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EXHIBIT 10.25
$125,000,000.00
CREDIT AGREEMENT
dated as of
December 21, 1999
among
OUTBACK STEAKHOUSE, INC.,
The Banks Listed Herein,
WACHOVIA BANK, N.A.,
as Agent,
WACHOVIA SECURITIES, INC.,
as Sole Arranger,
SUNTRUST BANK, TAMPA BAY,
as Syndication Agent
and
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
as Documentation Agent
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CREDIT AGREEMENT
AGREEMENT dated as of December 21, 1999 among OUTBACK
STEAKHOUSE, INC., the BANKS listed on the signature pages hereof, WACHOVIA BANK,
N.A., as Agent, SUNTRUST BANK, TAMPA BAY, as Syndication Agent, and SOUTHTRUST
BANK, NATIONAL ASSOCIATION, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms as defined in this
Section 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"Adjusted Cash Flow" means for any period the sum of: (i)
EBITDA for such period, and (ii) all payment obligations of the Borrower and its
Consolidated Subsidiaries for such period under all operating leases and rental
agreements, all determined with respect to the Borrower and its Consolidated
Subsidiaries on a consolidated basis for such period and in accordance with
GAAP.
"Adjusted Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense for such period, and (ii) all payment obligations
of the Borrower and its Consolidated Subsidiaries for such period under all
operating leases and rental agreements.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.06(c).
"Affiliate" of any Person means (i) any other Person which
directly, or indirectly through one or more intermediaries, controls such
Person, (ii) any other Person which directly, or indirectly through one or more
intermediaries, is controlled by or is under common control with such Person, or
(iii) any other Person of which such Person owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
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"Agent's Letter Agreement" means that certain letter
agreement, dated as of October 11, 1999, between the Borrower, Wachovia
Securities, Inc., as Arranger and the Agent relating to the structure of the
Loans, and certain fees from time to time payable by the Borrower to Wachovia
Securities, Inc., as Arranger and the Agent, together with all amendments and
modifications thereto.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Anniversary Date" means December 21, 2000 and each
anniversary of the Closing Date thereafter.
"Applicable Facility Fee Rate" has the meaning set forth in
Section 2.07(a).
"Applicable Margin" has the meaning set forth in Section
2.06(a).
"Arranger" means Wachovia Securities, Inc., in its capacity as
arranger under the Agent's Letter Agreement.
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.07(c) in the form attached hereto as
Exhibit J.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or (ii)
one-half of one percent above the Federal Funds Rate for such day. For purposes
of determining the Base Rate for any day, changes in the Prime Rate and the
Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate.
"Borrower" means Outback Steakhouse, Inc., a Delaware
corporation, and its successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower at the same time by, in the case of a Syndicated Borrowing,
the Banks, or, in the case of a Money Market Borrowing, one or more of the
Banks, in each case pursuant to Article II. A Borrowing is a "Syndicated
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Borrowing" if such Loans are Syndicated Loans or a "Money Market Borrowing" if
such Loans are Money Market Loans. A Borrowing is a "Base Rate Borrowing" if
such Loans are Base Rate Loans or a "Euro-Dollar Borrowing" if such Loans are
Euro-Dollar Loans.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss.9601 et seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means December 21, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Collateral Agency Agreement " means the Collateral Agency
Agreement dated as of even date herewith among the Collateral Agent, the Banks,
the Borrower and the Guarantors, substantially in the form attached hereto as
EXHIBIT I.
"Collateral Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of America, in
its capacity as collateral agent for the Secured Parties under the Pledge
Agreement, the Guaranty, and the Collateral Agency Agreement.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, or (ii)
as to any Bank which enters into an Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's Commitment
after giving effect to such Assignment and Acceptance, in each case as such
amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.
"Company Owned Restaurants" means each restaurant that
satisfies the following requirements: (1) the Borrower or a Consolidated
Subsidiary that is a Guarantor has a direct ownership interest in the entity
that owns such restaurant; and (2) the entity that owns and operates such
restaurant is organized as a partnership or limited liability company in which
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the Borrower or a Consolidated Subsidiary that is a Guarantor: (a) is a general
partner or managing member; and (b) holds no less than a 51% ownership interest.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Interest Expense" for any period means interest,
whether expensed or capitalized, in respect of Debt of the Borrower or any of
its Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any equity
interests of the Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
"Consolidated Net Worth" means, at any time, Stockholders'
Equity, as set forth or reflected on the most recent consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries, prepared in accordance with
GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial statements
as of such date.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Consolidated Total Debt" means at any date the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under capital
leases, (v) all obligations of such Person to reimburse any bank or other Person
in respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations (absolute or contingent) of such Person to reimburse any
bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien on any asset of
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such Person, whether or not such Debt is assumed by such Person, (ix) all Debt
of others Guaranteed by such Person, (x) Synthetic Lease Indebtedness; (xi) all
indebtedness, liabilities and obligations of such Person in connection with or
arising from asset securitizations, including, without limitation,
Securitization Facility Attributed Debt; and (xii) all obligations of such
Person with respect to interest rate protection agreements, foreign currency
exchange agreements or other hedging agreements (valued as the termination value
thereof computed in accordance with a method approved by the International Swap
Dealers Association and agreed to by such Person in the applicable hedging
agreement, if any).
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Syndicated Loan,
Money Market Loan or Swing Line Loan, on any day, the sum of 2% plus the then
highest interest rate (including the Applicable Margin) which may be applicable
to any Syndicated Loan, Money Market Loan or Swing Line Loan hereunder
(irrespective of whether any such type of Loans are actually outstanding
hereunder).
"Depreciation and Amortization" means for any period the sum
of all depreciation and amortization expenses of the Borrower and its
Consolidated Subsidiaries for such period, as determined in accordance with
GAAP.
"Development Joint Venture" means an entity that satisfies the
following requirements: (1) the Borrower or a Consolidated Subsidiary that is a
Guarantor has a direct ownership interest in such entity; (2) the Borrower or a
Consolidated Subsidiary that is a Guarantor holds at least a 50% ownership
interest in such entity; and (3) neither the Borrower nor any Consolidated
Subsidiary, individually or with another Consolidated Subsidiary or the
Borrower, has agreed to be responsible for more than 50% of the obligations,
liabilities or costs of such entity.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized or
required by law to close.
"Domestic Subsidiary" means any Subsidiary which is organized
under the laws of any state or territory of the United States of America.
"EBITDA" means for any period the sum of: (a) Consolidated Net
Income, plus (b) the amount deducted in determining Consolidated Net Income for
such period for (i) taxes on income, (ii) Consolidated Interest Expense, and
(iii) Depreciation and Amortization, all determined with respect to the Borrower
and its Consolidated Subsidiaries on a consolidated basis for such period and in
accordance with GAAP. In determining EBITDA for any period, (i) any Consolidated
Subsidiary acquired during such period by the Borrower or any other Consolidated
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Subsidiary shall be included on a pro forma, historical basis as if it had been
a Consolidated Subsidiary during such entire period, (ii) any amounts which
would be included in a determination of EBITDA for such period with respect to
assets acquired during such period by the Borrower or any Consolidated
Subsidiary shall be included in the determination of EBITDA for such period and
the amount thereof shall be calculated on a pro forma, historical basis as if
such assets had been acquired by the Borrower or such Consolidated Subsidiary
prior to the first day of such period, (iii) any Consolidated Subsidiary sold
during such period by the Borrower or any other Consolidated Subsidiary shall be
excluded as if it had not been a Consolidated Subsidiary at any time during such
period, and (iv) any amounts which would be otherwise included in a
determination of EBITDA for such period with respect to assets sold or otherwise
disposed of during such period by the Borrower or any Consolidated Subsidiary
shall be excluded in the determination of EBITDA for such period and the amount
excluded shall be calculated as if such assets had been sold or otherwise
disposed of by the Borrower or such Consolidated Subsidiary prior to the first
day of such period.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation of
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any Environmental Requirement or any investigations concerning any violation of
any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state and
local laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law and the regulations
promulgated and rulings issued thereunder. Any reference to any provision of
ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.06.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means that certain Credit
Agreement dated August 22, 1997 by and between the Borrower, Outback Steakhouse
of Florida, Inc., Carrabba's Italian Grill, Inc., the lenders identified therein
and ▇▇▇▇▇▇▇ Bank, N.A., as agent.
"Facility Fee Determination Date" has the meaning set forth in
Section 2.07(a).
"Facility Fee Payment Date" means each March 31, June 30,
September 30 and December 31.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
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Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to Wachovia on such day on
such transactions as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Foreign Subsidiary" means any Wholly Owned Subsidiary which
is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), PROVIDED that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" shall mean collectively: (a) all Material
Domestic Subsidiaries existing on the Closing Date; and (b) all Material
Domestic Subsidiaries acquired, formed or otherwise in existence after the
Closing Date.
"Guaranty" means the Guaranty Agreement executed by each of
the Guarantors substantially in the form of Exhibit H hereto, either as
originally executed or as it may be from time to time supplemented, modified,
amended, renewed, extended or restated from time to time.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss.6901 et seq. and its implementing regulations and amendments,
or in any applicable state or local law or regulation, (b) any "hazardous
substance", "pollutant" or "contaminant", as defined in CERCLA, or in any
applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
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and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Indemnity Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement to be entered into among the
Borrower, the Guarantors the Pledgor Subsidiaries and the Collateral Agent,
substantially in the form attached hereto as EXHIBIT G, as modified, amended,
supplemented or restated from time to time.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
PROVIDED that:
(a) any Interest Period (subject to clause (c) below) which
would otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to clause (c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Swing Line Borrowing, the period commencing on the date
of such Borrowing and ending up to 30 days thereafter, as the Borrower may elect
in the applicable Notice of Borrowing; PROVIDED that:
(a) any Interest Period (subject to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; PROVIDED that:
(a) any Interest Period (subject to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
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(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(4) with respect to each Money Market Borrowing, the period commencing on the
date of such Borrowing and ending 7 to 180 days thereafter, as the Borrower may
indicate in the applicable Money Market Quote Request; PROVIDED that:
(a) any Interest Period (subject to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of a
time deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary 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" means a Syndicated Loan, Swing Line Loan or a Money
Market Loan and "Loans" means Syndicated Loans, Swing Line Loans or Money Market
Loans, or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, the Pledge Agreement, the Collateral Agency Agreement, any other
document evidencing, relating to or securing the Loans, and any other document
or instrument delivered from time to time in connection with this Agreement, the
Notes, the Guaranty, the Pledge Agreement, the Collateral Agency Agreement or
the Loans, as such documents and instruments may be amended or supplemented from
time to time.
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"Loan Parties" means collectively the Borrower and each
Subsidiary of the Borrower that is now or hereafter a party to any of the Loan
Documents.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.06.
"Margin Stock" means "margin stock" as defined in Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System, as in
effect from time to time, together with all official rulings and interpretations
issued thereunder.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business, properties or prospects of
the Borrower and its Consolidated Subsidiaries taken as a whole, (b) the rights
and remedies of the Agent or the Banks under the Loan Documents, or the ability
of the Borrower to perform its obligations under the Loan Documents to which it
is a party, as applicable, or (c) the legality, validity or enforceability of
any Loan Document.
"Material Domestic Subsidiaries" means each Domestic
Subsidiary with total assets of $20,000,000 or more; provided that in the event
that, at any time, the total assets of all Domestic Subsidiaries which are not
then Guarantors (the "Non-Guarantor Domestic Subsidiaries"), in the aggregate,
is equal to or greater than $60,000,000, the Borrower shall so notify the Agent
and promptly thereafter (but in any event within 30 days after the date thereof)
shall cause any such Non-Guarantor Domestic Subsidiary which has total assets
equal to or greater than $12,000,000 to take the actions and deliver the
documents required by Section 5.22 and thereafter such Subsidiaries shall be
"Guarantors." On the Closing Date, the Material Domestic Subsidiaries are:
Outback Steakhouse of Florida, Inc.; Carrabba's Italian Grill, Inc.; Outback
Steakhouse International, Inc.; OS Capital, Inc.; OS Pacific, Inc.; OS Prime,
Inc.; and Outback Sports, LLC.
"Money Market Loan" means a Loan which bears or is to bear
interest at a Money Market Rate.
"Money Market Notes" means promissory notes of the Borrower,
substantially in the form of EXHIBIT B hereto, evidencing the obligation of the
Borrower to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto and "Money
Market Note" means any one of such Money Market Notes.
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03(c).
"Money Market Quote Request" has the meaning set forth in
Section 2.03(b).
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"Money Market Rate" has the meaning set forth in Section
2.03(c)(ii)(C).
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Net Proceeds of Capital Stock/Conversion of Debt" means any
and all proceeds (whether cash or non-cash) or other consideration received by
the Borrower or a Consolidated Subsidiary in respect of the issuance of Capital
Stock (including, without limitation, the aggregate amount of any and all Debt
converted into Capital Stock), after deducting therefrom all reasonable and
customary costs and expenses incurred by the Borrower or such Consolidated
Subsidiary directly in connection with the issuance of such Capital Stock.
