maintained
by the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
SECTION 1.6. REFERENCES TO LAWS. Unless otherwise expressly provided
herein, references to any Applicable Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Applicable Law.
SECTION 1.7. TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
SECTION 1.8. LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all prospective increases thereof provided for in such Letter of
Credit, whether or not such maximum face amount is in effect at such time.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1. REVOLVING CREDIT LOANS. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations and
warranties set forth herein, each Revolving Credit Lender severally agrees to
make Revolving Credit Loans to the Borrower from time to time from the Closing
Date through, but not including, the Revolving Credit Maturity Date as requested
by the Borrower in accordance with the terms of SECTION 2.3; PROVIDED, that (a)
the aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to any amount requested) shall not exceed the Revolving Credit
Commitment less the sum of all outstanding Swingline Loans and L/C Obligations
and (b) the principal amount of outstanding Revolving Credit Loans from any
Revolving Credit Lender to the Borrower shall not at any time exceed such
Revolving Credit Lender's Revolving Credit Commitment LESS such Revolving Credit
Lender's Revolving Credit Commitment Percentage of outstanding L/C Obligations
and outstanding Swingline Loans. Each Revolving Credit Loan by a Revolving
Credit Lender shall be in a principal amount equal to such Revolving Lender's
Revolving Credit Commitment Percentage of the aggregate principal amount of
Revolving Credit Loans requested on such occasion. Subject to the terms and
conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit
Loans hereunder until the Revolving Credit Maturity Date.
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SECTION 2.2. SWINGLINE LOANS.
(a) AVAILABILITY. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower
from time to time from the Closing Date through, but not including, the
Swingline Termination Date; PROVIDED, that the aggregate principal amount of all
outstanding Swingline Loans (after giving effect to any amount requested), shall
not exceed the lesser of (i) the Revolving Credit Commitment less the sum of all
outstanding Revolving Credit Loans and the L/C Obligations and (ii) the
Swingline Commitment.
(b) REFUNDING.
(i) Swingline Loans shall be refunded by the Revolving Credit Lenders
on demand by the Swingline Lender. Such refundings shall be made by the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Commitment Percentages and shall thereafter be reflected as Revolving Credit
Loans of the Revolving Credit Lenders on the books and records of the
Administrative Agent. Each Revolving Credit Lender shall fund its respective
Revolving Credit Commitment Percentage of Revolving Credit Loans as required to
repay Swingline Loans outstanding to the Swingline Lender upon demand by the
Swingline Lender but in no event later than 1:00 p.m. on the next succeeding
Business Day after such demand is made. No Revolving Credit Lender's obligation
to fund its respective Revolving Credit Commitment Percentage of a Swingline
Loan shall be affected by any other Revolving Credit Lender's failure to fund
its Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any
Revolving Credit Lender's Revolving Credit Commitment Percentage be increased as
a result of any such failure of any other Revolving Credit Lender to fund its
Revolving Credit Commitment Percentage of a Swingline Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand the
amount of such Swingline Loans to the extent amounts received from the Revolving
Credit Lenders are not sufficient to repay in full the outstanding Swingline
Loans requested or required to be refunded. In addition, the Borrower hereby
authorizes the Administrative Agent to charge any account maintained by the
Borrower with the Swingline Lender (up to the amount available therein) in order
to immediately pay the Swingline Lender the amount of such Swingline Loans to
the extent amounts received from the Revolving Credit Lenders are not sufficient
to repay in full the outstanding Swingline Loans requested or required to be
refunded. If any portion of any such amount paid to the Swingline Lender shall
be recovered by or on behalf of the Borrower from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitment Percentages (unless the amounts so
recovered by or on behalf of the Borrower pertain to a Swingline Loan extended
after the occurrence and during the continuance of an Event of Default of which
the Administrative Agent has received notice in the manner required pursuant to
Section 13.3 and which such Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable).
(iii) Each Revolving Credit Lender acknowledges and agrees that its
obligation to refund Swingline Loans in accordance with the terms of this
Section is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation,
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non-satisfaction of the conditions set forth in ARTICLE VI. Further, each
Revolving Credit Lender agrees and acknowledges that if prior to the refunding
of any outstanding Swingline Loans pursuant to this Section, one of the events
described in SECTION 12.1(i) or (j) shall have occurred, each Revolving Credit
Lender will, on the date the applicable Revolving Credit Loan would have been
made, purchase an undivided participating interest in the Swingline Loan to be
refunded in an amount equal to its Revolving Credit Commitment Percentage of the
aggregate amount of such Swingline Loan. Each Revolving Credit Lender will
immediately transfer to the Swingline Lender, in immediately available funds,
the amount of its participation and upon receipt thereof the Swingline Lender
will deliver to such Revolving Credit Lender a certificate evidencing such
participation dated the date of receipt of such funds and for such amount.
Whenever, at any time after the Swingline Lender has received from any Revolving
Credit Lender such Revolving Credit Lender's participating interest in a
Swingline Loan, the Swingline Lender receives any payment on account thereof,
the Swingline Lender will distribute to such Revolving Credit Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Revolving
Credit Lender's participating interest was outstanding and funded).
SECTION 2.3. PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS AND
SWINGLINE LOANS.
(a) REQUESTS FOR BORROWING. The Borrower shall give the Administrative
Agent irrevocable prior written notice substantially in the form of EXHIBIT B (a
"NOTICE OF BORROWING") not later than 12:00 p.m. (i) on the same Business Day as
each Base Rate Loan and each Swingline Loan and (ii) at least three (3) Business
Days before each LIBOR Rate Loan, of its intention to borrow, specifying (A) the
date of such borrowing, which shall be a Business Day, (B) the amount of such
borrowing, which shall be, (x) with respect to Base Rate Loans (other than
Swingline Loans) in an aggregate principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof, (y) with respect to LIBOR Rate Loans in
an aggregate principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof and (z) with respect to Swingline Loans in an aggregate principal
amount of $100,000 or a whole multiple of $100,000 in excess thereof, (C)
whether such Loan is to be a Revolving Credit Loan or Swingline Loan, (D) in the
case of a Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or
Base Rate Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto. A Notice of Borrowing received after 12:00
noon shall be deemed received on the next Business Day. The Administrative Agent
shall promptly notify the Lenders of each Notice of Borrowing.
(b) DISBURSEMENT OF REVOLVING CREDIT AND SWINGLINE LOANS. Not later
than 2:00 p.m. on the proposed borrowing date, (i) each Lender will make
available to the Administrative Agent, for the account of the Borrower, at the
office of the Administrative Agent in funds immediately available to the
Administrative Agent, such Lender's Revolving Credit Commitment Percentage of
the Revolving Credit Loans to be made on such borrowing date and (ii) the
Swingline Lender will make available to the Administrative Agent, for the
account of the Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the Swingline Loans to be
made on such borrowing date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section in immediately available funds by crediting or wiring
such proceeds
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to the deposit account of the Borrower identified in the most recent notice
substantially in the form of EXHIBIT C (a "NOTICE OF ACCOUNT DESIGNATION")
delivered by the Borrower to the Administrative Agent or as may be otherwise
agreed upon by the Borrower and the Administrative Agent from time to time.
Subject to SECTION 5.7 hereof, the Administrative Agent shall not be obligated
to disburse the portion of the proceeds of any Revolving Credit Loan requested
pursuant to this Section to the extent that any Lender has not made available to
the Administrative Agent its Revolving Credit Commitment Percentage of such
Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline
Loans shall be made by the Revolving Credit Lenders as provided in SECTION
2.2(b).
SECTION 2.4. REPAYMENT AND PREPAYMENT OF REVOLVING CREDIT AND
SWINGLINE LOANS.
(a) REPAYMENT ON TERMINATION DATE. The Borrower hereby agrees to repay
the outstanding principal amount of (i) all Revolving Credit Loans in full on
the Revolving Credit Maturity Date, and (ii) all Swingline Loans in accordance
with SECTION 2.2(B), together, in each case, with all accrued but unpaid
interest thereon.
(b) OPTIONAL PREPAYMENTS. The Borrower may at any time and from time
to time prepay Revolving Credit Loans and Swingline Loans, in whole or in part,
with irrevocable prior written notice to the Administrative Agent substantially
in the form of EXHIBIT D (a "NOTICE OF PREPAYMENT") given not later than 12:00
noon (i) on the same Business Day for prepayment of a Base Rate Loan or
Swingline Loan and (ii) at least three (3) Business Days prior to the date of
prepayment of a LIBOR Rate Loan, specifying the date and amount of prepayment
and whether the prepayment is of LIBOR Rate Loans, Base Rate Loans, Swingline
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender. If any such notice is given, the amount specified
in such notice shall be due and payable on the date set forth in such notice.
Partial prepayments shall be in an aggregate amount of $100,000 or a whole
multiple of $100,000 in excess thereof with respect to Base Rate Loans (other
than Swingline Loans), $1,000,000 or a whole multiple of $500,000 in excess
thereof with respect to LIBOR Rate Loans and $100,000 or a whole multiple of
$100,000 in excess thereof with respect to Swingline Loans. A Notice of
Prepayment received after 12:00 noon shall be deemed received on the next
Business Day. Each such repayment shall be accompanied by any amount required to
be paid pursuant to SECTION 5.9 hereof.
(c) PREPAYMENT OF EXCESS PROCEEDS. In the event proceeds remain after
the prepayments of Term Loan Facility pursuant to SECTION 4.4(b), the amount of
such excess proceeds shall be used on the date of the required prepayment under
SECTION 4.4(b) to prepay the outstanding principal amount of the Revolving
Credit Loans, without a corresponding reduction of the Revolving Credit
Commitment.
(d) LIMITATION ON PREPAYMENT OF LIBOR RATE LOANS. The Borrower may not
prepay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such prepayment is accompanied by any amount
required to be paid pursuant to Section 5.9 hereof.
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SECTION 2.5. PERMANENT REDUCTION OF THE REVOLVING CREDIT COMMITMENT.
(a) VOLUNTARY REDUCTION. The Borrower shall have the right at any time
and from time to time, upon at least five (5) Business Days prior written notice
to the Administrative Agent, to permanently reduce, without premium or penalty,
(i) the entire Revolving Credit Commitment at any time or (ii) portions of the
Revolving Credit Commitment, from time to time, in an aggregate principal amount
not less than $2,000,000 or any whole multiple of $500,000 in excess thereof.
Any reduction of the Revolving Credit Commitments shall be applied to the
Revolving Credit Commitment of each Revolving Credit Lender according to its
Revolving Credit Commitment Percentage. All commitment fees accrued until the
effective date of any termination of the Revolving Credit Commitments shall be
paid on the effective date of such termination.
(b) CORRESPONDING PAYMENT. Each permanent reduction permitted pursuant
to this Section shall be accompanied by a payment of principal sufficient to
reduce the aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C
Obligations, as applicable, after such reduction to the Revolving Credit
Commitment as so reduced and if the Revolving Credit Commitment as so reduced is
less than the aggregate amount of all outstanding Letters of Credit, the
Borrower shall be required to deposit cash collateral in a cash collateral
account opened by the Administrative Agent in an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit in excess of the
Revolving Credit Commitment as so reduced. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be returned to the Borrower; PROVIDED that if an Event of Default has
occurred and is continuing, all cash collateral shall be applied in accordance
with SECTION 12.2(b). Any reduction of the Revolving Credit Commitment to zero
shall be accompanied by payment of all outstanding Revolving Credit Loans and
Swingline Loans (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the
termination of the Revolving Credit Commitment and the Swingline Commitment and
the Revolving Credit Facility. Such cash collateral shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be returned to the
Borrower; PROVIDED that if an Event of Default has occurred and is continuing,
all cash collateral shall be applied in accordance with SECTION 12.2(b). If the
reduction of the Revolving Credit Commitment requires the repayment of any LIBOR
Rate Loan, such repayment shall be accompanied by any amount required to be paid
pursuant to Section 5.9 hereof.
SECTION 2.6. TERMINATION OF REVOLVING CREDIT FACILITY. The Revolving
Credit Facility shall terminate on the Revolving Credit Maturity Date.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1. L/C COMMITMENT. Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in SECTION 3.4(a),
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agrees to issue standby letters of credit ("LETTERS OF CREDIT") for the account
of the Borrower on any Business Day from the Closing Date through but not
including the Revolving Credit Maturity Date in such form as may be approved
from time to time by the Issuing Lender; PROVIDED, that the Issuing Lender shall
have no obligation to issue any Letter of Credit if, after giving effect to such
issuance, (a) the L/C Obligations would exceed the L/C Commitment or (b) the
aggregate principal amount of outstanding Revolving Credit Loans, plus the
aggregate principal amount of outstanding Swingline Loans, PLUS the aggregate
amount of L/C Obligations would exceed the Revolving Credit Commitment. Each
Letter of Credit shall (i) be denominated in Dollars in a minimum amount of
$100,000 or such lesser amount as the Issuing Lender may approve, (ii) be a
standby letter of credit issued to support obligations of the Borrower or any of
its Subsidiaries, contingent or otherwise, incurred in the ordinary course of
business, (iii) expire on a date no more than twelve (12) months after the date
of issuance or last renewal of such Letter of Credit, which date shall be no
later than the fifth (5th) Business Day prior to the Revolving Credit Maturity
Date; PROVIDED that each Letter of Credit initially expiring by its terms more
than one year prior to the Revolving Credit Maturity Date may provide that it
will be automatically extended for an additional term of twelve (12) months or
less (with identical terms as the initial Letter of Credit including, but not
limited to, the fees payable on such Letter of Credit) upon its expiration with
no additional action on the part of the Borrower and (iv) be subject to the
Uniform Customs and/or ISP98, as set forth in the Letter of Credit Application
or as determined by the Issuing Lender and, to the extent not inconsistent
therewith, the laws of the State of New York. The Issuing Lender shall not at
any time be obligated to issue any Letter of Credit hereunder if such issuance
would conflict with, or cause the Issuing Lender or any L/C Participant to
exceed any limits imposed by, any Applicable Law. References herein to "issue"
and derivations thereof with respect to Letters of Credit shall also include
extensions or modifications of any outstanding Letters of Credit, unless the
context otherwise requires.
SECTION 3.2. PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at the Administrative Agent's Office a
Letter of Credit Application therefor, completed to the satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Letter of
Credit Application, the Issuing Lender shall process such Letter of Credit
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall, subject to Section 3.1 and Article VI, promptly issue the
Letter of Credit requested thereby (but in no event shall the Issuing Lender be
required to issue any Letter of Credit earlier than three (3) Business Days
after its receipt of the Letter of Credit Application therefor and all such
other certificates, documents and other papers and information relating thereto)
by issuing the original of such Letter of Credit to the beneficiary thereof or
as otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall promptly furnish to the Borrower a copy of such Letter of Credit
and promptly notify each Lender of the issuance and upon request by any Lender,
furnish to such Lender a copy of such Letter of Credit and the amount of such
Lender's participation therein.
SECTION 3.3. COMMISSIONS AND OTHER CHARGES.
(a) LETTER OF CREDIT COMMISSIONS. The Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit commission
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with respect to each outstanding Letter of Credit in an amount equal to the
undrawn face amount of such Letter of Credit MULTIPLIED by the Applicable Margin
with respect to Revolving Credit Loans that are LIBOR Rate Loans (determined on
a per annum basis). Such commission shall be payable quarterly in arrears on the
last Business Day of each calendar quarter, on the Revolving Credit Maturity
Date and thereafter on demand of the Administrative Agent. The Administrative
Agent shall, promptly following its receipt thereof, distribute to the Issuing
Lender and the L/C Participants all commissions received pursuant to this
Section in accordance with their respective Revolving Credit Commitment
Percentages.
(b) ISSUANCE FEE. In addition to the foregoing commission, the
Borrower shall pay to the Administrative Agent, for the account of the Issuing
Lender, an issuance fee with respect to each Letter of Credit in an amount equal
to the face amount of such Letter of Credit multiplied by 0.25% per annum. Such
issuance fee shall be payable quarterly in arrears on the last Business Day of
each calendar quarter commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Revolving Credit Maturity Date and
thereafter on demand of the Administrative Agent.
(c) OTHER COSTS. In addition to the foregoing fees and commissions,
the Borrower shall pay or reimburse the Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by the Issuing Lender in
issuing, effecting payment under, amending or otherwise administering any Letter
of Credit.
SECTION 3.4. L/C PARTICIPATIONS.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in the Issuing Lender's obligations and rights under and
in respect of each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower through a Revolving Credit Loan or otherwise
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative
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Agent during the period from and including the date such payment is due to the
date on which such payment is immediately available to the Issuing Lender, times
(iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. A certificate of the Issuing
Lender with respect to any amounts owing under this Section shall be conclusive
in the absence of manifest error. With respect to payment to the Issuing Lender
of the unreimbursed amounts described in this Section, if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. on any
Business Day, such payment shall be due that Business Day, and (B) after 1:00
p.m. on any Business Day, such payment shall be due on the following Business
Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Revolving Credit Commitment Percentage of such payment in accordance with this
Section, the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise), or any payment of
interest on account thereof, the Issuing Lender will distribute to such L/C
Participant its PRO RATA share thereof; PROVIDED, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
SECTION 3.5. REIMBURSEMENT OBLIGATION OF THE BORROWER. In the event of
any drawing under any Letter of Credit, the Borrower agrees to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section or
with funds from other sources), in same day funds, the Issuing Lender on each
date on which the Issuing Lender notifies the Borrower of the date and amount of
a draft paid under any Letter of Credit (if such notice is received prior to
12:00 noon on such day, or otherwise on the next succeeding Business Day) for
the amount of (a) such draft so paid and (b) any amounts referred to in SECTION
3.3(c) incurred by the Issuing Lender in connection with such payment. Unless
the Borrower shall promptly notify the Issuing Lender that the Borrower intends
to reimburse the Issuing Lender for such drawing from other sources or funds,
the Borrower shall be deemed to have timely given a Notice of Borrowing to the
Administrative Agent requesting that the Revolving Credit Lenders make a
Revolving Credit Loan bearing interest at the Base Rate on such date in the
amount of (a) such draft so paid and (b) any amounts referred to in SECTION
3.3(c) incurred by the Issuing Lender in connection with such payment, and the
Revolving Credit Lenders shall make a Revolving Credit Loan bearing interest at
the Base Rate in such amount, the proceeds of which shall be applied to
reimburse the Issuing Lender for the amount of the related drawing and costs and
expenses. Each Revolving Credit Lender acknowledges and agrees that its
obligation to fund a Revolving Credit Loan in accordance with this Section to
reimburse the Issuing Lender for any draft paid under a Letter of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in SECTION 2.3(a) or ARTICLE VI. If the Borrower has elected to pay
the amount of such drawing with funds from other sources and shall fail to
reimburse the Issuing Lender as provided above, the unreimbursed amount of such
drawing shall bear interest at the rate which would be payable on any
outstanding Base Rate Loans which were then overdue from the date such
reimbursement was due and payable until payment in full.
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SECTION 3.6. OBLIGATIONS ABSOLUTE. The Borrower's obligations under
this Article III (including, without limitation, the Reimbursement Obligation)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees that the Issuing
Lender and the L/C Participants shall not be responsible for, and the Borrower's
Reimbursement Obligation under SECTION 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of
such Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's bad faith, gross negligence or willful misconduct, as determined by a
court of competent jurisdiction by final nonappealable judgment. The Borrower
agrees that any action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or the related drafts or documents, if done
in the absence of bad faith, gross negligence or willful misconduct shall be
binding on the Borrower and shall not result in any liability of the Issuing
Lender or any L/C Participant to the Borrower. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
SECTION 3.7. EFFECT OF LETTER OF CREDIT APPLICATION. To the extent
that any provision of any Letter of Credit Application related to any Letter of
Credit is inconsistent with the provisions of this ARTICLE III, the provisions
of this ARTICLE III shall apply.
ARTICLE IV
TERM LOAN FACILITY
SECTION 4.1. TERM LOAN. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make a Term Loan to the Borrower on
the Effective Date in a principal amount equal to such Lender's Term Loan
Commitment as of the Effective Date.
SECTION 4.2. PROCEDURE FOR ADVANCE OF TERM LOAN. The Borrower shall
give the Administrative Agent an irrevocable Notice of Borrowing prior to 11:00
a.m. on the Effective Date requesting that the Lenders make the Term Loan as a
Base Rate Loan on such date. Upon receipt of such Notice of Borrowing from the
Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Not later than 1:00 p.m. on the Effective Date, each Lender will make available
to the Administrative Agent for the account of the Borrower, at the
Administrative Agent's Office in immediately available funds, the amount of such
Term Loan to be made by such Lender on such borrowing date. The Borrower hereby
irrevocably authorizes the Administrative Agent to disburse the proceeds of the
Term Loan in immediately available
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funds by wire transfer to such Person or Persons as may be designated by the
Borrower in writing.