"Note" means a Syndicated Note, Swing Line Note or a Money
Market Note and "Notes" means Syndicated Notes, Swing Line Notes or Money Market
Notes, or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Obligations" means the collective reference to all
indebtedness, obligations and liabilities to the Banks, the Swing Line Lender,
the Agent or the Collateral Agent existing on the date of this Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, of the Loan
Parties under this Agreement or any other Loan Document.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Participant" has the meaning set forth in Section 9.07(b).
"Participating Subsidiary" means any Subsidiary of the
Borrower that is a participant in a Permitted Securitization.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means the acquisition of: (I) shares
of capital stock or other equity interests of any Person by the Borrower or any
Subsidiary of the Borrower if: (A) immediately after giving effect to such
acquisition (i) such Person is a Consolidated Subsidiary; (ii) the Borrower
controls such Person directly or indirectly through a Subsidiary; and (iii) no
Default shall have occurred and be continuing; (B) the line or lines of business
engaged in by such Person are similar to the lines of business engaged in by the
Borrower and its Subsidiaries on the Closing Date; and (C) such acquisition is
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made on a negotiated basis with the approval of the Board of Directors of the
Person to be acquired; and (D) such acquisition is permitted under Section 5.23;
and (II) all or substantially all of the assets of a Person if: (A) the assets
acquired by the Borrower or such Subsidiary of the Borrower, shall be used in a
line of business similar to the lines of business engaged in by the Borrower and
its Subsidiaries on the Closing Date; (B) no Default shall have occurred and be
continuing; and (C) such acquisition is permitted under Section 5.23.
"Permitted Securitization" means any financing program
providing for the sale or transfer of Securitization Assets by the Borrower or
its Participating Subsidiaries, in transactions purporting to be sales (and
treated as sales for GAAP purposes): (1) to one or more limited purpose
financing companies, special purpose entities and/or other financial
institutions; (2) in each case, on a nonrecourse basis as to the Borrower and
the Participating Subsidiaries subject to Standard Securitization Undertakings;
and (3) in each case, for the fair market value of the Securitization Assets
sold or transferred, including cash in an amount at least equal to 75% of the
fair market value thereof, as determined in accordance with GAAP (for purposes
of this definition a Purchase Money Note shall be deemed to be cash).
"Person" means an individual, a corporation, a limited
liability company, a partnership (including without limitation, a joint
venture), an unincorporated association, a trust or any other entity or
organization, including, but not limited to, a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Pledge Agreement" means the Pledge Agreement executed by the
Borrower and the other Loan Parties thereto pursuant to Section 5.22 of the
Credit Agreement in favor of the Collateral Agent, for the ratable benefit of
the Banks, substantially in the form attached hereto as Exhibit K, as modified,
amended, supplemented or restated from time to time.
"Pledged Stock and Related Collateral" means, collectively,
all of the property (including capital stock) in which Liens are purported to be
granted pursuant to the Pledge Agreement as security for the Obligations.
"Pledgor Subsidiary" has the meaning set forth in SECTION
5.22.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
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"Priority Debt" means (a) any Debt of the Borrower secured by
any Lien permitted pursuant to Section 5.08(k), and (b) any Debt of any
Subsidiary that is not a Guarantor; PROVIDED, HOWEVER, that Priority Debt shall
not include (i) any Debt owed by any Subsidiary to the Borrower or any Wholly
Owned Subsidiary, and (ii) any Debt incurred to refinance any Debt of any
Subsidiary outstanding on the Closing Date to the extent the amount of Debt so
incurred is not in excess of the amount of Debt refinanced.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Purchase Money Note" means a promissory note of a Receivables
Subsidiary evidencing a line of credit, which may be irrevocable, from the
Borrower or any Subsidiary of the Borrower in connection with a Permitted
Securitization to a Receivables Subsidiary which note shall be repaid from cash
available to the Receivables Subsidiary, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.
"Quotation Date" has the meaning set forth in Section 2.03(b).
"Rate Determination Date" has the meaning set forth in Section
2.06(a).
"Receivables Subsidiary" means a special purpose, bankruptcy
remote Wholly Owned Subsidiary of the Borrower which may be formed for the sole
and exclusive purpose of engaging in activities in connection with the purchase,
sale and financing of Securitization Assets in connection with and pursuant to a
Permitted Securitization.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Reported Net Income" means, for any period, the Net Income of
the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis.
"Required Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments are no longer
in effect, Banks holding at least 51% of the aggregate outstanding principal
amount of the Notes; provided that if such requirement is satisfied by no more
than two Banks, the term "Required Banks" shall mean Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the Notes.
"Secured Parties" shall have the meaning set forth in the
Pledge Agreement.
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"Securitization Assets" means all accounts receivable (whether
now existing or arising in the future) and other assets of the Borrower or any
of its Participating Subsidiaries which are sold or transferred pursuant to a
Permitted Securitization, and any assets related thereto, including without
limitation (i) all collateral given by any of the foregoing, (ii) all contracts
and all guarantees (but not by the Borrower or any of its Subsidiaries) or other
obligations directly related to any of the foregoing, (iii) other related assets
including those set forth in the Securitization Documents, and (iv) proceeds of
all of the foregoing.
"Securitization Documents" shall mean all documentation
relating to any Permitted Securitization.
"Securitization Facility Attributed Debt" at any time shall
mean, without duplication, the aggregate net outstanding amount theretofore paid
to the Receivables Subsidiary, the Borrower or Participating Subsidiaries in
respect of the Securitization Assets sold or transferred by it in connection
with a Permitted Securitization (it being the intent of the parties that the
amount of Securitization Facility Attributed Debt at any time outstanding
approximate as closely as possible the principal amount of Debt which would be
outstanding at such time under the Permitted Securitization if the same were
structured as a secured lending agreement rather than a purchase agreement).
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which are reasonably customary in an accounts
receivable securitization.
"Stockholders' Equity" means, at any time, the shareholders'
equity of the Borrower and its Consolidated Subsidiaries, as set forth or
reflected on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP, BUT EXCLUDING any
Redeemable Preferred Stock of the Borrower or any of its Consolidated
Subsidiaries. Shareholders' equity generally would include, but not be limited
to (i) the par or stated value of all outstanding Capital Stock, (ii) capital
surplus, (iii) retained earnings, and (iv) various deductions such as (A)
purchases of treasury stock, (B) valuation allowances, (C) receivables due from
an employee stock ownership plan, (D) employee stock ownership plan debt
guarantees, and (E) translation adjustments for foreign currency transactions.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Swing Line Borrowing" means a Swing Line Loan made to the
Borrower by the Swing Line Lender pursuant to Article II.
"Swing Line Lender" means Wachovia Bank, N.A.
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"Swing Line Loan" means a loan made by the Swing Line Lender
pursuant to Section 2.14 hereof.
"Swing Line Note" means the promissory note of the Borrower,
substantially in the form of Exhibit C hereto, evidencing the obligation of the
Borrower to repay the Swing Line Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Syndicated Loan" means a Base Rate Loan or a Euro-Dollar Loan
and Syndicated Loans means Base Rate Loans or Euro-Dollar Loans, or any or all
of them, as the context shall require.
"Syndicated Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto and "Syndicated
Note" means any one of such Syndicated Notes.
"Synthetic Lease Indebtedness" means the aggregate principal
amount of all indebtedness incurred in connection with any Synthetic Lease
Transaction which is secured, supported or serviced, directly or indirectly, by
any payments made by the Borrower or any Subsidiary.
"Synthetic Lease Transaction" means any transaction involving
a 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, and in respect of which transaction any
Synthetic Lease Indebtedness is issued or incurred.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means December 21, 2002, as such
Termination Date may be extended pursuant to Section 2.05(b).
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Total Unused Commitments" means at any date, an amount equal
to: (i) the aggregate amount of the Commitments of all of the Banks at such
time, less (ii) the aggregate outstanding principal amount of the Loans of all
of the Banks at such time.
"Transferee" has the meaning set forth in Section 9.07(d).
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"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding principal
amount of its Loans.
"Usage Margin" means, with respect to any Euro-Dollar Loan, an
amount equal to (1) zero percent (0%) if on the date such Euro-Dollar Loan is
advanced hereunder to the Borrower the aggregate principal amount of all Loans
(including the Euro-Dollar Loans to be advanced on such date) outstanding on
such day is less than an amount equal to 33 1/3% of the aggregate Commitments on
such day; and (2) one-eighth of one percent (.125%) if on the date such
Euro-Dollar Loan is advanced hereunder to the Borrower the aggregate principal
amount of all Loans (including the Euro-Dollar Loans to be advanced on such
date) outstanding on such day is equal to or greater than an amount equal to 33
1/3% of the aggregate Commitments on such day.
"Wachovia" means Wachovia Bank, N.A., a national banking
association and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
"Y2K Plan" has the meaning set forth in Section 4.19.
"Year 2000 Compliant and Ready" means that (A) the Borrower=s
and its Subsidiaries= hardware and software systems with respect to the
operation of its business and its general business plan will: (i) handle date
information involving any and all dates before, during and/or after January 1,
2000, including accepting input, providing output and performing date
calculations in whole or in part; (ii) operate, accurately without interruption
on and in respect of any and all dates before, during and/or after January 1,
2000 and without any change in performance; (iii) store and provide date input
information without creating any ambiguity as to the century and; (B) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (i) through (iii) above.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks, unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of
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such financial statements, or (ii) the Required Banks shall so object in writing
within 30 days after the delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 5.01 hereof, shall mean
the financial statements referred to in Section 4.04).
SECTION 1.03. USE OF DEFINED TERMS. All terms defined in this
Agreement shall have the same meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall
otherwise require.
SECTION 1.04. TERMINOLOGY. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.05. REFERENCES. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", and
"Sections" are references to articles, exhibits, schedules and sections hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO MAKE SYNDICATED LOANS. Each Bank
severally agrees, on the terms and conditions set forth herein, to make
Syndicated Loans to the Borrower from time to time before the Termination Date;
PROVIDED that, immediately after each such Syndicated Loan is made, the
aggregate outstanding principal amount of Syndicated Loans by such Bank
(together with, in the case of the Swing Line Lender, the aggregate principal
amount of all Swing Line Loans) shall not exceed the amount of its Commitment,
PROVIDED FURTHER that the aggregate principal amount of all Syndicated Loans,
together with the aggregate principal amount of all Money Market Loans and Swing
Line Loans, at any one time outstanding shall not exceed the aggregate amount of
the Commitments of all of the Banks at such time. Each Syndicated Borrowing
under this Section that is a Euro-Dollar Borrowing shall be in an aggregate
principal amount of $5,000,000 or any larger multiple of $1,000,000 and each
Syndicated Borrowing under this Section that is a Base Rate Borrowing shall be
in an aggregate principal amount of $1,000,000 or any larger multiple of
$500,000 (except that any such Syndicated Borrowing may be in the aggregate
amount of the Unused Commitments) and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, repay or, to the extent
permitted by Section 2.10, prepay Syndicated Loans and reborrow under this
Section at any time before the Termination Date.
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS. (a) The
Borrower shall give the Agent notice in the form attached hereto as Exhibit L (a
"Notice of Borrowing") prior to 11:00 A.M. (Atlanta, Georgia time) on the
Domestic Business Day of each
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Base Rate Borrowing and at least 3 Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which
shall be a Domestic Business Day in the case of a Base Rate
Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated
Borrowing,
(iii) whether the Syndicated Loans comprising such
Syndicated Borrowing are to be Base Rate Loans or Euro-Dollar
Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Syndicated Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(c) Not later than 1:00 p.m. (Atlanta, Georgia time) on the
date of each Syndicated Borrowing, each Bank shall (except as provided in
subsection (d) of this Section) make available its ratable share of such
Syndicated Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in or specified
pursuant to Section 9.01. Unless the Agent determines that any applicable
condition specified in Article III has not been satisfied, the Agent will make
the funds so received from the Banks available to the Borrower at the Agent's
aforesaid address. Unless the Agent receives notice from a Bank, at the Agent's
address referred to in Section 9.01, no later than 4:00 P.M. (local time at such
address) on the Domestic Business Day before the date of a Syndicated Borrowing
stating that such Bank will not make a Syndicated Loan in connection with such
Syndicated Borrowing, the Agent shall be entitled to assume that such Bank will
make a Syndicated Loan in connection with such Syndicated Borrowing and, in
reliance on such assumption, the Agent may (but shall not be obligated to) make
available such Bank's ratable share of such Syndicated Borrowing to the Borrower
for the account of such Bank. If the Agent makes such Bank's ratable share
available to the Borrower and such Bank does not in fact make its ratable share
of such Syndicated Borrowing available on such date, the Agent shall be entitled
to recover such Bank's ratable share from such Bank or the Borrower (and for
such purpose shall be entitled to charge such amount to any account of the
Borrower maintained with the Agent), together with interest thereon for each day
during the period from the date of such Syndicated Borrowing until such sum
shall be paid in full at a rate per annum equal to the rate at which the Agent
determines that it obtained (or could have obtained) overnight Federal funds to
cover such amount for each such day during such period, PROVIDED that any such
payment by the Borrower of such Bank's ratable share and interest thereon shall
be without prejudice to any rights that the Borrower may have against such Bank.
If such Bank shall repay to the Agent such corresponding amount, such amount so
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repaid shall constitute such Bank's Syndicated Loan included in such Syndicated
Borrowing for purposes of this Agreement.
(d) If any Bank makes a new Syndicated Loan hereunder on a day
on which the Borrower is to repay all or any part of an outstanding Syndicated
Loan from such Bank, such Bank shall apply the proceeds of its new Syndicated
Loan to make such repayment and only an amount equal to the difference (if any)
between the amount being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection (c) of this
Section, or remitted by the Borrower to the Agent as provided in Section 2.12,
as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived in writing.
(f) In the event that a Notice of Borrowing fails to specify
whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, such Loans shall be made as Base Rate Loans. If the Borrower
is otherwise entitled under this Agreement to repay any Loans maturing at the
end of an Interest Period applicable thereto with the proceeds of a new
Borrowing, and the Borrower fails to repay such Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new corresponding
Borrowing, a new Borrowing shall be deemed to be made on the date such Loans
mature in an amount equal to the principal amount of the Loans so maturing, and
the Loans comprising such new Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein,
(i) there shall not be more than 8 different Interest Periods for both
Euro-Dollar Loans and Money Market Loans outstanding at the same time (for which
purpose Interest Periods described in different numbered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous) and (ii) the proceeds of any Base
Rate Borrowing shall be applied first to repay the unpaid principal amount of
all Base Rate Loans (if any) outstanding immediately before such Base Rate
Borrowing.
SECTION 2.03. MONEY MARKET LOANS. (a) In addition to making
Syndicated Borrowings, the Borrower may, as set forth in this Section, request
the Banks to make offers to make Money Market Loans to the Borrower. The Banks
may, but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section, provided that:
(i) there may be no more than 8 different Interest
Periods for both Euro-Dollar Loans and Money Market Loans
outstanding at the same time (for which purpose Interest
Periods described in different numbered clauses of the
definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous); and
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(ii) the aggregate principal amount of all Money
Market Loans, together with the aggregate principal amount of
all Syndicated Loans and Swing Line Loans, at any one time
outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time.
(b) When the Borrower wishes to request offers to make Money
Market Loans, it shall give the Agent (which shall promptly notify the Banks)
notice substantially in the form of EXHIBIT E hereto (a "Money Market Quote
Request") so as to be received no later than 11:00 A.M. (Atlanta, Georgia time)
two Domestic Business Days prior to the date of the Money Market Borrowing
proposed therein (or such other time and date as the Borrower and the Agent,
with the consent of the Required Banks, may agree), specifying:
(i) the proposed date of such Money Market Borrowing,
which shall be a Domestic Business Day (the "Quotation Date");
(ii) the aggregate amount of such Money Market
Borrowing, which shall be at least $5,000,000 (and in larger
multiples of $1,000,000) but shall not cause the limits
specified in Section 2.03(a) to be violated; and
(iii) the duration of the Interest Period applicable
thereto, which shall be 7 to 180 days.
The Borrower may request offers to make Money Market Loans for
up to three different Interest Periods in a single Money Market Quote Request;
provided that the request for each separate Interest Period shall be deemed to
be a separate Money Market Quote Request for a separate Money Market Borrowing.
Except as otherwise provided in the immediately preceding sentence, the Borrower
shall not deliver a Money Market Quote Request more frequently than once every 5
Domestic Business Days.
(c) (i) Each Bank may, but shall have no obligation to, submit
a Money Market Quote containing an offer to make a Money Market Loan in response
to any Money Market Quote Request; provided that, if the Borrower's request
under Section 2.03(b) specified more than one Interest Period, such Bank may,
but shall have no obligation to, make a single submission containing a separate
offer for each such Interest Period and each such separate offer shall be deemed
to be a separate Money Market Quote. Each Money Market Quote must be submitted
to the Agent not later than 10:00 A.M. (Atlanta, Georgia time) on the Quotation
Date (or such other time and date as the Borrower and the Agent, with the
consent of the Required Banks, may agree); PROVIDED that any Money Market Quote
submitted by Wachovia may be submitted, and may only be submitted, if Wachovia
notifies the Borrower of the terms of the offer contained therein not later than
9:45 A.M. (Atlanta, Georgia time) on the Quotation Date. Subject to Section
6.01, any Money Market Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of the Borrower.
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(ii) Each Money Market Quote shall be in
substantially the form of EXHIBIT F hereto and shall specify:
(A) the proposed date of the Money Market
Borrowing and the duration of the Interest Period
therefor, which shall be 7 to 180 days;
(B) the maximum principal amount of the
Money Market Loan which the quoting Bank is willing
to make for the applicable Interest Period, which
principal amount (x) may be greater than or less than
the Commitment of the quoting Bank, (y) shall be at
least $5,000,000 or a larger multiple of $1,000,000,
and (z) may not exceed the principal amount of the
Money Market Borrowing for which offers were
requested;
(C) the rate of interest per annum (rounded,
if necessary, to the nearest 1/100th of 1%) (the
"Money Market Rate") offered for each such Money
Market Loan; and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Money Market Quote
Request (other than setting forth the maximum principal amount of the Money
Market Loan which the quoting Bank is willing to make for the applicable
Interest Period).
(d) The Agent shall as promptly as practicable after the Money
Market Quote is submitted (but in any event not later than 10:30 A.M. (Atlanta,
Georgia time)) notify the Borrower of the terms (i) of any Money Market Quote
submitted by a Bank that is in accordance with Section 2.03(c) and (ii) of any
Money Market Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the same
Money Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Agent's notice to the Borrower shall specify (A) the maximum aggregate principal
amount of the Money Market Borrowing for which offers have been received and (B)
the maximum principal amount and Money Market Rates so offered by each Bank
(identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the
Quotation Date (or such other time and date as the Borrower and the Agent, with
the consent of the Required Banks, may agree), the Borrower shall notify the
Agent of its acceptance or nonacceptance of the offers so notified to it
pursuant to Section 2.03(d) and the Agent shall promptly notify each Bank that
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has submitted a Money Market Quote. In the case of acceptance, such notice shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept any Money Market Quote in whole or in part
(provided that any Money Market Quote accepted in part from any Bank shall not
be less than the amount set forth in the Money Market Quote of such Bank as the
minimum principal amount of the Money Market Loan such Bank was willing to make
for the applicable Interest Period); PROVIDED that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set
forth in the related Money Market Quote Request;
(ii) the aggregate principal amount of each Money
Market Borrowing shall be at least $5,000,000 (and in larger
multiples of $1,000,000) but shall not cause the limits
specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in
ascending order of Money Market Rates; and
(iv) the Borrower may not accept any offer where the
Agent has advised the Borrower that such offer fails to comply
with Section 2.03(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including, without limitation,
Section 2.03(a)).
If offers are made by two or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible (in multiples of $100,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 12:00 P.M. (Atlanta, Georgia time) on the
Quotation Date, make the amount of such Loan available to the Agent at its
address referred to in Section 9.01 in immediately available funds. The amount
so received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such date by depositing the
same, in immediately available funds, in an account of such Borrower maintained
with Wachovia.
(g) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") the option to fund all or any part of any Money Market Loan that such
Granting Lender would otherwise be obligated to fund pursuant to this Agreement;
PROVIDED THAT (i) nothing herein shall constitute a commitment by any SPC to
fund any Money Market Loan, and (ii) if an SPC elects not to exercise such
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option or otherwise fails to fund all or any part of such Money Market Loan, the
Granting Lender shall be obligated to fund such Money Market Loan pursuant to
the terms hereof. The funding of a Money Market Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Money Market Loan were funded by such Granting Lender. Each party hereto
agrees that no SPC shall be liable for any indemnity or payment under this
Agreement for which a Bank would otherwise be liable for so long as, and to the
extent, the Granting Lender provides such indemnity or makes such payment.
Notwithstanding anything to the contrary contained in this Agreement, any SPC
may disclose on a confidential basis any non-public information relating to its
funding of Money Market Loans to any rating agency, commercial paper dealer or
provider of any surety or guarantee to such SPC. This Section may not be amended
without the prior written consent of each Granting Lender, all or any part of
whose Money Market Loan is being funded by an SPC at the time of such amendment.
SECTION 2.04. NOTES. (a) The Syndicated Loans of each Bank
shall be evidenced by a single Syndicated Note payable to the order of such Bank
for the account of its Lending Office in an amount equal to the original
principal amount of such Bank's Commitment.
(b) The Money Market Loans made by any Bank to the Borrower
shall be evidenced by a single Money Market Note payable to the order of such
Bank for the account of its Lending Office.
(c) The Swing Line Loans made by the Swing Line Lender to the
Borrower shall be evidenced by a single Swing Line Note payable to the order of
the Swing Line Lender.
(d) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Agent shall deliver such Notes to such Bank. Each Bank shall record,
and prior to any transfer of its Notes shall endorse on the schedule forming a
part thereof appropriate notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by it, the date and amount
of each payment of principal made by the Borrower with respect thereto and
whether, in the case of such Bank's Syndicated Note, such Syndicated Loan is a
Base Rate Loan or Euro-Dollar Loan, and such schedule shall constitute
rebuttable presumptive evidence of the principal amount owing and unpaid on such
Bank's Notes; PROVIDED that the failure of any Bank to make, or any error in
making, any such recordation or endorsement shall not affect the obligation of
the Borrower hereunder or under the Notes or the ability of any Bank to assign
its Notes. Each Bank is hereby irrevocably authorized by the Borrower so to
endorse its Notes and to attach to and make a part of any Note a continuation of
any such schedule as and when required.
SECTION 2.05. MATURITY OF LOANS. (a) Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
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(b) Upon written request of the Borrower, which shall be in
writing and delivered to the Agent on a Domestic Business Day not more than 60,
nor fewer than 45, days prior to the first and second Anniversary Date, the
Banks and the Agent in their sole and absolute discretion may (but shall not be
obligated to) extend the then effective Termination Date for a period of 365
days; provided that in no event shall the Termination Date be extended to a date
later than December 21, 2004. In connection with any such extension request,
each Bank shall undertake a BONA FIDE credit analysis of the Borrower utilizing
current information on the financial condition of the Borrower and trends in the
financial performance of the Borrower and in the industry or industries in which
the Borrower operates. The terms of any extension of the Termination Date shall
be independently negotiated among the Borrower, the Banks and the Agent at the
time of the extension request, PROVIDED that the terms of the extension may be
the same as those in effect prior to any extension should the Borrower, the
Banks and the Agent so agree; provided, FURTHER, that should the terms of the
extension be other than those in effect prior to the extension, then the Loan
Documents shall be amended to the extent necessary to incorporate any such
different terms. In the event that a Bank chooses to extend the Termination Date
for such a 365 day period, notice shall be given by such Bank to the Borrower
and the Agent not more than 30, nor fewer than 15, days prior to the Anniversary
Date immediately succeeding the date on which Borrower's request was made;
PROVIDED that the Termination Date shall not be extended with respect to any of
the Banks unless the Required Banks are willing to extend the Termination Date
and either (i) the Banks willing to extend the Termination Date shall on the
Anniversary Date immediately succeeding the date on which Borrower's request was
made purchase ratable assignments (without any obligation to do so) from each
Bank (a "Terminating Bank") that has not elected to extend the Termination Date
(in the form of an Assignment and Acceptance) of the Terminating Bank's
Commitment in accordance with their respective percentage of the remaining
aggregate amount of the Commitments; PROVIDED that such remaining Banks shall be
provided such opportunity (which opportunity shall allow such Banks at least
five Domestic Business Days in which to make a decision) prior to the Borrower
finding another bank pursuant to the immediately succeeding clause (ii); and
PROVIDED, FURTHER, that should any of the remaining Banks elect not to purchase
such an assignment, then such other remaining Banks shall be entitled to
purchase an assignment on the Anniversary Date immediately succeeding the date
on which Borrower's request was made from any Terminating Bank which includes
the ratable interest that was otherwise available to such non-purchasing
remaining Bank or Banks, as the case may be, (ii) the Borrower shall find
another bank or banks, as the case may be, acceptable to the Agent, willing to
accept an assignment from any such Terminating Bank effective on the Anniversary
Date immediately succeeding the date on which Borrower's request was made (in
the form of an Assignment and Acceptance) in an amount equal to the Commitments
of any such Terminating Banks; (iii) the Borrower shall reduce the aggregate
amount of the Commitments effective on the Anniversary Date immediately
succeeding the date on which Borrower's request was made in an amount equal to
the Commitments of any such Terminating Banks; or (iv) on or before the
Anniversary Date immediately succeeding the date on which Borrower's request was
made, the Borrower, the Administrative Agent and the Banks willing to extend the
Termination Date shall enter into an amendment to this Agreement extending the
Termination Date with respect to the Banks willing to extend the Termination
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Date and providing that no Borrowing shall be made under this Agreement from a
Terminating Bank that matures after the Termination Date in effect prior to such
amendment.