SECTION 4.3. REPAYMENT OF TERM LOAN. The Borrower shall repay the
aggregate outstanding principal amount of the Term Loan in consecutive quarterly
installments on the last Business Day of the fiscal quarter as set forth below,
except as the amounts of individual installments may be adjusted pursuant to
SECTION 4.4 hereof:
==================================== ==================================
FISCAL QUARTER INSTALLMENTS
------------------------------------ ----------------------------------
Q3 2006 $250,000.00
------------------------------------ ----------------------------------
Q4 2006 $250,000.00
------------------------------------ ----------------------------------
Q1 2007 $250,000.00
------------------------------------ ----------------------------------
Q2 2007 $250,000.00
------------------------------------ ----------------------------------
Q3 2007 $250,000.00
------------------------------------ ----------------------------------
Q4 2007 $250,000.00
------------------------------------ ----------------------------------
Q1 2008 $250,000.00
------------------------------------ ----------------------------------
Q2 2008 $250,000.00
------------------------------------ ----------------------------------
Q3 2008 $250,000.00
------------------------------------ ----------------------------------
Q4 2008 $250,000.00
------------------------------------ ----------------------------------
Q1 2009 $250,000.00
------------------------------------ ----------------------------------
Q2 2009 $250,000.00
------------------------------------ ----------------------------------
Q3 2009 $250,000.00
------------------------------------ ----------------------------------
Q4 2009 $250,000.00
------------------------------------ ----------------------------------
Q1 2010 $250,000.00
------------------------------------ ----------------------------------
Q2 2010 $250,000.00
------------------------------------ ----------------------------------
Q3 2010 $250,000.00
------------------------------------ ----------------------------------
Q4 2010 $250,000.00
------------------------------------ ----------------------------------
Q1 2011 $250,000.00
------------------------------------ ----------------------------------
Q2 2011 $250,000.00
------------------------------------ ----------------------------------
Q3 2011 $250,000.00
------------------------------------ ----------------------------------
Q4 2011 $250,000.00
------------------------------------ ----------------------------------
Q1 2012 $250,000.00
------------------------------------ ----------------------------------
Q2 2012 $250,000.00
------------------------------------ ----------------------------------
Q3 2012 $250,000.00
------------------------------------ ----------------------------------
Q4 2012 $250,000.00
------------------------------------ ----------------------------------
Q1 2013 $250,000.00
------------------------------------ ----------------------------------
Term Loan Maturity Date $93,250,000.00
==================================== ==================================
If not sooner paid, the Term Loan shall be paid in full, together with accrued
interest thereon, on the Term Loan Maturity Date.
SECTION 4.4. PREPAYMENTS OF TERM LOAN.
(a) OPTIONAL PREPAYMENTS. The Borrower shall have the right at any
time and from time to time, without premium or penalty, to prepay the Term Loan,
in whole or in part,
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upon delivery to the Administrative Agent of a Notice of Prepayment not later
than 12:00 noon (i) on the same Business Day as each Base Rate Loan and (ii) at
least three (3) Business Days before each LIBOR Rate Loan, specifying the date
and amount of repayment and whether the repayment is of LIBOR Rate Loans or Base
Rate Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Each optional prepayment of the Term Loan hereunder
shall be in an aggregate principal amount of at least $2,000,000 or any whole
multiple of $1,000,000 in excess thereof and shall be applied, on a pro rata
basis, to the outstanding scheduled principal installments of the Term Loan.
Each repayment shall be accompanied by any amount required to be paid pursuant
to SECTION 5.9 hereof. A Notice of Prepayment received after 12:00 noon shall be
deemed received on the next Business Day. The Administrative Agent shall
promptly notify the Lenders of each Notice of Prepayment.
(b) MANDATORY PREPAYMENTS.
(i) DEBT ISSUANCES. The Borrower shall prepay the Loans in the manner
set forth in clause (vi) below in amounts equal to one hundred percent (100%) of
the aggregate Net Cash Proceeds from any Debt Issuance by Holdings or any of its
Subsidiaries not permitted pursuant to this Agreement. Such prepayment shall be
made within three (3) Business Days after the date of receipt of Net Cash
Proceeds of any such transaction.
(ii) EQUITY ISSUANCES. The Borrower shall prepay the Loans in the
manner set forth in clause (vi) below in amounts equal to fifty percent (50%) of
the aggregate Net Cash Proceeds from any Equity Issuance by Holdings or any of
its Subsidiaries other than the exercise price on stock options issued as part
of employee compensation; PROVIDED, that so long as no Event of Default has
occurred and is continuing, no prepayments shall be required from the Net Cash
Proceeds from Equity Issuances the proceeds of which are used (A) to finance a
Permitted Acquisition or (B) to redeem Senior Notes in an aggregate amount not
to exceed 35% of the original principal amount of the Senior Notes. Such
prepayment shall be made within three (3) Business Days after the date of
receipt of Net Cash Proceeds of any such transaction.
(iii) ASSET DISPOSITIONS. The Borrower shall prepay the Loans in the
manner set forth in clause (vi) below in amounts equal to one hundred percent
(100%) of the aggregate Net Cash Proceeds from any Asset Disposition permitted
pursuant to SECTION 11.5(f) by the Borrower or any of its Subsidiaries. Such
prepayments shall be made within three (3) Business Days after receipt of Net
Cash Proceeds of any such transaction by the Borrower or any of its
Subsidiaries; PROVIDED that, so long as no Default or Event of Default has
occurred and is continuing, no prepayments shall be required hereunder in
connection with Net Cash Proceeds from Asset Dispositions by the Borrower or any
of its Subsidiaries which are reinvested within one hundred eighty (180) days
after receipt of such Net Cash Proceeds by the Borrower or any of its
Subsidiaries in assets useful in the operation of the business; PROVIDED, that
if such Net Cash Proceeds are committed to be reinvested pursuant to a binding
commitment or binding contract for use of such proceeds within one hundred
eighty (180) days after receipt, no prepayments shall be required under this
clause (iii) so long as such Net Cash Proceeds are reinvested within two hundred
seventy (270) days after receipt of such Net Cash Proceeds by the Borrower or
any of its Subsidiaries in similar replacement assets.
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(iv) INSURANCE AND CONDEMNATION EVENTS. The Borrower shall prepay the
Loans in the manner set forth in clause (vi) below in amounts equal to one
hundred percent (100%) of the aggregate Net Cash Proceeds from any Insurance and
Condemnation Event by the Borrower or any of its Subsidiaries. Such prepayments
shall be made within three (3) Business Days after receipt of Net Cash Proceeds
of any such transaction by the Borrower or any of its Subsidiaries; PROVIDED
that, so long as no Default or Event of Default has occurred and is continuing,
no prepayments shall be required hereunder in connection with Net Cash Proceeds
from Insurance and Condemnation Events by the Borrower or any of its
Subsidiaries which are reinvested within one hundred eighty (180) days after
receipt of such Net Cash Proceeds by the Borrower or any of its Subsidiaries in
similar replacement assets; PROVIDED, that if such Net Cash Proceeds are
committed to be reinvested pursuant to a binding commitment or binding contract
for use of such proceeds within one hundred eighty (180) days after receipt, no
prepayments shall be required under this clause (iv) so long as such Net Cash
Proceeds are reinvested within two hundred seventy (270) days after receipt of
such Net Cash Proceeds by the Borrower or any of its Subsidiaries in similar
replacement assets.
(v) EXCESS CASH FLOW. No later than 90 days after the end of any
Fiscal Year (commencing with the Fiscal Year ending December 31, 2006), the
Borrower shall make mandatory principal prepayments of the Loans in the manner
set forth in clause (vi) below in an amount equal to (i) seventy five percent
(75%) of Excess Cash Flow, if any, for such Fiscal Year when the Consolidated
Leverage Ratio is 3.75 or greater, (ii) fifty percent (50%) of Excess Cash Flow,
if any, for such Fiscal Year when the Consolidated Leverage Ratio is 2.5 or
greater and (iii) zero percent (0%) of Excess Cash Flow when the Consolidated
Leverage Ratio is less than 2.5; PROVIDED that for the Fiscal Year ended
December 31, 2006, Excess Cash Flow shall be calculated only for the final two
fiscal quarters of such Fiscal Year.
(vi) NOTICE; MANNER OF PAYMENT. Upon the occurrence of any event
triggering the prepayment requirement under clauses (i) through (v) above, the
Borrower shall promptly deliver a Notice of Prepayment to the Administrative
Agent and upon receipt of such notice, the Administrative Agent shall promptly
so notify the Lenders. Each prepayment of the Loans under this Section shall be
applied as follows: FIRST, to reduce on a PRO RATA basis the remaining scheduled
principal installments of the Term Loans, pursuant to SECTION 4.3, second, to
the extent of any excess, to repay the Revolving Credit Loans pursuant to
SECTION 2.4(c) and third, to cash collateralize Letters of Credit by depositing
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts prepaid under the Term Loan pursuant to this Section may not be
reborrowed. Each prepayment shall be accompanied by any amount required to be
paid pursuant to SECTION 5.9.
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ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1. INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this Section,
at the election of the Borrower, (i) Revolving Credit Loans and the Term Loans
shall bear interest at (A) the Base Rate PLUS the Applicable Margin or (B) the
LIBOR Rate PLUS the Applicable Margin (PROVIDED that the LIBOR Rate shall not be
available for Loans made on the Effective Date until three (3) Business Days
after the Effective Date) and (ii) any Swingline Loan shall bear interest at the
Base Rate PLUS the Applicable Margin. The Borrower shall select the rate of
interest and Interest Period, if any, applicable to any Loan at the time a
Notice of Borrowing is given or at the time a Notice of Conversion/Continuation
is given pursuant to SECTION 5.2. Any Loan or any portion thereof as to which
the Borrower has not duly specified an interest rate as provided herein shall be
deemed a Base Rate Loan, and any LIBOR Rate Loan for which the Borrower fails to
specify an Interest Period shall be deemed to have an Interest Period of one
month.
(b) INTEREST PERIODS. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in SECTION 2.3 or 5.2, as
applicable, shall elect an interest period (each, an "INTEREST PERIOD") to be
applicable to such Loan, which Interest Period shall be a period of one (1), two
(2), three (3), or six (6) months; PROVIDED that:
(i) the Interest Period shall commence on the date of advance of or
conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence
on the date on which the immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with respect
to a LIBOR Rate Loan would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the immediately preceding
Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving Credit
Maturity Date or the Term Loan Maturity Date, as applicable, and Interest
Periods shall be selected by the Borrower so as to permit the Borrower to
make the quarterly principal installment payments pursuant to Section 4.3
without payment of any amounts pursuant to Section 5.9; and
(v) there shall be no more than ten (10) Interest Periods in effect
at any time.
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(c) DEFAULT RATE. Immediately upon the occurrence and during the
continuance of an Event of Default (i) under SECTION 12.1(a) and (b), all
overdue amounts in respect of outstanding Loans and other Obligations arising
hereunder or under any other Loan Document and (ii) under SECTION 12.1(I) and
(j), all amounts in respect of outstanding Loans and other Obligations arising
hereunder or under any other Loan Document, shall bear interest at a rate per
annum equal to two percent (2%) in excess of the rate then applicable to such
Loans or such other Obligations arising hereunder or under any other Loan
Document. Upon the occurrence and during the continuance of an Event of Default,
all outstanding LIBOR Rate Loans shall be converted to Base Rate Loans at the
end of the applicable Interest Period. Interest shall continue to accrue on the
Obligations after the filing by or against the Borrower of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
(d) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate Loan
shall be due and payable in arrears on the last Business Day of each calendar
quarter commencing September 30, 2005; and interest on each LIBOR Rate Loan
shall be due and payable on the last day of each Interest Period applicable
thereto, and if such Interest Period extends over three (3) months, at the end
of each three (3) month interval during such Interest Period. Interest on LIBOR
Rate Loans and all fees payable hereunder shall be computed on the basis of a
360-day year and assessed for the actual number of days elapsed and interest on
Base Rate Loans shall be computed on the basis of a 365/366-day year and
assessed for the actual number of days elapsed.
(e) MAXIMUM RATE. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest under this Agreement charged or
collected pursuant to the terms of this Agreement exceed the highest rate
permissible under any Applicable Law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that such
a court determines that the Lenders have charged or received interest hereunder
in excess of the highest applicable rate, the rate in effect hereunder shall
automatically be reduced to the maximum rate permitted by Applicable Law and the
Lenders shall at the Administrative Agent's option (i) promptly refund to the
Borrower any interest received by the Lenders in excess of the maximum lawful
rate or (ii) apply such excess to the principal balance of the Obligations on a
PRO RATA basis. It is the intent hereof that the Borrower not pay or contract to
pay, and that neither the Administrative Agent nor any Lender receive or
contract to receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may be paid by the Borrower under Applicable Law.
SECTION 5.2. NOTICE AND MANNER OF CONVERSION OR CONTINUATION OF LOANS.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time
following the third Business Day after the Effective Date all or any portion of
any outstanding Base Rate Loans (other than Swingline Loans) in a principal
amount equal to $1,000,000 or any whole multiple of $500,000 in excess thereof
into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest
Period, (i) convert all or any part of its outstanding LIBOR Rate Loans in a
principal amount equal to $500,000 or a whole multiple of $100,000 in excess
thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue such
LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert
or continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as EXHIBIT E (a
"NOTICE OF CONVERSION
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/CONTINUATION") not later than 11:00 a.m. three (3) Business Days before the day
on which a proposed conversion or continuation of such Loan is to be effective
specifying (A) the Loans to be converted or continued, (B) the effective date of
such conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate Loan.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 5.3. FEES.
(a) COMMITMENT FEE. Commencing on the Closing Date, the Borrower shall
pay to the Administrative Agent, for the account of the Revolving Credit
Lenders, a non-refundable commitment fee at a rate per annum equal to 0.50% on
the average daily unused portion of the Revolving Credit Commitment; PROVIDED,
that the amount of outstanding Swingline Loans shall not be considered usage of
the Revolving Credit Commitment for the purpose of calculating such commitment
fee. The commitment fee shall be payable in arrears on the last Business Day of
each calendar quarter during the term of this Agreement commencing September 30,
2005 and ending on the Revolving Credit Maturity Date. Such commitment fee shall
be distributed by the Administrative Agent to the Revolving Credit Lenders pro
rata in accordance with the Lenders' respective Revolving Credit Commitment
Percentages.
(b) ADMINISTRATIVE AGENT'S AND OTHER FEES. In order to compensate the
Administrative Agent for structuring and syndicating this Agreement and the
Lenders for their obligations hereunder, the Borrower agrees to pay to the
Administrative Agent, for the account of the Administrative Agent, the Lenders
and their Affiliates, any fees set forth in the Fee Letter.
SECTION 5.4. MANNER OF PAYMENT. Each payment by the Borrower on
account of the principal of or interest on the Loans or of any fee, commission
or other amounts (including the Reimbursement Obligation) payable to the Lenders
under this Agreement shall be made not later than 1:00 p.m. on the date
specified for payment under this Agreement to the Administrative Agent at the
Administrative Agent's Office for the account of the Lenders (other than as set
forth below) PRO RATA in accordance with their respective Commitment
Percentages, (except as specified below), in Dollars, in immediately available
funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 2:00 p.m. on such
day shall be deemed a payment on such date for the purposes of SECTION 12.1, but
for all other purposes shall be deemed to have been made on the next succeeding
Business Day. Any payment received after 2:00 p.m. shall be deemed to have been
made on the next succeeding Business Day for all purposes. Upon receipt by the
Administrative Agent of each such payment, the Administrative Agent shall
distribute to each Lender at its address for notices set forth herein its pro
rata share of such payment in accordance with such Lender's Commitment
Percentage, (except as specified below) and shall wire advice of the amount of
such credit to each Lender. Each payment to the Administrative Agent of the
Issuing Lender's fees or L/C Participants' commissions shall be made in like
manner, but for the account of the Issuing Lender or the L/C Participants, as
the case may be. Each payment to the Administrative Agent of Administrative
Agent's fees or expenses shall be made for the account of the Administrative
Agent and any amount payable to any Lender under SECTIONS 5.9, 5.10, 5.11 or
14.3 shall be paid to the Administrative Agent for the account of the applicable
Lender. Subject to SECTION
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5.1(b)(ii) if any payment under this Agreement shall be specified to be made
upon a day which is not a Business Day, it shall be made on the next succeeding
day which is a Business Day and such extension of time shall in such case be
included in computing any interest if payable along with such payment.
SECTION 5.5. EVIDENCE OF INDEBTEDNESS.
(a) EXTENSIONS OF CREDIT. The Extensions of Credit made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Extensions of Credit made
by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a
Revolving Credit Note, Term Note and/or Swingline Note, as applicable, which
shall evidence such Lender's Revolving Credit Loans, Term Loans or Swingline
Loans, as the case may be, in addition to such accounts or records. Each Lender
may attach schedules to its Notes and endorse thereon the date, amount and
maturity of its Loans and payments with respect thereto.
(b) PARTICIPATIONS. In addition to the accounts and records referred
to in subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swingline
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
SECTION 5.6. ADJUSTMENTS. If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
(other than pursuant to SECTIONS 5.9, 5.10, 5.11 or 14.3 hereof) greater than
its PRO RATA share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
PROVIDED that
(a) if any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and
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(b) the provisions of this paragraph shall not be construed to apply
to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in any of
its Loans or participations in Swingline Loans and Letters of Credit to any
assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this paragraph shall apply).
Each Credit Party consents to the foregoing and agrees, to the extent it may
effectively do so under Applicable Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against each
Credit Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Credit
Party in the amount of such participation.
SECTION 5.7. NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS OF
CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with SECTIONS 2.3(b) and 4.2, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, TIMES (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, TIMES (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in accordance
with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. If such Lender's Commitment Percentage of
such borrowing is not made available to the Administrative Agent by such Lender
within three (3) Business Days after such borrowing date, the Administrative
Agent shall be entitled to recover such amount made available by the
Administrative Agent with interest thereon at the rate per annum applicable to
Base Rate Loans hereunder, on demand, from the Borrower. The failure of any
Lender to make available its Commitment Percentage of any Loan requested by the
Borrower shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Commitment Percentage of such Loan available on the
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Commitment Percentage of such Loan available on the borrowing
date. Notwithstanding anything set forth herein to the contrary, any Defaulting
Lender shall not (a) have any voting or consent rights under or with respect to
any Loan Document or (b) constitute a "Lender" (or be included in the
calculation of Required Lenders hereunder) for any voting or consent rights
under or with respect to any Loan Document.
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SECTION 5.8. CHANGED CIRCUMSTANCES.
(a) CIRCUMSTANCES AFFECTING LIBOR RATE AVAILABILITY. If with respect
to any Interest Period the Administrative Agent or any Lender (after
consultation with the Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being quoted via the
Telerate Page 3750 or offered to the Administrative Agent or such Lender for
such Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Borrower. Thereafter, until the Administrative Agent notifies the
Borrower that such circumstances no longer exist, the obligation of the Lenders
to make LIBOR Rate Loans and the right of the Borrower to convert any Loan to or
continue any Loan as a LIBOR Rate Loan shall be suspended, and the Borrower
shall repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such LIBOR Rate Loan together with accrued interest
thereon, on the last day of the then current Interest Period applicable to such
LIBOR Rate Loan or convert the then outstanding principal amount of each such
LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period.
(b) LAWS AFFECTING LIBOR RATE AVAILABILITY. If, after the date hereof,
the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority shall make it unlawful or impossible for any of the Lenders (or any of
their respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to the Borrower and the other Lenders. Thereafter, until the Administrative
Agent notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrower may select only Base Rate Loans hereunder,
and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR
Rate Loan to the end of the then current Interest Period applicable thereto as a
LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately be converted
to a Base Rate Loan for the remainder of such Interest Period.
SECTION 5.9. INDEMNITY. The Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other funds acquired to
effect, fund or maintain any Loan (a) as a consequence of any failure by the
Borrower to make any payment when due of any amount due hereunder in connection
with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow,
continue or convert on a date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation, (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor or (d) as a consequence of the replacement of a Lender
pursuant to SECTION 5.12(b). The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for
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determining such amount or amounts necessary to compensate such Lender shall be
forwarded to the Borrower through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error.