SECTION 2.06. INTEREST RATES. (a) "Applicable Margin" shall be
determined quarterly based upon the ratio of Consolidated Total Debt (calculated
as of the last day of each Fiscal Quarter) to EBITDA (calculated as of the last
day of each Fiscal Quarter for the Fiscal Quarter then ended and the immediately
preceding three Fiscal Quarters), as follows:
RATIO OF CONSOLIDATED
TOTAL DEBT TO EBITDA BASE RATE LOANS EURO-DOLLAR LOANS
Greater than 1.5 0% .95%
Greater than 1.0 but
equal to or less than 1.5 0% .70%
Less than or equal to 1.0 0% .575%
The Applicable Margin shall be determined effective as of the date (herein, the
"Rate Determination Date") which is 60 days after the last day of the Fiscal
Quarter as of the end of which the foregoing ratio is being determined, based on
the quarterly financial statements for such Fiscal Quarter, and the Applicable
Margin so determined shall remain effective from such Rate Determination Date
until the date which is 60 days after the last day of the Fiscal Quarter in
which such Rate Determination Date falls (which latter date shall be a new Rate
Determination Date); PROVIDED that (i) for the period from and including the
Closing Date to but excluding the Rate Determination Date next following the
Closing Date, the Applicable Margin shall be (A) 0% for Base Rate Loans, and (B)
.575% for Euro-Dollar Loans, (ii) in the case of any Applicable Margin
determined for the fourth and final Fiscal Quarter of a Fiscal Year, the Rate
Determination Date shall be the date which is 120 days after the last day of
such final Fiscal Quarter and such Applicable Margin shall be determined based
upon the annual audited financial statements for the Fiscal Year ended on the
last day of such final Fiscal Quarter, and (iii) if on any Rate Determination
Date the Borrower shall have failed to deliver to the Banks the financial
statements required to be delivered pursuant to Section 5.01(a) or Section
5.01(b) with respect to the Fiscal Year or Fiscal Quarter, as the case may be,
most recently ended prior to such Rate Determination Date, then for the period
beginning on such Rate Determination Date and ending on the earlier of (A) the
date on which the Borrower shall deliver to the Banks the financial statements
to be delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter
or any subsequent Fiscal Quarter, or (B) the date on which the Borrower shall
deliver to the Banks annual financial statements required to be delivered
pursuant to Section 5.01(a) with respect to the Fiscal Year which includes such
Fiscal Quarter or any subsequent Fiscal Year, the Applicable Margin shall be
determined as if the ratio of Consolidated Total Debt to EBITDA was more than
1.5 at all times during such period. Any change in the Applicable Margin on any
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Rate Determination Date shall result in a corresponding change, effective on and
as of such Rate Determination Date, in the interest rate applicable to each
Syndicated Loan outstanding on such Rate Determination Date; provided, that: (i)
for Euro-Dollar Loans, changes in Applicable Margin shall only be effective for
Interest Periods commencing on or after the Rate Determination Date; and (ii) no
Applicable Margin shall be decreased pursuant to this Section 2.06 if a Default
is in existence on the Rate Determination Date.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan (excluding a Swing Line
Loan) shall bear interest, payable on demand, for each day until paid in full at
a rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of: (1) the Applicable Margin,
plus (2) the Usage Margin, plus (3) the applicable Adjusted London Interbank
Offered Rate for such Interest Period; PROVIDED that if any Euro-Dollar Loan
shall, as a result of clause (1)(c) of the definition of Interest Period, have
an Interest Period of less than one month, such Euro-Dollar Loan shall bear
interest during such Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than 3 months, at
intervals of 3 months after the first day thereof. Any overdue principal of and,
to the extent permitted by applicable law, overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day until paid in full at
a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan the rate
per annum determined on the basis of the rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rate appears on the display
designated as Page "3750" of the Telerate Service (or such other page as may
replace page 3750 of that service or such other service or services as may be
nominated by the British Banker's Association for the purpose of displaying
London Interbank Offered Rates for U.S. dollar deposits) determined as of 1:00
p.m. New York City time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
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respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
(d) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Money Market Rate for such Loan quoted
by the Bank making such Loan in accordance with Section 2.03. Such interest
shall be payable for such Interest Period on the last day thereof and, if such
Interest Period is longer than 90 days, at intervals of 90 days after the first
day thereof. Any overdue principal of and, to the extent permitted by law,
overdue interest on any Money Market Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
(e) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telecopy of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of a
Default, the principal amount of the Loans (excluding any Swing Line Loans)
(and, to the extent permitted by applicable law, all accrued interest thereon)
may, at the election of the Required Banks, bear interest at the Default Rate;
provided, however, that automatically whether or not the Required Banks elect to
do so, any overdue principal of and, to the extent permitted by law, overdue
interest on any Loan (excluding any Swing Line Loans) shall bear interest
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate. After the occurrence and during the continuance of a Default, the
principal amount of the Swing Line Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the Swing
Line Lender, bear interest at the Default Rate.
(g) Each Swing Line Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Base Rate. Such interest shall be
payable for such Interest Period on the last day thereof. Any overdue principal
of and, to the extent permitted by applicable law, overdue interest on the Swing
Line Loans may, at the election of the Swing Line Lender, bear interest, payable
on demand, for each day until paid at a rate per annum equal to the Default
Rate.
SECTION 2.07. FEES. (a) The Borrower shall pay to the Agent
for the ratable account of each Bank a facility fee equal to the product of: (i)
the aggregate of the daily average amounts of such Bank's Commitment, times (ii)
a per annum percentage equal to the Applicable Facility Fee Rate. Such facility
fee shall accrue from and including the Closing Date to and including the
Termination Date. Facility fees shall be payable quarterly in arrears on the
first Facility Fee Payment Date following each Facility Fee Determination Date
and on the Termination Date; provided that should the Commitments be terminated
at any time prior to the Termination Date for any
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reason, the entire accrued and unpaid facility fee shall be paid on the date of
such termination. The "Applicable Facility Fee Rate" shall be determined
quarterly based upon the ratio of Consolidated Total Debt (calculated as of the
last day of each Fiscal Quarter) to EBITDA (calculated as of the last day of
each Fiscal Quarter for the Fiscal Quarter then ended and the immediately
preceding three Fiscal Quarters) as follows:
RATIO OF CONSOLIDATED APPLICABLE
TOTAL DEBT TO EBITDA FACILITY FEE RATE
Greater than 1.5 .25%
Greater than 1.0
but equal to or less than 1.5 .20%
Less than or equal to 1.0 .175%
The Applicable Facility Fee Rate shall be determined effective as of the date
(herein, the "Facility Fee Determination Date") which is 60 days after the last
day of the Fiscal Quarter as of the end of which the foregoing ratio is being
determined, based on the quarterly financial statements for such Fiscal Quarter,
and the Applicable Facility Fee Rate so determined shall remain effective from
such Facility Fee Determination Date until the date which is 60 days after the
last day of the Fiscal Quarter in which such Facility Fee Determination Date
falls (which latter date shall be a new Facility Fee Determination Date);
PROVIDED that (i) for the period from and including the Closing Date to but
excluding the Facility Fee Determination Date next following the Closing Date,
the Applicable Facility Fee Rate shall be .175%; (ii) in the case of any
Applicable Facility Fee Rate determined for the fourth and final Fiscal Quarter
of a Fiscal Year, the Facility Fee Determination Date shall be the date which is
120 days after the last day of such final Fiscal Quarter and such Applicable
Facility Fee Rate shall be determined based upon the annual audited financial
statements for the Fiscal Year ended on the last day of such final Fiscal
Quarter, and (iii) if on any Facility Fee Determination Date the Borrower shall
have failed to deliver to the Banks the financial statements required to be
delivered pursuant to Section 5.01(a) or Section 5.01(b) with respect to the
Fiscal Year or Fiscal Quarter, as the case may be, most recently ended prior to
such Facility Fee Determination Date, then for the period beginning on such
Facility Fee Determination Date and ending on the earlier of (A) the date on
which the Borrower shall deliver to the Banks the financial statements to be
delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any
subsequent Fiscal Quarter, and (B) the date on which the Borrower shall deliver
to the Banks annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Facility Fee Rate shall be
determined as if the ratio of Consolidated Total Debt to EBITDA was more than
1.5 at all times during such period.
(b) The Borrower shall pay to the Agent, for the account and
sole benefit of the Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
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SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF
COMMITMENTS. The Borrower may, upon at least 3 Domestic Business Days' notice to
the Agent, terminate at any time, or proportionately reduce from time to time by
an aggregate amount of at least $5,000,000 or any larger multiple of $1,000,000,
the Commitments; provided, however, no such termination or reduction shall be in
an amount greater than the Total Unused Commitments on the date of such
termination or reduction. If the Commitments are terminated in their entirety,
all accrued fees (as provided under Section 2.07) shall be payable on the
effective date of such termination.
SECTION 2.09. MANDATORY REDUCTION AND TERMINATION OF
COMMITMENTS. The Commitments shall terminate on the Termination Date and any
Loans then outstanding (together with accrued interest thereon) shall be due and
payable on such date.
SECTION 2.10. OPTIONAL PREPAYMENTS. (a) The Borrower may, upon
at least 1 Domestic Business Day's notice to the Agent, prepay any Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $1,000,000, or any larger multiple of $500,000, by paying
the principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Base Rate Loans of the several Banks included in such Base Rate
Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not
prepay all or any portion of the principal amount of any Euro-Dollar Loan or any
Money Market Loan prior to the last day of an Interest Period applicable
thereto, unless such prepayment is accompanied by the amount due with respect
thereto under Section 8.05(a).
(c) The Borrower may prepay any Swing Line Loan in whole at
any time, or from time to time in part in amounts aggregating at least $100,000
or any larger multiple thereof by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment.
(d) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.11. MANDATORY PREPAYMENTS. On each date on which the
Commitments are reduced or terminated pursuant to Section 2.08 or Section 2.09,
the Borrower shall repay or prepay such principal amount of the outstanding
Loans, if any (together with interest accrued thereon and any amounts due under
Section 8.05(a)), as may be necessary so that after such payment the aggregate
unpaid principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced. Each such payment or prepayment shall be applied to
repay or prepay ratably the Loans
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of the several Banks; PROVIDED that such prepayment shall be applied, first, to
Syndicated Loans outstanding on the date of such prepayment (in direct order of
maturity) and then, to the extent necessary, to Money Market Loans outstanding
on the date of such prepayment (in direct order of maturity).
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans and
of commitment fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia time)
on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will promptly distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans or the Money Market Loans or of fees shall be due on a day which
is not a Domestic Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and all other
amounts to be made by the Borrower pursuant to this Agreement with respect to
any Loan or fee relating thereto shall be paid without deduction for, and free
from, any tax, imposts, levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of each Bank,
taxes imposed on or measured by its net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Bank is organized or any
political subdivision thereof and, in the case of each Bank, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, imposts, levies, duties, deductions or withholdings of any
nature being "Taxes"). In the event that the Borrower is required by applicable
law to make any such withholding or deduction of Taxes with respect to any Loan
or fee or other amount, the Borrower shall pay such deduction or withholding to
the applicable taxing authority, shall promptly furnish to any Bank in respect
of which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in order that the amount received by such Bank after the required
withholding or other payment shall equal the amount such Bank would have
received had no such withholding or other payment been made. If no withholding
or deduction of Taxes are payable in respect of any Loan or fee relating
thereto, the Borrower shall furnish any Bank, at such Bank's request, a
certificate from each applicable taxing authority or an opinion of counsel
acceptable to such Bank, in either case stating that such payments are exempt
from or not subject to withholding or deduction of Taxes. If the Borrower fails
to provide such original or certified copy of a receipt evidencing payment of
Taxes or certificate(s) or opinion of counsel of exemption, the Borrower hereby
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agrees to compensate such Bank for, and indemnify them with respect to, the tax
consequences of the Borrower's failure to provide evidence of tax payments or
tax exemption.
In the event any Bank receives a refund of any Taxes paid by
the Borrower pursuant to this Section 2.12, it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; PROVIDED, HOWEVER, if at
any time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.12 shall be applicable with respect to any Participant,
Assignee or other Transferee, and any calculations required by such provisions
(i) shall be made based upon the circumstances of such Participant, Assignee or
other Transferee, and (ii) constitute a continuing agreement and shall survive
the termination of this Agreement and the payment in full or cancellation of the
Notes.
SECTION 2.13. COMPUTATION OF INTEREST AND FEES. Interest on
Base Rate Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding the
last day). Interest on Euro-Dollar Loans and interest on Money Market Loans
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed, calculated as to each Interest Period from and including
the first day thereof to but excluding the last day thereof. Facility fees and
any other fees payable hereunder shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
excluding the last day).
SECTION 2.14. SWING LINE LOANS. (a) The Borrower may prior to
the Termination Date, as set forth in this Section, request the Swing Line
Lender to make, and the Swing Line Lender prior to the Termination Date will
make, Swing Line Loans to the Borrower, in an aggregate principal amount at any
one time outstanding, not exceeding $5,000,000, provided that:
(i) there may be no more than four (4) different Interest
Periods for Swing Line Loans outstanding at the same time;
(ii) the aggregate principal amount of all Swing Line Loans,
together with the aggregate outstanding principal amount of all
outstanding Loans, at any one time outstanding shall not at any one
time exceed the aggregate amount of the Commitments of all of the Banks
at such time; and
(iii) the aggregate principal amount of all Swing Line Loans,
together with all outstanding Loans made by the Swing Line Lender, at
any one time outstanding shall not exceed the Commitment of the Swing
Line Lender.
(b) When the Borrower wishes to request a Swing Line Loan, it
shall give the Agent notice substantially in the form of Exhibit M hereto (a
"Swing Line Loan Request") so as to be received no later than 11:00 A.M.
(Atlanta, Georgia time) on or before the date of the proposed Swing Line
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Borrowing proposed therein (or such other time and date as the Borrower and the
Swing Line Lender may agree), specifying:
(i) the proposed date of such Swing Line Borrowing, which
shall be a Domestic Business Day (the "Borrowing Date");
(ii) the aggregate amount of such Swing Line Borrowing, which
shall be at least $500,000 (or in larger multiples of $100,000) but
shall not cause the limits specified in Section 2.14(a) to be violated;
and
(iii) the duration of the Interest Period applicable thereto,
which shall be 1 to 30 days.
The Borrower may request Swing Line Loans for up to two (2)
different Interest Periods in a single Swing Line Loan Request; provided that
the request for each separate Interest Period shall be deemed to be a separate
Swing Line Loan Request for a separate Swing Line Borrowing. Except as otherwise
provided in the immediately preceding sentence, the Borrower shall not deliver a
Swing Line Loan Request more frequently than once every 3 Domestic Business
Days.
(c) The Swing Line Lender shall make the amount of such Swing
Line Loan available to the Borrower on such date by depositing the same, in
immediately available funds, in an account of such Borrower maintained with the
Swing Line Lender.
(d) Subject to the limitations contained in this Agreement,
the Borrower may borrow under this Section 2.14, prepay and reborrow under this
Section 2.14 at any time before the Termination Date. Each Swing Line Loan
included in any Swing Line Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the first to occur of: (i) the last day of
the Interest Period applicable to such Swing Line Borrowing; or (ii) the
Termination Date;
(e) At any time, upon the request of the Swing Line Lender,
each Bank other than the Swing Line Lender shall, on the third Domestic Business
Day after such request is made, purchase a participating interest in Swing Line
Loans in an amount equal to its ratable share (based upon its respective
Commitment) of such Swing Line Loans. On such third Domestic Business Day, each
Bank will immediately transfer to the Swing Line Lender, in immediately
available funds, the amount of its participation. Whenever, at any time after
the Swing Line Lender has received from any such Bank its participating interest
in a Swing Line Loan, the Agent receives any payment on account thereof, the
Agent will distribute to such Bank its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Bank's participating interest was outstanding and
funded); PROVIDED, HOWEVER, that in the event that such payment received by the
Agent is required to be returned, such Bank will return to the Agent any portion
thereof previously distributed by the Agent to it. Each Bank's obligation to
purchase such participating interests shall be absolute and unconditional and
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shall not be affected by any circumstance, including, without limitation: (i)
any set-off, counterclaim, recoupment, defense or other right which such Bank or
any other Person may have against the Swing Line Lender requesting such purchase
or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the termination of the
Commitments, provided that no Bank shall be required to purchase a participating
interest in any Swing Line Loan first advanced after the Swing Line Lender has
actual knowledge of an Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any other Person; (iv) any
breach of this Agreement by the Borrower or any other Bank, provided that no
Bank shall be required to purchase a participating interest in any Swing Line
Loan, if the aggregate outstanding principal amount of all Swing Line Loans
exceeds $5,000,000; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(f) Notwithstanding anything contained in this Agreement to
the contrary, the Swing Line Loan facility contained in this Section 2.14 shall
terminate immediately upon: (i) Wachovia's removal or resignation as Agent; or
(ii) termination of the Commitments (whether at maturity or otherwise).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. CONDITIONS TO FIRST BORROWING. The Borrower
shall satisfy the following conditions on the Closing Date:
(a) receipt by the Agent from each of the parties hereto of a
duly executed counterpart of this Agreement signed by such party;
(b) receipt by the Agent of a duly executed Syndicated Note, a
duly executed Swing Line Note and a duly executed Money Market Note for the
account of each Bank complying with the provisions of Section 2.04;
(c) receipt by the Agent of the opinions (together with any
opinions of local counsel relied on therein) of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel
for the Loan Parties and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Borrower, dated
as of the Closing Date, covering the matters set forth in Exhibits D-1 and D-2
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Agent or any Bank may reasonably request;
(d) receipt by the Agent of an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, special counsel for the Agent, dated as of the Closing
Date, substantially in the form of Exhibit N hereto and covering such additional
matters relating to the transactions contemplated hereby as the Agent may
reasonably request;
(e) receipt by the Agent of a certificate (the "Closing
Certificate"), dated as of the Closing Date, substantially in the form of
Exhibit O hereto, signed by a principal financial officer of the Borrower and
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each Loan Party, to the effect that (i) no Default has occurred and is
continuing on the Closing Date, and (ii) the representations and warranties of
the Loan Parties contained in the Loan Documents are true on and as of the
Closing Date;
(f) receipt by the Agent of all documents which the Agent or
any Bank may reasonably request relating to the existence of each Loan Party,
the corporate authority for and the validity of each Loan Document to which it
is a party, and any other matters relevant hereto, all in form and substance
satisfactory to the Agent, including without limitation a certificate of
incumbency of such Loan Party (the "Officer's Certificate"), signed by the
Secretary or an Assistant Secretary of such Loan Party, substantially in the
form of Exhibit P hereto, certifying as to the names, true signatures and
incumbency of the officer or officers of such Loan Party authorized to execute
and deliver the Loan Documents to which it is a party, and certified copies of
the following items: (i) such Loan Party's Certificate of Incorporation, (ii)
such Loan Party's Bylaws, (iii) a certificate of the Secretary of State of the
State of such Loan Party's organization as to the good standing of such Loan
Party as a corporation, and (iv) the action taken by the Board of Directors of
such Loan Party authorizing such Loan Party's execution, delivery and
performance of this Agreement, the Notes and the other Loan Documents to which
such Loan Party is a party;
(g) receipt by the Collateral Agent of the Guaranty, duly
executed by each Guarantor;
(h) receipt by the Agent of (i) the Collateral Agency
Agreement, duly executed by each Loan Party which is party thereto, and (ii) the
Indemnity, Subrogation and Contribution Agreement, duly executed by each Loan
Party which is a party thereto;
(i) receipt by the Collateral Agent of the Pledge Agreement,
if applicable, duly executed by each Loan Party which is a party thereto;
(j) receipt by the Collateral Agent of certificates
representing shares, if applicable, of all capital stock pledged under the
Pledge Agreement to the Collateral Agent, accompanied by instruments of transfer
and stock powers endorsed in blank, together with evidence satisfactory to the
Collateral Agent that such capital stock has been duly and validly pledged
thereunder to the Collateral Agent for the ratable benefit of the Banks and is
subject to no other Lien other than the Lien created under the Pledge Agreement
to secure the Obligations;
(k) receipt by the Agent and the Banks of evidence that all
fees due and payable to the Agent and the Banks on the Closing Date have been
paid in full;
(l) receipt by the Agent of evidence satisfactory to the Agent
that the Existing Credit Agreement has been terminated and any and all
indebtedness of the Borrower thereunder has been repaid in full;
(m) such other documents or items as the Agent, the Banks or
their counsel may reasonably request.
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SECTION 3.02. CONDITIONS TO ALL BORROWINGS. The obligation of
each Bank to make a Loan on the occasion of each Borrowing is subject to the
satisfaction of the following conditions:
(a) either (i) receipt by the Agent of Notice of Borrowing as
required by Section 2.02 (if such Borrowing is a Syndicated Borrowing), (ii)
compliance with the provisions of Section 2.03 (if such Borrowing is a Money
Market Borrowing); or (iii) compliance with the provisions of Section 2.14, in
the case of a Swing Line Loan;
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and as of
the date of such Borrowing; and
(d) the fact that the representations and warranties of the
Loan Parties contained in the Guaranty and the Pledge Agreement shall be true on
and as of the date of such Borrowing; and
(e) the fact that, immediately after such Borrowing (i) the
aggregate outstanding principal amount of the Syndicated Loans of each Bank
(together with, in the case of the Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans) will not exceed the amount of its
Commitment and (ii) the aggregate outstanding principal amount of the Loans will
not exceed the aggregate amount of the Commitments of all of the Banks as of
such date.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in clauses (b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
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SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Loan Parties of
this Agreement, the Notes and the other Loan Documents (i) are within the Loan
Parties' organizational powers, (ii) have been duly authorized by all necessary
organizational action, (iii) require no action by or in respect of, or filing
with, any governmental body, agency or official, (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation, operating agreement or by-laws of any Loan
Party or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or any of its Subsidiaries, and (v) do not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries, except in favor of the Collateral Agent, the Agent and
the Banks as provided in the Loan Documents.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of each of the Loan Parties that are a party thereto enforceable in accordance
with their respective terms, PROVIDED that the enforceability hereof and thereof
is subject in each case to general principles of equity and to bankruptcy,
insolvency and similar laws affecting the enforcement of creditors' rights
generally.
SECTION 4.04. FINANCIAL INFORMATION. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of December
31, 1998 and the related consolidated statements of income, shareholders' equity
and cash flows for the Fiscal Year then ended, reported on by
PricewaterhouseCoopers, LLP, copies of which have been delivered to each of the
Banks, and the unaudited consolidated financial statements of the Borrower for
the interim period ended September 30, 1999, copies of which have been delivered
to each of the Banks, fairly present, in conformity with GAAP, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
dates and their consolidated results of operations and cash flows for such
periods stated.
(b) Since December 31, 1998 there has been no event, act,
condition or occurrence having a Material Adverse Effect.
SECTION 4.05. LITIGATION. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official which could have a Material Adverse
Effect or which in any manner draws into question the validity or enforceability
of, or could impair the ability of any Loan Party to perform its obligations
under, this Agreement, the Notes or any of the other Loan Documents.
SECTION 4.06. COMPLIANCE WITH ERISA. (a) The Borrower and each
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects
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with the presently applicable provisions of ERISA and the Code, and have not
incurred any liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled
Group is or ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. TAXES. There have been filed on behalf of the
Borrower and its Subsidiaries all Federal, state and local income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of the Borrower or any Subsidiary have been paid. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate. United States income tax returns of the Borrower and its
Subsidiaries have been examined and closed through the Fiscal Year ended
December 31, 1997.
SECTION 4.08. SUBSIDIARIES. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. As of the Closing Date, the Borrower has no
Subsidiaries except those Subsidiaries listed on SCHEDULE 4.08. Each Compliance
Certificate delivered by the Borrower pursuant to SECTION 5.01(C) sets forth the
complete name and jurisdiction of the incorporation of each Subsidiary of the
Borrower created, formed or acquired during the time period covered by the
financial statements applicable to such Compliance Certificate. SCHEDULE 4.08
and such Compliance Certificates accurately set forth each such Subsidiary's
complete name and jurisdiction of incorporation.
SECTION 4.09. NOT AN INVESTMENT COMPANY. Neither the Borrower
nor any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS. Each of the
Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.08.
SECTION 4.12. NO DEFAULT. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by
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which it or any of its property is bound which could have or cause a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.13. FULL DISCLOSURE. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Agent or any
Bank will be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all facts
which could have or cause a Material Adverse Effect.
SECTION 4.14. ENVIRONMENTAL MATTERS. (a) Neither the Borrower
nor any Subsidiary is subject to any Environmental Liability which could have or
cause a Material Adverse Effect and neither the Borrower nor any Subsidiary has
been designated as a potentially responsible party under CERCLA or under any
state statute similar to CERCLA. None of the Properties has been identified on
any current or proposed (i) National Priorities List under 40 C.F.R. ss. 300,
(ii) CERCLIS list or (iii) any list arising from a state statute similar to
CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the Properties,
or, to the best of the knowledge of the Borrower, at or from any adjacent site
or facility, except for Hazardous Materials, such as cleaning solvents,
pesticides and other materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed of, and managed or otherwise handled in
minimal amounts in the ordinary course of business in compliance with all
applicable Environmental Requirements.
(c) The Borrower, and each of its Subsidiaries and Affiliates,
has procured all Environmental Authorizations necessary for the conduct of its
business, and is in compliance with all Environmental Requirements in connection
with the operation of the Properties and the Borrower's, and each of its
Subsidiary's and Affiliate's, respective businesses.