SECTION 5.10. INCREASED COSTS.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or advances, loans or other credit
extended or participated in by, any Lender (except any reserve requirement
reflected in the LIBOR Rate) or the Issuing Lender;
(ii) subject any Lender or the Issuing Lender to any tax of any kind
whatsoever with respect to any Loan or any Letter of Credit made by it
under this Agreement, or change the basis of taxation of payments to such
Lender or the Issuing Lender in respect thereof (except for Indemnified
Taxes or Other Taxes which shall be solely indemnified by Section 5.11 or
the imposition of, or any change in the rate of any Excluded Tax payable by
such Lender or the Issuing Lender); or
(iii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition, cost or expense affecting LIBOR Rate
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making, converting into or maintaining any LIBOR Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or the Issuing Lender of issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the Issuing Lender hereunder in respect thereof (whether of principal,
interest or any other amount) then, upon written request of such Lender or the
Issuing Lender, the Borrower shall promptly pay to any such Lender or the
Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Lender, as the case may be, for such
additional costs incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Lender or the Issuing Lender
determines that any Change in Law affecting such Lender or the Issuing Lender or
any lending office of such Lender or such Lender's or the Issuing Lender's
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Lender's
capital or on the capital of such Lender's or the Issuing Lender's holding
company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the Issuing Lender, to a level
below that which such Lender or the Issuing Lender or such Lender's or the
Issuing Lender's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Lender's policies and
the policies of such Lender's or the Issuing Lender's holding company with
respect to capital adequacy),
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then from time to time upon written request of such Lender or such Issuing
Lender the Borrower shall promptly pay to such Lender or the Issuing Lender, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Lender or such Lender's or the Issuing Lender's holding
company for any such reduction suffered.
(c) CERTIFICATES FOR REIMBURSEMENT. A certificate of a Lender or the
Issuing Lender setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or
the Issuing Lender, as the case may be, the amount shown as due on any such
certificate within ten (10) days after receipt thereof.
(d) DELAY IN REQUESTS. Failure or delay on the part of any Lender or
the Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; PROVIDED that the Borrower shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than six (6) months prior
to the date that such Lender or the Issuing Lender, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Lender's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six- (6) month period
referred to above shall be extended to include the period of retroactive effect
thereof).
SECTION 5.11. TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on account of
any obligation of any Credit Party hereunder or under any other Loan Document
shall be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes; PROVIDED that if any Credit Party shall be
required by Applicable Law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Lender, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
applicable Credit Party shall make such deductions and (iii) the applicable
Credit Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with Applicable Law.
(b) PAYMENT OF OTHER TAXES BY THE BORROWER. Without limiting the
provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes
to the relevant Governmental Authority in accordance with Applicable Law.
(c) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Lender for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
payable by the Administrative Agent, such Lender or the Issuing Lender, as the
case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other
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Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. Such indemnification shall be paid within ten (10) days from the date
on which the Borrower receives written demand therefore specifying in reasonable
detail the nature and amount of such Indemnified Taxes or Other Taxes. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Lender, shall be conclusive absent manifest error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) STATUS OF LENDERS. Any Foreign Lender shall, to the extent it is
legally entitled to do so, deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to
the date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a bank within
the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a controlled foreign corporation described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by Applicable Law as a basis for
claiming exemption from or a reduction in United States federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by Applicable Law to permit the Borrower to determine the
withholding or deduction required to be made.
To the extent it is legally entitled to do so, any Lender that is a
U.S. person (as that term is defined in Section 7701(a)(30) of the Code), other
than a Lender that may be treated as an exempt recipient based on the indicators
described in Treas. Reg. Section 1.6049-4(c)(1)(ii), hereby agrees that it
shall, no later than the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or the Administrative Agent, but only if such Lender is legally
entitled to do so), deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested
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by the recipient) duly completed copies of Internal Revenue Service Form W-9 or
successor form, certifying that such Lender is on the date of delivery thereof
entitled to an exemption from United States backup withholding tax on payments
made hereunder.
(f) TREATMENT OF CERTAIN REFUNDS. If the Administrative Agent, a
Lender or the Issuing Lender receives a refund of any Indemnified Taxes or Other
Taxes (as determined by the Lender in its sole good faith discretion) as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to
the Borrower an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section
with respect to the Indemnified Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such
Lender or the Issuing Lender, as the case may be, paid in connection with
obtaining such refund, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); PROVIDED that the
Borrower, upon the request of the Administrative Agent, such Lender or the
Issuing Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the Issuing Lender in the
event the Administrative Agent, such Lender or the Issuing Lender is required to
repay such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent, any Lender or the Issuing Lender
to make available its tax returns (or any other information relating to its
taxes which it deems confidential) to the Borrower or any other Person.
Notwithstanding anything to the contrary, in no event will any Lender be
required to pay any amount to the Borrower the payment of which would place such
Lender in a less favorable net after-tax position than such Lender would have
been in if the Indemnified Taxes or Other Taxes giving rise to the additional
amounts or indemnification payments in question had never been imposed in the
first instance.
(g) SURVIVAL. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section shall survive the payment in full of the Obligations
and the termination of the Commitments.
SECTION 5.12. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender requests
compensation under SECTION 5.10, or requires the Borrower to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to SECTION 5.11, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to SECTION
5.10 or SECTION 5.11, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) REPLACEMENT OF LENDERS. If any Lender requests compensation under
SECTION 5.10, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental
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Authority for the account of any Lender pursuant to SECTION 5.11, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, SECTION 14.10), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); PROVIDED that
(i) the Borrower shall have paid to the Administrative Agent the
assignment fee, if any, specified in Section 14.10(b),
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of Credit,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under
Section 5.9) from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other
amounts),
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 5.10 or payments required to be made pursuant to
Section 5.11, such assignment will result in a reduction in such
compensation or payments thereafter,
(iv) such assignment does not conflict with Applicable Law, and
(v) a Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 5.13. SECURITY. The Obligations of the Borrower shall be
secured as provided in the Security Documents.
ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1. CLOSING. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP at 10:00 a.m. on May 3, 2006, or on such other place,
date and time as the parties hereto shall mutually agree.
SECTION 6.2A CLOSING DATE. The obligation of any Original Lender to
make a Credit Extension on the Closing Date was subject to the satisfaction, or
waiver in accordance with Section 10.5 of the Original First Lien Credit
Agreement, of all of the conditions precedent set forth in Section 3.1 of the
Original First Lien Credit Agreement.
SECTION 6.2B CONDITIONS ON EFFECTIVE DATE. The obligation of the
Lenders to close this Agreement and to make the Term Loans is subject to the
satisfaction of each of the following conditions:
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(a) EXECUTED LOAN DOCUMENTS. This Agreement, a Revolving Credit Note
in favor of each Lender requesting a Revolving Credit Note, a Term Note in
favor of each Lender requesting a Term Note, a Swingline Note in favor of
the Swingline Lender (if requested thereby), the Security Documents, the
Guaranty Agreement, together with any other applicable Loan Documents,
shall have been duly authorized, executed and delivered to the
Administrative Agent by the parties thereto, shall be in full force and
effect and no Default or Event of Default shall exist hereunder or
thereunder.
(b) CLOSING CERTIFICATES; ETC. The Administrative Agent shall have
received each of the following in form and substance reasonably
satisfactory to the Administrative Agent:
(i) OFFICER'S CERTIFICATE OF THE BORROWER. A certificate from a
Responsible Officer signed on behalf of the Borrower to the effect
that all representations and warranties of the Borrower contained in
this Agreement and the other Loan Documents that are subject to
materiality or Material Adverse Effect qualifications are true,
correct and complete in all respects and all such representations and
warranties that are not subject to materiality or Material Adverse
Effect qualification are true, correct and complete in all material
respects; that none of the Credit Parties is in violation of any of
the covenants contained in this Agreement and the other Loan
Documents; that, after giving effect to the transactions contemplated
by this Agreement, no Default or Event of Default has occurred and is
continuing; and that each of the Credit Parties, as applicable, has
satisfied each of the conditions set forth in Section 6.2B and Section
6.3.
(ii) CERTIFICATE OF SECRETARY OF EACH CREDIT PARTY. A certificate
of a Responsible Officer signed on behalf of each Credit Party
certifying as to the incumbency and genuineness of the signature of
each officer of such Credit Party executing Loan Documents to which it
is a party and certifying that attached thereto is a true, correct and
complete copy of (A) the Organizational Documents of such Credit
Party, certified as of a recent date by the appropriate Governmental
Authority in its jurisdiction of organization, (B) resolutions duly
adopted by the board of directors or other governing body of such
Credit Party authorizing the transactions contemplated hereunder and
the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party, and (C) each certificate
required to be delivered pursuant to SECTION 6.2B(b)(iii).
(iii) CERTIFICATES OF GOOD STANDING. Certificates as of a recent
date of the good standing of each Credit Party under the laws of its
jurisdiction of organization and, to the extent requested by the
Administrative Agent, each other jurisdiction where such Credit Party
is qualified to do business.
(iv) OPINIONS OF COUNSEL. Favorable opinions of counsel to the
Credit Parties addressed to the Administrative Agent and the Lenders
as to such matters with respect to the Credit Parties and the Loan
Documents as are customary for transactions of this type and as the
Lenders shall reasonably request.
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(v) TAX FORMS. Copies of the United States Internal Revenue
Service forms required by Section 5.11(e).
(vi) SOLVENCY. The Administrative Agent shall have received a
certificate dated the Effective Date and signed by the acting senior
financial director of Borrower certifying that the Credit Parties are,
and after giving effect to the WRG Acquisition and the Amendment
Transactions will be, Solvent.
(c) PERSONAL PROPERTY COLLATERAL.
(i) FILINGS AND RECORDINGS. The Administrative Agent shall have
received all filings, recordations, control agreements and any other
agreements and instruments that are necessary to perfect the security
interests of the Administrative Agent, on behalf of itself and the
Lenders, in the Collateral and the Administrative Agent shall have
received evidence reasonably satisfactory to the Administrative Agent
that upon such filings and recordations such security interests
constitute valid and perfected first priority Liens thereon, subject
only to Permitted Liens.
(ii) PLEDGED COLLATERAL. The Administrative Agent shall have
received (A) original stock certificates evidencing the Capital Stock
pledged pursuant to the Security Documents, together with an undated
stock power for each such certificate duly executed in blank by the
registered owner thereof and (B) each original promissory note pledged
pursuant to the Security Documents.
(iii) LIEN SEARCH. The Administrative Agent shall have received
the results of a Lien search (including a search as to judgments,
pending litigation and tax matters), in form and substance reasonably
satisfactory thereto, made against the Credit Parties in any Uniform
Commercial Code filings office (or applicable judicial docket) as in
effect in any state in which the jurisdiction of incorporation or any
of the assets of such Credit Party are located, indicating among other
things that its assets are free and clear of any Lien except for
Permitted Liens.
(iv) HAZARD AND LIABILITY INSURANCE. The Administrative Agent
shall have received certificates of property hazard, business
interruption and liability insurance, evidence of payment of all
insurance premiums for the current policy year of each (naming the
Administrative Agent as loss payee (and mortgagee, as applicable) on
all certificates for property hazard insurance and as additional
insured on all certificates for liability insurance), and, if
requested by the Administrative Agent, copies of insurance policies in
the form required under the Security Documents and otherwise in form
and substance reasonably satisfactory to the Administrative Agent.
(d) CONSENTS; DEFAULTS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. The Credit Parties
shall have received all material governmental, shareholder and third
party consents and approvals necessary in connection with the
transactions contemplated by this
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Agreement and the other Loan Documents and all applicable waiting
periods shall have expired without any action being taken by any
Person that could reasonably be expected to restrain, prevent or
impose any material adverse conditions on any of the Credit Parties or
such transactions or that could seek or threaten any of the foregoing,
and no law or regulation shall be applicable which in the reasonable
judgment of the Administrative Agent could reasonably be expected to
have such effect.
(ii) NO INJUNCTION, ETC. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any Governmental Authority to enjoin, restrain, or
prohibit, or to obtain substantial damages in respect of, this
Agreement or the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby.
(e) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Administrative Agent and the
Lenders shall have received, in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders, (i) copies
of audited financial statements for each of Holdings and its
Subsidiaries and Target and its Subsidiaries for the three fiscal
years ended December 25, 2005 and December 29, 2005, respectively, and
interim unaudited financial statements for each monthly and quarterly
period ended since December 25, 2005 or December 29, 2005, as the case
may be, for which such statements are available prior to the Effective
Date, (ii) PRO FORMA financial statements of Holdings and its
Subsidiaries for the Fiscal Year ended December 25, 2005, after giving
effect to the WRG Acquisition and the Amendment Transactions (prepared
in accordance with Regulation S-X and the SEC's rules and including
Pro Forma Cost Savings and other adjustments deemed appropriate by the
Administrative Agent in its sole discretion) and (iii) annual
forecasts prepared by management of balance sheets, income statements
and cashflow statements of Holdings and its subsidiaries for the term
of this Agreement (and which shall not be inconsistent in any material
and adverse respect with information provided to the Administrative
Agent prior hereto).
(ii) FINANCIAL CONDITION CERTIFICATE. The Borrower shall have
delivered to the Administrative Agent and the Lenders a certificate,
in form and substance reasonably satisfactory to the Administrative
Agent, and certified as accurate by a Responsible Officer (signing on
behalf of the Borrower), that (A) the Borrower's material payables are
current and not past due and (B) the financial projections previously
delivered to the Administrative Agent and the Lenders represent the
good faith estimates (utilizing reasonable assumptions) of the
financial condition and operations of the Borrower and its
Subsidiaries (it being recognized that actual results may differ from
the projected results by a material amount).
(iii) CONSOLIDATED LEVERAGE RATIO AND PRO FORMA EBITDA. The
Borrower shall have delivered to the Administrative Agent and the
Lenders a certificate, in form and substance reasonably satisfactory
to the Administrative Agent,
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and certified as accurate by a Responsible Officer (signing on behalf
of the Borrower), that after giving PRO FORMA effect to the WRG
Acquisition, the initial funding of the Loans and the consummation of
the other elements of the Amendment Transactions, (i) the ratio of
aggregate total funded debt (including capital leases) of Holdings and
its Subsidiaries to pro forma EBITDA for the Fiscal Year ended
December 25, 2005 (calculated in the manner set forth in the
Confidential Information Memorandum) does not exceed 5.0:1.0, (ii) the
Consolidated Leverage Ratio (as defined in the Senior Notes Documents)
does not exceed 5.0:1.0 and (iii) the pro forma EBITDA (calculated in
the manner set forth in the Confidential Information Memorandum) of
Holdings and its Subsidiaries for the Fiscal Year ended December 25,
2005 is not less than $60,000,000.
(iv) PAYMENT AT CLOSING; FEE LETTERS. The Borrower shall have
paid to the Administrative Agent and the Lenders the fees set forth or
referenced in SECTION 5.3 and any other accrued and unpaid fees or
commissions due hereunder (including, without limitation, reasonable
legal fees and out of pocket expenses contemplated by SECTION
6.2B(g)(iv)) and to any other Person such amount as may be due thereto
in connection with the transactions contemplated hereby, including all
taxes, fees and other charges in connection with the execution,
delivery, recording, filing and registration of any of the Loan
Documents.
(f) OTHER TRANSACTIONS.
(i) ACQUISITION. The WRG Acquisition shall have been consummated
as contemplated in the Stock Purchase Agreement and all conditions
precedent to the consummation of the WRG Acquisition shall have been
satisfied or, with the prior written approval of the Administrative
Agent and the Lenders, waived. All existing equity interests in Target
shall be exchanged for equity interests in TRC Holding, LLC and no
equityholder in Target and no Permitted Holder or any of their
Affiliates shall receive consideration in connection with the
Amendment Transactions or the WRG Acquisition other than equity
interests in TRC Holding, LLC.
(g) MISCELLANEOUS.
(i) EXISTING TARGET INDEBTEDNESS. All of Target's existing
indebtedness (except for any such indebtedness listed on SCHEDULE
7.1(t)) shall be repaid in full (except that outstanding letters of
credit may be supported by Letters of Credit under this Agreement) and
terminated and all collateral security therefor shall be released, and
the Administrative Agent shall have received any pay-off letters in
form and substance reasonably satisfactory to it evidencing such
repayment, termination, reconveyance and release.
(ii) RATINGS. This Agreement and the Loans hereunder shall have
received a debt rating from ▇▇▇▇▇'▇ and from S&P.
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(iii) FEES. The Arranger and Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses (including the reasonable legal
fees and out-of-pocket expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special counsel to the Administrative Agent, and the reasonable fees
and expenses of any local counsel, foreign counsel, appraisers,
consultants and other advisors) required to be reimbursed or paid by
Borrower hereunder or under any other Loan Document.
(iv) OTHER DOCUMENTS. All opinions, certificates and other
instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in
form and substance to the Administrative Agent. The Administrative
Agent shall have received copies of all other documents, certificates
and instruments reasonably requested thereby, with respect to the
transactions contemplated by this Agreement.
SECTION 6.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT. The obligations of
the Lenders to make any Extensions of Credit (including the initial Extension of
Credit), convert or continue any Loan and/or the Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, continuation, conversion,
issuance or extension date:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article VII that are subject to
materiality or Material Adverse Effect qualifications, shall be true,
correct and complete on and as of such borrowing, continuation, conversion,
issuance, or extension date, and the representations and warranties that
are not subject to materiality or Material Adverse Effect qualifications,
shall be true and correct in all material respects on and as of such
borrowing, continuation, conversion, issuance or extension date in each
case, with the same effect as if made on and as of such date, except for
any representation and warranty made as of an earlier date, which
representation and warranty shall remain true, correct and complete in such
respects as of such earlier date.
(b) NO EXISTING DEFAULT. No Default or Event of Default shall have
occurred and be continuing (i) on the borrowing, continuation or conversion
date with respect to such Loan or after giving effect to the Loans to be
made, continued or converted on such date or (ii) on the issuance or
extension date with respect to such Letter of Credit or after giving effect
to the issuance or extension of such Letter of Credit on such date.
(c) NOTICES. The Administrative Agent shall have received a Notice of
Borrowing, a Letter of Credit Application or a Notice of
Conversion/Continuation, as applicable, from the Borrower in accordance
with SECTION 2.3(a), SECTION 4.2 or and SECTION 5.2.
(d) ADDITIONAL DOCUMENTS. The Administrative Agent shall be entitled,
but not obligated, to request in writing and receive, prior to the making
of any Extension of Credit, additional documentary information reasonably
satisfactory to the Administrative
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Agent confirming the satisfaction of any of the foregoing conditions in
this SECTION 6.3 if, in the good faith judgment of Administrative Agent,
such request is warranted under the circumstances.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 7.1. REPRESENTATIONS AND WARRANTIES. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Extensions of Credit, each Credit Party hereby represents and
warrants to the Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:
(a) ORGANIZATION; POWER; QUALIFICATION. Each Credit Party (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, (ii) has the power and
authority to own its properties and to carry on its business as now being
and hereafter proposed to be conducted and (iii) is duly qualified and
authorized to do business in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification
and authorization except in jurisdictions where the failure to be so
qualified or in good standing could not reasonably be expected to result in
a Material Adverse Effect. The jurisdictions in which the Credit Parties
are organized and qualified to do business as of the Effective Date are
described on SCHEDULE 7.1(a).
(b) OWNERSHIP. Each Subsidiary of Holdings as of the Effective Date is
listed on SCHEDULE 7.1(b). As of the Effective Date, the capitalization of
Holdings and its Subsidiaries consists of the number of shares, authorized,
issued and outstanding, of such classes and series, with or without par
value (or, in the case of a Subsidiary that is a limited liability company,
number of units issued and percentage of ownership), described on SCHEDULE
7.1(b). All outstanding shares or other ownership interests as of the
Effective Date have been duly authorized and validly issued and are fully
paid and nonassessable, with no personal liability attaching to the
ownership thereof, and not subject to any preemptive or similar rights,
except as described in SCHEDULE 7.1(b). The shareholders or beneficial
owners of Holdings and its Subsidiaries and the number of shares (or
percentage of ownership) owned by each as of the Effective Date are
described on SCHEDULE 7.1(b). As of the Effective Date, there are no
outstanding stock purchase warrants, subscriptions, options, securities,
instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the
issuance of Capital Stock of Holdings or its Subsidiaries, except as
described on SCHEDULE 7.1(b).
(c) AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING. Each
Credit Party has the right, power and authority to execute, deliver and
perform, and has taken all necessary corporate, company or other action to
authorize the execution, delivery and performance of this Agreement and
each of the other Loan Documents to which it is a party in accordance with
their respective terms. This Agreement and each of the other Loan Documents
have been duly executed and delivered by the duly authorized officers
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of each Credit Party that is party thereto, and each such document
constitutes the legal, valid and binding obligation of each such Credit
Party to the extent party thereto, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal debtor
relief laws from time to time in effect which affect the enforcement of
creditors' rights in general and the availability of equitable remedies.