SECTION 4.15. COMPLIANCE WITH LAWS. The Borrower and each
Subsidiary is in compliance with all applicable laws, including, without
limitation, all Environmental Laws, except where any failure to comply with any
such laws would not, alone or in the aggregate, have a Material Adverse Effect.
SECTION 4.16. CAPITAL STOCK. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by the
Borrower free and clear of any Lien or adverse claim, except
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for the Liens provided in the Pledge Agreement. At least a majority of the
issued shares of capital stock of each of the Borrower's other Subsidiaries
(other than Wholly Owned Subsidiaries) is owned by the Borrower free and clear
of any Lien or adverse claim, except for the Liens provided in the Pledge
Agreement.
SECTION 4.17. MARGIN STOCK. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulations T, U or X of the Board of Governors of the Federal
Reserve System..
SECTION 4.18. INSOLVENCY. After giving effect to the execution
and delivery of the Loan Documents and the making of the Loans under this
Agreement, the Borrower will not be "insolvent," within the meaning of such term
as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11 of the
United States Code or Section 2 of the Uniform Fraudulent Transfer Act, or any
other applicable state law pertaining to fraudulent transfers, as each may be
amended from time to time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
SECTION 4.19. YEAR 2000 PLAN. The Borrower's and its
Subsidiaries' software and hardware systems which impact or affect in any way
the business operations of the Borrower and its Subsidiaries are Year 2000
Compliant and Ready.
SECTION 4.20. INSURANCE. The Borrower and each of its
Subsidiaries maintains (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its Property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business.
SECTION 4.21. JOINT VENTURES/PARTNERSHIPS. The Borrower agrees
to provide to the Agent annually, simultaneously with providing the information
required pursuant to Section 5.01(a), a then current list of all joint ventures
and partnerships in which the Borrower or a Subsidiary is a partner or venturer
(referred to herein collectively as the "Joint Ventures") and the percentage
ownership in each such Joint Venture owned by the Borrower or any Subsidiary.
Schedule 4.21 accurately sets forth the complete name and jurisdiction of
organization of each Joint Venture in which the Borrower or any Subsidiary owns
an Investment on the Closing Date. Except for Company Owned Restaurants and
Development Joint Ventures, neither the Borrower nor any Subsidiary is a general
partner in any Joint Venture, other than a Subsidiary that is a corporation, the
sole assets of which consist of its interest in such Joint Venture.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
5.01. INFORMATION. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, shareholders' equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by PricewaterhouseCoopers, LLP or other
independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to the
Required Banks;
(b) as soon as available and in any event within 45 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such Fiscal Quarter and the related statement of income and
statement of cash flows for such Fiscal Quarter and for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter, setting forth in each case
in comparative form the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified (subject to
normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting officer of
the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit Q (a "Compliance Certificate"), of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 5.03
through 5.08, inclusive, 5.11 and 5.26 on the date of such financial statements,
(ii) identifying the complete name and jurisdiction of incorporation of each
Subsidiary of the Borrower created, formed or acquired during the time period
covered by such financial statements; (iii) identifying the Domestic
Subsidiaries; and (iv) stating whether any Default exists on the date of such
certificate and, if any Default then exists, setting forth the details thereof
and the action which the Borrower is taking or proposes to take with respect
thereto;
(d) simultaneously with the delivery of each set of annual
financial statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that nothing has come to their attention to cause them to believe that any
Default existed on the date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of the chief financial
officer or the chief accounting officer of the Borrower setting forth the
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details thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Borrower shall have filed with the Securities and Exchange
Commission;
(h) if and when the Borrower or any member of the Controlled
Group (i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice;
(i) promptly after the Borrower knows of the commencement
thereof, notice of any litigation, dispute or proceeding involving a claim
against the Borrower and/or any Subsidiary for $1,000,000 or more in excess of
amounts covered in full by applicable insurance; and
(j) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Borrower will (i) keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of an
Event of Default and at the Borrower's expense after the occurrence of an Event
of Default to visit and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case at such reasonable times
and as often as may reasonably be desired.
SECTION 5.03. RATIO OF CONSOLIDATED TOTAL DEBT TO EBITDA. At
the end of each Fiscal Quarter commencing with the Fiscal Quarter ending
December 31, 1999, the ratio of Consolidated Total Debt determined for the
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Fiscal Quarter then ending to EBITDA for the Fiscal Quarter then ending and the
immediately preceding three Fiscal Quarters will not at any time exceed 2.00 to
1.00.
SECTION 5.04. MINIMUM CONSOLIDATED NET WORTH. Consolidated Net
Worth will at no time be less than $435,000,000 plus the sum of (i) 25% of the
cumulative Reported Net Income of the Borrower and its Consolidated Subsidiaries
during any period after December 31, 1998 (taken as one accounting period),
calculated quarterly but excluding from such calculations of Reported Net Income
for purposes of this clause (i) any quarter in which the Consolidated Net Income
of the Borrower and its Consolidated Subsidiaries is negative, and (ii) 100% of
the cumulative Net Proceeds of Capital Stock/Conversion of Debt received during
any period after December 31, 1998, calculated quarterly.
SECTION 5.05. ADJUSTED FIXED CHARGE COVERAGE RATIO. At the end
of each Fiscal Quarter, commencing with the Fiscal Quarter ending December 31,
1999, the ratio of Adjusted Cash Flow for the Fiscal Quarter then ended and the
immediately preceding three Fiscal Quarters to Adjusted Fixed Charges for the
Fiscal Quarter then ended and the immediately preceding three Fiscal Quarters,
shall be equal to or exceed 3.5 to 1.00 at all times.
SECTION 5.06. LOANS OR ADVANCES. Neither the Borrower nor any
of its Subsidiaries shall make loans or advances to any Person except: (i) loans
or advances to employees not exceeding One Million and no/100 Dollars
($1,000,000.00) in the aggregate outstanding made in the ordinary course of
business and consistently with practices existing on December 31, 1998; (ii)
deposits required by government agencies or public utilities; (iii) loans or
advances to Wholly Owned Subsidiaries that are Guarantors made in the ordinary
course of business and consistently with practices existing on December 31,
1998; (iv) loans or advances to Company Owned Restaurants made in the ordinary
course of business and consistently with practices existing on December 31,
1998; (v) loans or advances to Development Joint Ventures for purposes of
funding the obligations of the Borrower or a Consolidated Subsidiary that is a
Guarantor to such Development Joint Ventures, made in the ordinary course of
business and consistently with practices existing on December 31, 1998; and (vi)
loans or advances made in the ordinary course of business and consistently with
practices existing on December 31, 1998, provided that the aggregate outstanding
principal amount of the loans and advances made under this Section 5.06(vi),
together with any and all Investments made under Section 5.07(vi) shall not
exceed, in the aggregate, ten percent (10%) of Consolidated Net Worth; provided
that after giving effect to the making of any loans, advances or deposits
permitted by clause (i), (ii), (iii), (iv), (v) or (vi) of this Section, no
Default shall have occurred and be continuing.
SECTION 5.07. INVESTMENTS. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except as permitted by Section
5.06 and except Investments in (i) direct obligations of the United States
Government maturing within one year, (ii) certificates of deposit issued by a
commercial bank whose credit is satisfactory
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to the Agent, (iii) commercial paper rated A-1 or the equivalent thereof by
Standard & Poor's Corporation or P-1 or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. and in either case maturing within 270 days after the
date of acquisition, (iv) Company Owned Restaurants made in the ordinary course
of business and consistently with practices existing on December 31, 1998, (v)
Development Joint Ventures in satisfaction of the obligations of the Borrower or
a Consolidated Subsidiary that is a Guarantor to such Development Joint
Ventures, made in the ordinary course of business and consistently with
practices existing on December 31, 1998, (vi) the stock or other equity
interests of any other Person (excluding Investments existing on the Closing
Date) provided that the aggregate amount expended, assumed or incurred by the
Borrower and the Subsidiaries of the Borrower in connection with such Investment
does not exceed, when aggregated with the total amount expended, assumed or
incurred by the Borrower and the Subsidiaries in connection with all such other
Investments under this Section 5.07(vi), together with the aggregate outstanding
principal amount of the loans and advances made under Section 5.06(vi), ten
percent (10%) of Consolidated Net Worth at the time of such Investment, (vii)
Investments of the Borrower and its Subsidiaries existing on the Closing Date,
(viii) Investments in Permitted Acquisitions, (ix) obligations issued or
unconditionally guaranteed by a state or municipality having a rating of AA or
better from Standard & Poor's Corporaiton or Aa or better from ▇▇▇▇▇'▇ Investors
Service, Inc., (x) obligations of a corporation having a rating of AA or better
from Standard & Poor's Corporation or Aa or better from ▇▇▇▇▇'▇ Investors
Service, Inc., (xi) money market funds that invest exclusively in the
investments described in Subsections 5.07(i), (ii), (iii), (ix), (x) and (xii),
and/or (xii) tender bonds the payment of the principal of and interest on which
is fully supported by a letter of credit issued by a United States bank whose
long-term certificates of deposit are rated at least AA or the equivalent
thereof by Standard & Poor's Corporation and AA or the equivalent thereof by
▇▇▇▇▇'▇ Investors Service, Inc.
SECTION 5.08. NEGATIVE PLEDGE. Neither the Borrower nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $5,000,000.00;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring or
constructing such asset, PROVIDED that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion of
construction thereof;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the Borrower or a
Consolidated Subsidiary and not created in contemplation of such event;
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(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the
Borrower;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, PROVIDED that (i) such Debt is not secured by
any additional assets, and (ii) the amount of such Debt secured by any such Lien
is not increased;
(h) Liens incidental to the conduct of its business or the
ownership of its assets which (i) do not secure Debt and (ii) do not in the
aggregate materially detract from the value of its assets or materially impair
the use thereof in the operation of its business;
(i) Liens on Securitization Assets sold or transferred
pursuant to a Permitted Securitization;
(j) any Lien on Margin Stock; and
(k) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt (other than indebtedness represented by the Notes) in
an aggregate principal amount at any time outstanding not to exceed 10% of
Consolidated Net Worth.
SECTION 5.09. MAINTENANCE OF EXISTENCE. The Borrower shall,
and shall cause each Subsidiary to, maintain its corporate existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained.
SECTION 5.10. DISSOLUTION. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of stock of any Subsidiary, except
through corporate reorganization to the extent permitted by Section 5.11.
SECTION 5.11. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Borrower will not, nor will it permit any Subsidiary to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or eliminate any business
line or segment, PROVIDED that (a) the Borrower may merge with another Person if
(i) such Person was organized under the laws of the United States of America or
one of its states, (ii) the Borrower is the corporation surviving such merger
and (iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (b) Subsidiaries of the Borrower may merge with one
another, and (c) the foregoing limitation on the sale, lease or other transfer
of assets and on the discontinuation or elimination of a business line or
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segment shall not prohibit, during any Fiscal Quarter, a transfer of assets or
the discontinuance or elimination of a business line or segment (in a single
transaction or in a series of related transactions) unless the aggregate assets
to be so transferred or utilized in a business line or segment to be so
discontinued, when combined with all other assets transferred, and all other
assets utilized in all other business lines or segments discontinued, during
such Fiscal Quarter and the immediately preceding three Fiscal Quarters,
constituted more than 15% of Consolidated Total Assets at the end of the fourth
Fiscal Quarter immediately preceding such Fiscal Quarter.
SECTION 5.12. USE OF PROCEEDS. No portion of the proceeds of
the Loans will be used by the Borrower or any Subsidiary (i) in connection with,
either directly or indirectly, any tender offer for, or other acquisition of,
stock of any corporation with a view towards obtaining control of such other
corporation (other than a Permitted Acquisition), (ii) directly or indirectly,
for the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock, or (iii) for any purpose in violation of any
applicable law or regulation.
SECTION 5.13. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The
Borrower will, and will cause each of its Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited to
ERISA), regulations and similar requirements of governmental authorities
(including but not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings
diligently pursued. The Borrower will, and will cause each of its Subsidiaries
to, pay promptly when due all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which, if unpaid, might become a
lien against the property of the Borrower or any Subsidiary, except liabilities
being contested in good faith by appropriate proceedings diligently pursued and
against which, if requested by the Agent, the Borrower shall have set up
reserves in accordance with GAAP.
SECTION 5.14. INSURANCE. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Borrower
or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its Property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business.
SECTION 5.15. CHANGE IN FISCAL YEAR. The Borrower will not
change its Fiscal Year without the consent of the Required Banks.
SECTION 5.16. MAINTENANCE OF PROPERTY. The Borrower shall, and
shall cause each Subsidiary to, maintain all of its properties and assets in
good condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.17. ENVIRONMENTAL NOTICES. The Borrower shall
furnish to the Banks and the Agent prompt written notice of all Environmental
Liabilities, pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting the
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Properties or any adjacent property, and all facts, events, or conditions that
could lead to any of the foregoing.
SECTION 5.18. ENVIRONMENTAL MATTERS. The Borrower and its
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle or ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials such as cleaning solvents, pesticides
and other similar materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed, managed or otherwise handled in minimal
amounts in the ordinary course of business in compliance with all applicable
Environmental Requirements.
SECTION 5.19. ENVIRONMENTAL RELEASE. The Borrower agrees that
upon the occurrence of an Environmental Release at or on any of the Properties
it will act immediately to investigate the extent of, and to take appropriate
remedial action to eliminate, such Environmental Release, whether or not ordered
or otherwise directed to do so by any Environmental Authority.
SECTION 5.20 JOINT VENTURES/PARTNERSHIPS. Except for Company
Owned Restaurants and Development Joint Ventures, the Borrower shall not become
a general partner in any general or limited partnership or joint venture, or
permit any of its Subsidiaries to do so, other than any Subsidiary that is a
corporation and the sole assets of which consist of its interest in such
partnership or joint venture.
SECTION 5.21 TRANSACTIONS WITH AFFILIATES. Neither the
Borrower nor any of its Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of the Borrower or such Subsidiary (which
Affiliate is not the Borrower or a Subsidiary), except as permitted by law and
in the ordinary course of business and pursuant to reasonable terms which are
fully disclosed to the Agent and the Banks, consented to in writing by the
Required Banks, and are no less favorable to Borrower or such Subsidiary than
would be obtained in a comparable arm's length transaction with a Person which
is not an Affiliate.
SECTION 5.22 SUBSIDIARIES. (a) The Borrower shall cause any
Person which becomes a Material Domestic Subsidiary after the Closing Date to
become a party to, and agree to be bound by the terms of, the Guaranty pursuant
to an instrument in form and substance satisfactory to the Agent executed and
delivered to the Collateral Agent within ten (10) Domestic Business Days after
the day on which such Person became a Material Domestic Subsidiary. The Borrower
shall also cause the items specified in Section 3.01(c) and (f) to be delivered
to the Collateral Agent concurrently with the instrument referred to above,
modified appropriately to refer to such instrument and such Material Domestic
Subsidiary.
(b) The Borrower shall, or shall cause any Subsidiary (the
"Pledgor Subsidiary") to, pledge 66 2/3% of the shares of capital stock owned by
the Borrower or such Pledgor Subsidiary in any Person which becomes a Foreign
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Subsidiary after the Closing Date pursuant to a pledge agreement in form and
substance substantially identical to the Pledge Agreement attached hereto as
Exhibit K within ten (10) Domestic Business Days after the day on which such
Person became a Foreign Subsidiary and shall deliver to the Collateral Agent
such shares of capital stock together with stock powers executed in blank. The
Borrower shall also cause the items specified in Section 3.01(c) and (f) to be
delivered to the Agent concurrently with the pledge agreement referred to above,
modified appropriately to refer to such pledge agreement and such Foreign
Subsidiary.
(c) Once any Subsidiary becomes a Material Domestic Subsidiary
and therefore becomes a party to the Guaranty in accordance with Section 3.01(g)
or Section 5.22(a) or any shares of capital stock of a Foreign Subsidiary are
pledged to the Collateral Agent in accordance with Sections 3.01(i), Section
3.01(j) or Section 5.22(b), such Material Domestic Subsidiary (including,
without limitation, all initial Material Domestic Subsidiaries) thereafter shall
remain a party to the Guaranty and the shares of capital stock in such Foreign
Subsidiary (including, without limitation, all initial Foreign Subsidiaries)
shall remain subject to the pledge to the Collateral Agent, as the case may be,
even if such Subsidiary thereafter ceases to be a Material Domestic Subsidiary
or Foreign Subsidiary, as the case may be; provided that if a Material Domestic
Subsidiary or Foreign Subsidiary ceases to be a Subsidiary of the Borrower as a
result of the Borrower's transfer or sale of one hundred percent (100%) of the
capital stock of such Subsidiary in accordance with and to the extent permitted
by the terms of Section 5.11, the Agent and the Banks agree to release such
Subsidiary from the Guaranty and release the shares of capital stock of such
Subsidiary from the Pledge Agreement.
SECTION 5.23 ACQUISITIONS. The Borrower will not, nor will it
permit any Subsidiary to purchase, lease or otherwise acquire (in a single
transaction or in a series of transactions), directly or indirectly: (i) all or
any substantial part of the assets or stock of any other Person; (ii) a business
line or segment of any other Person; or (iii) control of any other Person,
unless such purchase, lease or acquisition constitutes a Permitted Acquisition.
SECTION 5.24. PERMITTED SECURITIZATIONS. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into or consummate
any financing program providing for the sale or transfer of Securitization
Assets by the Borrower or any Subsidiary unless such financing program
constitutes a "Permitted Securitization" as defined in Section 1.01.
SECTION 5.25 RESTRICTIONS AFFECTING SUBSIDIARIES. The Borrower
will not create, incur, permit or suffer to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon the ability
or right of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary; PROVIDED that the foregoing shall not apply to
restrictions or conditions imposed by law.
SECTION 5.26 LIMITATION ON PRIORITY DEBT. The Borrower shall
not permit the outstanding principal amount of Priority Debt to exceed, in the
aggregate, more than 10% of Consolidated Net Worth at any time.
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ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within five Domestic
Business Days after such interest shall become due, or shall fail to pay any fee
or other amount payable hereunder within five Domestic Business Days after such
fee or other amount becomes due; or
(b) the Borrower or any Subsidiary shall fail to observe or
perform any covenant contained in Sections 5.02(ii), 5.03 to 5.12, inclusive, or
Section 5.15 or 5.20 to 5.26, inclusive; or
(c) any Loan Party shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in any Loan
Document (other than those covered by clause (a) or (b) above) for thirty days
after the earlier of (i) the first day on which such Loan Party has knowledge of
such failure or (ii) written notice thereof has been given to the Borrower by
the Agent at the request of any Bank; or
(d) any representation, warranty, certification or statement
made or deemed made by any Loan Party in any Loan Document or in any
certificate, financial statement or other document delivered pursuant to any
Loan Document shall prove to have been incorrect or misleading in any material
respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding (other than the Notes) in an aggregate
principal amount in excess of $10,000,000 when due or within any applicable
grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower or any
Subsidiary in an aggregate principal amount in excess of $10,000,000 or the
mandatory prepayment or purchase of such Debt by the Borrower (or its designee)
or such Subsidiary (or its designee) prior to the scheduled maturity thereof, or
enables (or, with the giving of notice or lapse of time or both, would enable)
the holders of such Debt or any Person acting on such holders' behalf to
accelerate the maturity thereof or require the mandatory prepayment or purchase
thereof prior to the scheduled maturity thereof, without regard to whether such
holders or other Person shall have exercised or waived their right to do so; or
(g) the Borrower, any Loan Party or any Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any such
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official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally, or shall admit in writing its inability, to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower, any Loan Party or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Borrower,
any other Loan Party or any Subsidiary under the federal bankruptcy laws as now
or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall continue unsatisfied
and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or
any Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be
filed against the Borrower or any Subsidiary under Section 4068 of ERISA and in
either case such lien shall remain undischarged for a period of 25 days after
the date of filing; or
(l) (i) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act of
1934) of 30% or more of the outstanding shares of the voting stock of the
Borrower; or (ii) as of any date a majority of the Board of Directors of the
Borrower consists of individuals who were not either (A) directors of the
Borrower as of the corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A), or (C) selected or
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nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B); or
(m) if any provision of this Agreement, any Note, the
Guaranty, the Pledge Agreement or the Indemnity Subrogation and Contribution
Agreement shall for any reason cease to be valid and binding on any Loan Party,
or any Loan Party shall deny or disaffirm its obligations thereunder; or
(n) if the Pledge Agreement shall for any reason cease to
create a valid and perfected first priority security interest in any of the
Pledged Stock and Related Collateral purported to be encumbered thereby; or
(o) any event of default shall occur and be continuing under
the Pledge Agreement or Guaranty and such event of default continues beyond any
applicable cure or grace period provided therein.
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, (ii) if requested by the Swing Line Lender, by notice to
the Borrower terminate the Swing Line facility set forth in Section 2.14, and
(iii) if requested by the Required Banks, by notice to the Borrower declare the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents to be, and the Notes (together with
all accrued interest thereon) and all other amounts payable hereunder and under
the other Loan Documents shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; PROVIDED that if any Event of Default
specified in clause (g) or (h) above occurs with respect to the Borrower,
without any notice to the Borrower, any Guarantor or any other act by the Agent
or the Banks, the Commitments and the Swing Line facility set forth in Section
2.14 shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) and all other amounts payable hereunder and under the
other Loan Documents shall automatically become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower. Notwithstanding the foregoing, the Agent
shall have available to it all other remedies at law or equity, and shall
exercise any one or all of them at the request of the Required Banks.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice
to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT, POWERS AND IMMUNITIES. Each Bank
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions satisfactory to the Agent, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
SECTION 7.02. RELIANCE BY AGENT. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telefax, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
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SECTION 7.03. DEFAULTS. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
non-payment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each non-payment of principal of or
interest on the Loans, whether or not it has received any notice of the
occurrence of such non-payment. The Agent shall (subject to Section 9.05) take
such action with respect to such Default or Event of Default as shall be
directed by the Required Banks, provided that, unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. RIGHTS OF AGENT AND ITS AFFILIATES AS A BANK.
With respect to any Loan made by Wachovia or an Affiliate of Wachovia, such
Affiliate and Wachovia in their capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not an Affiliate of Wachovia (or in Wachovia's case, acting as
the Agent), and the term "Bank" or "Banks" shall, unless the context otherwise
indicates, include such Affiliate of Wachovia or Wachovia in its individual
capacity. Such Affiliate and Wachovia may (without having to account therefor to
any Bank) accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Borrower (and any of its
Affiliates) as if they were not an Affiliate of the Agent or the Agent,
respectively; and such Affiliate and Wachovia may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and Wachovia) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
SECTION 7.05. INDEMNIFICATION. Each Bank severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; PROVIDED, HOWEVER, that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
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SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Agent and the provisions of Section 9.07(c) have
been satisfied. Any requests, authority or consent of any Person who at the time
of making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of that Note or of any Note or Notes issued in exchange therefor or
replacement thereof. Each Bank acknowledges that each Person designated as an
"Arranger," a "Documentation Agent" or a "Syndication Agent" shall have no
right, duty or responsibility, and shall incur no liability under this Agreement
or any other Loan Document in its capacity as an "Arranger," a "Documentation
Agent" or a "Syndication Agent."
SECTION 7.08. NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
SECTION 7.09. FAILURE TO ACT. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Banks of their indemnification obligations under Section 7.05 against any
and all liability and expense which may be incurred by the Agent by reason of
taking, continuing to take, or failing to take any such action.
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SECTION 7.10. RESIGNATION OR REMOVAL OF AGENT. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Borrower and
the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which has
a combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE
OR UNFAIR. If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding the relevant type of Euro-Dollar Loans
for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
the type of Euro-Dollar Loans specified in such notice shall be suspended.
Unless the Borrower notifies the Agent at least 2 Domestic Business Days before
the date of any Euro-Dollar Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.02. ILLEGALITY. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such authority, bank or agency being referred to as an "Authority"
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and any such event being referred to as a "Change of Law"), or compliance by any
Bank (or its Lending Office) with any request or directive (whether or not
having the force of law) of any Authority shall make it unlawful or impossible
for any Bank (or its Lending Office) to make, maintain or fund its Euro-Dollar
Loans and such Bank shall so notify the Agent, the Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with accrued
interest thereon and any amount due such Bank pursuant to Section 8.05(a).
Concurrently with prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If after
the date hereof, a Change of Law or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Euro-Dollar
Loans, its Notes or its obligation to make Euro-Dollar Loans,
or shall change the basis of taxation of payments to any Bank
(or its Lending Office) of the principal of or interest on its
Euro-Dollar Loans or any other amounts due under this
Agreement in respect of its Euro-Dollar Loans or its
obligation to make Euro-Dollar Loans (except for changes in
the rate of tax on the overall net income of such Bank or its
Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Lending Office is
located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding with
respect to any Euro-Dollar Loan any such requirement included
in an applicable Euro-Dollar Reserve Percentage) against
assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Lending Office); or
(iii) shall impose on any Bank (or its Lending
Office) or on the London interbank market any other condition
affecting its Euro-Dollar Loans, its Notes or its obligation
to make Euro-Dollar Loans;
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and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any existing or future law, rule or regulation, or
any change in the interpretation or administration thereof, or compliance by any
Bank (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR EURO-DOLLAR
LOANS. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in all cases
interest and principal on such Loans shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and
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(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
SECTION 8.05. COMPENSATION. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10,
Section 2.11, Section 8.02 or otherwise) of a Euro-Dollar Loan or a Money Market
Loan on a date other than the last day of an Interest Period for such
Euro-Dollar Loan or Money Market Loan, as the case may be;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan
or a Money Market Loan on the date for such prepayment specified in the relevant
notice of prepayment hereunder;
(c) any failure by the Borrower to borrow a Euro-Dollar Loan
on the date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a
part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02; or
(d) any failure by the Borrower to borrow a Money Market Loan
(with respect to which the Borrower has accepted a Money Market Quote) on the
date for the Money Market Borrowing of which such Money Market Loan is a part
specified in the applicable Money Market Quote Request delivered pursuant to
Section 2.03;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on (i) deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or similar writing) and shall be given to such party at its address
or telecopy number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopy number specified in this Section and the telecopy machine used by the
sender provides a written confirmation that such telecopy has been so
transmitted or receipt of such telecopy transmission is otherwise confirmed,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, and (iii) if
given by any other means, when delivered at the address specified in this
Section; PROVIDED that notices to the Agent under Article II or Article VIII
shall not be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the Agent, in connection
with the preparation of this Agreement and the other Loan Documents, any waiver
or consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all out-of-pocket expenses incurred by the Agent or any Bank, including fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents.