(d) COMPLIANCE OF AGREEMENT, LOAN DOCUMENTS AND BORROWING WITH LAWS,
ETC. The execution, delivery and performance by Holdings and its
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the Extensions of Credit hereunder
and the transactions contemplated hereby do not and will not, by the
passage of time, the giving of notice or otherwise, (i) require any
Governmental Approval or violate any Applicable Law relating to Holdings or
any of its Subsidiaries where the failure to obtain such Governmental
Approval or such violation of Applicable Law could reasonably be expected
to have a Material Adverse Effect, (ii) conflict with, result in a breach
of or constitute a default under the Organizational Documents of any Credit
Party, (iii) conflict with, result in a breach of or constitute a default
under any material indenture, agreement or other instrument to which such
Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, in each case, which could
reasonably be expected to have a Material Adverse Effect, (iv) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person other than
Permitted Liens or (v) require any consent or authorization of, filing
with, or other act in respect of, an arbitrator or Governmental Authority
or consent of any other Person other than consents, authorizations, filings
or other acts or consents already obtained and in full force and effect, or
which the failure to obtain or make could not reasonably be expected to
have a Material Adverse Effect, and other than consents or filings under
the UCC.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Except for
Environmental Laws and Environmental Permits exclusively set forth in
SECTION 7.1(h) hereof, each Credit Party (i) has all Governmental Approvals
required by any Applicable Law for it to conduct its business, each of
which is in full force and effect, is final and not subject to review on
appeal and is not the subject of any pending or, to the best of its
knowledge, threatened attack by direct or collateral proceeding, (ii) is in
compliance with each Governmental Approval applicable to it and in
compliance with all other Applicable Laws relating to it or any of its
respective properties and (iii) has timely filed all material reports,
documents and other materials required to be filed by it under all
Applicable Laws with any Governmental Authority and has retained all
material records and documents required to be retained by it under
Applicable Law except in each case (i), (ii) or (iii) where the failure to
have, comply, file or retain could not reasonably be expected to have a
Material Adverse Effect.
(f) TAX RETURNS AND PAYMENTS. Each Credit Party has timely and duly
filed or caused to be filed all federal, and all material state, local and
other Tax returns required by Applicable Law to be filed, and has timely
paid, or made adequate provision for the payment of, all federal, state,
local and other Taxes upon it and its property, income, profits and assets
which are due and payable, except where such Taxes are being contested in
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good faith and by appropriate proceedings (where such proceedings stay the
sale or forfeiture of any portion of the Collateral) and where adequate
reserves are maintained to the extent required by GAAP. Such returns
accurately reflect in all material respects all liability for Taxes of each
Credit Party for the periods covered thereby. There is no ongoing or
proposed audit or examination or, to the knowledge of Holdings or the
Borrower, other investigation by any Governmental Authority of the Tax
liability of any Credit Party. Neither the Borrower nor any subsidiary
thereof has ever been a party to a "listed transaction" within the meaning
of Treas. Reg. Section 1.6011-4(b)(2), except as would not be reasonably
expected to, individually or in the aggregate, result in a Material Adverse
Effect.
(g) INTELLECTUAL PROPERTY MATTERS. Each Credit Party owns or possesses
rights to use all material franchises, licenses, copyrights, copyright
applications, patents, patent rights or licenses, patent applications,
trademarks, trademark rights, service ▇▇▇▇, service ▇▇▇▇ rights, trade
names, trade name rights, copyrights and other rights with respect to the
foregoing which are reasonably necessary to conduct its business. No event
has occurred which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such rights, and no Credit
Party is liable to any Person for infringement under Applicable Law with
respect to any such rights as a result of its business operations, except
revocations, terminations and liability which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(h) ENVIRONMENTAL MATTERS.
(i) Except as set forth in SCHEDULE 7.1(h)(i) and except as,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect:
(A) The Borrower and its Subsidiaries and their businesses,
operations and properties owned, operated and leased are in compliance
with, and have no liability under, any applicable Environmental Law;
(B) The Borrower and its Subsidiaries have obtained all
Environmental Permits required for the conduct of their businesses and
operations, and the ownership, operation and use of their property,
under Environmental Law, and all such Environmental Permits are valid
and in good standing;
(C) There has been no Release or threatened Release of Hazardous
Material on, at, under or from any property or facility presently or,
to the knowledge of the Borrower or its Subsidiaries, formerly owned,
leased or operated by the Borrower and its Subsidiaries or their
predecessors in interest, that could result in liability or violation
by the Borrower and its Subsidiaries under any applicable
Environmental Law; and
(D) There is no Environmental Claim pending or, to the knowledge
of the Borrower threatened, against the Borrower and its Subsidiaries
or relating to the property currently or, to the knowledge of the
Borrower and its Subsidiaries, formerly owned, leased or operated by
the Borrower and its Subsidiaries or their
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predecessors in interest or relating to the operations of the Borrower
and its Subsidiaries, and there are no actions, activities,
circumstances, conditions, events or incidents that could form the
basis of such an Environmental Claim;
(E) None of the Borrower or any of its Subsidiaries is obligated
to perform any action or otherwise incur any expense under
Environmental Law pursuant to any order, decree, judgment or agreement
by which it is bound or has assumed by contract, agreement or
operation of law, and no Company is conducting or financing any
investigation, remediation or other corrective action pursuant to any
Environmental Law at any other location; and
(F) No property or facility owned, operated or leased by the
Borrower and its Subsidiaries and, to the knowledge of the Borrower,
no Real Property or facility formerly owned, operated or leased by the
Borrower and its Subsidiaries or their predecessors in interest is (i)
listed or proposed for listing on the National Priorities List
promulgated pursuant to CERCLA or (ii) listed on the Comprehensive
Environmental Response, Compensation and Liability Information System
promulgated pursuant to CERCLA or (iii) included on any similar list
maintained by any Governmental Authority including any such list
relating to petroleum;
(ii) Except as set forth in SCHEDULE 7.1(h)(ii):
(A) No Lien has been recorded or, to the knowledge of any
Borrower or any of its Subsidiaries, threatened under any
Environmental Law with respect to any property or other assets
currently owned, operated or leased by any of them;
(B) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not
require any notification, registration, filing, reporting, disclosure,
investigation, remediation or cleanup pursuant to any applicable
Environmental Law; and
(C) The Borrower and its Subsidiaries have made available to the
Lenders all material records and files in the possession, custody or
control of, or otherwise reasonably available to, them concerning
actual or potential compliance with or liability under Environmental
Law of any of them or any of their respective predecessors in
interest, including those concerning the actual or suspected existence
of Hazardous Material at Real Property or facilities currently or
formerly owned, operated, leased or used by the Borrower or any of its
Subsidiaries.
(i) ERISA.
(i) As of the Effective Date, the Borrower and its Subsidiaries
do not maintain or contribute to, or have any obligation under, any
Employee Benefit Plans other than those identified on SCHEDULE 7.1(i);
(ii) The Borrower is in material compliance with all applicable
provisions of ERISA and the regulations and published interpretations
thereunder with
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respect to all Employee Benefit Plans except for any required
amendments for which the remedial amendment period as defined in
Section 401(b) of the Code has not yet expired and except where a
failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Each Employee Benefit Plan that is intended
to be qualified under Section 401(a) of the Code has been determined
by the Internal Revenue Service to be so qualified, and each trust
related to such plan has been determined to be exempt under Section
501(a) of the Code except for such plans that have not yet received
determination letters but for which the remedial amendment period for
submitting a determination letter has not yet expired. No liability
has been incurred by the Borrower which remains unsatisfied for any
taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan except for a liability that could not reasonably be
expected to have a Material Adverse Effect;
(iii) Except where the failure of any of the following
representations to be correct in all material respects could not
reasonably be expected to have a Material Adverse Effect, as of the
Closing Date, no Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412
of the Code), nor has any funding waiver from the Internal Revenue
Service been received or requested with respect to any Pension Plan,
nor has the Borrower or any ERISA Affiliate failed to make any
contributions or to pay any amounts due and owing as required by
Section 412 of the Code, Section 302 of ERISA or the terms of any
Pension Plan prior to the due dates of such contributions under
Section 412 of the Code or Section 302 of ERISA, nor has there been
any event requiring any disclosure under Section 4041(c)(3)(C) or
4063(a) of ERISA with respect to any Pension Plan;
(iv) Except where the failure of any of the following
representations to be correct in all material respects could not
reasonably be expected to have a Material Adverse Effect, neither the
Borrower nor, with respect to clauses (B), (C) or (D), any ERISA
Affiliate has: (A) engaged in a nonexempt prohibited transaction
described in Section 406 of ERISA or Section 4075 of the Code, (B)
incurred any liability to the PBGC which remains outstanding other
than the payment of premiums and there are no premium payments which
are due and unpaid, (C) failed to make a required contribution or
payment to a Multiemployer Plan, or (D) failed to make a required
installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected
to occur;
(vi) Except where the failure of any of the following
representations to be correct in all material respects could not
reasonably be expected to have a Material Adverse Effect, no
proceeding, claim (other than a benefits claim
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in the ordinary course of business), lawsuit and/or investigation is
existing or, to the best knowledge of the Borrower threatened
concerning or involving any Employee Benefit Plan; and
(vii) The present value of all accumulated benefit obligations of
all underfunded Pension Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of all such
underfunded Pension Plans by an amount that could reasonably be
expected to have a Material Adverse Effect.
(j) MARGIN STOCK. No Credit Party is engaged principally or as one of
its activities in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" (as each such term is defined
or used, directly or indirectly, in Regulation U of the Board of Governors
of the Federal Reserve System). No part of the proceeds of any of the Loans
or Letters of Credit will be used for purchasing or carrying margin stock
or for any purpose which violates, or which would be inconsistent with, the
provisions of Regulation T, U or X of such Board of Governors.
(k) GOVERNMENT REGULATION. Neither Holdings nor any Subsidiary thereof
is an "investment company" or a company "controlled" by a " registered
investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended).
(l) MATERIAL CONTRACTS. SCHEDULE 7.1(l) sets forth a complete and
accurate list of all Material Contracts of Holdings and its Subsidiaries in
effect as of the Effective Date; other than as set forth in SCHEDULE
7.1(l), each such Material Contract, to the knowledge of the Borrower, is,
and after giving effect to the consummation of the transactions
contemplated by the Loan Documents will be, in full force and effect in
accordance with the terms thereof. To the extent requested by the
Administrative Agent and the Lenders, Holdings and its Subsidiaries have
delivered to the Administrative Agent a true and complete copy of each
Material Contract required to be listed on SCHEDULE 7.1(L). Neither
Holdings nor any Subsidiary (nor, to the knowledge of the Borrower, any
other party thereto) is in breach of or in default under any Material
Contract in any material respect.
(m) EMPLOYEE RELATIONS. Neither Holdings nor any of its Subsidiaries
are party to any collective bargaining agreement nor has any labor union
been recognized as the representative of its employees. The Borrower knows
of no pending, threatened or contemplated strikes, work stoppage or other
collective labor disputes involving its employees or those of its
Subsidiaries that could reasonably be expected to have a Material Adverse
Effect.
(n) BURDENSOME PROVISIONS. No Credit Party is party to any material
agreement or instrument or otherwise subject to any restriction or
encumbrance that restricts or limits its ability to make dividend payments
or other distributions in respect of its Capital
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Stock to the Borrower or any Subsidiary or to transfer any of its assets or
properties to the Borrower or any other Subsidiary in each case other than
existing under or by reason of the Loan Documents, the Senior Note
Documents, Applicable Law or as permitted by SECTION 11.11.
(o) FINANCIAL STATEMENTS. The (i) audited financial statements
delivered pursuant to SECTION 8.1(b) and (ii) unaudited financial
statements delivered pursuant to SECTION 8.1(a), are complete and correct
and fairly present in all material respects on a Consolidated basis the
assets, liabilities and financial position of the Borrower and its
Subsidiaries as at such dates, and the results of the operations and
changes of financial position for the periods then ended (other than
customary year-end adjustments for unaudited financial statements). All
such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP. Such financial
statements show all material indebtedness and other material liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including material liabilities for taxes, material commitments,
and Indebtedness, in each case, to the extent required to be disclosed
under GAAP. The annual business plan and projections delivered pursuant to
SECTION 8.1(c) were prepared in good faith on the basis of the assumptions
stated therein, which assumptions are believed to be reasonable in light of
then existing conditions, it being recognized that actual results may
differ from the projected results by a material amount.
(p) NO MATERIAL ADVERSE CHANGE. Since December 25, 2005 (and, on the
Effective Date, with respect to WRG and its subsidiaries, since December
29, 2005), there has been no Material Adverse Effect.
(q) SOLVENCY. As of the Effective Date and after giving effect to each
Extension of Credit made hereunder, Holdings and each of its Subsidiaries
will be Solvent.
(r) PROPERTIES.
(i) Titles to Properties. Each of Holdings and its Subsidiaries
has good title to the Real Property owned or a valid leasehold in the
Real Property leased by it as is necessary or desirable to the conduct
of its business as currently conducted and valid and legal title to
all of its personal property and assets, including, but not limited
to, those reflected on the balance sheets of the Borrower and its
Subsidiaries delivered pursuant to Section 7.1(o), except those which
have been disposed of by Holdings or its Subsidiaries subsequent to
such date in the ordinary course of business or as otherwise expressly
permitted hereunder.
(ii) The property of the Holdings and its Subsidiaries, taken as
a whole, (x) is in good operating order, condition and repair
(ordinary wear and tear excepted) and (y) constitutes all the property
which is required for the business and operations of the Holdings and
any Subsidiary as presently conducted.
(iii) Real Property. Schedules 8(a) and 8(b) to the Perfection
Certificate dated the Effective Date contain a true and complete list
of each interest in Real Property
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(i) owned by Holdings and any Subsidiary as of the date hereof and
describes the type of interest therein held by Holding and each
Subsidiary and whether such owned Real Property is leased and if
leased whether the underlying Lease contains any option to purchase
all or any portion of such Real Property or any interest therein or
contains any right of first refusal relating to any sale of such Real
Property or any portion thereof or interest therein and (ii) leased,
subleased or otherwise occupied or utilized by Holding or any
Subsidiary, as lessee, sublessee, franchisee or licensee, as of the
date hereof and describes the type of interest therein held by
Holdings or any Subsidiary and, whether any Lease requires the consent
of the landlord or tenant thereunder, or other party thereto, to the
Transactions or the Amendment Transactions.
(iv) No Casualty Event. Except as set forth on Schedule 7.1(r),
no Credit Party has received any notice of, nor has any knowledge of,
the occurrence or pendency or contemplation of any Casualty Event
affecting all or any portion of its property, except for any Casualty
Event, written notice of which has been given to the Administrative
Agent or which could not reasonably be expected to have a Material
Adverse Effect. Based on the Federal Emergency Agency Standard Flood
Hazard Determination required pursuant to Section 9.15(a)(i)(C)
hereto, no Mortgage encumbers improved Real Property that is located
in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards within the
meaning of the National Flood Insurance Act of 1968 unless flood
insurance available under such Act has been obtained in accordance
with Section 9.3.
(s) LIENS. None of the properties and assets of Holdings or any
Subsidiary is subject to any Lien, except Permitted Liens. Neither Holdings
nor any Subsidiary thereof has signed any financing statement or any
security agreement authorizing any secured party thereunder to file any
financing statement, except to perfect Permitted Liens.
(t) INDEBTEDNESS AND GUARANTY OBLIGATIONS. SCHEDULE 7.1(t) is a
complete and correct listing of all Indebtedness and Guaranty Obligations
of Holdings and its Subsidiaries as of the Effective Date in excess of
$1,000,000, after giving effect to the WRG Acquisition, the Amendment
Transactions and the application of the proceeds therefrom. Holdings and
its Subsidiaries have performed and are in compliance with all of the
material terms of such Indebtedness and Guaranty Obligations and all
instruments and agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of time or both
would constitute such a default or event of default on the part of Holdings
or any of its Subsidiaries exists with respect to any such Indebtedness or
Guaranty Obligation.
(u) LITIGATION. There are no actions, suits or proceedings pending
nor, to the knowledge of the Borrower, threatened against Holdings or any
Subsidiary thereof or any of their respective properties in any court or
before any arbitrator of any kind or before or by any Governmental
Authority that could reasonably be expected to have a Material Adverse
Effect.
(v) ABSENCE OF DEFAULTS. No event has occurred or is continuing which
(i) constitutes a Default or an Event of Default, or (ii) constitutes, or
which with the passage
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of time or giving of notice or both would constitute, a default or event of
default by any Credit Party under any Material Contract or judgment, decree
or order to which such Credit Party is a party or by which such Credit
Party or any of their respective properties may be bound, which default or
event of default could reasonably be expected to have a Material Adverse
Effect.
(w) OFAC AND PATRIOT ACT. None of Holdings, any Subsidiary of Holdings
or any Affiliate of Holdings or any Guarantor: (i) is a Sanctioned Person,
(ii) has more than 10% of its assets in Sanctioned Entities, (iii) derives
more than 10% of its operating income from investments in, or transactions
with Sanctioned Persons or Sanctioned Entities, or (iv) is, or after the
applications of the proceeds of any Loan will be, in violation of the
Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56. The
proceeds of any Loan will not be used and have not been used to fund any
operations in, finance any investments or activities in, or make any
payments to, a Sanctioned Person or a Sanctioned Entity.
(x) DISCLOSURE. Holdings and/or its Subsidiaries have disclosed to the
Administrative Agent and the Lenders all agreements, instruments and
corporate or other restrictions to which Holdings or any of its
Subsidiaries are subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect. No financial statement, material report,
material certificate or other material information furnished (in writing),
taken together as a whole, by or on behalf of any of Holdings or any of its
Subsidiaries to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement
or delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that,
with respect to projected financial information, pro forma financial
information, estimated financial information and other projected or
estimated information, such information was prepared in good faith based
upon assumptions believed to be reasonable at the time, it being recognized
that actual results may differ from the projected results by a material
amount.
(y) USE OF PROCEEDS. Borrower will use the proceeds of (i) the Loans
made on the Closing Date to repay all existing indebtedness of Target and
for related fees and expenses and (ii) the Revolving Loans and Swingline
Loans made after Effective Date for working capital and other general
corporate purposes (including to effect Permitted Acquisitions).
(z) ACQUISITION DOCUMENTS; REPRESENTATIONS AND WARRANTIES IN
ACQUISITION AGREEMENT. The Lenders have been furnished true and complete
copies of the Acquisition Agreement, including all schedules and exhibits
thereto to the extent executed and delivered on or prior to the Effective
Date.
(aa) COLLATERAL. Each Credit Party owns or has rights to use all of
the Collateral and all rights with respect thereto used in, necessary for
or material to Holdings' and each
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other Credit Party's business as currently conducted. No claim has been
made and remains outstanding that any Credit Party's use of any Collateral
does or may violate the rights of any third party that could, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
SECTION 7.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties set forth in this Article VII and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Effective Date (except those that are expressly made as of a
specific date), shall survive the Effective Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in SECTION 14.2, the Borrower will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office at the address set
forth in SECTION 14.1 and to the Lenders at their respective addresses as set
forth on the Register, or such other office as may be designated by the
Administrative Agent and Lenders from time to time:
SECTION 8.1. FINANCIAL STATEMENTS AND PROJECTIONS.
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in any
event within forty-five (45) days (or, if earlier, on the date of any required
public filing thereof) after the end of each fiscal quarter (other than the
fourth such quarter) of each Fiscal Year, an unaudited Consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of the close
of such fiscal quarter and unaudited Consolidated and consolidating statements
of income, retained earnings and cash flows and a report containing management's
discussion and analysis of such financial statements for the fiscal quarter then
ended and that portion of the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the corresponding period in the
preceding Fiscal Year and prepared by the Borrower in accordance with GAAP and,
if applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the period, and certified by the chief financial officer of
the Borrower to present fairly in all material respects the financial condition
of the Borrower and its Subsidiaries as of their respective dates and the
results of operations of the Borrower and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments. Delivery by the
Borrower to the Administrative Agent and the Lenders of Holdings' or the
Borrower's quarterly report to the SEC on Form 10-Q with respect to any fiscal
quarter within the period specified above shall be deemed to be compliance by
the Borrower with this SECTION 8.1(a).
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(b) ANNUAL FINANCIAL STATEMENTS. As soon as practicable and in any
event within ninety (90) days (or, if earlier, on the date of any required
public filing thereof) after the end of each Fiscal Year, an audited
Consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as of the close of such Fiscal Year and audited Consolidated and
consolidating statements of income, retained earnings and cash flows and a
report containing management's discussion and analysis of such financial
statements for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures as
of the end of and for the preceding Fiscal Year and prepared in accordance with
GAAP and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of accounting
principles and practices during the year. Such annual financial statements shall
be audited by an independent certified public accounting firm acceptable to the
Administrative Agent, and accompanied by a report thereon by such certified
public accountants that is not qualified with respect to scope limitations
imposed by the Borrower or any of its Subsidiaries or with respect to accounting
principles followed by the Borrower or any of its Subsidiaries not in accordance
with GAAP. Delivery by the Borrower to the Administrative Agent and the Lenders
of Holdings' or the Borrower's annual report to the SEC on Form 10-K with
respect to any fiscal quarter, within the period specified above shall be deemed
to be compliance by the Borrower with this SECTION 8.1(b).