(b) The Borrower shall indemnify the Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents.
(c) The Borrower shall indemnify the Agent, the Banks and each
Affiliate thereof and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims or damages to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by any
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Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from investigation, litigation (including, without limitation, any
actions taken by the Agent or any of the Banks to enforce this Agreement or any
of the other Loan Documents) or other proceeding (including, without limitation,
any threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Agent and each Bank, and each Affiliate thereof and
their respective directors, officers, employees and agents, upon demand for any
expenses (including, without limitation, legal fees) incurred in connection with
any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
SECTION 9.04. SETOFFS; SHARING OF SET-OFFS. (a) The Borrower
hereby grants to each Bank, as security for the full and punctual payment and
performance of the obligations of the Borrower under this Agreement, a
continuing lien on and security interest in all deposits and other sums credited
by or due from such Bank to the Borrower or subject to withdrawal by the
Borrower; and regardless of the adequacy of any collateral or other means of
obtaining repayment of such obligations, each Bank may at any time upon or after
the occurrence of any Event of Default, and without notice to the Borrower, set
off the whole or any portion or portions of any or all such deposits and other
sums against such obligations, whether or not any other Person or Persons could
also withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising any right
of set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest owing with respect to the Syndicated
Notes held by it which is greater than the proportion received by any other Bank
in respect of the aggregate amount of all principal and interest owing with
respect to the Syndicated Notes held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the
Syndicated Notes held by the other Banks owing to such other Banks, and/or such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Syndicated Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; PROVIDED that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness (including, without limitation,
Money Market Loans) of the Borrower other than its indebtedness under the
Syndicated Notes, and (ii) if all or any portion of such payment received by the
purchasing Bank is thereafter recovered from such purchasing Bank, such purchase
from each other Bank shall be rescinded and such other Bank shall repay to the
purchasing Bank the purchase price of such participation to the extent of such
recovery together with an amount equal to such other Bank's ratable share
(according to the proportion of (x) the amount of such other Bank's required
repayment to (y) the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Syndicated Note, whether or not acquired pursuant to the foregoing arrangements,
may exercise rights of set-off or counterclaim and other rights with respect to
such participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
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SECTION 9.05. AMENDMENTS AND WAIVERS. (a) Any provision of
this Agreement, the Notes or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); PROVIDED that no such amendment or waiver
shall, unless signed by all the Banks, (i) change the Commitment of any Bank or
subject any Bank to any additional obligation, (ii) except in accordance with
Section 2.05(b), change the principal of or reduce the rate of interest on any
Loan or any fees hereunder or any of the Obligations (as defined in the
Guaranty) under the Guaranty, (iii) except in accordance with Section 2.05(b),
change the date fixed for any payment of principal of or interest on any Loan or
any fees hereunder or any of the Obligations (as defined in the Guaranty) under
the Guaranty, (iv) change the amount of principal, or reduce the amount of
interest or fees due on any date fixed for the payment thereof under this
Agreement, the Notes or any other Loan Documents, (v) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Notes, or the
percentage of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement or
modify the definition of Required Banks, (vi) change the manner of application
of any payments made under this Agreement, the Guaranty or the Notes, (vii)
release or substitute all or any substantial part of the Pledged Stock and
Related Collateral held as security for the Loans or any of the Obligations, or
(viii) release, discharge or terminate any guaranty given to support payment of
the Loans (including without limitation the Guaranty); provided further that no
such amendment or waiver shall, unless signed by the Swing Line Lender, change
any provision of this Agreement (including without limitation Section 2.14)
relating to the Swing Line Loans.
(b) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions of
this Agreement unless each Bank shall be informed thereof by the Borrower and
shall be afforded an opportunity of considering the same and shall be supplied
by the Borrower with sufficient information to enable it to make an informed
decision with respect thereto. Executed or true and correct copies of any waiver
or consent effected pursuant to the provisions of this Agreement shall be
delivered by the Borrower to each Bank forthwith following the date on which the
same shall have been executed and delivered by the requisite percentage of
Banks. The Borrower will not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.06. MARGIN STOCK COLLATERAL. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
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SECTION 9.07. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment hereunder or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i) the change
of any date fixed for the payment of principal of or interest on the related
Loan or Loans, (ii) the change of the amount of any principal, or the reduction
of any interest or fees due on any date fixed for the payment thereof with
respect to the related Loan or Loans, (iii) the change of the principal of the
related Loan or Loans, (iv) any reduction in the rate at which either interest
is payable thereon or (if the Participant is entitled to any part thereof)
commitment fee is payable hereunder from the rate at which the Participant is
entitled to receive interest or commitment fee (as the case may be) in respect
of such participation, (v) the release or substitution of all or any substantial
part of the Pledged Stock and Related Collateral held as security for the Loans,
or (vi) the release of any guaranty given to support payment of the Loans. Each
Bank selling a participating interest in any Loan, Note, Commitment or other
interest under this Agreement shall, within 10 Domestic Business Days of such
sale, provide the Borrower and the Agent with written notification stating that
such sale has occurred and identifying the Participant and the interest
purchased by such Participant. The Borrower agrees that each Participant shall
be entitled to the benefits of Article VIII with respect to its participation in
Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or a proportionate part of all,
of its rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance in the form attached hereto as Exhibit
J, executed by such Assignee, such transferor Bank and the Agent (and, in the
case of: (i) an Assignee that is not then a Bank or an Affiliate of a Bank; and
(ii) an assignment not made during the existence of a Default or an Event of
Default, by the Borrower); provided that (i) no interest may be sold by a Bank
pursuant to this paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Bank's Commitment, (ii) the amount of the
Commitment being assigned pursuant to such assignment shall be equal to
$10,000,000 (or any larger multiple of $1,000,000) (except that any such
assignment may be in the aggregate amount of the Commitment of the transferor
Bank), (iii) no interest may be sold by a Bank pursuant to this paragraph (c) to
any Assignee that is not then a Bank or an Affiliate of a Bank without the
consent of the Borrower, which consent shall not be unreasonably withheld,
provided that the Borrower's consent shall not be necessary with respect to any
assignment made during the existence of a Default or an Event of Default; (iv) a
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Bank may not have more than two (2) Assignees that are not then Banks (or
affiliates of a Bank) at any one time, and (v) no interest may be sold by a Bank
pursuant to this paragraph (c) to any Assignee that is not then a Bank or an
Affiliate of a Bank, without the consent of the Agent, which consent shall not
be unreasonably withheld, provided, that although the Agent's consent may not be
necessary with respect to an Assignee that is then a Bank or an Affiliate of a
Bank, no such assignment shall be effective until the conditions set forth in
the following sentence are satisfied. Upon (A) execution of the Assignment and
Acceptance by such transferor Bank, such Assignee, the Agent and (if applicable)
the Borrower, (B) delivery of an executed copy of the Assignment and Acceptance
to the Borrower and the Agent, (C) payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, and (D) payment to the Agent by the assigning Bank of a
processing and recordation fee of $1,000, if the assignee is then a Bank or
affiliate of a Bank or $3,500 if the assignee is not then a Bank or an affiliate
of a Bank, such Assignee shall for all purposes be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank under this
Agreement (including, without limitation, the rights of a Bank under Section
2.03) to the same extent as if it were an original party hereto with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by the Borrower, the Banks or the Agent shall
be required. Upon the consummation of any transfer to an Assignee pursuant to
this paragraph (c), the transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial and other information in such Bank's possession concerning the
Borrower which has been delivered to such Bank by the Borrower pursuant to this
Agreement or which has been delivered to such Bank by the Borrower in connection
with such Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a different Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
(f) Anything in this Section 9.07 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and Operating Circular issued by such
Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrower's
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obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
SECTION 9.08. CONFIDENTIALITY. Each Bank agrees to exercise
its best efforts to keep any information delivered or made available by the
Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; PROVIDED, HOWEVER, that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority having jurisdiction over such Bank, (iv)
which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Bank's legal counsel,
Affiliates and independent auditors and (viii) to any actual or proposed
Participant, Assignee or other Transferee of all or part of its rights hereunder
which has agreed in writing to be bound by the provisions of this Section 9.08.
SECTION 9.09. REPRESENTATION BY BANKS. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; PROVIDED,
HOWEVER, that, subject to Section 9.07, the disposition of the Note or Notes
held by that Bank shall at all times be within its exclusive control.
SECTION 9.10. OBLIGATIONS SEVERAL. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the obligations
or commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.11. SURVIVAL OF CERTAIN OBLIGATIONS. Sections
8.03(a), 8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder,
shall survive, and shall continue to be enforceable notwithstanding, the
termination of this Agreement and the Commitments and the payment in full of the
principal of and interest on all Loans.
SECTION 9.12. GEORGIA LAW. This Agreement and each Note shall
be construed in accordance with and governed by the law of the State of Georgia.
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SECTION 9.13. SEVERABILITY. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. INTEREST. In no event shall the amount of
interest due or payable hereunder or under the Notes exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently made to any Bank by the Borrower or inadvertently received by any
Bank, then such excess sum shall be credited as a payment of principal, unless
the Borrower shall notify such Bank in writing that it elects to have such
excess sum returned forthwith. It is the express intent hereof that the Borrower
not pay and the Banks not receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may legally be paid by the Borrower
under applicable law.
SECTION 9.15. INTERPRETATION. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.16. CONSENT TO JURISDICTION. The Borrower (a)
submits to personal jurisdiction in the State of Georgia, the courts thereof and
the United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (c) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Agent from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 9.17. COUNTERPARTS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. FLORIDA TAXES. In connection with this
transaction there may or may not be due certain documentary stamp taxes and/or
intangible taxes imposed by the State of Florida (the "Florida Taxes"). In
addition to (and not in limitation of) the indemnification with respect to tax
liabilities set forth herein, the Borrower agrees to indemnify the Agent and
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each Bank, their directors, officers, agents and employees from and against any
and all liability, damage, loss, cost, expense or reasonable attorney fees which
may accrue to or be sustained by the Agent, a Bank or their directors, officers,
agents or employees on account of or arising from any claim or action raised by,
filed or brought by or in the name of any Florida governmental or administrative
department with respect to non-payment of the Florida Taxes against the Agent, a
Bank, or any of their directors, officers, agents or employees.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
OUTBACK STEAKHOUSE, INC.
By: ________________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Treasurer
Outback Steakhouse, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President, Chief Financial Officer
and Treasurer
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Outback Steakhouse, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, General Counsel and Secretary
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
[The remainder of this page intentionally left blank.]
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COMMITMENTS WACHOVIA BANK, N.A., as Agent and
$34,500,000 as a Bank
Swing Line Commitment
$5,000,000.00
By: _______________________________ (SEAL)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President
LENDING OFFICE
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager, Syndicate Loan Services
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
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$25,000,000 SUNTRUST BANK, TAMPA BAY
By:_________________________ (SEAL)
Title:
LENDING OFFICE
SunTrust Bank, Tampa Bay
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy number:813-224-2833
Telephone number:▇▇▇-▇▇▇-▇▇▇▇
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$25,000,000 SOUTHTRUST BANK, NATIONAL ASSOCIATION
By:___________________________ (SEAL)
Title:
LENDING OFFICE
SouthTrust Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Florida Corporate Banking
Telecopy number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number:▇▇▇-▇▇▇-▇▇▇▇
[The remainder of this page intentionally left blank.]
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$16,500,000 THE HUNTINGTON NATIONAL BANK
By:_________________________ (SEAL)
Title:
LENDING OFFICE
The Huntington National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number:▇▇▇-▇▇▇-▇▇▇▇
[The remainder of this page intentionally left blank.]
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$12,000,000 HIBERNIA NATIONAL BANK
By:___________________________ (SEAL)
Title:
LENDING OFFICE
Hibernia National Bank
US Corporate Division at Hibernia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
[The remainder of this page intentionally left blank.]
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$12,000,000 BANK OF AMERICA, N.A., d/b/a NATIONSBANK,
N.A.
By:___________________________ (SEAL)
Title:
LENDING OFFICE
Bank of America, N.A., d/b/a NationsBank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
TOTAL COMMITMENTS:
$125,000,000.00
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