(c) ANNUAL BUSINESS PLAN AND FINANCIAL PROJECTIONS. As soon as
practicable and in any event within forty-five (45) after the beginning of each
Fiscal Year, a business plan of the Borrower and its Subsidiaries for the
ensuing four fiscal quarters, such plan to be prepared in accordance with GAAP
and to include, on a quarterly basis, the following: a quarterly operating and
capital budget, a projected income statement, statement of cash flows and
balance sheet, accompanied by a certificate from a Responsible Officer of the
Borrower to the effect that, to the best of such officer's knowledge, such
projections are good faith estimates (utilizing reasonable assumptions) of the
financial condition and operations of Holdings and its Subsidiaries for such
four quarter period, it being recognized that actual results may differ from the
projected results by a material amount.
SECTION 8.2. OFFICER'S COMPLIANCE CERTIFICATE. At each time financial
statements are delivered pursuant to SECTIONS 8.1(a) or (b), an Officer's
Compliance Certificate.
SECTION 8.3. ACCOUNTANTS' CERTIFICATE. At each time financial
statements are delivered pursuant to SECTION 8.1(B), a certificate of the
independent public accountants certifying such financial statements that in
connection with their audit, nothing came to their attention that caused them to
believe that Holdings or the Borrower failed to comply with the terms,
covenants, provisions or conditions of ARTICLE X or, if such is not the case,
specifying such non-compliance and its nature and period of existence (it being
understood that such certificate shall be limited to the items and scope that
independent certified public accountants are permitted to cover in such
certificates pursuant to their professional standards and customs).
SECTION 8.4. OTHER REPORTS.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with
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their auditing function, including, without limitation, any management report
and any management responses thereto; and
(b) such other information regarding the operations, business affairs
and financial condition of Holdings or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 8.5. NOTICE OF LITIGATION AND OTHER MATTERS. Prompt (but in no
event later than ten (10) days after a Responsible Officer of the Borrower
obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any
court or before any arbitrator against or involving Holdings or any
Subsidiary thereof or any of their respective properties, assets or
businesses that if adversely determined could reasonably be expected to
result in a Material Adverse Effect;
(b) any notice of any violation received by Holdings or any Subsidiary
thereof from any Governmental Authority including, without limitation, any
notice of violation of Environmental Laws which in any such case could
reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or is reasonably
likely to result in, a strike or other work action against Holdings or any
Subsidiary thereof and could reasonably be expected to result in Material
Adverse Effect;
(d) any attachment, judgment, lien, levy or order exceeding $1,000,000
that may be assessed against or threatened against Holdings or any
Subsidiary thereof;
(e) (i) any Default or Event of Default or (ii) any event which
constitutes or which with the passage of time or giving of notice or both
would constitute a default or event of default under any Material Contract
to which Holdings or any of its Subsidiaries is a party or by which
Holdings or any Subsidiary thereof or any of their respective properties
may be bound which could reasonably be expected to have a Material Adverse
Effect;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof), (ii) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by the Borrower or any ERISA
Affiliate from a Multiemployer Plan sponsor concerning the imposition or
amount of withdrawal liability pursuant to Section 4202 of ERISA and (iv)
the Borrower obtaining knowledge or reason to know that the Borrower or any
ERISA Affiliate has filed or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within the meaning
of Section 4041(c) of ERISA, in each case, which could result in liability
to a Credit Party or a Subsidiary of a Credit Party in an aggregate amount
exceeding $1,000,000; and
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(g) promptly upon becoming aware thereof, any announcement by ▇▇▇▇▇'▇
or S&P of any change in a Debt Rating.
SECTION 8.6. ACCURACY OF INFORMATION. All written information,
reports, statements and other papers and data furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender whether pursuant to this
ARTICLE VIII or any other provision of this Agreement, or any of the Security
Documents, shall, at the time the same is so furnished, comply with the
representations and warranties set forth in SECTION 7.1(x).
ARTICLE IX
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
PROVIDED for in SECTION 14.2, Holdings will, and will cause each of its
Subsidiaries to:
SECTION 9.1. PRESERVATION OF CORPORATE EXISTENCE AND RELATED MATTERS.
Except as permitted by SECTION 11.4, preserve and maintain (i) its separate
corporate existence and (ii) all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction where the
nature and scope of its activities require it to so qualify under Applicable Law
except, in the case of clause (ii), as could not reasonably be expected to have
a Material Adverse Effect.
SECTION 9.2. MAINTENANCE OF PROPERTY. In addition to the requirements
of any of the Security Documents, protect and preserve all properties necessary
in and necessary for the conduct of its business, including copyrights, patents,
trade names, service marks and trademarks; maintain in good working order and
condition, ordinary wear and tear excepted, all buildings, equipment and other
tangible real and personal property necessary for the conduct of its business;
and from time to time make or cause to be made all repairs, renewals and
replacements thereof and additions to such property necessary for the conduct of
its business, so that the business carried on in connection therewith may be
conducted in a commercially reasonable manner.
SECTION 9.3. INSURANCE. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law and as are required by any Security Documents (including, without
limitation, hazard and business interruption insurance), and on the Closing Date
and from time to time thereafter deliver to the Administrative Agent upon its
request information in reasonable detail as to the insurance then in effect,
stating the names of the insurance companies, the amounts and rates of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 9.4. ACCOUNTING METHODS AND FINANCIAL RECORDS. Maintain a
system of accounting, and keep proper books, records and accounts (which shall
be true and complete in all material respects) as may be required or as may be
necessary to permit the preparation
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of financial statements in accordance with GAAP and in compliance with the
regulations of any Governmental Authority having jurisdiction over it or any of
its properties.
SECTION 9.5. PAYMENT AND PERFORMANCE OF OBLIGATIONS. Pay and perform
all Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all Indebtedness and
other obligations and liabilities in accordance with customary trade practices;
provided, that Holdings or such Subsidiary may contest any item described in
clauses (a) or (b) of this Section in good faith so long as (i) adequate
reserves are maintained with respect thereto in accordance with GAAP and (ii)
appropriate protective actions are taken so that all or any part of the
Collateral is not subject to a sale or foreclosure during such a contest.
SECTION 9.6. COMPLIANCE WITH LAWS AND APPROVALS. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to the
conduct of its business except where the failure to do so would not reasonably
be expected to have a Material Adverse Effect.
SECTION 9.7. ENVIRONMENTAL LAWS. In addition to and without limiting
the generality of SECTION 9.6, (a) comply with, and ensure such compliance by
all tenants and subtenants with all applicable Environmental Laws, and (b)
conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws, except in each case as would not
reasonably be expected to have a Material Adverse Effect.
SECTION 9.8. COMPLIANCE WITH ERISA. In addition to and without
limiting the generality of SECTION 9.6, (a) except where the failure to so
comply could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, (i) comply with all material applicable
provisions of ERISA and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans, and (ii) not participate in any
prohibited transaction that could result in any civil penalty under ERISA or tax
under the Code and (b) furnish to the Administrative Agent upon the
Administrative Agent's request such additional information about any Employee
Benefit Plan as may be reasonably requested by the Administrative Agent.
SECTION 9.9. COMPLIANCE WITH AGREEMENTS. Comply in all material
respects with each term, condition and provision of all leases, agreements and
other instruments entered into in the conduct of its business including, without
limitation, any Material Contract, except if such noncompliance would not
reasonably be expected to have a Material Adverse Effect.
SECTION 9.10. VISITS AND INSPECTIONS. Permit representatives of the
Administrative Agent or any Lender, from time to time upon prior reasonable
notice and at such times during normal business hours, to visit and inspect its
properties; inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects, in each case, other than (x) materials and
affairs protected by the attorney-client privilege and
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(y) materials which Holdings or its Subsidiaries may not disclose without
violating confidentiality restrictions binding on it. Upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent or any
Lender may do any of the foregoing at any time without advance notice.
SECTION 9.11. ADDITIONAL SUBSIDIARIES.
(a) ADDITIONAL DOMESTIC SUBSIDIARIES. Notify the Administrative Agent
of the creation or acquisition of any Domestic Subsidiary and promptly
thereafter (and in any event within thirty (30) days after such creation or
acquisition), cause such Person (other than a Restaurant Partnership), to (i)
become a Guarantor by delivering to the Administrative Agent a duly executed
Joinder Agreement, (ii) grant to the Administrative Agent a security interest in
all assets owned by such Subsidiary (other than assets of a type that are
excluded from the definition of "Collateral" under the Collateral Agreement) by
delivering to the Administrative Agent a Joinder Agreement or such other
document as the Administrative Agent shall deem appropriate for such purpose and
comply with the terms of each Security Document, (iii) deliver to the
Administrative Agent such documents and certificates referred to in SECTION 6.2B
as may be reasonably requested by the Administrative Agent, (iv) deliver to the
Administrative Agent such original Capital Stock or other certificates, if any,
and stock or other transfer powers, if any, evidencing the Capital Stock of such
Person held by Holdings or any of its Subsidiaries, (v) deliver to the
Administrative Agent such updated Schedules to the Loan Documents as requested
by the Administrative Agent with respect to such Person, and (vi) deliver to the
Administrative Agent such other documents as may be reasonably requested by the
Administrative Agent, all in form, content and scope reasonably satisfactory to
the Administrative Agent; PROVIDED that no Domestic Subsidiary shall be required
to pledge the stock or assets of a "controlled foreign corporation" within the
meaning of Section 957 of the Code (a "CFC") except such Domestic Subsidiary
shall pledge sixty-five percent (65%) of the total outstanding voting Capital
Stock and all outstanding non-voting Capital Stock of any first tier CFC.
(b) ADDITIONAL FOREIGN SUBSIDIARIES. Notify the Administrative Agent
of the creation or acquisition of any Foreign Subsidiary, and promptly
thereafter (and in any event within forty-five (45) days after notification),
(i) if such Foreign Subsidiary is a first tier Foreign Subsidiary (other than a
Restaurant Partnership), deliver to the Administrative Agent a Security Document
pledging sixty-five percent (65%) of the total outstanding voting Capital Stock
and all outstanding non-voting Capital Stock of such new Foreign Subsidiary and
a consent thereto executed by such new Foreign Subsidiary (including, without
limitation, if applicable, original stock certificates (or the equivalent
thereof pursuant to the Applicable Laws and practices of any relevant foreign
jurisdiction) evidencing the Capital Stock of such new Foreign Subsidiary,
together with an appropriate undated stock power for each certificate duly
executed in blank by the registered owner thereof), (ii) cause such Person
(other than a Restaurant Partnership) to become a Guarantor by delivering to the
Administrative Agent a duly executed Joinder Agreement or such other document as
the Administrative Agent shall deem appropriate for such purpose, (iii) cause
such Person (other than a Restaurant Partnership) to deliver to the
Administrative Agent such documents and certificates referred to in SECTION 6.2B
as may be reasonably requested by the Administrative Agent, (iv) deliver to the
Administrative Agent such updated Schedules to the Loan Documents as requested
by the Administrative Agent with regard to such Person (other than a Restaurant
Partnership) and (v) deliver to the Administrative Agent such other documents
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as may be reasonably requested by the Administrative Agent, all in form, content
and scope reasonably satisfactory to the Administrative Agent; PROVIDED that no
Subsidiary that is a CFC shall be required to become a Guarantor or pledge any
assets hereunder to the extent such guarantee or pledge could result in a
material tax liability.
(c) REAL PROPERTY COLLATERAL. Notify the Administrative Agent, within
ten (10) days after the acquisition by any Credit Party of fee title to any
Real Property that is not subject to the existing Security Documents and that
has a fair market value of at least $500,000, and within sixty (60) days
following request by the Administrative Agent or the Required Lenders, deliver
such mortgages, deeds of trust, title insurance policies, surveys, opinions of
counsel and other documents reasonably requested by the Administrative Agent in
connection with granting and perfecting a first priority Lien, other than
Permitted Liens, on such real property in favor of the Administrative Agent, for
the benefit of itself and the Secured Parties, which shall be, (i) in the case
of any additional mortgage or deed of trust, substantially consistent with
EXHIBIT K, (ii) in the case of the other related documentation, comparable to
the documentation delivered in connection with the Real Property for which
Mortgages were delivered on the Closing Date, and (iii) in all cases, as are
acceptable to the Administrative Agent.
SECTION 9.12. USE OF PROCEEDS. On the Effective Date, the Borrower
shall use the proceeds of the Extensions of Credit only for the purposes set for
in SECTION 7.1(y).
SECTION 9.13. FURTHER ASSURANCES. Make, do, execute and deliver all
such additional and further acts, things, deeds and instruments as the
Administrative Agent or the Required Lenders (through the Administrative Agent)
may reasonably require to document and consummate the transactions contemplated
hereby and to vest completely in and insure the Administrative Agent and the
Lenders their respective rights under this Agreement, the Letters of Credit and
the other Loan Documents.
SECTION 9.14. DESIGNATION AS SENIOR DEBT. Cause all Obligations under
this Agreement to be "Designated Senior Debt" (or similar term) under all
Subordinated Indebtedness.
SECTION 9.15. POST CLOSING COVENANT.
(a) To the extent not previously delivered, no later than 30 days
after the Effective Date:
(i) MORTGAGE AMENDMENTS. The Administrative Agent shall have received
with respect to each Mortgage encumbering Mortgaged Property in existence
prior to the Effective Date and set forth on SCHEDULE 9.15 hereto, an
amendment thereof (each a "MORTGAGE AMENDMENT") duly executed and
acknowledged by the applicable Credit Party, and in form for recording in
the recording office where each such Mortgage was recorded, together with
such certificates, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof under
Applicable Law, in each case in form and substance reasonably satisfactory
to the Administrative Agent;
(ii) with respect to each Mortgage Amendment, a copy of the existing
mortgage title insurance policy and an endorsement with respect thereto
(collectively, the
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"MORTGAGE POLICY") relating to the Mortgage encumbering such Mortgaged
Property assuring the Administrative Agent that the Mortgage, as amended by
the Mortgage Amendment is a valid and enforceable first priority lien on
such Mortgaged Property in favor of the Administrative Agent for the
benefit of the Secured Parties free and clear of all defects and
encumbrances and liens except as listed on Schedule B of the Title Policy,
and such Mortgage Policy shall otherwise be in form and substance
reasonably satisfactory to the Administrative Agent; and
(iii) with respect to each Mortgage Amendment, opinions of local
counsel to the Credit Parties, which opinions (x) shall be addressed to the
Administrative Agent and each of the Lenders and be dated the Effective
Date, (y) shall cover the enforceability of the respective Mortgage as
amended by the Mortgage Amendment and such other matters incident to the
transactions contemplated herein as the Arrangers may reasonably request
and (z) shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders.
(iv) OTHER REAL PROPERTY INFORMATION. The Administrative Agent and the
Lenders shall have received such other certificates, documents and
information as are reasonably requested by the Lenders, including, without
limitation, insurance certificates and engineering reports, permanent
certificates of occupancy, if available, and evidence of zoning compliance,
each in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders.
(b) To the extent not previously delivered, no later than 45 days
after the Effective Date:
(i) LEASEHOLD MORTGAGES: Use commercially reasonable efforts to obtain
and deliver to the Administrative Agent (unless waived or extended by the
Administrative Agent in it sole discretion) the property owner's consent to
the granting of a leasehold mortgage (each a "LEASEHOLD MORTGAGE") and a
memorandum lease in recordable form (each a "Memorandum of Lease") with
respect to the Real Property leased locations at Pavilion Shopping Center,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇ (each a "LEASEHOLD MORTGAGED PROPERTY"). In the event both a
consent to Leasehold Mortgage and Memorandum of Lease are obtained with
respect a Leasehold Mortgaged Property, the applicable Credit Party shall
thereafter, deliver to the Administrative Agent a Leasehold Mortgage with
respect to each of the Leasehold Mortgaged Properties in favor of the
Administrative Agent, for the benefit of the Secured Parties, duly executed
and acknowledged by each Credit Party that is the owner of or holder of any
interest in such property subject to a Mortgage, and otherwise in form for
recording in the recording office of each applicable political subdivision
where each such property subject to a Mortgage is situated, together with
such certificates, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof to create a
lien under Applicable Law, and such financing statements and any other
instruments necessary to grant a mortgage lien under the laws of any
applicable jurisdiction, all of which shall be in form and substance
reasonably satisfactory to Administrative Agent. The failure of the
applicable Credit Party to obtain either the Leasehold Mortgage or
Memorandum of Lease in accordance with this paragraph
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shall not be an Event of Default under the Credit Agreement provided
commercially reasonable efforts to obtain the foregoing have been used.
(ii) TITLE INSURANCE. With respect to each Leasehold Mortgaged
Properties, the Administrative Agent shall have received contemporaneously
with the Leasehold Mortgage a marked-up commitment or pro forma for a
policy of title insurance (the "TITLE POLICY"), insuring Lenders' first
priority Liens and showing no Liens prior to Lenders' Liens other than for
ad valorem taxes not yet due and payable and such existing Liens on
Schedule B of the title insurance policy, with title insurance companies
acceptable to the Administrative Agent on the property subject to a
Leasehold Mortgage with the final title insurance policy, being delivered
within sixty (60) days after the Effective Date. Further, the Borrower
agrees to provide or obtain any customary affidavits and indemnities as may
be required or necessary to obtain title insurance reasonably satisfactory
to the Administrative Agent.
(iii) TITLE EXCEPTIONS. The Administrative Agent and the Lenders shall
have received contemporaneously with the Leasehold Mortgage copies of all
recorded documents creating exceptions to the Title Policy.
(iv) MATTERS RELATING TO FLOOD CERTIFICATION. The Administrative Agent
shall have received contemporaneously with the Leasehold Mortgage a
completed Federal Emergency Agency Standard Flood Hazard Determination with
respect to each Leasehold Mortgaged Properties.
(v) SURVEYS. The Administrative Agent shall have received
contemporaneously with the Leasehold Mortgage copies of ALTA surveys of a
recent date for the parcel of Real Property located at Pavilion Shopping
Center, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ certified as of a recent
date by a registered engineer or land surveyor. Such survey shall be
accompanied by an affidavit (a "SURVEY AFFIDAVIT") of an authorized
signatory of the owner of such property stating that there have been no
improvements or encroachments to the property since the date of the
respective survey such that the existing survey is no longer accurate. Such
survey shall show the area of such property, all boundaries of the land
with courses and distances indicated, including chord bearings and arc and
chord distances for all curves, and shall show dimensions and locations of
all easements, private drives, roadways, and other facts materially
affecting such property, and shall show such other details as the
Administrative Agent may reasonably request, including, without limitation,
any encroachment (and the extent thereof in feet and inches) onto the
property or by any of the improvements on the property upon adjoining land
or upon any easement burdening the property; any improvements, to the
extent constructed, and the relation of the improvements by distances to
the boundaries of the property, to any easements burdening the property,
and to the established building lines and the street lines; and if
improvements are existing, (A) a statement of the number of each type of
parking space required by Applicable Laws, ordinances, orders, rules,
regulations, restrictive covenants and easements affecting the improvement,
and the number of each such type of parking space provided, and (B) the
locations of all utilities serving the improvement.
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(vi) ENVIRONMENTAL ASSESSMENTS. The Administrative Agent and the
Lenders shall have received contemporaneously with the Leasehold Mortgage a
Phase I Environmental assessment regarding each Leasehold Mortgaged
Property by an environmental consulting firm acceptable to the
Administrative Agent showing no actual or potential violations of
Environmental Laws or liabilities under Environmental Laws, either of which
could reasonably be expected to have a Material Adverse Effect.
(vii) In connection with each Leasehold Mortgaged Properties, the
Borrower or applicable Credit Party shall use commercially reasonable
efforts to obtain and deliver to the Administrative Agent (unless waived or
extended by the Administrative Agent in it sole discretion) Subordination
Non-Disturbance Agreements (each a "SNDA") in a form satisfactory to the
Administrative Agent relating to the lease and sublease respectively of the
property located at Pavilion Shopping Center, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and the lease of the property located at ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ should same be determined to be necessary
in the discretion of the Administrative Agent, but subject to any
requirements of such respective lease and sublease. The failure of the
applicable Credit Party to obtain a SNDA in accordance with this paragraph
shall not be an Event of Default under the Credit Agreement provided
commercially reasonable efforts to obtain the foregoing have been used.
(viii) with respect to Leasehold Mortgage, opinions of local counsel
to the Credit Parties, which opinions (x) shall be addressed to the
Administrative Agent and each of the Lenders and be dated the Effective
Date, (y) shall cover the enforceability of the respective Leasehold
Mortgage and such other matters incident to the transactions contemplated
herein as the Arrangers may reasonably request and (z) shall be in form and
substance reasonably satisfactory to the Administrative Agent and the
Lenders.
(ix) OTHER REAL PROPERTY INFORMATION. The Administrative Agent and the
Lenders shall have received such other certificates, documents and
information as are reasonably requested by the Lenders, including, without
limitation, insurance certificates and engineering reports, permanent
certificates of occupancy, if available, and evidence of zoning compliance,
each in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders.
(c) To the extent not previously delivered, no later than 10 Business
Days after the Effective Date (as may be extended by the Administrative Agent in
its sole discretion), the Borrower shall deliver to the Administrative Agent the
stock certificates (together with instruments of transfer) for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Pie Shops, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Wholesalers, Inc., MACAL Investors, Inc., MCID,
Inc., Wilshire Beverage, Inc. and FIV Corp., as set forth in Schedule 10 of the
Perfection Certificate (or replacements thereof).
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ARTICLE X
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in SECTION 14.2, the Borrower and its Subsidiaries on a Consolidated basis
will not:
SECTION 10.1. LEVERAGE RATIO. As of any fiscal quarter end beginning
with the fiscal quarter ended October 1, 2006, permit the Consolidated Leverage
Ratio to be greater than the corresponding ratio set forth below:
---------------------------------------------------------------- -----------------------------------
PERIOD MAXIMUM RATIO
---------------------------------------------------------------- -----------------------------------
Q3 Fiscal Year 2006 6.00 to 1.00
---------------------------------------------------------------- -----------------------------------
Q4 Fiscal Year 2006 5.75 to 1.00
---------------------------------------------------------------- -----------------------------------
Q1 Fiscal Year 2007 - Q2 Fiscal Year 2007 5.50 to 1.00
---------------------------------------------------------------- -----------------------------------
Q3 Fiscal Year 2007 - Q4 Fiscal Year 2007 5.25 to 1.00
---------------------------------------------------------------- -----------------------------------
Q1 Fiscal Year 2008 - Q2 Fiscal Year 2008 5.00 to 1.00
---------------------------------------------------------------- -----------------------------------
Q3 Fiscal Year 2008 - Q4 Fiscal Year 2008 4.75 to 1.00
---------------------------------------------------------------- -----------------------------------
Q1 Fiscal Year 2009 - Q2 Fiscal Year 2009 4.50 to 1.00
---------------------------------------------------------------- -----------------------------------
Q3 Fiscal Year 2009 - Q4 Fiscal Year 2009 4.25 to 1.00
---------------------------------------------------------------- -----------------------------------
Q1 Fiscal Year 2010 - Q2 Fiscal Year 2010 4.00 to 1.00
---------------------------------------------------------------- -----------------------------------
Q3 Fiscal Year 2010 and thereafter 3.75 to 1.00
---------------------------------------------------------------- -----------------------------------
SECTION 10.2. FIXED CHARGE COVERAGE RATIO. As of any fiscal quarter
end beginning with the fiscal quarter ended October 1, 2006, permit the ratio of
(a) Consolidated EBITDAR for the period of four (4) consecutive fiscal quarters
ending on such date less Maintenance Capital Expenditures (not financed through
a Debt Issuance or Equity Issuance permitted hereunder) for such period to (b)
Consolidated Fixed Charges for such period to be less than the corresponding
ratio set forth below:
---------------------------------------------------------------- -----------------------------------
PERIOD MINIMUM RATIO
---------------------------------------------------------------- -----------------------------------
Q3 Fiscal Year 2006 - Q4 Fiscal Year 2008 1.00 to 1.00
---------------------------------------------------------------- -----------------------------------
Q1 Fiscal Year 2009 - Q4 Fiscal Year 2009 1.05 to 1.00
---------------------------------------------------------------- -----------------------------------
Q1 Fiscal Year 2010 and thereafter 1.10 to 1.00
---------------------------------------------------------------- -----------------------------------
SECTION 10.3. MAXIMUM CAPITAL EXPENDITURES. Permit the aggregate
amount of all Capital Expenditures in any Fiscal Year to exceed the amount set
forth opposite such Fiscal Year below:
---------------------------------------------------------------- -----------------------------------
PERIOD MAXIMUM AMOUNT
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2006 $27.1 million
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2007 $32.6 million
---------------------------------------------------------------- -----------------------------------
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---------------------------------------------------------------- -----------------------------------
PERIOD MAXIMUM AMOUNT
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2008 $36.1 million
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2009 $36.6 million
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2010 $38.5 million
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2011 $40.0 million
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2012 $42.0 million
---------------------------------------------------------------- -----------------------------------
Fiscal Year 2013 $15.0 million
---------------------------------------------------------------- -----------------------------------
Notwithstanding the foregoing, the maximum amount of Capital
Expenditures permitted by this SECTION 10.3 in any Fiscal Year shall be
increased by the amount of Capital Expenditures that were permitted to be made
under this SECTION 10.3 in the immediately preceding Fiscal Year (without giving
effect to any carryover amount from prior Fiscal Years) over the amount of
Capital Expenditures actually made during such preceding Fiscal Year.
ARTICLE XI
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in SECTION 14.2, Holdings has not and will not, and will not permit any of
its Subsidiaries to:
SECTION 11.1. LIMITATIONS ON INDEBTEDNESS. Create, incur, assume or
suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant
to Section 11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement;
PROVIDED that if the Hedging Obligations pursuant to any such Hedging
Agreement relate to interest rates, (i) such Hedging Obligations relate to
payment obligations on Indebtedness otherwise permitted to be incurred by
the Loan Documents and (ii) the notional principal amount of such Hedging
Obligations at the time incurred does not exceed the principal amount of
the Indebtedness to which such Hedging Obligations relate;
(c) Indebtedness existing on the Effective Date and listed on SCHEDULE
7.1(t), and any refinancings, refundings, renewals or extensions thereof;
PROVIDED that (i) the principal amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension
except by accrued but unpaid interest on the refinanced Indebtedness and an
amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder
and (ii) any refinancing, refunding, renewal or extension of any
Subordinated Indebtedness shall be (A) on subordination terms at least as
favorable to the Lenders as, and no more restrictive on Holdings and its
Subsidiaries than, the Subordinated Indebtedness being refinanced,
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refunded, renewed or extended and (B) in a principal amount not less than
the principal amount outstanding at the time of such refinancing,
refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in
connection with Capital Leases or Synthetic Leases, and purchase money
Indebtedness of the Borrower and its Subsidiaries, and any refinancings,
refundings, renewals or extensions thereof, in an aggregate amount not to
exceed $10,000,000 on any date of determination;
(e) Indebtedness of a Person existing at the time such Person became a
Subsidiary or assets were acquired from such Person, to the extent such
Indebtedness was not incurred in connection with or in contemplation of,
such Person becoming a Subsidiary or the acquisition of such assets, not to
exceed in the aggregate at any time outstanding $5,000,000 and any
refinancings, refundings, renewals or extensions thereof; PROVIDED that (i)
the principal amount of such Indebtedness is not increased at the time of
such refinancing, refunding, renewal or extension except by an amount equal
to the accrued but unpaid interest on such refinanced Indebtedness and a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount
equal to any existing commitments unutilized thereunder and (ii) any
refinancing, refunding, renewal or extension of any Subordinated
Indebtedness shall be (A) on subordination terms at least as favorable to
the Lenders as, and no more restrictive on Holdings and its Subsidiaries
than the Subordinated Indebtedness being refinanced, refunded, renewed or
extended and (B) in a principal amount not less than the principal amount
outstanding at the time of such refinancing, refunding, renewal or
extension;
(f) Guaranty Obligations in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders;
(g) Guaranty Obligations with respect to Indebtedness permitted
pursuant to subsections (a) through (d) and (k) through (n) of this
Section; PROVIDED that (i) any Guaranty Obligations with respect to
Indebtedness permitted pursuant to clause (k) of this Section shall be
considered an Investment in the Foreign Subsidiary and shall be permitted
under this clause (g) only to the extent such Investment is permitted under
SECTION 11.3 and (ii) any Guaranty Obligation with respect to Indebtedness
permitted pursuant to clause (l) of this Section shall be subordinated to
the same extent as the subordination of such Indebtedness;
(h) Indebtedness of (i) any Credit Party owed to another Credit Party,
(ii) of any Credit Party owed to a Subsidiary that is not a Credit Party
and (iii) of any Subsidiary that is not a Credit Party owed to any Credit
Party; PROVIDED that (i) the aggregate amount of Indebtedness permitted by
clause (iii) of this SECTION 11.1(h), together with the aggregate amount of
Investments permitted pursuant to SECTION 11.3(l), shall not exceed
$10,000,000, (ii) all such intercompany Indebtedness of a Credit Party owed
to a Subsidiary that is not a Credit Party shall be unsecured and (subject
to any limitation under laws applicable to such Subsidiary that is not a
Credit Party, its directors or its stockholders) subordinated in right of
payment to the payment in full in cash of the Obligations solely in
connection with any bankruptcy, insolvency or liquidation proceeding and
(iii) if any
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intercompany Indebtedness of any Subsidiary that is not a Credit Party owed
to any Credit Party is represented by a physical note, such note shall be
pledged to the Administrative Agent for the benefit of the Secured Parties;
(i) Indebtedness secured by Liens permitted by clause (j) of SECTION
11.2; PROVIDED that such Indebtedness is extinguished within five (5)
Business Days of its incurrence;
(j) Guaranty Obligations by a Credit Party with respect to the
Indebtedness of franchisees to the extent permitted pursuant to SECTION
11.3(I);
(k) Indebtedness of Foreign Subsidiaries in an aggregate principal
amount not exceeding $5,000,000 at any date of determination;
(l) additional Subordinated Indebtedness of Holdings or any of its
Subsidiaries; PROVIDED that in the case of each issuance of Subordinated
Indebtedness, (i) no Default or Event of Default shall have occurred and be
continuing or would be caused by the issuance of such Subordinated
Indebtedness, and (ii) the Administrative Agent shall have received
reasonably satisfactory written evidence that the Credit Parties would be
in compliance with all covenants contained in this Agreement on a PRO FORMA
basis after giving effect to the issuance of any such Subordinated
Indebtedness;
(m) additional Indebtedness of Borrower or any of its Subsidiaries not
otherwise permitted pursuant to this Section in an aggregate amount
outstanding not to exceed $10,000,000; and
(n) Indebtedness pursuant to the Senior Note Documents; and any
refinancings, refundings, renewals or extensions thereof; PROVIDED that (i)
the principal amount of such Indebtedness is not increased at the time of
such refinancing, refunding, renewal or extension except by an amount equal
to the accrued but unpaid interest on such refinanced Indebtedness, the
required "make whole" payments set forth in the Senior Note Documents and a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount
equal to any existing commitments unutilized thereunder and (ii) the terms
of any such refinancings, refundings, renewals or extensions thereof, taken
as a whole, are no less favorable to the Lenders or the Borrower.
PROVIDED, that, except as provided in SECTION 11.11, no agreement or instrument
with respect to Indebtedness permitted to be incurred by this Section shall
restrict, limit or otherwise encumber (by covenant or otherwise) the ability of
any Subsidiary of the Borrower to make any payment to the Borrower or any of its
Wholly-Owned Subsidiaries (in the form of dividends, intercompany advances or
otherwise) for the purpose of enabling the Borrower to pay the Obligations.
SECTION 11.2. LIMITATIONS ON LIENS. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of Capital Stock), real or personal,
whether now owned or hereafter acquired, except:
-81-
(a) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related
thereto has not expired or which are being or will be contested in good
faith and by appropriate proceedings if adequate reserves are maintained to
the extent required by GAAP; PROVIDED that such proceedings instituted
contesting such Lien shall stay the sale or forfeiture of any portion of
the Collateral on account of such a Lien;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred
in the ordinary course of business, (i) which are not overdue for a period
of more than sixty (60) days or (ii) which are being contested in good
faith and by appropriate proceedings if adequate reserves are maintained to
the extent required by GAAP; PROVIDED that such proceedings instituted
contesting such Lien shall stay the sale or forfeiture of any portion of
the Collateral on account of such a Lien;
(c) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance, old age pensions,
Social Security obligations or similar legislation;
(d) (i) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of
Real Property and defects, irregularities in the title thereto, and similar
encumbrances which in the aggregate are not substantial in amount and which
do not, in any case, materially detract from the value of such property or
impair the use thereof in the ordinary conduct of business and (ii) any
interest or title of a lessor in property leased to Holdings and any of its
Subsidiaries, or any encumbrances on any such interest or title of such
lessor, to the extent such lease is permitted hereby; PROVIDED that any
Liens permitted pursuant to clause (d)(ii) shall be subordinated to the
Liens granted pursuant to the Security Documents to secure the Obligations;
(e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Secured Parties under the Loan Documents;
(f) Liens existing on any asset of any Person at the time such Person
becomes a Subsidiary of Holdings or is merged or consolidated with or into
a Subsidiary of Holdings which (i) were not created in contemplation of or
in connection with such event and (ii) do not extend to or cover any other
property or assets of Holdings or any Subsidiary, so long as any
Indebtedness related to any such Liens is permitted under SECTION 11.1(e);
(g) Liens not otherwise permitted by this Section and in existence on
the Effective Date and described on SCHEDULE 11.2;
(h) Liens arising out of judgments, attachments or awards not
resulting in an Event of Default and in respect of which Holdings or its
Subsidiary, as applicable, shall in good faith be prosecuting an appeal or
proceedings for review in respect of which there shall be secured a
subsisting stay of execution pending such appeal or proceedings and, in
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the case of any such Lien which has or may become a Lien against any of the
Collateral, such Lien and the contest thereof shall satisfy the Contested
Collateral Lien Conditions;
(i) Liens on assets of Foreign Subsidiaries securing Indebtedness
permitted under SECTION 11.1(k);
(j) normal and customary Liens, rights of setoff and recoupment rights
upon deposits of cash in favor of banks or other depository institutions
relating to due and unpaid bank fees, bank charges, returned checks and
chargebacks, and other normal and customary obligations associated with the
maintenance of deposit accounts by such banks or other depository
institutions;
(k) Liens given in replacement of Liens otherwise permitted under this
SECTION 11.2; PROVIDED, that such replacement Liens extend only to the
assets subject to the Lien being replaced or substitutions for such assets;
(l) Liens securing Indebtedness permitted under SECTION 11.1(d);
PROVIDED that (i) such Liens shall be created substantially simultaneously
with the acquisition or lease of the related asset or the refinancing,
refunding, renewal or extension of the Indebtedness permitted under SECTION
11.1(d), (ii) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal amount
of Indebtedness secured by any such Lien shall at no time exceed one
hundred percent (100%) of the original purchase price or total lease
payment amount of such property at the time it was acquired;
(m) with respect to each Mortgaged Property, those Liens set forth in
Schedule B to the Mortgages encumbering such Mortgaged Property which shall
be reasonably acceptable to the Administrative Agent; and
(n) pledges and deposits to secure the performance of bids, trade
contracts, insurance contracts, leases, statutory obligations, tender,
surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business.
Notwithstanding the foregoing, with respect to Mortgaged Property, "Permitted
Liens" shall mean: (i) on the Closing Date, only those items set forth in
Schedule B to the applicable Mortgage encumbering such Mortgaged Property and
such other Liens, all of which shall be acceptable to the Administrative Agent
in its sole discretion, and (ii) thereafter, all items listed in clause (i)
together with those Liens described in clauses (a), (b), (d), (e), (f), (k),
(l), (m), and (n) above.
SECTION 11.3. LIMITATIONS ON LOANS, ADVANCES, INVESTMENTS AND
ACQUISITIONS. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any Capital Stock, interests in any joint venture (including,
without limitation, the creation or capitalization of any Subsidiary), evidence
of Indebtedness or other obligation or security, substantially all or a portion
of the business or assets of any other Person or any other investment or
interest whatsoever in any other Person, or make or permit to exist, directly or
indirectly, any loans, advances or extensions of credit to, or any investment in
cash or by delivery of property in, any Person except:
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(a) (i) investments in Subsidiaries outstanding on the Effective Date,
(ii) ordinary course investments in Restaurant Partnerships consistent with
past practice, (iii) investments in Subsidiaries formed or acquired after
the Effective Date so long as Holdings and its Subsidiaries comply with the
applicable provisions of SECTION 9.11 and such newly formed or acquired
Subsidiary becomes a Subsidiary Guarantor, (iv) investments in the form of
the other loans, advances and investments described on SCHEDULE 11.3
existing on the Effective Date and (v) investments in Subsidiary
Guarantors;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States or any agency thereof
maturing within one year from the date of acquisition thereof, (ii)
commercial paper maturing no more than one year from the date of creation
thereof and currently having a rating of at least P-1 if rated by ▇▇▇▇▇'▇
and A-1 if rated by S&P, (iii) certificates of deposit and time deposits
maturing no more than one year from the date of creation thereof issued by
commercial banks incorporated under the laws of the United States, each
having combined capital, surplus and undivided profits of not less than
$500,000,000, (iv) securities issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition thereof, having one of
the two highest ratings obtainable from either S&P or ▇▇▇▇▇'▇; (v)
repurchase agreements secured by any one or more of the investments
described in clauses (i), (ii) or (iii) of this clause (b), and (vi) shares
of any so-called "money market fund" provided that such fund is registered
under the Investment Company Act of 1940, has net assets of at least
$100,000,000 and has an investment portfolio with an average maturity of
365 days or less;
(c) investments by Holdings or any of its Subsidiaries in the form of
Permitted Acquisitions;
(d) investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers in exchange
for claims against such trade creditors or customers or in good faith
settlement of delinquent obligations of such trade creditors and customers;
(e) Hedging Agreements permitted pursuant to SECTION 11.1;
(f) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the
ordinary course of business, which, in the aggregate, do not exceed at any
time $1,000,000;
(h) intercompany Indebtedness permitted pursuant to SECTION 11.1;
(i) the acquisition of one or more notes, leases or other evidences of
indebtedness of franchisees, and Guaranty Obligations with respect to
franchisee obligations, in accordance with franchisee leasing or loan
programs and investments in connection with (A) the conversion to notes or
other restructuring of franchisee obligations, (B) making loans and
advances to franchisees, and (C) acceptance of notes from franchisees in
payment
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for goods and services provided by the Borrower and its Subsidiaries to
such franchisees, in an aggregate amount not to exceed $5,000,000 for all
such acquisitions, Guaranty Obligations or investments pursuant to this
SECTION 11.3(i).
(j) in the case of investments by Foreign Subsidiaries, substantially
similar foreign equivalents of those Investments described in SECTION
11.3(b);
(k) investments in the form of notes or other deferred payment
obligations received as part of the consideration for Asset Dispositions in
accordance with SECTION 11.5(f); and
(l) other investments in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with all
other outstanding Investments made pursuant to this clause (l) since the
Effective Date, not to exceed $10,000,000.
SECTION 11.4. LIMITATIONS ON MERGERS AND LIQUIDATION. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution)
except:
(a) any Wholly-Owned Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (PROVIDED that the Borrower shall be
the continuing or surviving Person) or with or into any Subsidiary
Guarantor (PROVIDED that the Subsidiary Guarantor shall be the continuing
or surviving Person);
(b) any Wholly-Owned Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other Wholly-Owned Subsidiary; (PROVIDED
that if the transferor in such a transaction is a Subsidiary Guarantor,
then the transferee must either be the Borrower or a Subsidiary Guarantor);
(c) any Wholly-Owned Subsidiary of the Borrower may merge into the
Person such Wholly-Owned Subsidiary was formed to acquire in connection
with a Permitted Acquisition;
(d) any Subsidiary of the Borrower may wind-up into the Borrower or
any Subsidiary of the Borrower; PROVIDED that if the Subsidiary being wound
up is a Guarantor, it may be wound up into the Borrower or any Subsidiary
that is, or will become concurrently with the transaction, a Guarantor; and
(e) Holdings may merge with or into or consolidate with, or wind-up or
liquidate into or otherwise transfer all of its assets to, a parent or a
Subsidiary of a parent, so long as (i) the Person surviving such
transaction, if not Holdings, shall become a Guarantor and assume all of
Holdings' covenants and obligations hereunder pursuant to a Joinder
Agreement (and each reference to Holdings in this Agreement or any Loan
Document shall thereafter be deemed to refer and apply to such Surviving
Person), (ii) after giving effect to such transactions, Holdings and its
Subsidiaries shall be in compliance with the covenants set forth in
ARTICLES IX, X and XI hereto and (iii) the representations and warranties
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contained in ARTICLE VII that are subject to materiality or Material
Adverse Effect qualifications shall be true, correct and complete in all
respects and all representations and warranties that are not subject to
materiality or Material Adverse Effect qualification are true, correct and
complete in all material respects, after giving effect to such transaction;
PROVIDED that for the purposes of sub-clauses (ii) and (iii) of this
SECTION 11.4(e) and any test related thereto, any reference to Holdings
shall be deemed to refer to the Person surviving such transaction, if not
Holdings.
SECTION 11.5. LIMITATIONS ON ASSET DISPOSITIONS. Make any Asset
Disposition (including, without limitation, the sale of any receivables and
leasehold interests and any sale-leaseback or similar transaction) except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale, lease or sublease of obsolete, unused, worn-out or
surplus assets (other than Mortgaged Property) no longer used or usable in
the business of the Borrower or any of its Subsidiaries;
(c) the transfer of assets to the Borrower or, (i) in the case of a
transfer of assets by any Guarantor, to any other Guarantor and (ii) in the
case of a transfer of assets by any Subsidiary that is not a Guarantor, to
any Subsidiary, each pursuant to SECTION 11.4; PROVIDED such transfer shall
be made subject to Liens of the applicable Collateral Document and in
accordance with the provisions of SECTION 9.11;
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(e) the disposition of any Hedging Agreement;
(f) additional Asset Dispositions not otherwise permitted pursuant to
this Section in an aggregate amount not to exceed $10,000,000 in any Fiscal
Year and $35,000,000 in the aggregate from the Effective Date; PROVIDED
that (i) the Credit Party (or its Subsidiary, as the case may be) shall
receive consideration in connection with such Asset Disposition at least
equal to the fair market value of the assets or Equity Interests issued or
sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor received by the Credit Party or its Subsidiary is in the form of
cash, Cash Equivalents or a combination thereof;
(g) transfers of assets pursuant to Investments permitted by SECTION
11.3;
(h) exchanges of like kind, owned Real Property operated as
restaurants, pursuant to Section 1031 of the Internal Revenue Code;
PROVIDED that to the extent the property to be exchanged is subject to a
Mortgage, the newly-acquired Real Property shall also be subject to a
Mortgage and the Borrower shall comply with SECTION 9.11(c) (regardless of
whether SECTION 9.11(c) would otherwise require a Mortgage); and
(i) Sale and Leaseback Transactions entered into after the Effective
Date and contemporaneously with or within 360 days after the acquisition of
the property subject
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to the Sale and Leaseback Transactions; PROVIDED that (i) no Default or
Event of Default shall have occurred or be continuing or shall result from
the consummation of such Sale and Leaseback Transaction, (ii) the Credit
Party (or its Subsidiary, as the case may be) shall receive consideration
in connection with such Sale and Leaseback Transaction at least equal to
the fair market value of the subject assets and (ii) 100% of the
consideration received by the Credit Party or its Subsidiary is in the form
of cash, Cash Equivalents or a combination thereof.
SECTION 11.6. LIMITATIONS ON DIVIDENDS AND DISTRIBUTIONS. Declare or
pay any dividends upon any of its Capital Stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its Capital Stock, or
make any distribution of cash, property or assets among the holders of shares of
its Capital Stock, (collectively, a "RESTRICTED PAYMENT"); PROVIDED that:
(a) Holdings or any Subsidiary may pay dividends in shares of its own
Capital Stock;
(b) any Subsidiary may pay cash dividends to the Borrower or another
Subsidiary that is a Credit Party and, so long as no Default or Event of
Default has occurred or is continuing, to other equity holders of such
Subsidiary on a pro rata basis.
(c) so long as no Event of Default exists, the Borrower may make
payments in the amounts and at the rates specified in the Management
Agreement;
(d) the Borrower may make payments to Holdings, and Holdings may make
payments to any direct or indirect parent of Holdings, to pay franchise
taxes, directors fees and reasonable accounting, legal and administrative
expenses of Holdings and such parents when due, in an aggregate amount not
to exceed $1,000,000 per annum;
(e) for so long as the Borrower is a member of a group filing a
consolidated or combined tax return with Holdings or any direct or indirect
parent of Holdings, the Borrower may make payments to Holdings and Holdings
may make payments to such Person in respect of an allocable portion of the
tax liabilities of such group that is attributable to Holdings, the
Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes
attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax
Payments shall not exceed the lesser of (i) the amount of the relevant tax
(including any penalties and interest) that the Borrower would owe if the
Borrower were filing a separate tax return (or a separate consolidated or
combined return with its Subsidiaries that are members of the consolidated
or combined group), taking into account any carryovers and carrybacks of
tax attributes (such as net operating losses) of the Borrower and such
Subsidiaries from other taxable years and (ii) the net amount of the
relevant tax that Holdings or such Person actually owes to the appropriate
taxing authority. Any Tax Payments received from the Borrower shall be paid
over to the appropriate taxing authority within 30 days of Holdings' or any
direct or indirect parent of Holdings' receipt of such Tax Payments or
refunded to the Borrower;
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(f) if no Event of Default shall exist or would occur after giving
effect thereto, any Credit Party may make any Restricted Payments not
otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal
year of Holdings and $10,000,000 in the aggregate after the Effective Date;
PROVIDED, that any amount not utilized in a previous fiscal year may be
utilized in the immediately succeeding fiscal year;
(g) the Borrower may repurchase, redeem, or otherwise acquire for
value any Capital Stock of the Borrower, and the Borrower may make
distributions, loans and advances to Holdings and Holdings may make
distributions, loans and advances to any direct or indirect parent to
enable the repurchase, redemption or other acquisition or retirement for
value of any Capital Stock of Holdings, or any direct or indirect parent of
Holdings, in each case, held by any current or former officer, director,
consultant or employee of Holdings or any of its Subsidiaries (or Heirs or
other permitted transferees thereof); PROVIDED that the aggregate price
paid for all such repurchased, redeemed, acquired or retired Capital Stock
may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that
the Borrower may carry over and make in subsequent calendar years, in
addition to the amounts permitted for such calendar year, the amount of
such purchases, redemptions or other acquisitions or retirements for value
permitted to have been made but not made in any preceding calendar year up
to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that
such amount in any calendar year may be increased by an amount not to
exceed (1) the net cash proceeds from the sale of Capital Stock of the
Borrower (or Holdings or any direct or indirect parent of Holdings to the
extent such net cash proceeds are contributed to the common equity of
Holdings) to employees, officers, directors or consultants of Holdings and
its Subsidiaries that occurs after the Effective Date (to the extent the
cash proceeds from the sale of such Capital Stock have not otherwise been
applied to the payment of Restricted Payments) plus (2) the cash proceeds
of key man life insurance policies received by Holdings and its
Subsidiaries after the Effective Date less any amounts previously applied
to the payment of Restricted Payments pursuant to this clause (g); PROVIDED
FURTHER that cancellation of Indebtedness owing to Holdings or any of its
Subsidiaries from employees, officers, directors and consultants of
Holdings or any of its Subsidiaries in connection with the repurchase of
Capital Stock of the Borrower, Holdings or any direct or indirect parent
from such Persons will not be deemed to constitute a Restricted Payment for
purposes of this Section.
(h) there shall be permitted hereunder (i) the repurchase of Capital
Stock deemed to occur upon the exercise of options, warrants or other
convertible securities to the extent such Capital Stock represent a portion
of the exercise price of those options, warrants or other convertible
securities and (ii) cash payments in lieu of the issuance of fractional
shares in connection with the exercise of options, warrants, or other
convertible securities;
(i) Holdings and the Borrower may make payments in connection with or
as a result of the Acquisition (including, without limitation, payments in
respect of Earnouts) to the extent contemplated by the Acquisition
Documents;
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(j) Holdings and the Borrower may make Restricted Payments in exchange
for, or out of the net proceeds of the substantially concurrent sale (other
than to a Subsidiary) of, other Capital Stock.
(k) On the Effective Date, in connection with the redemption of equity
interests in Target from certain existing shareholders, Holdings and the
Borrower may cancel up to $1.0 million of indebtedness of such shareholders
owed to the Credit Parties.
SECTION 11.7. LIMITATIONS ON EXCHANGE AND ISSUANCE OF CAPITAL STOCK.
Issue, sell or otherwise dispose of any class or series of Capital Stock that,
by its terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Indebtedness or (b) required to be redeemed
or repurchased, including at the option of the holder, in whole or in part, or
has, or upon the happening of an event or passage of time would have, a
redemption or similar payment due prior to the Revolving Credit Maturity Date.
SECTION 11.8. TRANSACTIONS WITH AFFILIATES. Directly or indirectly (a)
make any loan or advance to, or purchase or assume any note or other obligation
to or from, any of its officers, directors, shareholders or other Affiliates, or
to or from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates or (b) enter into, or be a party to, any other transaction not
described in clause (a) above with any of its Affiliates other than:
(i) transactions permitted by SECTION 11.3, 11.4, 11.6 and 11.7;
(ii) transactions existing on the Effective Date or any amendment
thereto or transaction contemplated thereby and described on Schedule 11.8
(and any replacement or amendment of any such agreement so long as any such
amendment or replacement thereof is not materially less favorable to the
Lenders than the original agreement in effect on the Effective Date);
(iii) compensation, reimbursement of reasonable expenses and
indemnification of officers, directors and employees pursuant to customary
employment, consulting and benefit arrangements;
(iv) other transactions in the ordinary course of business on terms as
favorable as would be obtained by it on a comparable arms-length
transaction with an independent, unrelated third party as determined in
good faith by the board of directors of the Borrower;
(v) so long as no Event of Default exists, the payment of fees to
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. in the amounts and at the rates specified in the
Management Agreement;
(vi) Equity Issuances of Holdings and the granting of registration
rights in respect of any such Capital Stock, which rights have been
approved by the board of directors of Holdings or the Borrower;
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(vii) the purchase or sale of goods or provision of services to an
Affiliate in the ordinary course of business on terms comparable to those
offered to or available from third party customers or suppliers; and
(viii) reimbursement of reasonable expenses actually incurred by
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. and its Affiliates in accordance with the Management
Agreement.
SECTION 11.9. CERTAIN ACCOUNTING CHANGES; ORGANIZATIONAL DOCUMENTS.
(a) Change its Fiscal Year end, or make any change in its accounting treatment
and reporting practices except as required by GAAP or Applicable Law or (b)
amend, modify or change its Organizational Documents, other than amendments,
modifications or waivers (as the case may be) which (i) would not have a
material adverse effect on the ability of such Person to perform its obligations
under the Loan Documents or (ii) are not adverse in any material respect to the
interests of the Lenders.
SECTION 11.10. AMENDMENT OF MATERIAL DOCUMENTS.
(a) Amend or modify, or permit the amendment or modification of, any
provision of any Transaction Document, in each case other than amendments,
modifications or waivers (as the case may be) which are not adverse in any
material respect to the interests of the Lenders.
(b) Amend or modify (or permit the modification or amendment of) any
of the terms or provisions of any Subordinated Indebtedness in any respect that
is adverse in any material respect to the interests of the Lenders.
SECTION 11.11. PREPAYMENTS OF SUBORDINATED INDEBTEDNESS. Make (or give
any notice in respect thereof) any voluntary or optional payment or prepayment
on or redemption or acquisition for value of, or any prepayment or redemption as
a result of any asset sale, change of control or similar event of, any
Subordinated Indebtedness, other than in connection with a refinancing,
refunding, renewal or extension of such Subordinated Indebtedness permitted by
SECTION 11.1(c) or (n).
SECTION 11.12. RESTRICTIVE AGREEMENTS.
(a) Enter into any Indebtedness which contains any negative pledge on
assets or any covenants more restrictive than the provisions of ARTICLES IX, X
and XII hereof, or which restricts, limits or otherwise encumbers its ability to
incur Liens on or with respect to any of its assets or properties other than the
assets or properties securing such Indebtedness.
(b) Enter into or permit to exist any agreement which impairs or
limits the ability of any Subsidiary of the Borrower to pay dividends to the
Borrower. However, this restriction set forth in SECTION 11.11(a) and (b) will
not apply to restrictions existing under or by reason of:
(i) the Senior Notes Documents or the Loan Documents,
(ii) Applicable Law,
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(iii) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Borrower or any of its Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness or
Capital Stock was incurred or issued in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired, provided
that, in the case of Indebtedness, such Indebtedness was permitted by the
terms of this Agreement to be incurred,
(iv) any agreement for the sale or other disposition of Capital Stock
or assets of a Subsidiary or an agreement entered into for the sale of
specified assets that restrict distributions by that Subsidiary pending
such sale,
(v) Indebtedness permitted by Section 11.1(c), (d), (e) or (n) as a
refinancing, renewal or extension of other Indebtedness permitted by such
sections, provided that the restrictions contained in the agreements
governing such Indebtedness are no more materially restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness
being refinanced,
(vi) provisions limiting the disposition or distribution of assets or
property in joint venture agreements, partnership agreements, limited
liability company operating agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar
agreements entered into with the approval of the board of directors of the
Borrower, which limitation is applicable only to the assets that are the
subject of such agreements,
(vii) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business,
(viii) provisions in agreements or instruments that prohibit the
payment of dividends or the making of other distributions with respect to
any Capital Stock of a Person other than on a pro rata basis,
(ix) restrictions in other Indebtedness incurred in compliance with
Section 11.1; provided that such restrictions, taken as a whole, are, in
the good faith judgment of the Borrower's board of directors, no more
materially restrictive with respect to such encumbrances and restrictions
than those contained in this Agreement and the Senior Note Agreement,
(x) customary non-assignment provisions in leases, contracts, licenses
and other agreements entered into in the ordinary course of business and
consistent with past practices,
(xi) purchase money obligations for property acquired in the ordinary
course of business and Capital Lease obligations that impose restrictions
on the ability of any Subsidiary to transfer any of such acquired
properties or assets to the Borrower or any of its Subsidiaries,
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(xii) secured Indebtedness otherwise permitted to be incurred pursuant
to Section 11.2 that limits the right of the debtor to dispose of assets
securing Indebtedness;
(xiii) agreements governing existing Indebtedness as in effect on the
Effective Date and any amendments, restatements, modifications, renewals,
increases, supplements, refundings, replacements or refinancings of those
agreements; provided that the amendments, restatements, modifications,
renewals, increases, supplements, refundings, replacements or refinancings
are not materially more restrictive, taken as a whole, with respect to such
encumbrances and restrictions than those contained in those agreements on
the Closing Date,
(xiv) any encumbrances or restrictions imposed by any amendments,
modifications restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (xii) above; provided that the
encumbrances or restrictions in such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are not materially more restrictive, in the good faith
judgment of the board of directors of the Borrower, taken as a whole, than
the encumbrances or restrictions prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing.
SECTION 11.13. NATURE OF BUSINESS. Alter in any material respect the
character or conduct of the business conducted by the Borrower and its
Subsidiaries as of the Closing Date, and other businesses that are ancillary or
related thereto.
SECTION 11.14. IMPAIRMENT OF SECURITY INTERESTS. Take or omit to take
any action, which might or would have the result of materially impairing the
security interests in favor of the Administrative Agent with respect to the
Collateral or grant to any Person (other than the Administrative Agent for the
benefit of itself and the Secured Parties pursuant to the Security Documents)
any interest whatsoever in the Collateral, except for Permitted Liens and asset
sales permitted under SECTION 11.5.
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1. EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any Governmental Authority or otherwise:
(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS AND REIMBURSEMENT
OBLIGATIONS. The Borrower shall default in any payment of principal of any
Loan or Reimbursement Obligation when and as due (whether at maturity, by
reason of acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. The Borrower or any other Credit Party
shall default in the payment when and as due (whether at maturity, by
reason of acceleration or
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otherwise) of interest on any Loan or Reimbursement Obligation or the
payment of any other Obligation, and such default shall continue for a
period of five (5) Business Days.
(c) MISREPRESENTATION. Any representation, warranty, certification or
statement of fact made or deemed made by the Borrower or any other Credit
Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith that is subject to materiality or Material
Adverse Effect qualifications, shall be incorrect or misleading in any
respect when made or deemed made; or any representation, warranty,
certification or statement of fact made or deemed made by the Borrower or
any other Credit Party herein, any other Loan Document, or in any document
delivered in connection herewith or therewith that is not subject to
materiality or Material Adverse Effect qualifications, shall be incorrect
or misleading in any material respect when made or deemed made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. The Borrower or any
other Credit Party shall default in the performance or observance of any
covenant or agreement contained in SECTION 8.5(e)(i) or ARTICLES X or XI.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. The
Borrower or any other Credit Party shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this
Section) or any other Loan Document and such default shall continue for a
period of thirty (30) days after written notice thereof has been given to
the Borrower by the Administrative Agent.
(f) HEDGING AGREEMENT. The Borrower or any other Credit Party shall
default in the performance or observance of any terms, covenant, condition
or agreement (after giving effect to any applicable grace or cure period)
under any Hedging Agreement and such default causes the termination of such
Hedging Agreement and the Termination Value owed by such Credit Party as a
result thereof exceeds $10,000,000.
(g) INDEBTEDNESS CROSS-DEFAULT. The Borrower or any other Credit Party
shall (i) default in the payment of any Indebtedness (other than the Loans
or any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of $10,000,000 beyond the period of grace if any,
provided in the instrument or agreement under which such Indebtedness was
created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Indebtedness (other than the Loans
or any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of $10,000,000 or contained in any instrument or
agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause such Indebtedness, or to permit the holder or holders
of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, to become due
prior to its stated maturity (any applicable grace period having expired).
(h) CHANGE IN CONTROL. Any Change in Control shall occur.
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(i) VOLUNTARY BANKRUPTCY PROCEEDING. Holdings or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy
laws (as now or hereafter in effect), (ii) file a petition seeking to take
advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and appropriate
manner any petition filed against it in an involuntary case under such
bankruptcy laws or other laws, (iv) apply for or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign, (v)
admit in writing its inability to pay its debts as they become due, (vi)
make a general assignment for the benefit of creditors, or (vii) take any
corporate action for the purpose of authorizing any of the foregoing.
(j) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding
shall be commenced against the Borrower or any Credit Party thereof in any
court of competent jurisdiction seeking (i) relief under the federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts, or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like for the Borrower or any Credit
Party thereof or for all or any substantial part of their respective
assets, domestic or foreign, and such case or proceeding shall continue
without dismissal or stay for a period of sixty (60) consecutive days, or
an order granting the relief requested in such case or proceeding
(including, but not limited to, an order for relief under such federal
bankruptcy laws) shall be entered.
(k) FAILURE OF AGREEMENTS. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid
and binding on the Borrower or any other Credit Party party thereto or any
such Person shall so state in writing, or any Loan Document shall for any
reason cease to create a valid and perfected first priority Lien on, or
security interest in, any of the Collateral purported to be covered
thereby, in each case other than in accordance with the express terms
hereof or thereof.
(l) TERMINATION EVENT. The occurrence of any of the following events:
(i) an accumulated funding deficiency occurs or exists, whether or not
waived, with respect to any Pension Plan which could reasonably be expected
to have a Material Adverse Effect, or (ii) a Termination Event.
(m) JUDGMENT. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments to exceed $10,000,000 in
any Fiscal Year shall be entered against the Borrower or any Credit Party
by any court and such judgment or order shall continue without having been
discharged, vacated or stayed for a period of sixty (60) days after the
entry thereof (and such judgment is not covered by insurance provided by
insurers that are solvent and have acknowledged coverage to the reasonable
satisfaction of the Required Lenders with respect to such judgment or
judgments).
SECTION 12.2. REMEDIES. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower:
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(a) ACCELERATION; TERMINATION OF FACILITIES. Terminate the Commitments
and declare the principal of and interest on the Loans and the
Reimbursement Obligations at the time outstanding, and all other amounts
owed to the Lenders and to the Administrative Agent under this Agreement or
any of the other Loan Documents (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented or shall be entitled to present the
documents required thereunder) and all other Obligations (other than
Hedging Obligations), to be forthwith due and payable, whereupon the same
shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived by
each Credit Party, anything in this Agreement or the other Loan Documents
to the contrary notwithstanding, and terminate the Credit Facility and any
right of the Borrower to request borrowings or Letters of Credit
thereunder; PROVIDED, that upon the occurrence of an Event of Default
specified in Section 12.1(i) or (j), the Credit Facility shall be
automatically terminated and all Obligations (other than Hedging
Obligations) shall automatically become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by each Credit Party, anything in this Agreement or in any
other Loan Document to the contrary notwithstanding.
(b) LETTERS OF CREDIT. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to the preceding paragraph, the Borrower shall
at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been
fully drawn upon, if any, shall be applied to repay the other Obligations
on a pro rata basis. After all such Letters of Credit shall have expired or
been fully drawn upon, the Reimbursement Obligation shall have been
satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower.
(c) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents
and Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 12.3. RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower, the
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Administrative Agent and the Lenders or their respective agents or employees
shall be effective to change, modify or discharge any provision of this
Agreement or any of the other Loan Documents or to constitute a waiver of any
Event of Default.
SECTION 12.4. CREDITING OF PAYMENTS AND PROCEEDS. In the event that
the Borrower shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 12.2, all payments
received by the Lenders upon the Obligations and all net proceeds from the
enforcement of the Obligations shall be applied:
FIRST, to payment of that portion of the Obligations constituting fees
and expenses, including attorney fees, payable to the Administrative Agent
in its capacity as such and the Issuing Lender in its capacity as such
(ratably among the Administrative Agent and the Issuing Lender in
proportion to the respective amounts described in this clause FIRST payable
to them);
SECOND, to payment of that portion of the Obligations constituting
fees payable to the Lenders, including attorney fees (ratably among the
Lenders in proportion to the respective amounts described in this clause
SECOND payable to them);
THIRD, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and Reimbursement Obligations and
any Hedging Obligations (including any termination payments and any accrued
and unpaid interest thereon) (ratably among the Lenders in proportion to
the respective amounts described in this clause THIRD payable to them);
FOURTH, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and Reimbursement Obligations (ratably among
the Lenders in proportion to the respective amounts described in this
clause FOURTH held by them);
FIFTH, to the Administrative Agent for the account of the Issuing
Lender, to cash collateralize any L/C Obligations then outstanding; and
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
SECTION 12.5. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
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Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 3.3, 5.3 and 14.3) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 5.3 and 14.3.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
ARTICLE XIII
THE ADMINISTRATIVE AGENT
SECTION 13.1. APPOINTMENT AND AUTHORITY. Each of the Lenders and the
Issuing Lender hereby irrevocably appoints Wachovia to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the Issuing Lender, and neither the
Borrower nor any Subsidiary thereof shall have rights as a third party
beneficiary of any of such provisions.
SECTION 13.2. RIGHTS AS A LENDER. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.
SECTION 13.3. EXCULPATORY PROVISIONS. The Administrative Agent shall
not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:
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(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
PROVIDED that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or Applicable Law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in SECTION 12.2) or (ii) in the absence of its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction by final nonappealable judgment. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing
such Default is given to the Administrative Agent by the Borrower, a Lender or
the Issuing Lender.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in ARTICLE VI or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 13.4. RELIANCE BY THE ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a
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Lender or the Issuing Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the Issuing Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the Issuing Lender prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
SECTION 13.5. DELEGATION OF DUTIES. The Administrative Agent may
perform any and all of its duties and exercise its rights and powers hereunder
or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 13.6. RESIGNATION OF ADMINISTRATIVE AGENT.
(a) The Administrative Agent may at any time give notice of its
resignation to the Lenders, the Issuing Lender and the Borrower. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, with
the consent of the Borrower (such consent not to be unreasonably withheld and
which, in any event, will not be required during the continuance of a Default or
an Event of Default) to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the Issuing
Lender, appoint a successor Administrative Agent meeting the qualifications set
forth above PROVIDED that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that
in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the Issuing Lender under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the Issuing Lender directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between
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the Borrower and such successor. After the retiring Administrative Agent's
resignation hereunder and under the other Loan Documents, the provisions of this
Article and SECTION 14.2 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
(b) Any resignation by Wachovia as Administrative Agent pursuant to
this Section shall also constitute its resignation as Issuing Lender and
Swingline Lender. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
Issuing Lender and Swingline Lender, (b) the retiring Issuing Lender and
Swingline Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
Issuing Lender shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring Issuing Lender to effectively assume
the obligations of the retiring Issuing Lender with respect to such Letters of
Credit.
SECTION 13.7. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender and the Issuing Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Issuing Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
SECTION 13.8. NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the syndication agents, documentation agents,
co-agents, book manager, lead manager, arranger, lead arranger or co-arranger
listed on the cover page or signature pages hereof shall have any powers, duties
or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
the Issuing Lender hereunder.
SECTION 13.9. COLLATERAL AND GUARANTY MATTERS. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any Collateral granted to or held by the
Administrative Agent, for the ratable benefit of itself and the Lenders,
under any Loan Document (i) upon repayment of the outstanding principal of
and all accrued interest on the Loans, payment of all outstanding fees and
expenses hereunder, the termination of the Lenders' Commitments and the
expiration or termination of all Letters of Credit, (ii) that is sold or to
be sold as part of or in connection with any sale permitted hereunder or
under any other Loan Document, or (iii) subject to SECTION 14.2, if
approved, authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any Collateral, except Mortgaged
Property, granted to or held by the Administrative Agent under any Loan
Document to the holder of any Lien on such Collateral that is permitted by
SECTION 11.2(G); and
(c) to release any Guarantor from its obligations under the Guaranty
Agreement if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty Agreement pursuant to this
Section.
SECTION 13.10. NO FIDUCIARY DUTY. Each of the Borrower and the
Guarantors acknowledges and agrees that in connection with all aspects of each
transaction contemplated by this Agreement, the Borrower and the Guarantors and
Wachovia Capital Markets, LLC, and any affiliate through which it may be acting
(each, a "TRANSACTION AFFILIATE"), have an arms-length business relationship
that creates no fiduciary duty on the part of Wachovia Capital Markets, LLC or
any Transaction Affiliate and each expressly disclaims any fiduciary
relationship.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page, or telecopy, (ii) on the next Business Day if sent by
recognized overnight courier service and (iii) on the third Business Day
following the date sent by certified mail, return receipt requested. A
telephonic notice to the Administrative Agent as understood by the
Administrative Agent will be deemed to be the controlling and proper notice in
the event of a failure to receive a confirming written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
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If to the Borrower: TRC Holding Corp.
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
And
The Restaurant Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.:
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: To the address set forth on the Register
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative
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Agent's Office referred to herein, to which payments due are to be made and at
which Loans will be disbursed and Letters of Credit requested.
SECTION 14.2. AMENDMENTS, WAIVERS AND CONSENTS. Except as set forth
below or as specifically provided in any Loan Document, any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents may
be amended or waived by the Lenders, and any consent given by the Lenders, if,
but only if, such amendment, waiver or consent is in writing signed by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and delivered to the Administrative Agent and, in the case of
an amendment, signed by the Borrower; PROVIDED, that no amendment, waiver or
consent shall:
(a) waive any condition set forth in SECTION 6.2B without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to SECTION 10.2) or the amount of Loans of
any Lender without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) (other than with respect to mandatory
prepayments pursuant to SECTION 4.4(b)(i)-(iv)) or any scheduled or
mandatory reduction of the Revolving Credit Commitments hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or Reimbursement Obligation, or (subject to clause (iv) of the
second proviso to this Section) any fees or other amounts payable hereunder
or under any other Loan Document, or change the manner of computation of
any financial ratio (including any change in any applicable defined term)
used in determining the Applicable Margin that would result in a reduction
of any interest rate on any Loan or any fee payable hereunder without the
written consent of each Lender directly affected thereby; PROVIDED that
only the consent of the Required Lenders shall be necessary to waive any
obligation of the Borrower to pay interest at the rate set forth in SECTION
5.1(c) during the continuance of an Event of Default;
(e) change SECTION 5.4 or SECTION 12.4 in a manner that would alter
the pro rata sharing of payments required thereby without the written
consent of each Lender affected thereby;
(f) change SECTION 4.4(b)(vi) in a manner that would alter the order
of application of amounts between Classes of Lenders prepaid pursuant
thereto without the written consent of each Lender affected thereby;
(g) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
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(h) release all of the Guarantors or release Guarantors comprising
substantially all of the credit support for the Credit Party Obligations,
in either case, from the Guaranty Agreement (other than as authorized in
SECTION 11.9), without the written consent of each Lender affected thereby;
(i) release all or a material portion of the Collateral or release any
Security Document (other than as authorized in SECTION 12.9 or as otherwise
specifically permitted or contemplated in this Agreement or the applicable
Security Document) without the written consent of each Lender affected
thereby; or
(j) after the Closing Date, expressly change or waive any condition
precedent in SECTION 6.3 to any Revolving Credit Loan without the written
consent of the Required Revolving Lenders;
PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Lenders required
above, affect the rights or duties of the Issuing Lender under this Agreement or
any Letter of Credit Application relating to any Letter of Credit issued or to
be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swingline Lender in addition to the Lenders required above,
affect the rights or duties of the Swingline Lender under this Agreement; (iii)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
SECTION 14.2, the consent of the Required Lenders has been obtained and the
consent of all Lenders required hereunder would have been obtained but for any
Lender's failure to consent (such Lender, a "NON-CONSENTING LENDER"), then the
Borrower shall have the right to replace each such Non-Consenting Lender or
Lenders (or, at the option of the Borrower if the respective Lender's consent is
required with respect to less than all Loans (or related Commitments), to
replace only the Commitments and/or Loans of the respective Non-Consenting
Lender that gave rise to the need to obtain such Lender's individual consent)
with one or more assignees pursuant to, and with the effect of an assignment
under, SECTION 14.10 so long as at the time of such replacement, each such
assignee consents to the proposed change, waiver, discharge or termination.
SECTION 14.3. EXPENSES; INDEMNITY.
(a) COSTS AND EXPENSES. The Borrower and any other Credit Party,
jointly and severally, shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of one primary counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this
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Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Lender in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the Issuing Lender (including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Lender or the Issuing Lender), in connection with the enforcement or protection
of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) INDEMNIFICATION BY THE BORROWER. Except for Taxes which shall be
covered by SECTION 5.11, the Borrower shall indemnify the Administrative Agent
(and any sub-agent thereof), each Lender and the Issuing Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"INDEMNITEE") against, and hold each Indemnitee harmless from, any and all
losses, claims (including, without limitation, any Environmental Claims and any
civil penalty or fine assessed by OFAC, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee but excluding losses, claims, damages, liabilities and related
expenses related to Taxes), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Credit Party
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder or the consummation of
the transactions contemplated hereby or thereby, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the Issuing Lender to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual presence or
Release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Claim related in any
way to the Borrower or any of its Subsidiaries, (iv) any actual claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Credit Party, and regardless of whether
any Indemnitee is a party thereto, (v) any conduct of the Borrower that violates
a sanction enforced by OFAC, or (vi) any claim (including, without limitation,
any Environmental Claims or civil penalties or fines assessed by OFAC),
investigation, litigation or other proceeding (whether or not the Administrative
Agent or any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Loans, this Agreement, any other
Loan Document, or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby, including without
limitation, reasonable attorneys and consultant's fees, PROVIDED that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee, (y) result from a claim brought by the Borrower or any other Credit
Party against an Indemnitee for breach of such Indemnitee's obligations
hereunder or under any other Loan
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Document, if the Borrower or such Credit Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction or (z) are Taxes.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under clause (a) or (b) of
this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the Issuing Lender or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Issuing Lender or such Related Party, as the case may be, such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the Issuing Lender
in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or Issuing Lender in
connection with such capacity. The obligations of the Lenders under this clause
(c) are subject to the provisions of SECTION 5.7.
(d) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the fullest extent
permitted by Applicable Law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in clause (b) above shall
be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) PAYMENTS. All amounts due under this Section shall be payable
promptly after demand therefor.
SECTION 14.4. RIGHT OF SET-OFF. If an Event of Default shall have
occurred and be continuing, each Lender, the Issuing Lender, the Swingline
Lender and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by Applicable Law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the Issuing
Lender, the Swingline Lender or any such Affiliate to or for the credit or the
account of the Borrower or any other Credit Party against any and all of the
obligations of the Borrower or such Credit Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender, the Issuing Lender or
the Swingline Lender, irrespective of whether or not such Lender, the Issuing
Lender or the Swingline Lender shall have made any demand under this Agreement
or any other Loan Document and although such obligations of the Borrower or such
Credit Party may be contingent or unmatured or are owed to a branch or office of
such Lender, the Issuing Lender or the Swingline Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the Issuing Lender, the Swingline Lender and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of
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setoff) that such Lender, the Issuing Lender, the Swingline Lender or their
respective Affiliates may have. Each Lender, the Issuing Lender and the
Swingline Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application; PROVIDED that the failure to
give such notice shall not affect the validity of such setoff and application.
SECTION 14.5. GOVERNING LAW.
(a) GOVERNING LAW. This Agreement and the other Loan Documents, unless
expressly set forth therein, shall be governed by, construed and enforced in
accordance with, the law of the State of New York, without reference to the
conflicts or choice of law principles thereof.
(b) SUBMISSION TO JURISDICTION. The Borrower irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York sitting in New York County
and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment in such action or proceeding, and
each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State court or, to the fullest extent permitted by Applicable
Law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or in any other Loan Document shall
affect any right that the Administrative Agent, any Lender or the Issuing Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against the Borrower or its properties in the courts
of any jurisdiction.
(c) WAIVER OF VENUE. The Borrower and each other Credit Party
irrevocably and unconditionally waives, to the fullest extent permitted by
Applicable Law, any objection that it may now or hereafter have to the laying of
venue of any action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by Applicable Law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) SERVICE OF PROCESS. Each party hereto irrevocably consents to
service of process in the manner provided for notices in SECTION 14.1. Nothing
in this Agreement will affect the right of any party hereto to serve process in
any other manner permitted by Applicable Law.
SECTION 14.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
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REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 14.7. REVERSAL OF PAYMENTS. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 14.8. INJUNCTIVE RELIEF; PUNITIVE DAMAGES.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf
of itself and the Credit Parties) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 14.9. ACCOUNTING MATTERS. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Required
Lenders); PROVIDED that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
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SECTION 14.10. SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) SUCCESSORS AND ASSIGNS GENERALLY. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Credit Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (d)
of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); PROVIDED that
(i) except in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender or an Affiliate of a Lender or
an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the applicable Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent
or, if "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date) shall not be less than $5,000,000 in the case of any
assignment in respect of the Revolving Credit Facility or $2,000,000 in the
case of any assignment of the Term Loan Facility unless (A) such assignment
is made to an existing Lender, to an Affiliate thereof or (with respect to
any Term Loan) to an Approved Fund, in which case no minimum amount shall
apply, or (B) each of the Administrative Agent and, so long as no Default
or Event of Default has occurred and is continuing, the Borrower otherwise
consent (each such consent not to be unreasonably withheld or delayed);
PROVIDED that the Borrower shall be deemed to have given its consent five
(5) Business Days after the date written notice thereof has been delivered
by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by the Borrower prior to such fifth (5th)
Business Day;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loan or the Commitment assigned;
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(iii) any assignment of a Revolving Credit Commitment must be approved
by the Administrative Agent, the Swingline Lender and the Issuing Lender
unless the Person that is the proposed assignee is itself a Lender with a
Revolving Credit Commitment (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 for each assignment, and the
Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of SECTIONS 5.9, 5.10, 5.11 and 14.3 with respect
to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of this Section.
(c) REGISTER. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at one of its offices in Charlotte,
North Carolina, a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of and stated interest on each of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice. The
Loans and L/C Obligations may be assigned in whole or in part only by
registration of such assignment on the Register. Any assignment of all or part
of such Loans or L/C Obligations may be effected only by registration of such
assignment on the Register.
(d) PARTICIPATIONS. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
PROVIDED that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations
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and (iii) the Borrower, the 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.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver or modification described in the first
proviso of SECTION 14.2 that directly affects such Participant. Subject to
paragraph (e) and the foregoing provisions of this paragraph (d) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of SECTIONS 5.9, 5.10 and 5.11 (subject to the requirements of those
sections, including delivery by such Participant of the documents required by
SECTION 5.11(e)) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section (subject to the
foregoing provisions of this paragraph (d)). To the extent permitted by law,
each Participant also shall be entitled to the benefits of SECTION 14.4 as
though it were a Lender, PROVIDED such Participant agrees to be subject to
SECTION 5.6 as though it were a Lender.
(e) LIMITATIONS UPON PARTICIPANT RIGHTS. A Participant shall not be
entitled to receive any greater payment under SECTIONS 5.10 and 5.11 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent.
(f) CERTAIN PLEDGES. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; PROVIDED that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
SECTION 14.11. CONFIDENTIALITY. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential and such
information shall be disclosed solely in furtherance of the transactions
contemplated by the Loan Documents), (b) to the extent requested by, or required
to be disclosed to, any rating agency, or regulatory or similar authority
(including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by Applicable Laws or
regulations or by any subpoena or similar legal process, (d) to any other party
hereto, (e) in connection with the exercise of any remedies under this Agreement
or under any other Loan Document (or any Hedging Agreement with a Lender or the
Administrative Agent) or any action or proceeding relating to this Agreement or
any other Loan Document (or any Hedging Agreement with a Lender or the
Administrative Agent) or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any purchasing
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Lender, proposed purchasing Lender, Participant or proposed Participant, or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower, (h) to Gold Sheets and other similar bank trade
publications, such information to consist of deal terms and other information
customarily found in such publications, (i) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower or (j) to
governmental regulatory authorities in connection with any regulatory
examination of the Administrative Agent or any Lender or in accordance with the
Administrative Agent's or any Lender's regulatory compliance policy if the
Administrative Agent or such Lender deems necessary for the mitigation of claims
by those authorities against the Administrative Agent or such Lender or any of
its subsidiaries or affiliates. For purposes of this Section, "INFORMATION"
means all information received from any Credit Party relating to any Credit
Party or any of their respective businesses, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Credit Party. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 14.12. PERFORMANCE OF DUTIES. Each of the Credit Party's
obligations under this Agreement and each of the other Loan Documents shall be
performed by such Credit Party at its sole cost and expense.
SECTION 14.13. ALL POWERS COUPLED WITH INTEREST. All powers of
attorney and other authorizations granted to the Lenders, the Administrative
Agent and any Persons designated by the Administrative Agent or any Lender
pursuant to any provisions of this Agreement or any of the other Loan Documents
shall be deemed coupled with an interest and shall be irrevocable so long as any
of the Obligations remain unpaid or unsatisfied, any of the Commitments remain
in effect or the Credit Facility has not been terminated.
SECTION 14.14. SURVIVAL OF INDEMNITIES. Notwithstanding any
termination of this Agreement, the indemnities to which the Administrative Agent
and the Lenders are entitled under the provisions of this ARTICLE XIV and any
other provision of this Agreement and the other Loan Documents shall continue in
full force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 14.15. TITLES AND CAPTIONS. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 14.16. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
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SECTION 14.17. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 14.18. INTEGRATION. This Agreement, together with the other
Loan Documents, comprises the complete and integrated agreement of the parties
on the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter.
SECTION 14.19. TERM OF AGREEMENT. This Agreement shall remain in
effect from the Closing Date through and including the date upon which all
Obligations arising hereunder or under any other Loan Document shall have been
indefeasibly and irrevocably paid and satisfied in full and all Commitments have
been terminated. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination or in
respect of any provision of this Agreement which survives such termination.
SECTION 14.20. ADVICE OF COUNSEL, NO STRICT CONSTRUCTION. Each of the
parties represents to each other party hereto that it has discussed this
Agreement with its counsel. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
SECTION 14.21. USA PATRIOT ACT. The Administrative Agent and each
Lender hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "ACT"), it is required to obtain, verify and record information that
identifies the Borrower and Guarantors, which information includes the name and
address of each Borrower and Guarantor and other information that will allow
such Lender to identify such Borrower or Guarantor in accordance with the Act.
SECTION 14.22. INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT
EFFECT OF COVENANTS.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; PROVIDED that any provision of the Security Documents which imposes
additional burdens on the Borrower or its Subsidiaries or further restricts the
rights of the Borrower or its Subsidiaries or gives the Administrative Agent or
Lenders additional rights shall not be deemed to be in conflict or inconsistent
with this Agreement and shall be given full force and effect.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in ARTICLES IX, X, or XI hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in ARTICLES IX, X, or XI if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in ARTICLES IX, X, or XI.
SECTION 14.23. AMENDMENT AND RESTATEMENT; NO NOVATION.
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(a) This Agreement constitutes an amendment and restatement of the
Original Credit Agreement, as amended, effective from and after the Effective
Date. The execution and delivery of this Agreement shall not constitute a
novation of any indebtedness or other obligations owing to the Lenders or the
Administrative Agent under the Original Credit Agreement based on facts or
events occurring or existing prior to the execution and delivery of this
Agreement. On the Effective Date, the credit facilities described in the
Original Credit Agreement, as amended, shall be amended, supplemented, modified
and restated in their entirety by the facilities described herein, and all loans
and other obligations of the Borrower outstanding as of such date under the
Original Credit Agreement, as amended, shall be deemed to be loans and
obligations outstanding under the corresponding facilities described herein,
without any further action by any Person, except that the Administrative Agent
shall make such transfers of funds as are necessary in order that the
outstanding balance of such Loans, together with any Loans funded on the
Effective Date, reflect the Commitments of the Lenders hereunder.
(b) The Credit Parties agree that after giving effect to this
Agreement, neither the modification of the Original Credit Agreement effected
pursuant to this Agreement nor the execution, delivery, performance or
effectiveness of this Agreement:
(i) impairs the validity, effectiveness or priority of the Liens
granted pursuant to any Loan Document (as such term is defined in the
Original Credit Agreement), and such Liens continue unimpaired with the
same priority to secure repayment of all Obligations, whether heretofore or
hereafter incurred; or
(ii) requires that any new filings be made or other action taken to
perfect or to maintain the perfection of such Liens.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal by their duly authorized officers, all as of the day and
year first written above.
THE RESTAURANT COMPANY, as Borrower
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
THE RESTAURANT HOLDING CORPORATION, as Holdings
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
S-1
AGENTS AND LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent,
Swingline Lender, Issuing Lender and Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇.▇ ▇▇▇▇▇▇▇▇▇
Title: Director
S-2
BNP PARIBAS, as Syndication Agent and Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
BNP PARIBAS, as Syndication Agent and Lender
By: /s/ [ILLEGIBLE]
--------------------------------------------
Name: [Illegible]
Title: Merchant Banking Group
S-1
▇▇▇▇▇ FARGO FOOTHILL, INC. as Lender
By: /s/ [ILLEGIBLE] ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: [Illegible] ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
S-2